Washington v. Traffic Markings, Inc.

643 S.E.2d 44, 182 N.C. App. 691, 2007 N.C. App. LEXIS 785
CourtCourt of Appeals of North Carolina
DecidedApril 17, 2007
DocketNo. COA06-1086.
StatusPublished
Cited by7 cases

This text of 643 S.E.2d 44 (Washington v. Traffic Markings, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Washington v. Traffic Markings, Inc., 643 S.E.2d 44, 182 N.C. App. 691, 2007 N.C. App. LEXIS 785 (N.C. Ct. App. 2007).

Opinion

TYSON, Judge.

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.

I. Background

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 jurisdictional grounds.

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 *46Carolina 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 updated driving 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 Raleigh.

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 2003.

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 from out-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 job site.

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 Georgia.

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 employee resides. 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 so.

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.

*47Langevin 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 accounts payable, accounts receivable, and payroll is located in Massachusetts.

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.

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Cite This Page — Counsel Stack

Bluebook (online)
643 S.E.2d 44, 182 N.C. App. 691, 2007 N.C. App. LEXIS 785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washington-v-traffic-markings-inc-ncctapp-2007.