James v. Carolina Power & Light (Lawyers Weekly No. 11-07-0559, 24 pp.) (Cheri Beasley, J.) Appealed from the Industrial Commission. N.C. App. Click here for the full-text opinion.
Holding: The Industrial Commission did not err by ordering reinstatement of a plaintiff’s temporary total disability benefits but did err in (1) calculating her average weekly wage and (2) limiting medical care authorized to that received by the plaintiff on or after a certain date.
An employee’s “average weekly wages” are computed pursuant to G.S. § 97-2(5), which sets forth, in preferential order, five methods by which such calculation may be made.
While it would have been proper for the commission to decline using method one, notwithstanding Plaintiff’s employment of over fifty-two weeks, and calculate Plaintiff’s average weekly wages as it did pursuant to method five for exceptional circumstances, such is permissible only in conjunction with a finding that the first four methods would be unfair, either to the employer or employee.
The commission did find that “results fair and just to both parties” would be obtained by applying the third method; however, this is not the same as finding that method one would be unfair. Therefore, we are constrained to reverse the commission‘s calculation of plaintiff’s average weekly wage according only to her loss of full-time wages and remand for findings to support any recalculation that the commission deems appropriate.
Defendant argues that the commission erred in ordering reinstatement of temporary total disability benefits as of April 23, 2003. Specifically, defendant contends that there is no competent evidence supporting the commission’s finding of fact that plaintiff’s incontinence was causally related to the Nov. 23, 1999 accident or its finding that plaintiff’s unjustified refusal to cooperate with medical treatment and vocational rehabilitation ended by April 23, 2003.
However, where Dr. Raymond Sy’s testimony constitutes sufficient competent evidence to support each of these findings, which support the commission’s respective conclusions that plaintiff was and continues to be totally unable to earn wages in any employment since the date of her work-related injury and is entitled to a reinstatement of her temporary total disability benefits as of April 23, 2003 until further order by the commission, we affirm. …
Plaintiff cross-assigns as error the commission’s limitation of the medical care authorized to that received by plaintiff on or after Dec. 31, 2002.
We affirm the commission’s conclusion that plaintiff’s request for approval of her medical treatment was done within “a reasonable time after receiving the treatment.” Finding of Fact 35 and other findings related to plaintiff’s unauthorized treatment unfailingly lead to the conclusion that plaintiff’s treatment prior to the date she filed the request was authorized.