{ "id": 4156086, "name": "DEBRA CONYERS, Employee-Plaintiff v. NEW HANOVER COUNTY SCHOOLS, Employer, SELF-INSURED (KEY RISK MANAGEMENT SERVICES, Third Party Administrator), Defendant", "name_abbreviation": "Conyers v. New Hanover County Schools", "decision_date": "2008-01-15", "docket_number": "No. COA07-53", "first_page": "253", "last_page": "261", "citations": [ { "type": "official", "cite": "188 N.C. App. 253" } ], "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": "702 A.2d 381", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 11890321 ], "year": 1997, "pin_cites": [ { "parenthetical": "holding the public school district properly divided the petitioner-school teacher's salary by 52 weeks to calculate the wages to deduct from petitioner's pre-injury average weekly wage to determine petitioner's partial disability benefits" } ], "opinion_index": 0, "case_paths": [ "/a2d/702/0381-01" ] }, { "cite": "786 A.2d 1026", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 9456219 ], "year": 2001, "pin_cites": [ { "parenthetical": "holding that because the plaintiff-school teacher's contract called for an annual salary, the average wage should be determined by dividing her salary by 52 weeks rather than time actually worked" } ], "opinion_index": 0, "case_paths": [ "/a2d/786/1026-01" ] }, { "cite": "731 P.2d 1334", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1987, "pin_cites": [ { "parenthetical": "calculating the plaintiff's maximum weekly workers' compensation benefits based on a 52-week work year rather than on the basis of the 40-week work year which she actually worked under the terms of her contract with the public school system" } ], "opinion_index": 0 }, { "cite": "731 P.2d 1341", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1599058 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nm/105/0297-01" ] }, { "cite": "624 N.E.2d 564", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "calculating the plaintiff-school teacher's average weekly wages by dividing his yearly earnings by 52" } ], "opinion_index": 0 }, { "cite": "612 So. 2d 64", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11289496, 11289473, 11289518 ], "year": 1993, "pin_cites": [ { "parenthetical": "calculating the plaintiff-school board employee's average weekly wages by dividing her annual salary, received in nine monthly installments, by 52" } ], "opinion_index": 0, "case_paths": [ "/so2d/612/0064-02", "/so2d/612/0064-01", "/so2d/612/0064-03" ] }, { "cite": "610 So. 2d 979", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7507073 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/so2d/610/0979-01" ] }, { "cite": "850 P.2d 271", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 361536 ], "year": 1993, "pin_cites": [ { "parenthetical": "determining that average weekly wages of a school teacher are calculated by dividing the money earned during the school year by the actual number of weeks worked" } ], "opinion_index": 0, "case_paths": [ "/kan-app-2d/18/0130-01" ] }, { "cite": "451 P.2d 37", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 629986 ], "year": 1969, "pin_cites": [ { "parenthetical": "calculating the plaintiff-school teacher's average weekly wages by dividing the annual salary specified in her contract by the nine-month period of employment specified in her contract" } ], "opinion_index": 0, "case_paths": [ "/ariz/104/0257-01" ] }, { "cite": "517 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "921" }, { "page": "921" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 428", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11145160 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/134/0428-01" ] }, { "cite": "181 S.E.2d 237", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "11 N.C. App. 328", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554717 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/11/0328-01" ] }, { "cite": "557 S.E.2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "186" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 106", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9363902 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/148/0106-01" ] }, { "cite": "489 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "379", "parenthetical": "quotation marks and citation omitted" }, { "page": "378-79" } ], "opinion_index": 0 }, { "cite": "347 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551278 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0126-01" ] }, { "cite": "471 S.E.2d 441", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "122 N.C. App. 679", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11919587 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/122/0679-01" ] }, { "cite": "94 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "795-96" } ], "opinion_index": 0 }, { "cite": "244 N.C. 653", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219526 ], "year": 1956, "pin_cites": [ { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0653-01" ] }, { "cite": "146 S.E.2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1966, "pin_cites": [ { "page": "522" }, { "page": "450" }, { "page": "521" }, { "page": "449" }, { "page": "450" }, { "page": "449", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "266 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561359 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/266/0519-01" ] }, { "cite": "251 S.E.2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "402" } ], "opinion_index": 0 }, { "cite": "296 N.C. 527", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567944 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0527-01" ] }, { "cite": "581 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "158 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9187488 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/158/0341-01" ] }, { "cite": "532 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132282, 131930, 132234, 132199 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0108-02", "/nc/350/0108-04", "/nc/350/0108-03", "/nc/350/0108-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 23, "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": "522" }, { "page": "(5)" }, { "page": "437" }, { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" }, { "page": "522" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 815, "char_count": 21916, "ocr_confidence": 0.759, "pagerank": { "raw": 1.188392883261708e-07, "percentile": 0.5908058732381695 }, "sha256": "323fa707d0f31254739b07a5390904bfcc46dd18d3057a603a4fc12e3e2e8f28", "simhash": "1:17155f69563b7fbf", "word_count": 3583 }, "last_updated": "2023-07-14T21:34:30.605877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and SMITH concur." ], "parties": [ "DEBRA CONYERS, Employee-Plaintiff v. NEW HANOVER COUNTY SCHOOLS, Employer, SELF-INSURED (KEY RISK MANAGEMENT SERVICES, Third Party Administrator), Defendant" ], "opinions": [ { "text": "STEPHENS, Judge.\nThe sole issue to be addressed in this appeal is what method under N.C. Gen. Stat. \u00a7 97-2(5) should be used to calculate a public school employee\u2019s \u201caverage weekly wages\u201d for the payment of workers\u2019 compensation benefits. Defendant contends the Full Commission erred in calculating Plaintiff\u2019s average weekly wages under N.C. Gen. Stat. \u00a7 97-2(5). For the reasons stated below, we reverse the Full Commission and remand for entry of an Award in accordance with this opinion.\nI. FACTS AND PROCEDURE\nPlaintiff-Appellee Debra Conyers (\u201cPlaintiff\u201d) was employed by Defendant-Appellant New Hanover County Schools (\u201cDefendant\u201d) as a bus driver. She had held this job for approximately 12 years prior to sustaining a compensable injury on 30 October 2001. Plaintiff drove a school bus during the school year and was not employed during the summertime. She earned $10.90 per hour, approximately $436 per week. She received her paycheck monthly after each month worked, receiving no paychecks during the summer months. Plaintiff earned a total of $17,608.94 in the 52 weeks preceding the accident.\nOn 12 March 2004, Plaintiff filed a Form 33 Request for Hearing, claiming entitlement to workers\u2019 compensation benefits for past,present, and future disability; medical benefits; attorneys\u2019 fees; and costs as a result of her injury. Plaintiff\u2019s claim was heard by Deputy Commissioner Phillip Holmes on 31 March 2005. In an Opinion and Award filed 13 December 2005, Deputy Commissioner Holmes found that the first method described by N.C. Gen. Stat. \u00a7 97-2(5) should be used to calculate Plaintiff\u2019s average weekly wages, and thus concluded that Plaintiff\u2019s average weekly wages were $338.63.\nPlaintiff appealed to the Full Commission, and the appeal was heard on 8 June 2006. By Opinion and Award filed 1 September 2006, the Full Commission reversed the decision of Deputy Commissioner Holmes, concluding that Plaintiff\u2019s correct average weekly wages were best determined by using the third method of N.C. Gen. Stat. \u00a7 97-2(5), thereby establishing average weekly wages of $434.07.\nFrom this Opinion and Award, Defendant appeals.\nII. DISCUSSION\nAppellate review of an Opinion and Award of the Full Commission is limited to a determination of whether the Full Commission\u2019s findings of fact are supported by any competent evidence, and whether those findings support the Full Commission\u2019s legal conclusions. Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998), reh\u2019g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). The Full Commission\u2019s conclusions of law are reviewable de novo. Whitfield v. Lab. Corp. of Am., 158 N.C. App. 341, 581 S.E.2d 778 (2003).\nIn North Carolina, the calculation of an injured employee\u2019s average weekly wages is governed by N.C. Gen. Stat. \u00a7 97-2(5). The statute sets forth five methods, in order of preference, by which an injured employee\u2019s average weekly wages are to be computed. Hensley v. Caswell Action Comm., Inc., 296 N.C. 527, 251 S.E.2d 399 (1979). The statute, as it pertains to this case, provides:\n[Method 1] \u201cAverage weekly wages\u201d shall mean 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 ... .\n[Method 3] 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. . . .\n[Method 5] 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.\nN.C. Gen. Stat. \u00a7 97-2(5) (2001).\nThe dominant intent of this statute is to obtain results that 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 (1966). Results fair and just within the meaning of the statute \u201cconsist of such \u2018average weekly wages\u2019 as will most nearly approximate the amount which the injured employee would be earning were it not for the injury, in the employment in which he was working at the time of his injury.\u201d Liles v. Faulkner Neon & Elec. Co., 244 N.C. 653, 660, 94 S.E.2d 790, 795-96 (1956).\nDefendant argues the Full Commission erred in calculating Plaintiff\u2019s average weekly wages using the third method defined in N.C. Gen. Stat. \u00a7 97-2(5). Specifically, Defendant contends there is insufficient evidence to support the following findings of fact:\n9. The Form 22 reflects total wages of $17,608.94 in the fifty-two weeks preceding [Pjlaintiff\u2019s October 30, 2001 injury. However, as [P]laintiff did not work continuously during the fifty-two week period, methods one and two for computing average weekly wage cannot be used. Using method three, dividing the amount earned by the number of weeks actually worked, [Pjlaintiff\u2019s average weekly wage is $434.07, and her compensation rate is $289.40.\n10. Use of the third method to calculate [P]laintiff\u2019s average weekly wage produces the most fair and just results for the parties.\nAs Defendant points out, Plaintiff was a full-time employee with New Hanover County Schools and had been continuously employed by the school system for 12 years before the injury. Thus, according to Defendant, the mandatory method to use in this case is the first method whereby Plaintiff\u2019s yearly earnings of $17,608.94 are divided by 52, for an average weekly wage of $338.63. Furthermore, Defendant contends there is no evidence in the record to support the finding that the third method would produce the most fair and just results for the parties. Defendant argues that use of the third method yields an unfair and unjust result as Plaintiff\u2019s yearly salary under this method would be $22,571.64, $4,962.70 more than she had actually earned in the year before she was injured.\nPlaintiff contends that, as an employee of the New Hanover County Schools, she only worked 279 days in the year prior to her accident. Since her employment did not extend over the preceding 52-week period, she argues the Full Commission properly used the third method of N.C. Gen. Stat. \u00a7 97-2(5) to determine her average weekly wages.\nOur research reveals only one case in which the North Carolina appellate courts have addressed the issue of whether a public school employee\u2019s average weekly wages should be calculated with or without regard to the 10 week summer vacation period. In McAninch v. Buncombe Cty. Sch., 122 N.C. App. 679, 471 S.E.2d 441 (1996), rev\u2019d, 347 N.C. 126, 489 S.E.2d 375 (1997), the plaintiff-employee, a cafeteria worker whose position only existed during the school year, worked 42 weeks per year for the defendant-employer. The Full Commission determined the plaintiff\u2019s average weekly wages using the third method of N.C. Gen. Stat. \u00a7 97-2(5), by dividing her earnings during her 42-week work period by the 42 weeks she had worked. This Court reversed the Full Commission, concluding that the plaintiff\u2019s average weekly wages should have been calculated under the fifth method of N.C. Gen. Stat. \u00a7 97-2(5), by dividing the plaintiff\u2019s total wages earned in the 52 weeks prior to the accident by 52. McAninch, 347 N.C. 126, 489 S.E.2d 375. However, on writ of certiorari, our Supreme Court held that this Court had no authority to recalculate the plaintiff\u2019s wages, because the defendant and the plaintiff had entered into a Form 21 agreement for compensation which was approved by the Commission. Id, The Supreme Court ruled that the Form 21 agreement could not be modified or set aside on appellate review \u201cwhere there [was] no finding [by the Commission] that the agreement itself was obtained by fraud, misrepresentation, mutual mistake, or undue influencef.]\u201d Id. at 132, 489 S.E.2d at 379 (quotation marks and citation omitted). The Supreme Court further stated that \u201c[w]here the employer and employee have entered into a Form 21 agreement, stipulating the average weekly wages, and the Commission approves this agreement, the parties are bound to its terms absent a showing of error in the formation of the agreement.\u201d Id. at 132, 489 S.E.2d at 378-79. Accordingly, while McAninch may be instructional, it provides no precedential value as to the calculation method to be used in this case.\nOther jurisdictions have addressed the issue of how to calculate workers\u2019 compensation average weekly wages for educators and other school employees. However, these decisions are of limited value given the unique nature of the contracts for employment in each case as well as each state\u2019s unique workers\u2019 compensation statutory scheme. Consequently, for guidance in this case, we will examine the statutory intent and construction of N.C. Gen. Stat. \u00a7 97-2(5), the undisputed facts of this case, and factually similar cases which have interpreted N.C. Gen. Stat. \u00a7 97-2(5).\nAlthough \u201c[w]hen the first method of compensation can be used, it must be used[,]\u201d Hensley, 296 N.C. at 533, 251 S.E.2d at 402, that method cannot be used when the injured employee has been working in that employment for fewer than 52 weeks in the year preceding the date of the accident. Loch v. Entm\u2019t Ptnrs., 148 N.C. App. 106, 557 S.E.2d 182 (2001). Here, since the employment contract between Plaintiff and Defendant was not included in the Record on Appeal, the actual terms of the contract are not available to this Court. However, the record contains uncontradicted evidence that Plaintiffs employment by New Hanover County Schools extended for a period of less than 52 weeks prior to the accident. Plaintiff drove a bus for 10 months out of the year, was paid for 10 months of work, received her paycheck 10 times a year, and did not work or get paid during the summer when school was out. Defendant was not obligated to compensate Plaintiff during the summer months, nor was Plaintiff obligated to work for Defendant during those months. As a result, her average weekly wages cannot be computed under the first method set out in N.C. Gen. Stat. \u00a7 97-2(5).\nAccordingly, we next examine whether Plaintiffs average weekly wages should be calculated pursuant to the third statutory method. Using this method, the Full Commission determined Plaintiffs average weekly wages to be $434.07. Based on this calculation, the next inquiry required by the statute is whether the results obtained are \u201cfair and just to both parties.\u201d N.C. Gen. Stat. \u00a7 97-2(5). Here, using the third method, Plaintiffs yearly salary would become $22,571.64, which is $4,962.70 more than her actual pre-injury wages. This result is not fair and just as Defendant would be unduly burdened while Plaintiff would receive a windfall. The purpose of our Workers\u2019 Compensation Act is not to put the employee in a better position and the employer in a worse position than they occupied before the injury. Thus, the third method is not appropriate in this case.\nTherefore, we must evaluate the propriety of using the fifth method of calculation. This method may only be utilized subsequent to a finding that the previous methods were either inapplicable, or were applicable but would fail to produce results fair and just to both parties. Wallace v. Music Shop, II, Inc., 11 N.C. App. 328, 181 S.E.2d 237 (1971). Such is the case here.\nIn Joyner, 266 N.C. 519, 146 S.E.2d 447, our Supreme Court considered a workers\u2019 compensation case where the employee was a relief truck driver who worked only on an as-needed basis during the 52 weeks prior to his injury. The Court described the driver\u2019s employment as \u201cinherently part-time and intermittent\u201d and held it was \u201cunfair[] to the employer . . . [not to] take into consideration both peak and slack periods[,]\u201d id. at 522, 146 S.E.2d at 450, in calculating average weekly wages because otherwise \u201cit gives [the] plaintiff the advantage of wages earned in the \u2018peak\u2019 [] season without taking into account the slack periods\u201d during which he did not work. Id. at 521, 146 S.E.2d at 449. As a result, the Court held that the employee\u2019s average weekly wages were to be calculated under the \u201cexceptional reasons\u201d method set forth in N.C. Gen. Stat. \u00a7 97-2(5) by taking the total wages earned during the 52-week period prior to injury and dividing that amount by 52, representing the number of weeks in a year. Id. at 522, 146 S.E.2d at 450.\nIn Barber v. Going West Transp., Inc., 134 N.C. App. 428, 517 S.E.2d 914 (1999), the plaintiff was injured while working as a driver for his employer, a provider of long-haul transportation services specializing in produce shipment. The Full Commission found that the plaintiff had been continuously employed with the employer since 1994, and that the plaintiff\u2019s employment was not seasonal. This Court reversed, noting that the plaintiff did not work during February, March, August, September, or November of 1995, and worked only 11 days in April, six days in July, and seven days in December of that year. As a result of this fluctuating work schedule, which was dependent upon the produce season, the plaintiff\u2019s job more properly qualified as \u201cseasonal\u201d rather than continuous employment. Id. at 436, 517 S.E.2d at 921. As in Joyner, the Court held that the employee\u2019s weekly wages should be computed under the \u201cexceptional reasons\u201d method of N.C. Gen. Stat. \u00a7 97-2(5) by dividing his total earnings in the 52-week period preceding the injury by 52. Id. at 437, 517 S.E.2d at 921.\nIn this case, as in Joyner, Plaintiff\u2019s employment had \u201cpeak times\u201d where she worked full-time, and \u201cslack periods\u201d where she did not work at all. Calculating Plaintiff\u2019s average weekly wages using method three inflates her earnings by basing them solely on income earned during \u201cpeak times,\u201d a result contrary to the Court\u2019s reasoning in Joyner, and causes a windfall for Plaintiff, contrary to statutory intent. Furthermore, similar to Barber, Plaintiff is essentially a \u201cseasonal\u201d worker who only works during the school year. Although she was considered a full-time employee, by virtue of the school calendar, she was not required to work during the summer and never anticipated doing so. Thus, as in Joyner and Barber, the fifth, or \u201cexceptional reasons\u201d method identified in N.C. Gen. Stat. \u00a7 97-2(5), should be used to calculate Plaintiffs average weekly wages.\nThe language of the fifth calculation method neither requires nor prohibits any specific mathematical formula from being applied; instead, it directs that the average weekly wages calculated must \u201cmost 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). Plaintiff earned $17,608.94 in the 52 weeks preceding the accident. Although she only worked approximately 40 of those weeks and was paid in 10 monthly paychecks, the compensation she collects for workers\u2019 compensation will be paid every week, including the weeks of her summer vacation. Consequently, as in Joyner and Barber, Plaintiff\u2019s average weekly wages should be calculated by dividing the wages she earned in the 52-week period prior to her accident by 52, the number of weeks in the year. This calculation yields average weekly wages of $338.63, which most nearly approximates the amount Plaintiff would be earning were it not for her injury.\nWe therefore reverse the decision of the Full Commission and remand for entry of an Award in accordance with this opinion.\nREVERSED AND REMANDED.\nJudges McGEE and SMITH concur.\n. The Form 21 agreement specified average weekly wages of $163.37, reflecting the plaintiffs annual salary divided by the 42 weeks she actually worked.\n. A second issue involving the proper calculation of the plaintiff\u2019s average weekly wage is not present in the case sub judice.\n. See, generally, Powell v. Indus. Comm\u2019n, 451 P.2d 37 (Ariz. 1969) (calculating the plaintiff-school teacher\u2019s average weekly wages by dividing the annual salary specified in her contract by the nine-month period of employment specified in her contract); Lynch v. U.S.D. No. 480, 850 P.2d 271 (Kan. Ct. App. 1993) (determining that average weekly wages of a school teacher are calculated by dividing the money earned during the school year by the actual number of weeks worked); Brounette v. E. Baton Rouge Parish Sch. Bd., 610 So. 2d 979 (La. Ct. App. 1992), cert. denied, 612 So. 2d 64 (La. 1993) (calculating the plaintiff-school board employee\u2019s average weekly wages by dividing her annual salary, received in nine monthly installments, by 52); Herbst\u2019s Case, 624 N.E.2d 564 (Mass. 1993) (calculating the plaintiff-school teacher\u2019s average weekly wages by dividing his yearly earnings by 52); Duran v. Albuquerque Pub. Sch., 731 P.2d 1341 (N.M. Ct. App. 1986), cert. denied, 731 P.2d 1334 (N.M. 1987) (calculating the plaintiff\u2019s maximum weekly workers\u2019 compensation benefits based on a 52-week work year rather than on the basis of the 40-week work year which she actually worked under the terms of her contract with the public school system); Jones v. Worker\u2019s Comp. Appeal Bd., 786 A.2d 1026 (Pa. Commw. Ct. 2001) (holding that because the plaintiff-school teacher\u2019s contract called for an annual salary, the average wage should be determined by dividing her salary by 52 weeks rather than time actually worked); Stofa v. Workers\u2019 Comp. Appeal Bd., 702 A.2d 381 (Pa. Commw. Ct. 1997) (holding the public school district properly divided the petitioner-school teacher\u2019s salary by 52 weeks to calculate the wages to deduct from petitioner\u2019s pre-injury average weekly wage to determine petitioner\u2019s partial disability benefits).\n. The second statutory method is not applicable here as it only applies where the employee worked in the employment in which he or she was injured for 52 weeks in the year preceding the accident and lost more than seven consecutive calendar days during that 52-week period.\n. The fourth statutory method is not applicable here as it only applies where the injured employee was employed for a very short period of time or where the terms of employment were casual in nature.\n. Joyner was decided under a previous version of N.C. Gen. Stat. \u00a7 97-2(5) where the \u201cexceptional reasons\u201d method was the fourth method instead of the fifth method, as it currently is.\n. The plaintiff and another employee did the same work for the same employer for the same wage but at different times during the year at issue. The Court treated their employment as one continuous employment for the purpose of calculating the plaintiff\u2019s average weekly wages during the 52-week period prior to the plaintiff\u2019s accident.\n. Although this Court suggested in Loch v. Entm\u2019t Ptnrs., 148 N.C. App. 106, 557 S.E.2d 182, that calculating an employee\u2019s average weekly wages under the fifth method of the statute, using the formula set out in the first method, might be an impermissible way \u201cto circumvent the statute when calculation under the first method was otherwise inappropriate!,]\u201d id. at 112, 557 S.E.2d at 186, our Supreme Court in Joyner, 266 N.C. 519, 146 S.E.2d 447, in making the precise calculation which Loch suggests is impermissible, stressed that the dominant intent of N.C. Gen. Stat. \u00a7 97-2(5) is that \u201cresults fair and just to both employer and employee be obtained!,]\u201d id. at 522, 146 S.E.2d at 449 (emphasis added), regardless of the method or formula used.", "type": "majority", "author": "STEPHENS, Judge." } ], "attorneys": [ "Brumbaugh, Mu & King, by Maggie S. Bennington, for Plaintiff", "Attorney General Roy Cooper, by Assistant Attorney General Vanessa N. Totten, for Defendant." ], "corrections": "", "head_matter": "DEBRA CONYERS, Employee-Plaintiff v. NEW HANOVER COUNTY SCHOOLS, Employer, SELF-INSURED (KEY RISK MANAGEMENT SERVICES, Third Party Administrator), Defendant\nNo. COA07-53\n(Filed 15 January 2008)\nWorkers\u2019 Compensation\u2014 calculation of average weekly wage\u2014 public school employee \u2014 exceptional reasons method\nThe Industrial Commission erred by calculating plaintiff public school employee\u2019s average weekly wage under N.C.G.S. \u00a7 97-2(5), and the decision is reversed and remanded for entry of an award in accordance with this opinion, because: (1) the record contained uncontradicted evidence that plaintiff drove a bus for 10 months out of the year, was paid.for 10 months of work, received her paycheck 10 times a year, and did not work or get paid during the summer when school was out; (2) defendant was not obligated to compensate plaintiff during the summer months nor was plaintiff obligated to work for defendant during those months, and thus her average weekly wage could not be computed under the first method set out in N.C.G.S. \u00a7 97-2(5); (3) the third method was not appropriate when the inquiry required by the statute is whether the results obtained are fair and just to both parties, and plaintiffs yearly salary would be $4,962.70 more than her actual pre-injury wages; (3) the fifth method, utilized subsequent to a finding that the previous methods are either inapplicable or were applicable but would fail to produce results fair and just to both parties, should have been used since plaintiff was essentially a seasonal worker who only worked during the school year; and (4) the language of the fifth calculation method neither requires nor prohibits any specific mathematical formula from being applied, the compensation plaintiff collects for workers\u2019 compensation will be paid every week including the summer, and thus plaintiff\u2019s average weekly wages should be calculated by dividing the wages she earned in the 52-week period prior to her accident by 52, the number of weeks in the year, yielding an average weekly wage of $338.63.\nAppeal by Defendant from Opinion and Award entered 1 September 2006 by the North Carolina Industrial Commission. Heard in the Court of Appeals 29 August 2007.\nBrumbaugh, Mu & King, by Maggie S. Bennington, for Plaintiff\nAttorney General Roy Cooper, by Assistant Attorney General Vanessa N. Totten, for Defendant." }, "file_name": "0253-01", "first_page_order": 283, "last_page_order": 291 }