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Lowery v. Locklear Construction3/2/1999
Appeal by plaintiff and defendants from Opinion and Award filed 9 September 1997 by the North Carolina Industrial Commission. Heard in the Court of Appeals 26 January 1999.
Hartford Underwriters Insurance Company (Defendant-carrier), Locklear Construction (Defendant-employer) (collectively, Defendants), and Gary Lowery (Plaintiff) appeal from the North Carolina Industrial Commission's (Commission) Opinion and Award ordering Defendants to pay Plaintiff temporary disability compensation.
While being transported to work on 7 April 1995, Plaintiff was involved in an automobile accident and sustained injuries to his knees and back.
Plaintiff filed a Notice of Accident (Form 18) with the Commission on 17 July 1995, and the matter was heard before Deputy Commissioner Phillip Holmes on 12 June 1996, who allowed the parties time to take the deposition of Dr. Dixon Gerber, one of Plaintiff's medical care providers. On 25 November 1996, the Deputy Commissioner entered an Opinion and Award ordering both Defendants to pay Plaintiff temporary total disability compensation from 7 April 1995 through 2 October 1995. In his Opinion and Award, the Deputy Commissioner also noted the stipulations of all the parties: (1) "The parties are subject to and bound by the provisions of the North Carolina Workers' Compensation Act"; (2) "An employee-employer relationship existed between [Plaintiff] and [Defendant-employer] on April 7, 1995"; and (3) "[Defendant-carrier] was the carrier on the risk at the time of the alleged injury."
On 27 November 1996, Plaintiff filed notice of appeal to the Commission, and filed his application for review on 1 April 1997. On 7 May 1997, Defendants filed, and served on Plaintiff, a "Motion To Submit Additional Evidence To The Full Commission," containing, inter alia, the following declarations: (1) "Based on information available to [Defendant-carrier] at the time of the hearing, [Defendant-carrier] stipulated that [Plaintiff] was an employee of [Defendant-employer] when he was actually an employee of Carl Locklear"; (2) Neither Plaintiff nor "Carl Locklear has [ever] worked for [Defendant-employer]"; (3) "Carl Locklear is a subcontractor of Great American Homes, Inc. . . . does not have workers' compensation insurance"; and (4) "Great American Homes, Inc. has workers' compensation insurance through the Maryland Insurance Group." Defendant-carrier also requested the Commission substitute "Carl Locklear and Great American Homes, Inc. as parties to this action."
Defendants' motion also included affidavits from Keith Locklear and Sandra Conner. In his affidavit, Keith Locklear swore: (1) Keith Locklear was "the owner of [Defendant-employer]"; (2) "[Defendant- employer has] its workers' compensation coverage through [Defendant- carrier]"; (3) "Plaintiff . . . has never worked for [Defendant-employer and] Carl Locklear, who represented that he owned [Defendant-employer], has never worked for [Defendant-employer]"; (4)"[Defendant-employer] builds decks and prepares inside trim for houses . . . has never been engaged in the business of roofing"; and (5) Keith Locklear did not become aware "that [Plaintiff] claimed that he was an employee of [Defendant-employer until he] received the Opinion and Award from the Deputy Commissioner."
Sandra Conner, in her affidavit, swore: (1) She is employed by Defendant-carrier to investigate workers' compensation claims; (2) She "was notified of the workers' compensation claim arising out of [Plaintiff's] accident . . . by receipt of a Form 18 which was forwarded to by the Industrial Commission"; (3) "Based on the information provided to through the Industrial Commission in the Form 18, contacted
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