Rivera v. Trapp

• Decision Date: 19 October 1999
• Docket Number: No. COA98-1527.,COA98-1527.
• Court: North Carolina Court of Appeals
• Parties: Herman RIVERA, Employee/Plaintiff, v. George TRAPP, Employer/Defendant, and/or David Beauchemin, Employer/Non-Insured Defendant, and/or John Schuck, Employer/Non-Insured Defendant.

519 S.E.2d 777

135 NC App. 296

Herman RIVERA, Employee/Plaintiff, v. George TRAPP, Employer/Defendant, and/or

David Beauchemin, Employer/Non-Insured Defendant, and/or

John Schuck, Employer/Non-Insured Defendant.

No. COA98-1527.

Court of Appeals of North Carolina.

October 19, 1999.

Brumbaugh, Mu & King, P.A., by Kenneth W. King, Jr., Jacksonville, for plaintiff-appellee.

Stephen E. Culbreth, Wilmington, for defendant-appellant George Trapp.

EAGLES, Chief Judge.

Defendant George Trapp appeals from the opinion and award of workers' compensation benefits to plaintiff Herman Rivera.

The Commission's findings tend to show the following. Plaintiff was an eighteen year old male who came to the United States from Honduras in 1995. He speaks little English and does not possess an Immigration Service "Green Card" or a Social Security number. Plaintiff worked as a roofer first in Texas, then in Indiana prior to coming to North Carolina in the fall of 1996. Plaintiff came to North Carolina due to the abundance of work available after the two hurricanes of that year. Plaintiff worked for several months in North Carolina prior to meeting Defendant John Schuck. Defendant Schuck hired plaintiff and two of plaintiff's friends to work as roofers on two homes damaged by hurricane Fran. Schuck was to pay plaintiff $12.00 an hour for ten hours a day, six days a week. Immediately prior to working for Schuck, plaintiff earned $100.00 a day, six days a week.

Defendant David Beauchemin hired Trapp to complete the necessary construction work on Beauchemin's home in Topsail Beach. While Trapp referred to himself as a consultant the Commission found that Trapp was actually a contractor. Trapp hired and negotiated with the subcontractors. Additionally, he wrote checks for labor and materials and fired at least one subcontractor whose work was unsatisfactory. The contract between Beauchemin and Trapp required all contractors who worked on the home to have workers' compensation insurance.

Trapp hired Schuck to roof Beauchemin's home. Schuck represented to Trapp that he was licensed and insured. Schuck drove a truck with a sign that read "Regional Roofing Contractors" and represented that he worked for Regional. Prior to hiring him, Trapp failed to obtain a certificate of insurance from Schuck. Soon after hiring him, Trapp discovered that Schuck did not have workers' compensation insurance. Despite this discovery, Trapp allowed Schuck to continue roofing Beauchemin's house. Neither Beauchemin nor Trapp had workers' compensation insurance.

On 3 January 1997, plaintiff was working, roofing Beauchemin's house for Schuck. In order to complete the job, someone placed roofing materials on a forklift borrowed from an adjacent jobsite. Plaintiff climbed into the forklift in order to ride with the materials to the roof. Upon reaching the third story of the house, the forklift and plaintiff fell. The fall injured the left side of plaintiff's upper chest and fractured his left radius. Plaintiff had never used a forklift in this fashion, although he had seen it done before.

An ambulance transported plaintiff to Onslow Memorial Hospital where he spent five days. As a result of the fall, plaintiff suffered a fracture of his distal left radius and contusions to his abdomen and chest. After his discharge, orthopedist Dr. Jeffrey Gross treated plaintiff. On 12 June 1997, Dr. Gross assigned a ten percent (10%) permanent partial disability rating to plaintiff's left arm.

Since plaintiff's injury, he has not been able to work or earn wages. The injury to his left arm prevents him from lifting anything heavy. Additionally, plaintiff's limited ability to understand English and his exclusive employment background in construction have contributed to his inability to find work.

Based on those facts the Commission concluded that plaintiff's injury arose out of and in the course of his employment with Schuck. The Commission concluded that plaintiff was entitled to temporary total disability at a rate of $400.00 per week from 4 January 1997 until further order of the Industrial Commission. The award also required Trapp and Schuck to pay for plaintiff's medical expenses. The Commission also concluded that Trapp had the ability and authority to stop Schuck from working until Schuck acquired workers' compensation insurance. As a result of Trapp's failure to bring Schuck into compliance, the Commission fined Trapp $10,000. The Commission also fined Schuck $50.00 per day for each day beginning 1 January 1997 and ending 3 January 1997. Defendant Trapp appeals.

The standard of review for an appeal from an opinion and award of the Industrial Commission is limited to a determination of (1) whether the Commission's findings of fact are supported by any competent evidence in the record; and (2) whether the Commission's findings justify its conclusions of law. Aaron v. New Fortis Homes, Inc., 127 N.C.App. 711, 714, 493 S.E.2d 305, 306 (1997). This is true even when there is evidence that would support contrary findings. Ross v. Mark's Inc., 120 N.C.App. 607, 610, 463 S.E.2d 302, 304 (1995). Trapp challenges the Commission's findings and conclusions that plaintiff's injury arose out of and in the course of his employment.

In order for plaintiff to recover benefits under the Act, he must show that his injuries resulted from (1) an accident, (2) arising out of his employment, and (3) within the course of his employment. Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 366, 368 S.E.2d 582, 584 (1988). Under the Workers' Compensation Act, the term "arising out of the employment refers to the origin or cause of the accidental injury, while the words in the course of the employment refer to the time, place, and circumstances under which an accidental injury occurs." Roberts v. Burlington Industries, 321 N.C. 350, 354, 364 S.E.2d 417, 420 (1988) (citations omitted). Further, whether an injury arose out of and in the course of employment is a mixed question of law and fact. Id. This standard limits our review to whether the evidence supports the Commission's findings and conclusions. Id.; Shaw v. Smith & Jennings, Inc., 130 N.C.App. 442, 445, 503 S.E.2d 113, 116,disc. review denied, 349 N.C. 363, ___ S.E.2d ___ (1998) (citations omitted).

In order for an injury to "arise out of employment" there must exist some causal connection between the injury and the employment. Hoyle v. Isenhour Brick and Tile Co., 306 N.C. 248, 252, 293 S.E.2d 196, 198 (1982). In other words, the employment must be a contributing cause or bear a reasonable relationship to the employee's injuries. Roberts, 321 N.C. at 355, 364 S.E.2d at 417; Brown v. Service Station, 45 N.C.App. 255, 256-57, 262 S.E.2d 700, 702 (1980). An injury is "in the course of employment" when it occurs "under circumstances in which the employee is engaged in an activity which he is authorized to undertake and which is calculated to further, directly or indirectly, the employer's business." Shaw, 130 N.C.App. at 446, 503 S.E.2d at 116 (quoting Powers v. Lady's Funeral Home, 306 N.C. 728, 730, 295 S.E.2d 473, 475 (1982)

). This Court has stated that an injury is compensable under the Act if "it is fairly traceable to the employment" or "any reasonable relationship to the employment exists." Shaw,

130 N.C.App. at 445,

503 S.E.2d at 116; White v. Battleground Veterinary Hosp., 62 N.C.App. 720, 723, 303 S.E.2d 547, 549,

disc. review denied, 309 N.C. 325, 307 S.E.2d 170 (1983).

Here, plaintiff needed the materials in order to repair the roof. Plaintiff testified that while he had never used a forklift to move materials to a roof, he had seen it done on other jobs. Further, plaintiff stated that everything he used went up to the roof by use of the forklift. By moving the materials to the roof, plaintiff was furthering his employer's business. Additionally, plaintiff testified that Schuck authorized him to use the forklift. These facts show that plaintiff acted to benefit his employer and that his injury occurred as a direct result of his employment.

Trapp claims that the case of Teague v. Atlantic Company, 213 N.C. 546, 196 S.E. 875 (1938) controls here. We disagree. In Teague, an employee died while attempting to ride a conveyor belt. Id. at 547, 196 S.E. at 875. The belt's purpose was to convey empty crates from the basement of employer's plant to the first floor. Id. The foreman expressly ordered all employees not to ride the conveyor. Id. The Supreme Court held that the deceased exceeded the scope of his employment and that the plaintiff's death was not compensable. Id. at 548, 196 S.E. at 875.

We find Teague distinguishable. Teague dealt with a situation where a thrill-seeking employee took action that bore no resemblance to accomplishing his job. Hoyle, 306 N.C. at 259, 293 S.E.2d at 201. Here, the record shows that plaintiff acted solely to accomplish his job. Plaintiff rode on the forklift to move necessary materials to the third floor. While this action may have been outside the "narrow confines of his job description" as a roofer, it is clear that plaintiff's actions were reasonably related to the accomplishment of the task for which he was hired. See Id. at 259, 293 S.E.2d at 202-03. Further, in Teague, the foreman had given the plaintiff an express order not to ride the conveyor belt. Teague, 213 N.C. at 547, 196 S.E. at 875. Here, plaintiff testified that Schuck authorized him to ride the forklift. We hold that this evidence supports the Commission's findings and conclusions that plaintiff's injury arose out of and in the course of his employment.

Trapp also alleges that the Commission erred by assigning plaintiff a rating of temporary total disability under G.S. § 97-29 (1991) instead of compensating him under G.S. § 97-31(13) (1991). Trapp claims that plaintiff's exclusive remedy was under G.S. § 97-31(13). We disagree. G.S. § 97-29 and G.S. § 97-31 are alternative avenues of recovery for an employee whose...