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NO. COA98-152
NORTH CAROLINA COURT OF APPEALS
Filed:  3 November  1998
WILLIAM H. MURRAY,
Employee,
Plaintiff,
v.
AHLSTROM INDUSTRIAL HOLDINGS, INC.,
Employer,
EMPLOYERS INSURANCE OF WAUSAU,
Carrier,
Defendants.
Appeal by defendants from Opinion and Award entered  16
September  1997 by the North Carolina Industrial Commission.
Heard in the Court of Appeals  6 October  1998.
Scott E. Jarvis & Associates, by Scott E. Jarvis, for
plaintiff.
Root & Root, P.L.L.C., by Louise Critz Root, for defendants.
SMITH, Judge.
Plaintiff was employed by defendant Ahlstrom Industrial
Holdings, Inc.  (hereinafter  “Ahlstrom”) as an instrument and pipe
foreman on two separate projects.    Plaintiff was initially hired
to work at a project located in Calhoun, Tennessee.    After the
completion of the Calhoun, Tennessee project, plaintiff was laid
off and remained unemployed for a period of about two and one-
half months.    His former supervisor, Brian Kear, telephoned
plaintiff at plaintiff’s residence in Canton, North Carolina and
offered him an identical position  (as instrument and pipe general




foreman) at a project in Corinth, Mississippi.    Mr. Kear offered
plaintiff an hourly rate, which was unsatisfactory to plaintiff,
and plaintiff turned down the offer.    After consulting with his
supervisor, Mr. Kear again called plaintiff and offered him the
position at an increased hourly rate.    Plaintiff accepted the
offer.    Mr. Kear told plaintiff he was hired and told him to
report to work.    Plaintiff packed up his family in a camper and
went to Mississippi to begin work, at no time abandoning his
permanent residence in North Carolina.
Upon his arrival at the work site on  13 June  1994  (which was
the Monday following the aforementioned telephone conversation),
plaintiff was required to fill out certain administrative
paperwork, but because he was a rehire  (as opposed to a new hire)
he was not required to submit to a physical, drug test, or go to
the local employment security office.    On  1 July  1994, plaintiff
experienced a work-related injury while working for Ahlstrom in
Corinth, Mississippi.    Plaintiff filed a Request for Hearing
before the North Carolina Industrial Commission on  2 December
1994.    The matter was tried before Deputy Commissioner William C.
Bost on  26 March  1996, the sole issue being determined was that
of jurisdiction of the North Carolina Industrial Commission.    On
12 July  1996, Deputy Commissioner Bost rendered a decision
holding that North Carolina did not have jurisdiction in this
matter.    Plaintiff gave Notice of Appeal on  6 August  1996, on
which date plaintiff also made a Motion for Extension of Time in
which to file his appeal.    The Motion was held in abeyance until
it could be argued before the Full Commission.




This matter was heard before the Full Commission on  31
January  1997.    By Opinion and Award filed  17 September  1997, the
Full Commission found that North Carolina did have jurisdiction
to hear this matter.    Defendants appeal.
It is important to note at the outset that the Commission’s
findings are accorded great deference.
In appeals from the Industrial Commission, when the
assignments of error bring forward for review the
findings of fact made by the Commission, the Court will
review the evidence to determine whether there is any
competent evidence to support the findings; if so, the
findings of fact are conclusive.    If a finding of fact
is a mixed question of fact and law, it is also
conclusive if supported by competent evidence.
Thomas v. Overland Express, Inc.,  101 N.C. App.  90,  94-95,  398
S.E.2d  921,  924  (1990), review denied,  328 N.C.  576,  403 S.E.2d
522  (1991)  (citing Lewter v. Enterprises, Inc.,  240 N.C.  399,  82
S.E.2d  410  (1954)).
The first issues before the Court on this appeal relate to
whether the Full Commission erred in finding that the North
Carolina Industrial Commission has jurisdiction over this claim.
The statute that grants jurisdiction to the Commission is N.C.
Gen. Stat.  §  97-36  (1991).    This section states that North
Carolina has jurisdiction to settle controversies over injuries
occurring outside of this state  “(i) if the contract of
employment was made in this State,  (ii) if the employer’s
principal place of business is in this State, or  (iii) if the
employee’s principal place of employment is within this State.”
N.C. Gen. Stat.  §  97-36  (1991).    The record shows, and it is not
disputed here, that Ahlstrom’s principal place of business is
outside the state of North Carolina.    Furthermore, it is clear




that the full extent of plaintiff’s employment occurred outside
the state of North Carolina.    Thus, in order for the Commission
to have jurisdiction over this matter, the contract for
employment must have been entered into in this state.    See N.C.
Gen. Stat.  §  97-36  (1991).
To determine where a contract for employment was made, the
Commission and the courts of this state apply the  “last act”
test.    See Goldman v. Parkland,  277 N.C.  223,  176 S.E.2d  784
(1970); Thomas,  101 N.C. App. at  96,  398 S.E.2d at  926.               “[F]or a
contract to be made in North Carolina, the final act necessary to
make it a binding obligation must be done here.”    Thomas,  101
N.C. App. at  96,  398 S.E.2d at  926  (citing Goldman,  277 N.C.  233,
176 S.E.2d  784).    Defendants argue that the employment contract
was not entered into until plaintiff arrived in Mississippi and
completed the requisite paperwork.    This argument is not
persuasive.    It is undisputed in the record that an offer for
employment was made to plaintiff when Mr. Kear telephoned him at
his home in Canton, North Carolina.    Mr. Kear’s first offer was
not accepted because the hourly wage was too low.    However, after
consulting with a superior, Mr. Kear telephoned plaintiff and
again offered him the foreman position at a higher wage.    At this
point, plaintiff accepted the offer.    Mr. Kear responded that
plaintiff was hired and that he should report to work in Corinth,
Mississippi immediately.
At this point the contract for employment was complete.
Relying upon this employment contract, plaintiff packed up his
family and moved to Mississippi for the duration of the project.




Although the paperwork filled out by plaintiff was required
before he could begin work, this seems to be, and in fact was
admitted by Mr. Kear to be, mostly administrative.    The paperwork
appears to be more of a consummation of the employment
relationship than the  “last act” required to make it a binding
obligation.    See Warren v. Dixon and Christopher Co.,  252 N.C.
534,  114 S.E.2d  250  (1960)  (offer of employment made and accepted
in North Carolina; accepting plaintiff on the job site  “was
merely the consummation of what had been previously arranged,
that is, the employment”).    The Commission’s findings were based
upon ample competent evidence, and the conclusion that the
contract was made in North Carolina was correct.
The last issue raised on appeal is whether the Full
Commission erred in hearing the appeal.    Defendants argue that
the Commission erred in reviewing the matter and reversing the
decision of the Deputy Commissioner because plaintiff’s Notice of
Appeal was not timely filed pursuant to N.C. Gen. Stat.  §  97-85
(1991).    Section  97-85 states:
If application is made to the Commission within  15 days
from the date when notice of the award shall have been
given, the full Commission shall review the award, and,
if good ground be shown therefor, reconsider the
evidence, receive further evidence, rehear the parties
or their representatives, and, if proper, amend the
award.
N.C. Gen. Stat.  §  97-85  (1991)  (emphasis added).    In this case
the record indicates, and plaintiff concedes, that plaintiff
filed his Notice of Appeal four days after the fifteen day limit
prescribed by the statute.
The same argument that defendants now assert was addressed




by this Court in Jones v. Yates Motor Co.,  121 N.C. App.  84,  464
S.E.2d  479  (1995).    In that case, the defendant argued that
because plaintiff’s motion to reconsider the evidence was not
timely, the Commission erred in reconsidering the evidence and
reversing the prior order.    Because plaintiff was unaware of the
fifteen day period in which to file a timely motion, this Court
held that the motion should be considered not under the time
restrictions of G.S.  97-85, but under the  “reasonable time”
standard of N.C. Gen. Stat.  §  1A-1, Rule  60(b)  (1990).    Rule
60(b) states,
On motion and upon such terms as are just, the court
may relieve a party or his legal representative from a
final judgment, order, or proceeding for the following
reasons:
(1)   Mistake, inadvertence, surprise, or excusable
neglect;
The motion shall be made within a reasonable time, and
.  .  . not more than one year after the judgment, order,
or proceeding was entered or taken.
N.C. Gen. Stat.  §  1A-1, Rule  60(b)  (1990)  (emphasis added). In
Jones, twenty-seven days after entry of the judgment was not
considered  “unreasonable” and this court held that  “the
Commission should have considered the motion as a Rule  60(b)
motion for relief from the judgment.”    Jones,  121 N.C. App. at
87,  464 S.E.2d at  481  (citing Long v. Reeves,  77 N.C. App.  830,
336 S.E.2d  98  (1985)).
The facts in the case at hand are quite similar to the Jones
case.    In plaintiff’s Motion for Extension of Time, filed with
the Industrial Commission on  6 August  1996, plaintiff’s counsel
explains the reason for the delay in filing.
Counsel was on family vacation and out of the state of




North Carolina from July  12 through July  21,  1996, and
accordingly, was not in his office at the time the
Opinion and Award arrived.    The Opinion and Award was
placed in the case file in the office by clerical
staff, through inadvertence, and no entry was made on
the office calendar showing the date of the arrival of
the Opinion and Award, nor the proper date for the
appeal time.
Thus, it appears that counsel is arguing  “excusable neglect,” as
per Rule  60(b), even though it is not delineated in his motion.
Pursuant to Rule  60(b), the Commission had the authority to grant
the relief sought by plaintiff.    See Jones,  121 N.C. App. at  86-
87,  464 S.E.2d at  481.    Though the Commission made no order
regarding the Motion for Extension of Time, it is apparent from
the Commission’s decision to reverse the Deputy Commissioner that
they did grant such relief.
Affirmed.
Judges GREENE and WALKER concur.

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