Campos–brizuela v. Masonry, No. COA10–1571.

Docket NºNo. COA10–1571.
Citation716 S.E.2d 427
Case DateOctober 04, 2011
CourtCourt of Appeal of North Carolina (US)

716 S.E.2d 427

Nelson CAMPOS–BRIZUELA, Plaintiff
v.
ROCHA MASONRY, L.L.C., Employer,andBuilders Mutual Insurance Company, Carrier, Defendants.

No. COA10–1571.

Court of Appeals of North Carolina.

Oct. 4, 2011.


[716 S.E.2d 429]

Appeal by defendants from Opinion and Award entered 31 August 2010 by the North Carolina Industrial Commission. Heard in the Court of Appeals 16 August 2011.

Farah & Cammarano, P.A., Raleigh, by N. Victor Farah and Gina E. Cammarano, for Plaintiff-appellee.

Lewis & Roberts, P.L.L.C., Raleigh, by Timothy S. Riordan, J. Timothy Wilson, and Mallory E. Williams, for Defendant-appellants.

ERVIN, Judge.

Defendants Rocha Masonry, L.L.C., and Builders Mutual Insurance Company appeal

[716 S.E.2d 430]

from an order awarding medical and disability benefits to Plaintiff Nelson Campos–Brizuela. On appeal, Defendants argue that the Commission erred by asserting jurisdiction over Plaintiff's claim and by determining that Plaintiff was disabled. After careful consideration of Defendants' challenges to the Commission's order in light of the record and the applicable law, we conclude that the Commission's order should be affirmed.
I. Background
A. Substantive Facts

Plaintiff was born in El Salvador in 1972. In approximately 2000, Plaintiff moved to Maryland, where he found work as a driver. In 2009, Plaintiff moved to North Carolina in pursuit of greater employment opportunities.

In April 2009, Plaintiff became acquainted with Felipe Quintero. Mr. Quintero worked for Defendant Rocha Masonry, which had a contract to spread concrete at Caleb's Creek Elementary School in Kernersville. After hiring Plaintiff to work at the Caleb's Creek Elementary School site on 15 April 2009, Mr. Quintero gave Plaintiff a ride to that location on the following day. After working for several hours, Plaintiff suffered a “near amputation” injury when his hand was crushed while cleaning a concrete pump. As a result of this injury, Plaintiff had to undergo surgery and was hospitalized for several days. As of 31 March 2010, Plaintiff had not regained the use of his hand, had “no appreciable wrist motion,” and had “virtually no motion of the fingers.”

B. Procedural History

On 12 May 2009, Defendants filed a Form 19 providing notice of Plaintiff's injury. On the same date, Defendants filed a Form 61 denying Plaintiff's claim for workers' compensation benefits on the grounds that Plaintiff was not employed by Defendant Rocha Masonry at the time of his injury. On 20 May 2009, Plaintiff filed a Form 33 requesting a hearing concerning his claim for workers' compensation benefits.

On 17 February 2010, Deputy Commissioner James C. Gillen issued an Opinion and Award concluding that Plaintiff had failed to prove that he was employed by Defendant Rocha Masonry on 16 April 2009 and that the Commission lacked jurisdiction over Plaintiff's claim for that reason. Plaintiff appealed Deputy Commissioner Gillen's order to the Commission. On 31 August 2010, the Commission, by means of an Opinion and Award issued by Commission Chair Pamela T. Young, with the concurrence of Commissioners Danny Lee McDonald and Staci Meyer, reversed Deputy Commissioner Gillen's order and ruled that Plaintiff was employed by Defendant Rocha Masonry at the time of his injury. As a result, the Commission awarded medical and disability benefits and attorneys' fees to Plaintiff. Defendants noted an appeal to this Court from the Commission's order.

II. Legal Analysis
A. Jurisdiction
1. Standard of Review

“The plaintiff bears the burden of proving each element of compensability ... by ‘a preponderance of the evidence.’ ” Everett v. Well Care & Nursing Servs., 180 N.C.App. 314, 318, 636 S.E.2d 824, 827 (2006) (quoting Holley v. ACTS, Inc., 357 N.C. 228, 232, 234, 581 S.E.2d 750, 752 (2003)). For that reason, “the claimant bears the burden of proving the existence of an employer-employee relationship at the time of the accident.” McCown v. Hines, 353 N.C. 683, 686, 549 S.E.2d 175, 177 (2001) (citing Lucas v. Stores, 289 N.C. 212, 218, 221 S.E.2d 257, 261 (1976)).

[T]he existence of an employer-employee relationship at the time of the injury constitutes a jurisdictional fact.... “The finding of a jurisdictional fact by the Industrial Commission is not conclusive upon appeal even though there be evidence in the record to support such finding. The reviewing 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.”

McCown, 353 N.C. at 686, 549 S.E.2d at 177 (citing Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 383, 364 S.E.2d 433, 437 (1988), and quoting Lucas, 289 N.C. at 218, 221 S.E.2d at 261). Appellate courts decide disputed issues of jurisdictional fact

[716 S.E.2d 431]

based on the greater weight of the evidence. Youngblood, 321 N.C. at 384, 364 S.E.2d at 437.

In performing our task to review the record de novo and make jurisdictional findings independent of those made by the Commission, we are necessarily charged with the duty to assess the credibility of the witnesses and the weight to be given to their testimony, using the same tests as would be employed by any fact-finder in a judicial or quasi-judicial proceeding.

Morales–Rodriguez v. Carolina Quality, ––– N.C.App. ––––, ––––, 698 S.E.2d 91, 94 (2010). Although we have not had an opportunity to observe the demeanor of the witnesses, we are, in that respect, in the same position as the Commission, which based its findings on information contained in the written record rather than relying upon testimony provided by live witnesses.

Whether the full Commission conducts a hearing or reviews a cold record, [N.C. Gen.Stat.] § 97–85 places the ultimate fact-finding function with the Commission—not the hearing officer. It is the Commission that ultimately determines credibility, whether from a cold record or from live testimony. Consequently, in reversing the deputy commissioner's credibility findings, the full Commission is not required to demonstrate, as Sanders

[ v. Broyhill Furniture Industries, 124 N.C.App. 637, 641, 478 S.E.2d 223, 226 (1996),]

states, “that sufficient consideration was paid to the fact that credibility may be best judged by a first-hand observer of the witness when that observation was the only one.” To the extent that Sanders is inconsistent with this opinion, it is overruled.Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 413–14 (1998) (quoting Sanders, 124 N.C.App. at 641, 478 S.E.2d at 226, disc. rev. denied, 346 N.C. 180, 486 S.E.2d 208 (1997), overruled in part as stated ). In making the necessary credibility determination, we also “consider the [tests enunciated in the] North Carolina pattern jury instructions, which” state that a credibility determination should rest upon the use of “ ‘the same tests of truthfulness which you apply in your everyday lives....' ” In re Hayes, 356 N.C. 389, 404–05, 584 S.E.2d 260, 270 (2002) (quoting N.C.P.I.-Civil 101.15 (1994)). After carefully reviewing the record, we conclude that Plaintiff was, in fact, an employee of Rocha Masonry for purposes of the administration of the Workers' Compensation Act.
2. Factual Analysis

According to the undisputed evidence, Plaintiff was at a job site at which Defendant Rocha Masonry had a contract to pour concrete and was engaged in cleaning a machine used by Defendant Rocha Masonry while performing that contract at the time of his injury. In addition, we find Plaintiff's testimony to the effect that he was cleaning the machine at the direction of Mr. Quintero to be credible. As a result, we find, in accordance with the essentially uncontested evidence, that Plaintiff was performing work for the benefit of Defendant Rocha Masonry at the time of his injury.1

In challenging the Commission's jurisdiction over Plaintiff's claim, Defendants argue that, because Plaintiff was hired by an employee of Defendant Rocha Masonry who lacked the authority to make such a decision, Plaintiff was not employed by Defendant Rocha Masonry for workers' compensation purposes at the time of his injury. In essence, Defendants contend that (1) Plaintiff was hired by Mr. Quintero; (2) Mr. Quintero had not been given the authority to hire assistants by the appropriate officials at Defendant Rocha Masonry; (3) Mr. Quintero did not inform Plaintiff of the identity of the company he worked for; and (4), because Plaintiff was hired by an individual who lacked the authority to make employment decisions and did not mention that Plaintiff would be working for Defendant Rocha Masonry, Plaintiff never established that he was employed by Defendant Rocha Masonry for workers' compensation purposes. Defendants' argument lacks merit.

[716 S.E.2d 432]

At the hearing, Plaintiff testified that Mr. Quintero “contracted [with him] to go to work with [Mr. Quintero].” On the following day, as Mr. Quintero drove Plaintiff to the job site, he informed Plaintiff that Plaintiff would be earning $9.00 an hour and that Plaintiff would be paid by a company check drawn on the account of Mr. Quintero's employer. “The way [that Mr. Quintero] describe[d] it to [Plaintiff, he] felt that he had authority ... to hire [Plaintiff] to do work for this company.” After arriving at the job site, Plaintiff observed Mr. Quintero “giving orders to a lot of people” and assumed that the others at the job site worked for Mr. Quintero's employer as well.

At first, Mr. Quintero “told [Plaintiff] to work, to help the people that are higher.” “After that, since [Mr. Quintero] was [his] immediate boss, [Plaintiff] asked him what [he] should do next.” In response, Mr. Quintero directed Plaintiff to clean a machine. As he attempted to perform the requested operation, Plaintiff's hand was crushed.2

Plaintiff's testimony was corroborated to some extent by that of other witnesses. Mark Atkinson, an attorney who had previously represented Plaintiff, testified that, during his investigation...

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5 practice notes
  • McLaughlin v. Bailey, No. COA14–446.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 7 Abril 2015
    ...definitions when the statute itself contains a definition. See, e.g., Campos–Brizuela v. Rocha Masonry, L.L.C., 216 N.C.App. 208, 219–20, 716 S.E.2d 427, 436 (2011) ("[W]e conclude that the broad statutory definition of ‘employee’ contained in N.C. Gen.Stat. § 97–2(2) renders it unnecessary......
  • In re Medlin, No. 411A13.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 12 Junio 2014
    ...one of the Russell prongs proves all three Hilliard elements. See, e.g., Campos–Brizuela v. Rocha Masonry, L.L.C., 216 N.C.App. 208, 223, 716 S.E.2d 427, 438 (2011) (“[W]e now hold that proof of disability under any one of the four prongs of the Russell test is sufficient to permit an award......
  • In re Medlin, No. 411A13
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 12 Junio 2014
    ...of the Russell prongs proves all three Hilliard elements. See, e.g., Campos-Brizuela v. Rocha Masonry, L.L.C., 216 N.C. App. 208, 223, 716 S.E.2d 427, 438 (2011) ("[W]e now hold that proof of disability under any one of the four prongs of the Russell test is sufficient to permitPage 12an aw......
  • White v. Cochran, No. COA10–1191.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 4 Octubre 2011
    ...of public policy where he or she alleges the dismissal resulted from an assertion of rights under the Workers' Compensation Act.”). [716 S.E.2d 427] Ms. White has argued that “a sheriff can be sued in his individual capacity for wrongful discharge of an employee in violation of public polic......
  • Request a trial to view additional results
5 cases
  • McLaughlin v. Bailey, COA14–446.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 7 Abril 2015
    ...definitions when the statute itself contains a definition. See, e.g., Campos–Brizuela v. Rocha Masonry, L.L.C., 216 N.C.App. 208, 219–20, 716 S.E.2d 427, 436 (2011) ("[W]e conclude that the broad statutory definition of ‘employee’ contained in N.C. Gen.Stat. § 97–2(2) renders it unnecessary......
  • In re Medlin, 411A13.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 12 Junio 2014
    ...one of the Russell prongs proves all three Hilliard elements. See, e.g., Campos–Brizuela v. Rocha Masonry, L.L.C., 216 N.C.App. 208, 223, 716 S.E.2d 427, 438 (2011) (“[W]e now hold that proof of disability under any one of the four prongs of the Russell test is sufficient to permit an award......
  • In re Medlin, 411A13
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 12 Junio 2014
    ...of the Russell prongs proves all three Hilliard elements. See, e.g., Campos-Brizuela v. Rocha Masonry, L.L.C., 216 N.C. App. 208, 223, 716 S.E.2d 427, 438 (2011) ("[W]e now hold that proof of disability under any one of the four prongs of the Russell test is sufficient to permitPage 12an aw......
  • White v. Cochran, COA10–1191.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 4 Octubre 2011
    ...of public policy where he or she alleges the dismissal resulted from an assertion of rights under the Workers' Compensation Act.”). [716 S.E.2d 427] Ms. White has argued that “a sheriff can be sued in his individual capacity for wrongful discharge of an employee in violation of public polic......
  • Request a trial to view additional results

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