{ "id": 4233317, "name": "JOHN THOMPSON, Employee, Plaintiff-Appellant v. STS HOLDINGS, INC., Employer, and WAUSAU INSURANCE COMPANIES, Carrier, Defendants-Appellees", "name_abbreviation": "Thompson v. STS Holdings, Inc.", "decision_date": "2011-06-21", "docket_number": "No. COA10-581", "first_page": "26", "last_page": "38", "citations": [ { "type": "official", "cite": "213 N.C. App. 26" } ], "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": "657 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640450 ], "year": 2008, "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0361-01" ] }, { "cite": "646 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638867 ], "year": 2007, "pin_cites": [ { "page": "655", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/646/0652-01" ] }, { "cite": "654 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640073 ], "weight": 5, "year": 2008, "pin_cites": [ { "page": "750", "parenthetical": "Method five \"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).\"" }, { "page": "750", "parenthetical": "citation omitted" }, { "page": "750-51" }, { "page": "751" }, { "page": "751, n. 8" } ], "opinion_index": 0, "case_paths": [ "/se2d/654/0745-01" ] }, { "cite": "636 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637060 ], "year": 2006, "pin_cites": [ { "page": "555", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/636/0553-01" ] }, { "cite": "362 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149183 ], "year": 2008, "pin_cites": [ { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0191-01" ] }, { "cite": "81 A.2d 280", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1951, "pin_cites": [ { "page": "282" } ], "opinion_index": 0 }, { "cite": "78 R.I. 249", "category": "reporters:state", "reporter": "R.I.", "case_ids": [ 5311111 ], "year": 1951, "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/ri/78/0249-01" ] }, { "cite": "94 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "796", "parenthetical": "emphasis deleted; emphasis added" } ], "opinion_index": 0 }, { "cite": "244 N.C. 653", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219526 ], "year": 1956, "pin_cites": [ { "page": "660", "parenthetical": "emphasis deleted; emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0653-01" ] }, { "cite": "184 N.C. App. 364", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8185821 ], "year": 2007, "pin_cites": [ { "page": "366", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/184/0364-01" ] }, { "cite": "146 S.E.2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1966, "opinion_index": 0 }, { "cite": "266 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561051 ], "weight": 3, "year": 1966, "pin_cites": [ { "page": "427-29" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0419-01" ] }, { "cite": "700 S.E.2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2010, "pin_cites": [ { "page": "31" } ], "opinion_index": 0 }, { "cite": "517 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "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": "146 S.E.2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "266 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561359 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/266/0519-01" ] }, { "cite": "557 S.E.2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "186" }, { "page": "187", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 106", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9363902 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "112" }, { "page": "112-13" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0106-01" ] }, { "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": "188 N.C. App. 253", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156086 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "259" }, { "page": "258" }, { "page": "259-61" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0253-01" ] }, { "cite": "489 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1997, "pin_cites": [ { "page": "377" }, { "page": "378", "parenthetical": "citations omitted" }, { "page": "378" }, { "page": "379" }, { "page": "379-80", "parenthetical": "citations omitted" }, { "page": "378-79", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "347 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551278 ], "weight": 7, "year": 1997, "pin_cites": [ { "page": "129" }, { "page": "130" }, { "page": "130" }, { "page": "132-33" }, { "page": "133-34" }, { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0126-01" ] }, { "cite": "486 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "254", "parenthetical": "citations omitted" }, { "page": "254" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 678", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11712737 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "680", "parenthetical": "citations omitted" }, { "page": "680" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0678-01" ] }, { "cite": "360 N.C. 609", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787177 ], "year": 2006, "pin_cites": [ { "page": "611", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0609-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-42", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-29", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "pin_cites": [ { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" }, { "page": "261" }, { "page": "(5)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1032, "char_count": 29303, "ocr_confidence": 0.758, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.3471051787189137 }, "sha256": "b8e40b259a2a4d98f6f22a44ac19788c9884ed94536211262de9a3b64c1b0780", "simhash": "1:a769c769761a4e2e", "word_count": 4709 }, "last_updated": "2023-07-14T21:51:58.983312+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge ERVIN concur." ], "parties": [ "JOHN THOMPSON, Employee, Plaintiff-Appellant v. STS HOLDINGS, INC., Employer, and WAUSAU INSURANCE COMPANIES, Carrier, Defendants-Appellees" ], "opinions": [ { "text": "McGEE, Judge.\nPlaintiff was an Airframe and Power Plant Mechanic (A&P mechanic) who worked contract jobs in the airline maintenance industry for various employers. STS Holdings, Inc. (STS) is a company specializing in providing contract aviation technicians to the aerospace industry. Plaintiff was working for STS in February 2008, pursuant to a contract between STS and TIMCO at TIMCO\u2019s facility in Greensboro. While working for STS on the TIMCO contract, Plaintiff tripped over a metal plate on 18 February 2008 and suffered a compensable injury by accident. At the time of Plaintiff\u2019s injury, the workers\u2019 compensation insurance carrier for STS was Wausau Insurance Companies (together with STS, Defendants). The compensability of Plaintiff\u2019s injury by accident is not in dispute. Defendants initially paid Plaintiff compensation in the amount of $213.34 per week. This amount was subsequently increased to $329.58 per week. Plaintiff was compensated at this rate until an opinion and award filed on 28 July 2009 by Deputy Commissioner J. Brad Donovan reduced Plaintiff\u2019s temporary total disability compensation to $30.00 per week. Plaintiff appealed the deputy commissioner\u2019s opinion and award to the Commission, contesting the compensation rate as determined by the deputy commissioner. The Commission filed its opinion and award on 24 February 2010, wherein it affirmed the $30.00 per week compensation rate, and concluded that \u201cDefendants are entitled to a credit for payments that have already been made in excess of the compensation rate set forth [herein].\u201d\nIn the fifty-two week period immediately preceding the accident, Plaintiff had worked a total of fourteen days for STS on five separate contracts. The bulk of Plaintiff\u2019s income in that fifty-two week period came from contracts with other employers. STS paid Plaintiff an hourly wage of $7.50 an hour for Plaintiff\u2019s work with TIMCO. If Plaintiff worked overtime hours for STS, Plaintiff would earn overtime wages. STS also disbursed additional monies to Plaintiff while Plaintiff was in its employ. Plaintiff received a per diem amount for living expenses under certain circumstances. The Commission found as fact:\nThe per diem is paid as non-taxable, is set at differing amounts according to the costs of staying in any given location, and is meant to reimburse employees for cost of living expenses while they are on the road. The per diem is set as a maximum weekly amount, and is paid on a prorated basis if the employee works fewer than 40 hours in a particular week. Per diem payments are only available if a worksite is located greater than 50 miles from the employee\u2019s permanent residence and the employee certifies to [STS] that he is maintaining a temporary residence nearer to the worksite.\nThe Commission further found that the method used by STS to calculate the per diem rate to be paid to an employee was determined by first consulting the maximum allowable rate as set forth on the federal Government Services Administration website. STS would then reduce that amount by twenty percent and make additional downward adjustments related to the local cost of living, if applicable.\nThe Commission also found that Plaintiff received travel pay for certain jobs to help defray the cost associated with travelling to a job-site. An officer for STS testified\nthat travel pay is used to assist employees in travelling to the job and is paid as a business expense reimbursement.... [T]ravel pay is typically tied to a minimum stay at a particular work cite [sic], and if an employee does not meet the minimum stay, the travel pay is deducted from the employee\u2019s final check for that contract as a cost or wage advance.\nThe Commission further found that STS would sometimes give an employee wage advances. These advances constituted advance pay for work an employee had not yet performed, but was expected to perform. These advances were \u201cdeducted from the employee\u2019s subsequent post-tax earnings.\u201d\nFinally, the Commission found that Plaintiff\u2019s \u201cpayroll records include[d] additional categories labeled \u2018RC\u2019 and \u2018RE.\u2019 However, the record of evidence [did] not include sufficient information for the . . . Commission to determine how, or whether, amounts listed in association with those categories may have influenced the wages earned by [P]laintiff.\u201d\nBased in part on these findings of fact, the Commission concluded that, while working for STS, Plaintiff\u2019s wages consisted exclusively of his hourly wage and overtime pay. The Commission further concluded that the per diem, travel expenses, wage advances, and the additional \u201cRC\u201d and \u201cRE\u201d amounts did not constitute payments made by STS to Plaintiff in \u201clieu of wages.\u201d\nPursuant to N.C. Gen. Stat. \u00a7 97-2(5), the Commission conducted an analysis in order to determine Plaintiff\u2019s average weekly wage during his employment with STS. After conducting its analysis under N.C.G.S. \u00a7 97-2(5), the Commission determined, pursuant to N.C. Gen. Stat. \u00a7 97-29, that Plaintiff was entitled only to the \u201cminimum disability compensation rate of $30.00 per week.\u201d Pursuant to N.C. Gen. Stat. \u00a7 97-42, the Commission granted Defendants \u201ca credit for disability compensation payments that [had] been made in excess of the rate of $30.00 per week found applicable herein.\u201d The Commission based this determination on findings that, were it to utilize certain methods of calculation set forth in N.C.G.S. 97-2(5), Defendants would be obligated to pay compensation based upon an average weekly wage far in excess of what Plaintiff would have earned working for STS. Plaintiff appeals.\nI.\nWe review opinions and awards of the Commission pursuant to the following standard:\nThe Commission has exclusive original jurisdiction over workers\u2019 compensation cases and has the duty to hear evidence and file its award, \u201ctogether with a statement of the findings of fact, rulings of law, and other matters pertinent to the questions at issue.\u201d N.C.G.S. \u00a7 97-84 (2005). Appellate review of an award from the Industrial Commission is generally limited to two issues: (i) whether the findings of fact are supported by competent evidence, and (ii) whether the conclusions of law are justified by the findings of fact. If the conclusions of the Commission are based upon a deficiency of evidence or misapprehension of the law, the case should be remanded so \u201c \u2018that the evidence [may] be considered in its true legal light.\u2019 \u201d\nChambers v. Transit Mgmt., 360 N.C. 609, 611, 636 S.E.2d 553, 555 (2006) (citations omitted).\nThe findings of fact made by the Commission are conclusive upon appeal when supported by competent evidence, even when there is evidence to support a contrary finding. In weighing the evidence, the Commission is the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and may reject a witness\u2019 testimony entirely if warranted by disbelief of that witness. However, before finding the facts, the Industrial Commission must consider and evaluate all of the evidence. Although the Commission may choose not to believe the evidence after considering it, it may not wholly disregard or ignore competent evidence.\nLineback v. Wake County Board of Commissioners, 126 N.C. App. 678, 680, 486 S.E.2d 252, 254 (1997) (citations omitted).\nII.\nPlaintiff contends in his first argument that the Commission erred in calculating his compensation rate pursuant to N.C.G.S. \u00a7 97-2(5). We disagree.\nThe calculation of an injured employee\u2019s average weekly wages is governed by N.C.G.S. \u00a7 97-2(5). This statute sets 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 \u201caverage weekly wages.\u201d\nMcAninch v. Buncombe County Schools, 347 N.C. 126, 129, 489 S.E.2d 375, 377 (1997). N.C. Gen. Stat. \u00a7 97-2(5) (2009) states in relevant part:\n\u201cAverage weekly wages\u201d shall mean [1] 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, including the subsistence allowance paid to veteran trainees by the United States government, provided the amount of said allowance shall be reported monthly by said trainee to his employer, divided by 52; [2] but if the injured employee lost more than seven consecutive calendar days at one or more times during such period, although not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks remaining after the time so lost has been deducted. [3] 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. [4] 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 weeks previous to the injury was being earned by a person of the same grade and character employed in the same class of employment in the same locality or community.\nBut where for exceptional reasons the foregoing would be unfair, either to the employer or employee, such other method of computing average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.\nIn McAninch our Supreme Court stated:\nThe final method [method five], as set forth in the last sentence, clearly may not be used unless there has been a finding that unjust results would occur by using the previously enumerated methods. Ultimately, the primary intent of this statute is that results are reached which are fair and just to both parties. \u201cOrdinarily, whether such results will be obtained ... is a question of fact; and in such case a finding of fact by the Commission controls [the] decision.\u201d\nMcAninch, 347 N.C. at 130, 489 S.E.2d at 378 (citations omitted); see also Conyers v. New Hanover Cty. Schools, 188 N.C. App. 253, 259, 654 S.E.2d 745, 750 (2008) (Method five \u201cmay 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).\u201d).\nIn the case before us, the Commission addressed each of the five methods enumerated in N.C.G.S. \u00a7 97-2(5). The Commission determined that method one was inapplicable because Plaintiff \u201cdid not work continuously during the 52 weeks preceding his injury. Loch v. Entertainment Partners, 148 N.C. App. 106, 112, 557 S.E.2d 182, 186 (2001)[.]\u201d Plaintiff agrees that method one was not the appropriate method by which to calculate his average weekly wage. The Commission concluded, upon the evidence before it, that methods two, three, and four could not be used to achieve fair and just results for both parties. Specifically, the Commission determined that use of any of these methods would require Defendants to compensate Plaintiff at a rate in excess of that warranted by the work Plaintiff would have performed for STS and, therefore, utilization of methods two, three, or four would not be fair or just to Defendants.\nThough the Commission sets out as conclusions of law its determination of whether fair and just results can be achieved by the methods enumerated in N.C.G.S. \u00a7 97-2(5), they are findings of fact and bind our Court if there is competent evidence in the record to support the findings. McAninch, 347 N.C. at 130, 489 S.E.2d at 378. We hold that there was sufficient evidence before the Commission to support its findings that methods two, three, and four would not lead to fair and just results. Therefore, we affirm the Commission\u2019s decision to apply method five in calculating Plaintiff\u2019s average weekly wage.\nPlaintiff further argues that the Commission erred in the manner in which it applied method five to determine Plaintiffs average weekly wage. We disagree.\nSpecifically, Plaintiff argues that, although the Commission purported to use method five, in reality it improperly used method one to determine Plaintiff\u2019s average weekly wage. If Plaintiff\u2019s contention were correct, the Commission would have erred. \u201cAlthough \u2018[w]hen the first method of compensation can be used, it must be used[,]\u2019 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. [Entertainment Partners], 148 N.C. App. 106, 557 S.E.2d 182 (2001).\u201d Conyers, 188 N.C. App. at 258, 654 S.E.2d at 750 (citation omitted).\nHowever, our Court in Conyers, citing our Supreme Court\u2019s opinion in Joyner v. Oil Co., 266 N.C. 519, 146 S.E.2d 447 (1966), and our Court\u2019s opinion in Barber v. Going West Transp., Inc., 134 N.C. App. 428, 517 S.E.2d 914 (1999), held that the Commission may, pursuant to method five, determine an employee\u2019s average weekly wage by determining the employee\u2019s actual wages earned in the fifty-two week period preceding the injury by accident--in the employment in which Plaintiff suffered the compensable injury by accident \u2014 and dividing that amount by fifty-two. Conyers, 188 N.C. App. at 259-61, 654 S.E.2d at 750-51. This is because \u201c[t]he 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 \u2018most nearly approximate the amount which the injured employee would be earning were it not for the injury.\u2019 N.C. Gen. Stat. \u00a7 97-2(5).\u201d Id. at 261, 654 S.E.2d at 751. The focus of method five is on the result, not the precise means by which that result is obtained. Id. at 261, n. 8, 654 S.E.2d at 751, n. 8. We hold that the Commission did not err by calculating wages earned by Plaintiff while in the employ of STS in a fifty-two week period, then dividing that amount by fifty-two in order to obtain Plaintiff\u2019s average weekly wage for his employment with STS.\nThe Commission recognized in its fourth conclusion of law that it was limited to considering Plaintiff\u2019s employment with STS in calculating Plaintiff\u2019s average weekly wage, stating: Plaintiff cites our Court\u2019s opinion in Pope v. Johns Manville, \u2014 N.C. App. \u2014, 700 S.E.2d 22 (2010), for the contention that the Commission could aggregate Plaintiff\u2019s work for other employers in determining Plaintiff\u2019s average weekly wage. Our Court in Pope expressly rejected Plaintiff\u2019s contention. Id. at \u2014, 700 S.E.2d at 31 (stating \u201cthe Supreme Court has clearly held that the Commission cannot, even if it relies on the fifth method for determining a claimant\u2019s average weekly wage set out in N.C. Gen. Stat. \u00a7 97-2(5), make the necessary calculation by aggregating or combining his wages from more than one job\u201d).\nAlthough [P]laintiff was also employed by employers other than [STS] during the 52 weeks preceding [P]laintiff\u2019s injury by accident, the calculation of [P]laintiff\u2019s average weekly wage must be based only on [P]laintiff\u2019s employment with [STS]. See Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479 (1966); McAninch v. Buncombe County Schools, 347 N.C. 126, 489 S.E.2d 375 (1997) [(\u201cFurther, with respect to the Court of Appeals\u2019 recalculation to include \u2018wages earned in employment other than that in which the employee was injured,\u2019 we hold that this aggregation of wages conflicts with our established law. In defining \u2018average weekly wages,\u2019 N.C.G.S. \u00a7 97-2(5) explicitly provides that average weekly wages \u2018shall mean the earnings of the injured employee in the employment in which he was working at the time of the injury.\u2019 N.C.G.S. \u00a7 97-2(5) (emphasis added). This issue was exclusively and definitively addressed by this Court in Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479 (1966).) McAninch, 347 N.C. at 132-33, 489 S.E.2d at 379].\nPlaintiff further argues that the Commission erred in excluding per diem, travel pay, and wage advances from the calculation of Plaintiff\u2019s earnings while working for STS. \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.G.S. \u00a7 97-2(5). \u201cThe determination of whether an allowance was made in lieu of wages is a question of fact[.]\u201d Greene v. Conlon Constr. Co., 184 N.C. App. 364, 366, 646 S.E.2d 652, 655 (2007) (citations omitted). Though Plaintiff argues that evidence in the record supports his contention that he was paid the above items \u201cin lieu of wages,\u201d our review of the record shows that competent evidence exists in the record to support the Commission\u2019s findings of fact that those items were not advanced to Plaintiff in lieu of wages. Because some competent evidence exists supporting these findings of fact, they are binding on appeal \u2014 regardless of whether conflicting evidence might exist. Lineback, 126 N.C. App. at 680, 486 S.E.2d at 254.\nWe recognize that the average weekly wage computed by the Commission does not reflect the total wages Plaintiff would have earned from all employment Plaintiff would have undertaken, and this leaves Plaintiff with compensation greatly reduced from that which he would have recovered had he performed all his contract work through STS alone. We sympathize with the difficult financial position Plaintiff now faces as a result of having been injured while working for STS. However, the General Assembly enacted our workers\u2019 compensation act considering what it deemed \u201cfair and just\u201d to both parties.\nResults fair and just, within the meaning of G.S. 97-2[], consist of such \u201caverage weekly wages\u201d 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.\nLiles v. Electric Co., 244 N.C. 653, 660, 94 S.E.2d 790, 796 (1956) (emphasis deleted; emphasis added).\n\u201c[N.C.G.S. \u00a7 97-2(5)] contains no specific provision which would allow wages from any two employments to be aggregated in fixing the wage base for compensation. Plaintiff contends, however, that such authority is implied in method [5], since \u2018the amount which the injured employee would be earning were it not for the injury\u2019 necessarily includes earnings from all sources if the employee had more than one job.\nIt seems reasonable to us that the Legislature, having placed the economic loss caused by a workman\u2019s injury upon the employer for whom he was working at the time of the injury, would also relate the amount of that loss to the average weekly wages which that employer was paying the employee. Plaintiff, of course, will greatly benefit if his wages from both jobs are combined; but, if this is done, [the employer] and its carrier, which has not received a commensurate premium \u2014 will be required to pay him a higher weekly compensation benefit than [the employer] ever paid him in wages. ... [T]o combine plaintiff\u2019s wages from his two employments would not be fair to the employer. Method [5], \u2018while it prescribes no precise method for computing \u201caverage weekly wages,\u201d sets up a standard to which results fair and just to both parties must be related.\u2019\nAfter having specifically declared, in the usual situations to which method (1) is applicable, that an injured employee\u2019s average weekly wages shall be the wages he was earning in the employment in which he was injured, had the Legislature intended to authorize the Commission in the exceptional cases to combine those wages with the wages from any concurrent employment, we think it would have been equally specific. As was said in De Asis v. Fram Corp., [78 R.I. 249, 253, 81 A.2d 280, 282 (1951)]: \u2018If that radical and important change were intended, it is not likely that the legislature would have left such intent solely to a questionable inference.\u2019\nWe hold that, in determining plaintiff\u2019s average weekly wage, the Commission had no authority to combine his earnings from the employment in which he was injured with those from any other employment. Barnhardt, 266 N.C. at 427-29, 146 S.E.2d at 484-86 (final emphasis added).\u201d\nMcAninch, 347 N.C. at 133-34, 489 S.E.2d at 379-80 (citations omitted). It is the province of the General Assembly, not this Court, to make these policy determinations. Any result that flows from the enforcement of our state\u2019s workers\u2019 compensation act, and that is unfair to Plaintiff, is an issue for the General Assembly to address. Plaintiff\u2019s first argument is without merit.\nIII.\nIn Plaintiff\u2019s second argument, he contends the Commission erred in failing to consider equitable estoppel as a means of preventing Defendants from requesting that the Commission reduce the amount of compensation Defendants were providing Plaintiff. We disagree.\nPlaintiff relies on McAninch for the proposition that, because Defendants had voluntarily decided to compensate Plaintiff at a weekly rate of $329.58, Defendants should be estopped from contesting the amount of compensation. Plaintiff\u2019s reliance on McAninch is misplaced. In McAninch, the employer and employee had entered into a Form 21 agreement, agreeing on the rate of compensation. The Commission had approved that Form 21 agreement. The employer then attempted to have the Commission reduce the rate of compensation established by that Form 21 agreement. Our Supreme Court held:\nWhere 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. N.C.G.S. \u00a7 97-17 provides in pertinent part:\n\u201cNo party to any agreement for compensation approved by the Industrial Commission shall thereafter be heard to deny the truth of the matters therein set forth, unless it shall be made to appear to the satisfaction of the Commission that there has been error due to fraud, misrepresentation, undue influence or mutual mistake, in which event the Industrial Commission may set aside such agreement.\u201d\nN.C.G.S. \u00a7 97-17 (1991). \u201cThus, where there is no finding that the agreement itself was obtained by fraud, misrepresentation, mutual mistake, or undue influence, the Full Commission may not set aside the agreement, once approved.\u201d It is well settled that \u201can agreement for the payment of compensation when approved by the Commission is as binding on the parties as an order, decision or award of the Commission unappealed from, or an award of the Commission affirmed upon appeal.\u201d\nMcAninch, 347 N.C. at 132, 489 S.E.2d at 378-79 (citations omitted) (emphasis added). In the case before us, Plaintiff presents no evidence that any agreement existed between Plaintiff and Defendants concerning the rate of compensation, much less that an agreement existed that had been approved by the Commission. In fact, it was Plaintiff who requested, pursuant to Form 33, that a hearing be held on the issue of compensation. Plaintiff specifically contended in the Form 33 that the compensation rate he was receiving was \u201csignificantly lower than that to which he [wa]s entitled[.]\u201d The Form 33 further stated: \u201cI, [Plaintiff\u2019s attorney], respectfully notify [the Commission] that [Plaintiff and Defendants] have failed to reach an agreement in regard to compensation[.]\u201d This Form 33 was filed after Defendants had begun voluntarily compensating Plaintiff. Thus, having affirmatively denied the existence of any agreement between Plaintiff and Defendants concerning compensation, and having expressly challenged the amount of compensation Plaintiff was receiving from Defendants, Plaintiff may not now complain that the Commission held the hearing Plaintiff requested and considered the issue of compensation \u2014 the very issue for which Plaintiff requested the hearing. This argument is without merit.\nIV.\nIn Plaintiff\u2019s next argument, he contends the Commission erred in \u201callowing a credit to Defendants, as well as [in failing] to consider estoppel.\u201d We disagree.\nWe have already rejected Plaintiff\u2019s estoppel argument, and Plaintiff fails to address the issue of estoppel in his fourth argument. Plaintiff fails to cite to the standard of review concerning the grant or denial of a credit for overpayment of compensation. \u201cThe decision of whether to grant a credit is within the sound discretion of the Commission. Such decision to grant or deny a credit will not be disturbed on appeal in the absence of an abuse of discretion.\u201d Loch, 148 N.C. App. at 112-13, 557 S.E.2d at 187 (citation omitted). Plaintiff makes no argument that the Commission abused its discretion by awarding Defendants a credit for overpayment of compensation. We find no such abuse on the record before us. This argument is without merit.\nV.\nIn his final argument, Plaintiff contends the Commission erred by allowing the admission of certain evidence. Plaintiff has failed to preserve this argument.\nAs in Plaintiffs previous argument, Plaintiff fails to cite to any standard of review. Plaintiff, in three sentences, argues that the Commission erred in admitting certain evidence. Plaintiff cites to no authority in this argument and, therefore, also fails to make any argument in his brief that the Commission erred based upon any proper application of the law. Plaintiffs bald and unsupported statements that the Commission erred do not present any proper argument for appellate review. Having failed to make a proper argument, and having failed to cite to any authority, Plaintiff has abandoned this argument. N.C.R. App. P. 28(b)(6); Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 200, 657 S.E.2d 361, 367 (2008).\nAffirmed.\nChief Judge MARTIN and Judge ERVIN concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Pamela W. Foster for Plaintiff-Appellant.", "Hedrick, Gardner, Kincheloe & Garofalo, L.L.P, by Matthew J. Ledwith and M. Duane Jones, for Defendants-Appellees." ], "corrections": "", "head_matter": "JOHN THOMPSON, Employee, Plaintiff-Appellant v. STS HOLDINGS, INC., Employer, and WAUSAU INSURANCE COMPANIES, Carrier, Defendants-Appellees\nNo. COA10-581\n(Filed 21 June 2011)\n1. Workers\u2019 Compensation\u2014 calculation of compensation rate \u2014 fifth method \u2014 proper method\nThe Industrial Commission did not err in a workers\u2019 compensation case in calculating plaintiff\u2019s compensation rate pursuant to the fifth method enumerated in N.C.G.S. \u00a7 97-2. Plaintiff agreed that method one was not the appropriate method by which to calculate his average weekly wage and there was sufficient evidence before the Commission to support its findings that methods two, three, and four would not lead to fair and just results.\n2. Workers\u2019 Compensation\u2014 calculation of compensation rate \u2014 fifth method \u2014 proper calculation\nThe Industrial Commission did not err in a workers\u2019 compensation case by calculating wages earned by plaintiff while in the employ of defendant in a fifty-two week period, then dividing that amount by fifty-two in order to obtain plaintiff\u2019s average weekly wage pursuant to the fifth method enumerated in N.C.G.S. \u00a7 9-72.\n3. Workers\u2019 Compensation\u2014 calculation of compensation rate \u2014 exclusion of per diem, travel pay, and wage advances proper\nThe Industrial Commission did not err in a workers\u2019 compensation case in excluding per diem, travel pay, and wage advances from the calculation of plaintiff\u2019s earnings while working for defendant. Competent evidence existed in the record to support the Commission\u2019s findings of fact that those items were not advanced to plaintiff in lieu of wages.\n4. Workers\u2019 Compensation\u2014 reduction in compensation\u2014 equitable estoppel not considered \u2014 no error\nThe Industrial Commission did not err in a workers\u2019 compensation case by failing to consider equitable estoppel as a means of preventing defendant from requesting that the Commission reduce the amount of compensation defendant was providing plaintiff. Plaintiff affirmatively denied the existence of any agreement between plaintiff and defendant concerning compensation, and expressly challenged the amount of compensation plaintiff was receiving from defendant.\n5. Workers\u2019 Compensation\u2014 credit for overpayment of compensation \u2014 no error\nThe Industrial Commission did not err in a workers\u2019 compensation case in allowing a credit to defendants for overpayment of compensation, as well as in failing to consider estoppel. The Court of Appeals had already rejected plaintiff\u2019s estoppel argument and plaintiff made no argument that the Commission abused its discretion by awarding defendants a credit.\n6. Appeal and Error\u2014 preservation of issues \u2014 failure to cite authority\nPlaintiff failed to cite to any authority on appeal and thus failed to preserve for appellate review the argument that the Industrial Commission erred in a workers\u2019 compensation case by allowing the admission of certain evidence.\nAppeal by Plaintiff from amended opinion and award entered 24 February 2010 by the North Carolina Industrial Commission. Heard in the Court of Appeals 1 December 2010.\nPamela W. Foster for Plaintiff-Appellant.\nHedrick, Gardner, Kincheloe & Garofalo, L.L.P, by Matthew J. Ledwith and M. Duane Jones, for Defendants-Appellees." }, "file_name": "0026-01", "first_page_order": 36, "last_page_order": 48 }