Frank v. Charlotte SymphonyÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-211
Filed: 5 September 2017
North Carolina Industrial Commission, I.C. No. 14-743149
CYNTHIA FRANK, Employee, Plaintiff,
v.
CHARLOTTE SYMPHONY, Employer, and SELECTIVE INSURANCE COMPANY
OF AMERICA, Carrier, Defendants.
Appeal by plaintiff from an opinion and award entered 7 December 2016 by the
Full North Carolina Industrial Commission. Heard in the Court of Appeals 23
August 2017.
Seth M. Bernanke for plaintiff-appellant.
Rudisill, White & Kaplan, P.L.L.C., by Garth H. White, for defendant-appellees.
TYSON, Judge.
Cynthia Frank (“Plaintiff”) appeals from the Opinion and Award of the North
Carolina Industrial Commission (“Commission”), which determined the amount of
her average weekly wages and compensation rate. We affirm the Commission’s
Opinion and Award.
I. Background
Plaintiff was employed by the Charlotte Symphony Orchestra (“Defendant-
Employer”) as a violist. On 24 June 2012, Plaintiff filed a Form 18 (“Notice of
FRANK V. CHARLOTTE SYMPHONY ORCHESTRA
Opinion of the Court
Accident to Employer and Claim of Employee, Representative, or Dependent”) with
the Commission. She alleged sustaining a compensable injury and/or occupational
disease to her right shoulder. Plaintiff listed her average weekly wages as “$760.00+”
on the Form 18, and stated both the number of hours per day and the days of the
week she worked “varies.” Plaintiff listed her date of injury as 15 December 2013.
Defendant-Employer and its insurance carrier (collectively, “Defendants”) filed
a Form 61 (“Denial of Workers’ Compensation Claim”). Plaintiff’s claim was heard
before the deputy commissioner on 22 June 2015. Prior to the hearing, Defendants
accepted Plaintiff’s shoulder injury as compensable. The parties agreed the only issue
to be determined by the deputy commissioner was the calculation of Plaintiff’s
average weekly wages.
The deputy commissioner issued her Opinion and Award and determined
Plaintiff’s average weekly wages to be $757.94, which produced a compensation rate
of $505.32. Plaintiff appealed the determination of her average weekly wages to the
Commission.
By Opinion and Award dated 7 December 2016, the Commission unanimously
affirmed the deputy commissioner’s determination of Plaintiff’s average weekly
wages and compensation rate. Plaintiff appeals.
II. Jurisdiction
-2-
FRANK V. CHARLOTTE SYMPHONY ORCHESTRA
Opinion of the Court
Jurisdiction lies in this Court from opinion and award of the Commission
pursuant to N.C. Gen. Stat. §§ 97-86 and 7A-27(b) (2015).
III. Average Weekly Wages
Plaintiff’s sole argument on appeal asserts the Commission erred by applying
the incorrect method under N.C. Gen. Stat. § 97-2(5) (2015) to calculate her average
weekly wages. We disagree.
A. Standard of Review
This Court reviews an opinion and award of the Commission to determine
whether the findings of fact are supported by competent evidence and whether the
conclusions of law are supported by the findings of fact. Barham v. Food World, 300
N.C. 329, 331, 266 S.E.2d 676, 678 (1980). However, “[t]his Court reviews the
Commission’s conclusions of law de novo.” McLaughlin v. Staffing Solutions, 206 N.C.
App. 137, 143, 696 S.E.2d 839, 844 (2004) (citation omitted).
“The determination of the plaintiff’s ‘average weekly wages’ requires
application of the definition set forth in the Workers’ Compensation Act, [N.C. Gen.
Stat. § 97-2(5)], and the case law construing that statute and thus raises an issue of
law, not fact.” Swain v. C & N Evans Trucking Co., 126 N.C. App. 332, 335-36, 484
S.E.2d 845, 848 (1997).
B. Commission’s Findings
-3-
FRANK V. CHARLOTTE SYMPHONY ORCHESTRA
Opinion of the Court
No testimony was presented to the Commission as the parties stipulated to the
facts:
1. Plaintiff has been employed as a violist with Defendant-
Employer for 17 years.
2. Plaintiff’s contracts for the 2012-2013 and 2013-2014
seasons and the referenced collective bargaining
agreements for that period are stipulated. Wage
printouts from the Defendant-Employer are stipulated.
W-2 and contract from the Chautauqua Symphony are
stipulated.
3. Defendant-Employer’s regular season yearly runs from
September through May. Each musician’s individual
contract specifies a weekly wage. In addition, there are
additional payments available, such as “move up” pay,
which compensates the musician for sitting in at a
higher level for an absent colleague; broadcast pay, for
when the concert is recorded; overtime for special or
specific programs; and seniority pay. Plaintiff also
received additional compensation through the
Defendant-Employer for clinics she taught at local high
schools.
4. Defendant-Employer operates a summer season, which
usually runs 4 weeks in June and July. Participation in
the summer season is optional for all musicians but, if
a musician plays during the summer season, the
musician is compensated at the weekly rate provided in
the individual contract.
5. Rehearsals and concerts are called “services.” Each
regular season runs the number of weeks specified in
the contract. Both the 2012-2013 regular season and the
2013-2014 regular season were 33 weeks. During the
course of the regular season, there are three weeks that
are designated as vacation weeks. There are no services
scheduled during the off season. Any week that has no
-4-
FRANK V. CHARLOTTE SYMPHONY ORCHESTRA
Opinion of the Court
services scheduled and is not a designated vacation
week is a layoff week. For all layoff weeks, musicians
may file for unemployment checks from the N.C.
Division of Employment Security. Until recently,
Defendant-Employer applied for unemployment on
behalf of its musicians. If a musician elects not to
participate in the summer season, the musician cannot
receive unemployment during that four week period.
During 2013, plaintiff collected 3 weeks of
unemployment benefits at a weekly rate of $535.00 per
week. These benefits were charged to Defendant-
Employer.
6. The collective bargaining agreement expressly allows
the musicians to have other employment as long as it
does not interfere with performance of the contracted
services. Even if it does conflict, there is a procedure by
which the musician can request leave.
7. In the summer of 2013, Plaintiff played for Defendant-
Employer for two weeks out of the four-week summer
season. Plaintiff played all 33 weeks of the portions of
the 2012-2013 season and 2013-2014 that fell in the
calendar year 2013. Therefore, of the 52 weeks
preceding Plaintiff's accepted date of injury, December
15, 2013, Plaintiff performed services for Defendant-
Employer a total of 36 weeks. In the year prior to the
injury date in this claim, the vacation weeks were
December 24, 2012 through January 6, 2013 and March
4, 2013 through March 10, 2013. (emphasis supplied).
8. Plaintiff’s gross wages from Defendant-Employer for
the 52 weeks preceding Plaintiff’s date of injury were
$39,412.83, a figure which includes all compensation
referenced in paragraph 3 above.
9. For several years, including 2013, Plaintiff has worked
during the summers as a violist for the Chautauqua
Symphony in New York state. The Chautauqua season
begins in the first week of July and continues for eight
-5-
FRANK V. CHARLOTTE SYMPHONY ORCHESTRA
Opinion of the Court
weeks. Plaintiff’s weekly wages for this job were set by
contract at $1,080.00 gross compensation per week.
They also paid her approximately $6,000.00 as a
housing allowance for the season. Plaintiff’s
employment for the Chautauqua Symphony and
Defendant-Employer did not overlap and was not
concurrent.
C. Statutory Methods for Calculating Average Weekly Wages
N.C. Gen. Stat. § 97-2(5) governs the determination of an injured employee’s
average weekly wages:
(5) Average Weekly Wages. -- [1] “Average weekly wages”
shall mean the earnings of the injured employee in the
employment in which the employee was working at the
time of the injury during the period of 52 weeks
immediately preceding the date of the injury . . . divided by
52; [2] but if the injured employee lost more than seven
consecutive calendar days at one or more times during such
period, although not in the same week, then the earnings
for the remainder of such 52 weeks shall be divided by the
number of weeks remaining after the time so lost has been
deducted. [3] Where the employment prior to the injury
extended over a period of fewer than 52 weeks, the method
of dividing the earnings during that period by the number
of weeks and parts thereof during which the employee
earned wages shall be followed; provided, results fair and
just to both parties will be thereby obtained. [4] Where, by
reason of a shortness of time during which the employee
has been in the employment of his employer or the casual
nature or terms of his employment, it is impractical to
compute the average weekly wages as above defined,
regard shall be had to the average weekly amount which
during the 52 weeks previous to the injury was being
earned by a person of the same grade and character
employed in the same class of employment in the same
locality or community.
-6-
FRANK V. CHARLOTTE SYMPHONY ORCHESTRA
Opinion of the Court
[5] But where for exceptional reasons the foregoing would
be unfair, either to the employer or employee, such other
method of computing average weekly wages may be
resorted to as will most nearly approximate the amount
which the injured employee would be earning were it not
for the injury.
N.C. Gen. Stat. § 97-2(5) (bracketed numerals supplied).
The statute provides five possible and hierarchal methods for calculating the
injured employee’s average weekly wages. “[I]t is clear that this statute establishes
an order of preference for the calculation method to be used[.]” Bond v. Foster
Masonry, Inc., 139 N.C. App. 123, 128, 532 S.E.2d 583, 586 (2000) (citation omitted).
“The final, or fifth method, as set forth in N.C. Gen. Stat. § 97-2(5), may not be used
unless there has been a finding that unjust results would occur by using the
previously enumerated methods.” Id. (citing Wallace v. Music Shop, II, Inc., 11 N.C.
App. 328, 331, 181 S.E.2d 237, 239 (1971)).
Here, the Commission rejected the first four methods as inapplicable or unjust
under these facts, and calculated Plaintiff’s average weekly wages by using the fifth,
or final, method. See N.C. Gen. Stat. § 97-2(5). Plaintiff argues the Commission erred
by employing this method to calculate her average weekly wages, and asserts the
Commission should have employed the second method set forth in the statute.
D. Commission’s Application of N.C. Gen. Stat. § 97-2(5)
The Commission explained its analysis and rejection of each of the first four
statutory methods, and its choice and application of the fifth method as the most
-7-
FRANK V. CHARLOTTE SYMPHONY ORCHESTRA
Opinion of the Court
appropriate, which we review de novo. See McLaughlin v. Staffing Solutions, 206 N.C.
App. at 143, 696 S.E.2d at 844.
Methods One and Two
“‘Average weekly wages’ shall mean the earnings of the injured employee in
the employment in which the employee was working at the time of the injury during
the period of 52 weeks immediately preceding the date of the injury . . . divided by
52[.]” N.C. Gen. Stat. § 97-2(5).
Method one only applies when an employee has worked for the employer at
least 52 weeks prior to the injury, and “cannot be used when the injured employee
has been working in that employment for fewer than 52 weeks in the year preceding
the date of accident.” Conyers v. New Hanover Cty. Schools, 188 N.C. App. 253, 258,
654 S.E.2d 745, 750 (2008). The parties stipulated Plaintiff was employed by the
employer for only 36 weeks in the year preceding the date of her injury, and the
Commission properly rejected method one to calculate Plaintiff’s average weekly
wages. See id.Method two applies where the injured employee “lost more than seven
consecutive calendar days at one or more times” during the 52 week period
immediately preceding the date of injury. N.C. Gen. Stat. § 97-2(5) (emphasis
supplied). In such event, “the earnings for the remainder of such 52 weeks shall be
divided by the number of weeks remaining after the time so lost has been deducted.”
-8-
FRANK V. CHARLOTTE SYMPHONY ORCHESTRA
Opinion of the Court
Id. Plaintiff asserts method two is the appropriate method to calculate her average
weekly wages. We disagree.
The Symphony’s rehearsal and performance season runs from September
through May, and included an optional summer season. Plaintiff argues method two
applies because, although she stipulated she worked only 36 weeks during the
relevant time period, her contract period was for a full year. Plaintiff asserts the 16
weeks when no services were performed for Defendant-employer should be considered
“lost” under method two of N.C. Gen. Stat. § 97-2(5). We disagree.
Plaintiff relies upon this Court’s decision in Bond. The plaintiff in Bond was
injured during the course of his employment as a brick mason. Bond, 139 N.C App.
at 124, 532 S.E.2d at 584. The plaintiff was a full time employee, but only worked
when contract jobs were available and the weather was suitable. Id. at 125-26, 532
S.E.2d at 584. He did not work for seven or more consecutive days on more than one
occasion during the 52 weeks preceding the injury. Id. at 126, 532 S.E.2d at 584.
In Bond, this Court explained the work available to the plaintiff was dependent
upon demand and weather conditions, and the plaintiff was not required to work for
days or weeks at a time. Id. at 129, 532 S.E.2d at 587. This Court further explained
the plaintiff was not a “seasonal” employee, because “[a] seasonal employee or relief
worker does not work full-time every week in the year.” Id. The Court held the
second, and not the fifth, method was appropriate for determining the plaintiff’s
-9-
FRANK V. CHARLOTTE SYMPHONY ORCHESTRA
Opinion of the Court
average weekly wages, because “as a brick mason, plaintiff could be required to work
every week, full-time by his employer.” Id.The facts of this case are distinguishable from those present in Bond. Unlike
in Bond, Defendant-Employer in this case was unable to require Plaintiff to work for
52 weeks. Plaintiff performed services for Defendant-Employer pursuant to a
contract, which contemplated 36 and not 52 weeks of work. Pursuant to contract, no
rehearsals, concerts or “services” were scheduled for the “off season.” Also, unlike in
Bond, Plaintiff’s contract clearly stated that no work was required from, or offered to,
Plaintiff during that time.
Our precedent in Conyers is more directly on point and controlling. In Conyers,
this Court determined whether the average weekly wages of a public school bus driver
should be calculated with or without regard to the ten-week summer vacation period.
Conyers, 188 N.C. App. at 257, 654 S.E.2d at 749.
In Conyers, the Court held that Plaintiff’s employment extended for a period of
less than 52 weeks prior to the injury. Id. at 258-59, 654 S.E.2d at 749. The plaintiff
drove a school bus for only ten months of the year, was paid for only ten months of
work, and was not hired or obligated to work during the summer vacation period. Id.
at 259, 654 S.E.2d at 750. The Court held the plaintiff was not employed for a 52-
week period and rejected the first and second methods in the statute to calculate the
plaintiff’s average weekly wages. Id.- 10 -
FRANK V. CHARLOTTE SYMPHONY ORCHESTRA
Opinion of the Court
Again, and unlike in Bond, the employment in Conyers and in this case was for
a fixed and definite time period of less than 52 weeks. Because Plaintiff’s job was
non-existent during a portion of the year, she did not “lose” time like the employee in
Bond.
The application of method two requires the employee to have been employed
for a period of 52 weeks preceding the injury, which Plaintiff stipulated she was not.
The Commission properly rejected method two as the appropriate method to calculate
Plaintiff’s average weekly wages. We disagree.
Method Three
Method three applies “[w]here the employment prior to the injury extended
over a period of fewer than 52 weeks.” N.C. Gen. Stat. § 97-2(5). In such event, the
Commission follows “the method of dividing the earnings during that period by the
number of weeks and parts thereof during the employee earned wages,” provided the
results are “fair and just to both parties.” Id. Where the employment prior to the
injury extended over a period of less than 52 weeks, the average weekly wages are
calculated in the same manner as method two, with the distinction that the results
must be “fair and just to both parties.” Id.Like in Conyers, Plaintiff’s employment prior to the injury extended over a
period of fewer than 52 weeks. After rejecting the first two methods of calculating
the plaintiff’s average weekly wages, the Court in Conyers analyzed the third method,
- 11 -
FRANK V. CHARLOTTE SYMPHONY ORCHESTRA
Opinion of the Court
but determined that the plaintiff’s yearly salary would be nearly $5,000.00 more than
her actual pre-injury wages, if she were permitted to divide her annual gross wages
by the number of weeks she was actually employed. Id. at 259, 654 S.E.2d at 750.
The Court rejected the third method, because “[t]he purpose of our Workers’
Compensation Act is not to put the employee in a better position and the employer in
a worse position than they occupied before the injury.” Id.Here, Plaintiff earned $39,412.83 while working 36 weeks during the 52-week
time period preceding the injury. Dividing this amount by 36 results in an average
weekly wage calculation of $1,094.80. The Commission determined this weekly wage
amount results in annualized wages of $56,929.60, over $17,000.00 more than
Plaintiff’s actual pre-injury yearly wages. We are bound by Conyers to conclude the
application of method three would “put the employee in a better position” than prior
to the injury and is not a “fair and just” method to calculate Plaintiff’s average weekly
wages. See id.Plaintiff notes that the application of method three will always result in gross
annualized wages which are higher than the result of method one. Plaintiff argues
method three could never be regarded as “fair and just” to both parties and would
never be used to calculate average weekly wages. See R.J. Reynolds Tobacco Co. v.
N.C. Dep’t of Env’t & Natural Res., 148 N.C. App. 610. 616, 560 S.E.2d 163, 168, disc.
review denied, 355 N.C. 493, 564 S.E.2d 44 (2002) (“[A] statute must be considered as
- 12 -
FRANK V. CHARLOTTE SYMPHONY ORCHESTRA
Opinion of the Court
a whole and construed, if possible, so that none of its provisions shall be rendered
useless or redundant. It is presumed that the legislature intended each portion to be
given full effect and did not intend any provision to be mere surplusage.” (citation
omitted)).
Plaintiff proposes the Commission should have considered the “fairness”
requirement of method three in light of her wage earning capacity. Plaintiff asserts
the Commission should have taken into account her summer earnings from the
Chautauqua Symphony in New York in order to determine whether the application
of method three would result in a “windfall” to Plaintiff. The statute expressly
excludes her earnings from outside employment and provides that average weekly
wages “shall mean the earnings of the injured employee in the employment in which
he was working at the time of the injury.” N.C. Gen. Stat. § 97-2(5) (emphasis
supplied).
We affirm the Commission’s determination that applying method three does
not produce “fair and just” results where Plaintiff’s average weekly wages would be
increase to over $17,000.00 more annually than Plaintiff’s actual pre-injury yearly
wages. Plaintiff’s arguments are overruled.
Method Five
The parties agree method four is inapplicable to the circumstances at bar. The
fifth, or final, method under the statute is to be used “for exceptional reasons” when
- 13 -
FRANK V. CHARLOTTE SYMPHONY ORCHESTRA
Opinion of the Court
the other methods “would be unfair to either the employer or employee.” N.C. Gen.
Stat. § 97-2(5). In such event, the Commission is to “resort to” a method which “will
most nearly approximate the amount which the injured employee would be earning
were it not for the injury.” Id.The Commission properly determined that exceptional reasons exist, which
require the application of method five. None of the other four methods set forth in
the statute are appropriate for calculation of Plaintiff’s average weekly wages.
Plaintiff asserts her pre-injury average weekly wages were $1,094.80, yet
acknowledges she was not actually paid this amount on a weekly basis for the 52
weeks prior to her injury and she specifically listed “$760.00+” as her average weekly
wages on her Form 18 at the time of her injury.
The Commission calculated Plaintiff’s average weekly wages by dividing
Plaintiff’s annual gross earnings with Defendant-Employer by 52, “because this
method produces a result which most nearly approximates the amount Plaintiff
would be earning with Defendant-Employer were it not for the injury.”
In Conyers, this Court affirmed the Commission’s application of the fifth
method and explained: the “[p]laintiff [bus driver] earned $ 17,608.94 in the 52 weeks
preceding the accident. Although she only worked approximately 40 of those weeks
and was paid in 10 monthly paychecks, the compensation she collects for workers’
compensation will be paid every week, including the weeks of her summer vacation.”
- 14 -
FRANK V. CHARLOTTE SYMPHONY ORCHESTRA
Opinion of the Court
Conyers, 188 N.C. App. at 261, 654 S.E.2d at 751. Based upon Conyers, we affirm the
Commission’s use and application of the fifth method in the statute to calculate
Plaintiff’s average weekly wages. Id.; N.C. Gen. Stat. § 97-2(5). Plaintiff’s arguments
are overruled.
VI. Conclusion
The Commission properly concluded the application of the first four methods
set forth in N.C. Gen. Stat. § 97-2(5) to determine Plaintiff’s average weekly wages
were inappropriate or unjust. The Commission properly determined that
“exceptional reasons” existed to apply the fifth method, and applied the fifth method
to “most nearly approximate the amount which the injured employee would be
earning were it not for the injury.” N.C. Gen. Stat. § 97-2(5).
Plaintiff has failed to show any error in the Commission’s Opinion and Award.
The Opinion and Award is affirmed. It is so ordered.
AFFIRMED.
Judges ELMORE and STROUD concur.
- 15 -