{ "id": 9363902, "name": "PHILLIP E. LOCH, Plaintiff v. ENTERTAINMENT PARTNERS, Employer; CNA INSURANCE COMPANIES, Carrier; Defendants", "name_abbreviation": "Loch v. Entertainment Partners", "decision_date": "2001-12-28", "docket_number": "No. COA00-1113", "first_page": "106", "last_page": "114", "citations": [ { "type": "official", "cite": "148 N.C. App. 106" } ], "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": "222 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "754" } ], "opinion_index": 0 }, { "cite": "29 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553557 ], "year": 1976, "pin_cites": [ { "page": "3" } ], "opinion_index": 0, "case_paths": [ "/nc-app/29/0001-01" ] }, { "cite": "39 S.E.2d 384", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1946, "pin_cites": [ { "page": "387" } ], "opinion_index": 0 }, { "cite": "226 N.C. 510", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621679 ], "year": 1946, "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/nc/226/0510-01" ] }, { "cite": "468 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "399" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 570", "category": "reporters:state", "reporter": "N.C. 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Stat.", "weight": 18, "year": 1999, "pin_cites": [ { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 790, "char_count": 18329, "ocr_confidence": 0.766, "pagerank": { "raw": 1.0823792421107068e-07, "percentile": 0.5628194925650105 }, "sha256": "845a00453a8aab7070b9f1072e306fc3ed2c29daa80fd30fc14f357a455c35f8", "simhash": "1:1d596d68d47b6418", "word_count": 2963 }, "last_updated": "2023-07-14T20:14:25.013425+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief JUDGE EAGLES and JUDGE THOMAS concur." ], "parties": [ "PHILLIP E. LOCH, Plaintiff v. ENTERTAINMENT PARTNERS, Employer; CNA INSURANCE COMPANIES, Carrier; Defendants" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nPhillip E. Loch (\u201cplaintiff\u2019) appeals an opinion and award of the North Carolina Industrial Commission (\u201cthe Full Commission\u201d) reducing his award of workers\u2019 compensation benefits. For the reasons set forth herein, we remand to the Full Commission for recalculation of plaintiff\u2019s average weekly wage in compliance with N.C. Gen. Stat. \u00a7 97-2(5) (1999).\nPertinent facts and procedural information include the following: Plaintiff began employment on an occasional basis with Entertainment Partners (\u201cdefendant\u201d) in 1990. On 21 September 1996, defendant employed plaintiff as an actor for a few days work. The same day, plaintiff slipped on a step outside of his trailer, causing him to aggravate a pre-existing knee injury. Plaintiff was diagnosed with an acute contusion and sprain of his right knee. Despite his injury, plaintiff continued to work for defendant on 4 October and 11 October 1996. On 11 November 1996, Dr. Sutton performed partial knee surgery on plaintiff\u2019s right knee. Plaintiff reached maximum medical improvement on 1 July 1997, and was assigned a permanent disability rating of fifteen percent (15%) to his right knee, with restrictions on climbing, stooping, squatting, and crawling. Plaintiff was paid temporary total disability benefits pursuant to a Form 60 Agreement at the maximum compensation rate of $492.00, subject to wage verification.\nOn 1 October 1997, defendant filed a claim with the Industrial Commission seeking to terminate or suspend payment of benefits because plaintiff had resumed working at an equal or higher wage. The parties agreed to submit the matter to the Deputy Commissioner, based on stipulated exhibits, for a determination of plaintiffs average weekly wage pursuant to N.C. Gen. Stat. \u00a7 97-2(5). After a hearing on the matter, Deputy Commissioner Phillip A. Holmes rendered an opinion and award on 28 August 1998, ruling, inter alia, that calculating plaintiff\u2019s average weekly wage under the first three calculations of N.C. Gen. Stat. \u00a7 97-2(5) results in an unfair and unjust calculation. The Deputy Commissioner concluded that plaintiffs average weekly wage must be calculated under the fourth method to ensure a fair and just result. The Deputy Commissioner calculated plaintiffs wages by dividing his highest earning over any fifty-two week period during his seven-year employment by fifty-two (52) weeks thus yielding an average weekly wage of $80.05 and a compensation rate of $53.37.\nPlaintiff appealed this opinion and award to the Full Commission. The Full Commission rendered its opinion and award on 4 May 2000 with the following pertinent findings of fact and conclusions of law:\nFindings of Fact\n7. Carrier-defendant subsequently obtained plaintiffs wage records and a completed Form 22 Wage Chart. The Form 22 Wage Chart shows no earnings by plaintiff in 1996 for the months of January through August. The Form 22 Wage Chart reflected earnings of $594.00 in September 1996 and $1,188.00 in October 1996. For November 1995, the Form 22 Wage Chart shows earnings of $1,234.53. Accordingly, in the twelve months preceding the injury, plaintiff earned a total of $3,016.53 working for defendant-employer which equates to an average weekly wage of $58.01, and a weekly compensation rate of $38.67.\n8. Plaintiffs payroll records show the following yearly incomes earned between 1990 and 1996 while working for defendant-employer: 199041,138.00; 19914492.80; 199244,162.50; 1993-$1,895.57; 19944893.34; 199542,734.59; 199641,818.70.\nConclusions of Law\n2. Given the part-time and intermittent nature of plaintiffs work as an actor for the defendant-employer, calculation of plaintiffs average weekly wage under the first three calculations of N.C. Gen. Stat. \u00a7 97-2(5) results in an unfair and unjust calculation which would not take into account the periods during which plaintiff did not work. Therefore, plaintiffs average weekly wage must be calculated under the fourth method under N.C. Gen. Stat. \u00a7 97-2(5) in order to ensure results which are fair and just to both employer and employee. Joyner v. A.J. Carey Oil Co., 266 N.C. 519, 146 S.E.2d 447 (1996); Barber v. Going West Transportation, Inc [134 N.C. App. 428, 517 S.E.2d 914 (1999)].\n3. The undersigned conclude as a matter of law that plaintiffs average weekly wage must be calculated by taking the total earnings for the 52 weeks preceding his disability and dividing that amount by 52. Barber v. Going West Transportation, Inc. [134 N.C. App. 428, 517 S.E.2d 914 (1999)]. Plaintiffs earnings from defendant-employer during the 52 weeks prior to his disability total $3,016.53, which equates to an average weekly wage of $58.01, yielding a compensation rate of $38.67. N.C. Gen. Stat. \u00a7 97-2(5).\nThe Commission further concluded that defendant was entitled to a credit towards future indemnity benefits. Plaintiff appeals.\nOn appeal, plaintiff assigns error to the Commission\u2019s computation of his average weekly wage. Specifically, plaintiff contends that the Commission erred by resorting to the \u201cfourth method\u201d of N.C. Gen. Stat. \u00a7 97-2(5) in calculating his average weekly wage. For the reasons discussed below, we agree.\nFirst, we note that the role of this Court in reviewing an appeal from the Industrial Commission is limited to a determination of (1) whether the findings of fact are supported by competent evidence and (2) whether the conclusions of law are supported by the findings. Barham v. Food World, 300 N.C. 329, 331, 266 S.E.2d 676, 678 (1980). Conclusions of law by the Industrial Commission are reviewable de novo by this Court. Grantham v. R.G. Barry Corp., 127 N.C. App. 529, 534, 491 S.E.2d 678, 681 (1997), disc. review denied, 347 N.C. 671, 500 S.E.2d 86 (1998).\nUnder N.C. Gen. Stat. \u00a7 97-2(5) average weekly wage is defined in pertinent part as\nearnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury... divided by 52; but if the injured, employee lost more than seven consecutive calendar days at one or more times during such period, although not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks remaining after the time so lost has been deducted. Where the employment prior to the injury extended over a period of less 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. Where, by reason of a shortness of time during which the employee has been in the employment of his employer or the casual nature or terms of his employment, it is impractical to compute the average weekly wages as above defined, regard shall be had to the average weekly wage amount which during the 52 weeks previous to the injury was being earned by a person of the same grade and character employed in the same class of employment in the same locality or community.\nBut 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.\nN.C. Gen. Stat. \u00a7 97-2(5) (1999).\nIt is clear from the language of the statute and prior holdings of this Court that N.C. Gen. Stat. \u00a7 97-2(5) establishes an order of preference and that the primary method is to calculate the total wages of the employee for the fifty-two weeks of the year prior to the date of the injury, divided by fifty-two. Bond v. Foster Masonry, Inc., 139 N.C. App. 123, 128, 532 S.E.2d 583, 586 (2000). The statute includes a \u201ccatch-all\u201d provision, to be used when warranted by \u201cexceptional reasons.\u201d Postell v. B&D Construction Co., 105 N.C. App. 1, 7, 411 S.E.2d 413, 416, disc. review denied, 331 N.C. 286, 417 S.E.2d 253 (1992). However, the final method set forth in N.C. Gen. Stat. \u00a7 97-2(5) may not be used unless there has been a finding that.unjust results would occur by using the previous methods. Wallace v. Music Shop, 11 N.C. App. 328, 331, 181 S.E.2d 237, 239 (1971).\nThe primary intent of the N.C. Gen. Stat. \u00a7 97-2(5) is to make certain that the results reached are fair and just to both parties. Liles v. Electric Co., 244 N.C. 653, 660, 94 S.E.2d 790, 795-96 (1956). In cal-dilating an employee\u2019s average weekly wage, the North Carolina Supreme Court has held that the average weekly wage should be based upon the injured employee\u2019s earning capacity. Dereberry v. Pitt County Fire Marshall, 318 N.C. 192, 197, 347 S.E.2d 814, 817 (1986). Therefore, the average weekly wage is determined by calculating \u201c \u2018the amount which the injured employee would be earning were it not for the injury.\u2019 \u201d Id. (quoting N.C. Gen. Stat. \u00a7 97-2(5)).\nAt the outset, we note that due to the sporadic nature of plaintiff\u2019s employment and the difficulty in making a precise calculation, the Commission was justified in resorting to an alternative method of determining his average weekly wage. Plaintiff worked for defendant for seven years but was assigned work only as it became available. In fact, the record reveals that work was not available in the acting field to plaintiff every week. In the fifty-two weeks prior to plaintiff\u2019s injury in 1996, plaintiff only worked a total of five days. In relying on Joyner v. Oil Co., 266 N.C. 519, 146 S.E.2d 447 (1966), the Commission concluded that given the \u201cpart-time and intermittent\u201d nature of plaintiff\u2019s employment, calculation under the first three methods of N.C. Gen. Stat. \u00a7 97-2(5) \u201cresults in an unfair and unjust calculation which would not take into account the periods which plaintiff did not work.\u201d Therefore, the Commission calculated plaintiff\u2019s average weekly wage under the \u201cfourth method\u201d of the statute.\nAlthough N.C. Gen. Stat. \u00a7 97-2(5) does not numerically designate the methods for calculating average weekly wage, recent case law assigns numbers to the statutory methods for calculating average weekly wage with the fifth method being the \u201ccatch-all\u201d provision. See McAnich v. Buncombe County Schools, 122 N.C. App. 679, 681, 471 S.E.2d 441, 443 (1996) (noting that the statute provides a \u201chierarchy\u201d of five methods of computing the average weekly wage) overruled on other grounds, 347 N.C. 126, 489 S.E.2d 375 (1997); Bond v. Foster Masonry Inc., 139 N.C. App. 123, 127, 532 S.E.2d 583, 585-86 (2000) (setting forth five methods of calculating average weekly wage). In light of recent case law, it is not clear which method the Commission employed in calculating plaintiff\u2019s average weekly wage.\nOn the one hand, the Commission concluded as follows:\n2. Given the part-time and intermittent nature of plaintiff\u2019s work as an actor for the defendant-employer, calculation of plaintiff\u2019s average weekly wage under the first three methods of N.C. Gen. Stat. \u00a7 97-2(5) results in an unfair and unjust calculation which would not take into account the periods during which plaintiff did not work. Therefore, plaintiff\u2019s average weekly wage must be calculated under the fourth method under N.C. Gen. Stat. \u00a7 97-2(5) in order to ensure results which are fair and just to both employer and employee.\nHowever, calculation under this method would require comparing plaintiffs work with an employee of the \u201csame grade and character .. . in the same locality or community\u201d as required by \u00a7 97-2(5). The record contained no findings regarding the wages or annual earnings of comparable part-time actors. There was also no finding of whether the work provided by defendant was seasonal or how often employment was offered to the actors during any portion of the year. Without the related findings, the Commission could not properly conclude that calculation under the fourth method would ensure fair results.\nOn the other hand, the opinion and award of the Commission suggests that it employed the final \u201ccatch-all\u201d method of the statute by quoting the language \u201cfair and just\u201d in their conclusions. However, without any explanation, it calculated plaintiff\u2019s wages under the first method of the statute and justified this calculation under the \u201ccatchall\u201d provision of the statute. We note that this method of calculation is not permitted under N.C. Gen. Stat. \u00a7 97-2(5) in computing plaintiff\u2019s average weekly wage, because plaintiff worked less than fifty-two weeks prior to his injury. While there existed an \u201cexceptional reason\u201d to resort to the final \u201ccatch-all\u201d method of the statute because of the part-time nature of plaintiffs employment, the Commission was not permitted to circumvent the statute when calculation under the first method was otherwise inappropriate. Accordingly, those portions of the Full Commission\u2019s opinion and award based on a calculation of plaintiff\u2019s average weekly wage at $58.01 are reversed and this matter is remanded for recalculation of plaintiff\u2019s average weekly wage.\nPlaintiff next contends that the Commission erred in concluding that defendant is entitled to a credit for overpayment of benefits. Plaintiff therefore contends'that he is entitled to keep temporary total disability benefits that were paid to him in the amount of $492.00 from 24 October 1996 through 24 September 1997. We disagree.\nThe decision of whether to grant a credit is within the sound discretion of the Commission. Such decision to grant or deny a credit will not be disturbed on appeal in the absence of an abuse of discretion. Moretz v. Richards & Associates, 74 N.C. App. 72, 75, 327 S.E.2d 290, 293 (1985), aff\u2019d as modified, 316 N.C. 539, 342 S.E.2d 844 (1986). This Court has held that N.C. Gen. Stat. \u00a7 97-42 is the only statutory authority for allowing an employer in North Carolina any credit against workers\u2019 compensation payments due an injured employee. Johnson v. IBM, 97 N.C. App. 493, 389 S.E.2d 121, 122 (1990), disc. review denied, 327 N.C. 429, 395 S.E.2d 679 (1990). N.C. Gen. Stat. \u00a7 97-42 provides:\nPayments made by the employer to the injured employee during the period of his disability . . . which by the terms of this Article were both due and payable when made, may, subject to the approval of the Commission be deducted from the amount to be paid as compensation.\nN.C. Gen. Stat. \u00a7 97-42 (1999). The rationale behind the statute is to encourage voluntary payments by the employer during the time of the worker\u2019s disability. See Gray v. Carolina Freight Carriers, 105 N.C. App. 480, 484, 414 S.E.2d 102, 104 (1992). In Foster v. Western-Electric Co., 320 N.C. 113, 115, 357 S.E.2d 670, 672 (1987), the North Carolina Supreme Court held that if defendant has not accepted plaintiff\u2019s injury as compensable under workers\u2019 compensation at the time the payments were made, or if there has not been a determination of compensability by the Industrial Commission, then defendant-employer should be awarded a credit. See also, Lowe v. BE&K Construction Co., 121 N.C. App. 570, 576, 468 S.E.2d 396, 399 (1996).\nIn its opinion and award, the Commission made the following finding of fact:\nEquitable estoppel arises when one party, by his acts, representations, or silence when he should speak, intentionally, or through culpable negligence, induces a person to believe certain facts exist, and that person reasonably relies on and acts on those beliefs to his detriment. Long v. Trantham, 226 N.C. 510, 513, 39 S.E.2d 384, 387 (1946). It is based on the theory that \u201cit would be against principles of equity and good conscience to permit a party against whom estoppel is asserted to avail himself of what . . . otherwise [might] be his undisputed legal rights.\u201d Redevelopment Comm\u2019n v. Hannaford, 29 N.C. App. 1, 3, 222 S.E.2d 752, 754 (1976). Since plaintiff did not rely to his detriment on any action or representation made by defendants, equitable estoppel does not apply[.]\nWe hold that the record supports a finding that plaintiff was on notice that his benefits were subject to wage verification. Plaintiff sustained his injury on 21 September 1996 and defendant voluntarily began payments on 24 October 1996. From 24 October 1996 through 24 September 1997, weekly compensation benefits were paid to plaintiff by defendant subject to verification as documented on the Form 60 Agreement. Thus, we are unable to conclude that the Commission abused its discretion in awarding defendant a credit for any overpayment of benefits. This assignment of error is therefore overruled.\nAccordingly, we hold that the average weekly wage computed by the Commission is not supported by the evidence and the matter must therefore be remanded for recalculation of plaintiff\u2019s average weekly wage and resulting credit toward overpayment of benefits. On remand the Commission shall take such additional evidence as necessary, specify the method employed, and make sufficient findings in order to support its opinion and award.\nAffirmed in part, reversed in part, and remanded.\nChief JUDGE EAGLES and JUDGE THOMAS concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Kathleen Shannon Glancy and Patterson, Harkavy & Lawrence, L.L.P., by Martha A. Geer for plaintiff-appellant.", "Hedrick & Blackwell, L.L.P., by Sherman Lee Griner and Jerry L. Wilkins, Jr. for defendant-appellee." ], "corrections": "", "head_matter": "PHILLIP E. LOCH, Plaintiff v. ENTERTAINMENT PARTNERS, Employer; CNA INSURANCE COMPANIES, Carrier; Defendants\nNo. COA00-1113\n(Filed 28 December 2001)\n1. Workers\u2019 Compensation\u2014 average weekly wage \u2014 sporadic employment\nThe Industrial Commission erred in its calculation of a workers\u2019 compensation plaintiffs average weekly wage where plaintiff was an actor whose employment was sporadic. The Commission was justified in resorting to an alternate method of determining plaintiff\u2019s average weekly wage, but it is not clear which method the Commission used. N.C.G.S. \u00a7 97-2(5).\n2. Workers\u2019 Compensation\u2014 overpayment of benefits \u2014 credit to employer\nThe Industrial Commission did not err by awarding a workers\u2019 compensation defendant a credit for overpayment of benefits where plaintiff was on notice that his benefits were subject to wage verification.\nAppeal by plaintiff from an opinion and award entered 12 July 1999 by the North Carolina Industrial Commission. Heard in the Court of Appeals 20 August 2001.\nKathleen Shannon Glancy and Patterson, Harkavy & Lawrence, L.L.P., by Martha A. Geer for plaintiff-appellant.\nHedrick & Blackwell, L.L.P., by Sherman Lee Griner and Jerry L. Wilkins, Jr. for defendant-appellee." }, "file_name": "0106-01", "first_page_order": 136, "last_page_order": 144 }