The Ball v. Bayada Home Health Center, __ N.C. App. ___, (2017),  decision is a good reminder that N.C.G.S. § 97-2(5) provides five different methods to calculate average weekly wage, depending on the facts and circumstances of each claim.  Determining average weekly wage must be fair and just, meaning that the calculation must reflect what the injured claimant would be earning had they not been injured.

Plaintiff began working in a part-time position as a certified nurse’s assistant with Bayada Home Health Care on May 26, 2010, earning $8.00 per hour.  In February 2011, Plaintiff was assigned to a new position, working with a single patient, which resulted in increased hours and a higher hourly wage at $10.00 per hour.  On February 10, 2011, Plaintiff’s first day in her new position, the patient pushed Plaintiff down several stairs, resulting in this claim.  Despite the injury, Plaintiff continued to work for the patient until May 18, 2011.

At hearing, an issue arose regarding the appropriate method to calculate Plaintiff’s average weekly wage.  The Industrial Commission ultimately applied Method 3, which provides as follows:

“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.”  N.C.G.S. § 97-2(5).

Plaintiff appealed the issue to the North Carolina Court of Appeals, contending that utilization of Method 3 to calculate her average weekly wage was not “fair and just.”  Specifically, Plaintiff contended that use of Method 3 only took into account her prior part-time position at the lower hourly rate and ignored her new position, in which she was working more hours at a higher hourly rate.

The Court of Appeals agreed.  They held 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 February 10, 2011 injury.”

The Court of Appeals explained that the intent of N.C.G.S. § 97-2(5) is to obtain results that are fair and just to both employer and employee.  Fair and just results, within the meaning of N.C.G.S. § 97-2(5), consist of such “average weekly wages that 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 the injury.”  In order to “most nearly approximate” what Plaintiff would be earning had she not been injured, the Court of Appeals held that Plaintiff’s post-injury work must be taken into account.

The case was remanded back to the Industrial Commission for a determination of Plaintiff’s average weekly wage utilizing Method 5, which provides as follows:

“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.G.S. § 97-2(5).