1. Workers' Compensation-- truck driver--jurisdiction
The Industrial Commission did not have jurisdiction to hear the workers' compensation
claim of a truck driver who made pick-ups and deliveries across the eastern part of the United
States for a company based in Virginia, who received his instructions over a computer in a
company truck, who lived in North Carolina, and who was injured in a traffic accident in South
Carolina.
2. Workers' Compensation--truck driver--jurisdiction--finding
In a workers' compensation case in which the issue was jurisdiction, competent evidence
supports the Industrial Commission finding that plaintiff was in the middle of existing trips when
he returned home to North Carolina and was not dispatched from his residence.
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 whichhe returned to his home in Enka, North Carolina. D
efendant'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 andthe 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 nostate, 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 thesame 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 theplaintiff'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 wouldrequest 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.
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