Tedder v. A & K Enterprises

• Decision Date: 16 December 2014
• Docket Number: No. COA14–551.,COA14–551.
• Citation: 238 N.C.App. 169,767 S.E.2d 98
• Court: North Carolina Court of Appeals
• Parties: Keith TEDDER, Employee, Plaintiff, v. A & K ENTERPRISES, Employer, and Protective Insurance Company, Carrier, Defendants.

238 N.C.App. 169

767 S.E.2d 98

Keith TEDDER, Employee, Plaintiff,

v. A & K ENTERPRISES, Employer,andProtective Insurance Company, Carrier, Defendants.

No. COA14–551.

Court of Appeals of North Carolina.

Dec. 16, 2014.

Goodman McGuffey Lindsey & Johnson, LLP, by Michael A. Cannon, for defendants-appellants.

David Gantt Law Office, Asheville, by David Gantt, for plaintiff-appellee.

DIETZ, Judge.

This workers' compensation case concerns the proper method of calculating average weekly wages for temporary employees. After two years of unemployment and a few months in a low-paying seasonal job, Plaintiff Keith Tedder began a seven-week temporary position with Defendant A & K Enterprises that paid $625 per week.

Unfortunately, Tedder injured his back after the first week in this temporary position and could not continue working. He then applied for workers' compensation benefits. In awarding benefits, the Industrial Commission calculated Tedder's average weekly wage at $625, despite finding that Tedder was a temporary employee, that he could not expect to earn that wage full time, and that the $625 calculation was "unfair" to A & K.

The Commission's calculation cannot be sustained. The purpose of the average weekly wage calculation is to approximate what the employee would be earning were it not for the injury, not to provide an earnings safety net for the chronically unemployed or underemployed.

Consistent with this statutory purpose, we hold that in calculating average weekly wages for employees in temporary positions, the Commission must take into account the number of weeks the employee would have been employed in that temporary position relative to a 52–week time period. Here, the short duration of Tedder's temporary employment must result in an average weekly wage that is substantially less than $625. Accordingly, although we affirm the Commission's conclusion that Tedder is eligible for temporary total disability compensation, we reverse the Commission's average weekly wage determination and remand for a new determination consistent with this opinion.

Factual Background

I. Tedder's Employment History

Keith Tedder is a 48–year–old single father whose work experience consists entirely of heavy lifting and driving trucks. Over the years, Tedder has worked as a delivery driver for a number of different companies, loading and unloading items weighing up to 150 pounds. In June 2004, while delivering packages for an employer in Asheville, Tedder injured his back. He later settled his workers' compensation claim with that employer.

To alleviate the pain resulting from his 2004 injury, Tedder underwent a right L4–5 laminectomy

and discectomy on 7 November 2005. Dr. Michael Goebel, who performed the surgery, noted that Tedder experienced a surprising recovery. On 14 February 2006, Dr. Goebel found that Tedder had reached maximum medical improvement and assigned a 10% permanent partial impairment rating to his back. He released Tedder to medium-duty work, placing permanent restrictions on lifting more than fifty pounds, as well as limitations on bending, stooping, twisting, squatting, crouching, and prolonged sitting or standing.

After his release from Dr. Goebel's care in April 2006, Tedder did not find a job until March 2007, when he began working for Carolina Mulch as a delivery driver. He worked that job for eighteen months before being laid off in September 2008. While at Carolina Mulch, Tedder was able to perform all the duties of a delivery driver, including loading and unloading very heavy items without difficulty. He regularly exceeded Dr. Goebel's permanent restrictions without incident. Although he occasionally experienced a sore back when he worked overtime, Tedder did not seek any medical assistance for his back while working for Carolina Mulch.

After being laid off from Carolina Mulch in September 2008, Tedder was unemployed for more than two years. In November 2010, Tedder accepted a position with Volt Management Corporation, a temporary staffing agency that contracted with Federal Express to provide extra delivery drivers during the press of the holiday season. Tedder worked approximately eight to ten hours per day, two days per week for Volt, earning at most $260 per week. Tedder did not seek any medical treatment for his back during his employment with Volt.

II. Tedder's Job at A & K

In February 2011, as Tedder's seasonal work at Volt drew to a close, Defendant A & K Enterprises asked Volt for recommendations to fill an open position for a temporary delivery driver. A & K is a small "mom-and-pop" delivery company and subcontractor for Federal Express. The company hires temporary employees during the peak holiday season and also on an as-needed basis. A & K was searching for a temporary employee to fill in for one of its full-time delivery drivers who was scheduled to undergo surgery. A & K anticipated that the full-time employee would be absent for seven weeks on medical leave.

Volt referred Tedder to A & K, and A & K ultimately hired Tedder as a temporary driver working five days per week for $625 per week. The Full Commission expressly found that Tedder was "a temporary employee hired to work for a limited time period of seven weeks."

III. Tedder's Injury and Ongoing Treatment

On 8 March 2011, just one week after beginning his temporary employment with A & K, Tedder felt a sharp pain in his lower back while bending over to pick up a package. He was able to complete the remainder of his shift, but the route took him twice as long due to intense pain in his lower back. The next day, Tedder called to inform the owners of A & K that he was unable to work due to the pain he was experiencing. A & K hired another temporary worker to cover the remainder of its full-time employee's seven-week medical leave.

Following his 8 March 2011 injury, Tedder sought care from a number of medical professionals to address the pain in his back. Despite this ongoing care, however, Tedder continued to experience sharp pain in his lower back, as well as pain and numbness in his left buttock, leg, and foot. He scheduled an appointment at the Carolina Spine & Neurosurgery Center in early 2012, where he was examined by Dr. John Silver. Dr. Silver, a board certified neurosurgeon, determined that the 8 March 2011 accident exacerbated Tedder's pre-existing back condition. He recommended that Tedder undergo a Functional Capacity Evaluation to determine his physical limitations. Dr. Silver referred Tedder for an epidural injection

and for additional evaluation with Dr. Margaret Burke.

Before beginning treatment with Dr. Burke, Tedder underwent an independent medical evaluation (at Defendants' request) with Dr. Richard Broadhurst, an expert in occupational and environmental medicine. Dr. Broadhurst recommended that until he receive further treatment, Tedder could return to work at the sedentary level with a ten pound maximum lifting restriction, along with significant limitations on movement.

Tedder began treatment under the care of Dr. Burke, a physiatrist, on 29 March 2012. Dr. Burke diagnosed Tedder with chronic left L5 radiculopathy

and prescribed a course of physical therapy. In her deposition testimony, Dr. Burke stated that Tedder's condition was not purely degenerative in nature, and that the 8 March 2011 accident exacerbated Tedder's pre-existing back condition. Tedder has continued treatment with Dr. Burke, who is his ongoing pain management physician. As of the date of her post-hearing deposition conducted 14 January 2013, Dr. Burke had not released Tedder at maximum medical improvement.

Since his injury in March 2011, Tedder has not returned to employment with A & K or any other employer. Tedder filed for workers' compensation benefits on 2 May 2011. A & K and its insurer denied the compensability of the claim. Deputy Commissioner Myra L. Griffin granted Tedder's claim in an opinion and award filed 15 April 2013, determining that he was entitled to temporary total disability compensation and calculating his statutory average weekly wages at $625 per week. Defendants timely appealed to the Full Commission.

The Full Commission, in a unanimous decision by Commissioners Pamela T. Young, Bernadine Ballance, and Danny Lee McDonald, affirmed the deputy commissioner's award on 10 March 2014. Defendants timely appealed to this Court.

Analysis

Our review of a decision of the Industrial Commission "is limited to determining whether there is any competent evidence to support the findings of fact, and whether the findings of fact justify the conclusions of law." Cross v. Blue Cross/Blue Shield, 104 N.C.App. 284, 285–86, 409 S.E.2d 103, 104 (1991). The findings of the Commission are conclusive on appeal where competent evidence exists, "even if there is plenary evidence for contrary findings." Hardin v. Motor Panels, Inc., 136 N.C.App. 351, 353, 524 S.E.2d 368, 371 (2000). We review the Full Commission's conclusions of law de novo. Conyers v. New Hanover Cnty. Sch., 188 N.C.App. 253, 255, 654 S.E.2d 745, 748 (2008).

I. Computation of Tedder's Average Weekly Wages

Defendants first challenge the Commission's computation of Tedder's average weekly wages. "The determination of the plaintiff's ‘average weekly wages' requires application of the definition set forth in the Workers' Compensation Act, and the case law construing that statute[,] and thus raises an issue of law, not fact." Boney v. Winn Dixie, Inc., 163 N.C.App. 330, 331–32, 593 S.E.2d 93, 95 (2004) (citation and internal quotation marks omitted). We therefore review the Commission's calculation of Tedder's average weekly wages de novo. Id.

Average weekly wages are determined by calculating the amount the injured worker would be earning but for his injury. Loch v. Entm't Partners Employer, 148 N.C.App. 106, 111, 557 S.E.2d 182, 185 (2001). The calculation is governed by N.C. Gen.Stat. § 97–2(5), which sets out five distinct methods for calculating an injured employee's average weekly wages. Conye...