Macias v. Bsi Associates, Inc., 110519 NCCA, COA 19-299

Docket Nº:COA 19-299
Opinion Judge:YOUNG, JUDGE
Party Name:JORGE MACIAS, Plaintiff-Appellee, v. BSI ASSOCIATES, INC. d/b/a CAROLINA CHIMNEY, Employer, TRAVELERS INSURANCE COMPANY, Carrier, Defendants-Appellants.
Attorney:The Law Offices of John M. McCabe, P.A., by John M. McCabe and George W. Dennis, III, for plaintiff-appellee. Hedrick Gardner Kincheloe & Garofalo, LLP, by M. Duane Jones, for defendant-appellants.
Judge Panel:Judges DIETZ and INMAN concur.
Case Date:November 05, 2019
Court:Court of Appeals of North Carolina
 
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JORGE MACIAS, Plaintiff-Appellee,

v.

BSI ASSOCIATES, INC. d/b/a CAROLINA CHIMNEY, Employer, TRAVELERS INSURANCE COMPANY, Carrier, Defendants-Appellants.

No. COA 19-299

Court of Appeals of North Carolina

November 5, 2019

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Heard in the Court of Appeals 16 October 2019.

Appeal by defendants from Opinion and Award entered 22 October 2018, and from Order entered 24 January 2019, by the Industrial Commission No. 16-742209.

The Law Offices of John M. McCabe, P.A., by John M. McCabe and George W. Dennis, III, for plaintiff-appellee.

Hedrick Gardner Kincheloe & Garofalo, LLP, by M. Duane Jones, for defendant-appellants.

YOUNG, JUDGE

This appeal arises from an Industrial Commission decision that the plaintiff was defendant's employee at the time of the accident. The Full Commission did not err in concluding plaintiff was an employee of Carolina Chimney, rather than an independent contractor. As a result, we affirm in part. However, the Full Commission lacked jurisdiction to enter the Order awarding attorneys' fees, and therefore, we vacate in part.

I. Factual and Procedural History

Plaintiff Jorge Macias ("Macias") initially worked for Carolina Chimney from February 2008 until his first on-the-job accident on 29 February 2013. The parties settled the claim and entered into an agreement that precluded Macias from returning to work for Carolina Chimney. In March 2014, Carolina Chimney's owner, Steve Sterling ("Sterling"), proposed a plan to circumvent the parties' agreement. Under Sterling's plan, Macias would start his own company, purchase the necessary insurance policies, and continue to work for Carolina Chimney as an "independent contractor." Sterling assured Macias that he would provide the vehicles, tools and supplies, and that he would make arrangements for him to secure insurance. Thereafter, at Sterling's direction, Macias obtained an insurance policy which indicated that Macias had zero employees and excluded himself from coverage.

On 21 March 2014, Macias resumed working for Carolina Chimney. Macias' work arrangements and day-to-day undertakings were similar-if not identical-to his first period of employment with Carolina Chimney. Carolina Chimney gave Macias keys to the company's office and two credit cards to purchase supplies; his job title remained the same; Carolina Chimney required Macias to report to the company's office for work from 8:00 a.m. to 5:00 p.m., Monday through Friday, which he did continuously during the twenty-five month period; Carolina Chimney provided Macias with specific instructions on where he was to work and the specific work to perform each day; Carolina Chimney furnished vehicles, tools, equipment, and supplies; Macias was given "Carolina Chimney" business cards to hand out, was required to wear "Carolina Chimney Crew" clothing, and was required to introduce himself by saying, "Hi, my name is Jorge. I'm here with Carolina Chimney."

Carolina Chimney continued to control the order in which Macias' work was performed, directed him on how to perform the work, decided when he would take breaks, and determined which co-workers, if any, would assist Macias.

The only other work Macias did during the twenty-five month period consisted of five "side jobs" on the weekends when he was not working for Carolina Chimney. Macias never advertised that he was in business for himself, and he did not utilize his own business address, business logo, business clothing, or business cards.

Each week during that twenty-five month period, Carolina Chimney paid Macias a regular paycheck in a set amount, even when he missed work for illness, vacation, or personal leave.

On 26 April 2016, Macias fell from...

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