{ "id": 8615834, "name": "MISS MARIE KING, Employee, v. J. N. ARTHUR, JR., t/a ARCADIA DAIRIES, Employer, and LONDON GUARANTEE AND ACCIDENT COMPANY, LTD., Carrier", "name_abbreviation": "King v. Arthur", "decision_date": "1957-03-06", "docket_number": "", "first_page": "599", "last_page": "603", "citations": [ { "type": "official", "cite": "245 N.C. 599" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "144 N.E. 356", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 2, "opinion_index": 0 }, { "cite": "312 Ill. 575", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5121903 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/312/0575-01" ] }, { "cite": "166 N.W. 848", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "200 Mich. 287", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1761791 ], "opinion_index": 0, "case_paths": [ "/mich/200/0287-01" ] }, { "cite": "181 P. 2d 816", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2735785, 2739186 ], "opinion_index": 0, "case_paths": [ "/colo/116/0451-01", "/colo/116/0450-01" ] }, { "cite": "116 Colo. 451", "category": "reporters:state", "reporter": "Colo.", "case_ids": [ 2735785 ], "opinion_index": 0, "case_paths": [ "/colo/116/0451-01" ] }, { "cite": "205 P. 2d 1116", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "91 Cal. App. 2d 884", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2277239 ], "opinion_index": 0, "case_paths": [ "/cal-app-2d/91/0884-01" ] }, { "cite": "206 S.C. 103", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2078986 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/sc/206/0103-01" ] }, { "cite": "188 N.E. 107", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "262 N.Y. 655", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2006797 ], "opinion_index": 0, "case_paths": [ "/ny/262/0655-01" ] }, { "cite": "265 N.Y.S. 698", "category": "reporters:state", "reporter": "N.Y.S.", "opinion_index": 0 }, { "cite": "238 App. Div. 746", "category": "reporters:state", "reporter": "A.D.", "case_ids": [ 2429222 ], "opinion_index": 0, "case_paths": [ "/ad/238/0746-01" ] }, { "cite": "27 S.W. 2d 600", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10283624 ], "opinion_index": 0, "case_paths": [ "/sw2d/27/0600-01" ] }, { "cite": "152 So. 700", "category": "reporters:state_regional", "reporter": "So.", "case_ids": [ 10089405 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/so/152/0700-01" ] }, { "cite": "229 N.W. 438", "category": "reporters:state_regional", "reporter": "N.W.", "weight": 2, "opinion_index": 0 }, { "cite": "249 Mich. 690", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1846247 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/mich/249/0690-01" ] }, { "cite": "188 N.E. 870", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 2, "opinion_index": 0 }, { "cite": "127 Ohio St. 421", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 1005600 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ohio-st/127/0421-01" ] }, { "cite": "66 A. 2d 159", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "2 N.J. 304", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 106642 ], "opinion_index": 0, "case_paths": [ "/nj/2/0304-01" ] }, { "cite": "64 A. 2d 99", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "1 N.J.S. 259", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 369380 ], "opinion_index": 0, "case_paths": [ "/nj-super/1/0259-01" ] }, { "cite": "69 A.L.R. 856", "category": "reporters:specialty", "reporter": "A.L.R.", "weight": 2, "opinion_index": 0 }, { "cite": "150 A. 110", "category": "reporters:state_regional", "reporter": "A.", "weight": 2, "opinion_index": 0 }, { "cite": "111 Conn. 365", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 1539965 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/conn/111/0365-01" ] } ], "analysis": { "cardinality": 696, "char_count": 13343, "ocr_confidence": 0.605, "pagerank": { "raw": 7.308941553395326e-08, "percentile": 0.4343527363950562 }, "sha256": "bb84d65e2a57ff0ebb6520e21aa62332e3f99daa1d95d7a03821f7389197a4a9", "simhash": "1:2feccd91203a80f1", "word_count": 2279 }, "last_updated": "2023-07-14T14:55:29.608424+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MISS MARIE KING, Employee, v. J. N. ARTHUR, JR., t/a ARCADIA DAIRIES, Employer, and LONDON GUARANTEE AND ACCIDENT COMPANY, LTD., Carrier." ], "opinions": [ { "text": "Denny, J.\nThe defendant employer was under compulsion of law to see that the employees in his dairy took a Wassermann test each six months. If he failed to see that such tests were made and to furnish evidence thereof, upon request, to the Buncombe County Board of Health as required by its rules and regulations, his dairy would become subj ect to \u201cimmediate degrading, suspension of permit,\u201d and he would become guilty of a misdemeanor and upon conviction subject to a fine or imprisonment, as provided in G.S. 130-20.\nTherefore, the question posed for determination is simply this: Does an injury sustained by an employee while taking a medical test or examination, which test or examination is required by law in order for the employee to continue to hold her job, constitute an accident arising out of and in the course of her employment within the meaning of G.S. 97-2 (f)?\nA majority of the cases bearing on this question seem to turn on (1) whether or not the vaccination or test was voluntary on the part of the employee, (2) whether or not the vaccination or test was made for the primary benefit of the employer and at his request, or (3) whether or not the vaccination or test was made under compulsion of law.\nWhere a board of health recommends but does not direct that the employees of an employer be vaccinated in an effort to prevent a threatened epidemic, and the employer makes available the facilities for the vaccination without cost to his employees, but leaves it purely optional with the individual employee as to whether or not he will be vaccinated, and the employee as a result of the vaccination contracts an infection, ordinarily such injury is not compensable. In such a situation the vaccination is recommended not for the benefit of the employer but primarily for the benefit and protection of the employee and the public generally. Smith v. The Seamless Rubber Co., 111 Conn. 365, 150 A. 110, 69 A.L.R. 856.\nHowever, in the case of Saintsing v. Steinbach, 1 N.J.S. 259, 64 A. 2d 99, the Court held that disability from a smallpox vaccination administered free to the employee, in the employer\u2019s medical clinic, who with other employees was strongly urged but not directed to be vaccinated to guard against a threatened epidemic, was compensable as a result of \u201caccident,\u201d \u201carising out of and in the course of employment.\u201d The Court concurred in the finding of the Workmen\u2019s Compensation Bureau to the effect that \u201cthe vaccination service furnished at the employer\u2019s premises was a mutually beneficial facility comparable to its medical clinic, cafeteria and other employee facilities incidental to the employment and that insofar as it aided in the prevention of smallpox within the employee group it protected the employer against possibly disastrous business consequences.\u201d Affirmed 2 N.J. 304, 66 A. 2d 159.\nOrdinarily, an infection resulting from a vaccination or blood test administered by the employer\u2019s physician or nurse, is held to be an injury \u201carising out of and in the course of the employment,\u201d where the employer required the employee to be vaccinated, even though the requirement may have been based on a request or recommendation of the board of health. Spicer Mfg. Co. v. Tucker, 127 Ohio St. 421, 188 N.E. 870; Neudeck v. Ford Motor Co., 249 Mich. 690, 229 N.W. 438; Smith v. Brown Paper Mill Co., La. App., 152 So. 700; Texas Employers Insurance Assn. v. Mitchell (Tex. Civ. App.), 27 S.W. 2d 600; Sanders v. Children\u2019s Aid Society, 238 App. Div. 746, 265 N.Y.S. 698, affirmed 262 N.Y. 655, 188 N.E. 107; Alewine v. Tobin Quarries, 206 S.C. 103, 33 S.E. 2d 81; Roberts v. U.S.O. Camp Shows, 91 Cal. App. 2d 884, 205 P. 2d 1116; Larson on Workmen\u2019s Compensation Law, section 27.32, page 416.\nOn the other hand, the authorities seem to hold that where the employee is required by law to have a blood test in order to obtain employment or to retain it because of the nature of the work, if the employee becomes infected as a result of such test, the disablement resulting therefrom is not a compensable accident that \u201carose out of and in the course of the employment,\u201d notwithstanding that the employer pursuant to his statutory duty had ordered the employee to take the test. Industrial Commission v. Messinger, 116 Colo. 451, 181 P. 2d 816; Krout v. J. L. Hudson Co., 200 Mich. 287, 166 N.W. 848, L.R.A. 1918F, 860; 58 Am. Jur., Workmen\u2019s Compensation, section 277, page 775; Larson on Workmen\u2019s Compensation, section 27.32, page 416, et seq. Cf. Jefferson Printing Co. v. Industrial Commission, 312 Ill. 575, 144 N.E. 356.\nIn the case of Industrial Commission v. Messinger, supra, the claimant was a waitress handling food in a local restaurant. When directed by her employer to secure a health certificate, she submitted herself to a physician who drew some blood from her arm for the purpose of making the blood test required by law. The Court said: . . it is apparent that the employer was obligated by the state law to have claimant obtain a health certificate. It was not his regulation or requirement, it was that of the State. Claimant was incapacitated by reason of her compliance therewith. Obviously, as the Commission found, her accident did not arise out of and in the course of her employment.\n\u201cWe have not found, nor has any case been cited involving the question presented. Cases where employees have been injured as a result of vaccination or inoculation present similar legal problems. There are only a few of them and all which have been called to our attention have been considered. What they hold is, that the right to compensation is determined by the construction placed on the phrase, 'Arising out of and in the course of employment,\u2019 and its application to the facts in each particular case. Compensation was allowed in those cases where the vaccination or inoculation was performed for the benefit of the employer, and had been required by him. Neudeck v. Ford Motor Co., 249 Mich. 690, 229 N.W. 438; Spicer Mfg. Co. v. Tucker, 127 Ohio St. 421, 188 N.E. 870; Smith v. Brown Paper Mill Co., La. App., 152 So. 700.\n\u201cOn the other hand, compensation was denied in those cases where it appeared that vaccination or inoculation was made necessary by reason of public requirement. Smith v. Seamless Rubber Co., 111 Conn. 365, 150 A. 110, 69 A.L.R. 856, and Jefferson Printing Co. v. Industrial Commission, 312 Ill. 575, 144 N.E. 356. The court rested its decision in these cases upon the ground that the proof disclosed affirmatively that the vaccination was not ordered or in anywise brought about by the employer, but by a public agency for the public interest; and further, that the infection was not in anywise due or attributable to the work or place of work, or to the character of business or service of the employer.\u201d\nIt is said in 58 Am. Jur., Workmen\u2019s Compensation, section 277, page 775, \u201cIncapacity caused by illness from vaccination or inoculation may properly be found to have arisen out of the employment where such treatment is submitted to pursuant to the direction or for the benefit of the employer, but the rule is otherwise where the employee voluntarily avails himself of such treatment solely for his own benefit, or in the interest of the public health, even though the facilities therefor were provided by the employer. It has been held also that an employee is not entitled to compensation for injury caused by vaccination which has been required by the employer at the request of the health authorities,\u201d citing Krout v. J. L. Hudson Co., supra.\nLikewise, in Larson on Workmen\u2019s Compensation, section 27.32, page 416, et seq., the author said: \u201c. . . if the compulsion comes from state law or public authority, the injury is not compensable, as when regulations of a state board of health require that waitresses undergo a blood test. This was held true even when claimant\u2019s employer directed her to obtain the appropriate health certificate, since he did it only because he was compelled by state law to do so. It was not his requirement; it was the State\u2019s. When claimant submitted to the test, she was not performing a service for the employer, but merely satisfying a condition precedent to qualifying for that kind of employment.\u201d\nOur attention has not been called to any decision or textbook authority, and we have been unable to find any, which supports the view that where a statute requires a blood test, because of the nature of the work of the employee, that an injury resulting from such test is compensable as an accident \u201carising out of and in the course of the employment.\u201d Therefore, in our opinion, upon the facts disclosed by the record on this appeal, the ruling of the court below should be reversed, and it is so ordered.\nReversed.", "type": "majority", "author": "Denny, J." } ], "attorneys": [ "Horton & Hyldburg for plaintiff.", "Harkins, Van Winkle, Walton & Buck and O. E. Starnes, Jr., for defendants." ], "corrections": "", "head_matter": "MISS MARIE KING, Employee, v. J. N. ARTHUR, JR., t/a ARCADIA DAIRIES, Employer, and LONDON GUARANTEE AND ACCIDENT COMPANY, LTD., Carrier.\n(Filed 6 March, 1957.)\nMaster and Servant \u00a7 40c\u2014\nAn injury sustained by an employee as a result of a medical blood test required by statute (G.S. 130-20) in the interest of public health because of the nature of the work, does not arise out of her employment within the meaning of G.S. 97-2 (f).\nAppeal by defendants from Clarkson, J., October Civil Term 1956, of BXTNCOMBE.\nProceeding under our Workmen\u2019s Compensation Act to determine the liability of the defendants for compensation to plaintiff resulting from an injury hereinafter described.\nIt is stipulated that the claimant and J. N. Arthur, Jr., trading as Arcadia Dairies, were subject to the provisions of the Workmen\u2019s Compensation Act at the time of claimant\u2019s injury, and that her average weekly wage was $33.00.\nThe claimant had been employed by J. N. Arthur, Jr., trading as Arcadia Dairies, for approximately five years prior to the date of her injury. The claimant testified, \u201cAs to the materials with which I work at the dairy, I bottle milk, ... I have a man there to help me with the cans ... we use G.L.X. Soap Powder to clean the machinery and utensils at the dairy; we have a caustic soda that we put in the bottle washers; I did that work every day.\u201d\nOn 18 April 1955, the claimant was sent by her employer to a County Clinic which was being held at Avery\u2019s Creek Methodist Church to have a Wassermann test, which tests were being administered by a County Health Nurse. The nurse attempted to extract blood from the claimant\u2019s left arm but failed to do so; she then changed needles and extracted the blood from claimant\u2019s right arm. The County Health Nurse, Mrs. Esta Crawford, testified that the vein in claimant\u2019s left arm had flattened, making the withdrawal of blood impossible. Immediately following the Wassermann, the claimant experienced a swelling and drain lesion at the point of the needle puncture in the left arm, which injury has not yet healed.\nIt is also stipulated that employees of certain types of dairies, including Arcadia, are required by the rules and regulations of the Buncombe County Board of Health to submit to Wassermann tests every six months, and that such employers must furnish evidence of compliance with such requirements or be subject to \u201cimmediate degrading, suspension of permit, and/or court action.\u201d\nThe medical testimony is completely negative as to the cause of the injury which followed'the insertion of the ne'edle into the left arm of the claimant. The claimant had had a similar lesion in 1950 and the evidence does not disclose whether or not she was employed at that time by the defendant employer. The only medical testimony offered before the hearing Commissioner was that of an admitted medical expert specializing in dermatology. This witness, offered by the defendants, testified, \u201cFrom the history given me by Miss King, and on my own observation and experience, it is my opinion that she had an itchyma. The cause can be due to an infection that is uncontrolled, caustic burn, or local medication. You ask me the possible causes. ... I cannot say definitely it was an infection. I cannot say it was due to medication. I cannot say it was due to a caustic burn. ... It could have been caused by an infection of some kind that got under the skin; or due to a caustic burn which later became infected; or to a local medication. I have no opinion satisfactory to myself as to which of these things caused the particular trouble.\u201d\nThe hearing Commissioner found as a fact that the \u201cclaimant sustained an injury by accident arising out of and in the course of her employment when the needle was inserted in her arm and an infection resulted.\u201d He likewise concluded as a matter of law that the claimant sustained an injury by accident arising out of and in the course of her employment, on 18 April 1955. An award was accordingly entered in favor of the claimant for temporary total disability during the period from 5 May 1955 to 2 July 1955 inclusive.\nThe defendants filed exceptions and appealed to the Full Commission. The Full Commission adopted the findings of fact and conclusions of law of the hearing Commissioner and affirmed the award. The defendants preserved their exceptions and appealed to the Superior Court where the exceptions were overruled and the award affirmed.\nThe defendants appeal, assigning error.\nHorton & Hyldburg for plaintiff.\nHarkins, Van Winkle, Walton & Buck and O. E. Starnes, Jr., for defendants." }, "file_name": "0599-01", "first_page_order": 637, "last_page_order": 641 }