{ "id": 9366615, "name": "WAYMAN HARRIS, Employee/Plaintiff v. THOMPSON CONTRACTORS, INC., Employer, and UNITED STATES FIDELITY AND GUARANTY INSURANCE COMPANY, Carrier/Defendants", "name_abbreviation": "Harris v. Thompson Contractors, Inc.", "decision_date": "2002-02-05", "docket_number": "No. COA01-100", "first_page": "472", "last_page": "482", "citations": [ { "type": "official", "cite": "148 N.C. App. 472" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "128 S.E.2d 598", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "600" } ], "opinion_index": 0 }, { "cite": "268 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561425 ], "year": 1962, "pin_cites": [ { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0287-01" ] }, { "cite": "23 S.E.2d 834", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "pin_cites": [ { "page": "836" } ], "opinion_index": 0 }, { "cite": "222 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631016 ], "year": 1943, "pin_cites": [ { "page": "480" } ], "opinion_index": 0, "case_paths": [ "/nc/222/0477-01" ] }, { "cite": "295 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "461" } ], "opinion_index": 0 }, { "cite": "306 N.C. 706", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573544 ], "year": 1982, "pin_cites": [ { "page": "710" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0706-01" ] }, { "cite": "478 S.E.2d 501", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1996, "opinion_index": 0 }, { "cite": "345 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53917 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/345/0128-01" ] }, { "cite": "457 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "326" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 704", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920782 ], "year": 1995, "pin_cites": [ { "page": "705" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0704-01" ] }, { "cite": "257 S.E.2d 157", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 2159056 ], "year": 1979, "pin_cites": [ { "page": "158", "parenthetical": "holding that defendant required to provide workers' compensation benefits due to the existence of an employer-employee relationship and that \"[claimant] transcended his prisoner status and became a private employee entitled to workmen's compensation benefits.\"" } ], "opinion_index": 0, "case_paths": [ "/sc/273/0409-01" ] }, { "cite": "431 So.2d 232", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9519841 ], "year": 1983, "pin_cites": [ { "page": "232-33", "parenthetical": "holding that \"[w]ork-released prisoners engaged to work in private enterprise, for compensation paid them by private businesses that are 'employers' in every practical sense of the word, are not excluded from [the Workers' Compensation Act].\"" } ], "opinion_index": 0, "case_paths": [ "/so2d/431/0232-01" ] }, { "cite": "922 P.2d 1205", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 322263 ], "year": 1996, "pin_cites": [ { "page": "1211", "parenthetical": "holding that claimant's \"status as an inmate does not preclude the existence of an employer-employee relationship for the purpose of receiving workers' compensation benefits.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/122/0209-01" ] }, { "cite": "337 S.E.2d 595", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "596" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 415", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521610 ], "year": 1985, "pin_cites": [ { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0415-01" ] }, { "cite": "422 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1992, "pin_cites": [ { "page": "585" }, { "page": "587" }, { "page": "585" }, { "page": "587" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 85", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522625 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/108/0085-01" ] }, { "cite": "535 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "604" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 130", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12122648 ], "year": 2000, "pin_cites": [ { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0130-01" ] }, { "cite": "532 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "210" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 593", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080920 ], "year": 2000, "pin_cites": [ { "page": "597" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0593-01" ] }, { "cite": "306 N.C. 565", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573122, 8573110 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0565-02", "/nc/306/0565-01" ] }, { "cite": "293 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1982, "pin_cites": [ { "page": "202", "parenthetical": "citations omitted" }, { "page": "259" }, { "page": "203" } ], "opinion_index": 0 }, { "cite": "306 N.C. 248", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568137 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0248-01" ] } ], "analysis": { "cardinality": 957, "char_count": 25162, "ocr_confidence": 0.736, "pagerank": { "raw": 4.2326328743275565e-07, "percentile": 0.9143828462586042 }, "sha256": "cd5abe9c74a989b65443629570ffc13eb7edce08a4478eb99ebe3453c2f013fe", "simhash": "1:0061d52e521fd25c", "word_count": 4027 }, "last_updated": "2023-07-14T20:14:25.013425+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and BIGGS concur." ], "parties": [ "WAYMAN HARRIS, Employee/Plaintiff v. THOMPSON CONTRACTORS, INC., Employer, and UNITED STATES FIDELITY AND GUARANTY INSURANCE COMPANY, Carrier/Defendants" ], "opinions": [ { "text": "EAGLES, Chief Judge.\nThompson Contractors, Inc. and United States Fidelity and Guaranty Insurance Company (\u201cdefendants\u201d) appeal from an Opinion and Award for the Full Commission awarding Wayman Harris (\u201cplaintiff\u2019) workers\u2019 compensation benefits. Plaintiff was a Department of Corrections prisoner on work release when he was injured working for Thompson Contractors, Inc. (\u201cThompson\u201d). After careful consideration of the briefs and record, we affirm.\nPlaintiff is serving a life sentence for murder and has been incarcerated with the North Carolina Department of Corrections for approximately 25 years. Plaintiff began working through the work release program in 1992. On 7 July 1997, Thompson employed plaintiff to work as a drop ball operator at their Mill Spring quarry in Polk County. As a drop ball operator, plaintiff operated a crane that lowered a ball from the boom to break up rocks. Plaintiff had not operated a crane before his employment with Thompson. During August 1997, Thompson reassigned plaintiff to work at Miller Creek quarry in Rutherford County.\nPlaintiff had operated a \u201cD-25\u201d model crane at the Mill Spring quarry. This crane was \u201cmuch smaller\u201d than the Northwest \u201cD-80\u201d crane that plaintiff operated at the Miller Creek quarry. The \u201cD-80\u201d crane weighed approximately 80 tons and the drop ball weighed approximately 10,000 pounds. The \u201cD-80\u201d crane that plaintiff operated was originally manufactured as a shovel crane and subsequently modified. The \u201cstick and the bucket was taken off of it\u201d and \u201cthe boom was extended to make it into a crane boom.\u201d The boom is the arm that extends off the crane which can be moved up and down. The crane is on two tractor treads which move the crane forward, backwards, right and left. The crane with the boom can rotate 360 degrees on the tractor treads.\nOn 17 September 1997, plaintiff was operating the \u201cD-80\u201d crane at the Miller Creek quarry. Plaintiff was \u201cwalking\u201d the crane, which is moving the crane on its tractor treads, to another area of the quarry. While \u201cwalking\u201d the crane, plaintiff contends that the cabin filled with smoke. As he got up to check on the source of the smoke, the crane toppled over trapping plaintiff underneath. Defendants contend that there was no smoke or fire in the cabin and the crane toppled due to plaintiff \u201cwalking\u201d the crane with the boom and drop ball raised.\nPlaintiff lost his left foot in the accident and suffered shoulder, rib and leg injuries. After the accident, plaintiffs left leg was amputated below the knee.\nAfter the accident, plaintiffs claim for workers\u2019 compensation benefits was denied. Plaintiff requested a hearing which was held before Deputy Commissioner Kim L. Cramer on 9 March 1999. Deputy Commissioner Cramer denied plaintiff benefits in an Opinion and Award filed 29 October 1999. Plaintiff appealed for review and the matter was heard by the Full Commission. In its Opinion and Award filed 24 October 2000, the Full Commission reversed the Deputy Commissioner\u2019s holding and awarded plaintiff benefits. Defendants appeal.\nDefendants raise three issues on appeal. Whether the Full Commission erred in: (1) its determination that plaintiff\u2019s status as a prisoner did not bar recovery; (2) failing to find that plaintiff\u2019s claim is barred by his willful intention to injure or kill himself; and (3) its application of Hoyle v. Isenhour Brick and Tile Co., 306 N.C. 248, 293 S.E.2d 196, reh\u2019g denied, 306 N.C. 565 (1982).\n\u201cOn appeal from an award of the Industrial Commission, the scope of our appellate review is limited to two questions: (1) whether the Commission\u2019s findings of fact are supported by competent evidence in the record; and (2) whether the findings of fact justify the Commission\u2019s conclusions of law.\u201d Peagler v. Tyson Foods, Inc., 138 N.C. App. 593, 597, 532 S.E.2d 207, 210 (2000). \u201cThis is true even when there is evidence that would support contrary findings.\u201d Goff v. Foster Forbes Glass Div., 140 N.C. App. 130, 133, 535 S.E.2d 602, 604 (2000).\nDefendants first contend that the Full Commission erred in determining that plaintiffs status as a prisoner did not bar recovery by plaintiff. We do not agree.\nDefendants argue that G.S. \u00a7 97-13(c) bars recovery by plaintiff. It states that the \u201c[Workers\u2019 Compensation Act] shall not apply to prisoners being worked by the State or any subdivision thereof,....\u201d G.S. \u00a7 97-13(c). Further, G.S. \u00a7 148-6 states that \u201csuch convicts so hired, or employed, shall remain under the actual management, control and care of the Department [of Correction] . ...\u201d In addition, a prisoner on work release \u201cshall give his work-release earnings, less standard payroll deductions required by law, to the Department of Correction.\u201d G.S. \u00a7 148-33.1(f). Defendants contend that plaintiff was being worked by the State since plaintiff was to remain under the \u201cactual management, control and care\u201d of the Department of Correction (\u201cDOC\u201d) and DOC received the prisoner\u2019s earnings.\nDefendants also argue that no contract for hire existed between plaintiff and defendant Thompson. Defendants contend that a contract existed between defendant Thompson and the State, not between plaintiff and defendant Thompson. Defendants argue that the State assigned workers to Thompson and that Thompson had no say in the selection of work release employees. The Workers\u2019 Compensation Act defines employee as \u201cevery person engaged in an employment under any appointment or contract of hire . ...\u201d G.S. \u00a7 97-2(2). Defendants argue that this lack of contract for hire precludes plaintiff from being an employee which is necessary in order to claim benefits.\nDefendants cite Parker v. Union Camp Corp., 108 N.C. App. 85, 422 S.E.2d 585 (1992) for support. In Parker, the plaintiff suffered compensable work-related injuries and received workers\u2019 compensation benefits. Id. at 86, 422 S.E.2d at 585. While receiving benefits, the plaintiff was convicted and sentenced to prison. Id. Parker held that the plaintiff \u201cwas not entitled to receive workers\u2019 compensation benefits while in prison . . . .\u201d Id. at 88, 422 S.E.2d at 587.\nWe hold that the Full Commission properly determined that plaintiff\u2019s status as a prisoner did not bar plaintiff from receiving benefits. The Full Commission found that:\n2. By statute, the North Carolina Department of Correction is authorized to grant work release privileges to eligible inmates pursuant to G.S. \u00a7 148-33.1. In this work release program, inmates may work in the public and private sectors and are viewed by the state as not working as agents of the state, but as individuals employed by a regular employer.\nThe Full Commission concluded:\n3. Because the injury giving rise to this claim occurred when plaintiff, while incarcerated, was on work release, the holding in Parker is not controlling and does not bar plaintiff from recovering under the act as an employee. Parker v. Union Camp Corp., 108 N.C. App. 85, 422 S.E.2d 585 (1992).\n4. On 17 September 1997, the date of his injury by accident, plaintiff was not being worked by the State or any subdivision thereof and, therefore, the provisions of G.S. \u00a7 97-13(c) do not bar plaintiff from recovering workers\u2019 compensation benefits from defendants.\nThe Workers\u2019 Compensation Act is broad and covers all employers and employees unless they are specifically excluded.\nFrom and after January 1,1975, every employer and employee, as hereinbefore defined and except as herein stated, shall be presumed to have accepted the provisions of this Article respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of his employment and shall be bound thereby.\nG.S. \u00a7 97-3 (emphasis added).\nHere, plaintiff and defendants entered into a pre-trial agreement which was signed on 2 March 1999. Among other things, this agreement provided that: \u201c1. Employee is Wayman Harris. 2. Employer is Thompson Contractors Inc. ... 4. Employee-Employer relationship existed.\u201d The Opinion and Award by Deputy Commissioner Cramer and the Opinion and Award by the Full Commission contained similar stipulations. This stipulation found in both documents stated that \u201c[t]he parties were subject to and bound by the provisions of the North Carolina Workers\u2019 Compensation Act\u201d and an \u201cemployee-employer relationship existed between the parties at all relevant times . ...\u201d A stipulation regarding the employer-employee relationship is binding on the parties. Sorrell v. Sorrell\u2019s Farms and Ranches, Inc., 78 N.C. App. 415, 417, 337 S.E.2d 595, 596 (1985).\nOther jurisdictions have held that a claimant\u2019s status as a prisoner will not prevent the existence of an employer-employee relationship between a claimant-prisoner and a private employer. See Benavidez v. Sierra Blanca Motors, 922 P.2d 1205, 1211 (N.M. 1996) (holding that claimant\u2019s \u201cstatus as an inmate does not preclude the existence of an employer-employee relationship for the purpose of receiving workers\u2019 compensation benefits.\u201d); Courtesy Construction Corp. v. Derscha, 431 So.2d 232, 232-33 (Fla. Dist. Ct. App. 1983) (holding that \u201c[w]ork-released prisoners engaged to work in private enterprise, for compensation paid them by private businesses that are \u2018employers\u2019 in every practical sense of the word, are not excluded from [the Workers\u2019 Compensation Act].\u201d); Hamilton v. Daniel International Corp., 257 S.E.2d 157, 158 (S.C. 1979) (holding that defendant required to provide workers\u2019 compensation benefits due to the existence of an employer-employee relationship and that \u201c[claimant] transcended his prisoner status and became a private employee entitled to workmen\u2019s compensation benefits.\u201d). However, due to the stipulations that exist here, we need not reach the issue of whether plaintiff and defendant Thompson meet the statutory definitions of employee and employer respectively.\nSince the requisite employer-employee relationship exists, plaintiff will be covered by the Act unless the Act specifically excludes him. G.S. \u00a7 97-3. Employers and employees not covered by the Act are enumerated in G.S. \u00a7 97-13. Those excluded by this provision are: \u201c(a) Employees of Certain Railroads.\u201d \u201c(b) Casual Employment, Domestic Servants, Farm Laborers, Federal Government, Employer of Less than Three Employees.\u201d \u201c(c) Prisoners.\u201d \u201c(d) Sellers of Agricultural Products.\u201d G.S. \u00a7 97-13. Section \u201c(c) Prisoners\u201d states:\nThis Article shall not apply to prisoners being worked by the State or any subdivision thereof, except to the following extent: Whenever any prisoner assigned to the State Department of Correction shall suffer accidental injury or accidental death arising out of and in the course of the employment to which he had been assigned, if there be death or if the results of such injury continue until after the date of the lawful discharge of such prisoner to such an extent as to amount to a disability as defined in this Article, then such discharged prisoner or the dependents or next of kin. of such discharged prisoner may have the benefit of this Article by applying to the Industrial Commission as any other employee;. . .\nG.S. \u00a7 97-13(c) (emphasis added). A prisoner being worked by the State is specifically excluded from the Act unless the disabling injury continues after the discharge of the prisoner or the prisoner suffers an accidental death. Richardson v. N. C. Dept. of Correction, 118 N.C. App. 704, 705, 457 S.E.2d 325, 326 (1995), aff'd, 345 N.C. 128, 478 S.E.2d 501 (1996).\nG.S. \u00a7 148-26(a) provides that \u201c[i]n exercising his power to enter into contracts to supply inmate labor as provided by this section, the Secretary of Correction shall not assign any inmate to work under any such contract who is eligible for work release as provided in this Article,....\u201d (Emphasis added.) In addition, \u201c[n]o prisoner employed in the free community under the provisions of [G.S. \u00a7 148-33.1] shall be deemed to be an agent, employee, or involuntary servant of the State prison system while working in the free community or going to or from such employment.\u201d G.S. \u00a7 148-33.1(g). The DOC is not authorized to assign a prisoner pursuant to any labor contracts when that prisoner is eligible for work release. Also, a prisoner employed through the work release program is not an agent or employee of the State prison system. This, along with the stipulations and Pre-Trial Agreement, is sufficient to show that plaintiff was not \u201cbeing worked by the State.\u201d\nThe General Assembly has specifically excluded the provisions of the Workers\u2019 Compensation Act from certain prison laborers. Counties may work prisoners confined in local confinement facilities. G.S. \u00a7 162-58. The General Statutes provide for the liability of counties that work prisoners. G.S. \u00a7 162-61. Counties are liable for emergency medical services for prisoners while they are working and for injuries to third parties incurred through the negligence of working prisoners. Id. However, this provision states that the \u201c[Employment Security and Workers\u2019 Compensation Act] of the General Statutes shall have no application to prisoners\u201d worked by counties. Id. However, there is no similar exclusion in the statutes authorizing work release. Prisoners employed in the work release program are only specifically excluded from \u201cany benefits under Chapter 96 of the General Statutes entitled \u2018Employment Security\u2019 during the term of the sentence\u201d but there is no specific exclusion for Chapter 97, the Workers\u2019 Compensation Act. G.S. \u00a7 148-33.1(h). In the statute authorizing work release, the General Assembly made no specific exclusion for the Workers\u2019 Compensation Act as it did in the statutes authorizing the working of county prisoners.\nParker is distinguishable from the instant case. In Parker, the claimant was injured on the job before his incarceration and was already receiving benefits. Parker at 86, 422 S.E.2d at 585. Here, plaintiff was already incarcerated at the time of his injury and was involved in the work release program when his work related injury occurred.\nMoreover, in Parker\u2019s holding, this Court in dicta stated \u201cwe note that the legislature may want to examine the possibility of continuing payment of benefits during a period of incarceration directly to a prisoner\u2019s dependents, who may have been relying on the disability payments as a major, or sole, source of income.\u201d Id. at 88, 422 S.E.2d at 587.\nHere, the Full Commission entered the following award:\n1. Defendants shall pay the Department of Correction temporary total disability compensation at the rate of $204.99 per week for the period of 17 September 1997 through the present and continuing, with said payments to be managed and appropriately distributed by the Department of Correction under its work release program. This compensation is subject to the attorney\u2019s fee approved herein.\n2. Defendants shall pay for all medical expenses incurred or to be incurred, subject to the provisions of G.S. \u00a7 97-25.1. Defendants shall reimburse the Department of Correction for any payments it has made on behalf of plaintiff relating to his medical care resulting from this injury by accident.\nPlaintiff\u2019s benefits will be paid to DOC and distributed according to the usual regulations applicable to inmates\u2019 work release income. According to G.S. \u00a7 148-33.1(f)(2), plaintiff is allowed a reasonable allowance for his incidental personal expenses. Amounts are deducted from plaintiff\u2019s earnings for other costs, including plaintiff\u2019s keep, judgments and court orders. G.S. \u00a7 148-33.1(f). The remaining balance is kept and accumulated to be disbursed to plaintiff when he is discharged or paroled. Id.\nOn these facts we hold that the Full Commission properly concluded that this plaintiff was not barred from the recovery of workers\u2019 compensation benefits by his status as a prisoner. This holding does not affect the ability of the Department of Correction to recover money it has spent on behalf of plaintiff for his medical care.\nDefendants contend that the Full Commission erred in failing to find that plaintiffs claim is barred by his willful intention to injure or kill himself. We do not agree.\nHere, the Full Commission found that \u201c[defendants have failed to produce any credible evidence that plaintiffs actions on 17 September 1997 which resulted in his injuries were taken with the specific intention of injuring himself or others.\u201d The Full Commission concluded that \u201c[t]he evidence fails to establish that plaintiffs injuries were the result of a willful intention to injure himself or others, or the result of a willful breach of a safety rule or procedure adopted by defendant-employer.\u201d\nDefendants argue that G.S. \u00a7 97-12(3) should bar plaintiff s claim. G.S. \u00a7 97-12(3) states that \u201c[n]o compensation shall be payable if the injury or death to the employee was proximately caused by: ... (3) His willful intention to injure or kill himself or another.\u201d Defendants argue that plaintiff intentionally attempted to \u201cwalk\u201d the crane with the boom and drop ball raised. Since plaintiff was aware that this was dangerous, defendants assert that plaintiffs action shows his intention to injure himself. In the alternative, defendants argue that G.S. \u00a7 97-12 should reduce plaintiffs award by ten percent. It states \u201c[w]hen the injury or death is caused ... by the willful breach of any rule or regulation adopted by the employer and approved by the Commission and brought to the knowledge of the employee prior to the injury compensation shall be reduced ten percent (10%).\u201d G.S. \u00a7 97-12. We are not persuaded.\nIn order for G.S. \u00a7 97-12(3) to bar compensation, \u201cthere must have been a willful intention to injure.\u201d Rorie v. Holly Farms, 306 N.C. 706, 710, 295 S.E.2d 458, 461 (1982). \u201cIntent is usually proved by circumstantial evidence and is therefore reserved for the trier of fact.\u201d Id.\nDefendant\u2019s superintendent of the work site testified that he had reprimanded plaintiff twice for walking the crane with the drop ball raised. The last reprimand was one hour before the accident. The superintendent stated that plaintiff was \u201cmaking a mistake\u201d by operating the crane that way. The superintendent testified that he did not remove plaintiff from the crane because he \u201chad never seen him take it way up to the top. I mean, I had never seen that happen.\u201d\n\u201cThe negligence of the employee, however, does not debar him from compensation for an injury by accident arising out of and in the course of his employment.\u201d Archie v. Lumber Co., 222 N.C. 477, 480, 23 S.E.2d 834, 836 (1943). In addition, \u201cnot even gross negligence is a defense to a compensation claim.\u201d Hartley v. Prison Department, 268 N.C. 287, 289, 128 S.E.2d 598, 600 (1962). There was no evidence that would show plaintiff willfully intended to injure himself or someone else.\nDefendants\u2019 alternative argument is also without merit. G.S. \u00a7 97-12 states that in order for the award to be reduced, the regulation must be approved by the Industrial Commission. Here, there is no evidence that Thompson\u2019s \u201crule\u201d regarding the movement of the crane with the drop ball raised off the ground was ever reduced to writing. The superintendent was asked whether Thompson\u2019s safety policy covered when, how and under what circumstances a crane should be moved. The superintendent testified that it was \u201c[n]ot in the company policy, I don\u2019t think it does.\u201d The evidence supports the Full Commission\u2019s finding which in turn justifies its conclusion that \u201c[t]he evidence fails to establish that plaintiff\u2019s injuries were the result of a willful intention to injure himself or others, or the result of a willful breach of a safety rule or procedure adopted by defendant-employer.\u201d This assignment of error is overruled.\nDefendants next contend that the Full Commission erred in its application of Hoyle v. Isenhour Brick and Tile Co., 306 N.C. 248, 293 S.E.2d 196. We do not agree.\nThe Full Commission found that \u201c[although plaintiff had previously been warned about moving the crane with the drop ball raised, he was not disobeying a direct or specific order from a then present supervisor when this incident occurred on 17 September 1997.\u201d The Full Commission concluded that \u201c[p]laintiff was not disobeying a direct or specific order from a then present supervisor when this incident occurred on 17 September 1997 and, therefore, he may recover compensation for his claim.\u201d\nDefendants argue that the absence of a supervisor should not determine the matter. They argue that plaintiff\u2019s actions were not in furtherance of Thompson\u2019s business so plaintiff\u2019s disobedient act should operate to bar recovery.\nHoyle stated that:\n[W]e find that thrill seeking which bears no conceivable relation to accomplishing the job for which the employee was hired moves the employee from the scope of his employment. Likewise, disobedience of a direct and specific order by a then present superior breaks the causal relation between the employment and the resulting injury.\nHoyle, 306 N.C. at 259, 293 S.E.2d at 202 (citations omitted). Hoyle also stated \u201c[w]e are therefore of the opinion that employee\u2019s election to disobey a prior given order did not break the causal connection between his employment and his fatal injury if the disobedient act was reasonably related to the accomplishment of the task for which he was hired.\u201d Id. at 259, 293 S.E.2d at 203.\nThe superintendent testified that at the time of the accident there was not anyone \u201cstanding beside [plaintiff]\u201d or anyone \u201cstanding there watching him the entire time.\u201d Plaintiff was hired to work as a drop ball operator. Plaintiff testified that just before the accident, he was \u201cwalking\u201d the crane. Plaintiff was operating the crane which is a. duty he was hired to perform. This is competent evidence to support the finding that plaintiff \u201cwas not disobeying a direct or specific order from a then present supervisor\u201d at the time of the accident. This finding justifies the conclusion that \u201c[p]laintiff was not disobeying a direct or specific order from a then present supervisor . . . therefore, he may recover compensation for his claim.\u201d This assignment of error is overruled.\nAccordingly, the Opinion and Award for the Full Commission is affirmed.\nAffirmed.\nJudges MARTIN and BIGGS concur.", "type": "majority", "author": "EAGLES, Chief Judge." } ], "attorneys": [ "The Roberts Law Firm, P.A., by Joseph B. Roberts, III, and Scott W. Roberts, for plaintiff-appellee.", "Jones, Hewson & Woolard, by Lawrence J. Goldman, for defendant-appellants." ], "corrections": "", "head_matter": "WAYMAN HARRIS, Employee/Plaintiff v. THOMPSON CONTRACTORS, INC., Employer, and UNITED STATES FIDELITY AND GUARANTY INSURANCE COMPANY, Carrier/Defendants\nNo. COA01-100\n(Filed 5 February 2002)\n1. Workers\u2019 Compensation\u2014 employer-employee relationship \u2014 prisoner\u2014work release employee\nThe full Industrial Commission did not err in a workers\u2019 compensation case by determining that plaintiff employee\u2019s status as a prisoner did not bar recovery, because: (1) the parties entered into a stipulation stating that the parties were subject to and bound by the provisions of the North Carolina Workers\u2019 Compensation Act and that an employee-employer relationship existed between the parties at all relevant times; (2) the issue of whether plaintiff and defendant meet the statutory definitions of employee and employer need not be reached due to the stipulations; and (3) a prisoner employed through the work release program is not an agent or employee of the State prison system.\n2. Workers\u2019 Compensation\u2014 finding of fact \u2014 willful intention to injure or kill oneself\nThe full Industrial Commission did not err in a workers\u2019 compensation case by failing to find that plaintiff employee prisoner\u2019s claim is barred under N.C.G.S. \u00a7 97-12(3) by his willful intention to injure or kill himself or that his award should be reduced under N.C.G.S. \u00a7 97-12 by ten percent based on plaintiff\u2019s willful breach of a rule or regulation adopted by the employer including plaintiff\u2019s walking the crane with the drop ball raised, because: (1) the negligence of the employee does not disbar him from compensation for an injury by accident arising out of and in the course of his employment; (2) there was no evidence that would show plaintiff willfully intended to injure himself or someone else; and (3) there is no evidence the employer\u2019s rule regarding the movement of the crane with the drop ball raised off the ground was ever reduced to writing.\n3. Workers\u2019 Compensation\u2014 employee not disobeying a direct or specific order from supervisor at time of accident\nThe full Industrial Commission did not err in a workers\u2019 compensation case by concluding that plaintiff employee prisoner was not disobeying a direct or specific order from a then present supervisor at the time of the accident, where (1) the superintendent testified that at the time of the accident there was not anyone standing beside plaintiff or anyone standing there watching him the entire time; (2) plaintiff was hired to work as a drop ball operator; and (3) plaintiff was operating the crane at the time of his accident, which is a duty he was hired to perform.\nAppeal by defendants from Opinion and Award entered 24 October 2000 by the North Carolina Industrial Commission. Heard in the Court of Appeals 5 November 2001.\nThe Roberts Law Firm, P.A., by Joseph B. Roberts, III, and Scott W. Roberts, for plaintiff-appellee.\nJones, Hewson & Woolard, by Lawrence J. Goldman, for defendant-appellants." }, "file_name": "0472-01", "first_page_order": 502, "last_page_order": 512 }