{ "id": 12128357, "name": "TAMMY LYNN McCOWN, Administratrix of the Estate of James Robert McCown, Deceased Employee, Plaintiff v. CURTIS HINES, Employer, Defendant, and MIKE HINES d/b/a MIKE HINES HEATING AND AIR CONDITIONING, Employer, and N.C. HOME BUILDERS SELF-INSURED FUND, INC., Defendants", "name_abbreviation": "McCown v. Hines", "decision_date": "2000-11-07", "docket_number": "No. COA99-1120", "first_page": "440", "last_page": "450", "citations": [ { "type": "official", "cite": "140 N.C. App. 440" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "374 S.E.2d 472", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "474" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526907 ], "year": 1988, "pin_cites": [ { "page": "345" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0341-01" ] }, { "cite": "29 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1944, "pin_cites": [ { "page": "140" } ], "opinion_index": 0 }, { "cite": "224 N.C. 11", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8594820 ], "year": 1944, "pin_cites": [ { "page": "16" } ], "opinion_index": 0, "case_paths": [ "/nc/224/0011-01" ] }, { "cite": "364 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "437" }, { "page": "437", "parenthetical": "\"[P]ayment by a unit of time ... is strong evidence that [plaintiff] is an employee.\"" } ], "opinion_index": 0 }, { "cite": "321 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2571983 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "384" }, { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0380-01" ] }, { "cite": "221 S.E.2d 257", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "261" } ], "opinion_index": 0 }, { "cite": "289 N.C. 212", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567631 ], "year": 1976, "pin_cites": [ { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0212-01" ] }, { "cite": "517 S.E.2d. 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "917", "parenthetical": "citations omitted" }, { "page": "918", "parenthetical": "\"When valuable equipment is furnished for use of a worker, an employee relationship almost 'invariably' is established.\"" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 428", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11145160 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "430", "parenthetical": "citations omitted" }, { "page": "432" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0428-01" ] }, { "cite": "141 S.E.2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "282" } ], "opinion_index": 0 }, { "cite": "264 N.C. 168", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571898, 8571940 ], "year": 1965, "pin_cites": [ { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0168-01", "/nc/264/0168-02" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" } ], "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 97-86", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 1 }, { "cite": "293 S.E.2d 167", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "169", "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "306 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568700 ], "year": 1982, "pin_cites": [ { "page": "359-60", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/306/0357-01" ] }, { "cite": "489 S.E.2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "378", "parenthetical": "1997" }, { "page": "379" }, { "page": "378" } ], "opinion_index": 1 }, { "cite": "347 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551278 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "130" }, { "page": "133" } ], "opinion_index": 1, "case_paths": [ "/nc/347/0126-01" ] }, { "cite": "165 S.E. 696", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1932, "opinion_index": 1 }, { "cite": "203 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607029 ], "year": 1932, "opinion_index": 1, "case_paths": [ "/nc/203/0247-01" ] }, { "cite": "266 S.E.2d 35", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "parenthetical": "where plaintiff painter and carpenter was held to be an employee, even though his level of skill required very little supervision" }, { "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "46 N.C. App. 817", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553986 ], "year": 1980, "pin_cites": [ { "parenthetical": "where plaintiff painter and carpenter was held to be an employee, even though his level of skill required very little supervision" } ], "opinion_index": 1, "case_paths": [ "/nc-app/46/0817-01" ] }, { "cite": "296 S.E.2d 3", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "held that plaintiff carpenter was an employee despite his being highly skilled and not requiring specific instructions on how to do the job" } ], "opinion_index": 1 }, { "cite": "59 N.C. App. 165", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525943 ], "year": 1982, "pin_cites": [ { "parenthetical": "held that plaintiff carpenter was an employee despite his being highly skilled and not requiring specific instructions on how to do the job" } ], "opinion_index": 1, "case_paths": [ "/nc-app/59/0165-01" ] }, { "cite": "29 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "413 S.E.2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "925" } ], "opinion_index": 1 }, { "cite": "105 N.C. App. 509", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524060 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "514" } ], "opinion_index": 1, "case_paths": [ "/nc-app/105/0509-01" ] }, { "cite": "367 S.E.2d 923", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 1 }, { "cite": "322 N.C. 116", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516320, 2516257, 2517703, 2518312, 2513983 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/nc/322/0116-05", "/nc/322/0116-01", "/nc/322/0116-03", "/nc/322/0116-02", "/nc/322/0116-04" ] }, { "cite": "374 S.E.2d 472", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1988, "pin_cites": [ { "page": "474", "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "92 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526907 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "345" } ], "opinion_index": 1, "case_paths": [ "/nc-app/92/0341-01" ] }, { "cite": "29 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1944, "opinion_index": 1 }, { "cite": "224 N.C. 11", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8594820 ], "weight": 6, "year": 1944, "opinion_index": 1, "case_paths": [ "/nc/224/0011-01" ] }, { "cite": "364 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1988, "pin_cites": [ { "page": "433, 437" }, { "page": "439" }, { "page": "437" }, { "page": "439" } ], "opinion_index": 1 }, { "cite": "321 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2571983 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "380, 384" }, { "page": "387" }, { "page": "384" }, { "page": "387" } ], "opinion_index": 1, "case_paths": [ "/nc/321/0380-01" ] } ], "analysis": { "cardinality": 999, "char_count": 24462, "ocr_confidence": 0.755, "pagerank": { "raw": 8.419911805454092e-08, "percentile": 0.48358398501225364 }, "sha256": "d7d7304358849ac95daafce582d410e105140cab372d8f4ebf02021e7b01fb4b", "simhash": "1:2785654895bb259f", "word_count": 4025 }, "last_updated": "2023-07-14T16:18:32.795698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUNTER concurs.", "Judge WALKER dissents." ], "parties": [ "TAMMY LYNN McCOWN, Administratrix of the Estate of James Robert McCown, Deceased Employee, Plaintiff v. CURTIS HINES, Employer, Defendant, and MIKE HINES d/b/a MIKE HINES HEATING AND AIR CONDITIONING, Employer, and N.C. HOME BUILDERS SELF-INSURED FUND, INC., Defendants" ], "opinions": [ { "text": "LEWIS, Judge.\nDefendants Mike Hines d/b/a Mike Hines Heating and Air Conditioning and N.C. Home Builders Self-Insured Fund, Inc. appeal from an Opinion and Award of the North Carolina Industrial Commission granting plaintiff James Robert McCown permanent and total disability compensation. Defendants contend the Commission erred in (1) classifying plaintiff as an employee rather than an independent contractor, and (2) setting plaintiffs average weekly wage at $400. We reverse the decision of the Industrial Commission.\nOn 8 April 1996, plaintiff James McCown was re-roofing a rental house on Sixth Street in Smithfield, North Carolina. As he attempted to leave the roof by a ladder leaning against the house, he fell, suffering a spinal cord injury which paralyzed him from the waist down. Although Mike Hines owned the rental house on Sixth Street, plaintiff had been contacted by defendant Curtis Hines, Mike Hines\u2019 father, to do the roofing work. Plaintiff had installed several roofs for Curtis Hines in 1995, and in 1995 and 1996, did roofing work for numerous persons in the Smithfield area. At the time of the accident, plaintiff had been in the construction business for twenty years, and roofing work for ten.\nFollowing his injury, plaintiff filed a Workers\u2019 Compensation claim with the Industrial Commission in March 1997, ultimately seeking coverage from the defendants. On 5 March 1998, a compensation hearing was held before Deputy Commissioner Edward Garner, Jr. At the parties\u2019 request, the Deputy Commissioner ruled only on the issue of compensability and not on the issue of plaintiff\u2019s medical condition. On 19 June 1998, the Deputy Commissioner filed an Opinion and Award dismissing plaintiff\u2019s claim for lack of jurisdiction. In his opinion, the Deputy made findings of fact and concluded as a matter of law, that plaintiff was not an employee of Curtis Hines, Mike Hines or Mike Hines Heating and Air Conditioning at the time of the accident. Plaintiff appealed to the Full Commission. On 18 May 1999, the Full Commission reversed this determination, finding that Mike Hines\u2019 heating and air conditioning business and his rental properties were one company, that Curtis Hines was an agent of Mike Hines, that defendants retained the right to control the details of plaintiff\u2019s work, and concluding plaintiff was an employee of Mike Hines d/b/a Mike Hines Heating and Air Conditioning.\nDefendants first contend the Commission erred in concluding that, at the time of the accident, plaintiff was an employee rather than an independent contractor. It is well established that in order for a claimant to recover under the Workers\u2019 Compensation Act, an employer-employee relationship must exist at the time of the claimant\u2019s injury. Askew v. Tire Co., 264 N.C. 168, 170, 141 S.E.2d 280, 282 (1965).\nWhether an employer-employee relationship exists is a jurisdictional issue and unlike most findings by the Commission, \u201cfindings of jurisdictional fact . . . are not conclusive, even when supported by competent evidence.\u201d This Court thus must \u201creview the evidence of record\u201d and make an independent determination of plaintiff\u2019s employment status, guided \u201cby the application of ordinary common law tests.\u201d\nBarber v. Going West Transp., Inc., 134 N.C. App. 428, 430, 517 S.E.2d. 914, 917 (1999) (citations omitted). Thus, this Court \u201chas 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.\u201d Lucas v. Stores, 289 N.C. 212, 218, 221 S.E.2d 257, 261 (1976). The burden of proof on this issue falls on the claimant. Id.\nOur courts have defined an independent contractor as \u201cone who 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.\u201d Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 384, 364 S.E.2d 433, 437 (1988). 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 performed, the relationship is one of employer and employee. Id. There are generally eight factors which indicate classification as an independent contractor:\nThe 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.\nHayes v. Elon College, 224 N.C. 11, 16, 29 S.E.2d 137, 140 (1944). No one factor is determinative. Id. Considering several of the foregoing factors in light of this case, we conclude plaintiff was an independent contractor at the time of the accident.\nMost notably, plaintiffs occupation as a roofer required special skill and training, and plaintiff had independent use of his skill and training in the execution of his work. Neither Curtis nor Mike Hines had any personal experience in the installation of roofs, and plaintiff was given almost no instruction to that effect. Although Curtis Hines required plaintiff to use mismatched shingles and instructed him as to the placement of these shingles, \u201cthe fact that a worker is supervised to the extent of seeing that his work conforms to plans and specifications does not change his status from independent contractor to employee.\u201d Ramey v. Sherwin-Williams Co., 92 N.C. App. 341, 345, 374 S.E.2d 472, 474 (1988). In all, supervision over the plaintiff\u2019s work was minimal. Plaintiff had \u201cvery little\u201d conversation with Mike Hines before and during the roofing project. He was allowed full discretion as to placement of tow boards, the correct number and positioning of the nails into the shingles and the proper overlapping of the shingles. While Curtis Hines viewed plaintiffs work from the ground, neither Curtis nor Mike ever got on the roof to inspect plaintiffs work.\nAdditionally, although Curtis Hines provided nails and tarpaper, plaintiff furnished his own truck, ladder, and several tools, including a hammer and nail apron, for the job. See, e.g., Barber, 134 N.C. App. at 432, 517 S.E.2d at 918 (\u201cWhen valuable equipment is furnished for use of a worker, an employee relationship almost \u2018invariably\u2019 is established.\u201d) (citation omitted).\nAs to payment for the roofing job, plaintiff failed to establish he was paid on a per hour basis. See, e.g., Youngblood, 321 N.C. at 384, 364 S.E.2d at 437 (\u201c[P]ayment by a unit of time ... is strong evidence that [plaintiff] is an employee.\u201d). Plaintiff testified he \u201cwould assume that [he and Curtis Hines] probably did not\u201d discuss payment. (Tr. at 39.) Mike Hines also maintained there was no discussion as to payment. Mike Hines ultimately compensated plaintiff in the amount of $170 for 17 hours of work; however, there was never any discussion as to the derivation of this amount. Significantly, in the past, plaintiff had been consistently compensated on a per square or flat fee basis in performing roofing work for Curtis Hines and others in the community. Gary Beasley, who completed the roofing job after plaintiffs accident, was paid on a per square basis.\nAdditionally, plaintiff essentially set his own hours and determined his own working schedule. Defendants set forth no requirements that plaintiff be present at certain times or on certain days. Neither has plaintiff made any showing that he was in the regular employment of either Mike or Curtis Hines. Although plaintiff performed flooring and roofing work for Curtis Hines in 1995, Curtis Hines paid plaintiff on a per square basis and there was no indication that Curtis Hines retained the right of control over plaintiff during the course of these projects.\nAbsent any other direct evidence of control over plaintiff, we conclude plaintiff has failed to meet his burden of establishing that an employer-employee relationship existed at the time of the accident. Accordingly, the Opinion and Award of the Industrial Commission is reversed. We need not address defendant\u2019s remaining arguments.\nReversed.\nJudge HUNTER concurs.\nJudge WALKER dissents.", "type": "majority", "author": "LEWIS, Judge." }, { "text": "Judge Walker\ndissenting.\nI respectfully dissent from the majority opinion concluding that plaintiff was an independent contractor at the time of the accident. While there are some factors under Hayes v. Board of Trustees, 224 N.C. 11, 29 S.E.2d 137 (1944) which would establish that plaintiff was an independent contractor, I believe the greater weight of the evidence supports an employer and employee relationship.\nThe majority correctly states that whether a worker is an independent contractor or employee depends on the employer\u2019s retaining \u201cthe right to control and direct the manner in which the details of the work are to be executed\u201d and one who is accountable to his employer only for the result of his work and not his judgment or methods used. Youngblood v. North State Ford Truck Sales, 321 N.C. at 380, 384, 364 S.E.2d at 433, 437, rehearing denied, 322 N.C. 116, 367 S.E.2d 923 (1988). The test is further elaborated upon in Cook v. Morrison, 105 N.C. App. 509, 514, 413 S.E.2d 922, 925 (1992), in which this Court stated:\nAn owner, who wants to get work done without becoming an employer, is entitled to as much control of the details of the work as is necessary to ensure that he gets the end result from the contractor that he bargained for. In other words, there may be a control of the quality or description of the work itself, as distinguished from the control of the person doing it, without going beyond the independent contractor relation.\nId., citing 1C A. Larson, The Law of Workers\u2019 Compensation \u00a7 44.21 (1991) (emphasis added).\nUnder the second factor of the eight factor Hayes test, the majority first concludes that plaintiff\u2019s independent use of his \u201cspecial skill and training\u201d in roofing work, and defendants\u2019 lack of the same supports plaintiff\u2019s status as an independent contractor. Hayes, 224 N.C. 11, 29 S.E.2d 140. However, a different result was reached in Youngblood, where our Supreme Court held that employers don\u2019t lose their right to \u201c. . . control the [worker\u2019s] conduct and to intervene\u201d because the worker is a \u201cspecialist\u201d and has \u201cextensive experience.\u201d Youngblood, 321 N.C. at 387, 364 S.E.2d at 439. Likewise in the instant case, plaintiff had done various jobs for twenty years, including carpentry, roofing and painting. However, being known in his community as a roofing \u201cspecialist\u201d with \u201cextensive experience\u201d did not render him an independent contractor. Id.\nMoreover, the record indicates that plaintiffs use of his independent skill, knowledge, or training was limited while roofing for defendants. First, each time shingles arrived at the work site, plaintiff was ordered by Curtis Hines to stop what he was doing and help unload the shingles from the trailer. Second, plaintiff was told that because the shingles were old and of different types and colors, he needed to help sort them out. Third, once sorted, he was told to use only certain ones, even though it would result in an unsightly, mix-matched pattern. Fourth, Curtis Hines instructed plaintiff as to where to place the shingles. Another example of the close supervision plaintiff received took place on the day of his injury: When inclement weather was approaching, Curtis Hines ordered plaintiff to rush and \u201cget it [tar] papered before it rains on you.\u201d Defendants\u2019 control over plaintiff therefore exceeded the mere result of his work, as he was accountable to defendants for the details and method of his work. Thus, the measure of control defendants exerted over plaintiff evidenced a relationship of employer and employee. Youngblood, 321 N.C. at 384, 364 S.E.2d at 437.\nMoreover, the majority cites Cf. Ramey v. Sherwin-Williams Co., 92 N.C. App. 341, 374 S.E.2d 472 (1988) for the proposition that supervision to the extent a laborer\u2019s work conforms to plans and specifications does not indicate that the laborer is an employee. However, the defendant in Ramey, who was found to be an independent contractor, exercised much more freedom as to the details and method of his work than the plaintiff in this case. Id. For example, this Court found in Ramey that \u201c. . . plaintiff\u2019s occupation as a carpet and vinyl installer required special skill and training, and plaintiff had considerable leeway in the manner in which he did his job. He chose the materials to attach the carpet to the floor, and selected and purchased his own tools. Plaintiff also had some discretion in how the carpet was to be laid as long as he met basic industry standards. . . .\u201d Ramey, 92 N.C. App. at 345, 374 S.E.2d at 474 (emphasis added).\nThis case is also distinguishable from Ramey because the plaintiff here could not use his own best judgment when he was instructed to mix-match shingles of different types, shapes and colors. At trial, plaintiff expressed the following reservations regarding the methods that defendants insisted on:\nQ: . . . Did you have any concerns about the shingles?\nA: Yeah. I didn\u2019t like putting on three different kinds. There was three. There was brown shingles and [the] black and then there was, you know, dimensional shingles, and I don\u2019t \u2014 That\u2019s something I\u2019ve never done, and it kind of looks bad on my job, you know. If somebody comes by and looks at it and [says], \u2018[w]ell, who did this house,\u2019 it [doesn\u2019t] really help you, if you know what I\u2019m talking about.\nFurthermore, the plaintiff in this case did not furnish valuable equipment to the work site as opposed to the plaintiff in Ramey. Id. The record indicates that plaintiff did not own a truck, but used a borrowed one. Further, the truck was not used for the roofing job other than to transport plaintiff to and from the job site. Although plaintiff brought his own hammer and nail apron to the job site, he did not purchase or bring any roofing shingles, as is the custom for independent roofing contractors. Defendants selected, purchased and delivered the shingles to the job site. Moreover, whenever plaintiff ran out of roofing materials, he would inform defendant Curtis Hines who would arrange for another delivery.\nEven if the majority is correct in finding that plaintiff received \u201cminimal\u201d supervision from defendants, such conclusion is not fatal to plaintiff\u2019s status as an employee. Our Supreme Court in Youngblood stated \u201cthe fact that a claimant is skilled in his job and requires very little supervision is not in itself determinative\u201d of whether the claimant is an employee or an independent contractor. Youngblood, 321 N.C. at 387, 364 S.E.2d at 439, citing Durham v. McLamb, 59 N.C. App. 165, 296 S.E.2d 3 (1982) (held that plaintiff carpenter was an employee despite his being highly skilled and not requiring specific instructions on how to do the job); Lloyd v. Jenkins Context Co., 46 N.C. App. 817, 266 S.E.2d 35 (1980) (where plaintiff painter and carpenter was held to be an employee, even though his level of skill required very little supervision). It was further explained in Youngblood that \u201c[i]f the employer has the right of control, it is immaterial whether he actually exercises it.\u201d Id. Moreover, \u201c[n]onexercise [of right of control] can often be explained by the lack of occasion for supervision of the particular employee, because of his competence or experience.\u201d Id. (emphasis added) (citation omitted).\nAs to the first prong of the Hayes test, plaintiff did not operate an independent business notwithstanding his work of doing various jobs around the community, many of which involved the installation of roofs. Hayes, 224 N.C. 11, 29 S.E.2d 137. The record indicates that he had no office, no business telephone number, no employer tax identification number, no continuing business obligations, no equipment specifically for roofing, no advertising, and did not incur any significant expenses. Plaintiffs only equipment consisted of a hammer and nail apron. He had previously worked for Curtis Hines numerous times doing various jobs, such as carpentry, roofing, flooring, and ripping out windows. The fact that plaintiff did not work exclusively as a roofer and did not hold himself out as having a roofing business supports his status as an employee.\nAs to the third prong of the Hayes test, the evidence in the record contradicts the majority\u2019s conclusion that defendants never hired workers by the hour. Hayes, 224 N.C. 11, 29 S.E.2d 137. Notwithstanding testimony of Gary Beasley (Beasley) that he was paid on a quantitative basis per square and that roofers seldom get paid on an hourly basis, Beasley also admitted that he had worked a few hourly roofing jobs \u201clast year.\u201d In addition, plaintiff testified that Curtis Hines had paid him $11.00 per hour in the past but that on some roofing jobs he was paid by the square. Furthermore, when Mike Hines was asked to explain at trial how he arrived at the $170.00 amount paid to plaintiff after the injury, he was unable to relate this amount to any quantitative basis, stating that he did not know the exact number of squares plaintiff had installed.\nThe facts in this case as applied to the sixth prong of the Hayes test also indicate that plaintiff was an employee. Hayes, 224 N.C. 11, 29 S.E.2d 137. In Cook, a worker who was found by this Court to be an independent contractor, testified that he normally used his own employees to assist him in his job and that he had hired several employees for the job giving rise to plaintiffs injury. Cook, 105 N.C. App. 509, 413 S.E.2d 922. This is in contrast to the instant case where plaintiff did not hire any workers to help in the roofing job. Further, the evidence supports the Commission\u2019s finding that: \u201c... plaintiff did not have the ability to hire [workers]. . . without getting the express consent of Curtis or Mike Hines because he did not have the financial ability to pay [workers].\u201d\nAs to the eighth prong of the Hayes test, plaintiff testified that although he was not told specific hours to follow, he did not feel that he had the freedom to come and go as he pleased, since he \u201cwould have been fired.\u201d Hayes, 224 N.C. 11, 29 S.E.2d 137.\nBased on the foregoing, plaintiff sufficiently carried his burden of proof in establishing that at the time of this accident, an employer and employee relationship existed between him and defendants. Id.\nBecause of the foregoing conclusion, I next address whether the award granted plaintiff by the Full Commission (Commission) was proper. The Commission\u2019s computation of the average wage is conclusive and binding on appeal if there are any facts to support its findings. Munford v. Constr. Co., 203 N.C. 247, 165 S.E. 696 (1932); see also McAnich v. Buncombe County Schools, 347 N.C. 126, 489 S.E.2d 378 (1997). \u201cAppellate review of opinions and awards of the Industrial Commission is strictly limited to the discovery and correction of legal errors.\u201d Godley v. County of Pitt, 306 N.C. 357, 359-60, 293 S.E.2d 167, 169 (1982) (citations omitted); see also N.C. Gen. Stat. \u00a7 97-86 (1999).\nIn granting plaintiffs award, the Commission concluded:\n8. Due to the short period of employment by the plaintiff, traditional methods of computation of the average weekly wage would be unfair to the parties; therefore, the average weekly wage is based on the testimony of Mr. Beasley, in which he stated an hourly rate of $10.00 per hour for work similar to that of the plaintiff, for an average weekly wage rate of $400.00 per week. N.C. Gen. Stat. \u00a7 97-2(5).\nThus, it appears that the Commission used the third method of computation under N.C. Gen. Stat. \u00a7 97-2(5), which provides in part:\n. . . Where, by reason of a shortness of time during which the employee has been in the employment of his employer or the casual nature or terms of his employment, it is impractical to compute the average weekly wages as above defined, regard shall be had to the average weekly amount which during the fifty-two weeks previous to the injury was being earned by a person of the same grade and character employed in the same class of employment in the same locality or community.\nN.C. Gen. Stat. \u00a7 97-2(5) (1999).\nOur Supreme Court has held that \u201c[u]ltimately, the primary intent of this statute is that results are reached which are fair and just to both parties.\u201d McAnich, 347 N.C. at 130, 489 S.E.2d at 378 (1997) (citations omitted). Otherwise, the fifth method must be used, which provides:\nBut where for exceptional reasons the foregoing would be unfair, either to the employer or employee, such other method of computing average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.\nId.\\ N.C. Gen. Stat. \u00a7 97-2(5).\nIn the instant case, the Commission used an hourly rate of a similarly employed person. However, our Supreme Court has held that the computation of an award based upon average weekly wages is limited to only \u201c. . . the earnings of the injured employee in the employment in which he was working at the time of the injury[,]\u201d and thus bars the inclusion of wages or income earned in other employment or work. McAnich, 347 N.C. at 133, 489 S.E.2d at 379. In the instant case, it appears that the Commission\u2019s computation was not limited to the work plaintiff performed for defendants, but was also based on the average hourly wage of roofers. I would vacate the award and remand the matter for a rehearing on benefits due plaintiff. The Commission should determine the total wages plaintiff earned from defendants during the 52-week period preceding his injury, as there was evidence that he worked for defendants in 1995. The emphasis in this statute is that the award must be fair and just to both parties. Id. at 130, 489 S.E.2d at 378.", "type": "dissent", "author": "Judge Walker" } ], "attorneys": [ "The Jemigan Law Firm, by Leonard T. Jemigan, Jr. and Tivey E. Clark, and Wilkins & Wellons, by Allen Wellons, for the plaintiff-appellee.", "Cranfill, Sumner & Hartzog, L.L.P., by Susan K. Burkhart, for the defendant-appellants." ], "corrections": "", "head_matter": "TAMMY LYNN McCOWN, Administratrix of the Estate of James Robert McCown, Deceased Employee, Plaintiff v. CURTIS HINES, Employer, Defendant, and MIKE HINES d/b/a MIKE HINES HEATING AND AIR CONDITIONING, Employer, and N.C. HOME BUILDERS SELF-INSURED FUND, INC., Defendants\nNo. COA99-1120\n(Filed 7 November 2000)\nWorkers\u2019 Compensation\u2014 employer-employee relationship\u2014 jurisdiction\nThe Industrial Commission erred by concluding that plaintiff roofer was an employee rather than an independent contractor at the time of his accident and by awarding plaintiff permanent and total disability compensation under the Workers\u2019 Compensation Act, because: (1) plaintiffs occupation as a roofer required special skill and training, and plaintiff had independent use of his skill and training in the execution of his work; (2) although defendant employers required plaintiff to use mismatched shingles and instructed plaintiff as to the placement of those shingles, the fact that a worker is supervised to make sure his work conforms to plans and specifications does not change his status from independent contractor to employee; (3) supervision over plaintiffs work was minimal; (4) although defendants provided nails and tarpaper, plaintiff furnished his own truck, ladder, and several tools including a hammer and nail apron for the job; (5) plaintiff failed to establish he was paid on a per hour basis, and plaintiff was paid on a per square or flat fee basis as was the person who completed the roofing job after plaintiffs accident; (6) plaintiff essentially set his own hours and determined his own working schedule, and defendants set forth no requirements that plaintiff be present at certain times or on certain days; and (7) although plaintiff performed flooring and roofing work for defendants in 1995, there was no indication that defendants retained the right of control over plaintiff during the course of these projects.\nJudge Walker dissenting.\nAppeal by defendants from Opinion and Award of the North Carolina Industrial Commission entered 18 May 1999. Heard in the Court of Appeals 16 August 2000.\nThe Jemigan Law Firm, by Leonard T. Jemigan, Jr. and Tivey E. Clark, and Wilkins & Wellons, by Allen Wellons, for the plaintiff-appellee.\nCranfill, Sumner & Hartzog, L.L.P., by Susan K. Burkhart, for the defendant-appellants." }, "file_name": "0440-01", "first_page_order": 472, "last_page_order": 482 }