               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA16-1219

                                 Filed: 15 August 2017

North Carolina Industrial Commission, I.C. Nos. X48418, X92876

ELIZABETH BALL, Employee, Plaintiff,

              v.

BAYADA HOME HEALTH CARE, Employer, ARCH INSURANCE GROUP, INC.,
Carrier (GALLAGHER BASSETT SERVICES, INC., Third-Party Administrator),
Defendants.


        Appeal by Plaintiff from opinion and award entered 16 August 2016 by the

North Carolina Industrial Commission. Heard in the Court of Appeals 1 May 2017.


        Ganly & Ramer PLLC, by Thomas F. Ramer, for Plaintiff-Appellant.

        Brewer Defense Group, by Joy H. Brewer and Ginny P. Lanier, for Defendants-
        Appellees.


        McGEE, Chief Judge.


        Elizabeth Ball (“Plaintiff”) appeals from a final decision of the North Carolina

Industrial Commission (“the Commission”). The Commission utilized a particular

method set out in N.C. Gen. Stat. § 97-2(5) – Method 3 – to calculate Plaintiff’s

average weekly wage for her temporary total disability benefits. We conclude that

use of Method 3 was not “fair and just” to Plaintiff, a requirement of N.C.G.S. § 97-

2(5).   Accordingly, we reverse and remand to the Commission for calculation of

Plaintiff’s benefits using the appropriate statutory method.
                        BALL V. BAYADA HOME HEALTH CARE

                                  Opinion of the Court



                                    I. Background

      Plaintiff began her employment as a certified nurse’s assistant with Bayada

Home Health Care (“Bayada”) on 26 May 2010. Plaintiff worked on a part-time basis

for Bayada from 26 May 2010 until 30 November 2010, when she began to work a

full-time schedule. During this time in her employment, Plaintiff earned $8.00 per

hour. In February 2011, Plaintiff was transferred from Bayada’s Asheville office to

its Hendersonville office, where she began working with a single, specific client (“the

client”). As a result of this change, Plaintiff began working an increased number of

hours, and at an increased wage – $10.00 per hour. On Plaintiff’s first day of work

with the client at the higher hourly rate, 10 February 2011, Plaintiff was injured

when the client, who suffered from Alzheimer’s, pushed Plaintiff down several stairs.

      Plaintiff sought medical treatment for her injuries that same day and was

released to limited duty work. Three days later, Plaintiff requested a release for full

work duty and was granted such by her medical care provider. Despite her 10

February 2011 injury, Plaintiff continued to work for the client, with the attendant

increase in hours and rate of pay, through 18 May 2011. On that date, Plaintiff

alleged, she suffered a second injury while working with the client.

      Plaintiff filed a Form 18 on 20 March 2012 informing Bayada, its insurance

carrier Arch Insurance Group, Inc., and the third-party administrator, Gallagher

Bassett Services, Inc. (together, “Defendants”) of her 10 February 2011 incident. In



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                                  Opinion of the Court



the Form 18, Plaintiff claimed injuries to her left hand, both knees, and right hip

from the 10 February 2011 incident. Plaintiff filed a second Form 18 on the same

day, informing Defendants of the alleged 18 May 2011 incident, and claimed injuries

in that incident to both of her knees. Defendants admitted the compensability of

Plaintiff’s 10 February 2011 injury to her right leg, but denied the compensability of

the injuries to her hips and hands. Defendants also denied compensability of all

injuries stemming from the 18 May 2011 incident.               Despite denying the

compensability of Plaintiff’s alleged 18 May 2011 injuries, Defendants filed a Form

60 on 10 June 2011, admitting Plaintiff’s “disability resulting from the injur[ies]

began on” 19 May 2011.

      Plaintiff filed a Form 33 on 31 May 2012, requesting that her disability claim

be assigned for hearing, and a hearing was held before a deputy commissioner on 26

May 2015. Following that hearing, the deputy commissioner filed an opinion 16

August 2012 concluding as a matter of law that Plaintiff suffered compensable

injuries on both 10 February 2011 and 18 May 2011. The deputy commissioner also

determined that the appropriate method to determine Plaintiff’s average weekly

wage was Method 5, as listed in N.C.G.S. § 97-2(5), which resulted in an average

weekly wage of $510.33 and a corresponding weekly compensation rate of $340.24 for

Plaintiff’s temporary total disability payments.         Defendants appealed to the

Commission.



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                                   Opinion of the Court



      Upon its de novo review, the Commission concluded as a matter of law that,

inter alia: (1) Plaintiff had suffered a compensable injury on 10 February 2011; (2)

there was not sufficient, competent evidence of Plaintiff’s being injured on 18 May

2011; (3) Plaintiff’s disability began on 19 May 2011; and (4) Plaintiff had ongoing

medical treatment needs.      The Commission concluded as a matter of law that

Methods 1, 2, and 4, as listed in N.C.G.S. § 97-2(5), were inapplicable to the facts of

the present case, and as such that “utilization of [M]ethod [3] for calculation of

average weekly wage” applied to Plaintiff’s claim.

      The Commission determined that, applying Method 3, Plaintiff was entitled to

“an average weekly wage of $284.79 with a compensation rate of $189.87.” The

Commission further found that “calculation of [P]laintiff’s average weekly wage using

[Method 3] [was] fair and just to both [P]laintiff and [D]efendants.” Plaintiff appeals.

                                      II. Analysis

      Plaintiff contends the Commission erred in utilizing Method 3 in N.C.G.S. §

97-2(5) because use of that method is not “fair and just” to her, as required by that

statute. Our review of an opinion and award of the Industrial 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.” Conyers v. New Hanover Cty. Sch., 188 N.C. App.

253, 255, 654 S.E.2d 745, 748 (2008) (citing Adams v. AVX Corp., 349 N.C. 676, 509



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                                  Opinion of the Court



S.E.2d 411 (1998)). The Commission’s conclusions of law are reviewable de novo. Id.

Findings of fact not challenged are binding on appeal. See Strezinski v. City of

Greensboro, 187 N.C. App. 703, 707, 654 S.E.2d 263, 266 (2007).        Plaintiff only

challenges the trial court’s finding and conclusion that utilization of Method 3 to

calculate her average weekly wages was “fair and just” to her.

      “In North Carolina, the calculation of an injured employee’s average weekly

wages is governed by N.C. Gen. Stat. § 97-2(5).” Conyers, 188 N.C. App. at 255, 654

S.E.2d at 748. N.C.G.S. § 97-2(5) “sets forth in priority sequence five methods by

which an injured employee’s average weekly wages are to be computed.” Shaw v.

U.S. Airways, Inc., 362 N.C. 457, 459, 665 S.E.2d 449, 451 (2008) (citation omitted).

As relevant to the present case, N.C.G.S. § 97-2(5) provides:

             [Method 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;

             ....

             [Method 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.

             ....




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                                       Opinion of the Court



               [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) (2015) (emphasis added).

       The “dominant intent” of N.C.G.S. § 97-2(5) “is to obtain results that are fair

and just to both employer and employee.” Conyers, 188 N.C. App. at 256, 654 S.E.2d

at 748 (citing Joyner v. A. J. Carey Oil Co., 266 N.C. 519, 146 S.E.2d 447 (1966)). The

words “fair and just”

               may not be considered generalities, variable according to
               the predilections of the individuals who from time to time
               compose the Commission. These words must be related to
               the standard set up by the statute. Results fair and just,
               within the meaning of [N.C.G.S. § 97-2(5)],1 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, 796 (1956)

(emphasis in original).

       Plaintiff argues that use of Method 3 to calculate her average weekly wage was

not “fair and just” to her. Use of Method 3, she argues, only takes into account the

part-time work she completed at a lower hourly rate, and ignores the uncontested




       1 Liles cited to N.C. Gen. Stat. § 97-2(e) (1956), the predecessor statute and section to the
present-day N.C.G.S. § 97-2(5).

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                                  Opinion of the Court



fact that she worked, post-injury, at a higher hourly wage and frequency. We agree.

Plaintiff began work with Bayada on 26 May 2010 and was injured some nine months

later, on 10 February 2011. During that time period, Plaintiff worked part-time and

was paid an hourly rate of $8.00, and earned $3,215.25 over a period of 79 days. On

the day Plaintiff was injured, she had begun to work with a new Bayada client, which

required her to work increased hours and she earned a higher rate of pay – $10.00

per hour, two dollars per hour more than she had previously earned.           Plaintiff

continued working the increased hours at the increased rate of pay for more than

three months, from the date of her injury until 18 May 2011, the date of her alleged

second injury.

      We hold that only taking into account Plaintiff’s pre-injury compensation,

through use of Method 3, is unfair to Plaintiff, as it ignores the months of increased

hours and pay Plaintiff worked after her 10 February 2011 injury, and would

effectively treat Plaintiff as if she had never worked increased hours at a higher rate

of pay. We must reject the use of Method 3 on the facts of the present case, as use of

that method “squarely conflicts with the statute’s unambiguous command to use a

methodology that ‘will most nearly approximate the amount which the injured

employee would be earning were it not for the injury.’” Tedder v. A&K Enters., 238

N.C. App. 169, 175, 767 S.E.2d 98, 103 (2014) (quoting N.C.G.S. § 97-2(5)).

Defendants admitted that Plaintiff was disabled as a result of her 10 February 2011



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                                         Opinion of the Court



injury. In order to “most nearly approximate” what Plaintiff would be earning if she

had not been injured, we believe that Plaintiff’s post-injury work must be taken into

account.

        Defendants main argument in response is that, due to the nature of Plaintiff’s

employment, there was no certainty that Plaintiff would have continued to earn

higher wages with increased hours but for her injury. As support for this argument,

Defendants point to the hearing testimony of Plaintiff’s supervisor at Bayada,

Elizabeth Kader (“Kader”). Kader generally testified that Bayada employees each

had different schedules, and that some employees “work six different clients every

week” while others “work the same client every single week fifty-two weeks out of the

year.” From this testimony, Defendants suggest there was no certainty that Plaintiff

would continue to work increased hours at a higher hourly rate. While it is certainly

true that there was no absolute assurance that Plaintiff would continue to work

increased hours at a higher rate of pay, this uncertainty is no different than the

uncertainty found in any at-will employment.2 On the unique facts of the present

case, we need not speculate about whether Plaintiff would have worked increased

hours and pay for at least some period of time after her 10 February 2011 injury, as




        2 The facts of this case are decidedly unlike those in Tedder, where the employee was “a
temporary employee hired to work for a limited time period of seven weeks.” Tedder, 238 N.C. App.
at 172, 767 S.E.2d at 101; see also id. at 176, 767 S.E.2d at 103 (“[I]n calculating average weekly wages
for employees in temporary positions, the Commission must consider the number of weeks the
employee would have been employed in that temporary position relative to a 52-week time period.”).

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                                  Opinion of the Court



evidence in the record proves that she did. It is undisputed that, after Plaintiff’s 10

February 2011 injury, she worked for more than three months at the increased hours

and pay – a fact that application of Method 3 unfairly ignores.

      We find instructive cases in which this Court and our Supreme Court

determined that use of Method 3 was not “fair and just.” In Joyner, an injured truck

driver worked on an as-needed basis during the 52 weeks prior to his injury. See

Joyner, 266 N.C. at 519, 146 S.E.2d at 450.        Our Supreme Court described the

employee’s work as “inherently part-time and intermittent” and held it was unfair “to

the employer . . . [not to] take into consideration both peak and slack periods” in

calculating average weekly wages. Id. at 522, 146 S.E.2d at 450. As a result, the

Court held that the employee’s average weekly wage should have been calculated

pursuant to Method 5. Id.

      In Conyers, a school bus driver for a public school system suffered a

compensable injury during the course of her employment. Conyers, 188 N.C. App. at

254, 654 S.E.2d at 747. Since the employee only worked the previous ten months of

the year, due to school bus drivers not working during a school’s summer recess, the

Commission utilized Method 3 to calculate the employee’s average weekly wage. Id.

at 255, 654 S.E.2d at 747. This Court determined that use of Method 3 was not “fair

and just as [the employer] would be unduly burdened while [the employee] would

receive a windfall. The purpose of our Workers’ Compensation Act is not to put the



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                                  Opinion of the Court



employee in a better position and the employer in a worse position than they occupied

before the injury.” Id. at 259, 654 S.E.2d at 750. This Court reversed and determined

that use of Method 5 to calculate the bus driver’s average weekly wage “most nearly

approximat[ed]” the amount the bus driver would have earned “were it not for her

injury.” Id. at 261, 654 S.E.2d at 751-52.

      It is worth noting that the Courts in Joyner and Conyers found use of Method

3 would be unfair and unjust to the employer, while we find that use of Method 3 in

the present case to be unfair and unjust to the employee. Such a finding is not barred,

but is instead explicitly contemplated, by the relevant statute. N.C.G.S. § 97-2(5)

(stating that Method 3 may be utilized “provided [that] results fair and just to both

parties will be thereby obtained”). The common thread running through the cases we

have examined is that a method of average weekly wage calculation may not be used

when use of that particular method would ignore an undisputed fact of the employee’s

employment.

      Use of Method 3 in Joyner was inappropriate when use of that method would

have ignored the fact that the employee’s work was “inherently part-time and

intermittent.” Joyner, 266 N.C. at 522, 146 S.E.2d at 450. Method 3 was equally

inappropriate when use of that method would have ignored the fact that a bus driver

only worked ten months out of the year and Method 3 would treat her as if she worked

all twelve months. Conyers, 188 N.C. App. at 259, 654 S.E.2d at 750. And, in the



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                                   Opinion of the Court



present case, the use of Method 3 is equally inappropriate, where use of that method

ignores the uncontroverted evidence that Plaintiff worked for months after her 10

February 2011 injury at a higher frequency and at a higher rate of pay. Method 3

does not “most nearly approximate the amount which [Plaintiff] would be earning

were it not for the injury,” Tedder, 238 N.C. App. at 175, 767 S.E.2d at 103 (citation

omitted), and thus its use is not “fair and just” to Plaintiff as required by N.C.G.S. §

97-2(5).

                                    III. Conclusion

      For the reasons stated, the Commission erred in utilizing Method 3 to calculate

Plaintiff’s average weekly wage.     The opinion and award of the Commission is

reversed, and this case is remanded to the Commission for a determination of

Plaintiff’s average weekly wages utilizing Method 5, and appropriately considering

Plaintiff’s post-injury work.

      REVERSED AND REMANDED.

      Judges HUNTER, JR. and ZACHARY concur.




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