Patterson Harkavy LLP » Average Weekly Wage

Burton Speaking at NCAJ Conference This Weekend

Narendra Ghosh — Sun, 17 Oct 2010 14:25:33 +0000

Burton Craige and Leto Copeley are speaking this weekend at the North Carolina Advocates for Justice Mountain Magic Conference. Burton is leading a panel entitled “Collateral Attack on the Collateral Source Rule.” He will lead a discussion about the national trend to allow defendants to introduce evidence of the amount actually paid for medical expenses, rather than limiting the evidence to the amount billed.

Leto will be speaking about employment law issues that workers’ compensation practitioners should be aware of, such as the ADA and FMLA. Wage and hour issues are also important ones to consider. As this short paper prepared by Leto and Narendra Ghosh states, “Workers’ compensation practitioners should remain vigilant for potential wage and hour violations as they pursue claims for their clients. When getting information on a client’s average weekly wage, for instance, it is important to at least consider whether your client is getting paid fully, including for overtime, under the wage and hour laws.”

Latest Workers’ Compensation Opinion from NC Court of Appeals

Narendra Ghosh — Sun, 26 Sep 2010 02:22:53 +0000

On September 21, 2010, the North Carolina Court of Appeals released its latest batch of opinions, which included one published case on workers’ compensation. In Pope v. Johns Manville, the Court issued a second opinion in this case after granting defendants’ petition for rehearing. The Court’s first opinion in this case, issued earlier this year, affirmed the Industrial Commission’s decision that the plaintiff had developed asbestosis from asbestos exposure during the 50′s and 60′s and that he was disabled due to his asbestosis. In this second opinion, the Court reconsidered the Commission’s decision on how much disability pay the plaintiff was due.

The Commission had calculated the plaintiff’s average weekly wage (AWW) based on his earnings in 2003, the last year he worked. Plaintiff was not diagnosed with asbestosis until 2005, after he had retired. The Court held that because the plaintiff is considered “injured” on the date of his asbestosis diagnosis, his AWW must be calculated from that point. Of course, because someone retired has no weekly wages, an exceptional method of measuring lost wages is probably appropriate under the fifth prong of the AWW definition of N.C. Gen. Stat. 97-2(5). The Court remanded the case to the Commission to reconsider the AWW issue and make the appropriate findings to support a decision on the AWW question.

Latest Court of Appeals Opinion on Workers’ Compensation

Narendra Ghosh — Mon, 04 Jan 2010 04:42:59 +0000

Just a few days before Christmas, the Court of Appeals published another set of decisions. Barrett v. All Payment Services is workers’ comp case that deals with an injured stuntman. The plaintiff worked as a professional stuntman, and in 1993 he injured his back while performing a car jump stunt on the set of a television series called “Bandit, Bandit”. Although in pain, the plaintiff continued to work off an on until 2001, when he had two surgeries for his back. The Industrial Commission had awarded temporary partial disability benefits for the period between 1993 and 2001, and total temporary disability benefits from 2001 onwards. The Court affirmed in part and reversed in part. With regard to the first period, the Court reversed because although the Commission had found that the plaintiff had reduced ability to work as a stuntman, it completely failed to make any findings about whether he could work in any other field. Such a finding is necessary in determining disability. With regard to the latter period, the Court affirmed the Commission’s conclusion that the plaintiff was totally disabled.

But the Court also reversed the Commission’s conclusion on plaintiff’s average weekly wage (AWW). The AWW question was difficult because of the nature of the plaintiff’s work: temporary work for different employers, short periods where he was highly paid, with many periods of no pay. The Commission found that using the standard AWW calculation methods (average pay over different periods) would not be fair, so used Method 5 for exceptional cases. Specifically, it averaged the plaintiff’s pay from all employers for the year before he was hurt. Although sympathetic to this approach, the Court was compelled to reject it because the Supreme Court has repeatedly held that an AWW calculation cannot encompass pay from other employers besides the employer where the injury occurred. The Court didn’t have an alternate method to recommend to calculate a fair AWW; it just remanded. But it also asked the Supreme Court to take the case on discretionary review to provide the right answer in cases like this one.