Ball v. Bayada Home Health Care , 255 N.C. App. 1 ( 2017 )

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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BALL V. BAYADA HOME HEALTH CARE
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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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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