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Taylor v. Howard Transportation, Inc.

Court of Appeals of North Carolina

May 5, 2015

BRUCE D. TAYLOR, Plaintiff,
v.
HOWARD TRANSPORTATION, INC. and TRAVELERS INDEMNITY COMPANY OF AMERICA, Defendants

Heard in the Court of Appeals January 6, 2015

North Carolina Industrial Commission, I.C. No. 931701.

VACATED.

Holt, Longest, Wall, Blaetz & Moseley, PLLC, by W. Phillip Moseley, for plaintiff-appellee.

Hedrick Gardner Kincheloe & Garofalo, LLP, by Neil P. Andrews and M. Duane Jones, for defendants-appellants.

Judges BRYANT and HUNTER, JR concur.

OPINION

Appeal by defendants from opinion and award entered 14 April 2014 by the North Carolina Industrial Commission.

Page 836

STROUD, Judge.

Howard Transportation, Inc. (" HT" ) and Travelers Indemnity Company of America (collectively " defendants" ) appeal from an opinion and award by the Full Commission. Defendants contend that the Commission (1) lacked subject-matter jurisdiction over a workers' compensation claim by Bruce D. Taylor (" plaintiff" ) and (2) erred in concluding that plaintiff is entitled to ongoing disability compensation. We vacate the Commission's opinion and award.

I. Factual Background

In 2002, plaintiff, a resident of Burlington, North Carolina, sent an employment application to Dorothy Ivey, a recruiter for HT, a trucking company. On 25 September 2002, Ivey sent plaintiff's employment application to HT's safety department in Ellisville, Mississippi. After HT's employees confirmed plaintiff's eligibility, Ivey arranged for a van to pick up plaintiff and take him to HT's headquarters in Laurel, Mississippi. After arriving in Mississippi on 9 December 2002, plaintiff successfully completed HT's orientation, a road test, a drug test, and a physical exam. HT then hired plaintiff as a truck driver. On or about 13 June 2003, plaintiff resigned his employment with HT and began working for another trucking company.

On or about 14 May 2004, Michele King, a recruiter for HT, sent plaintiff a letter inviting him to reapply to work for HT. Plaintiff called King from his North Carolina residence and told her that he would be willing to work for HT if HT gave him a better truck and assigned him to a different dispatcher. King responded that she would need to talk with Suzanne Skipper and Larry Knight, two of HT's managers. King called plaintiff and told him that Skipper and Knight were willing to meet plaintiff's conditions if plaintiff would " come back to work." Plaintiff responded that he would " come back to work," and King arranged for a van to pick up plaintiff and take him to Laurel, Mississippi. On 16 August 2004, plaintiff arrived in Mississippi. Over the next three days, he completed HT's orientation, a road test, a drug test, a physical exam, and employment paperwork. On 19 August 2004, HT rehired plaintiff as a truck driver.

On 6 October 2006, while working for HT, plaintiff was struck by a pick-up truck at a truck stop in Maryland. Plaintiff sustained injuries to his left knee, hip, and back.

II. Procedural Background

On 3 June 2008, plaintiff filed Industrial Commission Form 18 giving notice of his workers' compensation claim. On 14 August 2008, defendants filed Form 61 denying plaintiff's claim. On or about 19 August 2010, Deputy Commissioner Philip Baddour found that the Commission lacked subject-matter jurisdiction over plaintiff's claim and ordered that plaintiff's claim be dismissed with prejudice. Plaintiff appealed to the Full Commission. In its 11 March 2011 opinion and award, the Full Commission by Commissioner Bernadine Ballance found that the Commission had subject-matter jurisdiction over plaintiff's claim, reversed the deputy commissioner's opinion, and remanded the case for a full evidentiary hearing. Defendants appealed to this Court. On 6 March 2012, this Court held that the Full Commission's 11 March 2011 opinion and award was a non-appealable interlocutory order and dismissed defendants' appeal. Taylor v. Howard Transp., Inc., 219 N.C.App. 402, 722 S.E.2d 212 (2012) (unpublished).

On or about 12 September 2013, Deputy Commissioner Myra Griffin awarded plaintiff, inter alia, $579.73 per week in temporary total disability benefits from 6 October 2006 to 18 June 2007 and from 5 November 2009 continuing until " Plaintiff returns to work or further order of the Commission." Defendants appealed to the Full Commission. In its 14 April 2014 opinion and award, the Full Commission by Commissioner Danny Lee McDonald affirmed with modifications Deputy Commissioner Griffin's opinion and award. On or about 21 April 2014, defendants received by certified mail the Full Commission's 14 April 2014 opinion and

Page 837

award. On 19 May 2014, defendants timely gave ...


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