Thompson v. Sts Holdings Inc.

• Decision Date: 21 June 2011
• Docket Number: No. COA10–581.,COA10–581.
• Citation: 711 S.E.2d 827
• Court: North Carolina Court of Appeals
• Parties: John THOMPSON, Employee, Plaintiff–Appellant,v.STS HOLDINGS, INC., Employer,andWausau Insurance Companies, Carrier, Defendants–Appellees.

711 S.E.2d 827

John THOMPSON, Employee, Plaintiff–Appellant,

v.STS HOLDINGS, INC., Employer,andWausau Insurance Companies, Carrier, Defendants–Appellees.

No. COA10–581.

Court of Appeals of North Carolina.

June 21, 2011.

OPINION TEXT STARTS HERE

Appeal 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.

Pamela W. Foster, High Point, for Plaintiff–Appellant.

Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Matthew J. Ledwith, Raleigh, and M. Duane Jones, Charlotte, for Defendants–Appellees.

McGEE, Judge.

Plaintiff 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's 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's injury, the workers' compensation insurance carrier for STS was Wausau Insurance Companies (together with STS, Defendants). The compensability of Plaintiff's 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's temporary total disability compensation to $30.00 per week. Plaintiff appealed the deputy commissioner's 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 “Defendants are entitled to a credit for payments that have already been made in excess of the compensation rate set forth [herein].”

In 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's 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's 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:

The 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 pro-rated 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's permanent residence and the employee certifies to [STS] that he is maintaining a temporary residence nearer to the worksite.

The 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.

The Commission also found that Plaintiff received travel pay for certain jobs to help defray the cost associated with travelling to a jobsite. An officer for STS testified

that 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's final check for that contract as a cost or wage advance.

The 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 “deducted from the employee's subsequent post-tax earnings.”

Finally, the Commission found that Plaintiff's “payroll records include[d] additional categories labeled ‘RC’ and ‘RE.’ 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.”

Based in part on these findings of fact, the Commission concluded that, while working for STS, Plaintiff's 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 “RC” and “RE” amounts did not constitute payments made by STS to Plaintiff in “lieu of wages.”

Pursuant to N.C. Gen.Stat. § 97–2(5), the Commission conducted an analysis in order to determine Plaintiff's average weekly wage during his employment with STS. After conducting its analysis under N.C.G.S. § 97–2(5), the Commission determined, pursuant to N.C. Gen.Stat. § 97–29, that Plaintiff was entitled only to the “minimum disability compensation rate of $30.00 per week.” Pursuant to N.C. Gen.Stat. § 97–42, the Commission granted Defendants “a credit for disability compensation payments that [had] been made in excess of the rate of $30.00 per week found applicable herein.” 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.

I.

We review opinions and awards of the Commission pursuant to the following standard:

The Commission has exclusive original jurisdiction over workers' compensation cases and has the duty to hear evidence and file its award, “together with a statement of the findings of fact, rulings of law, and other matters pertinent to the questions at issue.” N.C.G.S. § 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 “ ‘that the evidence [may] be considered in its true legal light.’ ”

Chambers v. Transit Mgmt., 360 N.C. 609, 611, 636 S.E.2d 553, 555 (2006) (citations omitted).

The 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' 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.

Lineback v. Wake County Board of Commissioners, 126 N.C.App. 678, 680, 486 S.E.2d 252, 254 (1997) (citations omitted).

II.

Plaintiff contends in his first argument that the Commission erred in calculating his compensation rate pursuant to N.C.G.S. § 97–2(5). We disagree.

The calculation of an injured employee's average weekly wages is governed by N.C.G.S. § 97–2(5). This statute sets forth in priority sequence five methods by which an injured employee's average weekly wages are to be computed, and in its opening lines, this statute defines or states the meaning of “average weekly wages.”

McAninch v. Buncombe County Schools, 347 N.C. 126, 129, 489 S.E.2d 375, 377 (1997). N.C. Gen.Stat. § 97–2(5) (2009) states in relevant part:

“Average weekly wages” 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...