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Tedder v. A & K Enterprises

Court of Appeals of North Carolina

December 16, 2014

KEITH TEDDER, Employee, Plaintiff,
v.
A& K ENTERPRISES, Employer, and PROTECTIVE INSURANCE COMPANY, Carrier, Defendants

Heard in the Court of Appeals: October 6, 2014.

Appeal by defendants from opinion and award entered 10 March 2014 by the North Carolina Industrial Commission. I.C. No. X41641.

Goodman McGuffey Lindsey & Johnson, LLP, bye Michael A. Cannon, for defendants-appellants.

David Gantt Law Office, by David Gantt, for plaintiff-appellee.

DIETZ, Judge. Chief Judge McGEE and Judge STEPHENS concur.

OPINION

Page 99

DIETZ, Judge.

This workers' compensation case concerns the proper method of calculating average weekly wages for temporary employees. After two years of unemployment and a few months in a low-paying seasonal job, Plaintiff Keith Tedder began a seven-week temporary position with Defendant A& K Enterprises that paid $625 per week.

Unfortunately, Tedder injured his back after the first week in this temporary position and could not continue working. He then applied for workers' compensation benefits. In awarding benefits, the Industrial Commission calculated Tedder's average weekly

Page 100

wage at $625, despite finding that Tedder was a temporary employee, that he could not expect to earn that wage full time, and that the $625 calculation was " unfair" to A& K.

The Commission's calculation cannot be sustained. The purpose of the average weekly wage calculation is to approximate what the employee would be earning were it not for the injury, not to provide an earnings safety net for the chronically unemployed or underemployed.

Consistent with this statutory purpose, we hold that in calculating average weekly wages for employees in temporary positions, the Commission must take into account the number of weeks the employee would have been employed in that temporary position relative to a 52-week time period. Here, the short duration of Tedder's temporary employment must result in an average weekly wage that is substantially less than $625. Accordingly, although we affirm the Commission's conclusion that Tedder is eligible for temporary total disability compensation, we reverse the Commission's average weekly wage determination and remand for a new determination consistent with this opinion.

Factual Background

I. Tedder's Employment History

Keith Tedder is a 48-year-old single father whose work experience consists entirely of heavy lifting and driving trucks. Over the years, Tedder has worked as a delivery driver for a number of different companies, loading and unloading items weighing up to 150 pounds. In June 2004, while delivering packages for an employer in Asheville, Tedder injured his back. He later settled his workers' compensation claim with that employer.

To alleviate the pain resulting from his 2004 injury, Tedder underwent a right L4-5 laminectomy and discectomy on 7 November 2005. Dr. Michael Goebel, who performed the surgery, noted that Tedder experienced a surprising recovery. On 14 February 2006, Dr. Goebel found that Tedder had reached maximum medical improvement and assigned a 10% permanent partial impairment rating to his back. He released Tedder to medium-duty work, placing permanent restrictions on lifting more than fifty pounds, as well as limitations on bending, stooping, twisting, squatting, crouching, and prolonged sitting or standing.

After his release from Dr. Goebel's care in April 2006, Tedder did not find a job until March 2007, when he began working for Carolina Mulch as a delivery driver. He worked that job for eighteen months before being laid off in September 2008. While at Carolina Mulch, Tedder was able to perform all the duties of a delivery driver, including loading and unloading very heavy items without difficulty. He regularly exceeded Dr. Goebel's permanent restrictions without incident. Although he occasionally experienced a sore back when he worked overtime, Tedder did not seek any medical assistance for his back while working for Carolina Mulch.

After being laid off from Carolina Mulch in September 2008, Tedder was unemployed for more than two years. In November 2010, Tedder accepted a position with Volt Management Corporation, a temporary staffing agency that contracted with Federal Express to provide extra delivery drivers during the press of the holiday season. Tedder worked approximately eight to ten hours per day, two days per week for Volt, earning at most $260 per week. Tedder did not seek any medical treatment for his back during his employment with Volt.

II. Tedder's Job at A& K

In February 2011, as Tedder's seasonal work at Volt drew to a close, Defendant A& K Enterprises asked Volt for recommendations to fill an open position for a temporary delivery driver. A& K is a small " mom-and-pop" delivery company and subcontractor for Federal Express. The company hires temporary employees during the peak holiday season and also on an as-needed basis. A& K was searching for a temporary employee to fill in for one of its full-time delivery drivers who was scheduled ...


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