Hollifield v. Commc'ns Installations Specialists

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e . NO. COA13-378 NORTH CAROLINA COURT OF APPEALS Filed: 5 November 2013 DAVID A. HOLLIFIELD, Employee, Plaintiff, v. North Carolina Industrial Commission I.C. No. W68730 COMMUNICATIONS INSTALLATIONS SPECIALISTS, Employer, CHARTIS INSURANCE, Carrier, Defendants. Appeal by plaintiff and cross-appeal by defendants from an order of the Full Commission filed 3 December 2012 by the North Carolina Industrial Commission. Heard in the Court of Appeals 21 October 2013. Law Office of Gary A. Dodd, by Gary A. Dodd, for plaintiffappellant. Teague, Campbell, Dennis & Gorham, by John L. Kubis Jr., for defendants-appellees/cross-appellants. MARTIN, Chief Judge. David A. Hollifield, plaintiff, appeals and defendants, -2Communications Chartis order Installations Insurance of the Company Full Specialists ( Chartis ), Commission of the ( Specialists ) cross-appeal Industrial and from an Commission denying plaintiff s motion to reconsider the Full Commission s opinion and award filed on 3 October 2012. The evidence at the hearing, before the deputy commissioner, tended to show that plaintiff was 62 years old and had worked in the construction industry for approximately 40 years with several construction companies. Plaintiff worked with Specialists, a now insolvent defunct Georgia-based company, on a project in Tennessee. and When that project was completed he returned to North Carolina and soon after began working with a different construction company. On or about 24 October 2009 Specialists telephoned plaintiff, while he Knoxville, was working Tennessee. in North During Carolina, this about conversation a job in Specialists agreed to pay plaintiff $18.00 per hour and he accepted the job. Based on this agreement, plaintiff travelled to Knoxville on 2 November 2009. On 7 November 2009 at the construction site in Tennessee, plaintiff tripped when getting off a backhoe and fell, landing on his head. Plaintiff was transported to the emergency room at Blount Memorial Hospital where he underwent a CT scan, and he -3was told to seek medical treatment when he returned to North Carolina. The next day he returned to North Carolina, but went back to Knoxville on 9 November 2009 to supervise the other workers. He was terminated by Specialists on 14 November 2009 because he could not perform any physical work duties. As a result of plaintiff s fall, he suffered injuries to his head, back, neck, and ribs. His physician, Dr. Sutaria, who treated plaintiff primarily for health conditions unrelated to his fall, could not establish the extent of the injuries suffered in the fall nor causally relate his disability to his work injury. Based on these facts, the Commission concluded that it had jurisdiction disabled, but over the plaintiff s he was entitled claims, to past that and expenses incurred as a result of his injury. he future was not medical Plaintiff appeals and defendants cross-appeal. _________________________ The issues before the Court are whether (i) the Commission has subject matter jurisdiction over this dispute; (ii) plaintiff is entitled to benefits under N.C.G.S. § 97-31(23); and (iii) the Commission should receive additional evidence. Generally, when we review an opinion and award from the Industrial Commission we limit our review to whether any -4competent evidence supports the Commission s findings of fact and whether the findings conclusions of law. 109, 116, permitted 530 to of fact support the Commission s Deese v. Champion Int l Corp., 352 N.C. S.E.2d reweigh 549, the 553 (2000). evidence and This Court evidence is tending not to support the plaintiff s claim must be viewed in the light most favorable to the plaintiff. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998), reh g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). However, there are at least two exceptions to the general standard of review. jurisdictional facts First, are the not Commission s conclusive supported by competent evidence. on findings appeal, even of if Perkins v. Arkansas Trucking Servs., Inc., 351 N.C. 634, 637, 528 S.E.2d 902, 903 04 (2000) (citing Lucas v. Li l Gen. Stores, 289 N.C. 212, 218, 221 S.E.2d 257, 261 (1976)). Thus, the appellate court has a duty to consider all of the evidence and find its own jurisdictional facts. Lucas, 289 N.C. at 218, 221 S.E.2d at 261. The second exception is when a court reviews the Commission s discretionary powers articulated in N.C.G.S. § 9785, which provides that the Commission may if good ground be shown therefor, reconsider the evidence, receive further evidence, [and] rehear the parties or their representatives. -5N.C. Gen. Stat. § 97-85 (2011), amended by 2013 N.C. Sess. Laws 404, 404, ch. 163, § 1. Because it is for the Commission to decide if good ground is shown the Commission s determination in that regard will not be reviewed on appeal absent a showing of manifest abuse of discretion. Lynch v. M.B. Kahn Constr. Co., 41 N.C. App. 127, 131, 254 S.E.2d 236, 238, disc. review denied, 298 N.C. 298, 259 S.E.2d 914 (1979). Specialists and Chartis contend the Commission lacks subject matter jurisdiction because the last act creating the employment contract in question occurred in Tennessee, not North Carolina. Plaintiff argues that we should not consider defendants argument because they failed to properly appeal the question of subject matter jurisdiction to the Full Commission. We disagree with both of these arguments. A party may not consent to subject matter jurisdiction that is not authorized by law. In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006). So a party may raise the issue of subject matter jurisdiction at any stage of a proceeding. Id. In fact, an argument relating to subject matter jurisdiction may be argued for the first time before the North Carolina Supreme Court. 164, Id.; 558 see, e.g., Wood v. Guilford Cty., 355 N.C. 161, S.E.2d 490, 493 (2002). Thus, we defendants subject matter jurisdiction argument. should consider -6When an employee s accident takes place in, or an employee receives payment from, another state, the Commission s jurisdiction is limited to the following situations: (i) . . . the contract of employment was made in this State, (ii) . . . the employer s principal place of business is in this State, or (iii) . . . the employee s within this State. principal place of employment is N.C. Gen. Stat. § 97-36 (2011). The parties agree that Specialists is a Georgia corporation and that plaintiff worked in Tennessee. have jurisdiction, the employment For the Commission to contract must have been entered into in this State. Our courts apply the last act test to determine where an employment contract is made. Murray v. Ahlstrom Indus. Holdings, Inc., 131 N.C. App. 294, 296, 506 S.E.2d 724, 726 (1998); see, e.g., Goldman v. Parkland of Dallas, Inc., 277 N.C. 223, 226 27, 176 S.E.2d 784, 787 (1970). To confer jurisdiction, this test requires that the final act necessary to create a binding obligation, usually acceptance, occur in this State. Thomas v. Overland Exp., Inc., 101 N.C. App. 90, 96 97, 398 S.E.2d 921, 925 26 (1990), disc. review denied, 328 N.C. 576, 403 S.E.2d 522 (1991). We believe our decision in Murray controls the disposition of this case. In Murray, the plaintiff was employed by the -7defendant and upon the termination returned to North Carolina. S.E.2d at 725. called offered the him that employment he Murray, 131 N.C. App. at 295, 506 Two and one-half months later the defendant plaintiff, a of position at his in North Carolina Mississippi. residence, Id. The and plaintiff turned down the initial offer, but the defendant called back and offered to pay him more money for the same job. plaintiff accepted the offer. Id. Id. The This Court held that the plaintiff s acceptance, at his home in North Carolina, was the last act creating a binding obligation between the parties and that the paperwork the plaintiff completed at the job site was a consummation of the employment relationship [and not] the last act required to make it a binding obligation. Id. at 297, 506 S.E.2d at 726 27. Defendants attempt to distinguish Murray by arguing that the plaintiff, in Murray, was unemployed at the time he accepted the offer of employment; while plaintiff, in this case, was employed at the time of the offer of employment, which prevented him from assenting to the terms of the offer. For this proposition defendants rely on Washington v. Traffic Markings, Inc., 182 N.C. App. 691, 698, 643 S.E.2d 44, 48 (2007), which relies on Murray in reaching its ultimate conclusion. Therefore, we find defendants distinction unconvincing. -8In Carolina, this case, and Specialists offered him a called job in plaintiff, Tennessee. in North Specialists agreed to pay plaintiff $18.00 per hour and plaintiff accepted that offer. Plaintiff s actions of reporting for work in Tennessee, and completing the employment form in Tennessee were simply the fulfillment of their agreement. App. at 297, 506 S.E.2d at 726 27. See Murray, 131 N.C. Therefore, the Commission has jurisdiction because the last act giving rise to the binding employment obligation was plaintiff s acceptance of Specialists offer in North Carolina. In his appeal, plaintiff argues the Commission erred by denying plaintiff weekly compensation benefits under N.C.G.S. § 97-31(23) because the Commission should have presumed a disability existed based on the fact that plaintiff was injured. While we find Commission s this award argument because convincing, plaintiff we failed must to affirm the establish the extent of his back injury. Generally, to recover under the Workers Compensation Act an employee must establish his injury caused his disability, unless his injury is included in the schedule of injuries in N.C.G.S. § 97-31. 250, 159 omitted). S.E.2d Hollman v. City of Raleigh, 273 N.C. 240, 874, 881 (1968) (internal quotation marks If the injury is listed in the schedule of injuries -9then the employee does not have to establish a loss of wageearning capacity because disability is presumed from the fact of the injury itself. Knight v. Wal-Mart Stores, Inc., 149 N.C. App. 1, 11, 562 S.E.2d 434, 442 (2002) aff d per curiam, 357 N.C. 44, 577 S.E.2d 620 (2003). In this case, the Commission found that plaintiff suffered injuries to his head, back, neck, and ribs in the course of his employment. N.C.G.S. Of these injuries, back injuries are § 97-31. However, to determine the listed in amount of compensation that should be awarded under section 97-31(23) the Commission must find that an employee has lost total use of his back or the percentage of the use of his back that he has lost. The Commission found that Dr. Sutaria was not able to establish the extent of plaintiff s disability. While plaintiff is entitled to a presumption of disability due to his injury, he failed to establish the extent of his injury. As a result, plaintiff failed to establish the amount of compensation he is entitled to under section 97-31(23) because the Commission could not determine if plaintiff suffered a total or partial loss of the use of his back. Finally, plaintiff argues that the Commission erred in concluding that there is not good grounds for the Commission to reconsider the evidence, receive further evidence, or rehear the -10parties or their representatives. We find this argument without merit. Plaintiff s argument is that the Commission should have found good grounds to receive additional evidence because there was newly discovered evidence. However, we review the Commission s decision not to receive additional evidence under the abuse of discretion standard. 131, 254 S.E.2d at 238. See Lynch, 41 N.C. App. at The Commission abuses its discretion upon a showing that its ruling is manifestly unsupported by reason or so arbitrary that it could not have been the result of a reasoned decision. Spears v. Betsy Johnson Mem l Hosp., 210 N.C. App. 716, 721, 708 S.E.2d 315, 320 (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)), disc. review denied, __ N.C. __, 710 S.E.2d 20, reh g denied, __ N.C. __, 717 S.E.2d 572 (2011). Furthermore, it is not the purpose of this Court to create an appeal for an appellant. Viar v. N.C. Dep t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005). Plaintiff fails to argue that the Commission abused its discretion in any way in reaching its conclusion. We affirm the Commission s decision not to receive additional evidence because there is no evidence that the Commission s refusal to take additional evidence was not the product of a reasoned decision. Affirmed. -11Judges STEELMAN and DILLON concur. Report per Rule 30(e).

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