{ "id": 11915507, "name": "BILLY P. CRAFT, Employee, Plaintiff v. BILL CLARK CONSTRUCTION COMPANY, Employer, SELECTIVE INSURANCE COMPANY, Carrier, Defendants", "name_abbreviation": "Craft v. Bill Clark Construction Co.", "decision_date": "1996-09-17", "docket_number": "No. COA95-1184", "first_page": "777", "last_page": "781", "citations": [ { "type": "official", "cite": "123 N.C. App. 777" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "293 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "816", "parenthetical": "plaintiff sold pulpwood to the employer \"for a certain price per cord\"" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 602", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525761 ], "year": 1982, "pin_cites": [ { "page": "604", "parenthetical": "plaintiff sold pulpwood to the employer \"for a certain price per cord\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0602-01" ] }, { "cite": "300 S.E.2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "373", "parenthetical": "scope of review limited to consideration of assignments of error" } ], "opinion_index": 0 }, { "cite": "307 N.C. 684", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565529 ], "year": 1983, "pin_cites": [ { "page": "690", "parenthetical": "scope of review limited to consideration of assignments of error" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0684-01" ] }, { "cite": "94 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1956, "pin_cites": [ { "page": "794" }, { "page": "796" } ], "opinion_index": 0 }, { "cite": "244 N.C. 653", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219526 ], "year": 1956, "pin_cites": [ { "page": "658" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0653-01" ] }, { "cite": "181 S.E.2d 237", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "239" } ], "opinion_index": 0 }, { "cite": "11 N.C. App. 328", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554717 ], "year": 1971, "pin_cites": [ { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/nc-app/11/0328-01" ] } ], "analysis": { "cardinality": 392, "char_count": 8602, "ocr_confidence": 0.769, "pagerank": { "raw": 2.454858700363489e-07, "percentile": 0.8046888061813643 }, "sha256": "faad8877860ceb10258a5e50fb7d611fa15e3b6a8b21113e62617940725e55cb", "simhash": "1:f4e145e65036f599", "word_count": 1420 }, "last_updated": "2023-07-14T18:05:31.519627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHN and MARTIN, Mark D., concur." ], "parties": [ "BILLY P. CRAFT, Employee, Plaintiff v. BILL CLARK CONSTRUCTION COMPANY, Employer, SELECTIVE INSURANCE COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "GREENE, Judge.\nBill Clark Construction Company (employer) and Selective Insurance Company (collectively defendants) appeal the Opinion and Award for the North Carolina Industrial Commission (Commission) requiring that defendants compensate Billy Craft (plaintiff) at a rate of $189.00 per week.\nAt the hearing to resolve plaintiffs average weekly wage, evidence was presented showing that plaintiff worked for employer when the employer needed jobs done and not on a full-time basis. Plaintiff was paid by the job according to the work he was doing at a particular time. In performing the work in 1993, which was done in March, May, November and December, he was paid $15,614 and incurred expenses related to the job performance in the amount of $8,234, plus $1,267 in depreciation expense. In 1994, the plaintiff was paid $3,230 by employer for work performed from 1 January through the date of his injury on 22 March. There was no evidence of the expenses incurred, if any, by the plaintiff during 1994.\nThe Deputy Commissioner used plaintiffs income from 1993 and deducted plaintiffs expenses incurred in that year to arrive at a net income of $6,113, which amounted to an average weekly income of $117.56. The Deputy Commissioner did not use plaintiffs earnings from 1994 because \u201c[t]here is no evidence of . . . expenses\u201d for that period of time.\nOn appeal, the Commission calculated the average weekly income, using only the wages received in 1994 and dividing that sum by the number of weeks worked in 1994. It concluded this method to be \u201cfair and just to both parties.\u201d The Commission refused to deduct the plaintiffs expenses incurred in the earning of that income, finding that \u201cit would be unjust and unfair to treat plaintiff employee as a subcontractor.\u201d\nThe issues presented are whether the calculation of the plaintiffs average weekly wages required the Commission to (I) compute the total of the wages the plaintiff received from the employer in 1993 and 1994; and (II) deduct the expenses the plaintiff incurred in earning that income.\nI\nOur Workers\u2019 Compensation Act provides several methods for determining an employee\u2019s \u201caverage weekly wages.\u201d N.C.G.S. \u00a7 97-2(5) (1991). If an employee has worked for an employer for less than fifty-two weeks, as in this case, the average weekly wages are to be determined by \u201cdividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages.\u201d Id. If, however, it is determined that this method would not be \u201cfair and just\u201d to both parties, \u201csuch 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.\u201d Id.; see Wallace v. Music Shop, 11 N.C. App. 328, 331, 181 S.E.2d 237, 239 (1971). This \u201cother method\u201d does not seek to establish some precise formula, but instead merely \u201csets up a standard to which results fair and just to both parties must be related.\u201d Liles v. Electric Co., 244 N.C. 653, 658, 94 S.E.2d 790, 794 (1956).\nIn this case, the Commission determined that it was not fair to calculate the plaintiffs average weekly wages by dividing the wages received during the entire period, extending from March 1993 into March 1994, by the number of weeks worked.. This determination, to be binding on this Court, must be supported by the evidence in the record. Id. at 660, 94 S.E.2d at 796. Because, however, there has been no assignment of error to this determination, it is deemed to be supported in the record, as appellate review of this issue is precluded. N.C. R. App. P. 10(a) (1996); Harris v. Harris, 307 N.C. 684, 690, 300 S.E.2d 369, 373 (1983) (scope of review limited to consideration of assignments of error). The Commission was therefore free to use an alternate method for measuring the plaintiff\u2019s average weekly wages and the wages earned in the last two and one-half months prior to the injury are a reasonable \u201capproximation\u201d of the wages \u201cwhich the employee would be earning were it not for the injury.\u201d The use of the average of the 1994 wages to calculate the plaintiffs average weekly wages was therefore not error.\nII\nIn so holding we also reject the employer\u2019s argument that the Commission erred in its computation of the plaintiff\u2019s average wages in that it did not deduct the expenses the plaintiff incurred in earning those wages. There is no evidence that the plaintiff sustained any expenses in 1994, the time period used to compute the average weekly wages. Even if such expenses had been incurred by the plaintiff, the Commission is not required to deduct those expenses from the income earned to properly calculate the average weekly wages. This Court has held that when an employee is paid a set price for doing a particular job, it is proper to deduct the \u201cexpenses incurred in producing [that] revenue\u201d in calculating the average weekly wages. Baldwin v. Piedmont Woodyards, Inc., 58 N.C. App. 602, 604, 293 S.E.2d 814, 816 (1982) (plaintiff sold pulpwood to the employer \u201cfor a certain price per cord\u201d). Even in this latter situation, however, the Commission is not required to deduct the expenses incurred by the plaintiff if it does not believe that this method \u201cproduces a result fair to the employer and employee.\u201d Id.\nIn this case, the Commission specifically stated that it believed it \u201cwould be unjust and unfair to treat plaintiff employee as a subcontractor.\u201d This language indicates that the Commission did not consider it fair to deduct from the plaintiff\u2019s income any expenses he may have sustained in the earning of that income. Because the record can support that determination, we are bound by it. Accordingly, the Commission\u2019s refusal to deduct the plaintiffs expenses, if any, in its average weekly wages calculation was not error.\nWe have considered and overrule without discussion the employer\u2019s assignment of error with respect to the interest the employer was ordered to pay on the award.\nAffirmed.\nJudges JOHN and MARTIN, Mark D., concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Hugh D. Cox for plaintiff-appellee.", "Young Moore & Henderson, P.A., by Joe E. Austin, Jr., for defendant-appellants." ], "corrections": "", "head_matter": "BILLY P. CRAFT, Employee, Plaintiff v. BILL CLARK CONSTRUCTION COMPANY, Employer, SELECTIVE INSURANCE COMPANY, Carrier, Defendants\nNo. COA95-1184\n(Filed 17 September 1996)\n1. Workers\u2019 Compensation \u00a7 261 (NCI4th)\u2014 calculation of compensation \u2014 wages for less than 52 weeks before injury\nThe Industrial Commission did not err in determining compensation in a workers\u2019 compensation action by using plaintiff\u2019s 1994 wages to the time of injury divided by the number of weeks worked where plaintiff worked as needed and was paid by the job, he was injured on 22 March 1994, and the Commission determined that it was not fair to calculate plaintiff\u2019s average weekly wages by dividing the wages received from March 1993 to March 1994 by the number of weeks worked. Although that determination must be supported by evidence in the record to be binding on appeal, it is deemed supported here because there was no assignment of error to the issue and appellate review is precluded. The Commission was therefore free to use an alternate method for measuring plaintiff\u2019s average weekly wages and the wages earned in the last two and one-half months prior to the injury are a reasonable appoximation of the wages which the employee would be earning if not for the injury. N.C.G.S. \u00a7 97-2(5).\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 418-430.\n2. Workers\u2019 Compensation \u00a7 263 (NCI4th)\u2014 calculation of compensation \u2014 expenses not deducted from wages \u2014 no evidence \u2014 determination of unfairness\nThe Industrial Commission did not err in a workers\u2019 compensation action in its computation of plaintiffs average wages in not deducting expenses incurred in earning those wages where there was no evidence that plaintiff sustained any expenses in the time period used to compute the average weekly wages. Even if such expenses had been incurred, the Commission is not required to deduct those expenses if it does not believe that this method produces a result fair to the employer and employee and the Commission here specifically stated that it believed it would be unjust and unfair to treat plaintiff as a subcontractor. This language indicates that the Commission did not consider it fair to deduct expenses and, because the record can support that determination, it is binding on appeal.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 418-430.\nAppeal by defendants from Opinion and Award for the Full Commission filed 19 June 1995. Heard in the Court of Appeals 21 August 1996.\nHugh D. Cox for plaintiff-appellee.\nYoung Moore & Henderson, P.A., by Joe E. Austin, Jr., for defendant-appellants." }, "file_name": "0777-01", "first_page_order": 811, "last_page_order": 815 }