Jeanne H Washburn


It seems like a distinction without a difference. However, determining whether a person is an employee or an independent contractor can have major implications on the success of a claim. The distinction tends to come up in two major circumstances. First, in situations where a potential employee may have been injured, they will likely want to prove employee status to receive benefits afforded only to employees, like Worker’s Compensation. Second, many employers will often want to fight employee status in the event that the potential employee committed some sort of tortious act.

The issue can often be determined in obvious ways. For instance, if both parties agreed that they would treat the relationship as an employment relationship, that information will weigh heavily in favor of an employer-employee relationship. However, the question becomes much more difficult when dealing with arrangements where no agreement exists, or the sophistication of one party led them to agreeing to waive important employment benefits.

Courts will look to the facts of each and every situation to determine whether an employment relationship exists. However, one theory that is at the heart of this question is the “right to control.” If a principal/employer has the ability to control the details of the agent’s work, it is very likely that an employment relationship exists. On the other hand, if the principal simply contracts for the agent to do the work and does not exercise very much authority over the method in which the work is done, it is likely that an independent contractor situation exists.

It is incredibly important to consult an attorney if you are in a situation where you are being told you are an independent contractor and you have incurred some sort of liability. Even if the intent of both parties was to establish an independent contractor relationship, it is still possible that the relationship is really one of employer and an employee.


The North Carolina Supreme Court recently answered YES to that question. In the case of Ward v. Carmona, both drivers asserted that they had the red light and the other was at fault. There was conflicting evidence but in general the consensus was, the collision occurred when Ward entered into the intersection under a green light. There he had to wait for on-coming traffic to pass before he could make his left turn. Apparently, while he was waiting, Ward’s light turned red. The accident occurred when the other driver, Carmons, ran his red light and collided with Ward.

At the trial, the case came down to a simple question of “who ran the red light?” There was conflicting evidence on both sides as to who ran the light. Ultimately, the jury found that both drivers were negligent. On its face, this might seem counterintuitive – if one of them had the red light then the other had the green light, right?

At odds were two generally true statements: 1) You have no duty to anticipate the negligence of another – ie anticipate that another driver will run a red light; and 2) You do have a duty to use reasonable care to avoid an accident.

The Wards argued that it was improper to find him negligent for the crash when he had no reason to believe that Carmona would be coming through the intersection. However, the Court of Appeals disagreed. Here, testimony showed that Ward crossed into an intersection when the light was green, but did not turn left until the light turned red. While that was not an illegal maneuver, Ward still had a duty to maintain a lookout and exercise reasonable care. The decision did not create a new form of negligence in motor vehicle law in North Carolina but it does illustrate how complex even a red light/green light case can be.


On December 2, 2014, the North Carolina Court of Appeals issued an opinion regarding facts that many of us are familiar with. In Ademovic v. Taxi USA, the court overturned a decision by the Industrial Commission that a taxi driver was an employee for purposes of the Worker’s Compensation Act. This distinction is important and often heavily litigated because independent contractors, rather than employees, are generally not covered by the Act. In this case the court held that this taxi driver was not an employee. However, these tend to be very specific, factual inquiries. Another taxi cab driver with a slightly different set of facts could obtain an opposite result.

Here, the taxi driver was shot while driving a cab in 2011. The claim was initially denied by taxi company, Taxi USA. The Deputy Commissioner conducted the first hearing. The Commissioner held that no employee relationship existed, thus the Industrial Commission had no authority to hear the case. On appeal the Full Commission reversed, holding that the necessary facts existed to determine that the driver was an employee and allow the case to be tried.

The Court of Appeals reversed. The Court applied the typical factors for resolving these types of cases and held that, on these facts, the driver was an independent contractor. There were many relevant factors in this case. First, the employee signed a contract with Taxi USA that he was not considered an employee. Next, the driver kept all of his fares and tips. Taxi USA did not pay any wage to the driver and only charged him a weekly ‘franchise fee.’ The taxi company also had no control over how much the driver worked or whether he even used their blackberry-based service. At all times the driver was allowed to go to an airport or taxi stand and get his own riders. Finally, the court determined that the driver owning the taxi in question was highly persuasive because this fact differed from existing case law on the subject.

As mentioned above, instances like this are very fact dependent. Even the fact that the driver signed a contract stating he was not an employee does not immediately end this analysis. Any person who is injured while performing work as an independent contractor should at least look into whether the law may allow them to be treated as an employee for purposes of the Worker’s Compensation Act.


Less than a year ago, an employee of Static Control Components secured compensation for a workplace injury that her employer contested. In Hedden v. Static Control Components, the employee had been a packer for nearly five years when she suffered intense pain in her back and legs. The employee immediately notified her supervisor after finishing the order. While waiting for the on-site nurse, the supervisor asked her to pack another order. The employee was unable to complete the next order due to pain in her back.

As with many back injury cases, the employee had a history of back pain. Two years prior, the employee had presented to her doctor several times with back pain. At that time she was diagnosed with degenerative back disease. After extensive testimony from back specialists, the testimony showed that her work incident made her pre-existing back injury worse. However, the resulting compensation in this case is interesting. The court ultimately gave the employee compensation starting at the time of the injury and until she returned to her “baseline”. This baseline essentially represented her pre-injury status. Therefore, she received compensation for that three-month period. She also received 25% of her attorney’s fees.

The pre-existing injury in this case was substantial and very well documented. However, the employee was still able to secure compensation for the time period that she was out of work due to the injury. It’s important to never disregard a workplace injury because it may have existed in some degree prior to that incident. Consultation with a Lee County Worker’s Compensation attorney is recommended to determine the scope of a possible claim.

I.C. No. X83933


It is the general rule that if an employer or insured fails to make timely payments to the injured employee, they are subject to an additional 10 % penalty. The law specifically provides that compensation is “due” 10 days after an order and that if compensation is not paid within 14 days of when the compensation is due there is to be a 10 percent penalty. However, leave it to the lawyers to complicate things. When a payment is “due” and when a payment is “late” thus subjecting the employer to the penalty has been litigated and it is surprising longer than you might think it would be.

In a recent case, the North Carolina Court of Appeals clarified the existing law regarding when a defendant-employer must pay out a judgment to the plaintiff. In Silva v. Lowes Home Improvement Inc., WL 425786 (2015), In that case, the worker alleged that he became disabled from an accident in 2001. The defendants denied this and the case went to trial in the North Carolina Industrial Commission in 2004. Mr. Silva won. The defendants appealed to the next level within the Industrial Commission. The plaintiff won again. The defendants appealed to the North Carolina Court of Appeal In 2006, the North Carolina Court of Appeal affirmed the ruling for the worker and remanded the case back to the Industrial Commission for more findings of fact. In 2006 the Industrial Commission again found in favor of Mr. Silva and again ordered that weekly benefits be paid to the worker. The employer appealed to the Court of Appeals again and in 2009 again the worker won. By that time the weekly benefits that should have been paid over the preceding seven years or so totaled more than $200,000. On June 8 2009 the Court of Appeal ordered that the payment be made. Mr. Silva was awarded a $221,158.84 judgment after the years of ongoing litigation. On July 7, 2009 the defendants made the payment. One might think that more than 24 days (10 days to become due and 14 days to become late) had passed from the order to the payment such that a 10% penalty would apply. Indeed the plaintiff in the case made such a claim. Again, the defendants fought all the way to the Court of Appeals. The Court of Appeals addressed the issue just recently in 2015.

Unfortunately for the worker and his attorney, the Court of Appeals disagreed. The Court said that the time to start the clock ticking when a payment becomes “due” is not from the date of the order but rather from the last possible date that the order could be appealled . The rules provide that a person wanting to appeal a ruling such as existed in this case had 15 days to do so. In other words the defendants in this case had until June 23 2009 to appeal. They did not do so but nonetheless the payment became “due” 10 days later on July 3, 2009. Therefore a payment was not “late” until 14 days after it was “due.” In this case “late” was July 17, 2009. Lowes had made the payment on July 7, 2009 and therefore they were not subject to the 10% penalty.

All of this is an example of how complicated even seemingly simple concepts can be. Workers compensation cases can be very complicated. If you have any doubt about whether you are getting all the compensation you deserve, contact a lawyer to help you.


In a span of only four days, two pedestrians were killed in Johnston County after being hit by motor vehicles. The first incident happened as a rest stop employee was attempting to cross I-40 on foot on January 2, 2015. He was tragically struck by a pickup truck. The 79 year-old victims worked at the rest stop. The driver of the truck was not injured.

The second incident occurred only four days later on January 6, 2015. This incident occurred on Weaver Road, resulting in the death of a 41 year-old man. The victim was walking in the middle of the road and was hit from behind. The driver of the car was not injured. Alcohol was not a factor in either of the incidents.

While these tragic incidents do not appear to implicate Worker’s Compensation, pedestrian incidents do arise from time to time. There have been many cases where employees were hit while assisting stranded drivers on the roadway. As with all cases, these tend to be very fact specific. However, courts often will look to whether the actions were benefitting the employer. For instance, an employee may be traveling between job sites and stop to help someone with a flat tire. If the employee is injured while helping this stranded driver Worker’s Compensation likely will not be involved because the assistance to the stranded driver could not be said to benefit the employer. It’s an interesting angle on something that many people would logically think would go the other way. Any time you stop to help someone on the side of the road be absolutely sure that you are taking all safety precautions possible to, first and foremost, protect yourself.


A few times every year Fayetteville has a wintry event. For a Cumberland County Worker’s Compensation attorney this can be the busiest time of the year due to slip and falls on ice. Often times, these slip and falls occur in the parking lot of an employer.

If you fall in a parking lot on the way into or out of your employer’s business, this could be a compensable workers compensation accident. It is going to depend on the facts of your case and an experienced workers compensation lawyer can listen to your story and help you understand whether you have a workers comp claim.

What should you do if you have an accident in your employer’s parking lot? Say for example you were employed at Goodyear as a floor supervisor. If you fell in the facility during regular working hours, there would be a procedure you would go through to properly notify Human Resources. Falling in the parking lot on the way into or out of work is no different. It is imperative that you inform your supervisor and/or Human Resources right away.

Again, this is a fact-specific circumstance. If you suffer an injury in the parking lot at work it is imperative that you contact an attorney to see what the specific circumstances of your situation are. Before you give a recorded statement to an adjuster, you need to consult with an attorney. As the wintry weather approaches, please remember to be careful.


If you are hurt at work and suffer an injury, you should immediately report that injury to your employer. It is not uncommon for an employer to initially deny a workers’ compensation claim. They are not necessarily doing so with any sort of negative intent. It is common for employers to deny the claim until they receive enough factual information to accept it. However, as this Food Lion forklift driver’s story shows, you should not stop receiving medical treatment and you should continue pursuing compensation for your injury.

In 2005, a Harnett County forklift operator had been experiencing back pain for several months, likely due to his job at Food Lion where he had to lift boxes and heavy bags on a daily basis. In April of that year his forklift became caught on a piece of metal, causing it to snap around and throw him against the machine. The Food Lion employee immediately suffered a sharp pain in his back and notified his supervisor. Eventually, the employee’s claim was denied. The employee was not allowed to seek light duty work as a result of the denial. During this time, the employee was still seeking medical treatment and was eventually diagnosed with a bulging disc in his back. Even though the employee was found to have a preexisting degenerative disc disease, the Industrial Commission held that the employee’s pre-existing condition was worsened because of the workplace injury.

Thus, in the face of challenges from his employer, the employee was able to recover compensation from the time of his injury to the point where he became healed. This employee’s story shows that an employer’s denial of a claim should not deter an injured employee from seeking compensation. With the help of a skilled attorney in this area, your injury could be rightfully compensated as well. Contact a Workers’ Compensation attorney in your area to help you understand your claim and your rights resulting from a workplace injury.

Voting season is upon us

As many of you know, voting season is upon us. Early voting starts today, October 23, 2014 and ends November 1, 2014. Election day itself is November 4, 2014.
There are many very important judicial races at stake in this election. Many injured people from counties all across North Carolina may not realize that the outcome of these judicial elections may affect the outcome of their injury cases. These elections are important for every citizen but their importance to those who have been injured in a car wreck , on-the-job accident, or other injury accident cannot be overstated.

Every citizen is urged to educate himself regarding the candidates and the process and helpful information can be found here. If you are interested in my specific thoughts about individual candidates that may best protect the rights of those who were injured by the negligence of others or injured in a workers compensation accident please contact me directly.

Accident Takes the Life of Wake County Teenager

On Tuesday, September 23, 2014, tragically, a thirteen year-old Wake County ll boy was killed as he was waiting for his school bus. It appears that he was struck by an older burgundy Ford. The car did not stop after striking the teen but parts of the car were found strewn near his body. The police are looking for information from anyone who is aware of the accident or who has noticed a car with damage consistent from this wreck.
The family mourns this wrongful death of this young man and seeks the help of the community in order to find the driver that caused this wreck.

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