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to modification and technical correction prior to official publication in the
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NO.
COA07-53
NORTH
CAROLINA COURT OF APPEALS
DEBRA CONYERS,
Employee-Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 207998
NEW HANOVER COUNTY SCHOOLS,
Employer,
SELF-INSURED (KEY RISK
MANAGEMENT SERVICES, Third
Party Administrator),
Defendant.
Appeal
by Defendant from Opinion and Award entered 1 September 2006 by the North
Carolina Industrial Commission. Heard
in the Court of Appeals 29 August 2007.
Brumbaugh,
Mu & King, by Maggie S. Bennington, for Plaintiff.
Attorney
General Roy Cooper, by Assistant Attorney General Vanessa N. Totten, for Defendant.
STEPHENS,
Judge.
The
sole issue to be addressed in this appeal is what method under N.C. Gen. Stat.
§97-2(5) should be used to calculate a public school employee’s “average weekly
wages” for the payment of workers’ compensation benefits. Defendant contends the Full Commission erred
in calculating Plaintiff’s average weekly wages under N.C. Gen. Stat.
§97-2(5). For the reasons stated below,
we reverse the Full Commission and remand for entry of an Award in accordance
with this opinion.
I. FACTS AND PROCEDURE
Plaintiff-Appellee
Debra Conyers (“Plaintiff”) was employed by Defendant-Appellant New Hanover
County Schools (“Defendant”) as a bus driver.
She had held this job for approximately 12 years prior to sustaining a
compensable injury on 30 October 2001. Plaintiff drove a school bus during the school year and was
not employed during the summertime. She
earned $10.90 per hour, approximately $436 per week. She received her paycheck monthly after each month worked,
receiving no paychecks during the summer months. Plaintiff earned a total of $17,608.94 in the 52 weeks preceding
the accident.
On
12 March 2004, Plaintiff filed a Form 33 Request for Hearing, claiming
entitlement to workers’ compensation benefits for past, present, and future
disability; medical benefits; attorneys’ fees; and costs as a result of her
injury. Plaintiff’s claim was
heard by Deputy Commissioner Phillip Holmes on 31 March 2005. In an Opinion and Award filed 13 December
2005, Deputy Commissioner Holmes found that the first method described by N.C.
Gen. Stat. §97-2(5) should be used to calculate Plaintiff’s average weekly
wages, and thus concluded that Plaintiff’s average weekly wages were $338.63.
Plaintiff
appealed to the Full Commission, and the appeal was heard on 8 June 2006. By Opinion and Award filed 1 September 2006,
the Full Commission reversed the decision of Deputy Commissioner Holmes,
concluding that Plaintiff’s correct average weekly wages were best determined
by using the third method of N.C. Gen. Stat. _ 97-2(5), thereby
establishing average weekly wages of $434.07.
From
this Opinion and Award, Defendant appeals.
II. DISCUSSION
Appellate
review of an Opinion and Award of the Full Commission is limited to a
determination of whether the Full Commission’s findings of fact are supported
by any competent evidence, and whether those findings support the Full
Commission’s legal conclusions. Adams
v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998), reh’g denied, 350
N.C. 108, 532 S.E.2d 522 (1999). The
Full Commission’s conclusions of law are reviewable de novo. Whitfield v. Lab. Corp. of Am., 158
N.C. App. 341, 581 S.E.2d 778 (2003).
In
North Carolina, the calculation of an injured employee’s average weekly wages
is governed by N.C. Gen. Stat. §97-2(5).
The statute sets forth five methods, in order of preference, by which an
injured employee’s average weekly wages are to be computed. Hensley v. Caswell Action Comm., Inc.,
296 N.C. 527, 251 S.E.2d 399 (1979).
The statute, as it pertains to this case, provides:
[Method 1] “Average
weekly wages” shall mean 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 . . . .
.
. . .
[Method 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. . . .
.
. . .
[Method 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)
(2001).
The
dominant intent of this statute is to obtain results that are fair and just to
both employer and employee. Joyner
v. A. J. Carey Oil Co., 266 N.C. 519, 146 S.E.2d 447 (1966). Results fair and just within the meaning of
the statute “consist of such ‘average weekly wages’ as will most nearly
approximate the amount which the injured employee would be earning were
it not for the injury, in the employment in which he was working at the time of
his injury.” Liles v. Faulkner Neon
& Elec. Co., 244 N.C. 653, 660, 94 S.E.2d 790, 795-96 (1956).
Defendant
argues the Full Commission erred in calculating Plaintiff’s average weekly
wages using the third method defined in N.C. Gen. Stat. §97-2(5). Specifically, Defendant contends there is
insufficient evidence to support the following findings of fact:
9. The Form 22 reflects total wages of $17,608.94 in the fifty-two weeks preceding [P]laintiff’s October 30, 2001 injury. However, as [P]laintiff did not work continuously during the fifty-two week period, methods one and two for computing average weekly wage cannot be used. Using method three, dividing the amount earned by the number of weeks actually worked, [P]laintiff’s average weekly wage is $434.07, and her compensation rate is $289.40.
10. Use of the third method to calculate
[P]laintiff’s average weekly wage produces the most fair and just results for
the parties.
As Defendant points out, Plaintiff was a full-time employee
with New Hanover County Schools and had been continuously employed by the
school system for 12 years before the injury.
Thus, according to Defendant, the mandatory method to use in this case
is the first method whereby Plaintiff’s yearly earnings of $17,608.94 are
divided by 52, for an average weekly wage of $338.63. Furthermore, Defendant
contends there is no evidence in the record to support the finding that the
third method would produce the most fair and just results for the parties. Defendant argues that use of the third
method yields an unfair and unjust result as Plaintiff’s yearly salary under
this method would be $22,571.64, $4,962.70 more than she had actually earned in
the year before she was injured.
Plaintiff contends that, as an employee of the New Hanover
County Schools, she only worked 279 days in the year prior to her
accident. Since her employment did not
extend over the preceding 52-week period, she argues the Full Commission
properly used the third method of N.C. Gen. Stat. §97-2(5) to determine her
average weekly wages.
Our research reveals only one case in which the North
Carolina appellate courts have addressed the issue of whether a public school
employee’s average weekly wages should be calculated with or without regard to
the 10 week summer vacation period. In McAninch
v. Buncombe Cty. Sch., 122 N.C. App. 679, 471 S.E.2d 441 (1996), rev’d,
347 N.C. 126, 489 S.E.2d 375 (1997), the plaintiff-employee, a cafeteria worker
whose position only existed during the school year, worked 42 weeks per year
for the defendant-employer. The Full
Commission determined the plaintiff’s average weekly wages using the third
method of N.C. Gen. Stat. §97-2(5), by dividing her earnings during her 42-week
work period by the 42 weeks she had worked.
This Court reversed the Full Commission, concluding that the plaintiff’s
average weekly wages should have been calculated under the fifth method of N.C.
Gen. Stat. §97-2(5), by dividing the plaintiff’s total wages earned in the 52
weeks prior to the accident by 52. McAninch,
347 N.C. 126, 489 S.E.2d 375.
However, on writ of certiorari, our Supreme Court held that this Court
had no authority to recalculate the plaintiff’s wages, because the defendant
and the plaintiff had entered into a Form 21 agreement for compensation[Note
1] which was approved by the Commission.
Id.[Note 2] The
Supreme Court ruled that the Form 21 agreement could not be modified or set
aside on appellate review “where there [was] no finding [by the Commission]
that the agreement itself was obtained by fraud, misrepresentation, mutual
mistake, or undue influence[.]” Id.
at 132, 489 S.E.2d at 379 (quotation marks and citation omitted). The Supreme Court further stated that
“[w]here the employer and employee have entered into a Form 21 agreement,
stipulating the average weekly wages, and the Commission approves this
agreement, the parties are bound to its terms absent a showing of error in the
formation of the agreement.” Id.
at 132, 489 S.E.2d at 378-79.
Accordingly, while McAninch may be instructional, it provides no
precedential value as to the calculation method to be used in this case.
Other jurisdictions have addressed the issue of how to
calculate workers’ compensation average weekly wages for educators and other
school employees.[Note 3]
However, these decisions are of limited value given the unique nature of
the contracts for employment in each case as well as each state’s unique
workers’ compensation statutory scheme.
Consequently, for guidance in this case, we will examine the statutory
intent and construction of N.C. Gen. Stat. §97-2(5), the undisputed facts of
this case, and factually similar cases which have interpreted N.C. Gen. Stat.
§97-2(5).
Although “[w]hen the first method of compensation can
be used, it must be used[,]” Hensley, 296 N.C. at 533, 251 S.E.2d
at 402, that method cannot be used when the injured employee has been working
in that employment for fewer than 52 weeks in the year preceding the date of
the accident. Loch v. Entm’t Ptnrs.,
148 N.C. App. 106, 557 S.E.2d 182 (2001).
Here, since the employment contract between Plaintiff and Defendant was
not included in the Record on Appeal, the actual terms of the contract are not
available to this Court. However, the
record contains uncontradicted evidence that Plaintiff’s employment by New
Hanover County Schools extended for a period of less than 52 weeks prior to the
accident. Plaintiff drove a bus for 10
months out of the year, was paid for 10 months of work, received her paycheck
10 times a year, and did not work or get paid during the summer when school was
out. Defendant was not obligated
to compensate Plaintiff during the summer months, nor was Plaintiff obligated
to work for Defendant during those months.
As a result, her average weekly wages cannot be computed under the first
method set out in N.C. Gen. Stat. §97-2(5).
Accordingly, we next examine whether Plaintiff’s average
weekly wages should be calculated pursuant to the third statutory method.[Note
4] Using this method, the Full
Commission determined Plaintiff’s average weekly wages to be $434.07. Based on this calculation, the next inquiry
required by the statute is whether the results obtained are “fair and just to
both parties.” N.C. Gen. Stat.
§97-2(5). Here, using the third method,
Plaintiff’s yearly salary would become $22,571.64, which is $4,962.70 more than
her actual pre-injury wages. This
result is not fair and just as Defendant would be unduly burdened while Plaintiff
would receive a windfall. The purpose
of our Workers’ Compensation Act is not to put the employee in a better
position and the employer in a worse position than they occupied before the
injury. Thus, the third method is not
appropriate in this case.
Therefore, we must evaluate the propriety of using the fifth
method of calculation.[Note 5]
This method may only be utilized subsequent to a finding that the
previous methods were either inapplicable, or were applicable but would fail to
produce results fair and just to both parties.
Wallace v. Music Shop, II, Inc., 11 N.C. App. 328, 181 S.E.2d 237
(1971). Such is the case here.
In Joyner, 266 N.C. 519, 146 S.E.2d 447, our 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 52 weeks prior to
his injury. The Court described the
driver’s employment as “inherently part-time and intermittent” and held it was
“unfair[] 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 wages because otherwise “it gives [the] plaintiff the advantage of wages
earned in the ‘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’s average weekly wages were to be calculated
under the “exceptional reasons” method set forth in N.C. Gen. Stat. §97-2(5)[Note
6] by taking the total wages earned during the 52-week period prior to
injury[Note 7] and dividing that amount by 52, representing the number
of weeks in a year. Id. at 522,
146 S.E.2d at 450.
In Barber v. Going West Transp., Inc., 134 N.C. App.
428, 517 S.E.2d 914 (1999), the plaintiff was injured while working as a driver
for his employer, a provider of long-haul transportation services specializing
in produce shipment. The Full
Commission found that the plaintiff had been continuously employed with the
employer since 1994, and that the plaintiff’s employment was not seasonal. This Court reversed, noting that the
plaintiff did not work during February, March, August, September, or November
of 1995, and worked only 11 days in April, six days in July, and seven days in
December of that year. As a result of
this fluctuating work schedule, which was dependent upon the produce season,
the 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 employee’s weekly wages should be computed under the
“exceptional reasons” method of N.C. Gen. Stat. §97-2(5) by dividing his total
earnings in the 52-week period preceding the injury by 52. Id. at 437, 517 S.E.2d at 921.
In this case, as in Joyner, Plaintiff’s employment
had “peak times” where she worked full-time, and “slack periods” where she did
not work at all. Calculating
Plaintiff’s average weekly wages using method three inflates her earnings by
basing them solely on income earned during “peak times,” a result contrary to
the Court’s reasoning in Joyner, and causes a windfall for Plaintiff,
contrary to statutory intent.
Furthermore, similar to Barber, Plaintiff is essentially a
“seasonal” worker who only works during the school year. Although she was considered a full-time
employee, by virtue of the school calendar, she was not required to work during
the summer and never anticipated doing so.
Thus, as in Joyner and Barber, the fifth, or “exceptional
reasons” method identified in N.C. Gen. Stat. §97-2(5), should be used to
calculate Plaintiff’s average weekly wages.
The language of the fifth calculation method neither
requires nor prohibits any specific mathematical formula from being applied;
instead, it directs that the average weekly wages calculated must “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). Plaintiff earned $17,608.94
in the 52 weeks preceding the accident.
Although she only worked approximately 40 of those weeks and was paid in
10 monthly paychecks, the compensation she collects for workers’ compensation
will be paid every week, including the weeks of her summer vacation. Consequently, as in Joyner and Barber,
Plaintiff’s average weekly wages should be calculated by dividing the wages she
earned in the 52-week period prior to her accident by 52, the number of weeks
in the year. This calculation yields
average weekly wages of $338.63, which most nearly approximates the amount Plaintiff
would be earning were it not for her injury.[Note 8]
We therefore reverse the decision of the Full Commission and
remand for entry of an Award in accordance with this opinion.
REVERSED AND REMANDED.
Judges McGEE and SMITH concur.
1. The Form 21 agreement specified average
weekly wages of $163.37, reflecting the plaintiff’s annual salary divided by
the 42 weeks she actually worked.
2. A second issue involving the proper
calculation of the plaintiff’s average weekly wage is not present in the case
sub judice.
3. See, generally, Powell v.
Indus. Comm’n, 451 P.2d 37 (Ariz. 1969) (calculating the plaintiff-school
teacher’s average weekly wages by dividing the annual salary specified in her
contract by the nine-month period of employment specified in her contract);
Lynch v. U.S.D. No. 480, 850 P.2d 271 (Kan. Ct. App. 1993) (determining
that average weekly wages of a school teacher are calculated by dividing the
money earned during the school year by the actual number of weeks worked); Brounette
v. E. Baton Rouge Parish Sch. Bd., 610 So. 2d 979 (La. Ct. App. 1992), cert.
denied, 612 So. 2d 64 (La. 1993) (calculating the plaintiff-school board
employee’s average weekly wages by dividing her annual salary, received in nine
monthly installments, by 52); Herbst’s Case, 624 N.E.2d 564 (Mass. 1993)
(calculating the plaintiff-school teacher’s average weekly wages by dividing
his yearly earnings by 52); Duran v. Albuquerque Pub. Sch., 731 P.2d
1341 (N.M. Ct. App. 1986), cert. denied, 731 P.2d 1334 (N.M. 1987) (calculating
the plaintiff’s maximum weekly workers’ compensation benefits based on a
52-week work year rather than on the basis of the 40-week work year which she
actually worked under the terms of her contract with the public school system);
Jones v. Worker’s Comp. Appeal Bd., 786 A.2d 1026 (Pa. Commw. Ct. 2001)
(holding that because the plaintiff-school teacher’s contract called for an
annual salary, the average wage should be determined by dividing her salary by
52 weeks rather than time actually worked); Stofa v. Workers’ Comp. Appeal
Bd., 702 A.2d 381 (Pa. Commw. Ct. 1997) (holding the public school district
properly divided the petitioner-school teacher’s salary by 52 weeks to
calculate the wages to deduct from petitioner’s pre-injury average weekly wage
to determine petitioner’s partial disability benefits).
4. The second statutory method is not
applicable here as it only applies where the employee worked in the employment
in which he or she was injured for 52 weeks in the year preceding the accident and
lost more than seven consecutive calendar days during that 52-week period.
5. The fourth statutory method is not
applicable here as it only applies where the injured employee was employed for
a very short period of time or where the terms of employment were casual in
nature.
6. Joyner was decided under a
previous version of N.C. Gen. Stat. §97-2(5) where the “exceptional reasons”
method was the fourth method instead of the fifth method, as it currently is.
7. The plaintiff and another employee did
the same work for the same employer for the same wage but at different times
during the year at issue. The Court
treated their employment as one continuous employment for the purpose of
calculating the plaintiff’s average weekly wages during the 52-week period
prior to the plaintiff’s accident.
8. Although this Court suggested in Loch
v. Entm’t Ptnrs., 148 N.C. App. 106, 557 S.E.2d 182, that calculating an
employee’s average weekly wages under the fifth method of the statute, using
the formula set out in the first method, might be an impermissible way “to
circumvent the statute when calculation under the first method was otherwise
inappropriate[,]” id. at 112, 557 S.E.2d at 186, our Supreme Court in Joyner,
266 N.C. 519, 146 S.E.2d 447, in making the precise calculation which Loch
suggests is impermissible, stressed that the dominant intent of N.C. Gen. Stat.
§97-2(5) is that “results fair and just to both employer and employee be
obtained[,]” id. at 522, 146 S.E.2d at 449 (emphasis added), regardless
of the method or formula used.