Derebery v. Pitt County Fire Marshall

• Court: North Carolina Supreme Court
• Writing for the Court: EXUM; BRANCH, C.J., and MEYER; BILLINGS
• Citation: Derebery v. Pitt County Fire Marshall, 318 N.C. 192, 347 S.E.2d 814 (N.C. 1986)
• Decision Date: 29 August 1986
• Docket Number: No. 456PA85,456PA85
• Parties: Frank DEREBERY v. PITT COUNTY FIRE MARSHALL.

Page 814

347 S.E.2d 814

318 N.C. 192

Frank DEREBERY v. PITT COUNTY FIRE MARSHALL.

No. 456PA85.

Supreme Court of North Carolina.

Aug. 29, 1986.

Marvin Blount, Jr., and Charles Ellis, Greenville, for plaintiff-appellant.

Teague, Campbell, Dennis & Gorham by C. Woodrow Teague and Linda Stephens, Raleigh, for defendant-appellee.

Academy of Trial Lawyers by Paul J. Michaels and Gregory M. Martin, Raleigh, amicus curiae.

EXUM, Justice.

This is a workers' compensation case. The parties stipulated that plaintiff, Frank Leslie Derebery, (1) sustained an injury by accident arising out of and in the course of employment as a volunteer fireman with defendant, Pitt County Fire Marshall, and (2) is totally and permanently disabled as a result of that injury. The Industrial Commission computed plaintiff's average weekly wages with reference to the higher paid of two part-time employments which plaintiff held. The Commission also ordered defendant to provide plaintiff with a wheelchair accessible place to live.

Both parties appealed to the Court of Appeals. The plaintiff contended that the Commission erred in refusing to combine his wages from both employments to compute his average weekly wages. Defendant contended that the award of housing was not permitted under the Workers' Compensation Act. The Court of Appeals, relying on Barnhardt v. Cab Co., 266 N.C. 419, 146 S.E.2d 479 (1966), held that the Commission properly refused to combine plaintiff's wages because the higher paid of the two was the "employment wherein he principally earned his livelihood," as defined by N.C.G.S. § 97-2(5). ¹ The Court also held that the provision of N.C.G.S. § 97-29 ² "requiring payment for 'other treatment or care' ... can[not] be reasonably interpreted to extend the liability to provide a residence for an injured employee." Derebery v. Fire Marshall, 76 N.C.App. at 72, 332 S.E.2d at 97.

The questions presented by this appeal are whether the Court of Appeals erred in (1) affirming the Commission's refusal to consider both of plaintiff's part-time employments when calculating his average weekly wage, and (2) reversing the Commission's award of wheelchair accessible housing. We answer both questions affirmatively and reverse the Court of Appeals decision on both points.

I.

At the time he was injured plaintiff was single, nineteen years old and lived with his parents as he had all his life. He worked part-time for Sonic Drive-In earning $74.41 a week and part-time for Bill Askews Motors earning $87.40 a week.

Plaintiff's accident paralyzed his legs. He will always have to rely principally on a wheelchair for mobility. Plaintiff's physician stated, "with him [plaintiff] essentially being in a wheelchair almost entirely he would need architecturally accessible housing."

Several months after the accident plaintiff received rehabilitation therapy. Plaintiff became capable of living independently. During the time at the rehabilitation center, he expressed a desire to live apart from his parents.

Plaintiff returned to his parents' rented home after the stint at the rehabilitation center. The owner of the home has refused to permit structural modifications to the house. The rear entrance and four of the eight rooms in the house, including the kitchen and bathroom, will not admit plaintiff's wheelchair. As a result, plaintiff cannot get to the stove, must take sponge baths and use a portable commode chair.

Plaintiff introduced into evidence plans for a mobile home, the Enabler, which was designed to accommodate a wheelchair. A registered nurse for the Industrial Commission, Jerri McLamb, testified:

I feel that the mobile home described in Plaintiff's Exhibit Number 1 would meet Leslie's needs. I am working with five or six paraplegics through my job with the North Carolina Industrial Commission. It is also important to deal with the emotional needs that occur with spinal cord injuries. The emotional problems are certainly most important and that will determine how functional they're going to be and how well they can be rehabilitated.

With this evidence before it, the Commission, adopting the Opinion and Award of the deputy commissioner, made the following pertinent findings and conclusions of law:

FINDINGS OF FACT

....

2. During 1982 and up until 4 March 1983 plaintiff worked on a part time basis for Sonic Drive-In Theater. His average weekly wage with such theater was $74.41.

3. In late 1982 or early 1983 plaintiff also started a job with Bill Atkins [sic] Motors and worked for such company until 4 March 1983. His average weekly wage with the motor company was $87.40. His principal employment was with the motor company and he principally earned his livelihood in such employment.

4. After receiving treatment for his injury by accident plaintiff returned to his home to live with his mother and father. Such home is not suitable for plaintiff's needs as a permanent and totally disabled person. However, the owner of the home does not desire any changes made in his property and no changes have, therefore, been made in the interior of the home.

5. Plaintiff needs to live alone. He is able to take care of his own personal needs. Defendant should furnish plaintiff with a completely wheelchair accessible place to live and provide all reasonable and necessary care for plaintiff's well-being.

CONCLUSIONS OF LAW

1. Plaintiff is permanently and totally disabled as a result of his injury by accident and he is, therefore, entitled to compensation at the rate of $58.27 per week commencing on the date of his accident and continuing for his lifetime. G.S. 97-29; G.S. 97-2(5); ...

2. Defendant shall furnish plaintiff with all reasonable and necessary treatment or care for the well-being of plaintiff which includes an appropriate place for plaintiff to live in view of his condition.

Upon the foregoing findings of fact and conclusions of law, the Commission entered an award that defendant shall "pay plaintiff compensation at the rate of $58.27 per week" and furnish plaintiff with an appropriate place to live in view of his disabled condition...."

II.

Plaintiff contends first that the Court of Appeals erred in affirming the method employed by the Industrial Commission to calculate plaintiff's average weekly wages. At the time plaintiff was injured he was earning $74.41 working part-time for one employer and $87.40 per week working part-time for another employer. The Commission considered only the wages earned in the employment where plaintiff earned the greater wages to calculate his average weekly wage. Plaintiff contends the Commission should have considered the wages in both part-time employments. We agree.

The last paragraph of N.C.G.S. § 97-2(5) provided on the date of plaintiff's accident:

In case of disabling injury or death to a volunteer fireman or member of an organized rescue squad or duly appointed and sworn member of an auxiliary police department organized pursuant to G.S. 160A-282 or senior members of the State Civil Air Patrol functioning under Article 11, Chapter 143B, under compensable circumstances, compensation payable shall be calculated upon the average weekly wage the volunteer fireman or member of an organized rescue squad or member of an auxiliary police department or senior member of the State Civil Air Patrol was earning in the employment wherein he principally earned his livelihood as of the date of injury.

N.C.G.S. § 97-2(5) (1979). The Commission interpreted the statute as if the legislature employed the word "principally" to distinguish among possible nonvolunteer fire department jobs a volunteer fireman may hold. The cardinal rule of statutory construction is that legislative intent controls. In seeking to ascertain this intent, courts should consider the language of the statute, the spirit of the Act and what the statute seeks to accomplish. Crumpton v. Mitchell, 303 N.C. 657, 281 S.E.2d 1 (1981); Stephenson v. Durham, 281 N.C. 300, 188 S.E.2d 281 (1972). The statute does contemplate that persons to whom it applies might have multiple employments. The context of the statute, however, demarcates a person's voluntary and remunerative employments. The legislature employed the term "principally" to distinguish the fireman's volunteer employment from his other, renumerative employment or employments,i.e., "the employment wherein he principally earned his livelihood." The statute insures that the injured volunteer fireman receives compensation commensurate with his proven earning ability as demonstrated by the wages he receives for work done other than in his capacity as a volunteer fireman.

Our interpretation comports with the purpose of the average weekly wage basis as a measure of the injured employee's earning capacity. See A. Larson, The Law of Workmen's Compensation § 60.00 (1986). This purpose is reflected in the second paragraph of N.C.G.S. § 97-2(5) which states that if all other statutorily provided measures for computing average weekly wages fail, an employee's average weekly wages must be determined by calculating "the amount which the injured employee would be earning were it not for the injury." N.C.G.S. § 97-2(5).

Defendant cites Barnhardt v. Cab Co., 266 N.C. 419, 146 S.E.2d 479 (1966), in support of his argument that the Commission properly refused to combine plaintiff's earnings to calculate his average weekly wage. In that case claimant worked full time for National Cash Register Company at a weekly wage of $68.00. The claimant also was employed by the Yellow Cab Company part-time at a weekly wage of $26.90. Plaintiff was shot in the head and became totally and permanently disabled while working for the cab company. The Industrial Commission combined plaintiff's weekly wages in the part-time and full-time employments to arrive at his average weekly wage. The superior court affirmed the Industrial Commission's award. This Court reversed: "We hold that, in determining plaintiff's average...