{ "id": 4033875, "name": "DANIEL TUNELL, Employee, Plaintiff v. RESOURCE MFG/PROLOGISTIX, Employer, AMERICAN CASUALTY COMPANY, Carrier (GALLAGHER BASSETT, Third-party Administrator), Defendants", "name_abbreviation": "Tunell v. Resource Mfg/Prologistix", "decision_date": "2012-08-07", "docket_number": "No. COA12-103", "first_page": "271", "last_page": "277", "citations": [ { "type": "official", "cite": "222 N.C. App. 271" } ], "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": "N.Y. Workers' Comp. Law \u00a7 15", "category": "laws:leg_act", "reporter": "N.Y.", "pin_cites": [ { "page": "(5)", "parenthetical": "McKinney 2012" } ], "opinion_index": 0 }, { "cite": "Fla. Stat. \u00a7 440.1", "category": "laws:leg_statute", "reporter": "Fla. Stat.", "year": 2011, "pin_cites": [ { "parenthetical": "stating that \"in case of temporary partial disability, compensation shall be equal to 80 percent of the difference between 80 percent of the employee's average weekly wage and the salary, wages, and other remuneration the employee is able to earn postinjury, as compared weekly\"" } ], "opinion_index": 0 }, { "cite": "711 S.E.2d 827", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "832", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "300 N.Y. 111", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2078688 ], "year": 1949, "pin_cites": [ { "page": "114", "parenthetical": "quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/ny/300/0111-01" ] }, { "cite": "272 So.2d 488", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9755755 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/so2d/272/0488-01" ] }, { "cite": "190 So.2d 326", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9837728 ], "year": 1966, "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/so2d/190/0326-01" ] }, { "cite": "347 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 192", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738158 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0192-01" ] }, { "cite": "146 S.E.2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1966, "pin_cites": [ { "page": "486", "parenthetical": "holding that \"in determining plaintiff's average weekly wage [pursuant to N.C. Gen. Stat. \u00a7 97-2(5)], the Commission had no authority to combine his earnings from the employment in which he was injured with those from any other employment\"" }, { "page": "486" }, { "page": "485", "parenthetical": "stating that \"to combine plaintiff's wages from his two employments would not be fair to the employer\"" } ], "opinion_index": 0 }, { "cite": "266 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561051 ], "weight": 3, "year": 1966, "pin_cites": [ { "page": "429", "parenthetical": "holding that \"in determining plaintiff's average weekly wage [pursuant to N.C. Gen. Stat. \u00a7 97-2(5)], the Commission had no authority to combine his earnings from the employment in which he was injured with those from any other employment\"" }, { "page": "429" }, { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0419-01" ] }, { "cite": "489 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "380", "parenthetical": "holding that \"the definition of 'average weekly wages' and the range of alternatives set forth in the five methods of computing such wages, as specified in the first two paragraphs of N.C.G.S. \u00a7 97-2(5" }, { "page": "380" } ], "opinion_index": 0 }, { "cite": "347 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551278 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "134", "parenthetical": "holding that \"the definition of 'average weekly wages' and the range of alternatives set forth in the five methods of computing such wages, as specified in the first two paragraphs of N.C.G.S. \u00a7 97-2(5" }, { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0126-01" ] }, { "cite": "94 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "796", "parenthetical": "emphasis omitted" } ], "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 omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0653-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2009, "pin_cites": [ { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" }, { "page": "(5)" } ], "opinion_index": 0 }, { "cite": "585 S.E.2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "267" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 180", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954923 ], "year": 2003, "pin_cites": [ { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0180-01" ] }, { "cite": "669 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "584", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "362 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149368 ], "year": 2008, "pin_cites": [ { "page": "660", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0657-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-30", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 9, "year": 2009, "pin_cites": [ { "parenthetical": "providing that the employer shall pay the injured employee \"a weekly compensation equal to sixty-six and two-thirds percent (66 2/3 %) of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter\"" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 632, "char_count": 16293, "ocr_confidence": 0.747, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1266263013789607 }, "sha256": "65e0cc465acb43e80b37b11f9a98fad2c2b853341b41162824a48ab98026f913", "simhash": "1:886cc74c7d3a632e", "word_count": 2526 }, "last_updated": "2023-07-14T20:23:21.020165+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and GEER concur." ], "parties": [ "DANIEL TUNELL, Employee, Plaintiff v. RESOURCE MFG/PROLOGISTIX, Employer, AMERICAN CASUALTY COMPANY, Carrier (GALLAGHER BASSETT, Third-party Administrator), Defendants" ], "opinions": [ { "text": "THIGPEN, Judge.\nDaniel Tunell (\u201cPlaintiff\u2019) appeals from an Opinion and Award of the North Carolina Industrial Commission (\u201cFull Commission\u201d) awarding him temporary partial disability compensation. We must decide whether a defendant-employer can deduct wages earned from a concurrent employer in calculating the defendant-employer\u2019s obligation to pay partial disability compensation pursuant to N.C. Gen. Stat. \u00a7 97-30 (2009). Because North Carolina law does not allow aggregation of wages from concurrent employment in calculating a plaintiff\u2019s average weekly wages, by extension, we hold that an employer cannot deduct wages earned from a concurrent employer in calculating partial disability compensation. Accordingly, we reverse the portion of the Opinion and Award calculating Plaintiff\u2019s temporary partial disability compensation and remand for entry of an Opinion and Award consistent with this opinion.\nI. Factual and Procedural Background\nOn 23 March 2010, Plaintiff was employed full-time by Resource MFG (\u201cEmployer\u201d) and sustained a compensable injury by accident arising out of and in the course of his employment when his left foot was injured. After his injury, Plaintiff was unable to return to work with Employer and was subsequently terminated by Employer. On the date of his injury, Plaintiff was also employed at Ross Dress-for-Less (\u201cRoss\u201d). After his injury, Plaintiff returned to work at Ross. Plaintiff subsequently filed a workers\u2019 compensation claim against Employer.\nAn Opinion and Award was entered by a deputy commissioner on 17 May 2011 concluding, in part, that Plaintiff was entitled to \u201ctemporary partial disability compensation at the rate of two thirds the difference between his average weekly wage at the time of his 23 March 2010 injury of $430.77 and the average weekly wages he earned thereafter while working for Ross Dress-for-Less[.]\u201d Plaintiff disagreed with the method used to calculate compensation under N.C. Gen. Stat. \u00a7 97-30, and he filed a Motion to Reconsider and Modify Opinion and Award. When his motion was denied, Plaintiff appealed to the Full Commission.\nOn 21 November 2011, the Full Commission filed an Opinion and Award upholding the deputy commissioner\u2019s method of calculating compensation. Specifically, the Full Commission concluded, in part, as follows:\n5. Based upon the preponderance of the credible vocational and medical evidence of record, including his work for Ross Dress-for-Less, and as a result of his March 23, 2010 injury by accident, Plaintiff is entitled to be paid by Defendants temporary partial disability compensation at the rate of two thirds the difference between his average weekly wage at the time of his March 23, 2010 injury of $430.77 and the average weekly wages he earned thereafter while working for Ross Dress-for-Less commencing in May 2010 and continuing through the present until such time as he returns to work at his pre-injury wage level, or further Order of the Commission, but subject to the statutory maximum period of three-hundred (300) weeks. N.C. Gen. Stat. \u00a7 97-30.\nPlaintiff appeals from the 21 November 2011 Opinion and Award, contending that the Full Commission erred by calculating his partial disability compensation pursuant to N.C. Gen. Stat. \u00a7 97-30 because Employer should not receive a credit for Plaintiff\u2019s post-injury earnings from Ross.\nII. Analysis\n\u201c[0]n appeal from an award of the Industrial Commission, review is limited to consideration of whether competent evidence supports the Commission\u2019s findings of fact and whether the findings support the Commission\u2019s conclusions of law.\u201d Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008) (citation omitted). \u201cThis Court reviews the Commission\u2019s conclusions of law de novo.\u201d Deseth v. LensCrafters, Inc., 160 N.C. App. 180, 184, 585 S.E.2d 264, 267 (2003).\nN.C. Gen. Stat. \u00a7 97-30 governs the calculation of partial disability compensation and states in relevant part:\nExcept as otherwise provided in G.S. 97-31, where the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid, as hereinafter provided, to the injured employee during such disability, a weekly compensation equal to sixty-six and two-thirds percent (66 2/3 %) of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter[.]\nN.C. Gen. Stat. \u00a7 97-2(5) (2009) defines \u201caverage weekly wages\u201d as \u201cthe earnings of the injured employee in the employment in which he was working at the time of the injury[.]\u201d \u201cResults fair and just, within the meaning of G.S. 97-2[], consist 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. Electric Co., 244 N.C. 653, 660, 94 S.E.2d 790, 796 (1956) (emphasis omitted).\nIn interpreting \u201caverage weekly wages\u201d pursuant to N.C. Gen. Stat. \u00a7 97-2(5), it is clear from our case law that a plaintiff cannot aggregate or combine his wages from more than one employment in calculating his compensation rate. See McAninch v. Buncombe County Schools, 347 N.C. 126, 134, 489 S.E.2d 375, 380 (1997) (holding that \u201cthe definition of \u2018average weekly wages\u2019 and the range of alternatives set forth in the five methods of computing such wages, as specified in the first two paragraphs of N.C.G.S. \u00a7 97-2(5), do not allow the inclusion of wages or income earned in employment or work other than that in which the employee was injured\u201d); see also Barnhardt v. Cab Co., 266 N.C. 419, 429, 146 S.E.2d 479, 486 (1966) (holding that \u201cin determining plaintiff\u2019s average weekly wage [pursuant to N.C. Gen. Stat. \u00a7 97-2(5)], the Commission had no authority to combine his earnings from the employment in which he was injured with those from any other employment\u201d), overruled on other grounds by Derebery v. Pitt County Fire Marshall, 318 N.C. 192, 347 S.E.2d 814 (1986). Thus, for purposes of computing compensation rate where a plaintiff worked two separate jobs at the time of injury, his average weekly wages are determined only from the earnings of the employment in which he was injured. See McAninch, 347 N.C. at 134, 489 S.E.2d at 380; see also Barnhardt, 266 N.C. at 429, 146 S.E.2d at 486.\nHowever, our review of North Carolina law does not reveal, nor did either party cite, a case deciding whether a defendant-employer can deduct wages earned from a concurrent or second employer in calculating the defendant-employer\u2019s obligation to pay partial disability compensation pursuant to N.C. Gen. Stat. \u00a7 97-30. Plaintiff contends that since North Carolina does not allow aggregation of wages from concurrent employment to determine the compensation rate, wages earned in concurrent employment should also be disregarded in computing partial disability. Defendants argue that wages earned from any source, including concurrent employment, must be included in computing partial disability. We agree with Plaintiff.\nThe issue raised in the instant case appears to be one of first impression in our appellate courts. According to 5 Larson\u2019s Workers\u2019 Compensation Law \u00a7 93.03[1][g] (2011):\nWhen aggregation of wages from concurrent employments is disallowed, the effect, as has been noted, is often to relegate the claimant to a part-time wage basis, although his or her actual earnings have been that of a full-time worker. Sometimes the harshness of the result is mitigated by a holding that, since wages in the concurrent employment were not considered in computing prior earnings, they will likewise be disregarded in appraising the degree of disability after the accident.\n(internal citation omitted). Other jurisdictions have adopted the approach discussed in Larson\u2019s. For example, the Supreme Court of Florida has held that \u201c[i]f earnings from concurrent employment, engaged in by claimant at the time of the injury, are excluded from determination of the average weekly wage, i.e., pre-injury earning capacity, earnings from that same employment should also be excluded from the determination of post-recovery earning capacity.\u201d Parrott v. City of Fort Lauderdale, 190 So.2d 326, 329 (1966), receded from on other grounds, Perez v. Carillon Hotel, 272 So.2d 488 (1973). This holding, however, is subject \u201cto the proviso that to the extent that the claimant, after injury, enlarges his participation in the concurrent employment as a substitute for the employment in which he was injured, then such enlarged participation may be considered in determining post-recovery earning capacity.\u201d Id. The Court of Appeals of New York similarly held that \u201cif claimant\u2019s average wage before the accident is determined on the basis only of earnings from the employment in which he suffered the injury, reason and fairness demand that the earnings after the accident should likewise be limited to wages from that same employment[.]\u201d Brandfon v. Beacon Theatre Corporation, 300 N.Y. 111, 114 (1949) (quotation marks omitted). Although not binding on this Court, the North Carolina Industrial Commission has also addressed the issue raised in the present case and reached a similar conclusion.\nAdopting the reasoning in the above cited sources, we hold that since our statutes and case law do not allow aggregation of wages from concurrent employment in calculating a plaintiff\u2019s average weekly wages pursuant to N.C. Gen. Stat. \u00a7 97-2(5), by extension, an employer cannot deduct wages earned from concurrent employment in calculating the employer\u2019s obligation to pay partial disability compensation pursuant to N.C. Gen. Stat. \u00a7 97-30. We note, however, that this holding may not apply in situations where the post-injury employment is found to have been enlarged or used as a substitute for the loss of earnings in the injury producing employment.\nIn reaching this holding, we note that \u201cthe General Assembly enacted our workers\u2019 compensation act considering what it deemed \u2018fair and just\u2019 to both parties.\u201d Thompson v. STS Holdings, Inc.,_ N.C. App._,_, 711 S.E.2d 827, 832 (2011) (emphasis in original). We believe the approach adopted by this Court is fair to the employee because it excludes from the determination of post-injury average weekly wages any earnings that were excluded from the determination of pre-injury average weekly wages. See N.C. Gen. Stat. \u00a7 97-30 (providing that the employer shall pay the injured employee \u201ca weekly compensation equal to sixty-six and two-thirds percent (66 2/3 %) of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter\u201d). Furthermore, the approach is fair to the employer because it does not require him to pay compensation based upon earnings from concurrent employment. See Barnhardt, 266 N.C. at 427, 146 S.E.2d at 485 (stating that \u201cto combine plaintiff\u2019s wages from his two employments would not be fair to the employer\u201d).\nIn this case, Plaintiff was working concurrently for Ross and Employer when he was injured while in the employment of Employer. The parties stipulated that Plaintiff\u2019s \u201caverage weekly wage is $430.77[,]\u201d which included only the earnings from Employer. Thus, Plaintiff\u2019s earnings from Ross were not included in the calculation of his average weekly wages before his injury. However, the Full Commission subtracted Plaintiff\u2019s post-injury earnings from Ross in calculating Employer\u2019s obligation to pay temporary partial disability. Following the holding of this opinion, because Plaintiff\u2019s earnings from Ross were not included in his average weekly wages before his injury, the Full Commission erred by subtracting Plaintiff\u2019s post-injury earnings from Ross in calculating Employer\u2019s obligation to pay temporary partial disability compensation. Accordingly, we reverse the portion of the Opinion and Award calculating Plaintiff\u2019s temporary partial disability compensation and remand for entry of an Opinion and Award consistent with this opinion.\nREVERSED AND REMANDED.\nJudges ELMORE and GEER concur.\n. We note that the Florida and New York statues governing the calculation of temporary partial disability compensation do not contain the exact same language as N.C. Gen. Stat. \u00a7 97-30. However, because all three statutes provide for the subtraction of post-injury wages from pre-injury average weekly wages, we find Parrott and Brandfon instructive. See Fla. Stat. \u00a7 440.1 (2011) (stating that \u201cin case of temporary partial disability, compensation shall be equal to 80 percent of the difference between 80 percent of the employee\u2019s average weekly wage and the salary, wages, and other remuneration the employee is able to earn postinjury, as compared weekly\u201d); see also N.Y. Workers\u2019 Comp. Law \u00a7 15(5) (McKinney 2012) (stating that for temporary partial disability \u201cthe compensation shall be two-thirds of the difference between the injured employee\u2019s average weekly wages before the accident and his wage earning capacity after the accident in the same or other employment\u201d).\n. In Haire v. Norwest Corporation (I.C. No. 569750. Opinion and Award for the Full Commission by Bemadine S. Balance, filed 7 April 1999) (citations omitted) (emphasis added), the Industrial Commission stated as follows:\nAt the time of injury, plaintiff worked in two separate jobs. It is clear from the prevailing law (and is not an issue herein) that plaintiffs average weekly wage should be determined from the employment of his injury. Plaintiff was able in the instant case to return to work within a short period of time in his part-time employment, but was totally disabled from work in his job of injury. The issue presented herein is whether the defendant, who is allowed by law to disregard plaintiff\u2019s pre-injury wages at his second or concurrent job for purposes of computing average weekly wage, can receive a credit for those same \u201cdisregarded\u201d wages when calculating defendant\u2019s obligation to pay temporary partial disability. This issue does not appear to have been specifically addressed by our appellate courts. In the Interlocutory Opinion and Award by the Full Commission in the instant case, this panel adopted the analysis of the Full Commission in Karen McGuire v. Mid Atlantic Marketing, Incorporated, I.C. File Number 457082 (May, 1996) which determined that in computing \u201cpartial disability\u201d, plaintiff\u2019s average weekly wage in the employment of injury and the second job must be considered. Although this Full Commission panel agrees that in computing partial disability, wages from both of his employments should be considered, it appears that the Larson\u2019s preferred rule used by the deputy commissioner herein should be followed. Accordingly, since North Carolina does not allow aggregation of wages from concwirent employment to determine the compensation rate, wages earned from concurrent employment will be disregarded in determining the extent of disability. However, if the concurrent employment were enlarged or resorted to as a substitute for loss of earning from the employment where the employee was hurt, then the additional wages would be considered.", "type": "majority", "author": "THIGPEN, Judge." } ], "attorneys": [ "R. James Lore, Attorney at Law, by R. James Lore, for the plaintiff", "Teague Campbell Dennis & Gorham, LLP, by John A. Tomei and Tara Davidson Muller, for the defendants." ], "corrections": "", "head_matter": "DANIEL TUNELL, Employee, Plaintiff v. RESOURCE MFG/PROLOGISTIX, Employer, AMERICAN CASUALTY COMPANY, Carrier (GALLAGHER BASSETT, Third-party Administrator), Defendants\nNo. COA12-103\n(Filed 7 August 2012)\nWorkers\u2019 Compensation \u2014 temporary partial disability \u2014 no deduction for wages earned from concurrent employer\nThe Industrial Commission erred in a workers\u2019 compensation case by calculating plaintiff employee\u2019s partial disability compensation pursuant to N.C.G.S. \u00a7 97-30. A defendant employer cannot deduct wages earned from a concurrent employer in calculating the defendant employer\u2019s obligation to pay partial disability compensation. The portion of the opinion and award calculating plaintiff\u2019s temporary partial disability compensation was reversed and remanded.\nAppeal by plaintiff from Opinion and Award by the North Carolina Industrial Commission entered 21 November 2011. Heard in the Court of Appeals 10 May 2012.\nR. James Lore, Attorney at Law, by R. James Lore, for the plaintiff\nTeague Campbell Dennis & Gorham, LLP, by John A. Tomei and Tara Davidson Muller, for the defendants." }, "file_name": "0271-01", "first_page_order": 281, "last_page_order": 287 }