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opinions are subject to modification and technical correction prior to official
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authoritative.
NO. COA04-439
NORTH CAROLINA
COURT OF APPEALS
Filed: 5 April
2005
MANUEL
DAVIS,
Employee,
Plaintiff-Appellant,
v. North
Carolina Industrial Commission
I.C.
File No. 953898
GREAT
COASTAL EXPRESS,
Employer,
Defendant-Appellee,
LIBERTY
MUTUAL INSURANCE COMPANY,
Carrier,
Defendant-Appellee.
Appeal by
plaintiff from opinion and award entered 2 December 2003 by the North Carolina
Industrial Commission. Heard in the
Court of Appeals 7 December 2004.
Ganly &
Ramer, by Thomas F. Ramer, for plaintiff-appellant.
Mullen Holland
& Cooper P.A., by James R. Martin, for defendants-appellees.
McGEE, Judge.
Manuel Davis
(plaintiff), an employee of Great Coastal Express (defendant), was injured in a
motor vehicle accident in the course and scope of his employment on 12 July
1999. Defendant hired plaintiff in
April 1999 as an over-the-road truck driver and issued him a company
truck. Plaintiff’s duties included
making pick-ups and deliveries across the eastern part of the United
States. Plaintiff normally had two days
off every two weeks, during which he returned to his home in Enka, North
Carolina. Defendant’s headquarters was
located in Chester, Virginia. Plaintiff
received instructions from defendant
for pick-ups or deliveries over a QualCom computer system installed in
plaintiff’s company truck.
On the day of
the accident, plaintiff left his home in Enka, made deliveries in Winston-Salem
and Charlotte, and then drove into South Carolina to make a delivery. In Gaffney, South Carolina, a vehicle
crossed the highway median and collided with plaintiff’s truck. Plaintiff suffered injuries and post traumatic
stress disorder. Plaintiff filed for
worker’s compensation in North Carolina on 28 July 1999. Defendant denied plaintiff’s workers’ compensation claim on grounds that
the North Carolina Industrial Commission (the Commission) did not have jurisdiction
over plaintiff’s workers’ compensation claim.
A commissioner,
acting as the initial hearing officer, issued an interlocutory opinion and
award on 26 April 2001, finding that the Commission had jurisdiction over
plaintiff’s claim. In an opinion and award
entered 11 June 2002, a deputy commissioner awarded plaintiff temporary total
disability benefits, medical expenses, and attorney’s fees. Defendant appealed to the Commission, which
reversed the deputy commissioner’s opinion, finding that the Commission did not
have jurisdiction over plaintiff’s claim because Virginia, not North Carolina,
was plaintiff’s principal place of employment.
Plaintiff appeals.
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 (2003). 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.
Plaintiff did
not contest that the employment contract was not made in North Carolina, nor
that defendant’s principal place of business was not in North Carolina. Therefore, the issue before the Commission
was whether North Carolina was plaintiff’s principal place of employment. The Commission found as fact and concluded
as law that “plaintiff [could not] meet the third circumstance as his principal
place of employment was in Virginia, not North Carolina.” Plaintiff
first argues the Commission erred in this conclusion of law. Generally, our Court’s review of an opinion
and award of the Commission is limited to evaluating “whether any competent evidence
supports the Commission’s findings of fact and whether the findings of fact
support the Commission’s conclusions of law.”
Deese v. Champion Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549,
553 (2000). However, our Supreme Court
has held that “the Commission’s findings of jurisdictional fact are not
conclusive on appeal, even if supported by competent evidence.” Perkins v. Arkansas Trucking Servs.,
Inc., 351 N.C. 634, 637, 528 S.E.2d 902, 903-04 (2000) (citing Lucas v.
Stores, 289 N.C. 212, 218, 221 S.E.2d 257, 261 (1976); Askew v. Tire Co.,
264 N.C. 168, 174, 141 S.E.2d 280, 284 (1965); Aycock v. Cooper, 202
N.C. 500, 505, 163 S.E. 569, 571 (1932)).
Rather, the reviewing court has the duty “to make its own independent
findings of . . . jurisdictional facts from its consideration of
all the evidence in the record.” Perkins,
351 N.C. at 637, 528 S.E.2d at 904 (quoting Lucas, 289 N.C. at
218, 221 S.E.2d at 261).
Plaintiff
contends his principal place of employment was in North Carolina, and we must consider
the record evidence to determine whether North Carolina was his principal place
of employment. Plaintiff first
analogizes the present case to that of Perkins, which had similar facts,
and in which our Supreme Court determined that North Carolina was the
plaintiff’s principal place of employment.
See Perkins, 351 N.C. at 638, 528 S.E.2d at 904. The plaintiff in Perkins was a truck
driver who was assigned to twelve to thirteen states in the southeast,
including North Carolina. Id. Approximately eighteen to twenty percent of
the plaintiff’s stops were in North Carolina and because the plaintiff’s
employer, Arkansas Trucking, did not have a terminal in North Carolina, the
plaintiff was dispatched from his home in Dudley, North Carolina. Id.
The plaintiff also kept his employer’s truck at his residence in Dudley
when the plaintiff was “off the road.” Id. Our Supreme Court stated: “Not surprisingly,
as a truck driver, plaintiff did not perform the majority of his job duties in
any one state. The record
reflects, however, that no state, standing alone, had the same degree of
significant contacts to plaintiff’s employment as North Carolina.” Id.
Plaintiff
argues that the present case is similar to Perkins in that plaintiff
kept his truck at a truck stop in Candler, North Carolina when plaintiff was
off the road; he began and ended his trips in North Carolina; he was dispatched
from the Candler truck stop through the QualCom computer in his truck; and he
made a significant percentage of his stops in North Carolina. Nevertheless, plaintiff concedes, even by
his count, that only fourteen percent of his stops were made in North Carolina,
as compared to approximately eighteen to twenty percent made by the plaintiff
in Perkins. See Perkins,
351 N.C. at 638, 528 S.E.2d at 904.
Plaintiff
argues that even more than in Perkins, North Carolina was plaintiff’s
principal place of employment because defendant had a terminal in Charlotte
from which plaintiff was sometimes dispatched.
We note, however, that the Commission found that “[p]laintiff received
information and instructions from defendant-employer via a Qualcom satellite
link to a computer in the truck.
Plaintiff was not dispatched from the Charlotte terminal.”
Contrary to
plaintiff’s arguments, the present case raises an issue not present in Perkins,
namely that Virginia, standing alone, had more significant contacts to
plaintiff’s employment than North Carolina.
See Perkins, 351 N.C. at 638, 528 S.E.2d at 904 (stating that
according to the record, “no state, standing alone, had the same degree of
significant contacts to plaintiff’s employment as North Carolina.”). Defendant argues that Virginia had more
significant contacts with plaintiff’s employment because plaintiff accepted
employment in Virginia, was supervised by a person in Virginia, and his
paychecks were issued in Virginia. Most
persuasive to our Court is the fact that plaintiff had more pick-ups and
deliveries in Virginia than in any other state. Defendant argues, and the
Commission found, that “nineteen percent of plaintiff’s pick-ups and deliveries
were in Virginia, only eight percent of his pick-ups and deliveries were in
North Carolina.” In reviewing
plaintiff’s travel logs from 25 April 1999 to 11 July 1999, there are similar
percentages showing approximately ten percent of plaintiff’s pick-ups and
deliveries in North Carolina and approximately eighteen percent in
Virginia. Plaintiff also drove
considerably more miles in Virginia than in any other state, and since
plaintiff was paid by the mile, the majority of his income came from work
performed in Virginia.
Plaintiff
argues that this evaluation of his principal place of employment violates our
Workers’ Compensation Act in that defendant testified that it considered all of
its employees to have their principal place of employment in Virginia for
workers’ compensation purposes. We
agree that having a policy that operates to relieve an employer of any
obligation under the North Carolina Workers’ Compensation Act would violate
N.C. Gen. Stat. §97-6 (2003). See
Perkins, 351 N.C. at 639, 528 S.E.2d at 905 (holding invalid Arkansas’s
policy form that attempted to limit the plaintiff’s rights to seek workers’
compensation in any state other than Arkansas). However, in the case before us, defendant’s policy is not
relevant to our determination as to whether North Carolina is the proper
jurisdiction for plaintiff’s workers’ compensation claim. Unlike Perkins, the evidence in this
case does not demonstrate that no other state “had the same degree of
significant contacts to plaintiff’s employment as North Carolina.” See Perkins, 351 N.C. at 638, 528
S.E.2d at 904. To the contrary, the
evidence in the present case shows that Virginia had more significant contacts
to plaintiff’s employment than North Carolina.
Plaintiff
further asserts, however, that North Carolina was the principal place of his
employment because North Carolina is where plaintiff “focused his duties and
trips.” Plaintiff notes that our
Supreme Court defined “principal” to mean “most important, consequential, or
influential.” Perkins, 351 N.C.
at 638, 528 S.E.2d at 904 (quoting Merriam Webster’s Collegiate Dictionary 926
(10th ed. 1993)). He
contends that North Carolina was the most “consequential” place for plaintiff’s
employment because defendant organized plaintiff’s trips so that plaintiff
would be as close as possible to his residence in Enka when plaintiff ended a
two-week assignment. Under our standard
of review, however, competent evidence supports the Commission’s finding that
plaintiff’s returning to his home in North Carolina every two weeks was “a
continuation of his existing trips as his stored truck may have contained a
full or partially full load. At no time
was plaintiff dispatched from his residence in North Carolina.”
Plaintiff
similarly argues that North Carolina was the “most important” place for
plaintiff’s employment because he was treated like an employee in North
Carolina for income tax purposes.
However, we find that plaintiff’s having taxes withheld from his
paycheck was more a result of plaintiff’s residence in North Carolina, rather
than his place of employment being in North Carolina. As the Commission found:
5. Defendant-Employer allowed employees to choose the state for the purposes of withholding income taxes. Plaintiff chose to have his taxes withheld in North Carolina and, consequently, defendant-employer also paid into the North Carolina unemployment system as required by law. Plaintiff could have chosen any state in the United States for income tax withholding purposes.
Since N.C.G.S.
§97-36 does not provide that an employee’s residence establishes jurisdiction
for receiving workers’ compensation benefits, we find plaintiff’s arguments
unpersuasive.
For the
foregoing reasons, we conclude that North Carolina was not plaintiff’s
principal place of business. Thus,
pursuant to N.C.G.S. §97-36, North Carolina’s Industrial Commission did not
have jurisdiction to hear plaintiff’s workers’ compensation claim, and we
affirm the Commission’s opinion and award.
Plaintiff also
assigns as error the Commission’s findings of fact numbers eight and ten. However, plaintiff fails to argue why
finding of fact number ten was an error and we deem this assignment of error to
be abandoned pursuant to N.C.R. App. P. 28(b)(6). Finding of fact number eight states:
8. Plaintiff was provided a tractor-trailer for his sole use. When plaintiff would request time off, which was usually two days off every two weeks, defendant-employer would attempt to schedule a route that would take plaintiff close to his residence. During his time off, plaintiff was allowed by defendant-employer to store his truck at a rest area in Buncombe County, North Carolina near his home. These were a continuation of his existing trips as his stored truck may have contained a full or partially full load. At no time was plaintiff dispatched from his residence in North Carolina.
Specifically,
plaintiff argues that there is no evidence to support the last sentence: “At no
time was plaintiff dispatched from his residence in North Carolina.” We disagree.
As stated
above, the Commission’s findings of fact will be upheld on appeal if supported
by any competent evidence. See Deese,
352 N.C. at 116, 530 S.E.2d at 553.
Even if there is evidence to the contrary, we will affirm an opinion and
award of the Commission when competent evidence supports the opinion and
award. McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 700
(2004). In the present case, plaintiff
presents his own testimony as evidence that he began and ended his trips at his
home in Enka, North Carolina, and that he received dispatch instructions over
the QualCom computer in his truck.
However, other evidence presented, including plaintiff’s testimony,
showed that plaintiff generally already had his dispatch instructions and the
cargo load for his next delivery when plaintiff stopped in Candler, North
Carolina to return home. Thus,
competent evidence supports the finding that plaintiff was in the middle of
existing trips when he returned home, and that he was not dispatched from his
residence. We affirm the Commission’s
order and award.
Affirmed.
Judges WYNN and
TYSON concur.