All
opinions are subject to modification and technical correction prior to official
publication in the
NO.
COA07-1420
Filed:
3 March 2009
JAMES M. ERICKSON,
Employee,
Plaintiff,
v.
I.C.
File No. 286398
LEAR SIEGLER,
Employer,
AMERICAN MOTORIST INSURANCE,
Carrier,
Defendants.
Appeal
by defendants from opinion and award entered 24 August 2007 by the North
Carolina Industrial Commission. Heard in
the Court of Appeals 29 April 2008.
Brumbaugh, Mu
& King, P.A., by Maggie S. Bennington, for plaintiff-appellee.
Wilson &
Ratledge, PLLC, by Kristine L. Prati, for defendants-appellants.
GEER,
Judge.
Defendants
Lear Siegler and American Motorist Insurance appeal the opinion and award of
the Full Commission concluding that plaintiff James M. Erickson’s cervical
spine condition was a compensable injury.
Defendants have not disputed that plaintiff suffered a compensable back
injury, but contend that any workers’ compensation benefits should be limited
to disability and medical expenses arising out of plaintiff’s lower back
condition rather than his cervical spine condition. We find unpersuasive defendants’ contention
that the Commission’s jurisdiction was timely invoked only as to a lumbar spine
condition and not as to a cervical spine condition. Since, in addition, the record contains
competent expert testimony supporting the Commission’s determination that the
compensable workplace accident caused the cervical spine condition, we affirm
the Commission’s opinion and award as to the cervical spine condition. We must, however, remand for further findings
of fact regarding plaintiff’s average weekly wage.
Facts
At the
time of the hearing before the deputy commissioner, plaintiff was 57 years
old. Plaintiff had served in the United
States Army for 26 years, retiring in 1993.
In November 1999, plaintiff was hired by defendant Lear Siegler as a
mechanic. After working with Lear
Siegler for two years, plaintiff was assigned to repair military vehicles.
On 6
June 2002, plaintiff was working on a water trailer and needed to change the
axle. Plaintiff first removed the 150-pound
wheel and hub and then removed the lug nuts and axle. After removing the axle, plaintiff stood up
and turned to the right. As he turned,
he felt a “pop” in his back and collapsed on the floor. Eventually, plaintiff
stood back up, put away his tools, and went home for the day. The next morning, plaintiff could not get out
of bed. He called Lear Siegler, told
them what had happened the day before, and explained that he could not get out
of bed.
Plaintiff
experienced pain from his “neck on down,” including pain in his arms and
legs. Plaintiff made an attempt to go to
work the following Monday, 10 June 2002, but his supervisor informed him that
he needed a note from a doctor before returning to work. Lear Siegler did not, however, refer
plaintiff to any doctor for medical treatment.
Plaintiff
sought treatment at the
On 27
June 2002, defendants filed a Form 19 with the Industrial Commission. On 10 July 2002, defendants completed a Form
63 — Notice to Employee of Payment of Compensation Without Prejudice —
acknowledging (1) plaintiff’s “claim” for “injury on 06/06/2002” and (2) that
defendant-employer had “actual notice of employee’s injury” on 7 June
2002. Defendants stated in the Form 63
that plaintiff’s disability began on 7 June 2002 and that the first payment had
been made to him on 27 June 2002. After
filing the Form 63, defendants did not subsequently deny the claim within the
time specified by N.C. Gen. Stat. §97-18(d) (2007) (providing, upon payment
without prejudice, that “[i]f the employer or insurer does not contest the
compensability of the claim or its liability therefor within 90 days from the
date it first has written or actual notice of the injury or death, or within
such additional period as may be granted by the Commission, it waives the right
to contest the compensability of and its liability for the claim under this
Article”).
Defendants
began directing plaintiff’s medical treatment by arranging for plaintiff to be
seen by Dr. Timothy R. Detamore at Carolina Neurosurgical Services, P.A. on 14
August 2002. Dr. Detamore, however,
noted that there were no MRIs or x-rays of plaintiff’s spine and requested that
these tests be completed prior to his examination of plaintiff. On 12 September 2002, plaintiff returned to
Dr. Detamore’s office for a complete evaluation, complaining primarily of back
and leg pain. Following the examination,
Dr. Detamore diagnosed plaintiff as having cervical myelopathy, cervical
radiculopathy, and lumbar radiculopathy.
He ordered a myelogram and took plaintiff out of work until 4 October
2002, the date of plaintiff’s next scheduled visit to Dr. Detamore’s office.
On 16
September 2002, plaintiff underwent pre-myelogram studies. The studies revealed degenerative disc
disease at L5-S1, mild degenerative disc disease at C4-5 and C6-7, and a prior
fusion at C5-6. Plaintiff’s myelogram on
23 September 2002 revealed a prior fusion at C5-6 with unremarkable findings;
broad disc bulges at C3-4, C4-5, and C6-7; and broad based disc bulges at L3-4,
L4-5, and L5-S1. Defendants paid for
these tests.
When
plaintiff returned to Dr. Detamore’s office on 3 October 2002, the doctor
recommended that plaintiff undergo an anterior cervical diskectomy,
spondylectomy, osteophytectomy, bilateral foraminotomy, and partial corpectomy
at the C3-4 and C4-5 levels. Dr.
Detamore performed the surgery on 24 October 2002. At the time of plaintiff’s surgery,
defendants had not denied liability for plaintiff’s neck condition. At some point after the surgery, however,
defendants refused to cover the cost of the procedure.
Dr.
Detamore ultimately expressed the opinion that the workplace incident
necessitated the surgery he performed.
He explained:
What [plaintiff] came to me for was
complaints of pain which he said was in his low back and leg. The complaints of pain in my medical opinion
was [sic] a combination of cervical myelopathy, cervical radiculopathy, spinal
cord compression, and nerve root irritation which was brought on at the time of
the lifting of this heavy weight. That’s
what caused those symptoms to become present even though he had the pre-existing
condition of degenerative osteoarthritis.
He added that when he
examined plaintiff, plaintiff “did come to me with this complaint of a lumbar
radicular complaint only. And yet on my
examination, I found not as much of a problem with a [sic] lumbar radicular
symptoms and signs on his examination. I
found more of cervical both myelopathy and radiculopathy and that his focus was
primarily on a [sic] lumbar radicular symptoms.”
Dr.
Detamore retired after plaintiff’s surgery and transferred plaintiff’s care to
Dr. Carol Wadon, another doctor from Carolina Neurosurgical Services. When Dr. Wadon initially examined plaintiff
on 7 November 2002, plaintiff complained of numbness in his arms and difficulty
turning his head. Dr. Wadon recommended
a cervical MRI that revealed evidence of post-operative changes at C3-4 and C4-5
with some persistent stenosis. Dr. Wadon
recommended that plaintiff undergo further cervical surgery that was performed
on 27 November 2002.
On 17
January 2003, Dr. Wadon ordered an MRI that indicated mild multilevel
spondylosis and degenerative disc disease most prominent at the L4-5 and L5-S1
levels. On 27 February 2003, Dr. Wadon
determined that plaintiff had reached maximum medical improvement and assigned
a 10% permanent partial impairment rating to his low back. Rather than recommend additional surgery, Dr.
Wadon referred plaintiff to pain management.
Dr. Wadon concluded that plaintiff’s cervical problems were the result
of degenerative changes. Defendants did
not pay for the 27 November 2002 surgery, but they did pay for treatment
provided by Dr. Wadon on 27 February 2003 as well as the 17 January 2003
diagnostic tests.
Dr.
Wadon referred plaintiff to Dr. Toni Harris at Eastern Carolina Pain Management
for his low back and bilateral extremity pain.
Dr. Harris diagnosed plaintiff with low back and bilateral lower
extremity pain related to his workplace injury and neck and shoulder pain
secondary to his fusion surgery. Dr.
Harris treated plaintiff with epidural steroid injections for his back and a
referral to physical therapy. Plaintiff
was released from Dr. Harris’ care on 15 October 2003. Dr. Harris determined that plaintiff had
reached maximum medical improvement, and plaintiff was assigned a 5% permanent
partial impairment rating to his low back.
He recommended that plaintiff undergo a functional capacity evaluation.
On 28
July 2004, plaintiff filed a Form 18, reporting an injury to his back and legs
as a result of the incident on 6 June 2002.
On 4 October 2004, the functional capacity evaluation recommended by Dr.
Harris was performed. The results of
that evaluation indicated that plaintiff was capable of performing sedentary
work. On 21 October 2004, plaintiff
filed a Form 33, Request for Hearing, alleging injury to his upper, middle, and
lower back.
Defendants
filed a Form 33R and amended Forms 33R in response to plaintiff’s request for
hearing on 7 January, 11 January, and 9 March 2005 in which they notified the
Commission that they refused to pay for plaintiff’s neck treatment. In addition, on 9 March 2005, defendants
submitted to the Commission a motion to dismiss for lack of jurisdiction,
arguing that plaintiff had not timely filed a claim under N.C. Gen. Stat. §97-24
(2007).
On 21
June 2005, Dr. Jaylan R. Parikh at
In an
opinion and award filed 24 February 2006, the deputy commissioner concluded
that plaintiff had timely filed his claim and awarded plaintiff continuing
temporary total disability benefits until such time plaintiff returned to work
or until further order of the Commission.
Additionally, the deputy commissioner ordered defendants to pay all
medical expenses for plaintiff’s cervical and lumbar spine injuries incurred as
a result of the 6 June 2002 incident.
Defendants
appealed to the Full Commission, and, in an opinion and award filed 24 August
2007, the Commission affirmed the opinion and award of the deputy commissioner
with modifications. Chairman Buck
Lattimore dissented. The Full Commission
chose to give greater weight to the opinion of Dr. Detamore over the contrary
opinions of Dr. Wadon and Dr. Parikh and, therefore, found that “Plaintiff’s
workplace injury by accident on June 6, 2002 significantly contributed to the
cervical spine condition for which Dr. Detamore treated Plaintiff and performed
surgery.”
The
Commission then concluded, “[b]ased on the greater weight of the evidence,
Plaintiff suffered a compensable injury to his neck and back on June 6, 2002,
as a direct result of a specific traumatic incident of the work assigned to him
by Defendant-Employer.” The Commission
further determined that plaintiff’s claim for compensation for his neck injury
was not barred by N.C. Gen. Stat. §97-24.
The Commission noted, in any event, that defendants had not disputed
plaintiff’s entitlement to continuing temporary total disability compensation
for his lower back injury. It further
concluded that although defendants had terminated vocational rehabilitation
assistance to plaintiff on 26 October 2004, plaintiff would benefit from such
assistance. The Commission awarded
plaintiff continuing temporary total disability benefits from the date of his 6
June 2002 injury continuing until further order of the Commission and ordered
defendants to pay “all medical expenses incurred or to be incurred in the
future for Plaintiff’s cervical and lumbar spine injuries when bills for the
same have been submitted and approved according to procedures adopted by the
Industrial Commission.” Defendants
timely appealed to this Court.
I
Defendants
first contend the Full Commission erred in concluding that plaintiff’s claim
was not time barred under N.C. Gen. Stat. §97-24 because plaintiff failed to
file a claim for his neck injury with the Industrial Commission within two
years of the accident. N.C. Gen. Stat.
97-24(a) provides:
The right to compensation under this
Article shall be forever barred unless (i) a claim or memorandum of agreement
as provided in G.S. 97-82 is filed with the Commission or the employee is paid
compensation as provided under this Article within two years after the accident
or (ii) a claim or memorandum of agreement as provided in G.S. 97-82 is filed
with the Commission within two years after the last payment of medical
compensation when no other compensation has been paid and when the employer’s
liability has not otherwise been established under this Article.
Failure
to file a claim within the two-year period precludes the Industrial Commission
from asserting jurisdiction over an employee’s claim. Crane v. Berry’s Clean-Up &
Landscaping, Inc., 169 N.C. App. 323, 328, 610 S.E.2d 464, 467, disc.
review denied, 359 N.C. 630, 616 S.E.2d 230 (2005). As this Court noted in Tilly v. High Point
Sprinkler, 143 N.C. App. 142, 146, 546 S.E.2d 404, 406, disc. review
denied, 353 N.C. 734, 552 S.E.2d 636 (2001), when, as here, “a party
challenges the Commission’s jurisdiction to hear a claim, the findings relating
to jurisdiction are not conclusive [on appeal,] and the reviewing court may
consider all of the evidence in the record and make its own determination on
jurisdiction.”
Defendants
concede that the Commission’s jurisdiction was invoked when the Form 63 was
filed on 10 July 2002, but argue that the Form 63 only invoked the Commission’s
jurisdiction over plaintiff’s claim for his lumbar spine condition and not over
his claim for his cervical spine condition.
The Form 63 specifically acknowledged plaintiff’s “claim” for “injury on
06/06/2002.” Defendants did not purport
to limit this claim to any particular body part or portion of the spine. Defendants, however, assert that “the Form 63
only related to the low back claim, as is evidenced by the totality of the
record.”
Defendants
cite no authority to support their attempt to limit the jurisdiction of the
Commission, and we have found none. As
the Supreme Court recently observed, “[w]e have previously explained the
context of the workers’ compensation claim: ‘The claim is the right of the
employee, at his election, to demand compensation for such injuries as result
from an accident.’” Gore v.
Myrtle/Mueller, 362 N.C. 27, 34, 653 S.E.2d 400, 406 (2007) (quoting Biddix
v. Rex Mills, Inc., 237 N.C. 660, 663, 75 S.E.2d 777, 780 (1953)). In addition, this Court has previously held
that a claim for benefits “is sufficient under N.C. Gen. Stat. §97-24 if it
identifies the accident and injury at issue and expresses an intent to invoke
the Commission’s jurisdiction with respect to that injury.” Crane, 169 N.C. App. at 329, 610
S.E.2d at 467. Here, the Commission’s
jurisdiction was invoked as to the accident on 6 June 2002, and plaintiff was
entitled to seek compensation for such injuries as resulted from that accident.
This
case involves a specific traumatic incident resulting in a back injury; the
only dispute is over the portions of the back involved. We note that the evidence indicates that the
cervical spine injury was not some new injury that arose long after the Form 63
was filed. Instead, this case from the
beginning has involved a claim for a back injury, in which one of the expert
witnesses ultimately determined that a cervical spine injury, as well as a
lumbar spine injury, was contributing to the pain experienced by plaintiff
following the accident. Such a
determination must be made by a medical expert.
See Click v. Pilot Freight Carriers, Inc., 300 N.C. 164,
167, 265 S.E.2d 389, 391 (1980) (explaining that “where the exact nature and
probable genesis of a particular type of injury involves complicated medical
questions far removed from the ordinary experience and knowledge of laymen,
only an expert can give competent opinion evidence as to the cause of the
injury”). In this case, defendants chose
to invoke the jurisdiction of the Commission without further investigating the
source of plaintiff’s low back pain.
Those
circumstances do not warrant limiting the jurisdiction of the Commission
invoked by the Form 63. Under defendants’
approach, an employee would be precluded from receiving compensation for not
properly diagnosing his own injury and informing the defendant of that
diagnosis. Such a result would be
inconsistent with the principle recently affirmed by our Supreme Court in Gore,
362 N.C. at 36, 653 S.E.2d at 406 (internal quotation marks omitted), “that the
Workers’ Compensation Act requires liberal construction to accomplish the
legislative purpose of providing compensation for injured employees, and that
this overarching purpose is not to be defeated by the overly rigorous
technical, narrow and strict interpretation of its provisions.”
In any
event, even if plaintiff’s cervical spine condition required the filing of its
own claim, that claim falls within N.C. Gen. Stat. §97-24(a)(ii), providing
that a claim is timely when filed “within two years after the last payment of
medical compensation when no other compensation has been paid and when the
employer’s liability has not otherwise been established . . . .” The Commission found, with respect to §97-24(a)(ii)
that “[d]efendants paid for the following treatment by Dr. Detamore: the August
14, 2002 treatment was paid on October 29, 2002; the September 12, 2002
treatment was paid on October 28, 2002; the October 3, 2002 treatment was paid
on April 1, 2003.” This treatment
included treatment for plaintiff’s cervical spine condition. Plaintiff’s 21 October 2004 Form 33,
requesting a hearing on plaintiff’s claim of injury to the “Upper/Middle/Lower
Back, left & right legs,” falls within two years of the payment of this
medical compensation. See, e.g., McGhee
v. Bank of Am. Corp., 173 N.C. App. 422, 426, 618 S.E.2d 833, 836 (2005)
(holding that although plaintiff did not file her claim within two years of her
accident, her claim was timely filed because it was filed within the two-year
period following defendants’ last payment of medical compensation to
plaintiff).
Defendants,
however, contend that the payment of this compensation should not render
plaintiff’s claim timely as to the cervical spine aspect of his injury because “Defendants
have never paid for any medical compensation related solely to Plaintiff’s
neck.” (Emphasis added.) There is no dispute that the treatment
provided by Dr. Detamore related, in part, to plaintiff’s cervical spine. Defendants have cited no authority to support
their proposition that N.C. Gen. Stat. §97-24(a)(ii)’s previous medical
compensation must be confined solely to one particular area of a larger
injury. We, therefore, conclude that defendants
have failed to demonstrate that plaintiff’s claim is untimely under §97-24(a)(ii).
Finally,
defendants argue that even if they did pay medical compensation to plaintiff,
plaintiff nonetheless was still required to file his claim for the neck injury
within two years of the date of the accident.
Although this argument is contrary to the plain language of the statute,
defendants cite Barham v. Kayser-Roth Hosiery Co., 15 N.C. App. 519,
521, 190 S.E.2d 306, 308 (1972), as support for their contention. Barham, however, construed a prior
statute that did not include the language currently set out in N.C. Gen. Stat. §97-24(a)(ii). Barham was, in fact, superceded by
that statute. We, therefore, hold that
the Commission was correct in concluding that plaintiff’s claim for
compensation was not barred by N.C. Gen. Stat. §97-24.
II
Defendants
next contend the Full Commission erred in finding that plaintiff’s neck
condition was causally related to the 6 June 2002 accident. Defendants first argue that plaintiff’s
cervical condition did not arise out of his employment at Lear Siegler, and
thus he is not entitled to compensation for that injury. As this argument dovetails with their second
contention that plaintiff failed to prove the causation element of his claim
because his expert’s testimony was only speculation and conjecture, we address
both arguments simultaneously.
Apart
from the issue of jurisdiction, appellate review of a decision of the Industrial
Commission “is limited to determining whether there is any competent evidence
to support the findings of fact, and whether the findings of fact justify the
conclusions of law.” Cross v. Blue
Cross/Blue Shield, 104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104
(1991). “The findings of the Commission
are conclusive on appeal when such competent evidence exists, even if there is
plenary evidence for contrary findings.”
Hardin v. Motor Panels, Inc., 136 N.C. App. 351, 353, 524 S.E.2d
368, 371, disc. review denied, 351 N.C. 473, 543 S.E.2d 488 (2000). The Commission’s findings of fact may be set
aside only if there is a “complete lack of competent evidence to support them.” Young v.
The
Commission made the following findings with respect to whether plaintiff’s
cervical spine condition was caused by his workplace accident:
27. Both Dr. Parikh and Dr. Wadon opined that
Plaintiff’s cervical condition was due to degenerative conditions. Dr. Detamore opined that Plaintiff’s
complaints of pain resulted from a combination of cervical myelopathy, cervical
radiculopathy, spinal cord compression, and nerve root irritation which was
brought on by his workplace injury. The
Full Commission gives greater weight to the opinions of Dr. Detamore over the
contrary opinions of Dr. Wadon and Dr. Parikh and finds that Plaintiff’s
workplace injury by accident on June 6, 2002 significantly contributed to the
cervical spine condition for which Dr. Detamore treated Plaintiff and performed
surgery. Plaintiff began treatment with
Dr. Detamore approximately six weeks after his workplace accident. Plaintiff did not treat with Dr. Wadon until
approximately four and one half months later and Dr. Parikh performed the
[independent medical examination] approximately three years later. Dr. Detamore was tendered as an expert in
neurosurgery and he performed a complete evaluation of Plaintiff.
28. Based on the greater weight of the
evidence, Plaintiff suffered a compensable injury to his neck and back on June
6, 2002, as a direct result of a specific traumatic incident of the work
assigned to him by Defendant-Employer.
The question before
this Court is whether these findings of fact are supported by any competent
evidence.
In
arguing that they are not supported, defendants first point to statements by
plaintiff limiting his complaints to the lower back area and his testimony that
he felt a pop in his back rather than a pop in his neck. It is, however, well established that questions
of causation require expert testimony. See
Click, 300 N.C. at 167, 265 S.E.2d at 391.
Specifically, we believe that what sort of “pop” a particular injury
would make or where an injury’s symptoms would manifest themselves are
questions that must be answered by an expert.
Plaintiff, who is not a medical doctor, was not competent to diagnose
himself, and his statements cannot render Dr. Detamore’s testimony incompetent,
especially when Dr. Detamore specifically recognized and considered the fact that
plaintiff was complaining about only his lower back pain when he was evaluated
by Dr. Detamore.
Next,
defendants argue that “[t]he overwhelming evidence shows that the plaintiff’s
cervical condition was not related to his workers’ compensation injury.” Although defendants acknowledge that the
Commission found Dr. Detamore’s testimony entitled to greater weight than the
testimony of Dr. Parikh and Dr. Wadon, upon which defendants rely, defendants
argue that Dr. Detamore’s testimony was not competent because he could not
conclude to a reasonable degree of medical certainty that plaintiff’s neck
injury was the result of the workplace accident.
This
court has repeatedly held that a doctor is not required to testify to a
reasonable degree of medical certainty. See
Peagler v. Tyson Foods, Inc., 138 N.C. App 593, 599, 532 S.E.2d 207, 211
(2000). See also Davis v.
Columbus County Sch., 175 N.C. App. 95, 101, 622 S.E.2d 671, 676 (2005)
(citing Peagler and stating that “[e]xpert testimony need not show that
the work incident caused the injury to a reasonable degree of medical certainty”). All that is required is that it is “likely”
that the workplace accident caused plaintiff’s injury. See Cannon v. Goodyear Tire &
Rubber Co., 171 N.C. App. 254, 264, 614 S.E.2d 440, 447 (explaining that “when
expert testimony establishes that a work-related injury ‘likely’ caused further
injury, competent evidence exists to support a finding of causation”), disc.
review denied, 360 N.C. 61, 621 S.E.2d 177 (2005); Workman v. Rutherford
Elec. Membership Corp., 170 N.C. App. 481, 495, 613 S.E.2d 243, 252 (2005)
(holding that expert’s testimony that plaintiff’s workplace injury “more likely
than not” caused plaintiff’s injury was sufficient to prove causation).
In
this case, Dr. Detamore testified that although he could not say to a
reasonable degree of medical certainty whether the workplace accident caused
plaintiff’s neck injury, he “would have to say it is more likely” that the
accident caused plaintiff’s neck injury.
This testimony met the required standard and, therefore, is sufficient
to support the Commission’s finding of a causal connection between the
workplace accident and plaintiff’s cervical spine condition.
Defendants
also argue that Dr. Detamore’s deposition contained inconsistent testimony and
that portions of it could be viewed as supportive of their position. As Judge Hudson stated in a dissenting
opinion adopted by the Supreme Court in Alexander v. Wal-Mart Stores, Inc.,
359 N.C. 403, 610 S.E.2d 374 (2005) (per curiam), it is not “the role of
this Court to comb through the testimony and view it in the light most
favorable to the defendant, when the Supreme Court has clearly instructed us to
do the opposite. Although by doing so,
it is possible to find a few excerpts that might be speculative, this Court’s
role is not to engage in such a weighing of the evidence.” Alexander v. Wal-Mart Stores, Inc.,
166 N.C. App. 563, 573, 603 S.E.2d 552, 558 (2004) (Hudson, J.,
dissenting). We will not second-guess
the Commission’s credibility and weight determinations and, therefore, we
uphold the Commission’s finding of causation.
III
Finally,
defendants contend the Commission incorrectly calculated plaintiff’s average
weekly wage. The Commission found that “[p]laintiff’s
average weekly wage is $662.06, yielding a compensation rate of $441.40”
pursuant to N.C. Gen. Stat. §97-2(5) (2007).
The Commission did not include in its opinion and award any explanation
as to how it calculated plaintiff’s average weekly wage.
The
average weekly wage consists of “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.” N.C. Gen. Stat. §97-2(5). Defendants argue that the Commission should
have used the first method set out in N.C. Gen. Stat. §97-2(5) for calculating
the average weekly wage — the method applicable when an employee has worked 52
weeks prior to his injury without being absent from work for more than seven
consecutive calendar days. Under this
method, the average weekly wage is calculated by totaling the employee’s
earnings for the 52 weeks prior to the injury and dividing that sum by 52. Although the statute provides alternative
methods for calculating an employee’s average weekly wage, it is well settled
that “‘[w]hen the first method of compensation can be used, it must
be used.’” Conyers v. New Hanover
County Sch., ___ N.C. App. ___, ___, 654 S.E.2d 745, 750 (2008) (quoting Hensley
v. Caswell Action Comm., Inc., 296 N.C. 527, 533, 251 S.E.2d 399, 402
(1979)). Plaintiff has not suggested
that any method other than the first method in §97-2(5) should be used.
Here,
the parties stipulated that “[p]laintiff’s average weekly wage will be
determined by a Form 22.” It appears to
us that application of the first method in §97-2(5) to the figures in the Form
22 would result in an average weekly wage of $538.33. Since we cannot determine how the Commission
reached the conclusion that plaintiff’s average weekly wage should be $662.06,
we remand for further findings of fact regarding plaintiff’s average weekly
wage. See Boney v. Winn Dixie,
Inc., 163 N.C. App. 330, 333, 593 S.E.2d 93, 96 (2004) (remanding to
Commission where it did not clearly state the method used to calculate
plaintiff’s average weekly wage); Barber v. Going West Transp., Inc.,
134 N.C. App. 428, 437, 517 S.E.2d 914, 921 (1999) (remanding to the Commission
where there were no findings indicating how the average weekly wage was
derived).
Affirmed
in part, remanded in part.
Judges
WYNN and CALABRIA concur.