An unpublished opinion of the North Carolina Court of Appeals does not constitute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.


               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA14-1001

                                    Filed: 5 May 2015

North Carolina Industrial Commission, I.C. No. X93563

RONALD DEAN STATON, Plaintiff,

              v.

JOSEY LUMBER CO., INC.,


             and


FORESTRY MUTUAL INSURANCE CO., Carrier, Defendants.


       Appeal by plaintiff from opinion and award entered 17 June 2014 by the North

Carolina Industrial Commission. Heard in the Court of Appeals 4 February 2015.


       Riddle & Brantley, L.L.P., by Jonathan M. Smith, for plaintiff-appellant.

       Lewis & Roberts, P.L.L.C., by Sarah C. Blair and J. Timothy Wilson, for
       defendant-appellees.


       DIETZ, Judge.


       Plaintiff Ronald Dean Staton injured his left leg and foot when he fell off

scaffolding while welding at Josey Lumber Company.               Staton filed a workers’

compensation claim with the North Carolina Industrial Commission, but the

Commission found that Staton was an independent contractor, not an employee of
                        STATON V. JOSEY LUMBER CO., ET AL.

                                  Opinion of the Court



Josey Lumber. Thus, the Commission concluded that it did not have jurisdiction to

hear the claim.

      Staton appeals to this Court arguing that the Commission erred in

determining that he was an independent contractor and not an employee.

      We affirm. Staton worked most of his life as a contract welder. He identified

himself as an independent welding business on social media. Josey Lumber hired

him to perform a specific project estimated to last 2-3 weeks. The company did not

require him to punch in and out on the time clock used by the company’s employees

and he was not bound by the normal operating hours of the mill. He brought most of

his own welding equipment. He used his own skill and expertise and his welding

work was not done under the supervision or instruction of anyone at Josey Lumber.

In light of these facts, we hold that Staton was an independent contractor and not an

employee of Josey Lumber.     Accordingly, we affirm the Industrial Commission’s

conclusion that it lacked jurisdiction to hear Staton’s workers’ compensation claim.

                         Facts and Procedural History

      Plaintiff Ronald Dean Staton earned his basic welding certificate from Halifax

Community College in 1995 and has worked as a welder ever since. Staton mostly

worked shutdown jobs, where a company would temporarily close down in order for

contractors to make necessary repairs and upkeep to machinery at the plant. The

shutdown jobs lasted a few days and then Staton would move on to the next job. In



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                                  Opinion of the Court



performing this type of work, Staton typically would work four or five months out of

the year.

      Staton called himself a contractor on his Facebook page. He stated that “[m]ost

everyone knows I’m a welder. I travel alot chasing jobs. I do shutdown work. That

is when a company takes off a week or so and contractors go in and fix whatever is

broke.”

      Josey Lumber Company is a hardwood sawmill located in Scotland Neck,

North Carolina. Joey Josey, the founder and president of the company, works with

his two sons, Tripp and Logan, who both serve as vice presidents. Josey Lumber

maintains about thirty full-time employees consisting of general laborers, machine

operators, and maintenance supervisors. The employees work set hours Monday

through Friday regardless of the weather. Josey Lumber has never employed a full-

time welder.

      Looking to expand the business, Josey Lumber purchased a hopper, boiler, and

drying kiln to be installed on the property. Josey Lumber purchased the boiler and

drying kiln directly from the manufacturing companies with the purchase price

including installation by the company. The hopper, however, was purchased second-

hand at an auction, and Josey Lumber needed a welder to reassemble and install the

hopper on its property.




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                                   Opinion of the Court



      In early March 2012, a friend of Staton’s informed him that Josey Lumber

Company may need to hire a welder for an upcoming project. Staton spoke with Joey

Josey, who informed him that he was indeed looking for a welder to install a hopper

on the property. Staton agreed to perform the job for $15.00 an hour. Staton did not

fill out any paperwork, but Joey Josey told him to come in the next day to start work.

      The next morning, Staton arrived at Josey Lumber with his own welding

shield, chipping hammer, wire brush, and bucket, although he used other welding

equipment provided by Josey Lumber.          Joey Josey showed him the hopper and

explained the order in which he wanted Staton to weld the rings. Staton mostly

worked alone on the hopper, but the Joseys stopped by every so often to make sure

he had everything he needed. Staton did not punch in and out on a time clock used

by Josey Lumber employees. Instead, he kept track of his own hours worked and

reported the totals to Joey or Tripp Josey for payment. Staton also did not work the

same operating hours as regular mill employees, but started his welding work later

in the day and worked on the weekends when the mill was closed.

      On 7 March 2012, around 4:20 p.m., Staton was working alone on the hopper

welding project after the mill had closed for the day. As he sat on top of the scaffolding

finishing a weld, he slipped and fell about twenty feet to the ground. He landed feet

first injuring his left leg and foot and was unable to get up. Staton lay on the ground

for about thirty minutes before Tripp Josey found him and called for help. An



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                                   Opinion of the Court



ambulance took Staton to the local hospital where he was then airlifted to Vidant

Medical Center in Greenville, North Carolina.

      At the hospital, Staton was diagnosed with a left calcaneus fracture extending

to the anterior, middle, and posterior subtalar joints; laceration of his left leg; and a

lumbar strain. In September 2012, Staton also was diagnosed with a medial meniscal

tear and a significant ACL strain resulting from the fall in March. In October 2012,

Staton underwent a left knee arthroscopy which revealed a complete rupture of his

anterior cruciate ligament.

      Staton filed a workers’ compensation claim on 16 March 2012. On 10 April

2012, Josey Lumber denied Staton’s workers’ compensation claim asserting no

employer-employee relationship.

      On 17 June 2014, the Full Commission filed its opinion and award concluding

that no employer-employee relationship existed and that the Industrial Commission

did not have jurisdiction to hear Staton’s claim. Staton appealed to this Court.

                                       Analysis

      Staton argues that the Industrial Commission erred in concluding that he was

not an employee of Josey Lumber. For the reasons discussed below, we affirm the

decision of the Industrial Commission.

      Ordinarily, on appeal of an opinion and award from the Industrial

Commission, our review is limited to determining “whether competent evidence



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supports the Commission’s findings of fact and whether the findings support the

Commission’s conclusions of law.” Estrada v. Timber Structures, Inc., ___ N.C. App.

___, ___, 765 S.E.2d 546, 548 (2014) (internal quotation marks omitted). However,

“[t]o be entitled to maintain a proceeding for workers’ compensation, the claimant

must be, in fact and in law, an employee of the party from whom compensation is

claimed.” Youngblood v. N. State Ford Truck Sales, 321 N.C. 380, 383, 364 S.E.2d

433, 437 (1988). Whether an employer-employee relationship exists in a workers’

compensation case is a jurisdictional question. See id. “When issues of jurisdiction

arise, the jurisdictional facts found by the Commission, though supported by

competent evidence, are not binding on this Court, and we are required to make

independent findings with respect to jurisdictional facts.” Williams v. ARL, Inc., 133

N.C. App. 625, 628, 516 S.E.2d 187, 190 (1999) (internal quotation marks omitted).

The claimant bears the burden of demonstrating that an employer-employee

relationship existed at the time of the accident. McCown v. Hines, 353 N.C. 683, 686,

549 S.E.2d 175, 177 (2001).

      In determining whether a person is an employee or an independent contractor,

our Supreme Court has stated, “[t]he vital test is to be found in the fact that the

employer has or has not retained the right of control or superintendence over the

contractor or employee as to details.” Hayes v. Bd. of Trs. of Elon Coll., 224 N.C. 11,




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                                   Opinion of the Court



15, 29 S.E.2d 137, 140 (1944). The Court also set out eight factors to consider, namely

whether:

             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.

Id. at 16, 29 S.E.2d at 140. No one factor is determinative and all the factors are not

required, but “[t]hey are considered along with all other circumstances to determine

whether in fact” a person is an independent contractor or employee. Id.

      Applying the Hayes factors to this case, we hold that the Industrial

Commission properly determined that Staton was an independent contractor at the

time of his injury. First, Staton was engaged in the independent calling of welding.

He went to school to obtain a certificate in welding and worked as a contract welder

for seventeen years before his injury. On Staton’s own Facebook page he stated,

“[m]ost everyone knows I’m a welder. . . . I do shutdown work. That is when a

company takes off a week or so and contractors go in and fix whatever is broke.”

      Second, Plaintiff had independent use of his special welding skills, knowledge,

and training. Joey Josey instructed Staton on the order of which he wanted items



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                        STATON V. JOSEY LUMBER CO., ET AL.

                                  Opinion of the Court



welded, but did not specify how he wanted Staton to perform the welding work. Joey

Josey’s directions simply stated the priority in which to weld and did not interfere

with Staton’s own exercise of his specialized knowledge regarding welding methods

and procedures. See McCown, 353 N.C. at 687, 549 S.E.2d at 178. Tripp Josey

testified that he did not have the knowledge to supervise Staton in his welding work,

stating, “I don’t know how to do – can’t tell somebody how to do something I don’t

know.” He also stated that both his father and brother were not capable of instructing

Staton on how to weld. Staton also testified that Joey Josey relied on his skills as a

welder to get the job done.

      Third, Staton was paid in a manner that indicates he was an independent

contractor, not an employee. Tripp Josey testified that he expected the hopper project

to last about two weeks, but did not have a definitive time period. Josey Lumber paid

Staton at a rate of $15.00 an hour. Although being paid an hourly rate is more

suggestive of an employee, this is not determinative. See Youngblood, 321 N.C. at

385, 364 S.E.2d at 438. Many consultants and contractors bill their clients by the

hour. Here, all employees of the mill tracked their hours by punching in and out

using a time clock. By contrast, Staton kept track of his own hours and reported them

to Josey Lumber for payment. This different treatment suggests Staton was an

independent contractor, not an employee.




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                         STATON V. JOSEY LUMBER CO., ET AL.

                                   Opinion of the Court



      Fourth, Staton was not subject to discharge for adopting one method of welding

over another. The Joseys did not have any personal knowledge of welding techniques

or experience in welding. As stated earlier, Tripp Josey testified that he was not

capable of instructing anyone on welding or critiquing someone’s welding methods.

The Joseys never inspected the hopper to determine whether Staton’s work complied

with certain welding methods and Staton had full discretion in the manner in which

to perform the welding. Staton testified that he mostly worked alone on the hopper

with the Joseys only stopping by to check on him to make sure he had the supplies

he needed.

      Fifth, Staton was not in the regular employ of Josey Lumber. Staton had never

worked for Josey Lumber before and he was hired to complete one project—welding

the hopper. Staton testified that he was led to believe that the position could be

permanent with the installation of the boiler and drying kiln as well. However, “the

parties’ own conclusion about their legal relationship is not binding on the court.”

Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 584, 350 S.E.2d 83, 88 (1986).

Although Staton testified that he was led to believe there would be more work for him

with the installation of the boiler and drying kiln, Tripp Josey testified that the boiler

and drying kiln projects did not require a welder. Unlike the hopper, which was

purchased second-hand from an auction, the boiler and drying kiln were purchased

from the manufacturing companies and the purchase price included welding and



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                         STATON V. JOSEY LUMBER CO., ET AL.

                                  Opinion of the Court



other installation work by the manufacturer. Thus, Staton’s welding work would not

have been needed on those projects. Staton also did not fill out any employment

paperwork and Josey Lumber did not compile a personnel file on him as it did with

all its employees.

      Sixth, neither party presented any evidence indicating whether Staton would

have been permitted to hire assistants to work on the project. Thus, this factor does

not contribute to the analysis.

      Finally, Staton selected his own time. Although Staton testified that he was

not free to set his own hours, he did not punch in and out on a time clock as the rest

of the Josey Lumber employees. He personally kept track of his own hours and

reported them to either Joey or Tripp Josey. He did not work the normal operating

hours of the mill, often starting work later in the day or working on the weekends.

Unlike the full-time employees who worked regular hours regardless of the weather,

Staton did not come to work if it was raining and arrived late if it was wet outside.

Staton also sometimes stayed past the 4:00 p.m. closing time to finish welding.

Indeed, Staton’s fall and injury at issue in this case occurred around 4:20 p.m., after

the mill closed for the day.

      Taking all these factors into consideration, and considering the entire record

in this case, we hold that Staton has not satisfied his burden of showing that he was

an employee of Josey Lumber. Applying the Hayes factors, we conclude that Staton



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                                        Opinion of the Court



was an independent contractor not subject to the provisions of the Workers’

Compensation Act. Accordingly, the Industrial Commission lacked jurisdiction to

hear his workers’ compensation claim.1

                                          Conclusion

       We hold that Staton failed to meet his burden of demonstrating that he was an

employee of Josey Lumber and not an independent contractor. Because he was not

an employee, the Industrial Commission lacked jurisdiction to hear his workers’

compensation claim. Accordingly, we affirm the opinion and award of the Industrial

Commission.

       AFFIRMED.

       Judges STEELMAN and INMAN concur.

       Report per Rule 30(e).




       1 Staton also contends that the Industrial Commission improperly considered inadmissible
testimony from Tripp Josey concerning the details of Staton’s conversations with Tripp’s father, Joey
Josey. The Industrial Commission sustained Staton’s objections to any such testimony by Tripp Josey
and we do not consider that testimony in our de novo review of the jurisdictional facts.


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