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Written by: Elizabeth Ligon
In Ball v. Bayada Home Health Care, Plaintiff worked for Bayada as a certified nurse’s assistant for nine months before she was transferred to a new location and began working with a single client. As a result of this change, Plaintiff’s hourly wage and number of hours increased. Plaintiff sustained a work-related injury on February 10, 2011, her first day of work with the new client. She continued working until she was injured again on May 18, 2011. This second injury was found not compensable by the Industrial Commission.
The deputy commissioner used method five of N.C.G.S. § 97-2(5) and calculated an average weekly wage of $510.33 with a compensation rate of $340.24. Method five states that, if methods one through four are unfair to either the employee or the employer, another method may be resorted to that will most nearly approximate the wages the employee would have earned if not for the injury. Defendants appealed to the Full Commission, who applied method three and divided the earnings earned by the number of weeks worked pre-injury. Using method three, the Full Commission determined Plaintiff’s average weekly wage was $284.79 with a compensation rate of $189.87.
Plaintiff appealed to the Court of Appeals, which held that method three was unfair to Plaintiff because it ignored the months of increased hours and pay she worked after her February 10, 2011 injury. The Court further stated that Plaintiff’s post-injury work should be taken into account to most nearly approximate what Plaintiff would be earning had she not been injured. The case was remanded to the Commission for a determination of Plaintiff’s average weekly wage using method five.
RISK HANDLING HINT: Plaintiffs’ attorneys might attempt use this case to argue that this constitutes a change in the law, and post-injury wages may be included when calculating claimants’ average weekly wage and compensation rates. However, the facts in this case are rather unique. Normally, a plaintiff will have a reduction in wages following a work-related injury. In this case, the plaintiff’s wages increased for a period of three months following her first injury by accident. The Court of Appeals instructed the Commission to use method five, but did not dictate a specific award. It is possible that the plaintiff’s average weekly wage could actually be lower, depending on how the Commission applies method five based on the facts of this case. Please contact the attorneys of Teague Campbell if you are faced with a similar unique fact pattern.