HERMAN RIVERA, Employee/Plaintiff, v. I.C. File No. 702568
Employer/Defendant, and/or DAVID BEAUCHEMIN, Employer/Non-Insured
Defendant, and/or JOHN SCHUCK, Employer/Non-Insured-Defendant
1. Workers' Compensation--injury arose out of and in the course of his employment--
not a thrill-seeking employee--acted solely to accomplish job--employer authorized
action
The Industrial Commission did not err in determining plaintiff-roofer's injuries arose out
of and in the course of his employment when plaintiff was injured as a result of falling from a
forklift he rode in to move necessary materials to the third floor of a house because: (1) it was
not a situation where a thrill-seeking employee took action that bore no resemblance to
accomplishing his job; (2) plaintiff acted solely to accomplish the task for which he was hired;
and (3) defendant-employer Schuck authorized plaintiff to ride the forklift.
2. Workers' Compensation--temporary total disability--election of statute for recovery
permissible
In a case where plaintiff-roofer was injured as a result of falling from a forklift he rode in
to move necessary materials to the third floor of a house, the Industrial Commission did not err
in assigning plaintiff a rating of temporary total disability under N.C.G.S. § 97-29 instead of
N.C.G.S. § 97-31(13) because although plaintiff may not recover under both sections, he may
elect to claim under N.C.G.S. § 97-29 if this section is more favorable.
3. Workers' Compensation--disability--sufficiency of evidence
In a case where plaintiff-roofer was injured as a result of falling from a forklift he rode in
to move necessary materials to the third floor of a house, the Industrial Commission did not err
in determining plaintiff has proven a disability under N.C.G.S. § 97-29 because plaintiff has
sufficiently shown that his injury has prevented him from earning wages from defendant-
employer Schuck or any other employer through evidence that: (1) his arm was “no good” and
he could not hold anything heavy; (2) he worked exclusively as a roofer since coming to the
United States in1995; (3) he had continuous pain in his arm and back; and (4) he has been
unable to work since the accident.
4. Workers' Compensation--temporary total disability--evidence of diminished
earning capacity--alien without immigration green card or social security card
protected by Workers' Compensation Act
Even though defendant Trapp contends plaintiff-roofer lacks earning capacity since he
did not have an immigration green card or a social security card in a case where plaintiff was
injured as a result of falling from a forklift he rode in to move necessary materials to the third
floor of a house, the Industrial Commission did not err in concluding plaintiff was temporarily
totally disabled because plaintiff's injury diminished his earning capacity since: (1) N.C.G.S. §
97-2(2) makes clear that the General Assembly sought to protect every employee engaged in an
employment, including aliens like plaintiff; and (2) plaintiff also presented evidence that prior to
the injury, he did in fact have earning capacity as a roofer.
5. Workers' Compensation--knowingly allowed employer to work without insurance--
willfully neglected to bring employer into compliance
In a case where plaintiff-roofer was injured as a result of falling from a forklift he rode in
to move necessary materials to the third floor of a house, the Industrial Commission did not err
in finding that defendant Trapp willfully neglected to bring defendant-employer Schuck into
compliance with the requirements of N.C.G.S. § 97-93 because: (1) Trapp admitted he did not
require Schuck to provide a certificate as proof that Schuck had workers' compensation
insurance; (2) Trapp admitted he had taken Schuck to obtain insurance after plaintiff fell; (3)
Trapp also stated he has not seen defendant Schuck since plaintiff fell; (4) Trapp admitted he
discovered Schuck had no insurance while Schuck was in the process of retiling the roof; and (5)
Trapp's testimony allowed the Commission to conclude that he knowingly allowed Schuck to
work without insurance. Appeal by defendant from opinion and award of the North
Carolina Industrial Commission filed 27 July 1998. Heard in the
Court of Appeals 20 September 1999.
Brumbaugh, Mu & King, P.A., by Kenneth W. King Jr., for
plaintiff-appellee.
Stephen E. Culbreth for defendant-appellant George Trapp.
EAGLES, Chief Judge.
Defendant George Trapp appeals from the opinion and award of
workers' compensation benefits to plaintiff Herman Rivera.
The Commission's findings tend to show the following.
Plaintiff was an eighteen year old male who came to the United
States from Honduras in 1995. He speaks little English and does
not possess an Immigration Service “Green Card” or a Social
Security number. Plaintiff worked as a roofer first in Texas,
then in Indiana prior to coming to North Carolina in the fall of
1996. Plaintiff came to North Carolina due to the abundance of
work available after the two hurricanes of that year. Plaintiff
worked for several months in North Carolina prior to meeting
Defendant John Schuck. Defendant Schuck hired plaintiff and two
of plaintiff's friends to work as roofers on two homes damaged by
hurricane Fran. Schuck was to pay plaintiff $12.00 an hour forten hours a day, six days a week. Immediately prior to working
for Schuck, plaintiff earned $100.00 a day, six days a week.
Defendant David Beauchemin hired Trapp to complete the
necessary construction work on Beauchemin's home in Topsail
Beach. While Trapp referred to himself as a consultant, the
Commission found that Trapp was actually a contractor. Trapp
hired and negotiated with the subcontractors. Additionally, he
wrote checks for labor and materials and fired at least one
subcontractor whose work was unsatisfactory. The contract between
Beauchemin and Trapp required all contractors who worked on the
home to have workers' compensation insurance.
Trapp hired Schuck to roof Beauchemin's home. Schuck
represented to Trapp that he was licensed and insured. Schuck
drove a truck with a sign that read “Regional Roofing
Contractors” and represented that he worked for Regional. Prior
to hiring him, Trapp failed to obtain a certificate of insurance
from Schuck. Soon after hiring him, Trapp discovered that Schuck
did not have workers' compensation insurance. Despite this
discovery, Trapp allowed Schuck to continue roofing Beauchemin's
house. Neither Beauchemin nor Trapp had workers' compensation
insurance.
On 3 January 1997, plaintiff was working, roofing
Beauchemin's house for Schuck. In order to complete the job,someone placed roofing materials on a forklift borrowed from an
adjacent jobsite. Plaintiff climbed into the forklift in order to
ride with the materials to the roof. Upon reaching the third
story of the house, the forklift and plaintiff fell. The fall
injured the left side of plaintiff's upper chest and fractured
his left radius. Plaintiff had never used a forklift in this
fashion, although he had seen it done before.
An ambulance transported plaintiff to Onslow Memorial
Hospital where he spent five days. As a result of the fall,
plaintiff suffered a fracture of his distal left radius and
contusions to his abdomen and chest. After his discharge,
orthopedist Dr. Jeffrey Gross treated plaintiff. On 12 June 1997,
Dr. Gross assigned a ten percent (10%) permanent partial
disability rating to plaintiff's left arm.
Since plaintiff's injury, he has not been able to work or
earn wages. The injury to his left arm prevents him from lifting
anything heavy. Additionally, plaintiff's limited ability to
understand English and his exclusive employment background in
construction have contributed to his inability to find work.
[1]Based on those facts the Commission concluded that
plaintiff's injury arose out of and in the course of his
employment with Schuck. The Commission concluded that plaintiff
was entitled to temporary total disability at a rate of $400.00per week from 4 January 1997 until further order of the
Industrial Commission. The award also required Trapp and Schuck
to pay for plaintiff's medical expenses. The Commission also
concluded that Trapp had the ability and authority to stop Schuck
from working until Schuck acquired workers' compensation
insurance. As a result of Trapp's failure to bring Schuck into
compliance, the Commission fined Trapp $10,000. The Commission
also fined Schuck $50.00 per day for each day beginning 1 January
1997 and ending 3 January 1997. Defendant Trapp appeals.
The standard of review for an appeal from an opinion and
award of the Industrial Commission is limited to a determination
of (1) whether the Commission's findings of fact are supported by
any competent evidence in the record; and (2) whether the
Commission's findings justify its conclusions of law. Aaron v.
New Fortis Homes, Inc., 127 N.C. App. 711, 714, 493 S.E.2d 305,
306 (1997). This is true even when there is evidence that would
support contrary findings. Ross v. Mark's Inc., 120 N.C. App.
607, 610, 463 S.E.2d 302, 304 (1995). Trapp challenges the
Commission's findings and conclusions that plaintiff's injury
arose out of and in the course of his employment.
In order for plaintiff to recover benefits under the Act, he
must show that his injuries resulted from (1) an accident, (2)
arising out of his employment, and (3) within the course of hisemployment. Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 366,
368 S.E.2d 582, 584 (1988). Under the Workers' Compensation Act,
the term “arising out of the employment refers to the origin or
cause of the accidental injury, while the words in the course of
the employment refer to the time, place, and circumstances under
which an accidental injury occurs.” Roberts v. Burlington
Industries, 321 N.C. 350, 354, 364 S.E.2d 417, 420 (1988)
(citations omitted). Further, whether an injury arose out of and
in the course of employment is a mixed question of law and fact.
Id. This standard limits our review to whether the evidence
supports the Commission's findings and conclusions. Id.; Shaw v.
Smith & Jennings, Inc., 130 N.C. App. 442, 445, 503 S.E.2d 113,
116, disc. review denied, 349 N.C. 363, 525 S.E.2d 175 (1998)
(citations omitted).
In order for an injury to “arise out of employment” there
must exist some causal connection between the injury and the
employment. Hoyle v. Isenhour Brick and Tile Co., 306 N.C. 248,
252, 293 S.E.2d 196, 198 (1982). In other words, the employment
must be a contributing cause or bear a reasonable relationship to
the employee's injuries. Roberts, 321 N.C. at 355, 364 S.E.2d at
417; Brown v. Service Station, 45 N.C. App. 255, 256-57, 262
S.E.2d 700, 702 (1980). An injury is “in the course of
employment” when it occurs “under circumstances in which theemployee is engaged in an activity which he is authorized to
undertake and which is calculated to further, directly or
indirectly, the employer's business.” Shaw, 130 N.C. App. at 446,
503 S.E.2d at 116 (quoting Powers v. Lady's Funeral Home, 306
N.C. 728, 730, 295 S.E.2d 473, 475 (1982)). This Court has stated
that an injury is compensable under the Act if “it is fairly
traceable to the employment” or “any reasonable relationship to
the employment exists.” Shaw, 130 N.C. App. at 445, 503 S.E.2d at
116; White v. Battleground Veterinary Hosp., 62 N.C. App. 720,
723, 303 S.E.2d 547, 549, disc. review denied, 309 N.C. 325, 307
S.E.2d 170 (1983).
Here, plaintiff needed the materials in order to repair the
roof. Plaintiff testified that while he had never used a forklift
to move materials to a roof, he had seen it done on other jobs.
Further, plaintiff stated that everything he used went up to the
roof by use of the forklift. By moving the materials to the roof,
plaintiff was furthering his employer's business. Additionally,
plaintiff testified that Schuck authorized him to use the
forklift. These facts show that plaintiff acted to benefit his
employer and that his injury occurred as a direct result of his
employment.
Trapp claims that the case of Teague v. Atlantic Company,
213 N.C. 546, 196 S.E. 875 (1938) controls here. We disagree. InTeague, an employee died while attempting to ride a conveyor
belt. Id. at 547, 196 S.E. at 875. The belt's purpose was to
convey empty crates from the basement of employer's plant to the
first floor. Id. The foreman expressly ordered all employees not
to ride the conveyor. Id. The Supreme Court held that the
deceased exceeded the scope of his employment and that the
plaintiff's death was not compensable. Id. at 548, 196 S.E. at
875.
We find Teague distinguishable. Teague dealt with a
situation where a thrill-seeking employee took action that bore
no resemblance to accomplishing his job. Hoyle, 306 N.C. at 259,
293 S.E.2d at 201. Here, the record shows that plaintiff acted
solely to accomplish his job. Plaintiff rode on the forklift to
move necessary materials to the third floor. While this action
may have been outside the “narrow confines of his job
description” as a roofer, it is clear that plaintiff's actions
were reasonably related to the accomplishment of the task for
which he was hired. See Id. at 259, 293 S.E.2d at 202-03.
Further, in Teague, the foreman had given the plaintiff an
express order not to ride the conveyor belt. Teague, 213 N.C. at
547, 196 S.E.2d at 875. Here, plaintiff testified that Schuck
authorized him to ride the forklift. We hold that this evidence
supports the Commission's findings and conclusions thatplaintiff's injury arose out of and in the course of his
employment.
[2]Trapp also alleges that the Commission erred by
assigning plaintiff a rating of temporary total disability under
G.S. § 97-29 (1991) instead of compensating him under G.S. § 97-
31(13) (1991). Trapp claims that plaintiff's exclusive remedy was
under G.S. § 97-31(13). We disagree. G.S. § 97-29 and G.S. §
97-31 are alternative avenues of recovery for an employee whose
scheduled injuries leave him or her totally disabled. See Hill v.
Hanes Corp., 319 N.C. 167, 175-76, 353 S.E.2d 392, 397 (1987);
Dishmond v. Int'l Paper Co., 132 N.C. App. 576, 577, 512 S.E.2d
771, 772, disc. review denied, 350 N.C. 828, ___ S.E.2d ___
(1999). G.S. § 97-29 provides compensation for total disability,
while G.S. § 97-31 furnishes a list of specific injuries and
corresponding compensations. Dishmond, 132 N.C. App. at 577, 512
S.E.2d at 772. This statutory scheme exists to prevent double
recovery, not to dictate an exclusive remedy. Gupton v. Builders
Transport, 320 N.C. 38, 43, 357 S.E.2d 674, 678 (1987) (citations
omitted). Our Supreme Court has stated, "[e]ven if all injuries
are covered under the scheduled injury section an employee may
nevertheless elect to claim under G.S. § 97-29 if this section is
more favorable; but he may not recover under both sections."
Hill, 319 N.C. at 176, 353 S.E.2d at 398. [3]Trapp alleges that plaintiff has not proved disability
under G.S. § 97-29. Disability is the "incapacity because of
injury to earn the wages which the employee was receiving at the
time of the injury in the same or any other employment." G.S. §
97-2(9) (Supp. 1998). Plaintiff may prove disability by evidence
that (1) the employee is physically or mentally incapable of work
in any employment as a result of the injury; (2) the employee is
capable of some work but, after reasonable efforts, has been
unsuccessful in obtaining other employment; (3) the employee is
capable of some work but it would be futile to seek work because
of preexisting conditions such as age, inexperience, lack of
education; or (4) the employee has obtained employment at a wage
less than that earned prior to the injury. Russell v. Lowes
Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457
(1993).
The Commission found as fact:
18. As a result of plaintiff's work-related
injury on 3 January 1997, plaintiff has been
unable to work or earn any wages since 4
January 1997 and continuing through the date
of hearing before the Deputy Commissioner.
His left arm still gives him problems and he
cannot lift anything heavy. Plaintiff's
limited ability to understand English,
coupled with his exclusive background in
construction work, has contributed to his
inability to find work since his compensable
injury.
Plaintiff testified at the hearing that his arm was “no good,”
and that he could not hold anything heavy. He also testified
that he had worked exclusively as a roofer since coming to the
United States in 1995. He stated that he had continuous pain in
his arm and back. Further, he has been unable to work since the
accident. Plaintiff's doctor also assigned him a ten percent
(10%) impairment rating for his left wrist. Plaintiff has
sufficiently shown that his injury has prevented him from earning
wages from Schuck or any other employer. See Hendrix v. Linn-
Corriher Corp., 317 N.C. 179, 345 S.E.2d 374 (1986). We hold that
this evidence is sufficient to support the Commission's finding
of fact. We also hold the finding of fact supports plaintiff's
rating of temporary total disability.
[4]Trapp suggests that plaintiff's injury did not diminish
plaintiff's earning capacity. According to Trapp, no one can
legally employ plaintiff because he has no Immigration Service
“Green Card” or Social Security card. Because plaintiff lacks
earning capacity, Trapp claims the Commission could not conclude
that plaintiff was temporarily totally disabled. We find this
argument unpersuasive. G.S. § 97-2(2) (Supp. 1998) defines
employee to include “every person engaged in an employment . . .
including aliens.” The statute makes clear that the General
Assembly sought to include individuals like the plaintiff underthe protections of the Workers' Compensation Act. Further,
plaintiff presented sufficient evidence to show that prior to the
injury he did in fact have earning capacity as a roofer.
[5]Next Trapp challenges the Commission's findings and
conclusions that Trapp willfully neglected to bring Schuck into
compliance with the requirements of G.S. § 97-93 (Supp. 1998).
Trapp claims that he did not know that Schuck lacked Workers'
Compensation insurance until after plaintiff fell. Therefore, he
argues that the Commission could not conclude that he willfully
neglected to bring Schuck into compliance with Chapter 97. We
disagree. G.S. § 97-94 (Supp. 1998) states that the Commission
may assess a civil penalty of up to one hundred percent (100%) of
the amount of any compensation due to the employer's employees
for any person who has the ability and authority to bring an
employer into compliance with G.S. § 97-93 and fails to do so.
G.S. § 97-93 requires every employer subject to the provisions of
the Workers' Compensation Act “to insure and keep insured his
liability under this Article.”
It is well known that, “the Commission is the sole judge of
the credibility of the witnesses and the weight to be given their
testimony." Pittman v. International Paper Co., 132 N.C. App.
151, 156, 510 S.E.2d 705, 709, disc. review denied, 350 N.C.
310, ___ S.E.2d ___ (1999). Thus, the Commission may assign moreweight and credibility to certain testimony than others.
Moreover, if the evidence before the Commission is capable of
supporting two contrary findings, the determination of the
Commission is conclusive on appeal. Dolbow v. Holland Industrial,
64 N.C. App. 695, 697, 308 S.E.2d 335, 336 (1983), disc. review
denied, 310 N.C. 308, 312 S.E.2d 651 (1984).
On this issue, Trapp's testimony is confusing at best. Trapp
admits that he did not require Schuck to provide a certificate as
proof that Schuck had workers' compensation insurance. Therefore,
he allowed Schuck to work without having tangible evidence of any
insurance. Trapp testified that he took Schuck to obtain
insurance after he learned that Schuck did not have any. Trapp
stated that this trip occurred after plaintiff fell. However, he
also testified that he had not seen Schuck since plaintiff's
fall. Further, Trapp answered affirmatively to a question that he
took Schuck to obtain insurance before the fall. Trapp also
testified that he discovered Schuck had no insurance while Schuck
was in the process of retiling the roof. Plaintiff's injury
occurred during this process. If Trapp did not see Schuck after
the injury, then the Commission could have concluded that Trapp
knew about Schuck's lack of insurance prior to the fall. Trapp's
testimony also allows the Commission to conclude that Trapp
knowingly allowed Schuck to work without insurance. This findingis sufficient to support a conclusion that Trapp willfully
neglected to bring Schuck into compliance with Chapter 97.
For the foregoing reasons we affirm the opinion and award of
the Industrial Commission.
Affirmed.
Judges MARTIN and TIMMONS-GOODSON concur.
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