Opinion
November 23, 1970
Appeal by the employer and its insurance carrier from a decision of the Workmen's Compensation Board, filed August 18, 1969, which awarded compensation benefits to the claimant. The claimant leased a truck-tractor to the appellant employer and in connection therewith he agreed to supply the operators for it and to maintain the vehicle in good working order as well as to pay all operating expenses. The record contains substantial evidence to support the finding that the claimant was the employee of the employer in regard to the operation of the vehicle and the appellants did not dispute the existence of such a relationship before the board. The claimant was injured while performing repairs or maintenance work on the vehicle at his home in preparation for operating the same in his employment as scheduled for later the same day. On their appeal to the board and again to this court the appellant's position is that the record establishes that as to repairs on the vehicle the claimant was an independent contractor and, therefore, the accident did not occur in the course of the employment or arise out of it. The board did not decide the question of whether or not there was an independent contractor relationship as to the maintenance of the vehicle generally, but held that the repair of the vehicle in the circumstances of this case "was incidental to and connected with his employment as operator of the tractor". The record contains nothing to indicate that the making of a repair to a vehicle by a driver preparatory to operating it was forbidden by the employer as to nonowner-drivers or that the making of such repairs was otherwise outside the scope of employment as a driver. While repair work was not a duty of nonowner-operators of the employer's vehicles, that fact does not support an inference that the making of repairs was not an incident of operating the vehicle. The existence of an independent contractor relationship as to the maintenance of the leased tractor could not bar a factual finding that the particular repair was an incident of the otherwise established employer-employee relationship and, accordingly, we do not determine whether or not the present record establishes an independent contractor relationship as to maintenance. Decision affirmed, with costs to the Workmen's Compensation Board. Herlihy, P.J., Staley, Jr., Greenblott and Cooke, JJ., concur; Reynolds, J., concurs in the result.