Shaw v. U.S. Airways, Inc.

665 S.E.2d 449, 362 N.C. 457, 2008 N.C. LEXIS 684
CourtSupreme Court of North Carolina
DecidedAugust 27, 2008
Docket580A07
StatusPublished
Cited by34 cases

This text of 665 S.E.2d 449 (Shaw v. U.S. Airways, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shaw v. U.S. Airways, Inc., 665 S.E.2d 449, 362 N.C. 457, 2008 N.C. LEXIS 684 (N.C. 2008).

Opinions

NEWBY, Justice.

This case presents the issue of whether an employer’s contributions to an employee’s retirement accounts are included in the calculation of “average weekly wage” under our Workers’ Compensation Act. While the Act is to be “liberally construed,” such liberality is not to be extended “beyond [its] clearly expressed language.” See Deese v. Se. Lawn & Tree Expert Co., 306 N.C. 275, 277, 293 S.E.2d 140, 142-43 (1982). Because we do not believe inclusion of fringe benefits to be “clearly expressed,” we reverse the Court of Appeals.

Plaintiff Curry Shaw worked as a fleet service worker for defendant-employer U.S. Airways. As an employee, plaintiff participated in two separate retirement programs. The first program was a 401(k) plan (the “Savings Plan”) that allowed plaintiff to defer a certain percentage of his eligible income into a retirement savings account. Under the plan, defendant-employer would match fifty percent of plaintiff’s contributions up to two percent of plaintiff’s eligible compensation. The second retirement program (the “Pension Plan”) was funded entirely by obligatory contributions made by defendant-employer on behalf of plaintiff, based on his income and age. The plans were maintained in separate accounts by plan administrator Fidelity Investment Services, which offered plaintiff investment options for the money contributed by plaintiff and defendant-employer. These investment options were the same for both plans and included a mix of pre-selected stocks, mutual funds, and bonds.

On 12 July 2000, plaintiff injured his back while attempting to lift luggage from a baggage belt at his workplace. In a Form 60 filed on 24 August 2000, defendant-employer and its workers’ compensation carrier (collectively “defendants”) admitted plaintiff’s right to compensation under the North Carolina Workers’ Compensation Act for [459]*459an injury by accident. Defendants reported plaintiffs “average weekly wage” as $825.55. This amount omitted defendant-employer’s contributions in the 52 weeks preceding plaintiff’s injury of $1,798.33 to plaintiff’s Pension Plan and $899.17 to plaintiff’s Savings Plan. Inclusion of these amounts in the average weekly wage calculation would have increased plaintiff’s average weekly wage by $51.87 (the sum of defendant-employer’s contributions to both plans divided by 52).

On 23 November 2004, plaintiff filed a Form 33 requesting a hearing because the parties were unable to agree whether defendant-employer’s contributions to the Savings and Pension Plans were part of plaintiff’s average weekly wage. Following a hearing on 25 May 2005, a Deputy Commissioner entered an opinion and award concluding that the contributions were not included. Plaintiff appealed to the Full Commission, which entered an opinion and award on 13 September 2006 affirming and modifying the Deputy Commissioner’s decision. The Commission concluded the contributions “did not constitute earnings, but rather were a fringe benefit of [plaintiff’s] employment with defendant-employer that should not be included in the calculation of his average weekly wage.”

On appeal, the Court of Appeals majority reversed and remanded the case to the Commission after “conclud[ing] that not all fringe benefits are required to be excluded from an average weekly wage calculation and [that] the Commission did not apply the proper analysis in determining whether the contributions at issue in this case should be excluded.” Shaw v. U.S. Airways, Inc., 186 N.C. App. 474, 476-77, 652 S.E.2d 22, 23 (2007). The dissenting judge would have affirmed the Commission, disagreeing with the majority’s interpretation of existing law and cautioning that “[a]ny more detailed mandates on what may and may not be included in these computations must come from our legislature, not from this Court.” Id. at 489, 652 S.E.2d at 32 (Hunter, J., dissenting).

The sole question before us is whether defendant-employer’s contributions to plaintiff’s two retirement accounts should be included in plaintiff’s “average weekly wage” as defined by N.C.G.S. § 97-2(5). We have observed that section 97-2(5) “sets forth in priority sequence five methods by which an injured employee’s average weekly wages are to be computed.” McAninch v. Buncombe Cty. Sch., 347 N.C. 126, 129, 489 S.E.2d 375, 377 (1997). Plaintiff argues that defendant-employer’s contributions to his retirement accounts should be included under the first method of calculating average [460]*460weekly wage, which in pertinent part provides: “ ‘Average weekly wages’ shall mean the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury . . . divided by 52____” N.C.G.S. § 97-2(5) (2007).

Thus, the inquiry becomes whether defendant-employer’s contributions constitute “earnings.” Plaintiff contends that the contributions are earnings because they represent economic gain to him and valuable consideration for his employment. Defendants argue that the contributions are not earnings because nothing in the plain language of section 97-2(5) specifically includes fringe benefits. We agree with defendants.

When interpreting a statute, we ascertain the intent of the legislature, first by applying the statute’s language and, if necessary, considering its legislative history and the circumstances of its enactment. See Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136-37 (1990) (citing State ex rel. N.C. Milk Comm’n v. Nat’l Food Stores, Inc., 270 N.C.-323, 332, 154 S.E.2d 548, 555 (1967)). Our Workers’ Compensation Act does not define “earnings.” Thus, we review the historical context of the Act’s adoption in 1929. At that time, fringe benefits were rare. See Morrison-Knudsen Constr. Co. v. Dir., Office of Workers’ Comp. Programs, U.S. Dep’t of Labor, 461 U.S. 624, 632, 103 S. Ct. 2045, 2050, 76 L. Ed. 2d 194, 201 (1983) (noting that in 1927, when the federal workers’ compensation statute at issue in that case was enacted, “employer-funded fringe benefits were virtually unknown”). Since its enactment, the original language used by the legislature in setting out the first method of calculating average weekly wages under section 97-2 has remained substantially unchanged. See The North Carolina Workmen’s Compensation Act, ch. 120, sec. 2(e), 1929 N.C. Sess. Laws 117, 118. Moreover, the only substantive addition to this language was a 1947 amendment to include in average weekly wages subsistence allowances paid to war veteran trainees by the United States government. See Act of Apr. 2, 1947, ch. 627, sec. 1(1), 1947 N.C. Sess. Laws 929, 929. At no point has the General Assembly mentioned fringe benefits in their revisions of other parts of section 97-2.

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Bluebook (online)
665 S.E.2d 449, 362 N.C. 457, 2008 N.C. LEXIS 684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shaw-v-us-airways-inc-nc-2008.