                            NO. COA13-860

                  NORTH CAROLINA COURT OF APPEALS

                        Filed: 1 April 2014


VINCENT BURLEY,
     Employee, Plaintiff,

    v.                               From the North Carolina
                                     Industrial Commission
                                     I.C. No. X52202
U.S. FOODS, INC., Employer,
and INDEMNITY INSURANCE COMPANY
OF NORTH AMERICA, Carrier,

    and

GALLAGHER BASSETT SERVICES, INC.,
     Third Party Administrator,

    Defendants.


    Appeal by plaintiff from opinion and award entered 28 June

2013 by the North Carolina Industrial Commission.        Heard in the

Court of Appeals 12 December 2013.


    The Sumwalt Law Firm, by Vernon Sumwalt, Mark T. Sumwalt,
    and Lauren Hester, for Plaintiff-Appellant.

    McAngus, Goudelock & Courie, P.L.L.C.,          by    Raymond   J.
    Williams, III, for Defendants-Appellees.


    HUNTER, JR., Robert N., Judge.


    Vincent Burley (“Plaintiff”) appeals from the 28 June 2013

opinion and award of the Full Commission of the North Carolina
                                        -2-
Industrial Commission (the “Commission”), which concluded that

the Commission did not have subject matter jurisdiction to hear

Plaintiff’s claim.        Plaintiff argues the Commission had subject

matter jurisdiction because a modification to his contract was

approved     by    defendant    U.S.       Foods    Inc.       (“U.S.       Foods”)     in

Charlotte.        We agree and reverse the Commission’s opinion and

award.

                      I. Facts & Procedural History

    On 8 July 2011, Plaintiff filed a claim for benefits with

the Commission seeking compensation for a back injury suffered

while working for U.S. Foods as a truck driver.                             U.S. Foods

denied   that     North   Carolina     has    jurisdiction        over      Plaintiff’s

claim,     but    admitted     liability       under     the     Georgia       Workers’

Compensation Act and is currently paying Plaintiff disability

compensation      under   Georgia     law.      The      matter      came    on   for   a

hearing before Deputy Commissioner Philip A. Baddour, III (“Dep.

Comm. Baddour”) on 17 April 2012 and a written order was filed

on 13 December 2012.            The evidence presented at the hearing

tended to show the following facts.

    Plaintiff is a resident of Augusta, Georgia and was a 39-

year-old    truck    driver    at    the     time   of   his    13    December        2012

hearing before the Commission.                 In 1993, Plaintiff graduated
                                         -3-
from truck driving school in Charleston, South Carolina, and

obtained    his   commercial      driving      license    from   this    course   of

study.     Plaintiff has been a truck driver since graduating from

this program.

    U.S.     Foods     supplies    and    delivers       food    to   restaurants,

schools,    sports     venues,     hotels,       and     many    other   types    of

businesses.       U.S.   Foods     operates       many    distribution      centers

nationwide to supply “hundreds of thousands of customers” with

its food products.

    Plaintiff testified that U.S. Foods hired him as a delivery

truck    driver   in   May   2000.       Plaintiff       completed    his   initial

hiring    paperwork,     including    a     driver’s      application,      medical

exam, and written driving exam, in Fort Mill, South Carolina.

Plaintiff completed additional pre-hiring paperwork, including a

road-test in Columbia, South Carolina and a drug-screening in

Georgia.      After completing his initial paperwork, U.S. Foods

offered Plaintiff employment, and Plaintiff accepted the written

offer.     Plaintiff     signed this paperwork            in Fort Mill, South

Carolina and was employed at-will.

    Plaintiff drove a planned route as part of his employment.

The route was concentrated around the Augusta area, with stops

in Georgia and South Carolina.                 Plaintiff’s truck and trailer
                                         -4-
were stowed every day at a drop yard in Augusta.                       Plaintiff’s

route did not involve travel in North Carolina nor was his truck

ever dropped in North Carolina.

       U.S. Foods merged with another company, PYA Monarch, and

the    Columbia      drop   yard,    where     Plaintiff   was      assigned,    was

dissolved in 2002.          Plaintiff testified that U.S. Foods offered

to    transfer      supervision     of   his    employment     to    either     their

Charlotte division or their Lexington, South Carolina division

after the merger.           Plaintiff chose to work for the Charlotte

division because U.S. Foods arranged for his loaded delivery

truck to be delivered near his Augusta home.                        Had Plaintiff

chosen the Lexington division, he would have been required to

drive   his   personal      vehicle      to   retrieve   his   loaded    truck    in

Lexington.       Plaintiff’s transfer to the Charlotte division was

thereafter approved by U.S. Foods’s human resources department

in Charlotte.

       Plaintiff’s job title and responsibilities did not change

after he was transferred to the Charlotte division                       from the

Columbia division.          Plaintiff stated that he was working the

“same job, just a different division,” although Plaintiff made

deliveries to different customers and drove a different route.

Plaintiff     was    also   switched     from   an   hourly    weight-based      pay
                                         -5-
system to a component pay system.                    As a result, Plaintiff saw

his pay increase from $400 to $500 a week under the weight-based

system to between $900 and $1,400 per week under the component

system.      Plaintiff worked continuously for U.S. Foods for nine

years, was never terminated or laid off, and never completed re-

hiring paperwork during this period.

      Plaintiff      injured     his    back    on    23    September       2009   while

lifting a case of liquid milk during a delivery to a Sonic

Drive-In in Evans, Georgia.              U.S. Foods terminated Plaintiff’s

employment on 1 October 2009.

      U.S.    Foods’s      Charlotte       division        Transportation      Manager

Alton Abernathy (“Mr. Abernathy”) also testified at the 17 April

2012 hearing.       Mr. Abernathy stated that upon the merger of U.S.

Foods and PYA Monarch, U.S. Foods “went to all the drivers [in

the   Columbia      drop   yard]    that    were      being    displaced . . . and

offered them jobs” if they transferred branches.                        If Plaintiff

rejected     the    transfer,      he   would    have       received    a    severance

package.      Mr.    Abernathy      further     described      the     different    pay

systems      between       the     Charlotte         and     Columbia       divisions:

Plaintiff’s component pay system paid his commission on “pieces

and stops and miles with a base and safety pay” rather than

Plaintiff’s prior pay system, which was based on weight carried.
                                          -6-
Mr.       Abernathy      also      described       the       Charlotte      division’s

accommodations for its drivers, noting that the branch delivered

drivers’ loads to fifteen different sites, including Plaintiff’s

drop site in Augusta.

       Plaintiff’s      transfer    was     approved        and    signed    by   three

individuals: Doug Jolly, U.S. Foods’s Transportation Manager at

its Fort Mill division; Kim Dahl, a human resources officer at

U.S. Foods; and Mel Smith, who provided final approval from the

human    resources      department.             U.S.    Food’s     human    resources

department has been located in Charlotte since 4 December 2000,

and both Kim Dahl and Mel Smith worked in the Charlotte office.

       Lastly, U.S. Foods’s Human Resources Coordinator, Rebecca

Reed (“Ms. Reed”), testified at the hearing.                      Ms. Reed discussed

the terms of Plaintiff’s initial hiring contract, noting that

U.S.    Foods   could    modify    the    terms        of   Plaintiff’s     employment

under the contract.

       After hearing the foregoing evidence, Dep. Comm. Baddour

concluded that the a modified contract does not constitute a

contract “made” in North Carolina for purposes of the relevant

jurisdiction granting statute, N.C. Gen. Stat. § 97-36 (2013).

Dep. Comm. Baddour also concluded that the final act to create

Plaintiff’s employment contract did not occur in North Carolina.
                                           -7-
Accordingly, Dep. Comm. Baddour ordered that Plaintiff’s claim

be denied for lack of subject matter jurisdiction.                          Plaintiff

appealed to the Commission on 13 December 2012.                        The Commission

heard the case on 22 May 2013 and issued an opinion and order on

28 June 2013 affirming Dep. Comm. Baddour’s order.                          Plaintiff

timely filed written notice of appeal with this Court on 2 July

2013.

                II. Jurisdiction & Standard of Review

    Plaintiff’s appeal from the Commission’s opinion and award

lies of right to this Court pursuant to N.C. Gen. Stat. § 7A–

29(a) (2013).       Accord N.C. Gen. Stat. § 97–86 (2013).

    The      only        issue   on    appeal     is    whether    the     Industrial

Commission    had        subject      matter    jurisdiction      over    Plaintiff’s

claim.    At present, whether the Commission has subject matter

jurisdiction over Plaintiff’s case depends on whether a contract

for employment was consummated in North Carolina pursuant to

N.C. Gen. Stat. § 97–36.               See Parker v. Thompson–Arthur Paving

Co., 100 N.C. App. 367, 369, 396 S.E.2d 626, 628 (1990) (“The

jurisdiction        of     the     Industrial     Commission       is     limited   by

statute.”).         Plaintiff      argues      that    (i)   because     U.S.   Foods’s

Charlotte division approved Plaintiff’s transfer to oversight by

the Charlotte division from the Columbia division, Plaintiff’s
                                     -8-
contract    was   modified   and    (ii)    because   the    “last    act”   of

approving the modification occurred in Charlotte, the contract

of employment was made in North Carolina.

    “Appellate      review    of    an     award    from     the   Industrial

Commission is generally limited to two issues: (i) whether the

findings of fact are supported by competent evidence, and (ii)

whether the conclusions of law are justified by the findings of

fact.”     Chambers v. Transit Mgmt., 360 N.C. 609, 611, 636 S.E.2d

553, 555 (2006).       “However, as to a jurisdictional question,

this Court is not bound by the findings of fact of the lower

tribunal.     This Court has the duty to make its own independent

facts as to jurisdiction.”         Lentz v. Phil’s Toy Store, ___ N.C.

App. ___, ___, 747 S.E.2d 127, 130 (2013); see also Lucas v.

Li’l Gen. Stores, 289 N.C. 212, 218, 221 S.E.2d 257, 261 (1976).

    The      Commission   concluded        as   a   matter    of     law   that

Plaintiff’s contract was not modified and that                 the last act

necessary to create Plaintiff’s original contract was made out

of state, depriving the Industrial Commission of subject matter

jurisdiction to hear Plaintiff’s case.              “Conclusions of law by

the Industrial Commission are reviewable de novo by this Court.”

Bond v. Foster Masonry, Inc., 139 N.C. App. 123, 127, 532 S.E.2d

583, 585 (2000).      “Under a de novo review, the court considers
                                      -9-
the matter anew and freely substitutes its own judgment for that

of the lower tribunal.”          Craig v. New Hanover Cnty. Bd. of

Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (quotation

marks and citation omitted).

                               III. Analysis

            a. Contract Modification Under Section 97-36

    A     contract   modification     is    not   explicitly    referenced   in

Section    97-36,    which   grants    the     Commission      subject   matter

jurisdiction over certain accidents that occur out of state.

N.C. Gen. § 97-36 provides

            [w]here   an  accident   happens   while  the
            employee is employed elsewhere than in this
            State and the accident is one which would
            entitle him or his dependents or next of kin
            to compensation if it had happened in this
            State, then the employee or his dependents
            or next of kin shall be entitled to
            compensation   (i)   if   the    contract  of
            employment was made in this State.1

Plaintiff argues that common law rules concerning modifications

of contract apply.       See Lineberry v. Town of Mebane, 219 N.C.

257, 258, 13 S.E.2d 429, 430 (1941) (“The common law, to the

extent therein provided, is modified.             Except as so modified it

still   prevails.”);    N.C.   Gen.    Stat.      §   4-1   (2013)   (declaring

1
  Plaintiff does not raise the other two provisions of the
jurisdiction-granting   statute,   namely   that   U.S.   Foods’s
principal place of business is in North Carolina or that
Plaintiff’s principal place of employment is in North Carolina.
                                                  -10-
portions of the common law not in conflict with the general

statutes remain in full force).

       We       agree      with        Plaintiff        and   have      consistently      applied

common law rules of contract to claims filed under the Workers’

Compensation              Act.         See,     e.g.,     Hollowell       v.    N.C.    Dep’t    of

Conservation & Devel., 206 N.C. 206, 208, 173 S.E. 603, 604

(1934); Hojnacki v. Last Rebel Trucking, Inc., 201 N.C. App.

726, 689 S.E.2d 601, 2010 WL 10963 at *3–4 (2010) (unpublished)

(applying common law principles of contract law, such as offer

and acceptance, to a claim filed under the Workers’ Compensation

Act).

       This         Court        has    held     that     a     lapse    in     employment      and

subsequent re-hiring via a “last act” made in North Carolina

created         a    contract          that     was   “made”      in    North     Carolina      for

jurisdictional purposes under Section 97-36.                                   Baker v. Chizek

Transp., Inc., 210 N.C. App. 490, 711 S.E.2d 207, 2011 WL 904271

at *4–5 (2011) (unpublished).                         Similarly, under the common law

of contracts, a modification to the terms of a contract may

create      a       new    underlying          contract       that     was     “made”   in   North

Carolina.           See, e.g., Spartan Leasing Inc. v. Pollard, 101 N.C.

App.    450,        457,     400       S.E.2d    476,     480    (1991)      (holding    that    an
                                         -11-
addendum letter was a new contract because it modified a prior

lease agreement).

    Section        97-36       also     employs     the      phrase   “employment

contract,” which encompasses a broader scope of employment than

“contract of hire,” a phrase that covers only the initial hiring

of an individual.          Compare N.C. Gen. Stat. § 97-36 with N.C.

Gen. Stat. § 97-2(2) (2013) (using “contract of hire”).                       This

broader expanse includes a contract modification, providing a

basis   for    a   contract     being     “made”    in    North   Carolina    under

Section 97-36.

    The       dissent    cites        Larson’s    Workers’     Compensation    Law

§ 143.03(4) (2011) for the proposition that when “a contract has

achieved an identifiable situs, that situs is not changed merely

because the contract is modified in another state.”                       While we

acknowledge that Larson’s is a learned treatise in this field,

we must construe Section 97-36 using the long-standing canons of

construction       in   this    state    which     require    a   plain   language

approach to interpreting Section 97-36.

    This Court’s precedent identifies that a modified contract

containing the required formation elements is a new contract.

See, e.g., NRC Golf Course, LLC v. JMR Golf, LLC, ___ N.C. App.

___, ___, 731 S.E.2d 474, 480 (2012) (“Parties to a contract may
                                         -12-
agree   to    change     its    terms;    but     the    new    agreement,     to   be

effective, must contain the elements necessary to the formation

of a contract.” (emphasis added)).                      Like other newly formed

contracts, a modified contract may be made in this state.

       The General Assembly crafted Section 97-36 with a full view

that    the    phrase      “employment          contract”       contemplated     both

contracts of hire as well as modifications of existing contracts

which, by long-standing precedent, are new agreements.                      See id.;

compare N.C. Gen. Stat. § 97-36 with N.C. Gen. Stat. § 97-2(2)

(using “contract of hire”).              As such, we do not interject our

own view of the legislature’s intended meaning and instead apply

existing precedent and the plain language of Section 97-36 to

this question of first impression.                See Correll v. Div. of Soc.

Servs., 332 N.C. 141, 144, 418 S.E.2d 232, 235 (1992) (“The

legislative     purpose        of   a   statute    is     first    ascertained      by

examining the statute’s plain language.”).

       Further, while the Larson’s passage cites other state court

decisions for the notion that a situs is not changed by contract

modification,     other        jurisdictions      have    recognized    explicitly

that    a     contract     modified       within        state     borders    confers

jurisdiction.     See, e.g., Kilburn v. Grande Corp., 287 F.2d 371,

373–74 (5th Cir. 1961) (holding that Louisiana had jurisdiction
                                          -13-
over   a     modified   contract        of     employment    where      the     original

employment      contract      was       formed     in    Texas,    but         additional

consideration for employment was negotiated in Louisiana); Kuzel

v.   Aetna    Ins.   Co.,    650    S.W.2d      193,    195–96    (Tex.    App.     1983)

(holding Maryland had jurisdiction where the original contract

of hire was formed in Texas, but a later contract modification

was agreed to in Maryland).

       The    Commission     held       that     modification      of     an     existing

contract does not fall within the scope of a contract “made” in

Section 97-36.       The lack of a bar against such use, this Court’s

precedents recognizing common law contract principles, and use

of the phrase “employment contract” in Section 97-36 require a

different result.           Accordingly, a modification of an employment

contract may be a proper basis to find a contract is “made”

within North Carolina under Section 97-36.

              b. Whether Plaintiff’s Contract was Modified

       Our    next   inquiry       is    whether       Plaintiff’s      contract     was

actually modified under common law contract principles.                               The

same tests for formation of contract apply to whether a modified

contract is enforceable.            NRC Golf Course, ___ N.C. App. at ___,

731 S.E.2d at 480 (“Parties to a contract may agree to change

its terms; but the new agreement, to be effective, must contain
                                                     -14-
the    elements          necessary             to    the     formation       of    a       contract.”

(quotation marks and citation omitted)); Corbin v. Langdon, 23

N.C.   App.        21,    26,       208    S.E.2d       251,    254     (1974).            The   three

requisite elements to form an enforceable contract are offer,

acceptance, and consideration.                        Cap Care Grp., Inc. v. McDonald,

149    N.C.        App.      817,         822,        561     S.E.2d     578,       582      (2002).

Consequently, we must consider whether each element exists to

determine      whether          a    modified         employment       contract        was       formed

between Plaintiff and U.S. Foods.

       “It is essential to the formation of any contract that

there be mutual assent of both parties to the terms of the

agreement so as to establish a meeting of the minds.”                                        Harrison

v. Wal-Mart Stores, Inc., 170 N.C. App. 545, 550, 613 S.E.2d

322, 327 (2005) (quotation marks and citation omitted); see also

Wooten v. S.R. Biggs Drug Co., 169 N.C. 64, 68, 85 S.E. 140, 142

(1915) (holding that “the one thing without which a contract

cannot    be       made . . . is               the    assent    of     the    parties         to   the

agreement,          the     meeting             of     the     minds      upon         a     definite

proposition”).            As such, a contract modification must also have

an    offer    of        modified         terms      and     acceptance      on    those         terms.

Corbin,       23    N.C.     App.         at    26,    208     S.E.2d    at       255.        At-will

contracts may also be modified by the parties to form a new
                                        -15-
contract.     Arndt v. First Union Nat. Bank, 170 N.C. App. 518,

526, 613 S.E.2d 274, 280 (2005) (“The employer, in an at will

relationship, can modify, unilaterally the future compensation

to be paid to an employee.             If the employer modifies the terms

of an [employee] at will; and, the employee knows of the change,

the employee is deemed to have acquiesced to the modified terms,

if he continues the employment relationship.”).

    Here, Mr. Abernathy testified that the company met with

displaced     drivers   after    its     merger   with    PYA    Monarch.    Mr.

Abernathy said the company offered its displaced drivers jobs

with the subsuming branches.            U.S. Foods extended its offer for

its employees to transfer branches at a company safety meeting

in Charlotte.       The alternative to transferring branches was to

receive a severance package from U.S. Foods.                     Thus, Plaintiff

had a choice: he could accept a transfer or he could cease

employment and receive a severance package.                     This fundamental

choice qualifies as a new offer under the traditional definition

of a contract.

    Plaintiff accepted the offer.                 At the Charlotte meeting

where   his   new   terms   of       employment   were    proposed,     Plaintiff

negotiated    the   details     of    his   transfer     with   his   supervisor.

Specifically, Plaintiff requested that his trailers be dropped
                                           -16-
near his home in Augusta.             Plaintiff also completed paperwork at

the Charlotte safety meeting to accept the transfer, although

U.S. Foods’s Charlotte human resources department had to approve

the transfer before it was “official.”                    From the foregoing, it

is clear Plaintiff accepted a new offer modifying his existing

at-will employment agreement.

    Finally, there must also be consideration in support of the

modified contract.        Clifford v. River Bend Plantation, Inc., 312

N.C. 460, 466, 323 S.E.2d 23, 27 (1984) (“It is established law

that an agreement to modify the terms of a contract must be

based    on     new   consideration        or     on   evidence      that   one     party

intentionally induced the other party’s detrimental reliance.”

(citation       and    quotation       marks       omitted)).          “Consideration

sufficient enough to support a contract consists of any benefit,

right,     or     interest   bestowed           upon    the    promisor,       or     any

forbearance,      detriment,     or    loss       undertaken    by    the    promisee.”

Fairfield Harbour Prop. Owners Ass’n, Inc. v. Midsouth Golf,

LLC, 215 N.C. App. 66, 75, 715 S.E.2d 273, 282 (2011) (quotation

marks and citation omitted).                    This Court does not typically

consider        the   adequacy        of    consideration,           as     “inadequate

consideration, as opposed to the lack of consideration, is not

sufficient grounds to invalidate a contract. In order to defeat
                                           -17-
a     contract    for     failure     of    consideration,          the     failure     of

consideration must be complete and total.”                     Harllee v. Harllee,

151 N.C. App. 40, 49, 565 S.E.2d 678, 683 (2002) (citations

omitted).    Paying wages for labor constitutes consideration, and

a change in the form of payment has been found to be sufficient

consideration to form a contract.                 Clyde Rudd & Associates, Inc.

v. Taylor, 29 N.C. App. 679, 682, 225 S.E.2d 602, 604 (1976)

(holding that a change in the method of compensation met the

consideration requirement of contract formation).

       Here, when Plaintiff transferred to the Charlotte division,

he    transferred    from    a   weight-based         compensation        system   to    a

component    pay    system.         This    was   a   change     in   the     method    of

compensation and ultimately netted Plaintiff an increase in pay.

After transferring, Plaintiff’s earnings increased.                         As such, a

valuable benefit was conferred between both sides: U.S. Foods

retained Plaintiff as an employee, Plaintiff retained a position

driving trucks for U.S. Foods, and Plaintiff received increased

pay as a result of the transfer.

       As all three elements existed, a valid contract was formed

between    the    parties     via    the    modification       of     their    previous

employment contract.          As a result, we must now consider whether

the    contract     was   “made”     in    North      Carolina    for     purposes      of
                                         -18-
Section 97-36.           For that inquiry, we turn to the “Last Act”

analysis.

                               c. “Last Act” Analysis

       Section 97-36 ultimately grants the Commission jurisdiction

only if the contract was “made” in North Carolina.                     To determine

where a contract for employment was made, the Commission and

North Carolina courts apply the “last act” test.                           Murray v.

Ahlstrom Indus. Holdings, Inc., 131 N.C. App. 294, 296, 506

S.E.2d 724, 726 (1998).            The “last act” test provides that “for

a contract to be made in North Carolina, the final act necessary

to    make   it    a    binding   obligation    must      be   done   here.”        Id.

(citation and quotation marks omitted).

       In Murray, the plaintiff was initially hired at a plant in

Tennessee,        was   laid   off,    and   then   was   called      at   his    North

Carolina residence with an offer to work in Mississippi.                         Id. at

295, 506 S.E.2d at 725.               Negotiations took place via telephone

and the plaintiff accepted the offer while in North Carolina.

Id.    This Court held the last requisite act to form the binding

employment contract occurred while the plaintiff was in North

Carolina and that the Commission had jurisdiction to hear the

plaintiff’s workers’ compensation claim.                  Id. at 297, 506 S.E.2d

at 726.
                                       -19-
    Similar     facts     exist     here.      Plaintiff          was    offered    and

accepted a transfer with a different pay structure.                         Plaintiff

filled   out   paperwork     to    that    effect   at     a    safety    meeting   in

Charlotte.     The transfer was explicitly described as not “final”

or “official” unless approved by U.S. Foods’s human resources

department in Charlotte.            Two signatures from human resources

officers were provided in Charlotte to approve the transfer.                         As

such, the last act to make the transfer binding occurred in

Charlotte, where Plaintiff completed his transfer paperwork and

where final approval by U.S. Foods’s human resources department

was provided.

                                  IV. Conclusion

    Because     we   hold    that    Plaintiff      and     U.S.    Foods    modified

Plaintiff’s contract and that the final binding act occurred in

North    Carolina,   we     hold    that    Section       97–36    extends   subject

matter jurisdiction to Plaintiff’s claim.                   As such, the opinion

and award of the Industrial Commission is

    Reversed and remanded for rehearing.

    Judge STROUD concurs.

    Judge       DILLON       dissents         in      a        separate      opinion.
                                 NO. COA13-860

                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 1 April 2014


VINCENT BURLEY
     Employee, Plaintiff

    v.                                     From the North Carolina
                                           Industrial Commission
                                           I.C. No. X52202
U.S. FOODS, INC., Employer and
INDEMNITY INSURANCE COMPANY OF
NORTH AMERICA, Carrier

    And

GALLAGHER BASSETT SERVICES, INC.,
     Third Party Administrators,

    Defendants.


    DILLON, Judge, dissenting.


    In 2000, Plaintiff Vincent Burley (“Employee”), a Georgia

resident,    entered    into     a   contract    of   employment   in   South

Carolina    with   Defendant     U.S.   Foods,    Inc.,   (“Employer”),    an

Illinois-based company, to work as a truck driver.             Employee was

injured as the result of a work-related accident which occurred

in Georgia in 2009.       Employee filed this action seeking workers’

compensation benefits in North Carolina; however, the Commission

denied the claim, determining that it lacked jurisdiction to

make an award.      The sole statutory basis which Employee argues
                                        -2-
on appeal gives the Commission jurisdiction over his claim is

N.C. Gen. Stat. § 97-36(i), which provides jurisdiction for out-

of-state accidents where “the contract of employment was made in

this State[.]”         Specifically, Employee argues he agreed to a

modification to his contract of employment while attending a

business     meeting     in    Charlotte       in    2002,       and   that   this

modification constituted a “contract of employment . . . made in

this    State[.]”        See   id.       However,    I     disagree    that     this

modification was sufficient to change the contract’s situs from

South Carolina to North Carolina; and, therefore, I would affirm

the Commission’s conclusion that it lacked jurisdiction in this

matter.     Accordingly, I respectfully dissent.

       Employee    was   initially      assigned    to    Employer’s    Columbia,

South Carolina drop-yard.            In 2002, Employer merged with another

company, which resulted in the closing of Employer’s Columbia

drop-yard.        However, Employee’s employment was never severed.

Rather, the parties came to an agreement during a meeting in

Charlotte    whereby     oversight      of    his   job    was    transferred    to

Employer’s     Charlotte       division       and    his     compensation       was

increased.     As the majority points out, though, Employee’s “job

title and responsibilities did not change.”
                                          -3-
         As the majority notes, whether an out-of-state employment

contract        modified   in    this   State    constitutes      a   “contract     of

employment . . . made in this State” for purposes of conferring

jurisdiction in the Commission under N.C. Gen. Stat. § 97-36(i)

for an out-of-state accident has never been directly addressed

by   a       North   Carolina    appellate      court.    (Emphasis    added.)      I

believe that, for purposes of conferring jurisdiction for an

out-of-state accident based on where the contract of employment

was “made[,]” the General Assembly intended that only one state

be considered an employment contract’s situs, namely, where the

contract “was made[,]” and not also be every state where the

contract        might   have    been    “modified”       over   the   course   of   an

employee’s tenure.2            I believe that if the General Assembly had

intended to include states where contracts of employment were



         2
       The scope of my dissent is based on the facts of this
case.    I recognize that there could be situations where a
modification may be so significant that it could be deemed that
a new contract of employment was “made[,]” thereby changing the
situs of the employment contract. For example, in this case had
Employee accepted an offer to move to Employer’s Illinois
headquarters to manage one of its divisions, it might be said
that – for purposes of conferring jurisdiction under N.C. Gen.
Stat. § 97-36(i) - the parties “made” a new contract of
employment.   However, I do not believe the changes that were
actually made at the Charlotte meeting to Employee’s contract –
where he remained employed and his role did not fundamentally
change – rise to the level of making of new contract of
employment.
                                     -4-
also modified, and not simply made, within the jurisdictional

reach of the Commission, it could have so provided by including

the phrase “or modified” in the language of N.C. Gen. Stat. §

97-36(i).      “Once a contract has achieved an identifiable situs,

that   situs    is   not   changed   merely   because   the    contract   is

modified in another state[.]”          Larson’s Workers’ Compensation

Law § 143.03[4] (2013) (citing Crawford v. Trans World Airline,

27 N.J. Super. 567, 99 A.2d 673 (1953); Tobin v. Rouse, 118 Vt.

40,    99   A.2d     617   (1953);   United    Airlines   v.     Industrial

Commission, 96 Ill. 2d 126, 449 N.E.2d 119 (1983)).3

       Following the majority’s reasoning, the Commission gains

jurisdiction over an out-of-state contract of employment if the

modification of any contract term is agreed to by one of the

parties while that party happens to be in North Carolina; and,

further, the Commission loses jurisdiction over a contract of

employment made in North Carolina if the modification of any

term of that North Carolina contract is agreed to by one of the

parties while that party happens to be in another state.                  I

3
     Though an opinion stated in Larsons’ is not binding
authority on this Court, this treatise has been cited with
approval by our courts on a number of occasions, see, e.g., Shaw
v. U.S. Airways, 362 N.C. 457, 461, 665 S.E.2d 449, 452 (2008);
Gore v. Myrtle/Mueller, 362 N.C. 27, 36, 683 S.E.2d 404, 406-07
(2007); Taft v. Brinley’s, __ N.C. App. __, __, 738 S.E.2d 741,
744-45 (2013); and I find the above-quoted statement contained
in Larsons’ concerning the issue in this case to be persuasive.
                                    -5-
disagree with this reasoning and do not believe that our General

Assembly intended that - for purposes of conferring jurisdiction

based   on   contracts     of   employment   “made”     -    a   contract   of

employment   is   deemed    made,   not   where   the       employer-employee

relationship is established, but rather where any term of the

employment agreement is last modified.            Accordingly, I would

vote to affirm the decision of the Commission that it lacked

jurisdiction to award benefits to Employee.
