x73554.doc

I.C. NO. X73554, GEORGE COX, Employee, Plaintiff v. NEW LIFE FELLOWSHIP CHURCH, Employer, BROTHERHOOD MUTUAL INSURANCE COMPANY, Carrier, Defendants.  OPINION AND AWARD for the Full Commission by TAMMY R. NANCE, Commissioner, N.C. Industrial Commission.  Filed 5 August 2013.



This matter was reviewed by the Full Commission on 12 June 2013, upon the appeal of plaintiff from the 8 January 2013 Opinion and Award of Deputy Commissioner James C. Gillen.  This case was initially heard before Deputy Commissioner Gillen in Concord, North Carolina on 18 July 2012.  The deposition of Dr. Brockford Herring is part of the evidence of record.
A P P E A R A N C E S
	Plaintiff:	The Olive Law Firm, Attorneys at Law, Charlotte, North Carolina; Juan A. Sanchez, appearing.

	Defendants:	McAngus, Goudelock & Courie, Attorneys at Law, Charlotte, North Carolina; Raymond J. Williams, III, appearing.

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The Full Commission has reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Gillen and the briefs and arguments of the parties.  The appealing party has not shown good grounds to reconsider the evidence, receive further evidence, or rehear the parties or their representatives.  Having reviewed the competent evidence of record, the Full Commission adopts the Opinion and Award of Deputy Commissioner Gillen with minor modifications.
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The Full Commission finds as fact and concludes as matters of law the following, which
were entered into by the parties at the hearing before the Deputy Commissioner and in the Pretrial Agreement, as:
STIPULATIONS
	1.	Workers' Compensation insurance coverage was in effect on the date of accident.
	2.	The alleged accident took place in Concord, North Carolina on 7 November 2011.
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	The following were entered into evidence at the hearing before the Deputy Commissioner as:
STIPULATED EXHIBITS
a.	The Pretrial Agreement, marked as stipulated exhibit 1.
b.	A group of documents including the Industrial Commission Forms filed in this matter, medical records, and other various documents, collectively paginated 1-590 and marked as stipulated exhibit 2.
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The following was entered into evidence at the hearing before the Deputy Commissioner as an:
EXHIBIT
Defendant-employer's "Employee Contact List," dated 12 July 2012 and marked as defendants' exhibit 1.
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Based upon the foregoing Stipulations and a preponderance of the evidence in view of the entire record, the Full Commission makes the following additional:
FINDINGS OF FACT
	1.	Plaintiff, who was 41 years old at the time of the hearing before the Deputy Commissioner, received his GED in 2002.  Plaintiff studied construction management and computer technology at a community college from June 2011 to November 2011.  Plaintiff's professional experience consists of work in the construction industry for approximately twenty years, mostly in the roofing trade.  Plaintiff's testimony reflects that he possesses significant roofing expertise.
	2.	Plaintiff began attending defendant-employer's church services in 2004 or 2005.  Around that time, plaintiff met Art Webb, who was defendant-employer's Pastor.  In 2005, plaintiff shingled defendant-employer's sanctuary building for a $1,000.00 flat fee.  Defendant-employer is not in the business of roofing.
	3.	In August 2011, plaintiff approached Mr. Webb to inquire about roofing work.  Plaintiff subsequently performed a roofing project on a house on "Pecan Road" personally owned by Mr. Webb for a flat fee $1,000.00.  Plaintiff employed his step-brother for the "Pecan Road" project, and he paid his step-brother out of this $1,000.00.
	4.	After completing the "Pecan Road" project, plaintiff completed a project repairing pipe collars on the roof of Mr. Webb's personal residence for a $200.00 flat fee.
5.	Plaintiff and Mr. Webb subsequently discussed a roof repair project to be done on a house owned by defendant-employer.  Regarding this project, the recollections of plaintiff and Mr. Webb conflict.  Plaintiff is of the belief that, as of 7 November 2011, an agreement had been reached between plaintiff and Mr. Webb for plaintiff to complete the roof repair project for a flat fee of $1,000.00.  Mr. Webb, however, recollects that, as of 7 November 2011, plaintiff and Mr. Webb had no agreement, and that the roof repair project was only in the bidding process stage on that date.  Mr. Webb testified that, as of 7 November 2011, plaintiff and one other bidder had offered to complete the project for $1,000.00, but that Mr. Webb was expecting to get another bid and had not awarded the project to any of the bidders.  This discrepancy illustrates the lack of a meeting of the minds between Mr. Webb and plaintiff regarding plaintiff's employment status as of 7 November 2011.
6.	On 7 November 2011, plaintiff and Mr. Webb were on top of the house owned by defendant-employer inspecting the roof for purposes of assessing the project.  As plaintiff descended a ladder to get off the roof, plaintiff fell to the patio, severely injuring his left leg and ankle.
7.	Had an agreement been reached between the parties regarding the roofing project on the house owned by defendant-employer, defendant-employer would have provided some of the tools and the materials, but plaintiff would have wielded independent use of his roofing skills and expertise.  No work schedule was discussed.
8.	Had an agreement been reached between the parties regarding the roofing project on the house owned by defendant-employer, it would have been a short-term project and defendant-employer would have paid plaintiff a fixed lump sum of $1,000.00.
9.	Plaintiff was not, however, in the regular employ of defendant-employer.  The evidence of record reflects that, as of 7 November 2011, defendant-employer had twelve regular employees, that plaintiff was not among this group, and furthermore, that plaintiff had never been an employee of defendant-employer.  Plaintiff had professional dealings with defendant-employer and/or Mr. Webb only a handful of times over the ten years prior to 7 November 2011.  Moreover, the evidence of record reflects that plaintiff completed roofing projects in North Carolina and South Carolina for various parties for a living.
10.	A preponderance of the evidence in view of the entire record establishes that, had an agreement been reached between the parties for the performance of the roofing project on the house owned by defendant-employer, the roofing project would have been completed in a similar manner as plaintiff's prior roofing projects for defendant-employer and/or Mr. Webb, wherein defendant-employer would have provided some of the tools and the materials needed, but that plaintiff, who was not in the regular employ of defendant-employer, would have wielded independent use of his roofing skills and expertise in an unsupervised environment, worked on his own schedule, completed the project for defendant-employer for a fixed lump sum, and been free to use and control assistants as he thought proper.
	11.	A preponderance of the evidence in view of the entire record demonstrates that plaintiff was not an employee of defendant-employer on 7 November 2011.
	12.	In his Form 44 and brief to the Full Commission, plaintiff argues that Deputy Commissioner Gillen erred by awarding attorney's fees to defendants pursuant to N.C. Gen. Stat. §97-88.1.  However, Deputy Commissioner Gillen did not award attorney's fees to defendants pursuant to N.C. Gen. Stat. §97-88.1 in this matter.  Defendants argue, however, in their brief that the Full Commission should award attorney's fees to defendants pursuant to N.C. Gen. Stat. §97-88.1.  The Full Commission finds that plaintiff has not brought or prosecuted his claim without reasonable grounds.
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Based upon the foregoing Stipulations, Findings of Fact, and a preponderance of the evidence in view of the entire record, the Full Commission makes the following:
CONCLUSIONS OF LAW
1.	The Supreme Court of North Carolina has articulated the well-established principle that, "[t]o 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."  Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 383, 364 S.E.2d 433, 437 (1988) (citation omitted).  If no such employment relationship is proven, the Industrial Commission has no jurisdiction and "the Act simply has no application to the claim."  Lucas v. Li'l General Stores, 289 N.C. 212, 218, 221 S.E.2d 257, 261 (1976).  The North Carolina Court of Appeals has more recently reiterated this tenet, stating that "[t]he question whether an employer-employee relationship existed is a jurisdictional one . . . ."  Hughart v. Dasco Transp., Inc. 167 N.C. App. 685, 689, 606 S.E.2d 379 (2005) (citing Youngblood, 321 N.C. at 383, 364 S.E.2d at 437).  The Court of Appeals also reiterated in Hughart that "[t]he claimant has the burden of proving that an employer-employee relationship existed at the time that the injury by accident occurred."  Id. (citing Lucas, 289 N.C. at 218, 221 S.E.2d at 261).
2.	N.C. Gen. Stat. §97-2(2) defines an "employee" as a "person engaged in an employment under any appointment or contract of hire or apprenticeship . . . ."  The Supreme Court of North Carolina has explained that it must first be determined whether there was a contract between the parties, and, if there was a contract, what type of relationship (employment or independent contractor) was created by its terms.  Askew v. Leonard Tire Co., 264 N.C. 168, 176, 141 S.E.2d 280 (1965).  According to case law, the common-law meaning of the term "employee" should be used in conjunction with N.C. Gen. Stat. §97-2(2) to determine whether an employment relationship existed for purposes of workers' compensation.  Lucas v. Li'l Gen. Stores, 289 N.C. 212, 219, 221 S.E.2d 257, 261-62 (1976); Carter v. Frank Shelton, Inc., 62 N.C. App. 378, 382, 303 S.E.2d 184, 187 (1983), disc. rev. denied, 310 N.C. 476, 312 S.E.2d 883 (1984).  Generally, common law instructs that an employee is one who works for wages or salary, and is subject to the control of the party for whom work is being performed.  See Denton v. South Mt. Pulpwood Co., 69 N.C. App. 366, 317 S.E.2d 433, cert. denied, 311 N.C. 753, 321 S.E.2d 131 (1984); Alford v. Victory Cab Co., Inc., 30 N.C. App. 657, 228 S.E.2d 43 (1976); see also Lucas v. Li'l General Stores, 289 N.C. 212, 221 S.E.2d 254 (1976).
3.	Regarding whether, as of 7 November 2011, there existed either kind of contractual relationship (employment or independent contractor) between plaintiff and defendant-employer, the North Carolina Court of Appeals has held that general rules of contract law apply in workers' compensation cases, explaining that "'[i]t 'is a well-settled principle of contract law that a valid contract exists only where there has been a meeting of the minds as to all essential terms of the agreement.'"  Chaisson v. Simpson 195 N.C. App. 463, 470-71, 673 S.E.2d 149, 156 (2009) (citations and internal quotation marks omitted).  In this case, a preponderance of the evidence in view of the entire record demonstrates that, as of 7 November 2011, there was no meeting of the minds with regard to the formation of any type of contract for the performance of the roof project.  Therefore, as of 7 November 2011, no employment relationship or independent contractor relationship existed between the parties.
4.	Assuming, arguendo, that as of 7 November 2011, an agreement had been reached between the parties for the performance of the roofing project, the relationship created was not one of employment, but rather, was one of independent contracting.  The Supreme Court of North Carolina has held that a determination as to whether a plaintiff is an employee or an independent contractor for the purposes of the Workers' Compensation Act is governed by eight factors.  See Hayes v. Bd. of Trustees of Elon College, 224 N.C. 11, 16, 29 S.E.2d 137, 140 (1944).  These eight factors are whether:
The 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 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. (citations omitted).  The Supreme Court of North Carolina also explained in Hayes that these factors do not present a clear checklist, but should be weighed in conjunction with the particular circumstances of each case.  Id.  However, the dominant indicator in determining whether a worker is an employee or an independent contractor is whether the employer has authority to control how the worker accomplishes the task to be completed.  See id.  More recently, the Supreme Court of North Carolina applied the eight Hayes factors in the context of a roofer and held that the plaintiff in that case to be an independent contractor.  McGown v. Hines, 353 N.C. 683, 549 S.E.2d 175 (2001).  Importantly, therein, the Court cited prior case law and found that roofing, as a profession, was an "independent calling."  Id. at 687, 549 S.E.2d at 178 (citation omitted).  In light of McGown and applying the Hayes factors to the case at hand, if the parties had entered into an agreement as of 7 November 2011, the relationship created would have been one of an independent contractor because (a) roofing, as explained by the Court in McGown, is an independent business, calling, or occupation, (b) plaintiff would have wielded independent use of his roofing expertise in an unsupervised environment, (c) plaintiff would have completed the project for defendant-employer for a fixed lump sum of $1,000.00, (d) plaintiff had the liberty to choose one method of work over another and to work on his own schedule, (e) plaintiff was not in the regular employ of defendant-employer, (f) plaintiff would have been free to employ and control assistants as he thought proper, and (h) plaintiff would have been permitted to complete the roofing project at times selected by him.
5.	In light of the foregoing, a preponderance of the evidence in view of the entire record demonstrates that plaintiff has not met his burden of proving that he was an employee of defendant-employer as of 7 November 2011.  See N.C. Gen. Stat. §97-2(2); Hughart v. Dasco Transp., Inc. 167 N.C. App. 685, 689, 606 S.E.2d 379 (2005).
6.	In light of the foregoing, the North Carolina Industrial Commission has no jurisdiction over this matter.  See N.C. Gen. Stat. §97-2(2); Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 364 S.E.2d 433 (1988); Lucas v. Li'l General Stores, 289 N.C. 212, S.E.2d 257 (1976); Hughart v. Dasco Transp., Inc., 167 N.C. App. 685, 606 S.E.2d 379 (2005).
7.	Plaintiff has not brought or prosecuted this matter without reasonable grounds, and therefore, defendants are not entitled to attorney's fees pursuant to N.C. Gen. Stat. §97-88.1.  Sparks v. Mountain Breeze Restaurant & Fish House, Inc., 55 N.C. App. 663, 286 S.E.2d 575 (1982).
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Based upon the foregoing Stipulations, Findings of Fact, and Conclusions of Law, the Full Commission makes the following:
A W A R D
1.	Pursuant to N.C. Gen. Stat. §97-2(2) and applicable case law, the Industrial Commission has no jurisdiction over this matter and this claim must be, and hereby is DENIED.
2.	The parties shall share the cost of the hearing before the Full Commission.  Plaintiff shall pay $110.00 and Defendants shall pay $110.00.
This the __ day of July, 2013.



			S/			
TAMMY R. NANCE
COMMISSIONER


CONCURRING:



			S/			
PAMELA T. YOUNG
COMMISSIONER



			S/			
DANNY LEE McDONALD
COMMISSIONER


TRN:djg

I.C. No. X73554	Page 10

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