Parker v. Burlington Industries, Inc.

WEBB, Judge. The facts found by Deputy Commissioner Sellers and adopted by the full Commission are supported by the evidence. We are limited to determining whether the conclusions were correct that at the time of the incident the plaintiff was not about his work and was not injured by an accident “arising out of and in the course of’ his employment. Inscoe v. Industries, Inc., 292 N.C. 210, 232 S.E. 2d 449 (1977). In order to be compensable under the Workers’ Compensation Act an injury must be caused by an accident “arising out of and in the course of’ employment. G.S. 97-2(6). The words “arising out of and in the course” of employment have been interpreted many times. See Hoyle v. Isenhour Brick and Tile Co., 306 N.C. 248, 293 S.E. 2d 196 (1982); Hensley v. Caswell Action Committee, 296 N.C. 527, 251 S.E. 2d 399 (1979); Hartley v. Prison Dept., 258 N.C. 287, 128 S.E. 2d 598 (1962); Taylor v. Dixon, 251 N.C. 304, 111 S.E. 2d 181 (1959); Diaz v. United States Textile Corp., 60 N.C. App. 712, 299 S.E. 2d 843, disc. review denied, 308 N.C. 386, 302 S.E. 2d 250 (1983) and Harless v. Flynn, 1 N.C. App. 448, 162 S.E. 2d 47 (1968). We believe that under the rule as written in these cases the plaintiffs injury arose from his employment. It arose from a hazard incident to the employment and not from a hazard common to the public. The question is whether it was in the course of his employment. The rule as applied to this case is that if an employee does something which he is not specifically ordered not to do by a then present superior and the thing he does furthers the business of the employer although it is not a part of the [520] employee’s job, an injury sustained by accident while he is so performing is in the course of employment. This has been characterized as “being about his work.” The Industrial Commission in this case has adopted the findings of fact of the Deputy Commissioner that it was not a part of the plaintiff s job to clean the tote tank. It has also adopted the finding of fact that the tote tank was not to be cleaned and the cleaning of it did not further the business of Burlington. If we accept the contention of the plaintiff that he was cleaning the tote tank at the time he was overcome by fumes it was not a part of his job and did not further the business of Burlington. The Industrial Commission was correct in concluding the plaintiff was “not about his work.” On the facts found we cannot hold the Industrial Commission was erroneous in its conclusion. The appellant also contends he was denied due process of law because he was not notified of the defense which would be used by the defendants before the hearing. In denying the claim the defendant American Motorists Insurance Company sent a letter to the defendant in which he was notified that he did not follow company procedures while cleaning the tank, that he attempted to perform the job in an area in which this type of work is not allowed and that there may have been a certain amount of “horseplay” involved. No other defense was advanced by the defendants prior to the hearing. We hold that the plaintiff was not prejudiced. Whatever defense the defendants may have relied upon the burden was on the plaintiff to prove he was injured by an accident arising out of and in the course of employment. This he failed to do. Affirmed. Judges Johnson and Phillips concur.