Thompson v. Refrigerated Transport Co., Inc. , 32 N.C. App. 693 ( 1977 )

236 S.E.2d 312 (1977) 32 N.C. App. 693

Clawson L. THOMPSON, Employee,
v.
REFRIGERATED TRANSPORT CO., INC., Employer, Midland Insurance Co., Carrier.

No. 7610IC709.

Court of Appeals of North Carolina.

April 6, 1977.

Joseph Reichbind, Cooper & Reichbind, Raleigh, for plaintiff-appellee.

Young, Moore, Henderson & Alvis by B. T. Henderson, II, and R. Michael Strickland, Raleigh, for defendants-appellants.

HEDRICK, Judge.

Defendants first contend that plaintiff's injuries did not arise out of and in the course of his employment with the defendant, Refrigerated Transport Co. While defendants concede that an owner operator of a truck leased to an Interstate Commerce Commission franchise holder is the employee of the lessee within the meaning of the North Carolina Workmen's Compensation Act, Brown v. Truck Lines, 227 N.C. 299, 42 S.E.2d 71 (1947), they assert that the plaintiff's injuries in this case did not arise out of and in the course of his employment because under Brown the employer-employee relationship exists only when the "drivers are transporting goods under the franchise authority of the ICC franchise holder." In substance, defendants argue that the plaintiff was an independent contractor with respect to repairs made on the tractor-trailer rig, and that under the facts of the present case he would not have come within the scope of his employment until he had reached the loading dock in Greensboro, preparatory to making the "run" to San Francisco.

Defendants, in their brief, and Commissioner Brown, in his dissenting opinion filed in this case, cite in support of their contention that plaintiff's injuries did not arise out of and in the scope of his employment the following from Employment Security Commission v. Freight Lines, 248 N.C. 496, 502, 103 S.E.2d 829, 833-34 (1958):

"In the decisions cited in the two preceding paragraphs, it was held that the operator (whether the owner or his employee) while operating the leased equipment in furtherance of the business of the franchise carrier, was an employee of the franchise carrier in respect of hazards to which he and the public were subjected by reason of such operation. In such case, the interstate carrier is exercising its franchise rights by use of the services of the operator; and on this ground, and also on the ground of public policy, the interstate carrier has the liability of an employer for what occurs while the leased equipment is so operated. However, when we deal with a matter unrelated to what occurs during the operation of the leased equipment, the status of the operator is to be determined by whether the lessor is an independent contractor under the terms of the lease agreement." (Citation omitted) (Emphasis added).

The above quotation does not support the defendants' contention. The issue before the Court in that case was clearly set out by Justice Bobbitt (later Chief Justice) at the beginning of his opinion,

"The question for decision is this: Are drivers of vehicles so leased [trip lease to ICC franchise holder] (whether the owner or a third party employed by him), during the term of the lease, employees of Hennis [lessee] or are they independent contractors or employees of independent contractors, under the Employment Security Law?"

Id.at 499, 103 S.E.2d at 832.

The status of the operator-lessor in the above cited case was determined by whether he was an independent contractor under the terms of the lease simply because the issue before the court was whether he was an "employee" within the meaning of the Employment Security Act, "a matter unrelated to what occurs during the operation of the leased equipment." In the present case it is clear that the plaintiff was the employee of the defendant Refrigerated Transport Co. within the meaning of the Workmen's Compensation Act. Brown v. Truck Lines, supra. Whether the injury for which he seeks compensation arose out of and in the course of his employment is to be determined as in any other case.

"Preliminary preparations by an employee, reasonably essential to the proper performance of some required task or service, is generally regarded as being within the scope of employment and any injury suffered while in the act of preparing to do a job is compensable." Blair, Workmen's Compensation Law § 9:32 (1974). See also Battle v. Electric Co., 15 N.C.App. 246, 189 S.E.2d 788 (1972), cert. denied, 281 N.C. 755, 191 S.E.2d 353 (1972); Giltner v. Commodore Contract Carriers, 14 Or.App. 340, 513 P.2d 541 (1973); Employers Mutual Liability Ins. Co. v. Department of Industry, Labor & Human Relations, 52 Wis. 2d 515, 190 N.W.2d 907 (1971); Harding v. Herr's Motor Express, Inc., 35 A.D.2d 883, 315 N.Y. S.2d 693 (1970), appeal denied, 28 N.Y.2d 487, 322 N.Y.S.2d 1026, 270 N.E.2d 903 (1971). In the last cited case the New York court held compensable an injury suffered by an employee, who had leased his trucktractor to the defendant employer, while performing repairs or maintenance work on the vehicle at his home in preparation for operating it in his employment as scheduled for later the same day.

In the present case, plaintiff accepted the offer of a job to make the "run" from Greensboro to San Francisco. Part of the duties of plaintiff's employment was to present the tractor-trailer rig in Greensboro in condition to make the trip. Indeed, if the rig did not pass the employer's inspection, plaintiff would not get the job in question. At the time of his injury plaintiff was furthering the business of his employer in that he was preparing the rig to make the journey to San Francisco for his employer. We hold that the Commission's findings support the conclusion that plaintiff's injuries arose out of and in the course of his employment with defendant Refrigerated Transport Co.

Based on assignment of error 4, defendants contend,

"[T]he bare assertion by the employee-appellee that he was temporarily totally disabled is not sufficient to establish the fact of disability or the length of disability and that the findings of the Industrial Commission as to temporary total disability are not supported by competent evidence in the Record."

In appropriate circumstances the extent and period of disability may be established in the absence of medical testimony with respect thereto. 3 Larson, Workmen's Compensation Law § 79.51 (1976). However, in the present case the Commission's finding that plaintiff was totally disabled for thirteen weeks is supported not only by plaintiff's testimony, but also by the medical records and physicians' reports showing the nature and extent of his injury. This assignment of error has no merit.

Finally defendants contend the Commission erred in substituting an award of $800 for a five per cent permanent partial disability to plaintiff's hand for the hearing commissioner's award of $400 for serious bodily disfigurement. Defendants argue that the amendment is erroneous because the plaintiff did not appeal from the award of the hearing commissioner. We disagree.

The Commission is the fact finding body under the Workmen's Compensation Act and has authority ". . . to review, modify, adopt, or reject the findings of fact found by a Deputy Commissioner or by an individual member of the Commission when acting as a hearing Commissioner." Brewer v. Trucking Co., 256 N.C. 175, 182, 123 S.E.2d 608, 613 (1962). The assignment of error upon which this contention is based has no merit.

We hold the material findings of fact made by the Commission are supported by competent evidence in the record, and these findings support the pertinent conclusions of law, which in turn support the award. The order appealed from is

Affirmed.

CLARK, J., concurs.

VAUGHN, J., dissents.