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Workers’ Comp – Truck Driver TBI – Cause Of Accident

The Court of Appeals upholds medical benefits for a truck driver who suffered a traumatic brain injury when he lost control of his tractor-trailer and it left the road; the employer cannot use the rule of Massie v. Firmstone to assert that the commission erred in accepting the testimony of a North Carolina state trooper as to how the accident occurred.

The trooper determined that a tire on the tractor-trailer had ruptured, which he believed occurred as the vehicle rolled over. It was his impression that the trailer hauled by claimant began to roll over first and dragged the tractor with it. The trooper testified the physical evidence was consistent with someone attempting to gain control of the vehicle as it entered the curve.

The trooper also had no evidence that speed was involved in the accident.

Contrary to employer’s contention, claimant did not testify that hitting a pothole caused him to lose control. He testified he hit a pothole. He also testified that he lost control. The commission found the statements of claimant and the trooper were not so inconsistent that it was error to rely on the trooper’s testimony. Due to the accident, claimant is impaired in his communicative ability and his testimony of the cause of the accident was subject to interpretation.

Because the testimony of claimant and the trooper was not contradictory, we find no merit to employer’s contention that based upon the holding in Massie, the commission was bound to accept only claimant’s testimony regarding the cause of the accident.
Judgment for claimant affirmed.

Murphy-Brown LLC v. Budnick (Per Curiam) No. 2752-08-2, April 14, 2009; Workers’ Comp. Comm’n; William W. Nexsen for appellants; Thomas J. Schilling for appellee. VLW 009-7-167(UP), 4 pp.

VLW 009-7-167

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