DocketNumber: I.C. NO. 235085
Judges: <center> OPINION AND AWARD for the Full Commission by DIANNE C. SELLERS, Commissioner, N.C. Industrial Commission.</center>
Filed Date: 6/9/2004
Status: Precedential
Modified Date: 7/6/2016
2. At the time of the injury sustained by plaintiff, an employer-employee relationship existed between plaintiff and defendant-employer.
3. The Travelers is the carrier on the risk.
2. Plaintiff's knee injury has required two surgeries to repair the dislocation and torn ligaments.
3. The defendant-carrier has paid, and continues to pay, temporary total disability benefits based upon a compensation rate of $35.00. Travelers instituted said compensation rate, believing it to be the statutory minimum pursuant to N.C. Gen. Stat. §
4. At the time of the hearing, plaintiff was a 23 year old male who had completed the ninth grade and had been employed in the dry wall business since he was 16 years old.
5. Prior to his employment with defendant-employer, plaintiff worked as a drywall hanger for several other contractors including: Charlie Hunt, Thelma Bullard/Bullard Drywall, and Eddings Drywall. During his employment with these drywall, subcontractors plaintiff generally worked eight to ten hours per day, five days a week, earning approximately $100.00 to $125.00 per day.
6. Plaintiff's employment with the defendant-employer was not structured in the same manner as his previous employment relationships. Unlike defendant-employer's other employees, plaintiff only worked when the regular employees were not available. As such, plaintiff "picked up" days of work whenever possible. By mutual agreement, plaintiff was paid $120.00 per day.
7. Defendant-employer's regular employees worked four to five days each week.
8. Out of the approximately seven month period of his employment with the defendant-employer, plaintiff only worked a total of three to four days. At the inception of his employment relationship, plaintiff worked approximately two days in a one week span and was compensated $120.00 per day.
9. Plaintiff did not work again until the day of his injury, March 6, 2002, nearly seven months after he had last worked with defendant-employer. On this day, plaintiff only received $100.00 for his work with defendant-employer since he was unable to complete an entire day's work, due to his injury.
2. N.C. Gen. Stat. §
2. Defendants' request for an overpayment credit is DENIED.
3. Each side shall bear its own costs.
This the ___ day of April 2004.
S/_______________ DIANNE C. SELLERS COMMISSIONER
CONCURRING:
S/___________________ BERNADINE S. BALLANCE COMMISSIONER
S/_____________ PAMELA T. YOUNG COMMISSIONER