{
  "id": 8525487,
  "name": "JAMES LINVILLE BROWN, Plaintiff-Employee v. WALNUT COVE VOLUNTEER FIRE DEPARTMENT, Defendant-Employer, and NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant-Insurance Carrier",
  "name_abbreviation": "Brown v. Walnut Cove Volunteer Fire Department",
  "decision_date": "1984-11-20",
  "docket_number": "No. 8410IC74",
  "first_page": "409",
  "last_page": "413",
  "citations": [
    {
      "type": "official",
      "cite": "71 N.C. App. 409"
    }
  ],
  "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": "306 N.C. 753",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8574961,
        8574981
      ],
      "year": 1982,
      "opinion_index": 0,
      "case_paths": [
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        "/nc/306/0753-02"
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    {
      "cite": "293 S.E. 2d 140",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1982,
      "pin_cites": [
        {
          "page": "143"
        },
        {
          "page": "143"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "306 N.C. 275",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8568216
      ],
      "year": 1982,
      "pin_cites": [
        {
          "page": "278"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/306/0275-01"
      ]
    }
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  "analysis": {
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    "simhash": "1:05e263cc6609c81d",
    "word_count": 1299
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  "last_updated": "2023-07-14T17:51:06.115640+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judge Hedrick concurs.",
      "Judge WEBB dissents."
    ],
    "parties": [
      "JAMES LINVILLE BROWN, Plaintiff-Employee v. WALNUT COVE VOLUNTEER FIRE DEPARTMENT, Defendant-Employer, and NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant-Insurance Carrier"
    ],
    "opinions": [
      {
        "text": "HILL, Judge.\nThe sole question presented by this appeal is the correctness of the determination of plaintiffs earnings in setting his compensation. Defendants contend the Industrial Commission erred by holding that plaintiffs compensation benefits were to be based on the average weekly wage earned while in the employment of Roadway Express, a company from which plaintiff had been laid off for almost a year. We disagree and for the reasons which follow affirm the decision of the Industrial Commission.\nG.S. 97-2(5) of the Workers\u2019 Compensation Act provides in pertinent part as follows:\nAverage Weekly Wages. \u2014 \u201cAverage weekly wages\u201d shall mean the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury . . . divided by 52. . . .\nIn case of disabling injury or death to a volunteer fireman . . . under compensable circumstances, compensation payable shall be calculated upon the average weekly wage the volunteer fireman . . . was earning in the employment wherein he principally earned his livelihood as of the date of injury.\nThe Industrial Commission calculated the compensation rate in this case based on the wages which plaintiff earned during his employment at Roadway Express, concluding that \u201c[t]he General Assembly intended that a volunteer fireman injured under com-pensable circumstances at a time when he was laid off subject to recall from his principal employment be compensated in accordance with his average weekly wages he was earning when laid off.\u201d\nDefendants point out that plaintiff was laid off some eleven months prior to the accident and had not worked for Roadway Express for six months prior thereto. Nevertheless, plaintiffs employment with Roadway Express in this case represents \u201cthe employment wherein he principally earned his livelihood as of the date of the injury,\u201d G.S. 97-2(5), because this vocation corresponds to plaintiffs primary source of income upon which plaintiff relied and intended to return to as soon as he was recalled to work. We do not believe the term \u201claid off\u2019 means a total severance of the employer-employee relationship under the facts of this case. The very fact that plaintiff had been recalled for work at Roadway Express during the interim is evidence that the employer intended to honor its commitment to recall plaintiff during the three year period subsequent to the lay off as provided in the union contract. In his claim for injury, plaintiff indicated to the adjuster that he expected to return to work for Roadway Express, and that he did not want his injury to interfere with his regular employment.\nThe fact that plaintiff sought other outside employment is immaterial. Not only was he unsuccessful, but such a job search was to be expected. His income had been reduced fifty percent after allowance for unemployment benefits. Nor do we consider the small earnings received as a self-employed mechanic to be of any significance. The fact that plaintiff did not report the income originally on his tax return and never took depreciation as a business expense are evidence that such employment was not where he \u201cprincipally earned his livelihood as of the date of the injury.\u201d G.S. 97-2(5).\nFurthermore, we believe our holding exemplifies the basic tenet that the intent of the legislature regarding the operation of a particular provision of the Workers\u2019 Compensation Act \u201cis to be discerned from a consideration of the Act as a whole \u2014 its language, purposes and spirit.\u201d Deese v. Lawn and Tree Expert Co., 306 N.C. 275, 278, 293 S.E. 2d 140, 143, reh\u2019g denied, 306 N.C. 753 (1982). This spirit is one of liberal construction, whenever appropriate, \u201cso that benefits will not be denied upon mere technicalities.\u201d Id. at 277, 293 S.E. 2d at 143. Accordingly, we find no error in the Full Commission\u2019s conclusion as a matter of law that \u201c[t]he General Assembly intended that a volunteer fireman under compensable circumstances at a time when he was laid off subject to recall from his principal employment be compensated in accordance with the average weekly wages he was earning when laid off.\u201d The Full Commission properly excluded plaintiffs average weekly earnings as a self-employed auto mechanic and properly refused to apply the minimum compensation rate prescribed by statute.\nThe decision of the Full Commission is\nAffirmed.\nJudge Hedrick concurs.\nJudge WEBB dissents.",
        "type": "majority",
        "author": "HILL, Judge."
      },
      {
        "text": "Judge Webb\ndissenting.\nI dissent. G.S. 97-2(5) says the plaintiffs compensation is to be based on the weekly wage he was earning \u201cas of the date of the injury.\u201d The plaintiff was not earning anything at Roadway Express on the date of the injury. I do not believe his compensation can be calculated on his former wage at Roadway Express.",
        "type": "dissent",
        "author": "Judge Webb"
      }
    ],
    "attorneys": [
      "Jerry Rutledge for plaintiff appellee.",
      "Tuggle, Duggins, Meschan and Elrod, P.A., by Richard L. Vanore and J. Reed Johnston, Jr. for defendant appellants."
    ],
    "corrections": "",
    "head_matter": "JAMES LINVILLE BROWN, Plaintiff-Employee v. WALNUT COVE VOLUNTEER FIRE DEPARTMENT, Defendant-Employer, and NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant-Insurance Carrier\nNo. 8410IC74\n(Filed 20 November 1984)\nMaster and Servant 8 71.1\u2014 volunteer fireman \u2014injured while laid off \u2014 compensation based on earnings while employed\nWhere a volunteer fireman suffered a compensable injury after he had been laid off from Roadway Express for eleven months and had not worked under recall for six months, the Industrial Commission correctly calculated compensation based on plaintiffs earnings at Roadway Express because that vocation corresponded to the primary source of income upon which plaintiff relied and intended to return. The fact that plaintiff had unsuccessfully sought other employment was immaterial, arid his small earnings as a self-employed mechanic were not significant because there was evidence that such employment was not where he principally earned his livelihood. G.S. 97-2(5).\nJudge Webb dissenting.\nAppeal by defendants from order of North Carolina Industrial Commission entered 7 November 1983. Heard in the Court of Appeals 23 October 1984.\nThis appeal involves the proper amount of workers\u2019 compensation to be paid a volunteer fireman. The facts underlying the legal controversy of this case are as follows. Plaintiff-employee injured his back while engaged as a volunteer fireman on behalf of the defendant-employer, Walnut Cove Volunteer Fire Department. Nationwide Mutual Insurance Company is carrier for the defendant Walnut Cove Volunteer Fire Department.\nPlaintiff was employed by Roadway Express as a journeyman mechanic in February 1979. He was laid off by Roadway Express on or about 10 May 1980. Between 10 May 1980 and November 1980 his unemployment with Roadway Express continued with the exception of a few weeks. However, his employment was under union contract, and he was subject to recall. At the time of his injury on 3 April 1981, plaintiff had not worked for Roadway Express for six months and had received no wages from Roadway Express during that period. Except for a few weeks between 11 March 1980 and 11 October 1980, he received unemployment compensation for the period between 11 May 1980 and 24 January 1981.\nAfter his lay-off plaintiff attempted unsuccessfully to find new employment, and in mid-March 1981 he became self-employed as a mechanic in a garage behind his house. He presented evidence of twenty-four workslips, twenty-one of which he attributes to the month of March 1981. Only six of the workslips were dated and only thirteen were marked paid. Initially, plaintiff did not include any income from his mechanic shop on his income tax return, but subsequently amended his 1981 return to show $1,138.00 income therefrom.\nThe Deputy Commissioner computed plaintiffs compensation rate based on his wages at Roadway Express and awarded plaintiff $210.00 per week, and further determined he was entitled a twenty percent residual permanent disability compensation at $210.00 per week. The Deputy Commissioner amended his original order concerning certain dates and the award of attorney fees, and the Full Commission affirmed the amended award. Defendants appeal.\nJerry Rutledge for plaintiff appellee.\nTuggle, Duggins, Meschan and Elrod, P.A., by Richard L. Vanore and J. Reed Johnston, Jr. for defendant appellants."
  },
  "file_name": "0409-01",
  "first_page_order": 443,
  "last_page_order": 447
}