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Reynolds v. M&M;Contracting11/16/2004
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
M & M Contracting (M & M) is a general construction contractor owned and operated by Bob Melvin (Melvin). James Reynolds (plaintiff) performed siding work with Terry King (King) and Jake Toley (Toley) on a house being built by M & M in May of 2001. Plaintiff worked on two different houses and was paid by thehour in cash. Melvin paid King, and King then paid plaintiff out of the sum. Melvin then asked plaintiff to do some painting in the interior of both houses. They negotiated a price, and plaintiff agreed to do the work. Plaintiff retained King and Toley, and they agreed that the wages would be split three ways evenly. Melvin supplied the paint and supplies. Plaintiff supplied the spray gun painter and a ladder.
As the plaintiff was using the spray gun in one of the houses, the gun jammed. Plaintiff washed the sprayer and still no paint came out of the gun. Plaintiff took the spray gun off the spray rig and when he bent down to pick up the hose, the paint suddenly unclogged and some paint exploded into his left eye. Plaintiff attempted to wash out his eye with water, but noticed blood and paint. King and Toley took plaintiff to the hospital. Plaintiff underwent emergency surgery, but suffered a total loss of vision in that eye. The first treating ophthalmologist (Dr. Weaver) testified that the paint was forcefully injected into and around the eyeball and back through the optic canal and into the plaintiff's brain. Plaintiff also received treatment from Dr. Brasington, who agreed that plaintiff had a total loss of vision in the left eye and recommended that the plaintiff wear safety glasses at all times. Dr. Weaver advised the plaintiff to not be around machinery and equipment and not to be on ladders and scaffolding.
Plaintiff was unable to earn wages from the date of his injury, 6 June 2001 until approximately 12 November 2001. Both doctors agree that plaintiff's condition is permanent. Melvin was notified of plaintiff's injury, and plaintiff requested that Melvin's workers' compensation insurance cover his lost wages. Melvin refused. Plaintiff brought the case to the North Carolina Industrial Commission. Deputy Commissioner Taylor dismissed the claim for lack of jurisdiction. Plaintiff appealed to the Full Commission. The Full Commission entered an opinion that the plaintiff had not shown good ground to reconsider the evidence, receive further evidence, or rehear the parties and their representatives, or amend the opinion and award of the Deputy Commissioner except for minor modifications. From that opinion, plaintiff appeals.
I.
Plaintiff's three assignments of error each center on the Commission's finding that it lacked jurisdiction because the plaintiff was not an employee but was rather an independent contractor.
Whether an employer-employee relationship exists is a jurisdictional issue and, unlike findings by the Commission in an order where jurisdiction is not an issue, "findings of jurisdictional fact . . . are not conclusive, even when supported by competent evidence." This Court must then "review the evidence of record" and make an independent determination of plaintiff's employment status, guided "by the application of ordinary common law tests." Barber v. Going West Transp., Inc., 134 N.C. App. 428, 430, 517 S.E.2d 914, 917 (1999) (citations omitted). Thus, this Court "has the right, and the duty, to make its own independentfindings of such jurisdictional fac
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