Hensley v. Caswell Action Committee, Inc.

ARNOLD, Judge. The first order of the Full Commission of the Industrial Commission regarding this case directed that it be placed on the docket for rehearing. Defendants argue that Deputy Commissioner Denson erred at this rehearing in refusing to allow defendants to offer additional evidence on the question of compensability. We cannot agree. The order of 13 May 1976, stated: “Defendants say and contend that the Hearing Commissioner erred in finding as a fact and concluding as a matter of law that parents of the deceased were entitled to maximum compensation benefits for the reason that at the initial hearing plaintiffs and defendants stipulated an average weekly wage of $40.10. “Counsel for defendants says and contends that in the absence of such a stipulation and if he had been on notice that the Commission was not bound by such a stipulation, he [546] would have placed in evidence certain facts surrounding the employment. “To the end that the record may be complete and that all parties might have an opportunity to offer evidence in regard to this issue, “It IS THEREUPON ORDERED that this case be, and the same is hereby, placed on the docket to be heard when reached in Yancey ville to take such testimony as either side desires to offer bearing on the question of the rate at which compensation shall be paid as provided under G.S. 97-2(5) in the event compensability is ultimately found herein. “The Opinion and Award of Deputy Commissioner Roney is hereby vacated and set aside. The Hearing Commissioner who next hears the case in Yancey ville shall decide same based on the record in its entirety, including but not limited to the wage testimony taken before him.” It seems clear that while the deputy commissioner was to decide the case in its entirety the order directed her to take testimony only as to the wages from which compensation was to be computed. Her failure to take more evidence was, therefore, not error. Defendant’s next argument is that the Commission erred in concluding as a matter of law that young Hensley died as a result of an accident arising out of and in the course of his employment with defendant employer. We are compelled to agree that the accident did not arise out of decedent’s employment with defendant employer. An accident arises out of employment if there exists a causal relation between the accident and the employment. There is such a causal relationship when the duties of the employment require the employee to be in a place at which he is exposed to a risk of injury to which he would not otherwise be subject and, while there, he is injured by an accident due to the peculiar hazard of that location. See, e.g. Stubberfield v. Construction Co., 277 N.C. 444, 177 S.E. 2d 882 (1970). At the second hearing, Deputy Commissioner Denson found as fact: [547] “3. Before decedent and the other two boys began working at the reservoir, Mr. Wilson told them not to cross the lake in the water because he didn’t want them to get hurt. He did not give them that instruction about any particular part of the lake.” In Morrow v. Highway Commission, 214 N.C. 835, 199 S.E. 265 (1938), decedent was employed to paint a bridge over the Catawba River. Contrary to the instructions of his supervisor, decedent entered the river to retrieve a paint brush and drowned. Denial of that claim was affirmed per curiam by our Supreme Court on the ground that the injury “did not arise out of the employment.” Morrow v. Highway Commission, supra, is not reasonably distinguishable from this appeal and compels denial of the claim for compensation. Decedent was not in a place where the duties of his employment required him to be. In fact, his supervisor specifically directed him not to go into the water. Evidence does not support the Commission’s conclusion of law that decedent died as a result of an injury arising out of and in the course of his employment. The award is Reversed. Judge PARKER concurs. Judge MARTIN dissents.