In cases in which the injured worker has worked less than a year before the accident or illness, computing the average weekly wage is more difficult.
North Carolina Statutes sets out three ways to determine the average weekly wage in those situations.
The three methods set out below are listed in the order in which they should be applied until a determination is made that the method chosen is “fair and just to both parties.” The statutory definition of average weekly wage sets forth a clear order preference as to the calculation of average weekly wage; and when the first method of calculation can be used, it must be used.
- Divide the employee’s total earnings during the time he has worked by the number of weeks worked.
- In cases in which by reason of the shortness of time during which the employee has been working for the employer, or by reason of the casual nature of the employment, it is impracticable to use Method No. 1, then the following method should be used:
The average weekly wage should be determined by comparison to the earnings during the 52 weeks prior to the injury of “a person of the same grade and character employed in the same class of employment in the same locality or community."
Method No. 2 would apply, for instance, in a case in which a highly skilled finish carpenter begins working on a “trial basis” at a much lower wage than he will receive after he demonstrates to his employer that he indeed has the skills of a finish carpenter, where it is contemplated that once a worker proves his skills, his salary will increase commensurate with that of a skilled finish carpenter.
- The statute provides that in the unusual case in which “for exceptional reasons,” the first two methods fail to provide a fair result, “such other methods 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.” An example of the application of the third method would arise when a worker is paid on a per job basis, and for whatever reason was paid an unusually low rate for his work and only worked 13 weeks during the year. In that case, the Court of Appeals has approved a method of computing the average weekly wage which was based upon the average net income for the two prior years, rather than the income actually earned working for the most recent employer. Such a method, however, would have to be found by the Industrial Commission to be “fair and just to both parties.”
Our appellate courts have held that the “fair and just to both parties” determination must result in a determination of average weekly wage in such amount as will most nearly approximate the amount which the injured employee would be earning were it not for the injury, in the employment in which he was working at the time of his injury.
In order to apply Method 3 above in determining average weekly wage for North Carolina workers' comp, the Industrial Commission must find that the use of the first and second method would produce results unfair and unjust to either the employee or the employer.
When an employee who holds two separate jobs is injured in one of them, his compensation is based only upon his average weekly wage earned in the employment producing the injury.
In a case involving a recently promoted salesman where the promotion resulted in a significant increase in pay, and when this increase in pay was rewarded less than three months prior to the injury, when there was testimony by the employee’s superior that the employee would have had further increases, it was held that the findings were sufficient to constitute “exceptional reasons to justify a compensation of average weekly wage by using the wage which was fixed at the amount the employee was earning weekly at the time of the injury. The court reasoned that the wages he was receiving at the time of his injury were not temporary and uncertain, but constituted a fair basis upon which to compute the award.
Another case held that when the injured work received two raises during the relevant 52-week period, his average weekly wage should be determined by averaging wages actually received during the 52-week period, and then divided by 52.
The two cases mentioned above, which have different results, demonstrate that in these unusual situations in which wages vary during the 52-week period, the Industrial Commission has virtually unbridled discretion to determine the appropriate average weekly wage.
Sometimes it is not possible to anticipate in advance how the Industrial Commission will rule. In these cases an experienced workers' compensation attorney should be consulted.