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Holmes v. Associated Pipe Line Contractors Inc.

Court of Appeals of North Carolina

February 7, 2017

MARTHA HOLMES, Employee, Plaintiff
v.
ASSOCIATED PIPE LINE CONTRACTORS, INC., Employer, OLD REPUBLIC CONSTRUCTION PROGRAM GROUP, INC., Carrier (GALLAGHER BASSETT SERVICES, Third-Party Administrator), Defendants.

          Heard in the Court of Appeals 2 November 2016

         Appeal by plaintiff from opinion and award entered 2 March 2016 by the North Carolina Industrial Commission I.C. Nos. 14-726251 & 14-773225.

          Oxner Permar, PLLC, by John R. Landry, Jr., for plaintiff-appellant.

          Hedrick Gardner Kincheloe & Garofalo, LLP, by M. Duane Jones and Thomas W. Page, for defendants-appellees.

          DAVIS, Judge.

         This workers' compensation case presents the jurisdictional question of whether an employee's submission to a mandatory drug test in another state before beginning work constitutes the last act necessary to form an employment contract between the employee and her employer. Martha Holmes ("Plaintiff") appeals from an opinion and award of the North Carolina Industrial Commission dismissing her claims for benefits under the North Carolina Workers' Compensation Act based on lack of jurisdiction. Because we conclude that the last act necessary to create her employment contract occurred in Texas, we affirm.

         Factual and Procedural Background

         Associated Pipe Line Contractors, Inc. ("Associated") is headquartered and has its principal place of business in Houston, Texas. In the fall of 2013, Associated was in need of workers for a project in Huntsville, Texas. Associated's superintendent contacted the on-site union steward at the work site in Huntsville and informed the steward that Associated needed union workers for the project. The steward then contacted "Local 798, " a local trade union based in Tulsa, Oklahoma.

         Since 2007, Plaintiff, a member of Local 798, had been working as a welder helper for various contractors. On 29 October 2013 - while Plaintiff was living in Fayetteville, North Carolina - she was contacted by telephone by a representative of Local 798 and told to report to an assignment in Huntsville, Texas. Plaintiff was instructed that "she had 24 hours to be in route to the jobsite" and that Associated would reimburse her for her travel expenses.

         When she arrived in Huntsville, Plaintiff was required to submit to a drug test and complete various forms - including an authorization for a Department of Transportation background check - before she could begin working. Within two hours after taking the drug test, Plaintiff began work at the Huntsville jobsite.

         On 8 and 26 January 2014, Plaintiff suffered injuries on the jobsite. On 24 March 2014, Plaintiff filed a Form 18 Notice of Accident for the first injury, and on 5 September 2014, she submitted a Form 18 for the second injury. Associated filed a Form 61 denying liability on 12 May 2014 and an amended Form 61 on 21 August 2014. Its denial of liability was based on the assertion that "the North Carolina Industrial Commission does not have jurisdiction over this claim, which occurred outside of North Carolina."

         On 13 May 2014, Plaintiff filed a Form 33 Request that Claim be Assigned for Hearing. On 25 June 2014, Associated filed a Form 33R disputing that Plaintiff had sustained a compensable injury and once again contending that the Industrial Commission lacked jurisdiction over her claims. Plaintiff subsequently filed an amended Form 33 to include her second injury.

         On 9 December 2014, a hearing was held before Deputy Commissioner George T. Glenn, II. Plaintiff, Ryan Wilcox, Associated's Vice President of Safety and Compliance, and Gary Allison, the welding foreman for the project, appeared as witnesses at the hearing. Wilcox testified that when Associated is in need of laborers for a project, it requests the workers through an on-site union steward. The steward then contacts a trade union, who, in turn, dispatches workers from various locations around the country. When the workers arrive at the jobsite, they are required to take a drug test and consent to a background check. Unless the worker submits to both the drug test and the background check, she will not be hired. Because it takes several days for Associated to receive the results, the worker begins work immediately upon taking the drug test and signing a form acknowledging consent to the background check.

         On 25 February 2015, the Deputy Commissioner issued an opinion and award dismissing Plaintiff's claims based on lack of subject matter jurisdiction. Plaintiff appealed to the Full Commission on 2 March 2015. On 1 October 2015, the Full Commission heard arguments from the parties as to whether the Commission possessed jurisdiction over Plaintiff's claims.

         On 2 March 2016, the Commission issued its Opinion and Award, which contained the following pertinent findings of fact:

6. Plaintiff was working for [Associated] on a job site located in Huntsville, Texas at the time of her alleged injuries. This was the only location at which plaintiff ever worked for [Associated].
7. While performing a contract job in Huntsville, Texas, [Associated] contacted the on-site union steward and requested union workers for the job. The union steward contacted the Local 798 union in Tulsa, Oklahoma. A dispatcher with the Local 798 union in Oklahoma then contacted plaintiff at her home in Fayetteville, North Carolina.
8. The Local 798 dispatcher told plaintiff to report to an assignment in Huntsville, Texas as a welder's helper. The union dispatcher informed plaintiff that she had 24 hours to be en route to the job site in Huntsville, ...

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