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McCown v. Hines11/7/2000
Appeal by defendants from Opinion and Award of the North Carolina Industrial Commission entered 18 May 1999. Heard in the Court of Appeals 16 August 2000.
Defendants Mike Hines d/b/a Mike Hines Heating and Air Conditioning and N.C. Home Builders Self-Insured Fund, Inc. appeal from an Opinion and Award of the North Carolina Industrial Commission granting plaintiff James Robert McCown permanent and total disability compensation. Defendants contend the Commission erred in (1) classifying plaintiff as an employee rather than an independent contractor, and (2) setting plaintiff's average weekly wage at $400. We reverse the decision of the Industrial Commission.
On 8 April 1996, plaintiff James McCown was re-roofing a rental house on Sixth Street in Smithfield, North Carolina. As he attempted to leave the roof by a ladder leaning against the house, he fell, suffering a spinal cord injury which paralyzed him from the waist down. Although Mike Hines owned the rental house on Sixth Street, plaintiff had been contacted by defendant Curtis Hines, Mike Hines' father, to do the roofing work. Plaintiff had installed several roofs for Curtis Hines in 1995, and in 1995 and 1996, did roofing work for numerous persons in the Smithfield area. At the time of the accident, plaintiff had been in the construction business for twenty years, and roofing work for ten.
Following his injury , plaintiff filed a Workers' Compensation claim with the Industrial Commission in March 1997, ultimately seeking coverage from the defendants. On 5 March 1998, a compensation hearing was held before Deputy Commissioner Edward Garner, Jr. At the parties' request, the Deputy Commissioner ruled only on the issue of compensability and not on the issue of plaintiff's medical condition. On 19 June 1998, the Deputy Commissioner filed an Opinion and Award dismissing plaintiff's claim for lack of jurisdiction. In his opinion, the Deputy made findings of fact and concluded as a matter of law, that plaintiff was not an employee of Curtis Hines, Mike Hines or Mike Hines Heating and Air Conditioning at the time of the accident. Plaintiff appealed to the Full Commission. On 18 May 1999, the Full Commission reversed this determination, finding that Mike Hines' heating and air conditioning business and his rental properties were one company, that Curtis Hines was an agent of Mike Hines, that defendants retained the right to control the details of plaintiff's work, and concluding plaintiff was an employee of Mike Hines d/b/a Mike Hines Heating and Air Conditioning.
Defendants first contend the Commission erred in concluding that, at the time of the accident, plaintiff was as an employee rather than an independent contractor. It is well established that in order to for a claimant to recover under the Workers' Compensation Act, an employer- employee relationship must exist at the time of the claimant's injury . Askew v. Tire Co., 264 N.C. 168, 170, 141 S.E.2d 280, 282 (1965).
Whether an employer-employee relationship exists is a jurisdictional issue and unlike most findings by the Commission, "findings of jurisdictional fact . . . are not conclusive, even when supported by competent evidence." This Court thus must "review the evidence of record" and make an independent determination of plaintiff's employment status, guided "by the application of ordinary common law tests." Barber v. Going West Transp., Inc., 134 N.C. App. 428, 430, 517 S.E.2d. 914, 917 (1999) (citations omitted). Thus, this Court "has the right, and the duty, to make its own independent findings of such jurisdictional facts from its consideration of all the evidence in the record." Lucas v. Stores, 289 N.C. 212, 218, 221 S.E.2d 257, 261 (1976). The
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