in the Court of Appeals 2 November 2016
by plaintiff from opinion and award entered 2 March 2016 by
the North Carolina Industrial Commission I.C. Nos. 14-726251
Permar, PLLC, by John R. Landry, Jr., for
Hedrick Gardner Kincheloe & Garofalo, LLP, by M. Duane
Jones and Thomas W. Page, for defendants-appellees.
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.
and Procedural Background
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.
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.
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
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."
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
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
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
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
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, ...