1. Workers' Compensation--average weekly wage--calculation
In a workers' compensation action involving a bricklayer who was a full-time employee
even though he was not always required to work due to weather and demand, the Industrial
Commission correctly chose the second rather than the fifth method of calculating his average
weekly wage under N.C.G.S. § 97-2(5), but did not correctly use the second method in the
calculation. The case was remanded for the Commission to determine the number of weeks
plaintiff did not work and then to divide plaintiff's yearly earnings by the number of weeks
remaining.
2. Workers' Compensation--earning capacity after injury--wages from current
employment
The Industrial Commission's findings as to earning capacity in a workers' compensation
action were affirmed where competent evidence showed that plaintiff met his burden of showing
that he was unable to earn the same wages as before the injury by showing his earnings from his
current employment. Defendant presented no evidence that plaintiff could obtain employment
earning more than this amount.
Walden & Walden, by Daniel S. Walden, for plaintiff-appellee.
Womble Carlyle Sandridge & Rice, P.L.L.C., by Clayton M.
Custer and Lawrence B. Somers, for defendant-appellants.
HUNTER, Judge.
Foster Masonry, Inc. and Key Risk Management Services
(“defendants”), appeals from an opinion and award of the North
Carolina Industrial Commission (“Industrial Commission”) wherein it
awarded Bobby Lee Bond (“plaintiff”), workers' compensation benefits
and calculated plaintiff's average weekly wage under the second
method identified in N.C. Gen. Stat. § 97-2(5). We affirm in partand remand in order for the Full Industrial Commission (“Full
Commission”) to re-calculate plaintiff's “average weekly wage” under
the second method in N.C. Gen. Stat. § 97-2(5).
The evidence indicates that plaintiff had been working for
defendant as a brick mason for approximately three years when he
was injured at work on 9 August 1996 due to the sudden giving away
of his right arm. Plaintiff went to Kernersville Immediate Care on
the day of his injury. He did not return to masonry work due to
continued problems related to the injury; however, plaintiff began
working at Direct Transport, Inc., on 3 February 1997, where his
duties consisted of driving automobiles from various locations to
Greensboro, North Carolina. Plaintiff was ultimately diagnosed
with a right rotator cuff strain with brachial plexus strain on 10
March 1997. It was determined that plaintiff had reached maximum
medical improvement on 28 April 1997, and he was assigned a
permanent partial disability rating of twenty percent (20%) to the
right upper extremity, with restrictions of no lifting over twenty-
five pounds, no overhead work, and no repetitive use of the right
arm.
Plaintiff filed a claim with the Industrial Commission, which
defendant contested on the basis that plaintiff's injury was not an
injury by accident, and therefore was not compensable under the
North Carolina Workers' Compensation Act (“Act”). After a hearingon the matter, Deputy Commissioner William C. Bost entered an
opinion and award on 16 February 1998, concluding as a matter of
law that plaintiff's injury was compensable under the Act, and that
4. Plaintiff's average weekly wages on
August 9, 1996 were $458.99, yielding a
compensation rate of $306.01. G.S. 97-2(5);
G.S. 97-29.
5. As a result of his August 9, 1996
injury by accident, plaintiff was totally
disabled during the period August 9, 1996
through February 2, 1997. G.S. 97-29.
6. As a result of his August 9, 1996
injury by accident, plaintiff's earning
capacity was permanently diminished from
$458.99 per week to $234.15 per week effective
February 3, 1997, thus entitling him to
$149.01 per week until the end of the 300-week
period. G.S. 97-30.
Commissioner Bost made the following award, in pertinent part:
1. For his temporary total disability
compensation, defendant shall pay plaintiff
temporary total disability compensation at the
rate of $306.01 per week for the period August
9, 1996 through February 2, 1997. . . .
2. For his temporary partial and
permanent partial disability compensation,
defendant shall pay plaintiff temporary
partial and permanent partial disability
compensation at the rate of $149.91 per week
starting February 3, 1997 and continuing until
the end of the 300-week period starting August
9, 1996. . . .
Defendants appealed this opinion and award to the Full Commission.
In its opinion and award of 5 February 1999, the Full Commission
affirmed that plaintiff had suffered a compensable injury under the
Act. As to plaintiff's compensation rate, it found:
11. Regarding his employment with
defendant, plaintiff was a full time employee.
Although he did not work when defendant did
not have contract jobs available, plaintiff
was not a part time employee and his
employment was not seasonal in nature.
12. In the prior Opinion and Award,
plaintiff's pre-injury average weekly wage was
calculated pursuant to an Industrial
Commission Form 22 submitted by defendant.
According to this Form 22, plaintiff worked
only four (4) days in November 1995. However,
as shown by Defendant's Answers to Plaintiff's
Interrogatories, plaintiff worked thirty (30)
days in November 1995. Therefore, plaintiff's
pre-injury average weekly wage was not
$458.99, as found in the prior Opinion and
Award.
13. During the fifty-two (52) week
period prior to plaintiff's 9 August 1996
injury by accident, he missed seven (7) or
more consecutive days on more than one
occasion. Therefore, the second method under
G.S. § 97-2(5) of calculating his average
weekly wage should be used.
14. Plaintiff earned $12,262.50 during
the fifty-two (52) weeks preceding his injury.
Over this period, plaintiff worked two-hundred
and thirteen (213) days, yielding a daily wage
rate of $57.57. When multiplied by seven (7),
this daily rate yields an average weekly wage
for plaintiff of $402.99 as of 9 August 1996,
which yields a compensation rate of $268.67.
As a result of these findings, the Full Commission awarded
plaintiff temporary total disability from 9 August 1996 through 2
February 1997 at the rate of $268.67 per week, and “partial
disability compensation at the rate of two-thirds the difference
between his average weekly wage of $402.99 and his post injury wage
level of $190.00 for the period of 3 February 1997 through the
present, subject to the statutory maximum period of three hundred
(300) weeks.” Defendants appeal.
[1]First, we note that our review of claims under the Act is
limited. The North Carolina Supreme Court has stated that “the
findings of fact made by the Commission are conclusive on appeal,
. . . if supported by competent evidence . . . even though there is
evidence which would support a finding to the contrary.” Hansel
v. Sherman Textiles, 304 N.C. 44, 49, 283 S.E.2d 101, 104 (1981).
When this Court reviews a decision of the Full Commission, its
inquiry is limited to: (1) whether there is competent evidence to
support the Industrial Commission's findings of fact; and, (2)
whether the findings of fact support the conclusions of law anddecision of the Industrial Commission. Id. Conclusions of law by
the Industrial Commission are reviewable de novo by this Court.
Grantham v. R. G. Barry Corp., 127 N.C. App. 529, 491 S.E.2d 678
(1997), disc. review denied, 347 N.C. 671, 500 S.E.2d 86 (1998).
Under our N.C. Gen. Stat. § 97-2(5), average weekly wage is
defined in pertinent part as
[1] earnings of the injured employee in the
employment in which he was working at the time
of the injury during the period of 52 weeks
immediately preceding the date of the injury,
. . . divided by 52; [2]but if the injured
employee lost more than seven consecutive
calendar days at one or more times during such
period, although not in the same week, then
the earnings for the remainder of such 52
weeks shall be divided by the number of weeks
remaining after the time so lost has been
deducted. [3]Where the employment prior to
the injury extended over a period of less than
52 weeks, the method of dividing the earnings
during that period by the number of weeks and
parts thereof during which the employee earned
wages shall be followed; provided, results
fair and just to both parties will be thereby
obtained. [4] Where, by reason of a shortness
of time during which the employee has been in
the employment of his employer or the casual
nature or terms of his employment, it is
impractical to compute the average weekly
wages as above defined, regard shall be had to
the average weekly amount which during the 52
weeks previous to the injury was being earned
by a person of the same grade and character
employed in the same class of employment in
the same locality or community.
[5] But where for exceptional reasons the
foregoing would be unfair, either to the
employer or employee, such other method of
computing average weekly wages may be resorted
to as will most nearly approximate the amount
which the injured employee would be earning
were it not for the injury.
N.C. Gen. Stat. § 97-2(5) (1999). In its first assignment of
error, defendants contend that the Full Commission erred in
calculating plaintiff's average weekly wage under the second method
in N.C. Gen. Stat. § 97-2(5), for a total of $402.99. Defendants
argue that the appropriate method in this case is the fifth, or
“exceptional reasons” method identified in N.C. Gen. Stat. § 97-
2(5), whereby defendants urge that as a seasonal worker,
plaintiff's yearly earnings should be divided by 52 for an average
weekly wage of $235.82. We note that this calculation is identical
to the first method identified in the subject statute, which is
used when the employee has worked 52 weeks in the year.
From our review of this statute and the prior holdings of this
Court, it is clear that this statute establishes an order of
preference for the calculation method to be used, and that the
primary method, set forth in the first sentence, is to calculate
the total wages of the employee for the fifty-two weeks of the year
prior to the date of injury and to divide that sum by fifty-two.
Hensley v. Caswell Action Committee, 296 N.C. 527, 533, 251 S.E.2d
399, 402 (1979). The final, or fifth method, as set forth in N.C.
Gen. Stat. § 97-2(5), may not be used unless there has been a
finding that unjust results would occur by using the previously
enumerated methods. See Wallace v. Music Shop, II, Inc., 11 N.C.
App. 328, 331, 181 S.E.2d 237, 239 (1971). In Derebery v. Pitt
County Fire Marshall, 318 N.C. 192, 347 S.E.2d 814 (1986), the
North Carolina Supreme Court held that a worker's average weekly
wage should be based upon the measure of the injured employee'searning capacity, noting that this must be determined by
calculating “'the amount which the injured employee would be
earning were it not for the injury.'” Id. at 197, 347 S.E.2d at
817 (quoting N.C. Gen. Stat. § 97-2(5)).
Defendant contends that because plaintiff's work with his
employer was sporadic, fairness to the employer requires the
consideration of “both peak and slack periods” in calculating an
employee's average weekly wage where the employment in question
does not provide work in each of the fifty-two weeks in a year.
Joyner v. Oil Co., 266 N.C. 519, 522, 146 S.E.2d 447, 450 (1966).
Therefore, defendant argues that plaintiff's earnings of $12,262.50
should be divided by fifty-two weeks, instead of the number of
weeks he actually worked, to arrive at an average weekly wage of
$235.82. We disagree.
In Joyner v. Oil Co., 266 N.C. 519, 146 S.E.2d 447 (1966), the
North Carolina Supreme Court considered a workers' compensation
case where the employee was a relief truck driver who worked only
on an as-needed basis during the fifty-two weeks prior to injury.
The Court described the driver's employment as “inherently
part-time and intermittent” and held it was “[un]fair[] to the
employer . . . [not to] take into consideration both peak and slack
periods,” id. at 522, 146 S.E.2d at 450, in calculating average
weekly wage because “it gives plaintiff the advantage of wages
earned in . . . 'peak' . . . season without taking into account the
slack periods” during which he did not work. Id. at 521, 146
S.E.2d at 449. As a result, the Court held that the employee'saverage weekly wage was to be calculated under the “exceptional
reasons,” (fifth) method set forth in N.C. Gen. Stat. § 97-2(5) by
taking the total wages earned during the twelve month period prior
to injury and dividing that amount by fifty-two, representing the
number of weeks in a year. Id. at 522, 146 S.E.2d at 450. As for
the total wage calculation, the court reasoned that without the
injury, the employee “would not be earning more than this sum in a
normal year.” Id. In a more recent case, Barber v. Going West
Transp., Inc., 134 N.C. App. 428, 517 S.E.2d 914 (1999), plaintiff
was injured in 1996 while working as a driver for his employer, a
provider of long haul transportation services specializing in
produce shipment. The Full Commission had found that plaintiff had
been continuously employed with employer since 1994, and that his
employment was not seasonal. This Court reversed, stating:
The parties stipulated in a Form 22 Wage
Chart to the days and weeks plaintiff worked
in 1995 and 1996 and to the earnings she
received. Upon review of the Wage Chart, we
note plaintiff did not work during 1995 in
February, March, August, September or
November, and reported working only eleven
days in April, six days in July and seven days
in December. In consequence of a fluctuating
work schedule dependent in the main upon the
produce season, plaintiff's job more properly
qualified as “seasonal” rather than continuous
employment.
Id. at 436, 517 S.E.2d at 921. As in Joyner, the court held that
the employees weekly wage should be computed under the fifth method
stated in N.C. Gen. Stat. § 97-2(5), i.e., by dividing his total
earnings by fifty-two. Unlike Barber and Joyner, plaintiff in the
present case was not a “seasonal” worker or a relief worker whofilled in when a regular employee could not. Because work with
defendant was dependent on demand and weather conditions, sometimes
plaintiff was not required to work for days or weeks at a time;
however, he was considered a full-time employee, not a seasonal
one. A seasonal employee or relief worker does not work full-time
every week in the year. To the contrary, it is entirely possible
that as a brick mason, plaintiff could be required to work every
week, full-time by his employer. Accordingly, we believe that
plaintiff's earnings should not be divided by 52 under the fifth
method in N.C. Gen. Stat. § 97-2(5), but rather, the second method
in this statute is appropriate in the case at bar. However, our
review indicates that the Full Commission did not correctly use the
second method in calculating plaintiff's average weekly wage.
The Full Commission computed plaintiff's daily wage rate by
dividing plaintiff's total earnings by the number of days worked,
then multiplied this “daily wage rate” by seven for an average
weekly wage. First, we note that the second method of N.C. Gen.
Stat. § 97-2(5) does not authorize using a “daily wage rate” and
multiplying it by seven in calculating an average weekly wage.
Additionally, no evidence indicates that plaintiff worked seven
days a week, which would substantiate multiplying plaintiff's
alleged “daily wage rate” by seven. “Under G.S. 97-2(e), 'average
weekly wages' of the employee 'in the employment in which he was
working at the time of the injury' must be related to his earnings
rather than to his earning capacity.” Liles v. Electric Co., 244
N.C. 653, 657, 94 S.E.2d 790, 794 (1956) (emphasis in original). The computation used by the Full Commission indicates what
plaintiff's earning capacity would be if he worked seven days a
week for thirty-six weeks as a brick mason. This calculation is
not provided for in the second method under N.C. Gen. Stat. § 97-
2(5), and therefore was error. Accordingly, those portions of the
Full Commission's opinion and award based on a calculation of
plaintiff's average weekly wage at $402.99 are reversed. This case
is remanded in order for the Full Commission to calculate
plaintiff's average weekly wage as specified in the second method
in N.C. Gen. Stat. § 97-2(5), which states in pertinent part:
if the injured employee lost more than seven
consecutive calendar days at one or more times
during such period, although not in the same
week, then the earnings for the remainder of
such 52 weeks shall be divided by the number
of weeks remaining after the time so lost has
been deducted.
N.C. Gen. Stat. § 97-2(5). In accordance with this method, the
Full Commission shall determine the number of weeks which plaintiff
did not work (“time so lost”), and then divide plaintiff's yearly
earnings by “the number of weeks remaining after the time so lost
has been deducted.” Id. The Full Commission may make any
corresponding changes in the opinion and award based on this re-
calculation, in accordance with this opinion.
[2] Last, defendant argues that plaintiff failed to meet his
burden as to his present earning capacity which was determined to
be $190.00 per week. Defendants urge that plaintiff could possibly
earn more than this amount. This Court has held:
An employee injured in the course of his
employment is disabled under the Act if theinjury results in an “incapacity . . . to earn
the wages which the employee was receiving at
the time of injury in the same or any other
employment.” N.C.G.S. § 97-2(9) (1991).
Accordingly, disability as defined in the Act
is the impairment of the injured employee's
earning capacity rather than physical
disablement.
The burden is on the employee to show
that he is unable to earn the same wages he
had earned before the injury, either in the
same employment or in other employment. The
employee may meet this burden in one of four
ways: (1) the production of medical evidence
that he is physically or mentally, as a
consequence of the work related injury,
incapable of work in any employment; (2) the
production of evidence that he is capable of
some work, but that he has, after a reasonable
effort on his part, been unsuccessful in his
effort to obtain employment; (3) the
production of evidence that he is capable of
some work but that it would be futile because
of preexisting conditions, i.e., age,
inexperience, lack of education, to seek other
employment; or (4) the production of evidence
that he has obtained other employment at a
wage less than that earned prior to the
injury.
Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425
S.E.2d 454, 457 (1993) (citations omitted). Competent evidence
indicates that plaintiff at bar met his burden under (4) identified
above by showing his earnings through his employment with Direct
Transport, Inc. These earnings, likewise, were competent evidence
of plaintiff's earning capacity. Defendant presented no evidence
that plaintiff could obtain employment earning more than this
amount. Therefore, we hold that this argument is meritless.
In summary, we reverse and remand for re-calculation of
plaintiff's average weekly wage, and any award based thereon. Weaffirm the Full Commission's findings as to plaintiff's earning
capacity.
Reversed and remanded in part, affirmed in part.
Chief Judge EAGLES and Judge TIMMONS-GOODSON concur.
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