                                  NO. COA14-551

                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 16 December 2014


KEITH TEDDER,
     Employee, Plaintiff,

       v.                                     North Carolina
                                              Industrial Commission
                                              I.C. No. X41641
A&K ENTERPRISES,
     Employer,

and

PROTECTIVE INSURANCE COMPANY,
     Carrier, Defendants.


       Appeal   by   defendants   from       opinion    and   award    entered   10

March 2014 by the North Carolina Industrial Commission.                     Heard

in the Court of Appeals 6 October 2014.


       Goodman McGuffey Lindsey & Johnson,               LLP,    by    Michael   A.
       Cannon, for defendants-appellants.

       David Gantt     Law   Office,    by    David    Gantt,    for   plaintiff-
       appellee.


       DIETZ, Judge.


       This workers’ compensation case concerns the proper method

of    calculating    average   weekly    wages    for    temporary     employees.

After two years of unemployment and a few months in a low-paying

seasonal    job,     Plaintiff     Keith      Tedder     began    a    seven-week
                                           -2-
temporary position with Defendant A&K Enterprises that paid $625

per week.

      Unfortunately, Tedder injured his back after the first week

in this temporary position and could not continue working.                          He

then applied for workers' compensation benefits.                        In awarding

benefits, the Industrial Commission calculated Tedder’s average

weekly wage at $625, despite finding that Tedder was a temporary

employee, that he could not expect to earn that wage full time,

and that the $625 calculation was “unfair” to A&K.

      The    Commission’s      calculation       cannot   be    sustained.          The

purpose of the average weekly wage calculation is to approximate

what the employee would be earning were it not for the injury,

not   to    provide   an     earnings      safety   net   for    the    chronically

unemployed or underemployed.

      Consistent with this statutory purpose, we hold that in

calculating      average     weekly     wages    for   employees       in   temporary

positions, the Commission must take into account the number of

weeks the employee would have been employed in that temporary

position relative to a 52-week time period.                      Here, the short

duration    of   Tedder’s     temporary      employment    must    result      in   an

average     weekly    wage    that    is    substantially       less    than   $625.

Accordingly, although we affirm the Commission’s conclusion that
                                                -3-
Tedder is eligible for temporary total disability compensation,

we reverse the Commission’s average weekly wage determination

and remand for a new determination consistent with this opinion.

                                   Factual Background

I.    Tedder’s Employment History

      Keith       Tedder     is    a    48-year-old       single      father     whose    work

experience        consists        entirely       of     heavy     lifting      and     driving

trucks.      Over the years, Tedder has worked as a delivery driver

for a number of different companies, loading and unloading items

weighing     up    to    150      pounds.        In     June    2004,    while   delivering

packages for an employer in Asheville, Tedder injured his back.

He   later    settled        his       workers’       compensation       claim   with     that

employer.

      To   alleviate         the       pain    resulting       from     his   2004    injury,

Tedder underwent a right L4-5 laminectomy and discectomy on 7

November 2005.           Dr. Michael Goebel, who performed the surgery,

noted that Tedder            experienced a            surprising        recovery.        On 14

February 2006, Dr. Goebel found that Tedder had reached maximum

medical      improvement          and        assigned     a    10%      permanent     partial

impairment rating to his back.                        He released Tedder to medium-

duty work, placing permanent restrictions on lifting more than

fifty   pounds,         as   well       as    limitations       on    bending,       stooping,
                                       -4-
twisting,      squatting,       crouching,     and   prolonged     sitting    or

standing.

    After his release from Dr. Goebel’s care in April 2006,

Tedder   did   not   find   a    job   until   March   2007,   when    he   began

working for Carolina Mulch as a delivery driver.               He worked that

job for eighteen months before being laid off in September 2008.

While at Carolina Mulch, Tedder was able to perform all the

duties of a delivery driver, including loading and unloading

very heavy items without difficulty.              He regularly exceeded Dr.

Goebel’s permanent restrictions without incident.                  Although he

occasionally experienced a sore back when he worked overtime,

Tedder did not seek any medical assistance for his back while

working for Carolina Mulch.

    After being laid off from Carolina Mulch in September 2008,

Tedder was unemployed for more than two years.                     In November

2010,    Tedder      accepted      a   position      with   Volt      Management

Corporation, a temporary staffing agency that contracted with

Federal Express to provide extra delivery drivers during the

press of the holiday season.           Tedder worked approximately eight

to ten hours per day, two days per week for Volt, earning at

most $260 per week.         Tedder did not seek any medical treatment

for his back during his employment with Volt.
                                            -5-
II.   Tedder’s Job at A&K

      In February 2011, as Tedder’s seasonal work at Volt drew to

a     close,       Defendant        A&K       Enterprises         asked       Volt    for

recommendations        to    fill     an    open     position      for    a     temporary

delivery driver.          A&K is a small “mom-and-pop” delivery company

and   subcontractor         for     Federal    Express.         The      company     hires

temporary employees during the peak holiday season and also on

an as-needed basis.           A&K was searching for a temporary employee

to fill in for one of its full-time delivery drivers who was

scheduled to undergo surgery.                  A&K anticipated that the full-

time employee would be absent for seven weeks on medical leave.

      Volt       referred    Tedder    to     A&K,   and    A&K    ultimately        hired

Tedder as a temporary driver working five days per week for $625

per week.         The Full Commission expressly found that Tedder was

“a temporary employee hired to work for a limited time period of

seven weeks.”

III. Tedder’s Injury and Ongoing Treatment

      On     8    March     2011,    just     one    week   after        beginning    his

temporary employment with A&K, Tedder felt a sharp pain in his

lower back while bending over to pick up a package.                           He was able

to complete the remainder of his shift, but the route took him

twice as long due to intense pain in his lower back.                            The next
                                     -6-
day, Tedder called to inform the owners of A&K that he was

unable to work due to the pain he was experiencing.               A&K hired

another temporary worker to cover the remainder of its full-time

employee’s seven-week medical leave.

       Following his 8 March 2011 injury, Tedder sought care from

a number of medical professionals to address the pain in his

back.    Despite this ongoing care, however, Tedder continued to

experience sharp pain in his lower back, as well as pain and

numbness in his left buttock, leg, and foot.             He scheduled an

appointment at the Carolina Spine & Neurosurgery Center in early

2012, where he was examined by Dr. John Silver.            Dr. Silver, a

board certified neurosurgeon, determined that the 8 March 2011

accident exacerbated Tedder’s pre-existing back condition.               He

recommended that Tedder undergo a Functional Capacity Evaluation

to    determine   his   physical   limitations.    Dr.   Silver    referred

Tedder for an epidural injection and for additional evaluation

with Dr. Margaret Burke.

       Before beginning treatment with Dr. Burke, Tedder underwent

an independent medical evaluation (at Defendants’ request) with

Dr.     Richard   Broadhurst,      an   expert    in   occupational     and

environmental medicine.        Dr. Broadhurst recommended that until

he receive further treatment, Tedder could return to work at the
                                            -7-
sedentary level with a ten pound maximum lifting restriction,

along with significant limitations on movement.

    Tedder         began    treatment     under     the       care     of   Dr.    Burke,    a

physiatrist, on 29 March 2012.                 Dr. Burke diagnosed Tedder with

chronic    left      L5     radiculopathy         and    prescribed         a     course    of

physical therapy.           In her deposition testimony, Dr. Burke stated

that Tedder’s condition was not purely degenerative in nature,

and that the 8 March 2011 accident exacerbated Tedder’s pre-

existing back condition.                Tedder has continued treatment with

Dr. Burke, who is his ongoing pain management physician.                              As of

the date of her post-hearing deposition conducted 14 January

2013,   Dr.   Burke        had   not   released         Tedder    at    maximum      medical

improvement.

    Since his injury in March 2011, Tedder has not returned to

employment with A&K or any other employer.                             Tedder filed for

workers’   compensation          benefits      on   2    May     2011.       A&K    and    its

insurer    denied         the    compensability          of    the     claim.         Deputy

Commissioner        Myra    L.    Griffin      granted        Tedder’s      claim     in    an

opinion and award filed 15 April 2013, determining that he was

entitled      to     temporary         total      disability         compensation          and

calculating his statutory average weekly wages at $625 per week.

Defendants timely appealed to the Full Commission.
                                    -8-
     The   Full      Commission,    in    a    unanimous    decision    by

Commissioners Pamela T. Young, Bernadine Ballance, and Danny Lee

McDonald, affirmed the deputy commissioner’s award on 10 March

2014.   Defendants timely appealed to this Court.

                                 Analysis

     Our 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 where

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 (2000).            We review the Full

Commission’s conclusions of law de novo.           Conyers v. New Hanover

Cnty. Sch., 188 N.C. App. 253, 255, 654 S.E.2d 745, 748 (2008).

I.   Computation of Tedder’s Average Weekly Wages

     Defendants first challenge the Commission’s computation of

Tedder’s   average    weekly    wages.      “The   determination   of   the

plaintiff's ‘average weekly wages’ requires application of the

definition set forth in the Workers' Compensation Act, and the

case law construing that statute[,] and thus raises an issue of
                                      -9-
law, not fact.”     Boney v. Winn Dixie, Inc., 163 N.C. App. 330,

331-32,   593   S.E.2d    93,    95    (2004)   (citation       and    internal

quotation marks omitted).        We therefore review the Commission’s

calculation of Tedder’s average weekly wages de novo.                 Id.

    Average     weekly   wages   are    determined     by    calculating    the

amount the injured worker would be earning but for his injury.

Loch v. Entm’t Partners, 148 N.C. App. 106, 111, 557 S.E.2d 182,

185 (2001).     The calculation is governed by N.C. Gen. Stat. §

97-2(5), which sets out five distinct methods for calculating an

injured employee’s average weekly wages.          Conyers, 188 N.C. App.

at 255, 654 S.E.2d at 748.       The five methods are ranked in order

of preference, and each subsequent method can be applied only if

the previous methods are inappropriate.          Id.        Methods 1, 3, and

5 are relevant in this case:

          [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;
                                         -10-
              provided, results fair and just                     to   both
              parties will be thereby obtained.

              . . . .

              [Method 5] But where for exceptional reasons
              the foregoing would be unfair, either to the
              employer or employee, such other method of
              computing   average  weekly   wages  may  be
              resorted to as will most nearly approximate
              the amount which the injured employee would
              be earning were it not for the injury.

N.C. Gen. Stat. § 97-2(5) (2013).1

       Under this statutory hierarchy, when an employee has worked

at his job continuously for the preceding 52 weeks, average

weekly      wages   must    be     calculated      under    Method      1     by   simply

dividing the total earnings during that 52-week period by 52.

The    Commission       found,     and   we     agree,     that    this     method     is

inappropriate because Tedder only worked at A&K for one week,

nowhere near the 52 weeks necessary to use Method 1.

       Method 3 can be used when the employee was on the job less

than   52    weeks.        Under    Method    3,    average       weekly      wages   are

calculated by dividing the total earnings on the job by the

number of weeks (or portions of weeks) the employee worked.

Under Method 3, Tedder’s average weekly wage is $625, a figure



1
   The Commission determined, and the parties concede, that
Methods 2 and 4 are inapplicable to the factual circumstances of
this case, and therefore we need not address those methods in
this opinion.
                                      -11-
obtained by dividing his total earnings, $625, by the total

number of weeks worked, one.          But Method 3 can be used only if

“results     fair   and   just   to    both     parties     will   be    thereby

obtained.”     N.C. Gen. Stat. § 97-2(5).                Here, the Commission

found as fact that Tedder was “a temporary employee hired to

work for a limited time period of seven weeks.”                 Based on this

finding, the Commission determined, and we agree, that Method 3

is inappropriate because the result “would be unfair . . . due

to the temporary nature of the employment relationship shared by

defendant-employer and plaintiff.”

      Having determined that Methods 1 and 3 were inappropriate

(and that Methods 2 and 4 were inapplicable), the Commission

resorted to Method 5.       This “catch-all” method does not dictate

any   particular    methodology;      it     instructs    the   Commission    to

employ whatever method “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).         It is available only where

use of the previous four methods “would be unfair.”                Id.

      The Commission, ostensibly applying Method 5, determined

that Tedder’s average weekly wage was $625—effectively treating

Tedder as if he was a full-time, permanent employee of A&K.                   We

reject this computation because it squarely conflicts with the
                                           -12-
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.”                     N.C. Gen. Stat. §

97-2(5).       As the Commission found, Tedder would have earned that

$625 wage for no more than seven weeks, until his temporary job

ended.     He would then be unemployed and searching for work, as

he was for most of the preceding two years.                      Indeed, a $625 per

week     wage    so     vastly     overstates      Tedder’s       actual     “average”

earnings that, when applying Method 3, the Commission expressly

found    that    a    $625     average   weekly    wage    was    “unfair”    to     A&K.

Accordingly, we must reverse and remand this case for a new

average weekly wage calculation.

       We leave it to the Commission on remand to determine the

appropriate average weekly wage consistent with the statutory

language    of       Section    97-2(5).        However,   to    assist     with     that

calculation, we provide the following guidance based on existing

precedent from our appellate courts.

       First, the Supreme Court’s decision in                       Joyner v. A.J.

Carey    Oil     Co.,    266     N.C.    519,     146   S.E.2d     447     (1966),     is

instructive.         In Joyner, the claimant was a relief truck driver

who worked only as needed.               Id. at 519-20, 146 S.E.2d at 448.

The Court described the driver’s employment as “inherently part-
                                            -13-
time and intermittent.”                Id. at 522, 146 S.E.2d at 450.                    In

calculating         the    driver’s    average       weekly   wage,       therefore,    the

Court held that it was unfair to the employer not to take into

consideration both peak and slack periods in the plaintiff’s

employment.         Id.     Accordingly, the Supreme Court held that the

employee’s average weekly wages should be calculated under the

fifth method by taking the total wages he actually earned in the

52 weeks prior to his injury and dividing that amount by 52, the

number of weeks in a year.                Id.

       This    Court        later     applied      Joyner     to      cases     involving

employees who worked only part of the year.                          See Conyers, 188

N.C. App. at 260-61, 654 S.E.2d at 751-52.                            In Conyers, the

plaintiff was a bus driver who worked ten months per year.                              Id.

at 254, 654 S.E.2d at 747.                  We held that the fifth method was

most appropriate to take into account the slack periods in the

plaintiff’s employment.               Id. at 261, 654 S.E.2d at 751.                 Noting

that    the    purpose        of    the     calculation       is     to    “most     nearly

approximate the amount which the [bus driver] would be earning

were   it     not    for    the     injury,”    we    held    that    the     plaintiff’s

average weekly wages should be determined by dividing the wages

she earned in the 52 weeks before her accident by 52.                          Id.
                                         -14-
    Finally, in Thompson v. STS Holdings, Inc., 213 N.C. App.

26, 33, 711 S.E.2d 827, 831 (2011), this Court addressed the

average    weekly      wage   calculation       for   an   employee   who   worked

contract jobs for various employers throughout the year.                    At the

time of his injury, the employee had worked a total of 14 days

for his current employer.              Id. at 28, 711 S.E.2d at 828.           This

Court held that the employee’s contract work for other employers

during    the   year    could    not    be   considered     in   calculating   his

average weekly wages.           Id. at 33-34, 711 S.E.2d at 831-32.             We

again held, as we did in Conyers, that an employee’s average

weekly wages under Method 5 should be calculated by taking the

“wages earned by [the employee] while in the employ of [the

current employer] in a fifty-two week period, then dividing that

amount by fifty-two.”          Id. at 33, 711 S.E.2d at 831.

    In light of Joyner, Conyers, and Thompson, we hold that in

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.                    One approach that would

satisfy this requirement is to calculate the total amount the

employee would have earned in the temporary position and divide

that amount by 52.            We do not suggest that this is the only
                                          -15-
appropriate methodology in every case, as the intent of Method 5

is to provide flexibility in reaching a result that “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).       But in this case, and others with similar facts, we hold

that calculating the total amount the employee could expect to

earn in the temporary position, and then dividing that amount by

52, is      an appropriate          means of approximating the amount the

injured employee would be earning were it not for the injury.

      We     are   mindful     that    this   methodology,     when   applied   to

Tedder, will result in a compensation rate only slightly above

the statutory minimum.              But treating Tedder as if his “average

weekly wages” were $625—in other words, treating Tedder as if he

had     a    history    of     long-term,     full-time    employment    in     his

temporary position at A&K—is a financial windfall for Tedder and

an unjust result for A&K.              This, in turn, violates the guiding

principle and primary intent of the statute—obtaining “results

that are fair and just to both employer and employee.”                  Conyers,

188   N.C.     App.    at    256,   654   S.E.2d   at   748.    Accordingly,     we

reverse and remand this case to the Industrial Commission to

recalculate Tedder’s average weekly wages consistent with this

opinion.
                                       -16-
II.    Determination of Temporary Total Disability

       Defendants      next    argue     that     the    Commission       erred      by

concluding that Tedder is entitled to ongoing temporary total

disability payments.          Defendants’ argument is straightforward.

In 2004, Tedder suffered a compensable back injury.                        In 2006,

Tedder’s treating physician, Dr. Goebel, found that Tedder had

reached      maximum   medical   improvement       and   assigned     a    permanent

“medium-duty” restriction on lifting more than fifty pounds as

well    as    limits   on     bending,    stooping,      twisting,        squatting,

crouching, and prolonged sitting or standing.                  Dr. Goebel never

lifted that permanent restriction.

       After his 2011 injury, Tedder again underwent treatment.

His    treating   physician,     Dr.     Burke,    testified    that,      as   of    9

January 2013, she believed Tedder had shown improvement and that

“I think anything up to medium would be fine.”                 Defendants argue

that, because Tedder had medium-duty work restrictions before

his 2011 injury, and had returned to medium-duty work capacity

as of 9 January 2013, he was no longer disabled under the terms

of the Workers’ Compensation Act.               For the reasons that follow,

we reject this argument and affirm the Commission’s finding that

Tedder is entitled to ongoing disability payments.
                                         -17-
    The       definition      of        disability     under    the    Workers’

Compensation Act “specifically relates to the incapacity to earn

wages,   rather    than    only    to    physical    infirmity.”      Medlin   v.

Weaver Cooke Constr., LLC, ___ N.C. ___, ___, 760 S.E.2d 732,

736 (2014).       In Medlin, our Supreme Court reaffirmed the test

for establishing disability under the Workers’ Compensation Act

set out in Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290

S.E.2d 682 (1982).        Hilliard articulated three factual elements

that a plaintiff must prove to support the legal conclusion of

disability:

           We are of the opinion that in order to
           support a conclusion of disability, the
           Commission must find: (1) that plaintiff was
           incapable after his injury of earning the
           same wages he had earned before his injury
           in the same employment, (2) that plaintiff
           was incapable after his injury of earning
           the same wages he had earned before his
           injury in any other employment, and (3) that
           this individual’s incapacity to earn was
           caused by plaintiff’s injury.

Id. at 595, 290 S.E.2d at 683.

    Defendants contend that Dr. Burke’s testimony proves Tedder

was able to return to medium-duty work as of 9 January 2013, the

same work level he had before his 2011 injury.                 Thus, Defendants

argue that Tedder’s inability to find work was not “caused by”
                                          -18-
his 2011 injury because he had the same functional capacity in

January 2013 that he had before his injury in 2011.

    We agree that the portion of Dr. Burke’s testimony on which

Defendants    rely        supports      their     position.             But       under   the

deferential    standard         of    review    afforded        to    decisions      of   the

Industrial Commission, we must affirm if there is “any competent

evidence” supporting its findings of fact, even if there is

evidence supporting a contrary finding.                         See, e.g., Davis v.

Harrah’s Cherokee Casino, 362 N.C. 133, 137, 655 S.E.2d 392,

394-95    (2008).      Here,         although    there     is    evidence         supporting

Defendants’ position, there is at least some competent evidence

supporting the Commission’s contrary findings.

    Dr. Burke’s testimony is not a model of clarity.                               Dr. Burke

testified that “I certainly think [Tedder] can do a job.                                    I

think    anything    up    to    medium    would      be    fine.”          But    she    also

testified that “I think at this point I would anticipate him

being able to do medium work.”                   She explained that while she

expects    this   to   be       the    case,    she   had       not   yet     completed     a

Functional Capacity Evaluation, “so I can’t be very specific

about exactly what he could lift, carry, stoop, bend, and all

those other things at this point.”                Dr. Burke concluded that “it

is my overall feeling of his level of functioning, that [medium-
                                    -19-
duty work] is what he’s going to be able to do.”                    Thus, Dr.

Burke did not unequivocally conclude that Tedder was capable, as

of   9   January    2013,   of   performing       medium-duty     work.    Her

testimony also could be interpreted as an indication that she

anticipates he will be capable of medium-duty work in the future

as he continues his treatment.

     Moreover, in addition to the somewhat ambiguous exchange

above, Dr. Burke testified that while Tedder was “close” to

achieving maximum medical improvement, he had not yet reached

that point.        She indicated that Tedder was still experiencing

“some numbness and tingling in the left foot,” as well as “some

tightness over the lumbar spine.”            Finally, she opined that she

did not believe Tedder would be “in the shape [he is] in now”

but for the 8 March 2011 injury.

     Under the applicable standard of review, this testimony is

competent   evidence     supporting    the    Commission’s      finding   that

Tedder was unable to continue work as a delivery driver because

of his back injury.         Accordingly, we affirm the Commission’s

award of temporary total disability compensation.

                                 Conclusion

     For    the     foregoing    reasons,    we    affirm   the     Industrial

Commission’s conclusion that Plaintiff Keith Tedder is entitled
                                  -20-
to   temporary   total   disability   compensation.   We   reverse   and

remand for a determination of average weekly wages consistent

with this opinion.

      AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

      Chief Judge McGEE and Judge STEPHENS concur.
