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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
DAVID WASHINGTON, JR., Employee, Plaintiff, v. TRAFFIC MARKINGS,
INC., Employer, LIBERTY MUTUAL INSURANCE CO., Carrier, Defendants
Filed: 17 April 2007
Workers' Compensation_jurisdiction--South Carolina accident_multi-state employer
The Industrial Commission had jurisdiction over a workers' compensation claim arising
from an accident in South Carolina while plaintiff was working for a company which performs
work on much of the East Coast. Plaintiff's contract of employment was created in North
Carolina, one of the three provisions for jurisdiction in N.C.G.S. § 97-36.
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
Susan B. Kilzer, for plaintiff-appellee.
Cranfill, Sumner & Hartzog, L.L.P., by Roy G. Pettigrew, for
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.
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
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 updateddriving 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
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
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 fromout-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
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
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 employeeresides. 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
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 accountspayable, accounts receivable, and payroll is located in
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 theaccident, plaintiff's principle place of
employment was within North Carolina. N.C.
Gen. Stat. § 97-36.
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 ofNorth Carolina, is entitled to compensation. N.C. Gen. Stat. §
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
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
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) Ridleytelephoned 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.
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 employmentwas created in North Carolina. The Commission's opinion and award
Judges HUNTER and JACKSON concur.
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