Bentley v. Jonathan Piner Constr. , 254 N.C. App. 362 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-62-2
Filed: 18 July 2017
North Carolina Industrial Commission, I.C. No. 14-721965
THOMAS BENTLEY, Employee, Plaintiff,
v.
JONATHAN PINER CONSTRUCTION, Alleged Employer, and STONEWOOD
INSURANCE COMPANY, Alleged Carrier, Defendants.
Appeal by Plaintiff from opinion and award of the North Carolina Industrial
Commission entered 9 October 2015. Originally heard in the Court of Appeals 8
August 2016, with an opinion filed 20 September 2016 vacating the Industrial
Commission’s opinion and award and remanding the case for a new hearing.
Defendants’ petition for rehearing was granted 17 November 2016. Reheard in the
Court of Appeals 6 February 2017. This opinion supersedes and replaces the opinion
filed 20 September 2016.
Dunn, Pittman, Skinner & Cushman, PLLC, by Rudolph A. Ashton, III; and
Dodge Jones Law Firm, P.A., by Robert C. Dodge, for Plaintiff-Appellant.
Dickie, McCamey & Chilcote, P.C., by Michael W. Ballance and Martin R.
Jernigan, for Defendants-Appellees.
Smith Moore Leatherwood LLP, by Jeri L. Whitfield, for North Carolina
Association of Defense Attorneys, amicus curiae.
Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner; and Law Office of
David P. Stewart, by David P. Stewart, for Workers’ Injury Law & Advocacy
Group, amicus curiae.
BENTLEY V. JONATHAN PINER CONSTR.
Opinion of the Court
McGEE, Chief Judge.
Thomas Bentley (“Plaintiff”) appeals from an opinion and award of the North
Carolina Industrial Commission (“the Commission”) determining he was not an
“employee” of Jonathan Piner Construction (“Piner Construction”), as that term is
used in the North Carolina Workers’ Compensation Act, N.C. Gen. Stat. § 97-1 et seq.
In an opinion published 20 September 2016, this Court determined that the plain
language of N.C. Gen. Stat. § 97-84 (2015) was violated when the Commission based
its opinion and award on an opinion and order by a deputy commissioner who was
not present at the hearing and did not hear the evidence. Bentley v. Piner, ___ N.C.
App. ___, ___, 790 S.E.2d 379, 382 (2016). Defendants petitioned this Court for
rehearing, which we granted. Upon rehearing, we hold that Plaintiff did not preserve
his argument regarding the proper interpretation of N.C.G.S. § 97-84 due to his
failure to raise it before the Commission. We further hold that the Commission did
not err in concluding Plaintiff was not an employee of Piner Construction, nor did it
err in holding that Piner Construction was not Plaintiff’s “statutory employer”
pursuant to N.C. Gen. Stat. § 97-19. Accordingly, we affirm the order of the
Commission.
I. Background
In early 2014, Plaintiff and his friend, George Tucker (“Tucker”), were working
“side jobs” in the construction industry in and around Newport, North Carolina. At
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the time, Plaintiff held himself out as the owner and operator of Bentley Construction
and Maintenance (“Bentley Construction”) and had distributed business cards that
advertised his business services as “[r]oofing, siding, painting, pressure washing . . .
[r]emodels and renovations, [and] sheetrock work and repairs.” Plaintiff also
operated a website under the Bentley Construction name.
One day in February 2014, Plaintiff and Tucker were driving around in
Plaintiff’s truck, which had the words “Bentley Construction and Maintenance”
displayed in a decal on its side, looking for work. While driving about, Plaintiff and
Tucker happened upon a jobsite in the Breakwater subdivision in Newport, North
Carolina (the “Breakwater jobsite”).1 Plaintiff pulled his truck over and attempted to
find the person in charge to ask if he and Tucker could work on the Breakwater
jobsite. Plaintiff and Tucker encountered Jonathan Piner (“Piner”), the owner and
operator of Piner Construction.
Piner Construction was the subcontractor responsible for, inter alia, the
framing of the houses being constructed at the Breakwater jobsite. After talking for
a brief period of time about what type of experience Plaintiff and Tucker had in the
construction industry, Plaintiff handed Piner a Bentley Construction business card
1 We note that there is some discrepancy in the record about the location and name of the
jobsite at issue. Tucker identified the jobsite as the “Phillips Landing subdivision” in Morehead City,
North Carolina, while Piner identified the jobsite as the “Breakwater subdivision” in Newport, North
Carolina. To avoid confusion and for ease of reading, we will simply refer to the jobsite as the
“Breakwater jobsite.”
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Opinion of the Court
and asked Piner to call if he had any framing work available. Piner responded that
if “some work [came] up . . . that [he] couldn’t put [his] guys on,” he would call
Plaintiff.
A few weeks later, Piner “felt like [he] might need to make a phone call to
somebody” to assist on the framing job at the Breakwater jobsite because he believed
Piner Construction would not be able to complete all of the framing work. Piner
contacted Plaintiff, and gave him the option of being paid at a fixed price or being
paid by the hour. Plaintiff replied that he would “get back” to Piner on his preferred
method of payment. After hearing from Piner, Plaintiff contacted, among others,
Tucker and Shawn Noling (“Noling”) to request their assistance on the Breakwater
jobsite.
When Plaintiff, Tucker, and Noling arrived at the Breakwater jobsite to begin
work, Piner produced the blueprints for the house to be constructed. Noling
introduced himself to Piner, read the blueprints,2 and then suggested the hourly rate
that each man should be paid: Noling was paid $18.00 per hour, Tucker was paid
$14.00 per hour, and Plaintiff was paid $12.00 per hour. Piner characterized Noling
as the “lead man” and the “man running the show” due to his expertise and experience
in the construction industry, and characterized Plaintiff as the “low man on the totem
pole” due to his relative inexperience. Piner asked Plaintiff if he wanted a single
2 At the hearing, Noling agreed that he “read the blueprints as a member of [the Bentley
Construction] crew.”
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Opinion of the Court
check written to him for all of the men he had brought with him to work on the
Breakwater jobsite “because [Plaintiff] was operating as [Bentley Construction].”
Plaintiff requested that Piner pay each man individually, and Piner agreed to do so.
Tucker testified that he, Plaintiff, and Noling were able to set their own hours,
including making decisions about when breaks were to be taken. At the Breakwater
jobsite, Plaintiff brought and used his own tools, including a compressor, a nail gun,
and a “sawzall.” As the work progressed, Plaintiff, Tucker, and Noling were
“struggling for tools” because the tools brought by Plaintiff were inadequate, so Piner
brought tools from them to use. When Noling realized another worker was needed to
complete the job, he enlisted the help of C.P. Hollingsworth (“Hollingsworth”). Noling
testified that he did not need to ask Piner’s permission to hire Hollingsworth, and
that Plaintiff similarly could have hired another person to work on the Breakwater
jobsite without consulting Piner. Noling also testified that Piner did not instruct him
to frame the house in a specific manner, and that he, Plaintiff, Tucker, and
Hollingsworth used their own special skills, knowledge, and training to frame the
house. According to Noling, Piner was not interested in the method employed to
frame the house, but was only interested in “[t]he finished product.”
Plaintiff worked as a “cut man” on the Breakwater jobsite. While working on
3 March 2014, Plaintiff was injured when a nail he was prying from a board broke
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Opinion of the Court
loose and struck him in the right eye. As we explained in our previous opinion in this
case,
[f]ollowing the injury, Plaintiff filed a workers’
compensation claim with the Commission on 25 March
2014. Piner Construction, along with its insurance carrier,
Stonewood Insurance Company (collectively, “Defendants”)
denied the claim for compensation, contending the injury
was non-compensable under the Workers’ Compensation
Act because Plaintiff was not an employee of Piner
Construction on the date of the accident. The claim was
assigned for a hearing before Deputy Commissioner Mary
C. Vilas (“Deputy Vilas”).
Bentley, ___ N.C. App. at ___, 790 S.E.2d at 379. A hearing was held before Deputy
Vilas on 5 December 2014. At the hearing, Tucker, Noling, and Piner testified.
Plaintiff was not present for, and did not testify at, the hearing.
Near the end of the [5 December 2014] hearing, Deputy
Vilas suggested that the jurisdictional question of whether
Plaintiff was an employee of Piner Construction be
bifurcated from the merits of Plaintiff’s claim, because she
would no longer be at the Commission after 1 February
2015. Deputy Vilas noted that she had many cases to
write, but she would “try” to decide the jurisdictional
question in the present case before she left the
Commission. An order bifurcating the jurisdictional and
merits issues was filed 9 December 2014 by Deputy Vilas,
and stated that bifurcation “was appropriate given the
issues for hearing and that medical testimony by
deposition is not scheduled until 26 January 2015 and
[Deputy Vilas] will not be at the Commission after 1
February 2015.” Deputy Vilas filed an order closing the
record and declaring that the jurisdictional issue was
“ready for a decision” on 12 January 2015.
An opinion and order was entered 16 February 2015 by
Deputy Commissioner William H. Shipley (“Deputy
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Opinion of the Court
Shipley”). Deputy Shipley concluded as a matter of law
that the Commission lacked jurisdiction over Plaintiff’s
claim because he was not an employee of Piner
Construction at the time his injury was sustained.
Id. at ___, 790 S.E.2d at 379-80. Plaintiff filed a notice of appeal to the Commission
from Deputy Shipley’s order. The Commission acknowledged Plaintiff’s notice of
appeal, and provided Plaintiff with a Form 44. Plaintiff returned the Form 44, which
listed the ways in which Plaintiff believed Deputy Shipley had erred in his opinion
and order. The Commission issued an opinion an award on 9 October 2015 concluding
as a matter of law that: (1) the Commission lacked jurisdiction over Plaintiff’s claim
because he was not an employee of Piner Construction at the time his injury was
sustained; and (2) Piner Construction was not Plaintiff’s “statutory employer”
pursuant to N.C.G.S. § 97-19. Plaintiff appeals.
II. Analysis
Plaintiff has raised three issues in his appeal to this Court. Plaintiff argues
the Commission erred by: (1) basing its opinion and award on an opinion and order
by a deputy commissioner who was not present at the hearing and did not hear the
evidence; (2) failing to find and conclude that Plaintiff was an employee of Piner
Construction at the time of Plaintiff’s injury; and (3) failing to find and conclude that
Piner Construction should be held liable as a statutory employer pursuant to
N.C.G.S. § 97-19.
A. Waiver of N.C. Gen. Stat. § 97-84 Argument
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Opinion of the Court
We must first consider whether Plaintiff’s argument regarding the proper
interpretation of N.C.G.S. § 97-84 has been preserved for appellate review. Plaintiff
has raised his statutory interpretation argument for the first time in this Court.
Whether N.C.G.S. § 97-84 permits a deputy commissioner to issue an opinion and
award in a case over which the deputy commissioner did not personally preside was
not raised in the evidentiary hearing before Deputy Vilas, was not mentioned nor
decided in the opinion and award filed by Deputy Shipley, and was not an issue
included in Plaintiff’s application for review to the Commission. Generally, a party
may not raise an issue on appeal if that argument was not first raised in the trial
court. N.C.R. App. P. 10(a)(1). Precedents of this Court hold that “where a theory
argued on appeal was not raised before the trial court, the law does not permit parties
to swap horses between courts in order to get a better mount in the appellate courts.”
State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685 (2002) (citations and
quotations omitted); see also Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)
(“the law does not permit parties to swap horses between courts in order to get a
better mount [on appeal].”).
This prohibition against raising new arguments on appeal not presented to the
trial court in the first instance has been applied by this Court to cases arising from
the Industrial Commission. Floyd v. Exec. Personnel Group, 194 N.C. App. 322, 329,
669 S.E.2d 822, 828 (2008). When a party appeals a deputy commissioner’s opinion
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Opinion of the Court
and award to the Commission within the time permitted, “the full Commission shall
review the award, and, if good ground be shown therefor, reconsider the evidence,
receive further evidence, rehear the parties or their representatives, and, if proper,
amend the award[.]” N.C. Gen. Stat. § 97-85 (2015). After receiving a notice of
appeal, the Commission supplies the appellant with a Form 44 Application for
Review, in which the appellant must “stat[e] the grounds for its appeal ‘with
particularity.’ The appellant must then file and serve the completed Form 44 and an
accompanying brief within the specified time limitations ‘unless the Industrial
Commission, in its discretion, waives the use of the Form 44.’” Cooper v. BHT Enters.,
195 N.C. App. 363, 368, 672 S.E.2d 748, 753 (2009) (citations omitted); see also 04
NCAC 10A .0701(d) (2015).
In the present case, Plaintiff sent a letter and notice of appeal from Deputy
Shipley’s opinion and order to the Commission. After receiving an acknowledgment
of his appeal, Plaintiff filed a Form 44, along with a brief, neither of which raised the
issue of whether a deputy commissioner may issue an opinion and award when he or
she was not present at the hearing and did not hear the evidence. We hold that
Plaintiff’s failure to raise this issue before the Commission bars his ability to raise it
in this Court in the first instance. Therefore, we deem this argument waived.
B. Employee/Employer Relationship
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Plaintiff argues the Commission erred by concluding that Plaintiff was not an
employee of Piner Construction at the time of the accident. We disagree. In order to
maintain a proceeding for workers’ compensation, “the claimant must have been an
employee of the party from whom compensation is claimed.” McCown v. Hines, 353
N.C. 683, 686, 549 S.E.2d 175, 177 (2001) (citation omitted). “[T]he existence of an
employer-employee relationship at the time of the injury constitutes a jurisdictional
fact.” Id. As our Supreme Court has held,
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.
Lucas v. Li’l Gen. Stores, 289 N.C. 212, 218, 221 S.E.2d 257, 261 (1976). In Hayes v.
Elon College, 224 N.C. 11, 16, 29 S.E.2d 137, 140 (1944), our Supreme Court set forth
an eight-factor test to guide courts in determining when a plaintiff is an independent
contractor:
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 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.
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Hayes, 224 N.C. at 16, 29 S.E.2d at 140 (citations omitted). Not all factors are
required, and no one factor is controlling over another; the Hayes factors “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. “The claimant
has the burden of proof that the employer-employee relation existed at the time the
injury by accident occurred.” Lucas, 289 N.C. at 218, 221 S.E.2d at 261.
Applying the Hayes factors to the present case, and considering “all other
circumstances” relevant, we hold the Commission correctly determined that Plaintiff
was an independent contractor, not an employee, of Piner Construction at the time of
his injury. First, Plaintiff was engaged in the independent calling of being a “cut
man” in the framing process, and held himself out as the owner and operator of
Bentley Construction. There was evidence presented at the hearing that Bentley
Construction was more an aspiration than an actual business – Tucker testified that
the business was “a dream” and “a joke” and Noling similarly testified that it was fair
to characterize Bentley Construction as “a dream.” Plaintiff nevertheless distributed
a Bentley Construction business card to Piner, held himself out to Piner as the owner
and operator of Bentley Construction, and placed a Bentley Construction decal on his
truck. Further, Noling testified that when he arrived at the Breakwater jobsite, he
considered himself a part of the Bentley Construction “crew.” Considering the
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Opinion of the Court
evidence presented, we find that Plaintiff was engaged in an independent business,
calling, or occupation.
Second, there is no direct evidence regarding whether Plaintiff himself had the
independent use of his special skill, knowledge, or training in the execution of the
work done at the Breakwater jobsite, as Plaintiff did not testify at the hearing.
However, testimony from Noling and Tucker suggests that he did, indeed, have the
independent use of his special skill, knowledge, or training in the execution of the
work done at the Breakwater jobsite. Noling testified Piner did not instruct him on
how to frame the house that was being constructed and that he, as a member of
Bentley Construction, used his own special skills, knowledge, and training to frame
the house. Tucker similarly testified that no one told him how to frame the house
that he, Noling, Hollingsworth, and Plaintiff were helping to construct. This evidence
suggests that Plaintiff, like Noling and Tucker, had the independent use of his special
skill, knowledge or training. At a minimum, Plaintiff has failed to meet his burden
of proof as to this factor. Lucas, 289 N.C. at 218, 221 S.E.2d at 261.
Third, Piner Construction paid Plaintiff at an hourly rate of $12.00. Although
being paid an hourly rate is more suggestive of an employee, it is not determinative.
Hayes, 224 N.C. at 16, 29 S.E.2d at 140; see also Youngblood v. North State Ford
Truck Sales, 321 N.C. 380, 384-85, 364 S.E.2d 433, 438 (1988). We also note that
Piner gave Plaintiff the option of being paid a lump sum, and asked Plaintiff whether
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Opinion of the Court
he would like to be paid a single check for all of the men he had brought with him
“because he was operating as [Bentley Construction].” Plaintiff refused both offers.
Fourth, the evidence presented at the hearing suggested Plaintiff was not
subject to discharge because he adopted one method of completing the work rather
than another. Noling testified that Piner never instructed him on the method in
which to frame the house, and that Piner’s only concern was that the finished product
correlate with the blueprints and change orders. Piner similarly testified that he was
unconcerned with how the house was framed, so long as the finished project was
completed consistent with the specifications provided by the general contractor.
Fifth, the evidence suggested that Plaintiff was not in the “regular employ” of
Piner Construction. Tucker testified that, prior to the work on the Breakwater
jobsite, he had never done any work for Piner Construction, and Piner testified he
had never met or worked with Plaintiff prior to Plaintiff approaching him in February
2014 and Plaintiff’s subsequent work on the Breakwater jobsite.
Sixth, the evidence suggested that Plaintiff was free to use such assistants as
he thought was proper. After Piner called Plaintiff to ask him to work on the
Breakwater jobsite, Plaintiff contacted Noling and Tucker to enlist their help on the
project. Noling also testified that, after he realized another person would be needed
to work on the Breakwater jobsite, he was able to hire Hollingsworth without Piner’s
permission, and that Plaintiff similarly could have hired an additional person to work
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Opinion of the Court
on the Breakwater jobsite without consulting Piner. Piner echoed this sentiment,
testifying that Plaintiff could have hired workers and added them to the Piner
Construction payroll “without any communication” with him.
Seventh, the evidence suggested that Plaintiff did not have full control over
the assistants he arranged to work with him on the Breakwater jobsite. However,
the power to control the assistants was not wielded by Piner or anyone from Piner
Construction, but rather by Noling, the “lead man” who was himself contacted by
Plaintiff to work on the Breakwater jobsite. Although Plaintiff did not have complete
control over his assistants, neither did Piner or anyone from Piner Construction. On
balance, this evidence does not factor into the consideration of whether Plaintiff was
an employee or independent contractor.
Finally, the evidence suggested that Plaintiff, Tucker, Noling, and
Hollingsworth collectively selected their own time. Tucker testified he was able to
make his own hours, and Noling similarly testified that no one instructed him on
when to begin and finish work for the day or when to take a lunch break. Piner
confirmed this testimony, stating that he did not control the time when Plaintiff,
Tucker, Noling, and Hollingsworth worked.
In considering all these factors along with the entire record in this case, we
hold that Plaintiff has not satisfied his burden of demonstrating that he was an
employee of Piner Construction at the time of his injury. Applying the Hayes factors,
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Opinion of the Court
we conclude that Plaintiff was an independent contractor not subject to the provisions
of the Workers’ Compensation Act. Due to Plaintiff’s status as an independent
contractor, the Commission did not err in determining that it lacked jurisdiction over
the present case.
C. Statutory Employer
In his final argument, Plaintiff contends the Commission erred in concluding
Piner Construction was not Plaintiff’s “statutory employer.” Specifically, Plaintiff
contends “if anyone subcontracted the [Breakwater] framing job from Piner
Construction, it was [Noling]. As such, [Piner Construction] would be liable for
[Plaintiff’s] injuries” pursuant to N.C.G.S. § 97-19 unless Piner Construction obtained
proof of Noling’s workers’ compensation insurance. We disagree and find N.C.G.S. §
97-19 inapplicable to the present case.
N.C.G.S. § 97-19, as relevant to Plaintiff’s argument, provides:
Any principal contractor, intermediate contractor, or
subcontractor who shall sublet any contract for the
performance of any work without obtaining from such
subcontractor or obtaining from the Industrial Commission
a certificate, issued by a workers’ compensation insurance
carrier, or a certificate of compliance issued by the
Department of Insurance to a self-insured subcontractor,
stating that such subcontractor has complied with G.S. 97-
93 for a specified term, shall be liable . . . to the same extent
as such subcontractor would be if he were subject to the
provisions of this Article for the payment of compensation
and other benefits under this Article on account of the
injury or death of any employee of such subcontractor due
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to an accident arising out of and in the course of the
performance of the work covered by such subcontract.
N.C. Gen. Stat. § 97-19 (2015). The “manifest purpose” of N.C.G.S. § 97-19 “is to
protect employees of irresponsible and uninsured subcontractors by imposing
ultimate liability on principal contractors, intermediate contractors, or
subcontractors, who . . . have it within their power, in choosing subcontractors, to
pass upon their financial responsibility and insist upon appropriate compensation
protection for their workers.” Greene v. Spivey, 236 N.C. 435, 443, 73 S.E.2d 488, 494
(1952). N.C.G.S. § 97-19 “applies only when two conditions are met. First, the injured
employee must be working for a subcontractor doing work which has been contracted
to it by a principal contractor. Second, the subcontractor does not have workers’
compensation insurance coverage covering the injured employee.” Spivey v. Wright’s
Roofing, 225 N.C. App. 106, 118, 737 S.E.2d 745, 753 (2013).
As this Court has held, “[N.C.]G.S. § 97-19, by its own terms, cannot apply
unless there is first a contract for the performance of work which is then sublet.”
Cook v. Norvell-Mackorell Real Estate Co., 99 N.C. App. 307, 310, 392 S.E.2d 758, 760
(1990). In the present case, Plaintiff provided no evidence of the contract between
the owner of the Breakwater jobsite and the principal contractor, the subcontract
between the principal contractor and Piner Construction, or any subcontract between
Piner Construction and Noling.
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However, even if Plaintiff is correct that Piner Construction had subcontracted
the framing job to Noling – as noted above, a contention with little support in the
record – Plaintiff has not shown that he was an employee of Noling. No evidence was
presented at the hearing that tended to establish an employer-employee relationship
between Noling and Plaintiff. To the contrary, the evidence showed that Plaintiff
himself solicited and received the framing job from Piner under the Bentley
Construction name and, thereafter, contacted Noling to work on the Breakwater
jobsite with him. While Noling testified he was the “lead man” on the project, no
evidence tended to show that Noling was Plaintiff’s employer. As we have held,
applying the Hayes factors, Defendant was an independent contractor of Piner
Construction while working at the Breakwater jobsite.
Even if we were to assume that Piner Construction subcontracted the framing
project to Noling, and were to further assume some type of relationship between
Plaintiff and Noling, Plaintiff would at most be an independent contractor of Noling,
not one of his employees. North Carolina’s statutory employer statute only applies
to injured subcontractors and their employees, not independent contractors of a
subcontractor, placing Plaintiff outside the protections afforded by N.C.G.S. § 97-19.
See Greene v. Spivey, 236 N.C. 435, 444, 73 S.E.2d 488, 494 (1952) (holding N.C.G.S.
§ 97-19 “is not applicable to an independent contractor”).
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Plaintiff directs this Court to Davis v. Taylor-Wilkes Helicopter Servs., 145 N.C.
App. 1, 549 S.E.2d 580 (2001) in support of his contention that Piner Construction
was his statutory employer pursuant to N.C.G.S. § 97-19. In Davis, the plaintiff,
Carlton Davis (“Davis”) worked as an independent contractor for the defendant,
Taylor-Wilkes Helicopter Service, Inc. (“Taylor-Wilkes”). 145 N.C. App. at 2-3, 549
S.E.2d at 581. Davis was injured in the course of his work for Taylor-Wilkes when a
“highboy sprayer” he was operating tipped over. Id. at 3; 549 S.E.2d at 581. Davis
pursued a claim for workers’ compensation, and this Court found Taylor-Wilkes to be
Davis’ statutory employer. After examining the language of N.C.G.S. § 97-19, this
Court concluded that, because there was “no evidence that Taylor-Wilkes obtained
the necessary certificate” certifying Davis was covered by workers’ compensation
insurance, “under N.C. Gen. Stat. § 97-19, Taylor-Wilkes remained liable for [Davis’]
compensable injuries while he was working under a subcontract from Taylor-Wilkes.”
Id. at 10, 549 S.E.2d at 585.
In the present case, and unlike in Davis, Plaintiff does not argue he was a
subcontractor of Piner Construction, but instead argues Noling was a subcontractor
of Piner Construction, and that Plaintiff was an employee of Noling. As discussed
above, Plaintiff did not produce evidence to show either that Noling was Piner
Construction’s subcontractor, or that Plaintiff was an employee of Noling. The
evidence instead tended to suggest that Plaintiff, Noling, and Tucker were each
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Opinion of the Court
independent contractors of Piner Construction. We therefore find Davis inapposite
to the present case, and hold that Piner Construction was not Plaintiff’s statutory
employer pursuant to N.C.G.S. § 97-19.
III. Conclusion
Plaintiff did not preserve his argument regarding whether N.C.G.S. § 97-84
permits a deputy commissioner to issue an opinion and award in a case in which the
deputy commissioner did not hear the evidence due to his failure to raise it before the
Commission. The Commission did not err in holding Plaintiff to be an independent
contractor, nor did it err in finding that Piner Construction was not Plaintiff’s
statutory employer pursuant to N.C.G.S. § 97-19. Accordingly, we affirm the
judgment of the Industrial Commission.
AFFIRMED.
Judges CALABRIA and STROUD concur.
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