In Bentley v. Jonathan Piner Construction, the N.C. Court of Appeals addressed when a legal issue would be deemed waived by a party. The Court also addressed whether an injured worker was an independent contractor or employee at the time of his accident, and whether the Defendant was a statutory employer.
In Bentley, Plaintiff suffered an eye injury when working on a construction site. Defendants denied the claim, arguing that plaintiff was not an employee. The claim was initially heard by Deputy Commissioner Mary Vilas. However, Deputy Commissioner Vilas did not author an Opinion and Award before she left the Commission. The claim was reassigned and on February 16, 2015, Deputy Commissioner William Shipley filed an Opinion and Award, finding plaintiff was not an employee. Plaintiff appealed to the Full Commission, which came to the same conclusion as Deputy Commissioner Shipley. The Court of Appeals initially rendered an opinion concluding that NCGS §97-84, referred to a deputy commissioner in the singular form, showing the intent of the General Assembly that a single deputy should handle a case to completion. Thus, the Court initially determined §97-84 was violated when the Commission based its opinion and award on an opinion rendered by a deputy commissioner who was not present at the hearing and did not hear evidence. Defendants petitioned the N.C. Court of Appeals for rehearing, which was granted.
Upon rehearing, the N.C. Court of Appeals held that Plaintiff did not preserve his argument regarding the proper interpretation of NCGS §97-84, due to his failure to raise it as a legal issue before the Full Commission. Therefore, this legal issue was deemed waived, and the Court of Appeals did not address this issue.
The Court further agreed that Plaintiff was not an employee, but was instead was an independent contractor. Plaintiff was not subject to discharge because he chose one method of work over another. He was free to use assistants as he pleased. He could work his own hours, and there were other factors which indicated he was an independent contractor.
The Court also determined Defendants were not Plaintiff’s “statutory employer” pursuant to NCGS §97-19. The Court noted §97-19 applies only when two conditions are met: (1) the injured employee must be working for a subcontractor doing work which has been contracted to it by a principal contractor, and (2) the subcontractor must not have workers’ compensation insurance coverage for the injured employee. Ultimately, the Court determined the first condition was not met in this case. Plaintiff provided no evidence of any contract between the relevant parties in this claim. Therefore, the Full Commission’s Opinion and Award denying benefits was affirmed.
Practice Tip: The N.C. Court of Appeals reviewed §97-84 and seemed to indicate a new hearing would be needed in the original Bentley decision, if the deputy commissioner hearing the case left before rendering a decision. The current Bentley decision did not address the §97-84 issues, because this legal issue was deemed waived. However, the N.C. General Assembly enacted revisions to NCGS §97-84 on July 20, 2017. The enacted statute provides, in pertinent part: “if the deputy or member of the Commission that heard the parties at issue and their representatives and witnesses is unable to determine the matters in dispute and issue an award, the Commission may assign another deputy or member to decide the case and issue an award.” This provision applies to claims pending on or after July 20, 2017. Given this legislative change to the statute, there is no longer a concern that cases will need to be reheard if a deputy leaves before rendering a decision.