Lipe v. Starr Davis Co., Inc.

• Court: Court of Appeals of North Carolina
• Decided: July 1, 2014
• Docket: 14-90
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.