McGrady v. Olsten Corp.

I dissent from the majority Opinion and Award in this matter because I do not believe that the competent evidence of record establishes that plaintiff's injury arose out of and in the course of her employment as an in-home caregiver. In Hoyle v Isenhour Brick Tile Co., 348 N.C. 248,293 S.E.2d 196 (1982), the Supreme Court cited several previous cases elaborating on this element of the definition of injury by accident pursuant to the Workers Compensation Act.

"An accident arising `in the course of' the employment is one which occurs while `the employee is doing what a man so employed may reasonably do within a time during which he is employed and at a place where he may reasonably be during that time to do that thing'; or one which `occurs in the course of the employment and as the result of a risk involved in the employment, or incident to it, or to conditions under which it is required to be performed.'" Conrad v. Foundry Company, 198 N.C. 723, 153 S.E. 266.

The home health certification and plan of care which included plaintiff's duties, responsibilities and authorized activities did not include yard work, harvesting fruit, or climbing trees; consequently, climbing a pear tree was not a risk involved, an incident to, or condition under which plaintiff's employment was required to be performed. Furthermore, even though plaintiff was authorized by her employer to grocery shop for the patient, plaintiff's action in climbing the tree to obtain a pear was not an activity that a reasonable person would have undertaken to carry out the obligations of such employment.

In Perry v. Bakeries Co., 262 N.C. 272, 136 S.E.2d 643, Moore, J., speaking for the Court, said:

"`The term "arising out of employment," it has been said, is broad and comprehensive and perhaps not capable of precise definition. It must be interpreted in the light of the facts and circumstances of each case, and there must be some causal connection between the injury and the employment.' To be compensable an injury must spring from the employment or have its origin therein. An injury arises out of the employment when it is a natural and probable consequence or incident of the employment and a natural result of one of its risks, so that there is some causal relation between the injury and the performance of some service of the employment. An accident arises out of and in the course of the employment when it occurs while the employee is engaged in some activity or duty which he is authorized to undertake and which is calculated to further, directly or indirectly, the employer's business." (Citations omitted.) Clark v. Burton Lines, 272 N.C. 433, 437, 158 S.E.2d 569, 571-72 (1968).

Climbing a pear tree was not a contemplated action of plaintiff's employment; therefore, there is no causal relationship between plaintiff's injuries and the performance of her employment as an in-home caregiver. Plaintiff gave conflicting testimony at the deputy commissioner hearing as to whether she was retrieving a pear for her own enjoyment or solely for her patient. If plaintiff's accident occurred while she was retrieving the pear for her own enjoyment, it is uncontrovertible that she did not undertake the action to further directly or indirectly her employer's business and therefore her claim should be denied.

The majority's finding that a pear tree may be viewed as nature's grocery store begs recitation of the fact that a pear tree dispenses its fruit naturally by conveniently dropping it to the ground when it is ripe and ready for human consumption. Nature does not require human beings to climb pear trees to retrieve their fruits.

While I recognize that case law interpreting the Workers Compensation Act has consistently held that this statute is to be liberally construed in favor of the claimant, I do not believe that the legislature intended such farfetched application as seen here that has gone entirely beyond the bounds of rationality and sound judgment and reasoning. Plaintiff's action of climbing the pear tree constituted a deviation from her employment beyond the broadest plausible interpretation of `injury by accident' and her claim should be denied.

This the ___ day of April 2002.

S/_____________________________ BUCK LATTIMORE CHAIRMAN

2. Plaintiff was employed by defendants on July 26, 1999, the date of plaintiff's alleged injury by accident.

3. On July 26, 1999, ITT Specialty Risk Services, Inc. was the carrier on the risk.

4. Plaintiff alleges that she injured her back on July 26, 1999, sustaining a L1 burst fracture requiring posterior thoracolumbar stabilization from T10 to L3.

5. Plaintiff last worked for defendants on July 26, 1999.

6. Plaintiff's average weekly wage will be determined by a Form 22 Wage Chart.

7. The parties stipulated into evidence as Stipulated Exhibit 1, a packet of plaintiff's medical records including those from Rowan Neurosurgical Associates, South Rowan Family Practice, Rowan Diagnostic Clinic, Rowan Regional Medical Center and Sleep Medicine Center.

2. In August 1994, plaintiff became employed with defendant-employer as an in-home caregiver for various clients of defendant-employer. As a caregiver, plaintiff had a variety of job duties relating to the care of clients including taking vital signs, helping clients with personal hygiene, assisting with activities such as ambulating, providing a safe environment in the home, and assisting with care of catheters. Plaintiff also was required to make meals for clients for breakfast, lunch and dinner as well as snacks, perform household chores such as cleaning and laundering, as well as transporting the client and grocery shopping if requested.

3. Plaintiff worked nine hours per day, seven days per week and earned $7.60 per hour.

4. While working for defendant-employer plaintiff was assigned as a caregiver in the home of Ms. Nancy Withers.

5. On July 26, 1999, after assisting Ms. Withers out of bed and preparing her breakfast, plaintiff took Ms. Withers' dog outside and, while outside in the yard, plantiff decided to pick a pear from the pear tree for herself and Ms. Withers. Plaintiff climbed into the tree to retrieve a pear and, as she was coming down, she fell from the tree.

6. As a result of plaintiff's fall, she suffered a L1 burst fracture requiring a posterior thoracolumbar stabilization from T10 through L3. Following plaintiff's fall, plaintiff was treated at Rowan Regional Medical Center by Dr. Ranjan S. Roy. Plaintiff's surgery was performed by Dr. Roy and she has continued to be treated by him since that time.

7. Plaintiff regularly served fruit to Ms. Withers as a part of her job.

8. As an employee for defendant-employer, plaintiff was to provide services pursuant to the home health certification and plan of care which included plaintiff's duties, responsibilities and authorized activities. The plan authorized plaintiff to fix meals for Ms. Withers and to go grocery shopping.

9. On July 26, 1999, as plaintiff climbed the pear tree to obtain a pear, plaintiff had not so deviated from her job duties as to have abandoned her job. Plaintiff's activities in obtaining and preparing food for Ms. Withers was in the course and scope of her employment with defendant-employer. Although defendants suggest that scaling a tree is not the same as grocery shopping, the Full Commission, under the facts of this case, disagrees. The pear tree is part of nature's bounty and may be viewed as nature's grocery store. The taking of the pear was thereby consistent with plaintiff's duties to acquire and prepare food for Ms. Withers. Plaintiff had not deviated from her work duties at the time and place of her duties so as to depart from the course and scope of her employment.

10. The Form 22 filed with the Commission shows that plaintiff earned $17,226.60 for the 52 weeks prior to her injury for an average weekly wage of $331.28 and a compensation rate of $225.85.

2. Plaintiff is entitled to receive and defendant is required to pay total temporary disability benefits at the rate of $223.85 until such time as she returns to work or further order of the Commission. N.C.G.S. § 97-29.

3. Plaintiff is entitled to receive and defendants are responsible to pay for reasonable and necessary medical care for the compensable injury to plaintiff's lumbar and thoracic spine, subject to the limitations of Section 97-25.1. N.C.G.S. §§ 97-2(19), 97-25.

2. Plaintiff's counsel is entitled to recover 25% of the benefits award in paragraph 1 above for representation of plaintiff in this action. Defendant shall withhold 25% of the accrued benefits and pay this sum directly to plaintiff's counsel. For continuing benefits, defendants shall pay every fourth check to plaintiff's counsel.

3. Defendants shall provide medical care for the compensable injury to plaintiff's lumbar and thoracic spine, subject to the limitations of Section 97-25.1.

4. Defendant shall pay all costs.

S/_____________________________ RENEE C. RIGGSBEE COMMISSIONER

CONCURRING:

S/_____________________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

DISSENTING:

S/_____________________________ BUCK LATTIMORE CHAIRMAN