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are subject to modification and technical correction prior to official
publication in the North Carolina Reports and North Carolina Court of Appeals
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authoritative.
NO. COA06-1086
NORTH CAROLINA COURT OF APPEALS
Filed: 17 April 2007
DAVID
WASHINGTON, JR.,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 392379
TRAFFIC MARKINGS, INC.,
Employer,
LIBERTY MUTUAL INSURANCE CO.,
Carrier,
Defendants.
Appeal by defendants from opinion and award entered 11 April
2006 by Commissioner Thomas J. Bolch for the North Carolina Industrial
Commission. Heard in the Court of
Appeals 21 March 2007.
Susan
B. Kilzer, for plaintiff-appellee.
Cranfill,
Sumner & Hartzog, L.L.P., by Roy G. Pettigrew, for defendants-appellants.
TYSON, Judge.
Traffic Markings, Inc. (“Traffic Markings”) and Liberty
Mutual Insurance Co. (collectively, “defendants”) appeal from the Full
Commission’s (“the Commission”) opinion and award that concluded the Commission
has jurisdiction over David Washington, Jr.’s (“plaintiff”) workers’
compensation claim. We affirm.
I.
Background
On 26 June 2003, plaintiff suffered a work-related injury to
his lower back while lifting a fifty-pound bag of reflective beads in Conway,
South Carolina. Plaintiff was employed
by Traffic Markings for “a couple of weeks” when he suffered this injury.
Plaintiff received benefits under the South Carolina
Workers’ Compensation Act. On 7 January
2004, after denial of certain medical treatment by the South Carolina workers’
compensation insurance carrier, plaintiff filed a workers’ compensation claim
in North Carolina. Defendants denied
plaintiff’s claim on jurisdictional grounds.
A hearing was held before a deputy commissioner on 10
January 2005. The sole issue was
whether the Commission possessed jurisdiction over plaintiff’s workers’
compensation claim.
A.
Plaintiff’s Testimony
Plaintiff lives in Durham, North Carolina and learned about
a job opening with Traffic Markings through an advertisement in the Durham
Herald Sun newspaper. Plaintiff
called the telephone number listed in the advertisement and was instructed to
come to Raleigh, North Carolina to complete a job application.
On 17 March 2003, plaintiff met with Richard Ridley
(“Ridley”) in Raleigh. Ridley gave
plaintiff a job application, which plaintiff filled out and returned to
Ridley. Ridley informed plaintiff he
needed to submit to and pass a drug test and provide Traffic Markings with his
updated North Carolina Department of Motor Vehicles driving record. Ridley also made copies of plaintiff’s North
Carolina Class A commercial driver’s license and his social security card.
On 18 March 2003, plaintiff presented for a drug test at
Concentra on Miami Boulevard in Research Triangle Park, North Carolina. Plaintiff returned a drug screening form and
an updated driving record to Ridley in Raleigh. Ridley requested, and plaintiff attended, a safety meeting in
Morrisville, North Carolina on 21 March 2003.
Approximately twenty people were present at the meeting,
including old and new Traffic Markings’s employees and a representative from an
insurance company. Timothy Langevin
(“Langevin”), the head of operations for Traffic Markings, conducted the safety
meeting. Plaintiff received a packet of
documents, including Traffic Markings’s drug-free workplace policy. Plaintiff also ordered a company uniform at
the safety meeting and later picked up the uniform at the Traffic Markings
office in Raleigh.
Plaintiff’s drug screen was performed at Laboratory
Corporation of America in Research Triangle Park, North Carolina. The results of the screen were
negative. Plaintiff’s drug screen
showed a report date of 20 March 2003 and print date of 24 March 2003.
Plaintiff’s first day of work with Traffic Markings was 30
March 2003. Plaintiff reported to work
in Raleigh, North Carolina and was dispatched by Ridley to Roanoke,
Virginia. Plaintiff testified he: (1) drove a truck from Raleigh to the
Virginia state line; (2) drove back to Raleigh; and (3) drove another truck the
entire route to Roanoke. Plaintiff
returned back to North Carolina within a few days, due to inclement weather.
Plaintiff stayed at motels while working out of town.
Plaintiff stated he occasionally drove back to North Carolina from out-of-state
jobs to obtain needed supplies or equipment from a warehouse located in
Raleigh. At other times, supplies were
shipped directly to the job site.
Plaintiff testified that he: (1) lives in North Carolina; (2) reported to work in North
Carolina; (3) was dispatched for work from North Carolina; (4) ended his work
in North Carolina; and (5) received his direct deposit pay stub in North
Carolina. Plaintiff also testified the
trucks used on the job were returned and kept in North Carolina. The trucks were also maintained and serviced
in North Carolina, unless a vehicle required repair at an out-of-state job
site.
B.
Defendants’ Testimony
Langevin testified he works at Traffic Markings’s
headquarters in Franklin, Massachusetts.
Traffic Markings is a pavement marking company. Langevin oversees the entire company’s
operations as its operations manager.
Langevin testified Traffic Markings performs work in the Northeast and
down the east coast from New York to Georgia.
Langevin described Traffic Markings’s hiring process. The company searches for employees by
placing advertisements in newspapers.
Potential employees respond and are requested to complete an
application. An interview and a drug
screen is conducted. At the interview,
Traffic Markings distributes employee handbooks, information on the company’s
safety policy and its “hazardous communication program.” The company also requests a driving record
from the state in which the potential employee resides. The potential employee is also asked to
complete a W-4 and I-9. A copy is made
of the person’s social security card. A
nurse practitioner in Massachusetts is contacted to telephone potential
employees and discuss the job’s demands.
This information is collected and sent to Langevin in
Massachusetts. Langevin is the final
decision maker on which applicants Traffic Markings will offer employment in
all states.
Langevin performs the entire hiring process in the
Northeast. In southern states, Langevin
only performs the paperwork portion of the hiring process and approves
potential new employees. Langevin
testified Ridley is the person who places advertisements in the newspapers,
interviews the potential employees, and actually offers the job to the
potential employee once notified by Langevin to do so.
Langevin testified that plaintiff was hired after his
application and testing was completed.
Langevin did not remember the exact date plaintiff’s paperwork was
completed. Langevin informed Ridley, “I
have all [plaintiff’s] stuff in and set him up to work.” Langevin testified Ridley would have
telephoned plaintiff and said, “Come to work.”
When asked if plaintiff would have accepted the job in North Carolina,
Langevin responded, “He would have accepted, yes.”
Traffic Markings’s president, contracts manager, and
operations manager are located in Massachusetts. Langevin testified Traffic Markings’s entire office staff
including accounts payable, accounts receivable, and payroll is located in
Massachusetts.
Langevin also testified about Traffic Markings’s office in
Raleigh, North Carolina at the time plaintiff was hired. Traffic Markings rented a small building
with an office and storage area.
Langevin testified, after reviewing the company’s time entry
reports, plaintiff worked “ninety-five percent of the time” outside of North
Carolina.
Ridley testified Langevin makes the ultimate decision to
hire a potential employee. Ridley
explained he processed some of the initial paperwork for plaintiff’s
application for employment and sent the information to Langevin in
Massachusetts. After Langevin decided
to hire plaintiff, Ridley telephoned from Raleigh to plaintiff in Durham and
notified him that, “There’s a crew heading out of town. Be in the shop at six a.m., and pack a bag.” Plaintiff responded and appeared for work
that day in Raleigh.
On 24 May 2005, the deputy commissioner entered an opinion
and award that concluded the Commission has jurisdiction over plaintiff’s claim
pursuant to N.C. Gen. Stat. §97-36.
Defendants appealed to the Full Commission. On 11 April 2006, the Full Commission entered an opinion and
award that affirmed the deputy commissioner’s decision. The Full Commission concluded:
Plaintiff’s
June 26, 2003, South Carolina accident is compensable under the North Carolina
Workers’ Compensation Act because: plaintiff’s accident would entitle him to
compensation if it had happened in North Carolina; the contract of employment
between plaintiff and defendant-employer was made within North Carolina; and,
at the time of the accident, plaintiff’s principle place of employment was within
North Carolina. N.C. Gen. Stat. §97-36.
Defendants
appeal.
II.
Issue
Defendants argue the Commission did not possess jurisdiction
over plaintiff’s workers’ compensation claim pursuant to N.C. Gen. Stat.
§97-36.
III.
Standard of Review
Our Supreme Court has stated:
As a general
rule, the Commission’s findings of fact are conclusive on appeal if supported
by any competent evidence. It is well
settled, however, that the Commission’s findings of jurisdictional fact are not
conclusive on appeal, even if supported by competent evidence. The reviewing court has the right, and the
duty, to make its own independent findings of such jurisdictional facts from
its consideration of all the evidence in the record.
Perkins
v. Arkansas Trucking Servs., Inc., 351 N.C. 634, 637, 528 S.E.2d 902,
903-04 (2000) (emphasis supplied) (internal citations and quotations omitted);
see Davis v. Great Coastal Express, 169 N.C. App. 607, 609, 610 S.E.2d 276,
278 (“[T]he Commission’s findings of jurisdictional fact are not conclusive
on appeal, even if supported by competent evidence.”) (internal quotation
omitted), disc. rev. denied, 359 N.C. 630, 616 S.E.2d 231 (2005).
IV. N.C.
Gen. Stat. §97-36
N.C. Gen. Stat. §97-36 (2005) contains the factors to
determine if an employee, who is injured in an accident outside of North
Carolina, is entitled to compensation.
N.C. Gen. Stat. §97-36 provides:
Where an
accident happens while the employee is employed elsewhere than in this State
and the accident is one which would entitle him . . . to compensation if it had
happened in this State, then the employee . . . shall be entitled to
compensation (i) if the contract of employment was made in this State, (ii) if
the employer’s principal place of business is in this State, or (iii) if
the employee’s principal place of employment is within this State[.]
N.C.
Gen. Stat. §97-36 (emphasis supplied).
“Because plaintiff’s accident occurred in South Carolina,
North Carolina has jurisdiction over plaintiff’s workers’ compensation claim only
if one of the three provisions in N.C.G.S. §97-36 applies.” Davis, 169 N.C. App. at 608, 610
S.E.2d at 278 (emphasis supplied).
In order for the Commission to assert jurisdiction over
plaintiff’s claim, the jurisdictional facts must show either: (1) plaintiff’s “contract for employment was
made in this State;” (2) defendants’ “principal place of business is in this
State;” or (3) plaintiff’s “principal place of employment [was] within this
State.” N.C. Gen. Stat. §97-36. Neither party asserts defendants’ principal
place of business is located in North Carolina. Plaintiff must prove either: (1) his contract for employment was
made in North Carolina or (2) his principal place of employment was within
North Carolina. Id.
A.
Plaintiff’s Contract for Employment
Defendants argue the last act that created an employment
relationship between plaintiff and Traffic Markings occurred in Massachusetts
and assert plaintiff’s contract for employment was not made in North
Carolina. We disagree.
“To determine where a contract for employment was made, the
Commission and the courts of this state apply the ‘last act’ test.” Murray v. Ahlstrom Indus. Holdings, Inc.,
131 N.C. App. 294, 296, 506 S.E.2d 724, 726 (1998) (quoting Goldman v.
Parkland, 277 N.C. 223, 176 S.E.2d 784 (1970); Thomas v. Overland
Express, Inc., 101 N.C. App. 90, 96, 398 S.E.2d 921, 926 (1990), disc.
rev. denied, 328 N.C. 576, 403 S.E.2d 522 (1991)). “[F]or a contract to be made in North
Carolina, the final act necessary to make it a binding obligation must be done
here.” Thomas, 101 N.C. App. at
96, 398 S.E.2d at 926 (citing Goldman, 277 N.C. 223, 176 S.E.2d 784).
Our Supreme Court has stated:
In the
formation of a contract an offer and an acceptance are essential elements; they
constitute the agreement of the parties.
The offer must be communicated, must be complete, and must be accepted
in its exact terms. Mutuality of
agreement is indispensable; the parties must assent to the same thing in the
same sense, idem re et sensu, and their minds must meet as to all the
terms.
Dodds
v. Trust Co.,
205 N.C. 153, 156, 170 S.E. 652, 653 (1933) (internal citations omitted).
Undisputed testimony in the record shows: (1) Langevin made the final decision to hire
plaintiff in Massachusetts; (2) Langevin telephoned Ridley in North Carolina
and informed him, “I have all [plaintiff’s] stuff in and set him up to work[];”
(3) Ridley telephoned plaintiff at home in North Carolina and stated, “There’s
a crew heading out of town. Be in the shop
at six a.m., and pack a bag[];” and (4) on 30 March 2003, plaintiff reported to
work in Raleigh, North Carolina and was dispatched to Roanoke, Virginia by
Ridley. Traffic Markings offered
plaintiff a job when Ridley in Raleigh, North Carolina telephoned him in
Durham, North Carolina. Plaintiff
accepted the job on 30 March 2003 when he reported for work in Raleigh, North
Carolina. Plaintiff’s contract for
employment was completed in North Carolina upon this offer and acceptance. Murray, 131 N.C. App. at 296-97, 506
S.E.2d at 726-27 (Plaintiff’s contract for employment was completed in North
Carolina when his former out-of-state employer telephoned him at his home in
Canton, North Carolina and offered plaintiff a job in Mississippi and plaintiff
immediately accepted.); see Dodds, 205 N.C. at 156, 170 S.E. at 653 (“In
the formation of a contract an offer and an acceptance are essential
elements[.]”).
Plaintiff’s acceptance of employment in North Carolina was
the “last act” that created his contract for employment with Traffic
Markings. N.C. Gen. Stat. §97-36
confers the Commission’s jurisdiction over plaintiff’s claim.
V.
Conclusion
“Because plaintiff’s accident occurred in South Carolina,
North Carolina has jurisdiction over plaintiff’s workers’ compensation claim only
if one of the three provisions in N.C.G.S. §97-36 applies.” Davis, 169 N.C. App. at 608, 610
S.E.2d at 278 (emphasis supplied). We
hold plaintiff’s contract for employment was created in North Carolina. The Commission’s opinion and award is
affirmed.
Affirmed.
Judges HUNTER and JACKSON concur.