Workers' Compensation_average weekly wage_intermittent, part-time worker
A workers' compensation case was remanded to the Industrial Commission for
appropriate findings and the recalculation of the average weekly wage of an 81-year-old man
who was retired but worked part time as needed as a fruit and vegetable inspector. The
Commission did not clearly state the method it used to calculate his average weekly wage.
Mark T. Sumwalt, P.A., by Mark T. Sumwalt and Vernon Sumwalt,
for plaintiff-appellant.
Morris York Williams Surles & Barringer, LLP, by Amy Kushner,
for defendants-appellees.
McGEE, Judge.
The Industrial Commission (Commission) entered an opinion and
award on 12 August 2002 awarding compensation to Maria C. Boney
(plaintiff), widow of Lloyd W. Boney (decedent), in the amount of
$129.93 per week for 400 weeks, as well as payments for medical
treatment arising from the compensable injury decedent suffered
while employed by Winn Dixie, Inc. (employer), burial expenses for
decedent, and costs, including attorneys' fees. Plaintiff appeals
the Commission's opinion and award determining decedent's average
weekly wage and the resulting compensation rate.
The Commission found as fact and concluded as a matter of law
that decedent suffered a compensable injury on 21 August 1998 whenhe fell while working for employer. As a consequence of that fall,
decedent suffered blunt trauma, resulting ultimately in decedent's
death on 24 August 1998. The Commission also made the following
pertinent findings of fact:
1. On August 21, 1998 decedent, who was
eighty-one (81) years old, was employed
by defendant on a part-time basis as a
fruit and vegetable inspector. Decedent
had previously worked for defendant in
that capacity on a full-time basis until
he retired in 1988. After decedent's
retirement, he would fill in for
vacationing or absent employees working
some days every month resulting in a
fluctuating work schedule.
. . .
17. Decedent's average weekly wage calculated
by the Industrial Commission pursuant to
the Form 22 Statement of Days Worked and
Earnings of Injured Employee that is a
part of the evidentiary record in this
matter is $194.88 resulting in a weekly
compensation rate of $129.93.
Based upon its findings of fact, the Commission made
the following pertinent conclusion of law:
4. Decedent was engaged in part-time
employment. A part-time job or
intermittent part-time job shall not be
converted to a full-time or continuous
job when calculating the average weekly
wage. Joyner v. A.J. Carey Oil Co., 266
N.C. 519, 146 S.E.2d 447 (1966).
Consequently, decedent's average weekly
wage of $194.88 yields a weekly
compensation rate of $129.93 payable to
decedent's only dependent, Maria Boney,
for four hundred (400) weeks beginning
August 24, 1998. N.C.G.S. §§ 97-2(5),
97-38.
Plaintiff argues the Commission erred in its determination of
decedent's average weekly wage and the resulting compensation rate. For the reasons discussed below, we agree and must remand the case
for recalculation of decedent's average weekly wage and the
resulting compensation rate.
This Court's review of an opinion and award of the Commission
is limited to a determination of whether the findings of fact are
supported by competent evidence and whether the conclusions of law
are supported by the findings of fact. Barham v. Food World, 300
N.C. 329, 331, 266 S.E.2d 676, 678 (1980). However, we review de
novo the conclusions of law of the Commission. Bond v. Foster
Masonry, Inc., 139 N.C. App. 123, 127, 532 S.E.2d 583, 585 (2000).
"The determination of the plaintiff's 'average weekly wages'
requires application of the definition set forth in the Workers'
Compensation Act, [N.C. Gen. Stat. § 97-2(5) (2001)], and the case
law construing that statute and thus raises an issue of law, not
fact." Swain v. C & N Evans Trucking Co., 126 N.C. App. 332, 335-
36, 484 S.E.2d 845, 848 (1997).
N.C.G.S. § 97-2(5) provides in pertinent part:
[1] "Average weekly wages" shall mean the
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 fewer
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.
This statute provides a hierarchy of the methods for computing the
average weekly wage of an injured employee, with the primary method
being the first option listed; the fifth option is only used when
use of the other methods would create results not "unjust results."
McAninch v. Buncombe County Schools, 347 N.C. 126, 129-30, 489
S.E.2d 375, 377-78 (1997); Abernathy v. Sandoz Chems./Clariant
Corp., 151 N.C. App. 252, 258, 565 S.E.2d 218, 222, cert. denied,
356 N.C. 432, 572 S.E.2d 421 (2002). In fact, the fifth, catchall
provision may not be used by the Commission "unless there has been
a finding that unjust results would occur by using the previously
enumerated methods." McAninch, 347 N.C. at 130, 489 S.E.2d at 378.
Whether the results of calculating the average weekly wage by the
applicable enumerated method would be unfair to either employer or
employee is a question of fact, and the Commission's determination
on this issue would control, unless there was no competent evidencein the record to support the determination. Id.
In the present case the Commission did not clearly state what
method it used to calculate decedent's average weekly wage. We
must therefore remand to the Commission for recalculation of
decedent's average weekly wage. Barber v. Going West Transp.,
Inc., 134 N.C. App. 428, 437, 517 S.E.2d 914, 921 (1999) (remand to
the Commission where there were no findings indicating how the
average weekly wage was derived). We note, in examining the
record, that it appears the Commission used the first method listed
in N.C.G.S. § 97-2(5), dividing decedent's gross income of
$10,133.98 during the 52 week period prior to his injury by 52
weeks, equaling $194.88. Since the Commission made no findings
regarding the "fair and just" method for calculating decedent's
average weekly wage, it could not have been operating under the
fifth method for determining average weekly wage for decedent.
Clark v. ITT Grinnell Ind. Piping, Inc., 141 N.C. App. 417, 435,
539 S.E.2d 369, 379-80 (2000), remanded for reconsideration on
other grounds, 354 N.C. 572, 558 S.E.2d 867 (2001) ("Without any
findings regarding the 'fair and just' method for calculating
plaintiff's average weekly wage, we must assume that the Commission
was attempting to rely upon the first method set forth in N.C.G.S.
§ 97-2(5)."). The Commission found as fact that decedent "was
employed by defendant on a part-time basis" and that "he would fill
in for vacationing or absent employees working some days every
month resulting in a fluctuating work schedule." In other cases
dealing with part-time or intermittent employees our Courts havefound that the first method of calculating average weekly wage was
inappropriate. See Joyner v. Oil Co., 266 N.C. 519, 522-23, 146
S.E.2d 447, 450 (1966); Liles v. Electric Co., 244 N.C. 653, 659-
60, 94 S.E.2d 790, 795-96 (1956); see also Bond, 139 N.C. App. at
129, 532 S.E.2d at 587; Postell v. B&D Construction Co., 105 N.C.
App. 1, 4-7, 411 S.E.2d 413, 415-17, disc. review denied, 331 N.C.
286, 417 S.E.2d 253 (1992). Therefore, if in fact the Commission
used the first method to calculate decedent's average weekly wage,
it erred in doing so.
Plaintiff argues the Commission should have calculated
decedent's average weekly wage using the second method in N.C.G.S.
§ 97-2(5), ("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"). Plaintiff specifically
argues that according to decedent's Form 22, there were numerous
seven day periods in which decedent did not work for employer
during the 52 weeks preceding decedent's injury. In fact,
plaintiff contends that the Commission must use the second method
in determining decedent's average weekly wage and is prohibited
from using the fifth method of calculation. However, as stated in
Joyner, the calculation of an injured employee's average weekly
wage, when that employee is a part-time or intermittent employee,
should not convert the job into full-time or continuous employment.
Joyner, 266 N.C. at 523, 146 S.E.2d at 450 (citing Liles, 244 N.C.653, 94 S.E.2d 790). As stated above, if one of the four
enumerated methods in N.C.G.S. § 97-2(5) is appropriate to
calculate the injured employee's average weekly wage and the
Commission does not make a finding that the result is unjust, that
method must be used. McAninch, 347 N.C. at 130, 489 S.E.2d at 378.
However, where the Commission makes a finding that the result of
using such a method would be unjust, and that finding is supported
by the evidence, the Commission may calculate the average weekly
wage under the fifth method in N.C.G.S. § 97-2(5). Id. When using
the fifth method the Commission is to calculate the average weekly
wage "as will most nearly approximate the amount which [decedent]
would be earning were it not for the injury[.]" Liles, 244 N.C. at
660, 94 S.E.2d at 796.
We hold that if the Commission finds that the calculation of
decedent's average weekly wage by use of the second method in
N.C.G.S. § 97-2(5) would create an unfair result since the
Commission found as fact that decedent was a part-time employee,
the Commission may use an appropriate method to calculate
decedent's average weekly wage "as will most nearly approximate the
amount which [decedent] would be earning were it not for the
injury" under the fifth method in N.C.G.S. § 97-2(5). Liles, 244
N.C. at 660, 94 S.E.2d at 796.
The Commission's award does not contain findings indicating
its consideration of the methods for computing the average weekly
wage. We therefore remand this case to the Commission for
recalculation of decedent's average weekly wage and appropriatefindings of fact to support that recalculation consistent with this
opinion.
Reversed and remanded.
Judges BRYANT and GEER concur.
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