Jacobs v. Sara Lee Corp.

Upon review of the competent evidence of record, and having the benefit of the arguments of the parties, the Full Commission, upon reconsideration of the evidence, reverses the Opinion and Award of the Deputy Commissioner and denies plaintiff's claim for compensation.

The Full Commission finds as fact and concludes as matters of law the following, which were entered into by the parties in a pretrial agreement dated 12 May 2000 as:

2. At the time of the injury giving rise to this claim, the parties were subject to and bound by the provisions of the North Carolina Workers' Compensation Act.

3. At such time, an employment relationship existed between plaintiff and defendant-employer.

4. At such time, plaintiff's average weekly wage was such that it yields the maximum compensation rate of $560.00.

5. Plaintiff received short-term disability from 24 May 1999 through 19 November 1999, in the total amount of $15,325.54. This amount was paid pursuant to defendant-employer's short-term disability plan, which is 100% funded by defendant-employer.

6. The issue to be determined as a result of this hearing is whether plaintiff's injury arose out of and in the course and scope of his employment.

2. As an incentive, defendant-employer offered trips to food shows as prizes for employees who sold certain volumes of products. Plaintiff had taken approximately twenty such trips during his employment with defendant-employer. Defendant-employer provided transportation and, normally, spending money to employees who won these trips. Plaintiff and other employees were paid their normal salaries while on the trips. Defendant-employer also provided a program of food show events that he could attend.

3. No attendance was taken at the food show events or at the related parties.

4. On 23 May 1999, plaintiff was in Chicago, having won a trip to the Chicago food show through his employment with defendant-employer. On that day, plaintiff attended a major league baseball game. The baseball game was not on any itinerary or program provided for this trip and tickets to the ball game were not provided by defendant-employer. Plaintiff personally chose to attend the ball game and paid for his ticket.

5. While exiting the ballpark, plaintiff slipped and fell, twisting and rupturing a tendon in his right knee.

6. Plaintiff indicated that he left the ball game early because it started to rain and that he intended to go to a party at Dave Busters which was listed on a program of events available to salespeople who, like plaintiff, had won the privilege to travel to Chicago on this trip. Plaintiff was not expected to attend the ball game; the baseball game was not on the program of events provided by the employer; and travel to and from the ball game was for plaintiff's purpose and did not directly serve the interests of his employer. Plaintiff was free to attend, or not attend, events on the program that was provided to him and was only expected by his employer to attend the food show. Plaintiff was free to travel to baseball games, take city tours, site see, or to remain in his hotel; plaintiff was not required to attend any specific function.

7. Plaintiff was not required to attend the party at Dave Busters.

8. After the fall, plaintiff immediately was taken to the hospital. Plaintiff had surgery to repair his knee on 2 June 1999.

9. Plaintiff's 23 May 1999 injury did not arise out of and in the course of his employment with defendant-employer. The trip to Chicago was a pleasure trip won by plaintiff as a result of a sales incentive program with his employer. Plaintiff was not required to travel to the baseball game, chose to do so at his own desire, and his attendance at the baseball game, including travel to and from the game, was not an act arising out of and in the course of plaintiff's employment.

2. Parties shall pay their respective costs.

S/______________ RENE C. RIGGSBEE COMMISSIONER

CONCURRING:

S/_______________ DIANNE C. SELLERS COMMISSIONER

DISSENTING:

S/_______________ LAURA K. MAVRETIC COMMISSIONER

I respectfully dissent from the majority's decision to reverse the Deputy Commissioner's Opinion and Award. I agree with the Deputy Commissioner that plaintiff's knee injury arose out of and within the course of his employment with defendant-employer and therefore is compensable. I would affirm the decision of the Deputy Commissioner.

Our courts have consistently held that employees whose work requires them to travel away from the employer's premises are within the course of their employment continuously during such travel, except when there is a distinct departure for a personal errand. Cauble v. Soft-Play, Inc.,124 N.C. App. 526, 477 S.E.2d 678 (1996); Chandler v. Teer,53 N.C. App. 766, 281 S.E.2d 718 (1981), aff'd, 305 N.C. 292,287 S.E.2d 890 (1982); Martin v. Georgia-Pacific Corp., 5 N.C. App. 37,167 S.E.2d 790 (1969). In the present case, plaintiff was not on a "pleasure trip," as the majority characterizes the travel. Plaintiff did not win a trip to a tropical island, a fishing trip, or similar vacation. The trip to the National Restaurant Association exposition in Chicago was clearly business-related travel and arose out of plaintiff's employment. Defendant-employer paid plaintiff's salary while he was in Chicago, paid for plaintiff's airfare and hotel accommodations, and gave him expense money. Plaintiff was expected to attend the food show during the four days he was staying in Chicago at defendant-employer's expense.

In addition, the evidence shows that because defendant-employer financed the trip, plaintiff believed that he was obligated or expected to attend the trade parties and other events that were included on the program itinerary provided by defendant-employer. Although defendants' witness Rick Keiper testified that employees were not expected to attend the related parties, he admitted that defendant-employer had never informed employees of this. Plaintiff had attended the NRA food show three times previously and always went to the parties and other sponsored events. These social events were business related in that they were an opportunity for plaintiff to meet salesmen and vendors he dealt with by telephone but had not had an opportunity to meet and to create general goodwill for defendant-employer. At the shows and related functions, employees were expected to network with other individuals involved in the food service business and to educate themselves about new products on the market that were displayed and presented as samples at the various functions.

Therefore, because of connections with people in the trade and knowledge about products acquired by plaintiff at parties and other events related to the food show, defendant-employer directly benefited from plaintiff's attendance at these parties. Plaintiff's attendance at the exposition-related parties was within the course of his employment with defendant-employer. In my opinion, to hold otherwise would be to infer that any employee traveling on his employer's business would not be covered under our Workers' Compensation Act if injured at a reception or other social event associated with business seminars, conferences, and conventions. While attendance might not be required by an employer, most employers expect their employees to participate in these functions. Conferees attend these functions for the same networking purposes plaintiff attended the parties at the trade show, including the one at Dave Busters plaintiff intended to attend after the ballgame. It is unrealistic to argue that attendance at such business-related functions is purely elective and merely for social reasons.

The evidence shows that plaintiff went to a baseball game in the afternoon prior to attending the social event at Dave Busters. Although in previous years defendant-employer had provided tickets to baseball games to its employees attending the food shows, this particular year defendant-employer chose not to do so. Therefore, plaintiff's attendance at the White Sox-Yankees game on the date of his injury by accident was a purely voluntary decision and constituted a personal departure from the business-related nature of his trip. However, plaintiff reentered the course of employment when he was leaving the stadium to travel to the food show-related party. Plaintiff's fall as he was leaving the stadium was an injury by accident arising out of and in the course of his employment with defendant-employer and therefore plaintiff is entitled to compensation for his injury. N.C. Gen. Stat. § 97-2(2); Cauble v. Soft-Play, Inc., supra; Chandler v. Teer,supra; Martin v. Georgia-Pacific Corp., supra.

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER