1. Plaintiff was sixty-five years old at the time of the hearing before the deputy commissioner. He attended school through the third grade and is able to read and sign his name, but he is functionally illiterate. Plaintiff has worked as a farm hand, a lumber mill worker, a farm machine builder, a crop sprayer, and as a self-employed mechanic.

2. From 1961 through 1974, plaintiff was employed during the months of March through October by [TAYLOR-WILKES] to prepare and maintain crop spraying equipment. For the remainder of the year, plaintiff was employed by Taylor-Wilkes Massey Ferguson where he repaired farm machinery. As the Taylor family owned both of these businesses, it was not unusual to assign the employees to work where they were needed.

. . .

5. In 1989, Ron Taylor rehired plaintiff to work at [Taylor-Wilkes] during the witchweed season and at [Taylor Manufacturing, Inc.] for the rest of the year. Plaintiff was paid $400.00 per week.

6. On 23 January 1991, plaintiff sustained a compensable on-the-job injury which was the subject of I.C. File No. 121630. Plaintiff received six weeks of benefits for this injury.

7. On 18 March 1991, [Taylor Manufacturing, Inc.] terminated plaintiff’s employment. Personnel records reflect that plaintiff was not to be rehired because he was considered a health risk. At all times while employed by Taylor Manufacturing, Inc.] or [Taylor-Wilkes] before 18 March 1991, plaintiff received a W-2 form from his employer which reflected the withholdings from his pay for taxes and social security. Plaintiff was an employee of [Taylor Manufacturing, Inc.] or [Taylor-Wilkes] while performing services for the respective company.

8. In 1992, plaintiff negotiated with Ron Taylor, in Taylor’s capacity as president of [Taylor-Wilkes], to allow plaintiff to perform [Taylor-Wilkes’] contract with the USDA. Plaintiff and Taylor agreed that plaintiff would not be hired as an employee but would be hired as an independent contractor. Plaintiff understood that Taylor and defendant-employers were unwilling to rehire him as an employee.

9. In the years from 1992 through the date of the injury in 1995, plaintiff performed witchweed spraying as he had when defendants recognized him as an employee, with a few exceptions: plaintiff was hired and paid only by [Taylor-Wilkes] and only during the witchweed season, and [Taylor-Wilkes] issued an IRS Form 1099 at the end of the year and did not deduct taxes from plaintiff’s pay. As was the situation when plaintiff was an employee with defendants, an employee of [Taylor Manufacturing, Inc.] ordered all of plaintiff’s spraying parts and chemicals for the spraying jobs, and [Taylor Manufacturing, Inc.] employees delivered a highboy tractor to the job sites for plaintiff’s use. Plaintiff’s primary assistant, Cleo McCoy, was an acknowledged employee of defendants. Plaintiff used [Taylor-Wilkes] equipment, parts, and water. On days when inclement weather prevented plaintiff from spraying, he worked at the main [Taylor Manufacturing, Inc.] plant driving a forklift and doing odd jobs at the direction of Ron Taylor or [Taylor Manufacturing, Inc.] employees; however, there is no evidence that [Taylor Manufacturing, Inc.] did or did not pay plaintiff for these services. Because of his years of experience, plaintiff needed no supervision from [Taylor-Wilkes] in the performance of his spraying duties. USDA agents directed plaintiff to the various fields to be sprayed and remained on site to view the spraying. Plaintiff performed spraying only for [Taylor-Wilkes] and was not engaged in an independent business or occupation, did not hire his own assistants, and worked for [Taylor-Wilkes] under the supervision of the USDA.

10. Before plaintiff returned to work for [Taylor-Wilkes] in 1992, he signed a subcontractor’s waiver of workers’ compensation coverage at Ron Taylor’s request. Plaintiff signed this agreement voluntarily. The agreement provided that it was to be effective until the expiration date of [Taylor-Wilkes’] then-current workers’ compensation policy, which was renewable yearly. However, there is no evidence that, in 1992, [Taylor-Wilkes] or Ron Taylor agreed to hire plaintiff in any subsequent witchweed season, nor is there any evidence that the waiver signed in 1992 was applicable in any subsequent year in which plaintiff might be hired, including 1995.

11. At the end of the witchweed season in 1992, [Taylor-Wilkes’] contract with USDA in 1992 was concluded. [Taylor-Wilkes’] contract in 1995 was a new contract for witchweed spraying. Likewise, plaintiff’s employment with [Taylor-Wilkes] in 1995 was a new contract for performing the spraying.

12. In 1992, [Taylor-Wilkes] paid plaintiff $9,890.00 for witchweed spraying and provided plaintiff an IRS Form 1099. No taxes or social security were withheld.

13. In 1993, [Taylor-Wilkes] paid plaintiff $14,248.80 for witchweed spraying and provided plaintiff an IRS Form 1099.

14. In 1994, plaintiff asked that his paychecks be made payable to his wife, Faye. He provided Faye’s social security number to defendants for the payroll forms. In 1994, [Taylor-Wilkes] paid $11,600.00 to Faye Davis and provided her an IRS Form 1099 even though plaintiff was providing the witchweed spraying services.

15. In 1995, [Taylor-Wilkes] provided Faye Davis an IRS Form 1099 indicating payments of $5,950.00 that had been paid for plaintiff’s services. Of this amount, $3,300 was paid after plaintiff’s injury. If he had not been injured, plaintiff would have earned an additional $1,104.75, which was the amount paid to Cleo McCoy based on the number of acres sprayed after 13 July 1995, at $1.25 per acre. Thus, if plaintiff had not been injured, he would have earned $7,054.75 in 1995.

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20. A Report of Vocational Evaluation performed on 4 December 1997 revealed that despite the surgery on plaintiff’s left shoulder, his left arm remains functionally useless. Therefore, plaintiff is without the bi-manual dexterity required to perform as a diesel mechanic or as a tractor operator, jobs that he has previously performed, and he does not possess transferable skills to jobs within his residual functional capacity. Given plaintiff’s education, low IQ, illiteracy, and age, he is not a candidate for retraining in another field. For these reasons, plaintiff is no longer a viable candidate for competitive employment, and he is permanently and totally disabled.

21. Plaintiff’s failure to file a Form 18 Notice of Accident within 30 days of the injury as required by the Act was due to both parties assumption that plaintiff was not an employee entitled to workers’ compensation but was an independent contractor as they had agreed. Plaintiff’s excuse is found reasonable. Defendants had actual knowledge of plaintiff’s accident within a few hours of the incident. Defendants denied plaintiff’s claim based on their contention that plaintiff was an independent contractor, pursuant to the parties’ agreement. Defendants were not prejudiced by plaintiff’s failure to give written notice within 30 days.

22. Plaintiff filed his claim for compensation under the Act within two years of the date of injury.

1. Defendant Taylor-Wilkes Helicopter Service, Inc., could not by contractual agreement absolve itself of responsibility under the Act to provide workers’ compensation for plaintiff, if plaintiff would otherwise be covered under the Act. G.S. 97-6; Hoffman v. Ryder Truck Lines, Inc., 306 N.C. 502, 293 S.E.2d 807 (1982); Grouse v. DRB Baseball Management, Inc., 121 N.C. App. 376, 465 S.E.2d 568 (1996). Despite the parties’ attempt in this case to designate their relationship by contract their actual relationship is a legal question. Williams v. ARL, Inc., ___ N.C. App. ___, ___, 516 S.E.2d 187, ___ (1999).

2. Applying case law principles, plaintiff was an employee of defendant Taylor-Wilkes Helicopter Service, Inc., and was not an independent contractor when he was injured on 13 July 1995. G.S. 97-2(2); see Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 29 S.E.2d 137 (1944).

3. Even if plaintiff could be considered an independent contractor, he would be a subcontractor of defendant Taylor-Wilkes Helicopter Service, Inc., with no employees hired to perform the contract between defendant Taylor-Wilkes Helicopter Service, Inc. and the USDA. Under G.S. 97-19, as it is written at the time of plaintiff’s injury, defendant Taylor-Wilkes Helicopter Service, Inc., would be liable to plaintiff as subcontractor unless plaintiff waived in writing his right to workers’ compensation. As there is insufficient evidence that a valid waiver was in effect on 13 July 1995, plaintiff would be entitled to workers’ compensation benefits from defendant Taylor-Wilkes Helicopter Service, Inc., as a subcontractor. G.S. 97-19 (1994)(subsequently amended).

4. Plaintiff’s injury arose out of and in the course of his employment with defendant Taylor-Wilkes Helicopter Service, Inc., and plaintiff is entitled to compensation under the Act. G.S. 97-2.

5. Plaintiff’s employment was seasonal in nature. The proper method for calculating the average weekly wage in this case is to take plaintiff’s annual income while working for [Taylor-Wilkes] and divide that number by 52. Barber v. Going West Transp., Inc., ___ N.C. App. ___, 517 S.E.2d 914 (1999), citing Joyner v. Oil Co., 266 N.C. 519, 146 S.E.2d 447 (1966). Even though plaintiff did not work the full season in 1995, it would not be equitable to calculate plaintiff’s average weekly wage based on the amount he earned during the 1994 season, which was $11,600.00, because the number of acres available for witchweeding was declining from year to year, and plaintiff’s salary in 1994 would not fairly reflect the wages he was earning at the time of his injury. The amount plaintiff would have earned in 1995, or $7,056.75, divided by 52, more nearly approximates the amount plaintiff would be earning were it not for the injury. Accordingly, plaintiff’s average weekly wage for the purpose of calculating his compensation rate is $135.71, which yields a compensation rate of $90.38. G.S. 97-2(5).

6. Due to his compensable injury, plaintiff is permanently and totally disabled; therefore, he is entitled to compensation in the weekly amount of $90.38, beginning on 13 July 1995 and continuing for the remainder of his life. G.S. 97-29.

7. Plaintiff is entitled to medical compensation for any treatment he has received or may receive in the future which is related to his compensable injury and which is reasonably calculated to effect a cure, give relief, or lessen the period of plaintiff’s disability. G.S. 97-25.

Any . . . contractor . . . who shall sublet any contract for the performance of any work without requiring from such subcontractor or obtaining from the Industrial Commission a certificate, issued by the Industrial Commission, stating that such subcontractor has complied with G.S. 97-93 [requiring that employers carry workers’ compensation insurance] . . . 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 such subcontractor, any principal or partner of such subcontractor or any employee of such subcontractor due to an accident arising out of and in the course of the performance of the work covered by such subcontract. If the . . . contractor . . . shall obtain such certificate at the time of subletting such contract to subcontractor, he shall not thereafter be held liable to any such subcontractor, any principal or partner of such subcontractor or any employee of such subcontractor for compensation or other benefits under this Article.

Every injured employee or his representative shall immediately on the occurrence of an accident, or as soon thereafter as practicable, give or cause to be given to the employer a written notice of the accident, and the employee shall not be entitled to physician’s fees nor to any compensation which may have accrued under the terms of this Article prior to the giving of such notice, unless it can be shown that the employer, his agent or representative, had knowledge of the accident, or that the party required to give such notice had been prevented from doing so by reason of physical or mental incapacity, or the fraud or deceit of some third person; but no compensation shall be payable unless such written notice is given within 30 days after the occurrence of the accident or death, unless reasonable excuse is made to the satisfaction of the Industrial Commission for not giving such notice and the Commission is satisfied that the employer has not been prejudiced thereby.