{ "id": 8553272, "name": "CLAWSON L. THOMPSON, Employee v. REFRIGERATED TRANSPORT CO., INC., Employer; MIDLAND INSURANCE CO., Carrier", "name_abbreviation": "Thompson v. Refrigerated Transport Co.", "decision_date": "1977-04-06", "docket_number": "No. 7610IC709", "first_page": "693", "last_page": "699", "citations": [ { "type": "official", "cite": "32 N.C. App. 693" } ], "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": "123 S.E. 2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "613" } ], "opinion_index": 0 }, { "cite": "256 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571678 ], "year": 1962, "pin_cites": [ { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0175-01" ] }, { "cite": "322 N.Y.S. 2d 1026", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1971, "opinion_index": 0 }, { "cite": "28 N.Y. 2d 487", "category": "reporters:state", "reporter": "N.Y.2d", "year": 1971, "opinion_index": 0 }, { "cite": "315 N.Y.S. 2d 693", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1970, "opinion_index": 0 }, { "cite": "35 App. Div. 2d 883", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3251339, 3254351 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ad2d/35/0883-01", "/ad2d/35/0883-02" ] }, { "cite": "52 Wis. 2d 515", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8670492 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/wis-2d/52/0515-01" ] }, { "cite": "14 Or. App. 340", "category": "reporters:state", "reporter": "Or. App.", "case_ids": [ 2112870 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/or-app/14/0340-01" ] }, { "cite": "191 S.E. 2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 755", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576576, 8576547, 8576528, 8576562, 8576538 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0755-05", "/nc/281/0755-03", "/nc/281/0755-01", "/nc/281/0755-04", "/nc/281/0755-02" ] }, { "cite": "189 S.E. 2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "15 N.C. App. 246", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549490, 8549459 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/15/0246-02", "/nc-app/15/0246-01" ] }, { "cite": "103 S.E. 2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1958, "pin_cites": [ { "page": "833-34" }, { "page": "832" } ], "opinion_index": 0 }, { "cite": "248 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624513 ], "year": 1958, "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/nc/248/0496-01" ] }, { "cite": "42 S.E. 2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "opinion_index": 0 }, { "cite": "227 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624428 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/nc/227/0299-01" ] } ], "analysis": { "cardinality": 591, "char_count": 12479, "ocr_confidence": 0.686, "pagerank": { "raw": 2.610495340501735e-07, "percentile": 0.8204009191269452 }, "sha256": "47bb0a06cf16c3fb9dcf1dc1a12b14cd261f8064efa11200757f1de718d6e264", "simhash": "1:17632b071eda5c77", "word_count": 2031 }, "last_updated": "2023-07-14T16:52:52.366891+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Clark concurs.", "Judge Vaughn dissents." ], "parties": [ "CLAWSON L. THOMPSON, Employee v. REFRIGERATED TRANSPORT CO., INC., Employer; MIDLAND INSURANCE CO., Carrier" ], "opinions": [ { "text": "HEDRICK, Judge.\nDefendants first contend that plaintiff\u2019s 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\u2019s Compensation Act, Brown v. Truck Lines, 227 N.C. 299, 42 S.E. 2d 71 (1947), they assert that the plaintiff\u2019s 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 \u201cdrivers are transporting goods under the franchise authority of the ICC franchise holder.\u201d 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 \u201crun\u201d to San Francisco.\nDefendants, in their brief, and Commissioner Brown, in his dissenting opinion filed in this case, cite in support of their contention that plaintiff\u2019s 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) :\n\u201cIn 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 statm of the operator is to be determined by whether the lessor is an independent contractor under the terms of the lease agreement.\u201d\n(Citation omitted.) (Emphasis added.)\nThe above quotation does not support the defendants\u2019 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,\n\u201cThe 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?\u201d\nId. at 499, 103 S.E. 2d at 832.\nThe 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 \u201cemployee\u201d within the meaning of the Employment Security Act, \u201ca matter unrelated to what occurs during the operation of the leased equipment.\u201d 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\u2019s 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.\n\u201cPreliminary 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.\u201d Blair, Workmen\u2019s Compensation Law \u00a7 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 Contractor 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\u2019s Motor Express, Inc., 35 App. Div. 2d 883, 315 N.Y.S. 2d 693 (1970), appeal denied, 28 N.Y. 2d 487, 322 N.Y.S. 2d 1026 (1971). In the last cited case the New York court held compensable an injury suffered by an employee, who had leased his truck-tractor 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.\nIn the present case, plaintiff accepted the offer of a job to make the \u201crun\u201d from Greensboro to San Francisco. Part of the duties of plaintiff\u2019s 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\u2019s 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\u2019s findings support the conclusion that plaintiff\u2019s injuries arose out of and in the course of his employment with defendant Refrigerated Transport Co.\nBased on assignment of error 4, defendants contend,\n\u201c[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.\u201d\nIn appropriate circumstances the extent and period of disability may be established in the absence of medical testimony with respect thereto. 3 Larson, Workmen\u2019s Compensation Law \u00a7 79.51 (1976). However, in the present case the Commission\u2019s finding that plaintiff was totally disabled for thirteen weeks is supported not only by plaintiff\u2019s testimony, but also by the medical records and physicians\u2019 reports showing the nature and extent of his injury. This assignment of error has no merit.\nFinally defendants contend the Commission erred in substituting an award of $800 for a five per cent permanent partial disability to plaintiff\u2019s hand for the hearing commissioner\u2019s 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.\nThe Commission is the fact finding body under the Workmen\u2019s Compensation Act and has authority \u201c. . . 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.\u201d 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.\nWe 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\nAffirmed.\nJudge Clark concurs.\nJudge Vaughn dissents.", "type": "majority", "author": "HEDRICK, Judge." } ], "attorneys": [ "Joseph Reichbind for plaintiff appellee.", "Yowng, Moore, Henderson & Alvis by B. T. Henderson II, and R. Michael Strickland for defendant appellants." ], "corrections": "", "head_matter": "CLAWSON L. THOMPSON, Employee v. REFRIGERATED TRANSPORT CO., INC., Employer; MIDLAND INSURANCE CO., Carrier\nNo. 7610IC709\n(Filed 6 April 1977)\n1. Master and Servant \u00a7 49\u2014 truck leased to ICC franchise holder \u2014 owner-operator employee of lessee\nAn owner-operator of a truck leased to an Interstate Commerce Commission franchise holder is the employee of the lessee within the meaning of the N. C. Workmen\u2019s Compensation Act.\n2. Master and Servant \u00a7 56\u2014 workmen\u2019s compensation \u2014 injury during job preparations \u2014 injury compensable\nPreliminary preparations by an employee which are reasonably essential to the proper performance of some required job are generally regarded as being within the scope of employment, and any injury suffered during such preparations is compensable.\n3. Master and Servant \u00a7 56\u2014 workmen\u2019s compensation \u2014 employee preparing for work \u2014 accident arising out of and in course of employment\nEvidence was sufficient to support findings of the Industrial Commission that plaintiff leased two trucks to defendant employer, plaintiff was required to present one of his trucks in Greensboro in condition to make a trip to San Francisco which had been offered to plaintiff and which he had accepted, and at the time of his injury plaintiff was furthering the business of his employer in that he was preparing the truck to make the journey for his employer, and such findings supported the Commission\u2019s conclusion that plaintiff\u2019s injuries arose out of and in the course of his employment.\n4. Master and Servant \u00a7 93 \u2014 workmen\u2019s compensation \u2014 award by hearing commissioner \u2014 award changed by Commission\nThe Industrial Commission did not err in substituting an award of $800 for a 5% permanent partial disability to plaintiff\u2019s hand for the hearing commissioner\u2019s award of $400 for serious bodily disfigurement, since the Commission has authority to review, modify, adopt or reject the findings of fact found by a hearing commissioner.\nJudge Vaughn dissents.\nAppeal by defendants from an opinion and award of the North Carolina Industrial Commission dated 3 June 1976. Heard in Court of Appeals 9 February 1977.\nThis is a proceeding brought by the plaintiff, Clawson L. Thompson, under the North Carolina Workmen\u2019s Compensation Act to recover compensation allegedly resulting from an injury by accident on 19 July 1975.\nAfter a hearing the Industrial Commission made findings of fact, which, except where quoted, are summarized as follows:\nOn 19 July 1975 plaintiff employ\u00e9e, owned two diesel trucks, both of which were leased to the defendant employer, Refrigerated Transport Co., an \u201cInterstate for Hire Common Carrier, operating under a Certificate of Public Convenience and Necessity issued by the Interstate Commerce Commission,\u201d under a \u201ccontractor operating agreement\u201d or term lease. Under the agreement plaintiff was required to maintain the trucks at his own expense in the state of repair required by \u201call applicable regulations.\u201d He was also responsible for all operating expenses. The plaintiff is compensated under the agreement at a specified rate per mile traveled.\n\u201cThe defendant employer exercises no control over a driver in the maintenance and repair of his vehicle. However, this employer has inspection lanes at its Greensboro terminal, and before each run each vehicle is inspected by the employer there. If the vehicle passes this inspection, the employee is given the trip. If it does not, the employee is given an opportunity to correct any minor defect on the spot, but if he cannot then pass inspection, he does not get the load.\u201d\nAt 9:00 a.m. on 19 July 1975 plaintiff received a call at his home in Gamer, North Carolina, from the employer\u2019s dispatcher inquiring as to whether he would accept a \u201crun\u201d from Greensboro to San Francisco. Plaintiff accepted the run, and he was directed to be in Greenboro at 6:00 p.m.\n\u201cAt 11:00 a.m., one of the tractors was then in the driveway of his home and plaintiff began to clean and service the truck so that it would pass employer\u2019s inspection in order that he might make the San Francisco trip. . . . The work which plaintiff was performing on his tractor at the time in question was not general repair or maintenance but was preparatory cleaning and checking to prepare for a specific trip to which he had already been assigned that afternoon.\u201d Plaintiff fell while standing on a ladder securing the air conditioning lines on the truck and severely cut his arm. The Industrial Commission found and concluded that the plaintiff\u2019s injury arose out of and in the course of his employment with defendant Refrigerated Transport Co., and that as a result of the injury plaintiff was temporarily totally disabled from 19 July 1975 to 18 October 1975 and sustained a five per cent permanent partial disability of the left forearm or hand.\nFrom the award of the Industrial Commission giving plaintiff $80 per week for thirteen weeks for his temporary total disability, and $800 for his permanent partial disability, def\u00e9nd-ants appealed.\nJoseph Reichbind for plaintiff appellee.\nYowng, Moore, Henderson & Alvis by B. T. Henderson II, and R. Michael Strickland for defendant appellants." }, "file_name": "0693-01", "first_page_order": 721, "last_page_order": 727 }