Carolina Industrial Commission, I.C. No. 14-721965
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.
Pittman, Skinner & Cushman, PLLC, by Rudolph A. Ashton,
III; and Dodge Jones Law Firm, P.A., by Robert C. Dodge, for
Dickie, McCamey & Chilcote, P.C., by Michael W. Ballance
and Martin R. Jernigan, for Defendants-Appellees.
Moore Leatherwood LLP, by Jeri L. Whitfield, for North
Carolina Association of Defense Attorneys, amicus curiae.
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 ("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.
early 2014, Plaintiff and his friend, George Tucker
("Tucker"), were working "side jobs" in
the construction industry in and around Newport, North
Carolina. At 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.
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"). 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.
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 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.
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
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,  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 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.
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
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 loose and struck him in
the right eye. As we explained in our previous opinion in
[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, ...