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
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.