             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA16-62-2

                               Filed: 18 July 2017

North Carolina Industrial Commission, I.C. No. 14-721965

THOMAS BENTLEY, Employee, Plaintiff,

            v.

JONATHAN PINER CONSTRUCTION, Alleged Employer, and STONEWOOD
INSURANCE COMPANY, Alleged Carrier, Defendants.


      Appeal by Plaintiff from opinion and award of the North Carolina Industrial

Commission entered 9 October 2015. Originally heard in the Court of Appeals 8

August 2016, with an opinion filed 20 September 2016 vacating the Industrial

Commission’s opinion and award and remanding the case for a new hearing.

Defendants’ petition for rehearing was granted 17 November 2016. Reheard in the

Court of Appeals 6 February 2017. This opinion supersedes and replaces the opinion

filed 20 September 2016.


      Dunn, Pittman, Skinner & Cushman, PLLC, by Rudolph A. Ashton, III; and
      Dodge Jones Law Firm, P.A., by Robert C. Dodge, for Plaintiff-Appellant.

      Dickie, McCamey & Chilcote, P.C., by Michael W. Ballance and Martin R.
      Jernigan, for Defendants-Appellees.

      Smith Moore Leatherwood LLP, by Jeri L. Whitfield, for North Carolina
      Association of Defense Attorneys, amicus curiae.

      Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner; and Law Office of
      David P. Stewart, by David P. Stewart, for Workers’ Injury Law & Advocacy
      Group, amicus curiae.
                       BENTLEY V. JONATHAN PINER CONSTR.

                                 Opinion of the Court



      McGEE, Chief Judge.


      Thomas Bentley (“Plaintiff”) appeals from an opinion and award of the North

Carolina Industrial Commission (“the Commission”) determining he was not an

“employee” of Jonathan Piner Construction (“Piner Construction”), as that term is

used in the North Carolina Workers’ Compensation Act, N.C. Gen. Stat. § 97-1 et seq.

In an opinion published 20 September 2016, this Court determined that the plain

language of N.C. Gen. Stat. § 97-84 (2015) was violated when the Commission based

its opinion and award on an opinion and order by a deputy commissioner who was

not present at the hearing and did not hear the evidence. Bentley v. Piner, ___ N.C.

App. ___, ___, 790 S.E.2d 379, 382 (2016). Defendants petitioned this Court for

rehearing, which we granted. Upon rehearing, we hold that Plaintiff did not preserve

his argument regarding the proper interpretation of N.C.G.S. § 97-84 due to his

failure to raise it before the Commission. We further hold that the Commission did

not err in concluding Plaintiff was not an employee of Piner Construction, nor did it

err in holding that Piner Construction was not Plaintiff’s “statutory employer”

pursuant to N.C. Gen. Stat. § 97-19.      Accordingly, we affirm the order of the

Commission.

                                   I. Background

      In early 2014, Plaintiff and his friend, George Tucker (“Tucker”), were working

“side jobs” in the construction industry in and around Newport, North Carolina. At


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                                         Opinion of the Court



the time, Plaintiff held himself out as the owner and operator of Bentley Construction

and Maintenance (“Bentley Construction”) and had distributed business cards that

advertised his business services as “[r]oofing, siding, painting, pressure washing . . .

[r]emodels and renovations, [and] sheetrock work and repairs.”                        Plaintiff also

operated a website under the Bentley Construction name.

       One day in February 2014, Plaintiff and Tucker were driving around in

Plaintiff’s truck, which had the words “Bentley Construction and Maintenance”

displayed in a decal on its side, looking for work. While driving about, Plaintiff and

Tucker happened upon a jobsite in the Breakwater subdivision in Newport, North

Carolina (the “Breakwater jobsite”).1 Plaintiff pulled his truck over and attempted to

find the person in charge to ask if he and Tucker could work on the Breakwater

jobsite. Plaintiff and Tucker encountered Jonathan Piner (“Piner”), the owner and

operator of Piner Construction.

       Piner Construction was the subcontractor responsible for, inter alia, the

framing of the houses being constructed at the Breakwater jobsite. After talking for

a brief period of time about what type of experience Plaintiff and Tucker had in the

construction industry, Plaintiff handed Piner a Bentley Construction business card




       1   We note that there is some discrepancy in the record about the location and name of the
jobsite at issue. Tucker identified the jobsite as the “Phillips Landing subdivision” in Morehead City,
North Carolina, while Piner identified the jobsite as the “Breakwater subdivision” in Newport, North
Carolina. To avoid confusion and for ease of reading, we will simply refer to the jobsite as the
“Breakwater jobsite.”

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                                     Opinion of the Court



and asked Piner to call if he had any framing work available. Piner responded that

if “some work [came] up . . . that [he] couldn’t put [his] guys on,” he would call

Plaintiff.

       A few weeks later, Piner “felt like [he] might need to make a phone call to

somebody” to assist on the framing job at the Breakwater jobsite because he believed

Piner Construction would not be able to complete all of the framing work. Piner

contacted Plaintiff, and gave him the option of being paid at a fixed price or being

paid by the hour. Plaintiff replied that he would “get back” to Piner on his preferred

method of payment. After hearing from Piner, Plaintiff contacted, among others,

Tucker and Shawn Noling (“Noling”) to request their assistance on the Breakwater

jobsite.

       When Plaintiff, Tucker, and Noling arrived at the Breakwater jobsite to begin

work, Piner produced the blueprints for the house to be constructed.                   Noling

introduced himself to Piner, read the blueprints,2 and then suggested the hourly rate

that each man should be paid: Noling was paid $18.00 per hour, Tucker was paid

$14.00 per hour, and Plaintiff was paid $12.00 per hour. Piner characterized Noling

as the “lead man” and the “man running the show” due to his expertise and experience

in the construction industry, and characterized Plaintiff as the “low man on the totem

pole” due to his relative inexperience. Piner asked Plaintiff if he wanted a single


       2 At the hearing, Noling agreed that he “read the blueprints as a member of [the Bentley
Construction] crew.”

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                                  Opinion of the Court



check written to him for all of the men he had brought with him to work on the

Breakwater jobsite “because [Plaintiff] was operating as [Bentley Construction].”

Plaintiff requested that Piner pay each man individually, and Piner agreed to do so.

      Tucker testified that he, Plaintiff, and Noling were able to set their own hours,

including making decisions about when breaks were to be taken. At the Breakwater

jobsite, Plaintiff brought and used his own tools, including a compressor, a nail gun,

and a “sawzall.”    As the work progressed, Plaintiff, Tucker, and Noling were

“struggling for tools” because the tools brought by Plaintiff were inadequate, so Piner

brought tools from them to use. When Noling realized another worker was needed to

complete the job, he enlisted the help of C.P. Hollingsworth (“Hollingsworth”). Noling

testified that he did not need to ask Piner’s permission to hire Hollingsworth, and

that Plaintiff similarly could have hired another person to work on the Breakwater

jobsite without consulting Piner. Noling also testified that Piner did not instruct him

to frame the house in a specific manner, and that he, Plaintiff, Tucker, and

Hollingsworth used their own special skills, knowledge, and training to frame the

house. According to Noling, Piner was not interested in the method employed to

frame the house, but was only interested in “[t]he finished product.”

      Plaintiff worked as a “cut man” on the Breakwater jobsite. While working on

3 March 2014, Plaintiff was injured when a nail he was prying from a board broke




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                                   Opinion of the Court



loose and struck him in the right eye. As we explained in our previous opinion in this

case,

             [f]ollowing the injury, Plaintiff filed a workers’
             compensation claim with the Commission on 25 March
             2014. Piner Construction, along with its insurance carrier,
             Stonewood Insurance Company (collectively, “Defendants”)
             denied the claim for compensation, contending the injury
             was non-compensable under the Workers’ Compensation
             Act because Plaintiff was not an employee of Piner
             Construction on the date of the accident. The claim was
             assigned for a hearing before Deputy Commissioner Mary
             C. Vilas (“Deputy Vilas”).

Bentley, ___ N.C. App. at ___, 790 S.E.2d at 379. A hearing was held before Deputy

Vilas on 5 December 2014. At the hearing, Tucker, Noling, and Piner testified.

Plaintiff was not present for, and did not testify at, the hearing.

             Near the end of the [5 December 2014] hearing, Deputy
             Vilas suggested that the jurisdictional question of whether
             Plaintiff was an employee of Piner Construction be
             bifurcated from the merits of Plaintiff’s claim, because she
             would no longer be at the Commission after 1 February
             2015. Deputy Vilas noted that she had many cases to
             write, but she would “try” to decide the jurisdictional
             question in the present case before she left the
             Commission. An order bifurcating the jurisdictional and
             merits issues was filed 9 December 2014 by Deputy Vilas,
             and stated that bifurcation “was appropriate given the
             issues for hearing and that medical testimony by
             deposition is not scheduled until 26 January 2015 and
             [Deputy Vilas] will not be at the Commission after 1
             February 2015.” Deputy Vilas filed an order closing the
             record and declaring that the jurisdictional issue was
             “ready for a decision” on 12 January 2015.

             An opinion and order was entered 16 February 2015 by
             Deputy Commissioner William H. Shipley (“Deputy

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                                   Opinion of the Court



             Shipley”). Deputy Shipley concluded as a matter of law
             that the Commission lacked jurisdiction over Plaintiff’s
             claim because he was not an employee of Piner
             Construction at the time his injury was sustained.

Id. at ___, 790 S.E.2d at 379-80. Plaintiff filed a notice of appeal to the Commission

from Deputy Shipley’s order. The Commission acknowledged Plaintiff’s notice of

appeal, and provided Plaintiff with a Form 44. Plaintiff returned the Form 44, which

listed the ways in which Plaintiff believed Deputy Shipley had erred in his opinion

and order. The Commission issued an opinion an award on 9 October 2015 concluding

as a matter of law that: (1) the Commission lacked jurisdiction over Plaintiff’s claim

because he was not an employee of Piner Construction at the time his injury was

sustained; and (2) Piner Construction was not Plaintiff’s “statutory employer”

pursuant to N.C.G.S. § 97-19. Plaintiff appeals.

                                      II. Analysis

      Plaintiff has raised three issues in his appeal to this Court. Plaintiff argues

the Commission erred by: (1) basing its opinion and award on an opinion and order

by a deputy commissioner who was not present at the hearing and did not hear the

evidence; (2) failing to find and conclude that Plaintiff was an employee of Piner

Construction at the time of Plaintiff’s injury; and (3) failing to find and conclude that

Piner Construction should be held liable as a statutory employer pursuant to

N.C.G.S. § 97-19.

                    A. Waiver of N.C. Gen. Stat. § 97-84 Argument


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                                  Opinion of the Court



      We must first consider whether Plaintiff’s argument regarding the proper

interpretation of N.C.G.S. § 97-84 has been preserved for appellate review. Plaintiff

has raised his statutory interpretation argument for the first time in this Court.

Whether N.C.G.S. § 97-84 permits a deputy commissioner to issue an opinion and

award in a case over which the deputy commissioner did not personally preside was

not raised in the evidentiary hearing before Deputy Vilas, was not mentioned nor

decided in the opinion and award filed by Deputy Shipley, and was not an issue

included in Plaintiff’s application for review to the Commission. Generally, a party

may not raise an issue on appeal if that argument was not first raised in the trial

court. N.C.R. App. P. 10(a)(1). Precedents of this Court hold that “where a theory

argued on appeal was not raised before the trial court, the law does not permit parties

to swap horses between courts in order to get a better mount in the appellate courts.”

State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685 (2002) (citations and

quotations omitted); see also Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)

(“the law does not permit parties to swap horses between courts in order to get a

better mount [on appeal].”).

      This prohibition against raising new arguments on appeal not presented to the

trial court in the first instance has been applied by this Court to cases arising from

the Industrial Commission. Floyd v. Exec. Personnel Group, 194 N.C. App. 322, 329,

669 S.E.2d 822, 828 (2008). When a party appeals a deputy commissioner’s opinion



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                                   Opinion of the Court



and award to the Commission within the time permitted, “the full Commission shall

review the award, and, if good ground be shown therefor, reconsider the evidence,

receive further evidence, rehear the parties or their representatives, and, if proper,

amend the award[.]” N.C. Gen. Stat. § 97-85 (2015). After receiving a notice of

appeal, the Commission supplies the appellant with a Form 44 Application for

Review, in which the appellant must “stat[e] the grounds for its appeal ‘with

particularity.’ The appellant must then file and serve the completed Form 44 and an

accompanying brief within the specified time limitations ‘unless the Industrial

Commission, in its discretion, waives the use of the Form 44.’” Cooper v. BHT Enters.,

195 N.C. App. 363, 368, 672 S.E.2d 748, 753 (2009) (citations omitted); see also 04

NCAC 10A .0701(d) (2015).

      In the present case, Plaintiff sent a letter and notice of appeal from Deputy

Shipley’s opinion and order to the Commission. After receiving an acknowledgment

of his appeal, Plaintiff filed a Form 44, along with a brief, neither of which raised the

issue of whether a deputy commissioner may issue an opinion and award when he or

she was not present at the hearing and did not hear the evidence. We hold that

Plaintiff’s failure to raise this issue before the Commission bars his ability to raise it

in this Court in the first instance. Therefore, we deem this argument waived.

                         B. Employee/Employer Relationship




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                                    Opinion of the Court



      Plaintiff argues the Commission erred by concluding that Plaintiff was not an

employee of Piner Construction at the time of the accident. We disagree. In order to

maintain a proceeding for workers’ compensation, “the claimant must have been an

employee of the party from whom compensation is claimed.” McCown v. Hines, 353

N.C. 683, 686, 549 S.E.2d 175, 177 (2001) (citation omitted). “[T]he existence of an

employer-employee relationship at the time of the injury constitutes a jurisdictional

fact.” Id. As our Supreme Court has held,

              the finding of a jurisdictional fact by the Industrial
              Commission is not conclusive upon appeal even though
              there be evidence in the record to support such finding.
              The reviewing court has 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.

Lucas v. Li’l Gen. Stores, 289 N.C. 212, 218, 221 S.E.2d 257, 261 (1976). In Hayes v.

Elon College, 224 N.C. 11, 16, 29 S.E.2d 137, 140 (1944), our Supreme Court set forth

an eight-factor test to guide courts in determining when a plaintiff is an independent

contractor:

              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.


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                                  Opinion of the Court



Hayes, 224 N.C. at 16, 29 S.E.2d at 140 (citations omitted). Not all factors are

required, and no one factor is controlling over another; the Hayes factors “are

considered along with all other circumstances to determine whether in fact there

exists in the one employed that degree of independence necessary to require his

classification as independent contractor rather than employee.” Id. “The claimant

has the burden of proof that the employer-employee relation existed at the time the

injury by accident occurred.” Lucas, 289 N.C. at 218, 221 S.E.2d at 261.

      Applying the Hayes factors to the present case, and considering “all other

circumstances” relevant, we hold the Commission correctly determined that Plaintiff

was an independent contractor, not an employee, of Piner Construction at the time of

his injury. First, Plaintiff was engaged in the independent calling of being a “cut

man” in the framing process, and held himself out as the owner and operator of

Bentley Construction. There was evidence presented at the hearing that Bentley

Construction was more an aspiration than an actual business – Tucker testified that

the business was “a dream” and “a joke” and Noling similarly testified that it was fair

to characterize Bentley Construction as “a dream.” Plaintiff nevertheless distributed

a Bentley Construction business card to Piner, held himself out to Piner as the owner

and operator of Bentley Construction, and placed a Bentley Construction decal on his

truck. Further, Noling testified that when he arrived at the Breakwater jobsite, he

considered himself a part of the Bentley Construction “crew.”        Considering the



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                                  Opinion of the Court



evidence presented, we find that Plaintiff was engaged in an independent business,

calling, or occupation.

      Second, there is no direct evidence regarding whether Plaintiff himself had the

independent use of his special skill, knowledge, or training in the execution of the

work done at the Breakwater jobsite, as Plaintiff did not testify at the hearing.

However, testimony from Noling and Tucker suggests that he did, indeed, have the

independent use of his special skill, knowledge, or training in the execution of the

work done at the Breakwater jobsite. Noling testified Piner did not instruct him on

how to frame the house that was being constructed and that he, as a member of

Bentley Construction, used his own special skills, knowledge, and training to frame

the house. Tucker similarly testified that no one told him how to frame the house

that he, Noling, Hollingsworth, and Plaintiff were helping to construct. This evidence

suggests that Plaintiff, like Noling and Tucker, had the independent use of his special

skill, knowledge or training. At a minimum, Plaintiff has failed to meet his burden

of proof as to this factor. Lucas, 289 N.C. at 218, 221 S.E.2d at 261.

      Third, Piner Construction paid Plaintiff at an hourly rate of $12.00. Although

being paid an hourly rate is more suggestive of an employee, it is not determinative.

Hayes, 224 N.C. at 16, 29 S.E.2d at 140; see also Youngblood v. North State Ford

Truck Sales, 321 N.C. 380, 384-85, 364 S.E.2d 433, 438 (1988). We also note that

Piner gave Plaintiff the option of being paid a lump sum, and asked Plaintiff whether



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                                  Opinion of the Court



he would like to be paid a single check for all of the men he had brought with him

“because he was operating as [Bentley Construction].” Plaintiff refused both offers.

      Fourth, the evidence presented at the hearing suggested Plaintiff was not

subject to discharge because he adopted one method of completing the work rather

than another. Noling testified that Piner never instructed him on the method in

which to frame the house, and that Piner’s only concern was that the finished product

correlate with the blueprints and change orders. Piner similarly testified that he was

unconcerned with how the house was framed, so long as the finished project was

completed consistent with the specifications provided by the general contractor.

      Fifth, the evidence suggested that Plaintiff was not in the “regular employ” of

Piner Construction. Tucker testified that, prior to the work on the Breakwater

jobsite, he had never done any work for Piner Construction, and Piner testified he

had never met or worked with Plaintiff prior to Plaintiff approaching him in February

2014 and Plaintiff’s subsequent work on the Breakwater jobsite.

      Sixth, the evidence suggested that Plaintiff was free to use such assistants as

he thought was proper.     After Piner called Plaintiff to ask him to work on the

Breakwater jobsite, Plaintiff contacted Noling and Tucker to enlist their help on the

project. Noling also testified that, after he realized another person would be needed

to work on the Breakwater jobsite, he was able to hire Hollingsworth without Piner’s

permission, and that Plaintiff similarly could have hired an additional person to work



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                                  Opinion of the Court



on the Breakwater jobsite without consulting Piner. Piner echoed this sentiment,

testifying that Plaintiff could have hired workers and added them to the Piner

Construction payroll “without any communication” with him.

      Seventh, the evidence suggested that Plaintiff did not have full control over

the assistants he arranged to work with him on the Breakwater jobsite. However,

the power to control the assistants was not wielded by Piner or anyone from Piner

Construction, but rather by Noling, the “lead man” who was himself contacted by

Plaintiff to work on the Breakwater jobsite. Although Plaintiff did not have complete

control over his assistants, neither did Piner or anyone from Piner Construction. On

balance, this evidence does not factor into the consideration of whether Plaintiff was

an employee or independent contractor.

      Finally, the evidence suggested that Plaintiff, Tucker, Noling, and

Hollingsworth collectively selected their own time. Tucker testified he was able to

make his own hours, and Noling similarly testified that no one instructed him on

when to begin and finish work for the day or when to take a lunch break. Piner

confirmed this testimony, stating that he did not control the time when Plaintiff,

Tucker, Noling, and Hollingsworth worked.

      In considering all these factors along with the entire record in this case, we

hold that Plaintiff has not satisfied his burden of demonstrating that he was an

employee of Piner Construction at the time of his injury. Applying the Hayes factors,



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                                    Opinion of the Court



we conclude that Plaintiff was an independent contractor not subject to the provisions

of the Workers’ Compensation Act.         Due to Plaintiff’s status as an independent

contractor, the Commission did not err in determining that it lacked jurisdiction over

the present case.

                                C. Statutory Employer

      In his final argument, Plaintiff contends the Commission erred in concluding

Piner Construction was not Plaintiff’s “statutory employer.” Specifically, Plaintiff

contends “if anyone subcontracted the [Breakwater] framing job from Piner

Construction, it was [Noling]. As such, [Piner Construction] would be liable for

[Plaintiff’s] injuries” pursuant to N.C.G.S. § 97-19 unless Piner Construction obtained

proof of Noling’s workers’ compensation insurance. We disagree and find N.C.G.S. §

97-19 inapplicable to the present case.

      N.C.G.S. § 97-19, as relevant to Plaintiff’s argument, provides:

             Any principal contractor, intermediate contractor, or
             subcontractor who shall sublet any contract for the
             performance of any work without obtaining from such
             subcontractor or obtaining from the Industrial Commission
             a certificate, issued by a workers’ compensation insurance
             carrier, or a certificate of compliance issued by the
             Department of Insurance to a self-insured subcontractor,
             stating that such subcontractor has complied with G.S. 97-
             93 for a specified term, shall be liable . . . to the same extent
             as such subcontractor would be if he were subject to the
             provisions of this Article for the payment of compensation
             and other benefits under this Article on account of the
             injury or death of any employee of such subcontractor due



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             to an accident arising out of and in the course of the
             performance of the work covered by such subcontract.

N.C. Gen. Stat. § 97-19 (2015). The “manifest purpose” of N.C.G.S. § 97-19 “is to

protect employees of irresponsible and uninsured subcontractors by imposing

ultimate   liability   on   principal   contractors,      intermediate   contractors,   or

subcontractors, who . . . have it within their power, in choosing subcontractors, to

pass upon their financial responsibility and insist upon appropriate compensation

protection for their workers.” Greene v. Spivey, 236 N.C. 435, 443, 73 S.E.2d 488, 494

(1952). N.C.G.S. § 97-19 “applies only when two conditions are met. First, the injured

employee must be working for a subcontractor doing work which has been contracted

to it by a principal contractor. Second, the subcontractor does not have workers’

compensation insurance coverage covering the injured employee.” Spivey v. Wright’s

Roofing, 225 N.C. App. 106, 118, 737 S.E.2d 745, 753 (2013).

      As this Court has held, “[N.C.]G.S. § 97-19, by its own terms, cannot apply

unless there is first a contract for the performance of work which is then sublet.”

Cook v. Norvell-Mackorell Real Estate Co., 99 N.C. App. 307, 310, 392 S.E.2d 758, 760

(1990). In the present case, Plaintiff provided no evidence of the contract between

the owner of the Breakwater jobsite and the principal contractor, the subcontract

between the principal contractor and Piner Construction, or any subcontract between

Piner Construction and Noling.




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                                  Opinion of the Court



      However, even if Plaintiff is correct that Piner Construction had subcontracted

the framing job to Noling – as noted above, a contention with little support in the

record – Plaintiff has not shown that he was an employee of Noling. No evidence was

presented at the hearing that tended to establish an employer-employee relationship

between Noling and Plaintiff. To the contrary, the evidence showed that Plaintiff

himself solicited and received the framing job from Piner under the Bentley

Construction name and, thereafter, contacted Noling to work on the Breakwater

jobsite with him. While Noling testified he was the “lead man” on the project, no

evidence tended to show that Noling was Plaintiff’s employer. As we have held,

applying the Hayes factors, Defendant was an independent contractor of Piner

Construction while working at the Breakwater jobsite.

      Even if we were to assume that Piner Construction subcontracted the framing

project to Noling, and were to further assume some type of relationship between

Plaintiff and Noling, Plaintiff would at most be an independent contractor of Noling,

not one of his employees. North Carolina’s statutory employer statute only applies

to injured subcontractors and their employees, not independent contractors of a

subcontractor, placing Plaintiff outside the protections afforded by N.C.G.S. § 97-19.

See Greene v. Spivey, 236 N.C. 435, 444, 73 S.E.2d 488, 494 (1952) (holding N.C.G.S.

§ 97-19 “is not applicable to an independent contractor”).




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                                  Opinion of the Court



      Plaintiff directs this Court to Davis v. Taylor-Wilkes Helicopter Servs., 145 N.C.

App. 1, 549 S.E.2d 580 (2001) in support of his contention that Piner Construction

was his statutory employer pursuant to N.C.G.S. § 97-19. In Davis, the plaintiff,

Carlton Davis (“Davis”) worked as an independent contractor for the defendant,

Taylor-Wilkes Helicopter Service, Inc. (“Taylor-Wilkes”). 145 N.C. App. at 2-3, 549

S.E.2d at 581. Davis was injured in the course of his work for Taylor-Wilkes when a

“highboy sprayer” he was operating tipped over. Id. at 3; 549 S.E.2d at 581. Davis

pursued a claim for workers’ compensation, and this Court found Taylor-Wilkes to be

Davis’ statutory employer. After examining the language of N.C.G.S. § 97-19, this

Court concluded that, because there was “no evidence that Taylor-Wilkes obtained

the necessary certificate” certifying Davis was covered by workers’ compensation

insurance, “under N.C. Gen. Stat. § 97-19, Taylor-Wilkes remained liable for [Davis’]

compensable injuries while he was working under a subcontract from Taylor-Wilkes.”

Id. at 10, 549 S.E.2d at 585.

      In the present case, and unlike in Davis, Plaintiff does not argue he was a

subcontractor of Piner Construction, but instead argues Noling was a subcontractor

of Piner Construction, and that Plaintiff was an employee of Noling. As discussed

above, Plaintiff did not produce evidence to show either that Noling was Piner

Construction’s subcontractor, or that Plaintiff was an employee of Noling.         The

evidence instead tended to suggest that Plaintiff, Noling, and Tucker were each



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                                  Opinion of the Court



independent contractors of Piner Construction. We therefore find Davis inapposite

to the present case, and hold that Piner Construction was not Plaintiff’s statutory

employer pursuant to N.C.G.S. § 97-19.

                                   III. Conclusion

       Plaintiff did not preserve his argument regarding whether N.C.G.S. § 97-84

permits a deputy commissioner to issue an opinion and award in a case in which the

deputy commissioner did not hear the evidence due to his failure to raise it before the

Commission. The Commission did not err in holding Plaintiff to be an independent

contractor, nor did it err in finding that Piner Construction was not Plaintiff’s

statutory employer pursuant to N.C.G.S. § 97-19.         Accordingly, we affirm the

judgment of the Industrial Commission.

      AFFIRMED.

      Judges CALABRIA and STROUD concur.




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