The Ball v. Bayada Home Health Center, __ N.C. App. ___, (2017), decision is a good reminder that N.C.G.S. § 97-2(5) provides five different methods to calculate average weekly wage, depending on the facts and circumstances of each claim. Determining average weekly wage must be fair and just, meaning that the calculation must reflect what the injured claimant would be earning had they not been injured.

atment for her right knee until she received the treatment to address her weight problem. The Supreme Court granted Defendants’ Petition for Discretionary Review.Causation—The “Sheet Anchor” of the Workers’ Compensation ActIn reversing the Court of Appeals decision, the Supreme Court first emphasized the critical requirement of having a causal relationship between a workplace accident and an employee’s injuries because the Worker’s Compensation Act was never designed to be a general accident and health insurance policy (citing Weaver v. Swedish Imports Maintenance Inc., 319 N.C. 243 (1987). Instead, the necessity of establishing a causal relationship between workplace accidents and resulting injuries is the “sheet anchor” or foundational element of the Act which keeps it within its intended scope of providing compensation benefits to injured workers and not providing general health insurance coverage. Included in this causation requirement is “Medical Compensation” which is defined in N.C.G.S. 97-2(19) as medical or rehabilitative services as may be reasonably required to effect a cure or give relief and tend to lessen the period of disability. Specifically, the Supreme Court held that there must be a causal relationship between the condition to be treated and the workplace injury. Using the “Directly Related” test, an employee may receive medical compensation for specific treatment only if that treatment is “directly related” to the workplace injury (i.e., a causal relationship between the condition that requires the treatment and the workplace injury). An employee may satisfy the “Directly Related” test in one of three ways:By showing the workplace injury caused the condition for which treatment is sought;By showing the workplace injury materially aggravates the condition or causes new symptoms; ORBy showing the workplace injury has triggered the need for medical treatment of the condition to aid in the treatment of the workplace injury.If any of these three criteria are met, the

Due to a dispute over the modification of Plaintiff’s weekly temporary total disability benefits, the Commission considered the appropriate method in calculating plaintiff’s average weekly wage (“AWW”).AWW is determined by calculating the amount the injured workerwouldbe earning but for his injury. The calculation is governed by N.C.G.S. § 97-2(5), which sets out five distinct methods for calculating an injured employee’s AWW. The five methods are ranked in order of preference, and each subsequent method can be appliedonly ifthe previous methods are inappropriate.Here, the methods at issue were Method 3 and Method 5. Method 3 calculates the AWW by dividing plaintiff’s earnings by the number of weeks he worked prior to his injury.

On appeal, Defendants agreed with the Full Commission’s decision and argued that it was not proper to award attendant care after 12/31/12 because a written prescription is required in order to receive compensation for attendant care services, and Plaintiff did not have a written prescription beyond 12/31/12. In 2011, N.C. Gen. Stat. §97-2(19) was amended to include more detailed language addressing when attendant care becomes compensable. N.C. Gen. Stat.

Sturdivant v. State Dep’t of Pub. Safety, where the proper interpretation of N.C. Gen. Stat. § 97-29(c) was addressed as “an issue of first impression.”In Sturdivant the Court of Appeals held that the Full Commission erred “by conclud[ing] that an employee who has some work capabilities but cannot find a compatible job, though ‘totally disabled,’ has not suffered a ‘total loss of wage-earning capacity’ to qualify for extended benefits under Section 97-29(c).” In reaching that Holding the Court of Appeals reasoned “that ‘total disability’ (under Section 97-29(b)) and ‘total loss of wage-earning capacity’ are synonymous.” The Sturdivant Court held that Plaintiff’s “burden of showing a ‘total loss of wage-earning capacity’ under Section 97-29(c) is the same as his burden of showing a ‘total disability’ to receive benefits under Section 97-29(b).”The Betts Court found that the Full Commission erroneously concluded that “N.C. Gen. Stat. § 97-29(c) does not invoke ‘disability’ as defined by N.C. Gen. Stat. § 97-2(9),” and erred by determining that plaintiff failed to meet her burden to prove “a total loss of wage-earning capacity” based exclusively upon a finding that “plaintiff has the capacity to earn some wages.”In Sturdivant the Court of Appeals ultimately upheld the Full Commission’s Decision and Order because, “in other parts of its order, the Commission seem[ed] to apply the correct analysis and d[id] make findings of fact which support[ed] its ultimate decision based on our interpretation of Section 97-29(c).” The Betts Court found that unlike in Sturdivant, the Commission failed to make findings demonstrating that it considered all of the proper factors for determining disability. The Betts Court found that per Russell v. Lowe’s, an employee can meet his burden of showing a total-loss of wage-earning capacity:by showing he is incapable of performing any work;by showing that he is capable of work but that “after a reasonable effort on his part, been unsuccessful” in finding employment;by

The COA found that in order to produce a result that “most accurately reflects the wages [employee] would have continued to earn, but for his diagnosis with mesothelioma, and [that] is fair and just to both parties,” the wages from the 52 weeks preceding his diagnosis should be used. Thus, the Court used the earnings from the Plaintiff’s subsequent, part-time employment (driving the van) under “method 5” of N.C.G.S. § 97-2(5).This made a huge difference in the Defendants’ ultimate exposure—the Plaintiff’s estate was awarded 500 weeks of death benefits at a compensation rate of approximately $600.

The Court surmised,”[c]ontinually placing the burden on an employee to prove that his symptoms are causally related to his admittedly compensable injury before he can receive further medical treatment ‘ignores this prior award.’” The Court also cited N.C. Gen. Stat. § 97-2(19) stating statute requires that medical compensation includes any treatment that “may reasonably be required to effect a cure or give relief.” Therefore, statutory language requires an employee have a presumption on medical treatment and its relation to the compensable injury.Evidence Proving DisabilityThe Supreme Court acknowledged, unlike medical compensation, filing a Form 60 does not create a presumption of disability.

The Court of Appeals reviewed NCGS §97-84, and found that the plain language of the statute referred to a deputy commissioner in the singular form, showing the intent of the General Assembly that a single deputy should handle a case to completion.  The Court of Appeals noted that if they were to interpret the singular “deputy” as a plural, as NCGS §97-2(17) requires, no one deputy would have a “complete determination of the matters in dispute,” and would render portions of NCGS §97-84 superfluous. The Court of Appeals did note that Adams v. AVX Corp. renders the Full Commission the sole judge of credibility.

Under the Workers' Compensation Act, injury includes "breakage or damage to eyeglasses, hearing aids, dentures, or other prosthetic devices which function as part of the body.” N.C.G.S. § 97-2(6). On this issue of first impression, the Court concluded "that breast implants satisfy the statutory requirement as a compensable prosthetic device that functions as part of the body."