Alston v. Superior Walls ( 2007 )

*********** Having reviewed the assignment of error by Plaintiff, the briefs of the parties and the documentation provided by the parties to the Deputy Commissioner, and finding no good grounds to receive further evidence or to rehear the parties or their representatives, the Full Commission upon reconsideration of the evidence, affirms the Order of the Deputy Commissioner. * * * * * * * * * * * Plaintiff sustained an admittedly compensable injury on June 9, 2005. Defendants initially paid compensation based upon an incorrect average weekly wage. After further investigation the parties determined by stipulation that Plaintiff's average weekly wage was $351.55 instead of $350.00. Defendants promptly issued payment of the underpayment of average weekly wage to Plaintiff. However, Plaintiff is seeking a 10% penalty on the underpayment. The Full Commission finds and concludes that Plaintiff is not entitled to a 10% penalty under the circumstances of this case. Defendants paid according to the best information they had at the time and continued to reasonably investigate to determine the proper average weekly wage until this disputed issue was resolved by stipulation.

IT IS THEREFORE ORDERED that Plaintiff's request for a 10% penalty under N.C. Gen. Stat. § 97-18(g) is DENIED.

S/_____________________________________ BERNADINE S. BALLANCE COMMISSIONER

CONCURRING:

S/_____________________________________ BUCK LATTIMORE COMMISSIONER

S/_____________________________________ DANNY LEE MCDONALD COMMISSIONER