{
  "id": 8158181,
  "name": "CURRY SHAW, Employee, Plaintiff v. U.S. AIRWAYS, INC., Employer, AMERICAN PROTECTION INSURANCE COMPANY, Carrier, Defendants",
  "name_abbreviation": "Shaw v. U.S. Airways, Inc.",
  "decision_date": "2007-11-06",
  "docket_number": "No. COA06-1407",
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  "last_page": "496",
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          "page": "\u00a7 9",
          "parenthetical": "\"shortly after our decision in Ashby, the Legislature enacted P.L. 1991, ch. 615, \u00a7 A-20, providing that fringe benefits may not be included in an employee's average weekly wage\""
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          "page": "995",
          "parenthetical": "\"shortly after our decision in Ashby, the Legislature enacted P.L. 1991, ch. 615, \u00a7 A-20, providing that fringe benefits may not be included in an employee's average weekly wage\""
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        7895887
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          "page": "399",
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        }
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    {
      "cite": "Del. Code Ann. tit. 19, \u00a7 2302",
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          "page": "485",
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    {
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          "parenthetical": "\" 'The object of all interpretation of statutes is to ascertain the meaning and intention of the Legislature, and to enforce it.' \" (quoting Kearney v. Vann, 154 N.C. 311, 315, 70 S.E. 747, 749 (1911))"
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        11299058
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          "page": "629"
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          "page": "199"
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      "CURRY SHAW, Employee, Plaintiff v. U.S. AIRWAYS, INC., Employer, AMERICAN PROTECTION INSURANCE COMPANY, Carrier, Defendants"
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      {
        "text": "GEER, Judge.\nPlaintiff Curry Shaw appeals from an opinion and award of the North Carolina Industrial Commission in which the Commission concluded that employer-funded contributions to plaintiff\u2019s two retirement accounts should not be included in the calculation of plaintiff\u2019s \u201caverage weekly wage,\u201d a term defined under N.C. Gen. Stat. \u00a7 97-2(5) (2005). Whether retirement contributions ought to be considered as part of an injured worker\u2019s average weekly wage is a question not previously considered by the North Carolina appellate courts. Because we have concluded that not all fringe benefits are required to be excluded from an average weekly wage calculation and because the Commission did not apply the proper analysis in determining whether the contributions at issue in this case should be excluded, we reverse and remand the matter to the Commission so that it may undertake the proper inquiry.\nContrary to the suggestion in the dissenting opinion, nothing in this opinion holds that the benefits at issue in this case should be included in calculating plaintiffs average weekly wage. We leave that question for the Commission to decide after applying the test mandated by Kirk v. N.C. Dep\u2019t of Corr., 121 N.C. App. 129, 465 S.E.2d 301 (1995), disc. review improvidently allowed, 344 N.C. 624, 476 S.E.2d 105 (1996), and Morrison-Knudsen Constr. Co. v. Dir., Office of Workers\u2019 Comp. Programs, 461 U.S. 624, 76 L. Ed. 2d 194, 103 S. Ct. 2045 (1983).\nFacts\nPlaintiff, a fleet service worker for defendant-employer U.S. Airways, suffered a compensable back injury on 12 July 2000 while attempting to lift a piece of heavy luggage from a baggage belt. Following the injury, plaintiff had a disc laminectomy and a fusion with hardware implantation. Because of his injury-related pain, plaintiff has received nerve root injections, undergone radio-frequency nerve obliteration procedures, and taken medication. At the time of the hearing before the deputy commissioner on 25 May 2005, plaintiff was still receiving temporary total disability due to the 12 July 2000 injury.\nThe terms of plaintiffs employment were set out in the \u201c1999 Agreement Between U.S. Airways, Inc. and The International Association of Machinists and Aerospace Workers\u201d (the \u201cAgreement\u201d). Under the Agreement, plaintiff was entitled to participate in two separate retirement programs: an \u201cEmployee Savings Plan\u201d and an \u201cEmployee Pension Plan.\u201d\nThe Savings Plan is a 401(k) plan that allows employees to defer a certain percentage of their eligible income for retirement. Defendant-employer, in turn, will match 50% of the employee\u2019s personal contribution, up to 4% of the employee\u2019s eligible income, and will deposit the \u201cmatching\u201d sum into the employee\u2019s savings account. In other words, the amount that defendant-employer is obligated to deposit into the savings account could vary between 0% and 2% depending on whether and how much the employee personally contributed.\nThe Pension Plan, unlike the Savings Plan, is funded entirely by contributions from defendant-employer. Because fleet service workers such as plaintiff are eligible for the Pension Plan, defendant-employer automatically made the obligatory contributions into plaintiff\u2019s pension account. The amount contributed to each employee\u2019s account is calculated based on the employee\u2019s income and age.\nDespite their differences, the Savings and Pension Plans have some common features. Fidelity Investment Services administers the accounts in each plan. Fidelity offers a mix of pre-selected investment options, including mutual funds, stocks, and bonds, in which the employees can invest their personal contributions as well as defendant-employer\u2019s contributions. Although the investment options available to employees are the same under both the Savings and the Pension Plan, Fidelity maintains the accounts for each plan separately.\nShortly after plaintiff\u2019s injury, defendants filed a Form 22 that reported plaintiff\u2019s average weekly wage as $825.55, a sum omitting defendant-employer\u2019s contributions to plaintiff\u2019s Savings Plan account and to plaintiff\u2019s Pension Plan account. In the 52 weeks preceding plaintiff\u2019s injury, defendant-employer had contributed $1,798.33 to plaintiff\u2019s Pension Plan account and an additional $899.17 to plaintiff\u2019s Savings Plan account. Inclusion of these contributions would have increased plaintiff\u2019s average weekly wage by $51.87 or the total amount of defendant-employer\u2019s retirement contributions divided by 52.\nOn 23 November 2004, plaintiff requested a hearing because the parties were unable to agree on whether defendant-employer\u2019s retirement contributions were part of his average weekly wage. Following a 25 May 2005 hearing, Deputy Commissioner Phillip A. Holmes entered an opinion and award concluding that defendant-employer\u2019s contributions to the retirement accounts should not be included in the calculation of plaintiff\u2019s average weekly wage.\nPlaintiff appealed to the Full Commission, which entered an opinion and award agreeing with the deputy commissioner. The Commission held that the retirement contributions represented a \u201cfringe benefit . . . that should not be included in the calculation of [plaintiff\u2019s] average weekly wage\u201d and further determined that \u201c[p]laintiff\u2019s correct average weekly wage is $825.55,\u201d the amount originally reported by defendants. Plaintiff timely appealed to this Court from the Commission\u2019s opinion and award.\nDiscussion\nThe only question arising in this appeal is whether defendant-employer\u2019s contributions to plaintiff\u2019s two retirement accounts (Savings and Pension) should be included in his \u201caverage weekly wage.\u201d The calculation of an injured worker\u2019s compensation under our Workers\u2019 Compensation Act is based on his or her \u201caverage weekly wage\u201d as defined by N.C. Gen. Stat. \u00a7 97-2(5).\nN.C. Gen. Stat. \u00a7 97-2(5) \u201csets forth in priority sequence five methods by which an injured employee\u2019s average weekly wages are to be computed, and in its opening lines, this statute defines or states the meaning of \u2018average weekly wages.\u2019 \u201d McAninch v. Buncombe County Sch., 347 N.C. 126, 129, 489 S.E.2d 375, 377 (1997). In this case, plaintiff argues that defendant-employer\u2019s retirement contributions should be included when calculating his average weekly wage pursuant to the first method. Under the first method, \u201c \u2018[ajverage weekly wages\u2019 shall mean the earnings 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.\u201d N.C. Gen. Stat. \u00a7 97-2(5). See also McAninch, 347 N.C. at 129, 489 S.E.2d at 377 (noting \u201cthe primary method, set forth in the first sentence, is to calculate the total wages of the employee for the fifty-two weeks of the year prior to the date of injury and to divide that sum by fifty-two\u201d).\nWhile the word \u201cearnings\u201d appears to be the key concept in defining \u201caverage weekly wage,\u201d the Workers\u2019 Compensation Act does not specify what is, or what is not, encompassed within the term \u201cearnings.\u201d Our task is to determine whether the legislature intended to exclude from \u201cearnings\u201d defendant-employer\u2019s contributions to plaintiff\u2019s retirement accounts. Morris v. Laughlin Chevrolet Co., 217 N.C. 428, 430, 8 S.E.2d 484, 485 (1940) (\u201c \u2018The object of all interpretation of statutes is to ascertain the meaning and intention of the Legislature, and to enforce it.\u2019 \u201d (quoting Kearney v. Vann, 154 N.C. 311, 315, 70 S.E. 747, 749 (1911))).\nUnlike other jurisdictions, North Carolina has not, in its Workers\u2019 Compensation Act, chosen to expressly exclude fringe benefits from an average weekly wage calculation. See, e.g., 76 Del. Laws ch. 1, \u00a7 5 (2007) (amending Del. Code Ann. tit. 19, \u00a7 2302) (\u201c \u2018Average weekly wage\u2019 means the weekly wage earned by the employee at the time of the employee\u2019s injury at the job in which the employee was injured, including overtime pay, gratuities and regularly paid bonuses . . . but excluding all fringe or other in-kind employment benefits.\u201d); N.M. Stat. Ann. \u00a7 52-1-20 (2003) (\u201c \u2018average weekly wage\u2019 means the weekly wage earned by the worker at the time of the worker\u2019s injury, including overtime pay and gratuities but excluding all fringe or other employment benefits and bonuses\u201d); 77 Pa. Stat. Ann. \u00a7 582 (2001) (\u201cThe terms \u2018average weekly wage\u2019 and \u2018total wages,\u2019 . . . [shall not] include fringe benefits, including, but not limited to, employer payments for or contributions to a retirement, pension, health and welfare, life insurance, social security or any other plan for the benefit of the employee or his dependents . . . .\u201d). The United States Congress has also excluded fringe benefits for purposes of calculating compensation under the federal Longshore and Harbor Workers\u2019 Compensation Act. See 33 U.S.C. \u00a7 902(13) (2000) (\u201cThe term wages does not include fringe benefits, including (but not limited to) employer payments for or contributions to a retirement, pension, health and welfare, life insurance, training, social security or other employee or dependent benefit plan . . . .\u201d).\nAlthough our General Assembly did not expressly address fringe benefits in the Workers\u2019 Compensation Act, it did so in the Employment Security Act. The Employment Security Act specifically excludes many fringe benefits from the definition of \u201cwages\u201d set out in that Act: \u201cThe term \u2018wages\u2019 shall not include the amount of any payment with respect to services to, or on behalf of, an individual in its employ under a plan or system established by an employing unit. . . on account of (i) retirement, or (ii) sickness or accident disability, or (iii) medical and hospitalization expenses in connection with sickness or accident disability or (iv) death.\u201d N.C. Gen. Stat. \u00a7 96-8(13)(a) (2005). See also N.C. Gen. Stat. \u00a7 96-8(13)(b) (excluding other employee benefits from definition of \u201cwages\u201d under Employment Security Act). The Employment Security Act demonstrates that the General Assembly knows that employee benefits are an issue with respect to the concept of wages and knows how to specifically exclude them from a definition of wages when it intends to do so. We, therefore, cannot, with respect to the Workers\u2019 Compensation Act, simply presume the General Assembly intended to exclude all fringe benefits from the term \u201cearnings.\u201d See Deese v. Southeastern Lawn & Tree Expert Co., 306 N.C. 275, 278, 293 S.E.2d 140, 143 (1982) (\u201c[I]t is not reasonable to assume that the legislature would leave an important matter regarding the administration of the [Workers\u2019 Compensation] Act open to inference or speculation; consequently, the judiciary should avoid \u2018ingrafting upon a law something that has been omitted, which [it] believes ought to have been embraced.\u2019 \u201d (quoting Shealy v. Associated Transport, Inc., 252 N.C. 738, 741, 114 S.E.2d 702, 705 (I960))).\nIndeed, the statute itself indicates that at least some fringe benefits may be encompassed within the average weekly wage calculation. The statute provides that: \u201cWherever allowances of any character made to an employee in lieu of wages are specified part of the wage contract, they shall be deemed a part of his earnings.\u201d N.C. Gen. Stat. \u00a7 97-2(5).\nThe principal North Carolina case to consider whether an employer-funded fringe benefit should be included within an average weekly wage calculation is Kirk v. N.C. Dep\u2019t of Corr., 121 N.C. App. 129, 465 S.E.2d 301 (1995), disc. review improvidently allowed, 344 N.C. 624, 476 S.E.2d 105 (1996). In Kirk, the plaintiff\u2014 the next of kin of a deceased state worker \u2014 sought to include the State\u2019s contributions to the employee\u2019s health insurance in the computation of the average weekly wage. While this Court concluded that the health insurance contributions should not be included when calculating the employee\u2019s average weekly wage, nothing in Kirk suggests that all fringe benefits should be excluded from the average weekly wage computation.\nAccordingly, neither the statute nor this Court\u2019s prior opinions supports the Full Commission\u2019s conclusion that defendant-employer\u2019s contributions to the two plans should not be included within the average weekly wage calculation simply because they constituted fringe benefits. The question whether N.C. Gen. Stat. \u00a7 97-2(5) encompasses retirement contributions such as those in this case is one of first impression. Other jurisdictions have considered the question and reached conflicting conclusions. See Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 230, 472 S.E.2d 397, 399 (1996) (consulting foreign case law to address question of first impression under North Carolina Workers\u2019 Compensation Act); South Carolina Ins. Co. v. Smith, 67 N.C. App. 632, 634, 313 S.E.2d 856, 858 (\u201cAs the particular question before us has never been confronted by the courts of this State, in addition to reviewing pertinent North Carolina authority, we have examined cases from other jurisdictions . . . .\u201d), disc. review denied, 311 N.C. 306, 317 S.E.2d 682 (1984).\nThe leading treatise on workers\u2019 compensation law makes the following general observation: \u201cIn computing actual earnings as the beginning point of wage-basis calculations, there should be included not only wages and salary but any thing of value received as consideration for the work, as, for example, tips, bonuses, commissions and room and board, constituting real economic gain to the employee\u201d 5 Arthur Larson and Lex K. Larson, Larson\u2019s Workers\u2019 Compensation Law \u00a7 93.01[2][a], at 93-19 (2005) (emphasis added). Nonetheless, many jurisdictions have held that pension or retirement plan contributions do not belong to the category of valuable \u201cthings\u201d that form the basis of wages for purposes of calculating workers\u2019 compensation benefits. See, e.g., Luce v. United Techs. Corp., 247 Conn. 126, 133-41, 717 A.2d 747, 752-55 (1998) (construing Connecticut\u2019s \u201caverage weekly wage\u201d definition to exclude insurance and pension benefits); Barnett v. Sara Lee Corp., 97 Md. App. 140, 148, 627 A.2d 86, 90-91 (holding that \u201caverage weekly wage\u201d does not include pension contributions and noting that \u201c[h]ad it so intended, the Maryland legislature could have specified fringe benefits such as pension contributions within the \u2018wages\u2019 definition\u201d), cert. denied, 332 Md. 702, 632 A.2d 1207 (1993); Antilion v. N.M. State Highway Dep\u2019t, 113 N.M. 2, 5-6, 820 P.2d 436, 440 (1991) (holding that contributions to state retirement plan \u201care not within the definition of \u2018wages\u2019 \u201d under New Mexico\u2019s workers\u2019 compensation scheme).\nThe leading case espousing the view that the value of \u201cfringe benefits,\u201d such as employer-funded pension or insurance benefits, should not be factored into wage calculations is the United States Supreme Court\u2019s decision in Morrison-Knudsen Constr. Co. v. Dir., Office of Workers\u2019 Comp. Programs, 461 U.S. 624, 76 L. Ed. 2d 194, 103 S. Ct. 2045 (1983). In that case, the Supreme Court held that employer contributions to union trust funds for health and welfare, pensions, and training were not encompassed by the then-existing definition of \u201cwages\u201d in the Longshore and Harbor Workers\u2019 Compensation Act, 33 U.S.C. \u00a7 902(13). Id. at 629-30, 76 L. Ed. 2d at 199, 103 S. Ct. at 2048-49.\nThe statute defined \u201cwages\u201d as \u201c \u2018the money rate at which the service rendered is recompensed . . . including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer ....\u2019\u201d Id. at 629, 76 L. Ed. 2d at 199, 103 S. Ct. at 2048 (quoting 33 U.S.C. \u00a7 902(13)). Thus, the \u201cnarrow question\u201d before the Court was whether such employer \u201ccontributions are a \u2018similar advantage\u2019 to \u2018board, rent, housing, [or] lodging.\u2019 \u201d Id. at 630, 76 L. Ed. 2d at 199, 103 S. Ct. at 2048 (alteration original). Although the Court reviewed relevant legislative history as well as statutory structure and underlying policy goals, the Court primarily decided as a matter of plain meaning that the employer contributions to the union trust funds were not \u201cwages\u201d because, unlike board or lodging, these contributions did not have a \u201cpresent value . . . readily convertible] into a cash equivalent.\u201d Id., 103 S. Ct. at 2049.\nAccording to Larson\u2019s, \u201c[t]he Supreme Court\u2019s examination of the \u2018wages\u2019 definition within the Longshore Act represents the majority position on the treatment of fringe benefits.\u201d Larson\u2019s, \u00a7 93.01[2][b], at 93-22. Larson\u2019s itself generally agrees with the Morrison-Knudsen ruling and cautions against judicial interpretation of the concept of \u201cwages\u201d to indiscriminately include fringe benefits:\nWorkers\u2019 compensation has been in force in the United States for over eighty years,.and fringe benefits have been a common feature of American industrial life for most of that period. Millions of compensation benefits have been paid during this time. Whether paid voluntarily or in contested and adjudicated cases, they have always begun with a wage basis calculation that made \u201cwage\u201d mean the \u201cwages\u201d that the worker lives on and not miscellaneous \u201cvalues\u201d that may or may not someday have a value to him or her depending on a number of uncontrollable contingencies. Before a single court takes it on itself to say, \u201cWe now tell you that, although you didn\u2019t know it, you have all been wrongly calculating wage basis in these millions of cases, and so now, after eighty years, we are pleased to announce that we have discovered the true meaning of \u2018wage\u2019 that somehow eluded the rest of you for eight decades,\u201d that court would do well to undertake a much more penetrating analysis than is visible in the [D.C.] Circuit Court\u2019s opinion in [Morrison-Knudsen] [i.e., the opinion reversed by the Supreme Court] of why this revelation was denied to everyone else for so long.\nId., \u00a7 93.01[2][b], at 93-21 to -22.\nContrary to the majority view, some jurisdictions have held that fringe benefits should be included when calculating the amount of the workers\u2019 compensation benefit, at least where the worker\u2019s right to such benefits is vested or where the amount of benefits was based on the units of time worked. See Ragland v. Morrison-Knudsen Co., 724 P.2d 519, 520 (Alaska 1986) (holding \u201cthat the readily identifiable and calculable value of fringe benefits,\u201d in which worker was indisputably vested and which were the product of a collective bargaining agreement, \u201cshould be included in the wage determination\u201d); Ashby v. Rust Eng\u2019g Co., 559 A.2d 774, 774-76 (Me. 1989) (where collective bargaining agreement committed employer to pay a certain amount \u201cto various union-established funds for employee health benefits, pension benefits, etc.,\u201d and where such payments were based on \u201cunit of employee time worked,\u201d court held that \u201csuch payments fall under the definition of \u2018average weekly wages, earnings or salary\u2019 for purposes of calculating compensation benefits\u201d), superceded by statute as stated in Hincks v. Robert Mitchell Co., 1999 ME 172, \u00a7 9, 740 A.2d 992, 995 (1999) (\u201cshortly after our decision in Ashby, the Legislature enacted P.L. 1991, ch. 615, \u00a7 A-20, providing that fringe benefits may not be included in an employee\u2019s average weekly wage\u201d).\nWe do not consider this issue on an entirely blank slate. This Court in Kirk, although not bound by Morrison-Knudsen in construing the North Carolina Workers\u2019 Compensation Act, found the United States Supreme Court\u2019s analysis relevant to the determination whether it would be \u201cunfair\u201d to exclude Kirk\u2019s health insurance benefits from the calculation of his average weekly wage. More specifically, the Kirk Court relied on the \u201creasoning\u201d in Morrison-Knudsen \u201cthat wage means \u2018the money rate at which service is recompensed under the contract of, hiring\u2019 and not \u2018fringe benefits that cannot be converted into a cash equivalent.\u2019 \u201d Kirk, 121 N.C. App. at 136, 465 S.E.2d at 306 (quoting Morrison-Knudsen, 461 U.S. at 629, 76 L. Ed. 2d at 199, 103 S. Ct. at 2048). Applying this reasoning, Kirk held:\nA State employee receives the benefits of the State Health Plan only when needed. The value of this benefit cannot be quantified. After carefully considering the evidence, we cannot say that the Commission\u2019s failure to include such allowance produced an unfair result for the plaintiff. Thus, absent a finding that method two produces an unfair result, the Commission did not err by excluding the State\u2019s contributions to Kirk\u2019s Health Plan in the calculation of Kirk\u2019s average weekly wages.\nId.\nIn Kirk, the plaintiff did not argue that the health insurance contributions were \u201cearnings\u201d under N.C. Gen. Stat. \u00a7 97-2(5), as plaintiff has in this case. Rather, the plaintiff in Kirk contended that these contributions should be included pursuant to the \u201cfourth method\u201d for computing average weekly wage under \u00a7 97-2(5), arguing that it would be \u201cunfair\u201d to exclude them. Id. at 135, 465 S.E.2d at 305. The \u201cfourth method,\u201d which explicitly incorporates a \u201cfairness\u201d component, provides: \u201cwhere for exceptional reasons the foregoing [methods] 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.\u201d N.C. Gen. Stat. \u00a7 97-2(5).\nWhile Kirk did not directly analyze the term \u201cearnings\u201d as used within N.C. Gen. Stat. \u00a7 97-2(5), the decision may be fairly read as holding that the State-provided health insurance contributions were not \u201cearnings\u201d because they were \u201c \u2018fringe benefits that cannot be converted into a cash equivalent.\u2019 \u201d Kirk, 121 N.C. at 135, 465 S.E.2d at 305. Under Kirk, therefore, employee benefits must be considered on a case-by-case basis to determine whether they can be converted into a cash equivalent. If so, such benefits may be considered as part of the worker\u2019s average weekly wage.\nNeither Kirk nor Morrison-Knudsen elaborated on what it means to be capable of conversion into a cash equivalent. Although Morrison-Knudsen concluded that the pension plans at issue in that case could not be \u201cconverted into a cash equivalent on the basis of their market values,\u201d 461 U.S. at 630, 76 L. Ed. 2d at 199, 103 S. Ct. at 2049, the reasoning does not necessarily appear applicable to the terms of the retirement accounts in this case. The Supreme Court in Morrison-Knudsen rejected the respondent\u2019s suggestion that the benefits could be converted into a cash value \u201cby reference to the employer\u2019s cost of maintaining these funds or to the value of the employee\u2019s expectation interests in them . . . .\u201d Id., 76 S.E.2d at 199-200, 103 S. Ct. at 2049. The Court concluded that the employer\u2019s cost \u201cmeasures neither the employee\u2019s benefit nor his compensation.\u201d The Court explained:\nIt does not measure the benefit to the employee because his family could not take the 684: per hour earned by Mr. Hilyer to the open market to purchase private policies offering similar benefits to the group policies administered by the union\u2019s trustees. It does not measure compensation because the collective-bargaining agreement does not tie petitioner\u2019s costs to its workers\u2019 labors. ... He derives benefit from the Pension and Disability Fund according to the \u201cpension credits\u201d he earns. These pension credits are not correlated to the amount of the employer\u2019s contribution; the employer pays benefits for every hour the employee works, while the employee earns credits only for the first 1,600 hours of work in a given year. Furthermore, although the employer is never refunded money that has been contributed, the employee can lose credit if he works less than 200 hours in a year or fails to earn credit for four years. Significantly, the employee loses all advantage if he leaves his employment before he attains age 40 and accumulates 10 credits.\nId. at 630-31, 76 L. Ed. 2d at 200, 103 S. Ct. at 2049.\nBy contrast, in this case, the record contains evidence from which the Commission could find that the employer\u2019s cost in at least the Pension Plan measures the employee\u2019s benefit and his compensation. Plaintiff offered evidence that the amount paid was tied to his specific labors \u2014 in other words, the hours that he worked. According to plaintiff, for every hour that he worked, he received a specific amount of money. The amount of money he earned was then deposited into plaintiff\u2019s own, individual account and not an overall trust fund. If he were given this amount directly, he could invest it in a similar account, such as the 401(k) Savings Plan in which plaintiff was already permitted to deposit a percentage of his earnings or a private IRA account. Contrary to the Pension and Disability Fund in Morrison-Knudsen, plaintiff will not lose any of the amounts deposited in those accounts if he leaves his employment. The Commission did not consider the Supreme Court\u2019s discussion of the \u201cemployer\u2019s cost\u201d and whether that reasoning fits the evidence in this case regarding the plan.\nIn Morrison-Knudsen, the Supreme Court also rejected the respondent\u2019s alternative argument that the value of the trust funds could be calculated based on the value of \u201cthe employee\u2019s expectation interest\u201d in them, holding that the employee\u2019s interest is \u201cat best speculative,\u201d because employees have no voice in the administration of these plans and thus have no control over the level of funding or the benefits provided and because \u201cthe value of each fund depends on factors that are unpredictable.\u201d Id. at 631, 76 L. Ed. 2d at 200, 103 S. Ct. at 2049. For the Pension and Disability Fund at issue in that case, the Court observed that its value \u201cdepends on whether [the employee\u2019s] interest vested . . . .\u201d Id.\nThe Commission, in this case, appears to have focused entirely on this allusion to \u201cspeculative\u201d benefit to the employee, a factor also considered by this Court in Kirk. Yet, the Commission did not address the fact that plaintiffs interest in the retirement benefits, in contrast to Morrison-Knudsen, was vested, thus eliminating the sole concern of the Supreme Court with respect to pension plans.\nThe speculative nature of any benefit was the primary concern of this Court in Kirk. Although Kirk found that the value of the benefits derived from having state-funded health insurance \u201ccannot be quantified,\u201d such benefits were deemed unquantifiable because the state employee would only benefit from the insurance contributions if, and only if, he became sick and needed to visit a doctor. Kirk, 121 N.C. App. at 136, 465 S.E.2d at 306 (\u201cA State employee receives the benefits of the State Health Plan only when needed.\u201d).\nSimilarly, in parsing Congress\u2019 exclusion of fringe benefits from \u201cwages\u201d under the Longshore Act, the Fourth Circuit in Universal Maritime Serv. Corp. v. Wright, 155 F.3d 311, 324 (4th Cir. 1998) (emphasis added), explained that \u201c[t]he value that an employee derives from employer contributions to retirement, pension, life insurance, and similar benefit plans is too speculative to be readily converted into a cash equivalent because the employee\u2019s right to obtain tangible benefits is contingent on fulfilling conditions that might never be satisfied.\" The Fourth Circuit ultimately concluded: \u201cWhen an employee\u2019s right to a tangible benefit does not depend on contingent factors . . ., the value of the benefit is not too speculative to be readily converted into, a cash equivalent under the [Longshore] Act. As long as the employee earns an unconditional entitlement to a tangible benefit (even though the benefit may not be received until sometime in the future), the value of the benefit can be identified and calculated as a part of the employee\u2019s wages.\" Id. at 324 n.14 (emphasis added).\nThe Commission, however, in determining that the value of the benefit was speculative considered only the feasibility of estimating how much plaintiff could actually withdraw from his retirement accounts at any given time in the future, as reflected in the following findings of fact:\n10. There was a period of 30 days between a participant\u2019s termination date and when employees could actually gain access to the funds in their retirement account. This period allowed defendant-employer\u2019s payroll department time to make any necessary adjustments before the employee\u2019s account was withdrawn. Also, if an employee terminated employment before the age of 55 and chose to cash out his retirement account, he had 20% of the value withheld for taxes and was subject to an additional 10% early withdrawal penalty.\n11. Although it would be possible to add up all of the various contributions and deferrals made into an employee\u2019s retirement fund over the. course of his employment, the Commission finds that estimating how much an employee could actually withdraw at any given time would be virtually impossible because the amount could be higher or lower based upon the employee\u2019s investment gains and losses. In addition, any amount plaintiff has in his retirement account is subject to applicable state and federal taxes, as well as a 10% early withdrawal penalty if he cashed out prior to the age of 55, further complicating the quantification of his actual benefit.\nIn focusing on the question of quantification at some point in time in the future, the Commission lost sight of the more important question: plaintiff\u2019s actual earning capacity. See Derebery v. Pitt County Fire Marshall, 318 N.C. 192, 197, 347 S.E.2d 814, 817 (1986) (explaining that \u201cthe purpose of the average weekly wage basis\u201d is to serve \u201cas a measure of the injured employee\u2019s earning capacity\u201d). The issue whether the employer\u2019s contributions will be subject to \u201cinvestment gains and losses\u201d in the future cannot be the determinative factor.\nFor example, there is no dispute here that the portion of plaintiffs wages that he chose to contribute to the Savings Plan should be included in his average weekly wage. Yet, the Commission\u2019s analysis would apply equally to those contributions. Just like defendant-employer\u2019s contributions, plaintiff\u2019s personal contributions will be subject to the vicissitudes of the stock market and would be subject to taxes and penalties if withdrawn early. Under the Commission\u2019s rationale, plaintiff\u2019s personal contributions to his Savings Plan account would have to be excluded from his \u201cearnings\u201d because intervening market fluctuations might result in \u201cinvestment gains and losses.\u201d Nevertheless, we of course include as part of an employee\u2019s earnings the portion of his wages that he seeks to contribute to a 401(k) plan, such as the Savings Plan in this case.\nThe relevant point in time for \u201cvaluation\u201d of those wages voluntarily contributed to the Savings Plan is the amount paid by the employer to the employee on payday. Logically, therefore, the question whether a benefit paid by the employer is convertible into a cash equivalent should be considered as of the date the employer made the contribution and not some unspecified date in the future. See Morrison-Knudsen, 461 U.S. at 630, 76 L. Ed. 2d at 199, 103 S. Ct. at 2049 (focusing on whether \u201c[t]he present value\u201d of the employee benefits is \u201creadily converted into a cash equivalent\u201d).\nWe believe the Universal Maritime test is an appropriate first step in determining whether an employee benefit can meet the standard set out in Morrison-Knudsen and adopted in Kirk: Did the employee earn \u201can unconditional entitlement to a tangible benefit (even though the benefit [might] not be received until sometime in the future)?\u201d Universal Maritime, 155 F.3d at 324 n.14. If so, then Morrison-Knudsen\u2019s and Kirk\u2019s concern about the speculative nature of a benefit will have been addressed. In determining further whether the present value of the benefit is readily converted into a cash equivalent, the Commission should apply the reasoning in Morrison-Knudsen to see whether the proposed valuation \u201cmeasures . . . the employee\u2019s benefit [or] his compensation.\u201d 461 U.S. at 630, 76 L. Ed. 2d at 200, 103 S. Ct. at 2049.\nSuch an analysis upholds the basic purpose of N.C. Gen. Stat. \u00a7 97-2(5), which is to ensure that, in determining the amount of com: pensation due, the result achieved is fair and just to both the injured worker and the employer. See McAninch, 347 N.C. at 130, 489 S.E.2d at 378 (\u201cUltimately, the primary intent of this statute is that results are reached which are fair and just to both parties.\u201d); Loch v. Entm\u2019t Partners, 148 N.C. App. 106, 110, 557 S.E.2d 182, 185 (2001) (\u201cThe 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.\u201d).\nThe exclusion of tangible, unconditional benefits from an employee\u2019s pre-injury \u201cearnings\u201d could, in our view, unfairly hurt workers whose employment contracts call for greater amounts of so-called \u201cfringe\u201d benefits and lesser amounts of cash remuneration. Such an average weekly wage would not necessarily provide an accurate measure of earning capacity. On the other hand, by limiting inclusion to benefits that meet the concerns set forth in Morrison-Knudsen and Kirk, employers are protected from an unreasonable expansion of the concept of \u201cearnings.\u201d\nWe hold, in short, that the Commission acted under a misapprehension of the law when it concluded that defendant-employer\u2019s contributions to plaintiff\u2019s two retirement accounts should not be included in the calculation of plaintiffs average weekly wage. To the extent that the Commission believed that no fringe benefits should be included, that conclusion is not supported by the statute or prior case law. Further, the Commission did not consider proper factors in determining that the retirement contributions could not be readily converted into a cash equivalent. In this case, like the respondent in Morrison-Knudsen, plaintiff argues that the amount paid by the employer is a proper measure of value. After determining whether plaintiff was entitled to an unconditional tangible benefit, the Commission should have followed the reasoning in Morrison-Knudsen in assessing whether the employer\u2019s contributions measure plaintiffs benefit or his compensation.\nIt is well established that where \u201cthe conclusions of the Commission are based upon a... misapprehension of the law, the case should be remanded so \u2018that the evidence [may] be considered in its true legal light.\u2019 \u201d Clark v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005) (quoting McGill v. Town of Lumberton, 215 N.C. 752, 754, 3 S.E.2d 324, 326 (1939)). Accordingly, we reverse the Commission\u2019s opinion and award and remand this matter so that the Commission may consider the evidence anew under the proper legal standard.\nWe note that, in some of its findings, the Commission did not consider each of the retirement plans individually. On remand, the Commission should make specific findings of fact relating to each plan and make a separate determination as to whether the employer contribution for that plan should be included in calculating the average weekly wage. We leave to the discretion of the Commission whether to accept additional evidence relating to this issue.\nAs a final matter, we urge the General Assembly to review N.C. Gen. Stat. \u00a7 97-2(5). Our Workers\u2019 Compensation Act is a comprehensive statutory \u201ccompromise between the employer\u2019s and employee\u2019s interests.\u201d Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 98, 348 S.E.2d 336, 341 (1986). The definition of \u201caverage weekly wage\u201d in N.C. Gen. Stat. \u00a7 97-2(5) is a central element of this compromise. In other states, the legislature has clarified its intent after their states\u2019 appellate courts have struggled to decide how to treat fringe benefits. Because of the prevalence of benefits such as those in this case, we believe guidance by the General Assembly in this area is critical.\nReversed and remanded with instructions.\nJudge ELMORE concurs.\nJudge HUNTER dissents in a separate opinion.\n. Curiously, defendants, in their brief, only defend the Commission\u2019s decision with respect to the exclusion of the Savings Plan matching contributions, even though plaintiff has challenged the omission of contributions to both the Savings and Pension Plan accounts.\n. In its first conclusion of law, the Commission noted that plaintiff presented no evidence and did not argue that the Savings and Pension Plan contributions were allowances \u201cin lieu of wages.\u201d Plaintiff also did not include any assignment of error on appeal purporting to argue that defendant-employer\u2019s contributions were allowances in lieu of wages. Accordingly, we have no occasion in this case to consider whether the contributions might qualify as such allowances. Cf. Greene v. Conlon Constr. Co., 184 N.C. App. 364, 366, 646 S.E.2d 652, 655 (2007) (holding that weekly payment of $320.00 to employee for meals and lodging was an allowance in lieu of wages).\n. Although Kirk, 121 N.C. App. at 136, 465 S.E.2d at 306, also held that \u201ccontributions by the State to insure an employee under a health plan is not an allowance made \u2018in lieu of wages\u2019 within the meaning of this statute,\u201d the allowance-in-lieu-of-wages provision, for reasons discussed above, is not at issue here.",
        "type": "majority",
        "author": "GEER, Judge."
      },
      {
        "text": "HUNTER, Judge,\ndissenting.\nBecause I would affirm the Full Commission\u2019s holding in this case, I respectfully dissent.\nI believe the majority opinion is based on misinterpretations of the relevant statute and case law, expanding the meaning of each to an impermissible and illogical extent. Any more detailed mandates on what may and may not be included in these computations must come from our legislature, not from this Court, and as such remand to the Commission is inappropriate.\nI. N.C. Gen. Stat. \u00a7 97-2(5)\nHere, with irrelevant portions removed, is the statute at issue:\n(5) Average Weekly Wages. \u2014 [First method:] \u201cAverage weekly wages\u201d shall mean the earnings 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 .... [Second method:] 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. [Third method:] 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 amount which during the 52 we\u00e9ks 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.\n[Fourth method:] 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.\nWherever allowances of any character made to an employee in lieu of wages are specified part of the wage contract, they shall be deemed a part of his earnings.\nN.C. Gen. Stat. \u00a7 97-2(5) (2005) (emphasis added).\nA. \u201cUnfairness\u201d\nThe majority opinion makes much of the fact that the statute authorizes the modification of the statutory methods of calculation where unfairness would result. This is a misinterpretation of the plain language of the statute.\nThe italicized portions of the statute above are the only sections in which \u201cfairness\u201d is discussed. As our Supreme Court has noted, the statute provides an \u201corder of preference\u201d for which method of calculation is to be used, and \u201cthe primary method, set forth in the first sentence, is to calculate the total wages of the employee for the fifty-two weeks of the year prior to the date of injury and to divide that sum by fifty-two.\u201d McAninch v. Buncombe County Schools, 347 N.C. 126, 129, 489 S.E.2d 375, 377 (1997). \u201cThe final method, as set forth [as the fourth method above], clearly may not be used unless there has been a finding that unjust results would occur by using the previously enumerated methods.\u201d Id. at 130, 489 S.E.2d at 378. Thus, the fourth method \u2014 that authorizing modification to prevent an unfair result\u2014 is a failsafe option to remedy those exceptional cases where the wage as calculated by one of the first three methods produced a result unfair to either party. That is, it is not a fourth alternative, equal to the others; it is a provision to resort to when to do otherwise would create injustice. It is also not a method for evaluating individual benefits for inclusion in this calculation.\nB. Plain language\nNorth Carolina General Statute 97-2(5) does not cover the types of benefits at issue in this case. As defendants note, in 1929, when the North Carolina Workers\u2019 Compensation Act was enacted, the type of pension plans at issue here were almost nonexistent, and none of the ensuing amendments in the many years since have held that employer contributions to such plans should be considered \u201cwages\u201d for the purpose of the Act, even though such contributions have been addressed in other statutes. See, e.g., N.C. Gen. Stat. \u00a7 96-8(13)(b)(l) (2005) (stating \u201c \u2018[w]ages\u2019 shall not include: 1. Any payment made to, or on behalf of, an employee . . . from or to a trust that qualifies under the conditions set forth in sections 401(a)(1) and (2) of the Internal Revenue Code\u201d). There is nothing in either the statute itself or the case law that supports such an expansion of the law. As the majority notes, many jurisdictions that have considered this question have held that general language in workers\u2019 compensation statutes should not be read to include pension contributions as part of \u201cwages.\u201d See, e.g., Barnett v. Sara Lee Corp., 97 Md. App. 140, 148-50, 627 A.2d 86, 90-91 (holding that \u201c[h]ad it so intended, the Maryland legislature could have specified fringe benefits such as pension contributions within the \u2018wages\u2019 definition\u201d and, since it did not, the Court would not expand the definition to include it) cert. denied, 332 Md. 702, 632 A.2d 1207 (1993); Luce v. United Techs. Corp., 247 Conn. 126, 717 A.2d 747 (1998); Antillon v. N.M. State Highway Dep\u2019t, 820 P.2d 436, 440 (N.M. Ct. App. 1991).\nThe portion o\u00ed Larson\u2019s Workers\u2019 Compensation Law quoted by the majority bears repeating here:\nWorkers\u2019 compensation has been in force in the United States for over eighty years, and fringe benefits have been a common feature of American industrial life for most of that period. Millions of compensation benefits have been paid during this time. Whether paid voluntarily or in contested and adjudicated cases, they have always begun with a wage basis calculation that made \u201cwage\u201d mean the \u201cwages\u201d that the worker lives on and not miscellaneous \u201cvalues\u201d that may or may not someday have a value to him or her depending on a number of uncontrollable contingencies. Before a single court takes it on itself to say, \u201cWe now tell you that, although you didn\u2019t know it, you have all been wrongly calculating wage basis in these millions of cases, and so now, after eighty years, we are pleased to announce that we have discovered the true meaning of \u2018wage\u2019 that somehow eluded the rest of you for eight decades,\u201d that court would do well to undertake a much more penetrating analysis than is visible in the [Circuit Court opinion in Morrison-Knudsen, reversed by the Supreme Court,] of why this revelation was denied to everyone else for so long.\n5 Arthur Larson and Lex K. Larson, Larson\u2019s Workers\u2019 Compensation Law \u00a7 93.01[2][b],'at 93-21 to -22 (2005). Even as it cites to this treatise, the majority opinion runs afoul of its warning. \u25a0\nC. Guiding principles\nThe majority cites to Deese v. Lawn and Tree Expert Co., 306 N.C. 275, 293 S.E.2d 140 (1982), as support for its statement that this Court cannot presume that our legislature intended to exclude all fringe benefits, including those at issue in the case at hand, from the definition of \u201cwages.\u201d This conclusion, however, goes against Deese\u2019s statement of this Court\u2019s guiding principles in this type of interpretation:\nThis Court has interpreted the statutory provisions of North Carolina\u2019s workers\u2019 compensation law on many occasions. In every instance, we have been wisely guided by several sound rules of statutory construction which bear repeating at the outset here. First, the Workers\u2019 Compensation Act should be liberally construed, whenever appropriate, so that benefits will not be denied upon mere technicalities or strained and narrow interpretations of its provisions. Second, such liberality should not, however, extend beyond the clearly expressed language of those provisions, and our courts may not enlarge the ordinary meaning of the terms used by the legislature or engage in any method of \u201cjudicial legislation. \u201d Third, it is not reasonable to assume that the legislature would leave an important matter regarding the administration of the Act open to inference or speculation; consequently, the judiciary should avoid \u201cingrafting upon a law something that has been omitted, which [it] believes ought to have been embraced.\u2019\u2019\nId. at 277-78, 293 S.E.2d at 142-43 (citations omitted; alteration in original; emphasis added). The majority\u2019s opinion engages in precisely the type of judicial legislation and \u201cingrafting upon [the] law\u201d that these principles forbid. The Workers\u2019 Compensation statute makes no mention of the types of benefits at issue here, and it is not the place of this Court to impose on the statute a concept or language that it believes the legislature should have included. As can be seen from the quote above, the only alternative to a basic wage calculation is when certain benefits have been offered \u201cin lieu of wages,\u201d and that portion of the statute has not been put in issue in this case. N.C. Gen. Stat. \u00a7 97-2(5). For this Court to hold that the statute does in fact cover a range of other benefits is tantamount to imposing our own language onto the statute.\nII. Kirk and Morrison-Knudsen\nEssentially, here, the majority has taken two cases that exclude fringe benefits \u2014 Morrison-Knudsen and Kirk \u2014 and cobbled them together to support a holding that the benefits at issue here should not be excluded. An in-depth look at these two cases shows that they do not support the majority\u2019s holding.\nA. Morrison-Knudsen\nKirk mentions Morrison-Knudsen briefly, and the majority opinion in this case treats Morrison-Knuden as part of the foundation on which its opinion is built. However, that case dealt with a specific federal statute \u2014 the Longshoremen\u2019s and Harbor Workers\u2019 Compensation Act, 33 U.S.C. \u00a7 902(13) \u2014 and the language that the Court closely analyzed was substantially different than that at issue here:\n\u201c \u2018Wages\u2019 means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer, and gratuities received in the course of employment from others than the employer.\u201d\nMorrison-Knudsen Constr. Co. v. Director, OWCP, 461 U.S. 624, 629, 76 L. Ed. 2d 194, 199 (1983) (quoting 33 U.S.C. \u00a7 902(13)). The essence of the Court\u2019s holding was that only benefits similar to \u201c \u2018board, rent, housing, [or] lodging\u2019 \u201d would be considered part of \u201c \u2018wages\u2019 \u201d under the statute, and the important quality that those benefits shared were their \u201cpresent value that can be readily converted into a cash equivalent on the basis of their market values.\u201d Id. at 630, 76 L. Ed. 2d at 199. The Court\u2019s subsequent analysis and elaboration on this point show that this statement does not mean that if a benefit can be easily quantified it should be included; rather, it means that only benefits with some ascertainable present value \u2014 as opposed to a future, theoretical value \u2014 may be included in this calculation. That is, the types of benefits \u2014 compensation for rent or housing, for example \u2014 that may be (and frequently are) translated into simple cash payments added on to an employee\u2019s paycheck. These are the kinds of benefits that an employee could in all likelihood choose to have provided to him as a cash payment.\nThis is not true of the types of benefits at issue in Kirk or in the case at hand. In Kirk, the benefit was the employer\u2019s contribution to a trust fund for the employee\u2019s health insurance; in Morrison- Knudsen, it was a union trust fund for a variety of health-related costs, including insurance and disability; here, it is the contribution to pension funds. In neither case could the employee go to the employer and demand that the benefits be ceased and, instead, that the employee begin receiving the benefits\u2019 cash equivalent.\nB. Kirk\nThe majority opinion misconstrues in several ways the holding of Kirk v. State of N.C. Dept. of Correction, 121 N.C. App. 129, 465 S.E.2d 301 (1995), disc. review improvidently allowed, 344 N.C. 624, 476 S.E.2d 105 (1996). Kirk is not, as the majority suggests, a mandate to analyze various benefits on a case-by-case basis to determine whether they can be converted into a cash equivalent, nor does it provide authority for this Court to do so.\nIn Kirk, this Court was presented with several issues related to a workers\u2019 compensation holding by the Industrial Commission. The last such issue related to whether it was error for the Commission not to include in the weekly wage calculation the amount paid by the State, Kirk\u2019s employer, for his health insurance. Kirk, 121 N.C. App. at 134, 465 S.E.2d at 305. Kirk argued that the Commission erred by making the calculation based on the method outlined by this portion of the statute, which the Court refers to as \u201cmethod two\u201d:\nWhere 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.\nN.C. Gen. Stat. \u00a7 97-2(5). Kirk contended that the Commission should have instead made its calculations based on this provision: \u201cBut 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.\u201d Id.\nThis Court held that the latter method \u201cshould not be used -unless the result under method two would be unjust.\u201d Kirk, 121 N.C. App. at 135, 465 S.E.2d at 305. As such, the Court concluded, \u201cabsent a finding that method two produces an unfair result, the Commission did not err by excluding the State\u2019s contributions to Kirk\u2019s Health Plan in the calculation of Kirk\u2019s average weekly wages.\u201d Id. at 136, 465 S.E.2d at 306.\nIn Kirk, the Court cited to the United States Supreme Court\u2019s holding in Morrison-Knudsen, 461 U.S. 624, 76 L. Ed. 2d 194, for its reasoning that \u201cwage means \u2018the money rate at which service is recompensed under the contract of hiring\u2019 and not \u2018fringe benefits that cannot be converted into a cash equivalent.\u2019 \u201d Kirk, 121 N.C. App. at 136, 465 S.E.2d at 306. The Court then stated \u201c[t]he same reasoning applies in the present case[,]\u201d followed by a holding that no case law\nsupport[s] plaintiff\u2019s position that an unfair result is reached by not including the employer\u2019s contribution to Kirk\u2019s health care. A State employee receives the benefits of the State Health Plan only when needed. The value of this benefit cannot be quantified. After carefully considering the evidence, we cannot say that the Commission\u2019s failure to include such allowance produced an unfair result for the plaintiff.\nId.\nThis portion of the opinion makes it clear that the ease with which a benefit may be quantified is not the dispositive factor in this issue. The Court did not hold in Kirk that if a court can quantify or value a benefit, it must be included; rather, it says if you cannot quantify the benefit, that is one factor to consider in excluding the benefit from this calculation.\nThe majority\u2019s statement that \u201cnothing in Kirk suggests that all fringe benefits should be excluded from the average weekly wage computation\u201d is a very misleading summary of that case\u2019s holding. The Court does not consider the question of inclusion for all fringe benefits for the calculation of weekly wages in Kirk. Instead, the Court briefly considers whether the exclusion of a certain type of fringe benefit renders an unfair result under one of the primary statutory methods of calculating wages.\nIII. Practical Effect\nThis Court\u2019s engaging in this type of judicial expansion, without the benefit of debate in the legislature as to benefits and drawbacks, will harm those employees not receiving workers\u2019 compensation: Employers will be encouraged to abandon their pension plans due to the unanticipated increase in costs this holding would allow. Any general expansion of the types of compensation to be covered by this statute must come from our legislature. At any time, employers and employees as private parties are free to contract for more, than what is required by the statute; that is, if the legislature were to clarify that certain benefits are not covered by the statutory term \u201cwages,\u201d private parties may certainly execute an employment contract providing that, in this employee\u2019s case, such benefits will be considered part of the employee\u2019s wages for purposes of calculating wages under the workers\u2019 compensation statute.\nIV. Conclusion\nI believe the majority opinion misconstrues the existing law in an attempt to extend it to cover benefits the statute itself does not contemplate. Any further clarification on this issue must come from our legislature, not from this Court ingrafting language upon the statute. Action on our part in the absence of the debate of merits and drawbacks inherent to the legislature will result in an inappropriate and uneven interpretation of this statute. As such, I respectfully dissent.\n. As is clear from the language quoted, the statute provides two types of compensation that may be included in a computation of \u201cweekly wages\u201d: (1) wages and (2) compensation received \u201cin lieu of wages.\u201d As the majority notes, plaintiff does not argue to this Court that the benefits .at issue should be considered compensation \u201cin lieu of wages,\u201d and as such, the only way the benefits could be included in this calculation is if we were to consider them included in the term \u201cwages.\u201d\n. Kirk was decided based on the 1994 version of this statute; the only difference between that version and the 2005 version at issue in the case here is that the later version uses \u201cfewer\u201d where the earlier version used \u201cless.\u201d",
        "type": "dissent",
        "author": "HUNTER, Judge,"
      }
    ],
    "attorneys": [
      "The Sumwalt Law Firm, by Vernon Sumwalt and Mark T. Sumwalt, for plaintiff-appellant.",
      "Littler Mendelson P.C., by Kimberly A. Zabroski, for defendants-appellees."
    ],
    "corrections": "",
    "head_matter": "CURRY SHAW, Employee, Plaintiff v. U.S. AIRWAYS, INC., Employer, AMERICAN PROTECTION INSURANCE COMPANY, Carrier, Defendants\nNo. COA06-1407\n(Filed 6 November 2007)\nWorkers\u2019 Compensation\u2014 average weekly wage \u2014 employer-funded retirement accounts\nAn Industrial Commission conclusion in a workers\u2019 compensation case that employer-funded- contributions to plaintiffs two retirement accounts should not be included in the calculation of plaintiff\u2019s average weekly wage was reversed and remanded. Not all fringe benefits are required to be excluded from an average weekly wage calculation; moreover, the Commission did not apply the proper analysis in determining whether the contributions at issue in this case should be excluded.\nJudge HUNTER dissenting.\nAppeal by plaintiff from opinion and award entered 13 September 2006 by the North Carolina Industrial Commission. Heard in the Court of Appeals 9 May 2007.\nThe Sumwalt Law Firm, by Vernon Sumwalt and Mark T. Sumwalt, for plaintiff-appellant.\nLittler Mendelson P.C., by Kimberly A. Zabroski, for defendants-appellees."
  },
  "file_name": "0474-01",
  "first_page_order": 504,
  "last_page_order": 526
}
