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Unusual Average Weekly Wage Issues

OTHER AVERAGE WEEKLY WAGE ISSUES

Other difficult average weekly wage issues in North Carolina workers' comp may arise when the injured employee is paid on a per job basis and incurs their own business and equipment expenses. In such cases, sources of evidence may be the employee’s tax return and expense records or evidence of what the employee would have had to pay someone else to do the work for him or her.

In an unusual and interesting case, the appellate court upheld the Industrial Commission’s finding that a football player who was injured in a pre-season game before being officially accepted as a player on the active roster earned an average weekly wage of $1,653.85. This figure was based on a contract amount of 85,000, and a $1,000 signing bonus, divided by 52 weeks.

Where a trainee was injured, the appellate court held that the Industrial Commission was justified in calculating his wage using his actual wages as a trainee, and was not required to use higher wages that a comparable employee would have made after the training period.

Cash wages are not the only factor to be used in arriving at the average weekly wage. Employee benefits paid in lieu of wages must also be added to the cash wages paid. The North Carolina Supreme Court has upheld a finding of the Industrial Commission that the value of lodging furnished by the employer to the employee was $100 per week, and that the plaintiff received that lodging in lieu of additional wages. Accordingly, the value of that lodging was added to the cash wages paid to determine the employee’s average weekly wage.

Once a determination has been made as to the proper average weekly wage, the compensation rate, sometimes referred to as “comp” rate, is determined by multiplying the average weekly wage by 66 2/3%. This comp rate equates to 2/3 of the employee’s average weekly wage. However, in no event may the compensation rate be less than $30 per week.