Morales-rodriguez v. Carolina Quality Exteriors Inc. And/or Bill Vinson D/b/a 3-d Aesthetic House Art

• Decision Date: 20 July 2010
• Docket Number: No. COA07-1389.,COA07-1389.
• Parties: Miguel MORALES-RODRIGUEZ, Employee, Plaintiff,v.CAROLINA QUALITY EXTERIORS, INC. and/or Bill Vinson d/b/a 3-D Aesthetic House Art, Employers, Noninsured and William F. Vinson, III, Individually and Cynthia Vinson, Individually, Defendants.
• Court: North Carolina Court of Appeals

698 S.E.2d 91

Miguel MORALES-RODRIGUEZ, Employee, Plaintiff,v.CAROLINA QUALITY EXTERIORS, INC. and/or Bill Vinson d/b/a 3-D Aesthetic House Art, Employers, Noninsured and William F. Vinson, III, Individually and Cynthia Vinson, Individually, Defendants.

No. COA07-1389.

Court of Appeals of North Carolina.

July 20, 2010.

COPYRIGHT MATERIAL OMITTED

Appeal by defendants from Opinion and Award entered 10 July 2007 by the North Carolina Industrial Commission. Heard in the Court of Appeals 24 May 2010.

No brief for plaintiff-appellee.

Teague, Campbell, Dennis & Gorham, L.L.P., by Jacob H. Wellman, Raleigh, for defendants-appellants.

MARTIN, Chief Judge.

Plaintiff sought benefits for injuries allegedly sustained on 10 September 2004 when he fell from a building at Nags Head, North Carolina while applying stucco siding. He testified that he was using a rope and harness to hang from the side of the building when the rope came loose from a roof-mounted fan to which it was attached, causing him to fall. Defendants denied that an employer-employee relationship existed on the date of the alleged injury, and further denied that plaintiff suffered an accident arising out of the course and scope of his employment.

By an Opinion and Award entered 10 July 2007, the Full Commission found and concluded that plaintiff was an employee of defendant Carolina Quality Exteriors, Inc. and was injured in the course and scope of that employment. The Commission awarded plaintiff temporary total disability benefits and medical expenses, assessing a ten percent late penalty for late payment of compensation, assessing penalties for failing to secure workers' compensation insurance, assessing a civil penalty against defendants for failing to comply with N.C.G.S. § 97-93, and assessing an additional civil penalty against Cynthia Vinson, vice-president of Carolina Quality Exteriors, Inc., for failure to comply with N.C.G.S. § 97-93.

On 9 August 2007, defendants appealed to this Court. These proceedings were stayed on 23 January 2008 pursuant to 11 U.S.C. § 362 by reason of a bankruptcy proceeding filed by individual defendant, Cynthia Vinson. By order of this Court entered 12 February 2010, these proceedings were resumed after it was made to appear to the Court that Cynthia Vinson has been discharged in bankruptcy and the bankruptcy proceeding had been closed.

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On appeal, defendants first challenge the Commission's jurisdiction to award benefits because they contend plaintiff was not an employee of Carolina Quality Exteriors, Inc. at the time of his alleged injury. In order for a claimant to maintain a proceeding for worker's compensation benefits, it is required that the claimant be an employee, in law and in fact, of the party from whom the compensation is claimed. Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 383, 364 S.E.2d 433, 437 reh'g denied, 322 N.C. 116, 367 S.E.2d 923 (1988). Defendants contend plaintiff was an independent contractor.

An independent contractor is not covered by the Worker's Compensation Act and does not come within the jurisdiction of the Industrial Commission. See id. The burden is upon the claimant to prove the existence of the employer-employee relationship at the time the injury occurred. Ramey v. Sherwin-Williams Co., 92 N.C.App. 341, 343, 374 S.E.2d 472, 473 (1988).

The issue of whether an employer-employee relationship existed at the time of the injury, then, is a jurisdictional fact. Lucas v. Li'l Gen. Stores, 289 N.C. 212, 218, 221 S.E.2d 257, 261 (1976).

[T]he 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.

Id. Because defendants challenge the Commission's jurisdiction, we have examined the entire record de novo, as we are required to do, and, for the reasons explained below, hold that plaintiff was defendants' employee at the time of his alleged injury. Therefore, the Commission did have jurisdiction to award him benefits.

In determining whether the relationship of employer-employee, or that of independent contractor, exists, our Supreme Court has stated, “The vital test is to be found in the fact that the employer has or has not retained the right of control or superintendence over the contractor or employee as to details.” Hayes v. Elon Coll., 224 N.C. 11, 15, 29 S.E.2d 137, 140 (1944). Factors to be considered are that

[t]he person employed (a) is engaged in an independent business, calling, or occupation; (b) is to have the independent use of his special skill, knowledge, or training in the execution of the work; (c) is doing a specified piece of work at a fixed price or for a lump sum or upon a quantitative basis; (d) is not subject to discharge because he adopts one method of doing the work rather than another; (e) is not in the regular employ of the other contracting party; (f) is free to use such assistants as he may think proper; (g) has full control over such assistants; and (h) selects his own time.

Id. at 16, 29 S.E.2d at 140. However,

[t]he presence of no particular one of these indicia is controlling. Nor is the presence of all required. They are considered along with all other circumstances to determine whether in fact there exists in the one employed that degree of independence necessary to require his classification as independent contractor rather than employee.

Id.

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. In the present case, only two witnesses, plaintiff and defendant Bill Vinson, provided evidence with respect to the plaintiff's status at the time of this injury.

Plaintiff testified through an interpreter. His testimony tended to show that he had been employed by defendant as a plasterer for eight or nine months on the date of the accident. He was required to complete an application and, when he was hired, defendant Vinson agreed to pay him “by the hour.” He testified that defendant Vinson assigned the jobs on which he was required to work. After about four months, he was made a supervisor of other workers, but those workers were hired by defendant Vinson, rather than plaintiff. Defendant Vinson would prepare time sheets for the workers each week and give them to plaintiff, who would fill in his...