               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-211

                             Filed: 5 September 2017

North Carolina Industrial Commission, I.C. No. 14-743149

CYNTHIA FRANK, Employee, Plaintiff,

            v.

CHARLOTTE SYMPHONY, Employer, and SELECTIVE INSURANCE COMPANY
OF AMERICA, Carrier, Defendants.


      Appeal by plaintiff from an opinion and award entered 7 December 2016 by the

Full North Carolina Industrial Commission.        Heard in the Court of Appeals 23

August 2017.


      Seth M. Bernanke for plaintiff-appellant.

      Rudisill, White & Kaplan, P.L.L.C., by Garth H. White, for defendant-appellees.


      TYSON, Judge.


      Cynthia Frank (“Plaintiff”) appeals from the Opinion and Award of the North

Carolina Industrial Commission (“Commission”), which determined the amount of

her average weekly wages and compensation rate. We affirm the Commission’s

Opinion and Award.

                                   I. Background

      Plaintiff was employed by the Charlotte Symphony Orchestra (“Defendant-

Employer”) as a violist. On 24 June 2012, Plaintiff filed a Form 18 (“Notice of
                    FRANK V. CHARLOTTE SYMPHONY ORCHESTRA

                                  Opinion of the Court



Accident to Employer and Claim of Employee, Representative, or Dependent”) with

the Commission. She alleged sustaining a compensable injury and/or occupational

disease to her right shoulder. Plaintiff listed her average weekly wages as “$760.00+”

on the Form 18, and stated both the number of hours per day and the days of the

week she worked “varies.” Plaintiff listed her date of injury as 15 December 2013.

      Defendant-Employer and its insurance carrier (collectively, “Defendants”) filed

a Form 61 (“Denial of Workers’ Compensation Claim”). Plaintiff’s claim was heard

before the deputy commissioner on 22 June 2015. Prior to the hearing, Defendants

accepted Plaintiff’s shoulder injury as compensable. The parties agreed the only issue

to be determined by the deputy commissioner was the calculation of Plaintiff’s

average weekly wages.

      The deputy commissioner issued her Opinion and Award and determined

Plaintiff’s average weekly wages to be $757.94, which produced a compensation rate

of $505.32. Plaintiff appealed the determination of her average weekly wages to the

Commission.

      By Opinion and Award dated 7 December 2016, the Commission unanimously

affirmed the deputy commissioner’s determination of Plaintiff’s average weekly

wages and compensation rate. Plaintiff appeals.

                                   II. Jurisdiction




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                                  Opinion of the Court



      Jurisdiction lies in this Court from opinion and award of the Commission

pursuant to N.C. Gen. Stat. §§ 97-86 and 7A-27(b) (2015).

                             III. Average Weekly Wages

      Plaintiff’s sole argument on appeal asserts the Commission erred by applying

the incorrect method under N.C. Gen. Stat. § 97-2(5) (2015) to calculate her average

weekly wages. We disagree.

                               A. Standard of Review

      This Court reviews an opinion and award of the Commission to determine

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, “[t]his Court reviews the

Commission’s conclusions of law de novo.” McLaughlin v. Staffing Solutions, 206 N.C.

App. 137, 143, 696 S.E.2d 839, 844 (2004) (citation omitted).

      “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)], 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).

                             B. Commission’s Findings




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         No testimony was presented to the Commission as the parties stipulated to the

facts:

               1. Plaintiff has been employed as a violist with Defendant-
                  Employer for 17 years.

               2. Plaintiff’s contracts for the 2012-2013 and 2013-2014
                  seasons and the referenced collective bargaining
                  agreements for that period are stipulated. Wage
                  printouts from the Defendant-Employer are stipulated.
                  W-2 and contract from the Chautauqua Symphony are
                  stipulated.

               3. Defendant-Employer’s regular season yearly runs from
                  September through May. Each musician’s individual
                  contract specifies a weekly wage. In addition, there are
                  additional payments available, such as “move up” pay,
                  which compensates the musician for sitting in at a
                  higher level for an absent colleague; broadcast pay, for
                  when the concert is recorded; overtime for special or
                  specific programs; and seniority pay. Plaintiff also
                  received additional compensation through the
                  Defendant-Employer for clinics she taught at local high
                  schools.

               4. Defendant-Employer operates a summer season, which
                  usually runs 4 weeks in June and July. Participation in
                  the summer season is optional for all musicians but, if
                  a musician plays during the summer season, the
                  musician is compensated at the weekly rate provided in
                  the individual contract.

               5. Rehearsals and concerts are called “services.” Each
                  regular season runs the number of weeks specified in
                  the contract. Both the 2012-2013 regular season and the
                  2013-2014 regular season were 33 weeks. During the
                  course of the regular season, there are three weeks that
                  are designated as vacation weeks. There are no services
                  scheduled during the off season. Any week that has no


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                     Opinion of the Court



   services scheduled and is not a designated vacation
   week is a layoff week. For all layoff weeks, musicians
   may file for unemployment checks from the N.C.
   Division of Employment Security. Until recently,
   Defendant-Employer applied for unemployment on
   behalf of its musicians. If a musician elects not to
   participate in the summer season, the musician cannot
   receive unemployment during that four week period.
   During 2013, plaintiff collected 3 weeks of
   unemployment benefits at a weekly rate of $535.00 per
   week. These benefits were charged to Defendant-
   Employer.

6. The collective bargaining agreement expressly allows
   the musicians to have other employment as long as it
   does not interfere with performance of the contracted
   services. Even if it does conflict, there is a procedure by
   which the musician can request leave.

7. In the summer of 2013, Plaintiff played for Defendant-
   Employer for two weeks out of the four-week summer
   season. Plaintiff played all 33 weeks of the portions of
   the 2012-2013 season and 2013-2014 that fell in the
   calendar year 2013. Therefore, of the 52 weeks
   preceding Plaintiff's accepted date of injury, December
   15, 2013, Plaintiff performed services for Defendant-
   Employer a total of 36 weeks. In the year prior to the
   injury date in this claim, the vacation weeks were
   December 24, 2012 through January 6, 2013 and March
   4, 2013 through March 10, 2013. (emphasis supplied).

8. Plaintiff’s gross wages from Defendant-Employer for
   the 52 weeks preceding Plaintiff’s date of injury were
   $39,412.83, a figure which includes all compensation
   referenced in paragraph 3 above.

9. For several years, including 2013, Plaintiff has worked
   during the summers as a violist for the Chautauqua
   Symphony in New York state. The Chautauqua season
   begins in the first week of July and continues for eight


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                                Opinion of the Court



              weeks. Plaintiff’s weekly wages for this job were set by
              contract at $1,080.00 gross compensation per week.
              They also paid her approximately $6,000.00 as a
              housing allowance for the season. Plaintiff’s
              employment for the Chautauqua Symphony and
              Defendant-Employer did not overlap and was not
              concurrent.

          C. Statutory Methods for Calculating Average Weekly Wages

    N.C. Gen. Stat. § 97-2(5) governs the determination of an injured employee’s

average weekly wages:

           (5) Average Weekly Wages. -- [1] “Average weekly wages”
           shall mean the earnings of the injured employee in the
           employment in which the employee 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.



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                                  Opinion of the Court



             [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) (bracketed numerals supplied).

      The statute provides five possible and hierarchal methods for calculating the

injured employee’s average weekly wages. “[I]t is clear that this statute establishes

an order of preference for the calculation method to be used[.]” Bond v. Foster

Masonry, Inc., 139 N.C. App. 123, 128, 532 S.E.2d 583, 586 (2000) (citation omitted).

“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.” Id. (citing Wallace v. Music Shop, II, Inc., 11 N.C.

App. 328, 331, 181 S.E.2d 237, 239 (1971)).

      Here, the Commission rejected the first four methods as inapplicable or unjust

under these facts, and calculated Plaintiff’s average weekly wages by using the fifth,

or final, method. See N.C. Gen. Stat. § 97-2(5). Plaintiff argues the Commission erred

by employing this method to calculate her average weekly wages, and asserts the

Commission should have employed the second method set forth in the statute.

              D. Commission’s Application of N.C. Gen. Stat. § 97-2(5)

      The Commission explained its analysis and rejection of each of the first four

statutory methods, and its choice and application of the fifth method as the most


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appropriate, which we review de novo. See McLaughlin v. Staffing Solutions, 206 N.C.

App. at 143, 696 S.E.2d at 844.

                                Methods One and Two

      “‘Average weekly wages’ shall mean the earnings of the injured employee in

the employment in which the employee was working at the time of the injury during

the period of 52 weeks immediately preceding the date of the injury . . . divided by

52[.]” N.C. Gen. Stat. § 97-2(5).

      Method one only applies when an employee has worked for the employer at

least 52 weeks prior to the injury, and “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 accident.” Conyers v. New Hanover Cty. Schools, 188 N.C. App. 253, 258,

654 S.E.2d 745, 750 (2008). The parties stipulated Plaintiff was employed by the

employer for only 36 weeks in the year preceding the date of her injury, and the

Commission properly rejected method one to calculate Plaintiff’s average weekly

wages. See id.

      Method two applies where the injured employee “lost more than seven

consecutive calendar days at one or more times” during the 52 week period

immediately preceding the date of injury. N.C. Gen. Stat. § 97-2(5) (emphasis

supplied). In such event, “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.”



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                                  Opinion of the Court



Id. Plaintiff asserts method two is the appropriate method to calculate her average

weekly wages. We disagree.

       The Symphony’s rehearsal and performance season runs from September

through May, and included an optional summer season. Plaintiff argues method two

applies because, although she stipulated she worked only 36 weeks during the

relevant time period, her contract period was for a full year. Plaintiff asserts the 16

weeks when no services were performed for Defendant-employer should be considered

“lost” under method two of N.C. Gen. Stat. § 97-2(5). We disagree.

      Plaintiff relies upon this Court’s decision in Bond. The plaintiff in Bond was

injured during the course of his employment as a brick mason. Bond, 139 N.C App.

at 124, 532 S.E.2d at 584. The plaintiff was a full time employee, but only worked

when contract jobs were available and the weather was suitable. Id. at 125-26, 532

S.E.2d at 584. He did not work for seven or more consecutive days on more than one

occasion during the 52 weeks preceding the injury. Id. at 126, 532 S.E.2d at 584.

      In Bond, this Court explained the work available to the plaintiff was dependent

upon demand and weather conditions, and the plaintiff was not required to work for

days or weeks at a time. Id. at 129, 532 S.E.2d at 587. This Court further explained

the plaintiff was not a “seasonal” employee, because “[a] seasonal employee or relief

worker does not work full-time every week in the year.” Id. The Court held the

second, and not the fifth, method was appropriate for determining the plaintiff’s



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                                   Opinion of the Court



average weekly wages, because “as a brick mason, plaintiff could be required to work

every week, full-time by his employer.” Id.

      The facts of this case are distinguishable from those present in Bond. Unlike

in Bond, Defendant-Employer in this case was unable to require Plaintiff to work for

52 weeks.    Plaintiff performed services for Defendant-Employer pursuant to a

contract, which contemplated 36 and not 52 weeks of work. Pursuant to contract, no

rehearsals, concerts or “services” were scheduled for the “off season.” Also, unlike in

Bond, Plaintiff’s contract clearly stated that no work was required from, or offered to,

Plaintiff during that time.

      Our precedent in Conyers is more directly on point and controlling. In Conyers,

this Court determined whether the average weekly wages of a public school bus driver

should be calculated with or without regard to the ten-week summer vacation period.

Conyers, 188 N.C. App. at 257, 654 S.E.2d at 749.

      In Conyers, the Court held that Plaintiff’s employment extended for a period of

less than 52 weeks prior to the injury. Id. at 258-59, 654 S.E.2d at 749. The plaintiff

drove a school bus for only ten months of the year, was paid for only ten months of

work, and was not hired or obligated to work during the summer vacation period. Id.

at 259, 654 S.E.2d at 750. The Court held the plaintiff was not employed for a 52-

week period and rejected the first and second methods in the statute to calculate the

plaintiff’s average weekly wages. Id.



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                                   Opinion of the Court



        Again, and unlike in Bond, the employment in Conyers and in this case was for

a fixed and definite time period of less than 52 weeks. Because Plaintiff’s job was

non-existent during a portion of the year, she did not “lose” time like the employee in

Bond.

        The application of method two requires the employee to have been employed

for a period of 52 weeks preceding the injury, which Plaintiff stipulated she was not.

The Commission properly rejected method two as the appropriate method to calculate

Plaintiff’s average weekly wages. We disagree.

                                    Method Three

        Method three applies “[w]here the employment prior to the injury extended

over a period of fewer than 52 weeks.” N.C. Gen. Stat. § 97-2(5). In such event, the

Commission follows “the method of dividing the earnings during that period by the

number of weeks and parts thereof during the employee earned wages,” provided the

results are “fair and just to both parties.” Id. Where the employment prior to the

injury extended over a period of less than 52 weeks, the average weekly wages are

calculated in the same manner as method two, with the distinction that the results

must be “fair and just to both parties.” Id.

        Like in Conyers, Plaintiff’s employment prior to the injury extended over a

period of fewer than 52 weeks. After rejecting the first two methods of calculating

the plaintiff’s average weekly wages, the Court in Conyers analyzed the third method,



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but determined that the plaintiff’s yearly salary would be nearly $5,000.00 more than

her actual pre-injury wages, if she were permitted to divide her annual gross wages

by the number of weeks she was actually employed. Id. at 259, 654 S.E.2d at 750.

The Court rejected the third method, because “[t]he 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.” Id.

      Here, Plaintiff earned $39,412.83 while working 36 weeks during the 52-week

time period preceding the injury. Dividing this amount by 36 results in an average

weekly wage calculation of $1,094.80. The Commission determined this weekly wage

amount results in annualized wages of $56,929.60, over $17,000.00 more than

Plaintiff’s actual pre-injury yearly wages. We are bound by Conyers to conclude the

application of method three would “put the employee in a better position” than prior

to the injury and is not a “fair and just” method to calculate Plaintiff’s average weekly

wages. See id.

      Plaintiff notes that the application of method three will always result in gross

annualized wages which are higher than the result of method one. Plaintiff argues

method three could never be regarded as “fair and just” to both parties and would

never be used to calculate average weekly wages. See R.J. Reynolds Tobacco Co. v.

N.C. Dep’t of Env’t & Natural Res., 148 N.C. App. 610. 616, 560 S.E.2d 163, 168, disc.

review denied, 355 N.C. 493, 564 S.E.2d 44 (2002) (“[A] statute must be considered as



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                                  Opinion of the Court



a whole and construed, if possible, so that none of its provisions shall be rendered

useless or redundant. It is presumed that the legislature intended each portion to be

given full effect and did not intend any provision to be mere surplusage.” (citation

omitted)).

      Plaintiff proposes the Commission should have considered the “fairness”

requirement of method three in light of her wage earning capacity. Plaintiff asserts

the Commission should have taken into account her summer earnings from the

Chautauqua Symphony in New York in order to determine whether the application

of method three would result in a “windfall” to Plaintiff. The statute expressly

excludes her earnings from outside employment and provides that 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.” N.C. Gen. Stat. § 97-2(5) (emphasis

supplied).

      We affirm the Commission’s determination that applying method three does

not produce “fair and just” results where Plaintiff’s average weekly wages would be

increase to over $17,000.00 more annually than Plaintiff’s actual pre-injury yearly

wages. Plaintiff’s arguments are overruled.

                                    Method Five

      The parties agree method four is inapplicable to the circumstances at bar. The

fifth, or final, method under the statute is to be used “for exceptional reasons” when



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                                   Opinion of the Court



the other methods “would be unfair to either the employer or employee.” N.C. Gen.

Stat. § 97-2(5). In such event, the Commission is to “resort to” a method which “will

most nearly approximate the amount which the injured employee would be earning

were it not for the injury.” Id.

       The Commission properly determined that exceptional reasons exist, which

require the application of method five. None of the other four methods set forth in

the statute are appropriate for calculation of Plaintiff’s average weekly wages.

Plaintiff asserts her pre-injury average weekly wages were $1,094.80, yet

acknowledges she was not actually paid this amount on a weekly basis for the 52

weeks prior to her injury and she specifically listed “$760.00+” as her average weekly

wages on her Form 18 at the time of her injury.

       The Commission calculated Plaintiff’s average weekly wages by dividing

Plaintiff’s annual gross earnings with Defendant-Employer by 52, “because this

method produces a result which most nearly approximates the amount Plaintiff

would be earning with Defendant-Employer were it not for the injury.”

       In Conyers, this Court affirmed the Commission’s application of the fifth

method and explained: the “[p]laintiff [bus driver] 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.”



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                                   Opinion of the Court



Conyers, 188 N.C. App. at 261, 654 S.E.2d at 751. Based upon Conyers, we affirm the

Commission’s use and application of the fifth method in the statute to calculate

Plaintiff’s average weekly wages. Id.; N.C. Gen. Stat. § 97-2(5). Plaintiff’s arguments

are overruled.

                                    VI. Conclusion

      The Commission properly concluded the application of the first four methods

set forth in N.C. Gen. Stat. § 97-2(5) to determine Plaintiff’s average weekly wages

were inappropriate or unjust.         The Commission properly determined that

“exceptional reasons” existed to apply the fifth method, and applied the fifth method

to “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 has failed to show any error in the Commission’s Opinion and Award.

The Opinion and Award is affirmed. It is so ordered.

      AFFIRMED.

      Judges ELMORE and STROUD concur.




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