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Workers’ Compensation – Lifting Restrictions – Pre-existing Conditions – Average Weekly Wage
Even though, in his deposition, plaintiff’s doctor said plaintiff had a 10-pound lifting restriction, the doctor also testified that there had been no change in the lifting restriction since the doctor had last seen plaintiff in 2013. A medical record from 2013 indicated that plaintiff had only a 25-pound lifting restriction; this document from the […]
Workers’ Compensation — Average Weekly Wage – Calculation Method – Part-Time Worker – Wage & Hour Increase
Ball v. Bayada Home Health Care (Lawyers Weekly No. 011-242-17, 11 pp.) (Linda McGee, C.J.) Appealed from the Industrial Commission. N.C. App. Holding: Where (1) a certified nursing assistant had worked for the defendant-employer part-time for six months before she came on full time at $8 per hour; (2) three months later, she was […]
Workers’ Compensation — Average Weekly Wage – Successive Injuries – Reduced Wages
Chenette v. Metokote Corp. (Lawyers Weekly No. 15-16-0375, 18 pp.) (John Tyson, J.) Appealed from the Industrial Commission. N.C. App. Unpub. Holding: Although the compensable injuries plaintiff suffered in 2007 and 2010 were both to his back, there is competent evidence that plaintiff’s current back problems are due to his 2010 injury. Therefore, the Industrial […]
Workers’ Compensation — Average Weekly Wage – Temporary Employee – Disability – Medical Restrictions
Tedder v. A&K Enterprises (Lawyers Weekly No. 14-07-1171, 20 pp.) (Richard Dietz, J.) Appealed from the Industrial Commission. N.C. App. Holding: The defendant-employer hired plaintiff to work for seven weeks at $625 per week; however, plaintiff was injured during the first week. The court agrees with the Industrial Commission that it must determine plaintiff’s average […]
Workers’ Compensation — Average Weekly Wage – Retiree – Occupational Disease – Lung Cancer – Asbestosis
Lipe v. Starr Davis Co. (Lawyers Weekly No. 14-07-1023, 13 pp.) (Chris Dillon, J.) Appealed from the Industrial Commission. N.C. App. Holding: Where (1) plaintiff’s decedent was exposed to asbestos during his career at Starr Davis Co. (SDC), (2) he retired from SDC for a reason unrelated to any injury suffered at work, (3) after […]
Workers’ Compensation – Temporary Partial Disability Benefits – Average Weekly Wage – Second Job – First Impression
Tunell v. Resource MFG If an employee is holding down two jobs and is injured at the first job, his “average weekly wage” does not include wages from his second job even if the injury prevents him from returning to either job. Likewise, if an injury prevents the employee from returning to his first job, but he is still able to work at his second job, the calculation of his temporary p[...]
Workers’ Compensation – Consent Order – Motion to Set Aside – Mutual Mistake – Average Weekly Wage – Mistake of Law
Brown v. City of Burlington Plaintiff sought to set aside a consent order based on a mutual mistake as to the amount of his average weekly wage. Under Swain v. C & N Evans Trucking Co., 126 N.C. App. 332, 484 S.E.2d 845 (1997), the determination of a plaintiff’s average weekly wage is a question of law because it requires application of the definition set forth in G.S. § 97-2(5).
Workers’ Compensation – Average Weekly Wage – Promotion & Raise – Fifth Method
Hazell v. Family Dollar Inc. Plaintiff didn’t merely receive a raise six weeks before her compensable injury; she was promoted from a part-time hourly position to a full-time salaried position. The Industrial Commission rejects defendants’ contention that plaintiff’s average weekly wage should be determined based on the wages she received during the 52 weeks prior to her injury. Pla[...]
Workers’ Compensation – Average Weekly Wage – Excessive Overtime – Staff Shortage
Knowles v. Wackenhut Corp. Where a staff shortage resulted in plaintiff working more overtime than defendant’s employees normally can, and where the staff shortage has been corrected, the Industrial Commission should have calculated plaintiff’s average weekly wage pursuant to the fourth or fifth method in G.S. § 97-2(5) rather than the third.
Workers’ Compensation – Consequences of Injury – DVT & Disc Herniation – Proffered Position – Unsuitable – Average Weekly Wage
Burton v. ArvinMeritor, Inc. Even though plaintiff developed his first deep venous thrombosis as a result of knee-replacement surgery that he underwent before his on-the-job injury, plaintiff’s second DVT and the worsening of his original DVT resulted from his compensable knee injury. Accordingly, plaintiff’s second DVT and the aggravation of his original DVT are compensable.
Workers’ Compensation – Asbestosis – Carrier on the Risk – Last Exposure – Average Weekly Wage – Unclaimed Conditions – Natural Result
Mauldin v. A.C. Corp. Plaintiff failed to show that he was exposed to asbestos for the required amount of time during Argonaut Insurance’s policy period; since the Industrial Commission’s award for damage to plaintiff’s lungs was based on both lung cancer and asbestosis, the Commission must decide whether the damage award can be apportioned between the conditions.
Workers’ Compensation – Average Weekly Wage – Temporary Job – Fifth Calculation Method
Denning v. N.C. Department of Agriculture After a deputy sheriff was injured while working at the State Fair, the Industrial Commission correctly determined that none of the first four methods of calculating his average weekly wage in G.S. § 97-2(5) would produce a fair result. The Commission did not err in applying the fifth method to arrive at an average weekly wage of $630, rather tha[...]
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