Spivey v. Wright's Roofing

• Decision Date: 15 January 2013
• Docket Number: No. COA12–270.,COA12–270.
• Citation: 737 S.E.2d 745
• Court: North Carolina Court of Appeals
• Parties: Dennis Ray SPIVEY, Plaintiff, v. WRIGHT'S ROOFING, Employer/Subcontractor, Noninsured; Randy Wright, Individually; AMS Staff Leasing, Employer; Dallas National Insurance, Carrier for Wright's Roofing and AMS Staff Leasing; Crawford & Company, Administrator/Servicing Agent for Dallas National Insurance; Boyet Builders, General Contractor; and Auto–Owners Insurance, Carrier [for Boyet Builders], Defendants.

737 S.E.2d 745

Dennis Ray SPIVEY, Plaintiff,

v.WRIGHT'S ROOFING, Employer/Subcontractor, Noninsured; Randy Wright, Individually; AMS Staff Leasing, Employer; Dallas National Insurance, Carrier for Wright's Roofing and AMS Staff Leasing; Crawford & Company, Administrator/Servicing Agent for Dallas National Insurance; Boyet Builders, General Contractor; and Auto–Owners Insurance, Carrier [for Boyet Builders], Defendants.

No. COA12–270.

Court of Appeals of North Carolina.

Jan. 15, 2013.

Appeal by defendants from Opinion and Award entered 2 December 2011 by the North Carolina Industrial Commission. Heard in the Court of Appeals 30 August 2012.

Crumley Roberts, LLP, Greensboro, by Michael T. Brown, Jr., for Plaintiff-appellee.

McAngus Goudelock and Courie, Charlotte, by Daniel L. McCullough, for Defendant-appellees Boyet Builders and Auto–Owners Insurance.

Teague Campbell Dennis & Gorham, L.L.P., Raleigh, by John A. Tomei and Tara D. Muller, for Defendant-appellants.

ERVIN, Judge.

Defendants AMS Staff Leasing, Dallas National Insurance Co., and Crawford & Company ¹ appeal from a Commission order awarding Plaintiff Dennis Ray Spivey medical and disability benefits. On appeal, Defendants argue that the Commission erred by determining that they were bound by the Industrial Commission Form 60 which they had previously filed and by failing to determine that Defendant Boyet Builders was liable for payment of any workers' compensation benefits to which Plaintiff was entitled. After careful consideration of Defendants' challenges to the Commission's order in light of the record and the applicable law, we conclude the Commission's order should be affirmed.

I. Factual Background

A. Substantive Facts

Plaintiff was employed by Wright's Roofing, which was a sole proprietorship owned by Randy Wright, between 2005 and 2008. During that time, Plaintiff worked either part-time or full-time, depending on availability of work, and was paid, for most of that period, by Wright's Roofing.

At some point during Plaintiff's initial period of employment, Mr. Wright contracted with AMS Staffing, a company that provides administrative services such as handling payroll, tax, and workers' compensation insurance-related issues. According to the arrangement between Wright's Roofing and AMS Staffing, after Mr. Wright designated an employee as being “employed by” AMS Staffing, the employee would fill out an AMS Staffing form, Wright's Roofing would pay AMS Staffing for the work performed by the employee, and AMS Staffing would issue a paycheck to the employee. AMS Staffing also assumed responsibility for procuring workers' compensation coverage for the Wright's Roofing employees whose employment had been reported to AMS Staffing.

In October 2008, Plaintiff was asked to complete the forms required by AMS Staffing. After that time, Plaintiff's paychecks were issued by AMS Staffing, which withheld taxes and took care of other required deductions. In September, 2009, Plaintiff stopped working for Wright's Roofing due to a lack of available work. After Plaintiff stopped working for Wright's Roofing, Mr. Wright submitted a termination form to AMS Staffing in which Wright's Roofing informed AMS Staffing that Plaintiff was no longer employed by that business.

After a six or seven month gap, Plaintiff returned to work for Wright's Roofing in 2010. Upon returning to work at Wright's Roofing, Plaintiff performed the same essential tasks that he had performed during his earlier period of employment. Plaintiff did not, however, complete any AMS Staffing forms when he came back to work at Wright's Roofing. Instead, Plaintiff was paid with checks drawn on a Wright's Roofing account. At that time, only one of Wright's Roofing's employees was registered with AMS Staffing; Wright's Roofing paid for workers' compensation coverage for this single employee, but failed to provide workers' compensation insurance for its other employees.

On 28 June 2010, Plaintiff was working on a residential roof at a job for which Defendant Boyet Builders, the general contractor, had hired Wright's Roofing as a subcontractor. As of that date, Wright's Roofing had not provided Boyet Builders with a certificate attesting that it was in compliance with applicable workers' compensation insurance requirements. On that date, Plaintiff fell from a ladder and suffered an admittedly compensable leg fracture for which Plaintiff was hospitalized and underwent surgery. As of the date of the hearing in this matter, Plaintiff had not yet returned to full time work.

B. Procedural History

On 19 July 2010, Plaintiff filed a Form 18 in which he formally reported the accident in which he had been involved and asserted a claim for workers' compensation benefits. Plaintiff filed an amended Form 18 on 22 July 2010. On 31 August 2010, Defendants filed a Form 60 in which they admitted that Plaintiff was entitled to receive workers' compensation benefits. On the same date, Defendant Crawford sent Plaintiff's counsel an email stating that:

Our client, Dallas National Ins., has agreed to accept this claim on a Form 60. We have requested TTD [ (temporary total disability) ] from 6–30 thru 8–31, 10 weeks, be issued and sent to Mr. Spivey. Additional TTD will be paid weekly. Related medical expenses will be paid in accordance with the fee schedule. Please acknowledge receipt and advise that you will waive the interrogatory responses.

In addition, Defendants sent a letter to Plaintiff's counsel in which a copy of the filed Form 60 was enclosed and by means of which Defendants advised Plaintiff's counsel that a disability check “should be coming to your client [.]” Pursuant to the filed Form 60, Defendants began paying weekly disability benefits at the rate of $342.18 covering the period from 30 June 2010 through 7 September 2010, resulting in total benefit payments of $3,763.00.

On 15 September 2010, Defendants filed a Form 63 and a Form 61 by means of which they denied liability and ceased making indemnity payments as of that date. Defendants informed the Commission that, after they filed the Form 60, they had “determined that they have no workers['] compensation coverage” applicable to Plaintiff and were “withdrawing” their Form 60. In response, Plaintiff filed a motion requesting that Defendant be ordered to continue making temporary total disability payments. Defendants replied to Plaintiff's motion by asserting that, after filing the Form 60, they had “discovered evidence” that entitled them to withdraw the Form 60 and to deny Plaintiff's claim. On 22 October 2010, the Commission issued an administrative order denying Plaintiff's motion and directing Plaintiff to “file a Form 33 to request an evidentiary hearing” at which the relevant issues would be addressed. As a result, on 27 October 2010, Plaintiff filed a Form 33 requesting that the extent to which Defendants were entitled to withdraw the Form 60 and contest their liability for Plaintiff's workers' compensation benefits be set for hearing.

On the same date, Plaintiff filed a second amended Form 18 in which he named Wright's Roofing as Plaintiff's employer, Dallas National as Wright's carrier, and Boyet Builders as the general contractor at the construction project at which Plaintiff was working when he was injured. Boyet Builders filed a response to Plaintiff's request for a hearing in which it stated that Plaintiff was not its employee, that it was not liable as a statutory employer pursuant to N.C. Gen.Stat. § 97–19, and that “[Dallas National] has already accepted the compensability of this claim via a Form 60 dated August 31, 2010 and has therefore incurred liability for benefits.” On 5 January 2011, Boyet Builders denied Plaintiff's claim for workers' compensation benefits. On 17 January 2011, Plaintiff filed another Form 33 in which he contended that, after Dallas National filed a Form 60, it had “unilaterally, without Commission approval, stopped paying benefits.”

A hearing was conducted before Deputy Commissioner Adrian Phillips on 9 February 2011. During this hearing, Plaintiff moved that Defendants be directed to reinstate temporary total disability benefits pending a final decision regarding liability. Deputy Commissioner Phillips allowed Plaintiff's motion on 21 February 2011. On 19 May 2011, Deputy Commissioner Phillips entered an order holding Boyet Builders and Auto–Owners Insurance liable for Plaintiff's workers' compensation benefits and ordering them to pay medical and temporary total disability benefits. On 24 May 2011, Boyet Builders and Auto Owners Insurance appealed to the Commission from Deputy Commissioner Phillips' order.

The Commission heard this case on 6 October 2011. On 2 December 2011, the Commission, by means of an order issued by Commissioner Danny Lee McDonald with the concurrence of Commission Chair Pamela T. Young and Commissioner Christopher Scott, determined that Defendants had no legal basis to withdraw the Form 60 which they had initially filed, and ordered Defendants to pay temporary total disability and medical benefits to Plaintiff. The Commission also concluded that Wright's Roofing did not have workers' compensation insurance applicable to Plaintiff on the date of his injury and imposed a fine upon Mr. Wright for failing to comply with the Workers' Compensation Act. Defendants noted an appeal to this Court from the Commission's order.

II. Legal Analysis

A. Standard of Review

“The standard of review in workers' compensation cases has been firmly established by the General Assembly and by numerous decisions of this Court.... Under the Workers' Compensation Act, ‘[t]he Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.’ Therefore, on appeal from an award of the Industrial Commission, review is limited to consideration of whether competent evidence supports the Commission's findings of fact and whether the findings support the Commission's...