An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-90
                       NORTH CAROLINA COURT OF APPEALS

                                 Filed: 1 July 2014


SHIRLEY LIPE, Widow and Executrix
of the Estate of ROSS IDDINGS
LIPE, Deceased Employee,
     Plaintiff

      v.                                      North Carolina
                                              Industrial Commission
                                              I.C. No. 429068
STARR DAVIS COMPANY, INC.,
Employer, TRAVELERS CASUALTY &
SURETY (as Successor to AETNA
CASUALTY & SURETY COMPANY),
Carrier,
     Defendants.


      Appeal    by   Defendant      from    opinion    and   award    entered     30

September     2013   by    the   North     Carolina   Industrial      Commission.

Heard in the Court of Appeals 5 May 2014.


      Wallace and         Graham,    P.A.,    by    Michael     B.    Pross,    for
      Plaintiff.

      Hedrick Gardner Kincheloe & Garofalo, LLP,                      by Hatcher
      Kincheloe, Sarah P. Cronin, and M. Duane                        Jones, for
      Defendant Travelers Casualty & Surety.


      DILLON, Judge.


      Travelers Casualty & Surety (“Defendant”) appeals from an

opinion and award of the Full Commission of the North Carolina
                                           -2-
Industrial        Commission       (“Full     Commission”        or    “Commission”)

ordering     that    Defendant      pay     death   benefits      to   Shirley    Lipe

(“Plaintiff”), widow of Ross Iddings Lipe (“Decedent”).                        For the

following reasons, we affirm.

                     I. Factual & Procedural Background

       Decedent was employed by Starr Davis Company, Inc. (“SDC”)1

from 10 March 1975 to 1 July 1991, when Decedent became disabled

due to multiple sclerosis and was no longer able to work.                           In

January 1994, Decedent was diagnosed with asbestosis.                       Decedent

filed an occupational disease claim with the Commission, which,

by opinion and award entered 24 August 1999, awarded Decedent

benefits of $404.24 per week, based on an average weekly wage of

$606.36.      The Full Commission did not base Decedent’s average

weekly wages upon his wages at the time he was diagnosed with

asbestosis in 1994 – which would have been zero, as Decedent had

been   out   of     work   since    July     1991   –    but    instead   calculated

Decedent’s    average      weekly     wages      based   upon    his   wages    earned

during his last full year of employment with SDC.                         This Court

affirmed the Full Commission’s 24 August 1999 opinion and award

in Lipe v. Starr Davis Co., 142 N.C. App. 213, 543 S.E.2d 533

(2001).

1
  SDC is no longer in existence, and is thus only nominally a
Defendant for purposes of this appeal.
                                               -3-
       In February 2010, Decedent was diagnosed with lung cancer.

He died less than two months later, as a result of his lung

cancer, on 11 April 2010.                 Plaintiff thereafter filed a claim

with the Commission seeking death benefits based on Decedent’s

development of lung cancer through his asbestos exposure while

working   at      SDC.       Defendant         conceded        the    compensability         of

Plaintiff’s claim, but agreed to payments of only $30.00 per

week,   the      statutory    minimum          under    N.C.      Gen.     Stat.     §   97-38.

Defendant believed, and maintains, that the statutory minimum

payout is appropriate given that Decedent was not working – and

thus had earnings of zero – at the time he was diagnosed with

lung cancer.

       Plaintiff’s        claim    was    addressed          on   stipulated         facts   by

Deputy Commissioner J. Brad Donovan.                         The Deputy Commissioner

entered   an      opinion    and       award    on     14   March     2013      in   which   he

determined that Plaintiff was entitled under N.C. Gen. Stat. §

97-2(5)     to     benefits       of     $404.24       per     week      for     400     weeks.

Defendant appealed to the Full Commission, which, following a

hearing on the matter, entered an opinion and award consistent

with    the      Deputy     Commissioner’s             decision       in       all     material

respects.        The Full Commission articulated two alternative bases

for its decision: (1) that the question concerning the manner of
                                       -4-
calculating Decedent’s average weekly wages had been previously

raised and addressed in its 24 August 1999 opinion and award,

and Defendant was thus collaterally estopped from re-litigating

the issue; and (2) that, even if collateral estoppel did not

apply, the fifth of the five permissible methods of calculating

average weekly wages under N.C. Gen. Stat. § 97-2(5) permitted

the Full Commission to reach the same result – specifically, to

calculate Decedent’s average weekly wages based on his last full

year   of   employment   with   SDC.         From    this   opinion   and   award,

Defendant appeals.

                                II. Analysis

                         A. Standard of Review

       In reviewing an opinion and award of the Full Commission,

this Court must determine whether competent evidence supports

the Commission’s findings of fact and whether those findings so

supported are sufficient, in turn, to support the Commission’s

conclusions of law.       Legette v. Scotland Mem’l Hosp., 181 N.C.

App. 437, 442, 640 S.E.2d 744, 748 (2007).                   Findings supported

by   competent   evidence   are    binding          on   appeal,   “even    if   the

evidence might also support contrary findings.                 The Commission’s

conclusions of law are reviewable de novo.”                  Id. at 442-43, 640

S.E.2d at 748 (citations omitted).
                                           -5-
                     B. Decedent’s “Average Weekly Wages”

       Defendant       contends     that        the    Commission      erred        in   its

computation of Decedent’s average weekly wages for purposes of

Plaintiff’s       death     benefits      claim.           Specifically,        Defendant

contends that the Commission should have determined Decedent’s

compensation         rate   based   on    his    earnings      at    the     time   of   his

injury – i.e., in 1994 when he was diagnosed with asbestosis –

of     zero.         Accordingly,        Defendant         argues,     the     applicable

compensation rate used to determine Plaintiff’s benefits should

have    been    the     statutory    minimum          of   $30.00     per     week.       We

disagree.

       N.C. Gen. Stat. § 97-38 provides that death benefits are

payable    to    a    person   “wholly      dependent        for     support    upon     the

earnings of the deceased employee” as follows:

               If   death   results   proximately   from  a
               compensable injury or occupational disease
               and within six years thereafter, or within
               two years of the final determination of
               disability, whichever is later, the employer
               shall pay or cause to be paid, subject to
               the provisions of other sections of this
               Article, weekly payments of compensation
               equal to sixty-six and two-thirds percent
               (66 ⅔ %) of the average weekly wages of the
               deceased employee at the time of the
               accident, but not more than the amount
               established annually to be effective October
               1 as provided in G.S. 97-29, nor less than
               thirty dollars ($30.00), per week[.]
                                       -6-
N.C.   Gen.     Stat.   §   97-38(1)   (2013)   (emphasis   added).   The

employee’s “average weekly wages” may be calculated using one of

the five methods described under N.C. Gen. Stat. § 97-2(5):

              . . . “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; 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. 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.
              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.

              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
                                           -7-
              the amount which the injured employee would
              be earning were it not for the injury.

N.C. Gen. Stat. § 97-2(5) (2013).                   Our Supreme Court has stated

that    “[t]his      statute    sets      forth       in   priority      sequence       five

methods by which an injured employee’s average weekly wages are

to be computed” and that it “establishes an order of preference

for    the    calculation      method     to     be    used,”     with    the     “primary

method” being that “set forth in the first sentence, [i.e.,] to

calculate the total wages of the employee for the fifty-two

weeks of the year prior to the date of injury and to divide that

sum by fifty-two.”          McAninch v. Buncombe County Sch., 347 N.C.

126, 129, 489 S.E.2d 375, 377 (1997).                      Notwithstanding, “[t]he

Commission always retains the right . . . to utilize the final

method   [under      N.C.   Gen.     Stat.      §     97-2(5)]    of     calculating      an

employee’s average weekly wage, which allows the use of whatever

computation        method   would    ‘most      nearly     approximate       the    amount

which the injured employee would be earning were it not for the

injury,’ in extraordinary circumstances in which the use of the

first four methods will produce an unfair result.”                                 Pope v.

Manville, 207 N.C. App. 157, 163, 700 S.E.2d 22, 27 (2010).

Should       the   Commission      seek    to       utilize      this    fifth     method,

however, our Courts have made clear that the Commission must

make   specific      findings       indicating,        essentially,        that    it    has
                                     -8-
adopted that method only after its careful consideration of the

other methods:

           The final method, as set forth in the last
           sentence [of N.C. Gen. Stat. § 97-2(5)],
           clearly may not be used unless there has
           been a finding that unjust results would
           occur by using the previously enumerated
           methods. Ultimately, the primary intent of
           this statute is that results are reached
           which are fair and just to both parties.
           “Ordinarily, whether such results will be
           obtained . . . is a question of fact; and in
           such   case  a   finding  of   fact  by  the
           Commission controls decision.”

McAninch, 347 N.C. at 130, 489 S.E.2d at 378 (citations omitted)

(ellipsis in original).

    In Pope v. Manville, 207 N.C. App. 157, 700 S.E.2d 22, this

Court considered the Commission’s use of the fifth method – and

the findings required of the Commission to support use of that

method – under circumstances similar to those presented in the

instant   case.    The   Pope   “Defendants    contended      that,   because

Plaintiff had not been diagnosed with asbestosis until after his

retirement, he was not entitled to any disability compensation

whatsoever.”      Id.    at   160,   700   S.E.2d   at   25   (emphasis   in

original).     This Court stated that “for purposes of determining

disability benefits for asbestosis, the ‘time of the injury’ is

deemed to be the date that a claimant is diagnosed with the

disease” and, further, that “the proper date for determining the
                                          -9-
average weekly wage of a plaintiff . . . was as of the time of

injury,    which      was   deemed   to    be       the   date    of   diagnosis       of

silicosis or asbestosis.’”               Id. at 166, 700 S.E.2d at 28-29

(citations omitted) (emphasis added) (ellipsis in original).                           We

reasoned that the Commission had not erred in calculating the

plaintiff’s average weekly wages based on the last full year of

his employment – in accordance with the fifth method under N.C.

Gen. Stat. § 97-2(5) – rather than based on his wages at the

time of his diagnosis, as “‘it would be obviously unfair to

calculate plaintiff’s benefits based on his income upon the date

of    diagnosis     because   he   was    no    longer    employed      and     was   not

earning an income.’”          Id. at 168, 700 S.E.2d at 30 (citation

omitted).      Notwithstanding the foregoing analysis, however, we

ultimately remanded the case back to the Commission on grounds

that its opinion and award did “not contain findings indicating

that it considered using the other methods for computing the

average weekly wage and stating the reason that it declined to

use    them    in    determining     the        amount    of     weekly   disability

benefits” and “lack[ed] the required finding that use of the

first four methods of calculating average weekly wages set out

in N.C. Gen. Stat. § 97–2(5) ‘would be unfair, either to the

employer      or    employee.’”      Id.       at   168-69,      700   S.E.2d    at    30
                                           -10-
(quoting N.C. Gen. Stat. § 97-2(5)).                      Pope thus stands for the

proposition that the Commission may properly employ the fifth

method    under     N.C.    Gen.      Stat.       §     97–2(5)    to    calculate      the

employee’s average weekly wages in cases where the employee was

diagnosed     with      a    compensable              occupational      disease       after

retirement, so long as the Commission sets forth the requisite

findings in its opinion and award.

     In the present case, as in Pope, the employee (Decedent)

developed    a    compensable      occupational           disease      years   after    his

retirement, when he was no longer earning wages.                               Unlike in

Pope,    however,      we   believe    that       in     this   case    the    Commission

included sufficient supportive findings in its opinion and award

concerning       its    decision      to      utilize       the     fifth      method    of

calculating      Plaintiff’s       average     weekly       wages      under   N.C.     Gen.

Stat. § 97–2(5).            Specifically,         in addition to the parties’

stipulation that Decedent had been employed by SDC from 10 March

1975 through 1 July 1991,              the Commission             made the following

pertinent findings:

            1. The current matter before the Full
            Commission   involves  a   claim  for   death
            benefits due to lung cancer resulting from
            [Decedent’s] exposure to asbestos while in
            the employment of [SDC].     On February 24,
            2010, Decedent was diagnosed with lung
            cancer. On April 11, 2010, Decedent died as
            a result of his lung cancer.
                     -11-


. . . .

12.   With   respect   to  [Decedent’s]   lung
cancer, the facts are analogous to his prior
asbestos claim, with the exception that the
lung cancer took a longer period to develop.
[Decedent] was last injuriously exposed to
the hazards of asbestos while employed by
[SDC].   [Decedent’s] lung cancer was caused
by the same period of asbestos exposure that
caused his compensable occupational disease
of asbestosis. [Decedent] was not diagnosed
with lung cancer until after his retirement
from [SDC].    At the time of his diagnosis,
[Decedent] had already been disabled by
unrelated multiple sclerosis that forced him
to retire from [SDC] in 1991.       [Decedent]
amended the Form 18B originally filed on
April 18, 1994 to include a claim for lung
cancer   due    to   asbestos   exposure   and
Defendants accepted the lung cancer claim as
compensable.

. . . .

15. Based upon the preponderance of evidence
in view of the entire record, the Full
Commission   finds    that   the   first   three
methods of determining average weekly wage
pursuant to N.C. Gen. Stat. § 97-2(5) are
not applicable because they are based on the
earnings of an injured employee during the
fifty-two weeks preceding the date of injury
or   disability   and    [Decedent]   had   been
retired   for   many    years   prior   to   his
diagnosis of lung cancer and his death. The
Full Commission further finds no evidence
was presented by the parties regarding the
average weekly wage earned by a similarly-
situated employee; therefore, the fourth
method of calculating average weekly wage
cannot be used.        Additionally, the Full
Commission finds that it would be unfair and
                                    -12-
              unjust to calculate [Decedent’s] average
              weekly wage based upon his date of diagnosis
              or date of death as he was no longer
              employed and was not earning any income at
              either of those times. Therefore, using the
              first four methods to determine [Decedent’s]
              average   weekly   wage    would   result in
              [Decedent’s]    dependents     receiving  no
              benefits (except the $30.00 weekly statutory
              minimum) and the Full Commission finds that
              such a result would be unfair and unjust.

              16. Since the utilization of the first four
              methods for determining average weekly wages
              enunciated in N.C. Gen. Stat. § 97-2(5) are
              not applicable, the Full Commission finds
              that the fifth method under the statute,
              which   allows    “any   other    method    of
              calculation,” is the most appropriate method
              to calculate [Decedent’s] average weekly
              wage.   Due to the exceptional reasons and
              circumstances of this claim, [Decedent’s]
              average weekly wage should be calculated
              based upon the earnings of [Decedent] during
              his last year of employment with [SDC],
              divided by fifty-two weeks, as it would most
              nearly   approximate    the    amount    which
              [Decedent] would have earned if not for his
              injury while working for [SDC] and is fair
              and just. During the last full year of his
              employment with [SDC], [Decedent] earned
              $31,530.89 resulting in an average weekly
              wage of $606.36 and a weekly compensation
              rate of $404.24.

    The   foregoing     findings   of   fact   reflect   the   Commission’s

careful consideration in determining which of the five methods

of calculating Decedent’s average weekly wages was appropriate

under   the    circumstances.      These   findings   also     disclose   the

Commission’s reasoned justification for choosing to employ the
                                  -13-
fifth method over the first four.         Guided by Pope, we hold that

these   findings   are    sufficient     to   support   the   Commission’s

calculation method and, moreover, that the Commission correctly

determined   Decedent’s    average     weekly   wages   to    be   $606.36,

yielding a corresponding weekly compensation rate of $404.24.

Defendant’s contentions are accordingly overruled.2

                            III. Conclusion

     In light of the foregoing, we affirm the Commission’s 30

September 2013 opinion and award.

     AFFIRMED.

     Chief Judge MARTIN and Judge STEELMAN concur.

     Report per Rule 30(e).




2
  We note the Commission’s alternative basis for its calculation
of Decedent’s wages, namely, that it had employed the same
method in deriving Decedent’s wages in connection with his
asbestos claim; that this Court had affirmed the Commission’s
opinion and award pertaining to that claim; and that Defendant
here is essentially re-litigating the same calculation issue.
We do not reject this alternative basis as meritless, but
instead decline to reach the issue in light of our holding,
which we believe rests firmly upon Pope, a case decided
subsequent to the 2001 decision in which we upheld Decedent’s
asbestos claim.
