NO. COA14-6

NORTH CAROLINA COURT OF APPEALS

Filed: 29 July 2014

JOHN E. GRAVEN, JR. and 

KATHRYN L. WALL,

Employees, Plaintiffs

v. Industrial Commission

I.C. File No. X22254, X21936

N.C. DEPT. OF PUBLIC

SAFETY-DIVISION OF LAW

ENFORCEMENT (formerly N.C.

Dept. of Crime Control and

Public Safety),

Employer, Defendant

and

CORVEL CORPORATION,

 Third-Party Administrator.

Appeal by Plaintiffs from opinion and award entered 2 

October 2013 by the North Carolina Industrial Commission. Heard 

in the Court of Appeals 5 May 2014.

Patterson Harkavy LLP, by Narendra K. Ghosh; Baddour, 

Parker, & Hine, P.C., by Phillip A. Baddour, Jr.; and 

Narron, O’Hale & Whittington, P.A., by O. Hampton 

Whittington, Jr., for Plaintiffs-Appellants.

Attorney General Roy A. Cooper, III, by Special Deputy 

Attorney General Sharon Patrick-Wilson, for DefendantAppellee.

DILLON, Judge.
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John E. Graven, Jr. and Kathryn L. Wall (“Plaintiffs”) 

appeal from the North Carolina Industrial Commission’s opinion 

and award denying their claims for benefits. For the following 

reasons, we affirm.

I. Background

Plaintiffs filed workers’ compensation claims for injuries 

sustained on 16 December 2010, which were subsequently denied by 

their employer, the North Carolina Department of Public Safety 

(“Defendant”). Plaintiffs’ claims were consolidated for hearing 

before Deputy Commissioner Stephen T. Gheen, who entered an 

opinion and award concluding inter alia that Plaintiffs each 

sustained a compensable work-related injury by accident arising 

out of and in the course of their employment.

On 15 March 2013, Defendant employer appealed to the Full 

Commission (“the Commission”). On 2 October 2013, the 

Commission filed an opinion and award, reversing the deputy 

commissioner’s decision and denying Plaintiffs workers’ 

compensation benefits. A summary of the parties’ stipulations 

and uncontested findings of fact in the Commission’s opinion and 

award tended to show as follows:

Plaintiffs worked as technical support analysts in the

State Highway Patrol (“SHP”), a division of Defendant, as 
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technical support analysts with the Technical Services Unit 

providing software training to State Troopers and civilians in 

Raleigh and around the State. They worked four days per week, 

from 7:00 a.m. until 5:00 p.m., and were permitted to take a 30-

minute paid lunch break.

In December 2010, Plaintiffs’ supervisor sent out three 

emails over the course of several days inviting employees, 

including Plaintiffs, to attend a lunch (hereinafter the

“holiday lunch”) to be held at a particular public restaurant on 

16 December 2010 “to celebrate the department’s hard work.”

Attendance was voluntary, and attendees were required to pay for 

their own meals, though they benefitted from a group discount

offered by the restaurant. Plaintiffs decided to attend the 

holiday lunch and rode to the restaurant in a state-owned 

vehicle, which had been signed out by another SHP employee. 

Less than half of the SHP employees who were invited actually 

attended the holiday lunch. Attendance was not taken at the 

lunch. No awards were presented at the lunch. No formal 

speeches were given at the lunch; however, three supervisors 

made brief remarks, welcoming the attendees and thanking them 

for their service.
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After the lunch, while Plaintiffs were traveling on a 

public street returning to the SHP office in the state-owned 

vehicle, the driver, who was also a SHP employee, encountered a 

patch of ice and lost control of the vehicle, causing it to 

collide with a tree. As a result of this accident, Plaintiff 

Graven was paralyzed from the chest down, and Plaintiff Wall 

sustained a concussion and some cuts and bruises. SHP employee 

Sergeant Taylor testified that even though Plaintiffs rode in a 

state-vehicle it was not authorized for use to attend the 

holiday lunch and if the vehicle had been requested for the 

purpose of attending the holiday lunch that request would have 

been denied.

Based on its findings, the Commission concluded that 

Plaintiffs’ injuries did not arise out of or occurred within the 

course and scope of their employment. Plaintiffs appeal from 

the Commission’s opinion and award denying them coverage.

II. Standard of Review

“[W]hen reviewing Industrial Commission decisions, 

appellate courts must examine whether any competent evidence 

supports the Commission’s findings of fact and whether those 

findings support the Commission’s conclusions of law.” Frost v. 

Salter Path Fire & Rescue, 361 N.C. 181, 183, 639 S.E.2d 429, 
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432 (2007) (citation, brackets, ellipsis, and quotation marks 

omitted). Unchallenged findings of fact, however, “are presumed 

to be supported by competent evidence and are binding on 

appeal.” Bishop v. Ingles Markets, Inc., ___ N.C. App. ___, 

___, 756 S.E.2d 115, 118 (2014) (citation and quotation marks 

omitted).

In the present case, Plaintiffs challenge certain findings 

made by the Commission and also the Commission’s conclusion that 

Plaintiffs failed to show by the preponderance of the evidence 

that their “injuries arose out of and or occurred within the 

course and scope of their employment.” Accordingly, our review 

will consist of determining whether the challenged findings are 

supported by the evidence and whether the sustained challenged 

findings and the unchallenged findings and stipulations support 

the Commission’s conclusion.

III. Analysis

The workers’ compensation system in North Carolina is “a 

creature of statute enacted by our General Assembly” and 

codified in the Workers’ Compensation Act. Frost, 361 N.C. at 

184, 639 S.E.2d at 432. Our Supreme Court has stated as follows 

regarding this system:

The social policy behind the Workers’ 

Compensation Act is twofold. First, the Act 
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provides employees with swift and certain 

compensation for the loss of earning 

capacity from accident or occupational 

disease arising in the course of employment. 

Second, the Act insures limited liability 

for employers. Although, the Act should be 

liberally construed to effectuate its 

intent, the courts cannot judicially expand 

the employer’s liability beyond the 

statutory perimeters.

Id. (quoting Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 190, 

345 S.E.2d 374, 381 (1986)).

The remedies provided under the Act do not apply to all 

injuries that may be suffered by an employee, but only to those 

injuries which are caused by accidents “arising out of and in 

the course of the employment[.]” N.C. Gen. Stat. 97-2(6) 

(2013). “[W]hether an injury arose out of and in the course of 

employment is a mixed question of law and fact[.]” Fortner v. 

J.K. Holding Co., 319 N.C. 640, 643, 357 S.E.2d 167, 168 (1987) 

(citations and quotation marks omitted). The burden is on the 

employee to prove by a preponderance of the evidence that the 

accident causing him injury arose out of and occurred during the 

course of his employment. Taylor v. Twin City Club, 260 N.C. 

435, 437, 132 S.E.2d 865, 867 (1963); Adams v. Metals USA, 168 

N.C. App. 469, 475, 608 S.E.2d 357, 361 (2005). In the present 

case, we must determine whether the Commission erred in its 

conclusion that Plaintiffs failed to meet their burden of 
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proving that their injuries sustained in the 16 December 2010 

automobile accident while returning to work from a social event 

arose out of and occurred in the course of their employment and 

therefore covered under the Workers’ Compensation Act.

In its opinion and award, the Commission cited two cases 

where our appellate courts have considered whether an accident 

occurring at a social event arises out of or is in the course of 

employment: Perry v. American Bakeries Co., 262 N.C. 272, 136 

S.E.2d 643 (1964), decided by our Supreme Court, and Chilton v. 

School of Medicine, 45 N.C. App. 13, 262 S.E.2d 347 (1980), 

decided by this Court.

In 1964, our Supreme Court stated in Perry as follows:

Where, as a matter of good will, an employer 

at his own expense provides an occasion for 

recreation or an outing for his employees 

and invites them to participate, but does 

not require them to do so, and an employee 

is injured while engaged in the activities 

incident thereto, such injury does not arise 

out of the employment.

Perry, 262 N.C. at 275, 136 S.E.2d at 646 (emphasis added and 

citations omitted). Sixteen years later in 1980, we approved 

and adopted in Chilton a method of analysis for determining 

whether employee injuries incurred at employer-sponsored 

recreational and social activities arise out of and in the 

course of employment. Specifically, we enumerated from 1A 
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Larson, Workmen’s Compensation Law § 22.23, six factors to 

assist a court in making this determination:

(1) Did the employer in fact sponsor the 

event?

(2) To what extent was attendance really 

voluntary?

(3) Was there some degree of encouragement 

to attend evidenced by such factors as:

a. taking a record of attendance;

b. paying for the time spent;

c. requiring the employee to work if he 

did not attend; or

d. maintaining a known custom of 

attending?

(4) Did the employer finance the occasion to 

a substantial extent?

(5) Did the employees regard it as an 

employment benefit to which they were 

entitled as of right?

(6) Did the employer benefit from the event, 

not merely in a vague way through better 

morale and good will, but through such 

tangible advantages as having an opportunity 

to make speeches and awards?

45 N.C. App. at 15, 262 S.E.2d at 348. More recently, in 2007, 

our Supreme Court in Frost, supra, stated that the factors we 

outlined in Chilton were consistent with its 1964 holding in 

Perry. The Supreme Court in Frost, however, stopped short of 
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expressly adopting the Chilton factors because its analysis in 

Perry was sufficient to resolve the case before it; but the 

Supreme Court did state that the factors adopted by this Court 

in Chilton “may serve as helpful guideposts in this inquiry[.]” 

361 N.C. at 186-87, 639 S.E.2d at 433-34.

In the present case, the Commission made some findings 

regarding the factors considered by the Supreme Court in Perry

as well as many of the six Chilton factors, answering most in 

the negative. For instance, the Commission found that 

attendance at the holiday lunch was voluntary and no attendance 

was taken. Further, in its finding of fact 22, the Commission 

stated as follows:

22. The Commission finds that while 

Plaintiffs were traveling to the holiday 

lunch, they were doing so for their own 

benefit. Although Plaintiffs testified that 

they attended the holiday lunch because they 

felt it was important for the morale of the 

department, less than half of the employees 

attended the lunch, and the undersigned find 

that the benefit to the employer, if any, 

was de minimus.

Plaintiffs specifically challenge the conclusion contained in 

finding of fact 22 that the holiday lunch was for the benefit of 

the employees and that the only benefit to the employer was de 

minimus at best. We believe, however, that this conclusion is 

supported by the Commission’s findings and the evidence. 
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Specifically, the sixth factor in Chilton states that for a 

social event to be considered a benefit to the employer in the 

context of determining whether an injury at the event is covered 

by the Workers’ Compensation Act, the benefit must not be 

“merely in a vague way through better morale and good will, but 

through such tangible advantages as having an opportunity to 

make speeches and awards[.]” Chilton, 45 N.C. App. at 15, 262 

S.E.2d at 350. It is undisputed that at least three SHP 

supervisors gave brief remarks before and during the lunch 

thanking employees for their dedication, but there was testimony 

that these remarks did not rise to the level of a speech. Also, 

no awards were handed out at the holiday lunch and attendees 

paid for their own meals.1 2 These findings answering some of 

 

1 Plaintiffs argue that Finding of Fact 26, which states that 

“[t]he injuries sustained by Plaintiffs on December 16, 2010 

occurred during a meal break that Plaintiffs were free to use as 

they pleased” is not supported by the evidence because they were 

paid for their attendance, the holiday lunch lasted longer than 

their normal 30-minute paid lunch break, and they were not 

otherwise allowed to spend more than 30 minutes for a lunch 

break that day “as they pleased.” We agree that the evidence 

conclusively establishes that Plaintiffs were not free to spend 

more than 30 minutes on the day of 16 December 2010 for a lunch 

break any way they pleased. Notwithstanding, we believe that 

the fact that SHP employees attending the holiday lunch were 

compensated for the long lunch break further supports the 

conclusion that the lunch was for the benefit of the employees. 

See Smith v. Decotah Cotton Mills, 31 N.C. App. 687, 690, 230 

S.E.2d 772, 774 (1976) (stating that “[t]he fact that plaintiff 

was being paid during the break is not sufficient to cause [an] 
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the Chilton factor questions establish that the holiday lunch 

did not arise out of or in the course of Plaintiffs’ employment.

Further, we believe that the holiday lunch is similar to 

the type of event that is described in Perry, quoted above, 

which the Supreme Court stated would not arise out of the 

employment. Specifically, here, though the holiday lunch was 

not provided at Defendant’s expense, Defendant did provide “an 

occasion” for the employees to participate in “an outing” which 

“was a matter of good will” in that, as the Commission 

determined, it was for the benefit of the employees and not 

Defendant. Perry, 262 N.C. at 275, 136 S.E.2d at 646. However, 

we note that Plaintiffs were not injured at the social event but 

while traveling back to the workplace. Neither party cites to 

any case where an employee was injured while traveling between 

their workplace and a social event occurring during the workday.

In North Carolina, the general rule is that “[i]njuries 

received by an employee while traveling to or from his place of 

employment are usually not covered by the [Workers’ 

Compensation] Act unless the employer furnishes the means of 

 

accident to arise out of her employment”).

2 Plaintiffs also challenge finding of fact 23 that 

“Plaintiffs exposure to the risk of highway travel is a risk to 

which the general public is equally exposed,” arguing that this 

finding is a conclusion of law. In either case, we address this 

issue of causation below in this opinion.
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transportation as an incident of the contract of employment” or 

if such injuries are sustained while the employee is “on 

premises owned or controlled by the employer[.]” Strickland v. 

King, 293 N.C. 731, 733, 239 S.E.2d 243, 244 (1977). This 

general rule has been referred to as the “coming and going” rule 

by our Supreme Court. See, e.g., Royster v. Culp, Inc., 343 

N.C. 279, 281, 470 S.E.2d 30, 31 (1996). Our Courts have 

explained that “the question of arising out of is not satisfied 

. . . where the injury is due to the hazards of the public 

highway – risks common to the general public.” Harless v. 

Flynn, 1 N.C. App. 448, 458, 162 S.E.2d 47, 54 (1968) (emphasis 

in original). See Roberts v. Burlington Industries, 321 N.C. 

350, 358, 364 S.E.2d 417, 422-23 (1988); Rose v. City of Rocky 

Mount, 180 N.C. App. 392, 401, 637 S.E.2d 251, 257 (2006), disc. 

review denied, 361 N.C. 356, 644 S.E.2d 232 (2007).

The “going and coming” rule, however, is subject to a 

number of exceptions. For instance, there is “the ‘traveling 

salesman’ exception, the ‘contractual duty’ exception, the 

‘special errand’ exception, and the ‘dual purpose’ exception.” 

Dunn v. Marconi, 161 N.C. App. 606, 611, 589 S.E.2d 150, 154 

(2003).
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The “traveling salesman” exception applies where an 

employee’s “work entails travel away from the employer’s 

premises [and does not involve] . . . a distinct departure [to 

make] . . . a personal errand.” Id. at 612, 589 S.E.2d at 155

(citation omitted). The “special errand” exception applies 

where the employee is “engaged in a special duty or errand for 

his employer.” Id. (citation omitted). The “contractual duty” 

exception applies where “the employer furnishes the means of 

transportation as an incident of the contract of employment.” 

Id. (citation omitted and emphasis added). However, this 

“contractual duty” exception does not generally apply where the 

transportation is “provided permissively, gratuitously, or as an 

accommodation[.]” Hunt v. Tender Loving Care, 153 N.C. App. 

266, 270, 569 S.E.2d 675, 679 (citation omitted), disc. rev. 

denied, 356 N.C. 436, 572 S.E.2d 784 (2002). The “dual purpose” 

exception applies in certain circumstances where a trip serves 

“both business and personal purposes” and where it involves a 

“service to be performed for the employer [that] would have 

caused the journey to be made by someone even if it had not 

coincided with the employee’s personal journey.” Dunn, 161 N.C. 

App. at 612-13, 589 S.E.2d at 155 (citation omitted).
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In the present case, the fact that Plaintiffs were riding 

in an automobile provided by SHP does not bring the accident 

within the “contractual duty” exception since the transportation 

to the holiday lunch was not “an incident of the contract of” 

their employment but, as found by the Commission, was provided 

as an accommodation, as testified by SHP employee Sergeant 

Taylor. See Hunt, supra. None of the other exceptions neatly 

fit the present situation since Plaintiffs were not traveling to 

perform work for their employer but were attending a social 

event.

Plaintiffs argue that the “coming and going” rule does not 

apply because “[i]n selecting the location and date of the 

holiday lunch, [D]efendant increased [P]laintiffs’ risk of 

having a motor vehicle accident as they did[,]” noting that the 

location was a 20-30 minute drive from the workplace and that 

SHP employees would not ever travel such a distance during their 

lunch break since they only receive 30 minutes for lunch. 

Essentially, Plaintiffs are arguing that the accident arose out 

of their employment under the “increased risk” analysis that has 

been applied by our Supreme Court. See Roberts v. Burlington 

Industries, 321 N.C. 350, 358, 364 S.E.2d 417, 422-23 (1988). 
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Our Supreme Court in Roberts described the “increased risk” 

approach as follows:

Under [an “increased risk analysis], the 

injury arises out of the employment if a 

risk to which the employee was exposed 

because of the nature of the employment was 

a contributing proximate cause of the 

injury, and one to which the employee would 

not have been equally exposed apart from the 

employment. The causative danger must be 

peculiar to the work and not common to the 

neighborhood.”

Id. (citations, brackets, and quotation marks omitted). We 

believe, however, that the “increased risk” analysis does not 

apply where an employee voluntarily attends a social event 

which, itself, does not arise out of his employment and is 

injured due to a risk that is common to the public while 

traveling on a public road to that event. Therefore, this 

argument is overruled.

We believe that the Commission’s consideration of Perry v. 

American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643 (1964), and 

Chilton v. School of Medicine, 45 N.C. App. 13, 262 S.E.2d 347 

(1980) was appropriate as it first established that the social 

event itself did not arise out of or in the course of 

Plaintiffs’ employment. Further, the application of the “going 

and coming” rule shows that Plaintiffs’ injuries were not 

covered under the Workers’ Compensation Act where they were the 
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result of an accident caused by a risk that is common to the 

public occurring while they were traveling on a public road 

while returning to their workplace from that social event.

For the reasons stated above, we hold that the Commission’s 

conclusion that Plaintiffs failed to meet their burden of 

proving that the accident causing their injuries arose out of 

and occurred in the course of their employment is supported by 

the Commission’s findings; and, accordingly, the opinion and 

award of the Commission is affirmed.

AFFIRMED.

Chief Judge MARTIN and Judge STEELMAN concur.