Archie v. Kirk

720 S.E.2d 726, 217 N.C. App. 598, 2011 N.C. App. LEXIS 2595
CourtCourt of Appeals of North Carolina
DecidedDecember 20, 2011
DocketNo. COA11-436
StatusPublished

This text of 720 S.E.2d 726 (Archie v. Kirk) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Archie v. Kirk, 720 S.E.2d 726, 217 N.C. App. 598, 2011 N.C. App. LEXIS 2595 (N.C. Ct. App. 2011).

Opinion

BRYANT, Judge.

Because plaintiff lacked the independence necessary to determine he was an independent contractor, we affirm the Commission’s conclusion that an employer-employee relationship existed between defendant and plaintiff. Further, because the Commission did not [599]*599make a direct ruling on the specific medical conditions for which plaintiff was to receive compensation, defendants’ contentions are not properly before us.

On 10 June 2009, Deputy Commissioner Robert W. Rideout heard testimony to determine whether an employer-employee relationship existed between plaintiff Robert Archie and defendant Edward Kirk (Kirk) and whether plaintiff suffered a compensable injury and was entitled to benefits.

Kirk was self-employed. He contracted with advertising companies to change billboard advertisements. The work was unsteady: billboard advertisements could be changed as often as every ninety days or as infrequently as every two years. He often required the help of only one person, though a large billboard may take a few hours and require more than two people.

Kirk met plaintiff through a friend, and plaintiff had been helping Kirk hang billboard signs since 2004. Plaintiff never submitted an employment application or references nor did he sign an employment contract. No one who aided Kirk in hanging billboards ever submitted an application or signed an employment contract, and Kirk did not keep personnel records. Before starting a job, Kirk would call plaintiff to ask if he was available. Kirk paid plaintiff either $9.00 to $10.00 per hour or $40.00 per billboard sign, and the payment method varied by the job. Kirk transported plaintiff to the job site and provided the necessary tools — a helmet, harness, rope, hammers, screws, bolts, and a utility knife. Sometimes before arriving at a job site, Kirk stopped and bought supplies. Occasionally, a job required more than two people, but, most of the time, plaintiff and Kirk worked alone. Plaintiff testified that if Kirk hired other people to hang a billboard sign, “[Kirk] would be down on the ground supervising [them].” It was not often that plaintiff would hang a billboard without Kirk present. Kirk testified that plaintiff knew how to take the billboard signs down and put them up; he didn’t need any special instruction.

On 10 October 2006, plaintiff assisted Kirk with a billboard located in Madison, Rockingham County. Including plaintiff, Kirk hired three people for the job, which was to remove an old sign on the billboard in preparation for installing a new sign. The billboard was thirty-to-forty feet high and at one end was a “power pole,” approximately an arm’s length away. Plaintiff went up on top of the billboard wearing the harness and hard hat Kirk provided. The billboard sign to be removed was fastened by metal poles. As plaintiff was holding one [600]*600of the metal poles, it touched an adjacent power line, and plaintiff was electrocuted. His leg caught and was trapped at the top of the billboard. His body from his chest to his kneecaps caught on fire. Plaintiff was air-lifted to Wake Forest University Baptist Medical Center where he received treatment for flame and electrical burns resulting from having been shocked with 7200 volts of electricity. Plaintiff remained in the hospital for two months.

On 15 August 2007, plaintiff filed a Form 18, Notice of Accident to Employer and Claim of Employee, Representative, or Dependent, with the Industrial Commission. Plaintiffs workers’ compensation claim was denied, and plaintiff filed a request that the matter be assigned for hearing.

On 11 June 2010, the deputy commissioner filed an opinion and award concluding that plaintiff was an employee of Kirk and that defendants Kirk and Liberty Mutual Insurance Company were responsible for temporary total disability benefits, as well as, past and future medical bills. Co-defendants Lamar Advertising, Inc. and Zurich Insurance Company, Cap Care Group, and Builders Mutual Insurance Company were dismissed as parties. Defendants Kirk and Liberty Mutual Insurance Company (defendants) filed an application for review by the Full Commission (the Commission).

On 14 December 2010, the Commission filed an opinion and award ordering defendants to pay plaintiff temporary total disability compensation at a rate of $266.68 per week from 10 October 2006 through 14 December 2010 and continuing until further order. The Commission also ordered defendants to pay plaintiff’s past and future medical expenses related to the injury. Defendants appeal.

On appeal, defendants contend that the Commission erred by (I) concluding that Kirk had three or more employees on 10 October 2006 and that an employer-employee relationship existed between Kirk and plaintiff; (II) concluding that plaintiff was not an independent contractor; and (III) concluding that plaintiff met his burden of proof entitling him to temporary total disability compensation and medical expenses, including future medical expenses.

I & II

Defendants contend that the Commission erred when it concluded that it had jurisdiction over plaintiff’s claims premised upon findings that Kirk had three or more regular employees on 10 October [601]*6012006 and that an employer-employee relationship existed between plaintiff and Kirk at that time. We disagree.

“One who seeks to avail himself of the [Workers’ Compensation] Act must come within its terms and must be held to proof that he is in a class embraced in the Act.” Hayes v. Bd. of Trustees, 224 N.C. 11, 20, 29 S.E.2d 137, 142 (1944) (citations omitted).

To be entitled to maintain a proceeding for workers’ compensation, the claimant must be, in fact and in law, an employee of the party from whom compensation is claimed. The issue of whether the employer-employee relationship exists is a jurisdictional one. An independent contractor is not a person included within the terms of the Workers’ Compensation Act, and the Industrial Commission has no jurisdiction to apply the Act to a person who is not subject to its provisions.

Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 383, 364 S.E.2d 433, 437 (1988) (citations omitted).

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.
Whether an employer-employee relationship existed at the time of the injury is to be determined by the application of ordinary common law tests. Under the common law, an independent contractor exercises an independent employment and contracts to do certain work according to his own judgment and method, without being subject to his employer except as to the result of his work. In contrast, an employer-employee relationship exists where the party for whom the work is being done retains the right to control and direct the manner in which the details of the work are to be executed.

McCown v. Hines, 353 N.C. 683, 686, 549 S.E.2d 175

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Related

Coastal Plains Utilities, Inc. v. New Hanover County
601 S.E.2d 915 (Court of Appeals of North Carolina, 2004)
McCown v. Hines
549 S.E.2d 175 (Supreme Court of North Carolina, 2001)
Youngblood v. North State Ford Truck Sales
364 S.E.2d 433 (Supreme Court of North Carolina, 1988)
Richardson v. Maxim Healthcare/Allegis Group
669 S.E.2d 582 (Supreme Court of North Carolina, 2008)
Hayes v. . Elon College
29 S.E.2d 137 (Supreme Court of North Carolina, 1944)
Hayes v. Board of Trustees of Elon College
224 N.C. 11 (Supreme Court of North Carolina, 1944)

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Bluebook (online)
720 S.E.2d 726, 217 N.C. App. 598, 2011 N.C. App. LEXIS 2595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/archie-v-kirk-ncctapp-2011.