Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ball v. Bayada Home Health Care

Court of Appeals of North Carolina

August 15, 2017

ELIZABETH BALL, Employee, Plaintiff,

          Heard in the Court of Appeals 1 May 2017.

         Appeal by Plaintiff from opinion and award entered 16 August 2016 by the North Carolina Industrial Commission I.C. Nos. X48418, X92876.

          Ganly & Ramer PLLC, by Thomas F. Ramer, for Plaintiff-Appellant.

          Brewer Defense Group, by Joy H. Brewer and Ginny P. Lanier, for Defendants-Appellees.


         Elizabeth Ball ("Plaintiff") appeals from a final decision of the North Carolina Industrial Commission ("the Commission"). The Commission utilized a particular method set out in N.C. Gen. Stat. § 97-2(5) - Method 3 - to calculate Plaintiff's average weekly wage for her temporary total disability benefits. We conclude that use of Method 3 was not "fair and just" to Plaintiff, a requirement of N.C. G.S. § 97-2(5). Accordingly, we reverse and remand to the Commission for calculation of Plaintiff's benefits using the appropriate statutory method.

         I. Background

         Plaintiff began her employment as a certified nurse's assistant with Bayada Home Health Care ("Bayada") on 26 May 2010. Plaintiff worked on a part-time basis for Bayada from 26 May 2010 until 30 November 2010, when she began to work a full-time schedule. During this time in her employment, Plaintiff earned $8.00 per hour. In February 2011, Plaintiff was transferred from Bayada's Asheville office to its Hendersonville office, where she began working with a single, specific client ("the client"). As a result of this change, Plaintiff began working an increased number of hours, and at an increased wage - $10.00 per hour. On Plaintiff's first day of work with the client at the higher hourly rate, 10 February 2011, Plaintiff was injured when the client, who suffered from Alzheimer's, pushed Plaintiff down several stairs.

         Plaintiff sought medical treatment for her injuries that same day and was released to limited duty work. Three days later, Plaintiff requested a release for full work duty and was granted such by her medical care provider. Despite her 10 February 2011 injury, Plaintiff continued to work for the client, with the attendant increase in hours and rate of pay, through 18 May 2011. On that date, Plaintiff alleged, she suffered a second injury while working with the client.

         Plaintiff filed a Form 18 on 20 March 2012 informing Bayada, its insurance carrier Arch Insurance Group, Inc., and the third-party administrator, Gallagher Bassett Services, Inc. (together, "Defendants") of her 10 February 2011 incident. In the Form 18, Plaintiff claimed injuries to her left hand, both knees, and right hip from the 10 February 2011 incident. Plaintiff filed a second Form 18 on the same day, informing Defendants of the alleged 18 May 2011 incident, and claimed injuries in that incident to both of her knees. Defendants admitted the compensability of Plaintiff's 10 February 2011 injury to her right leg, but denied the compensability of the injuries to her hips and hands. Defendants also denied compensability of all injuries stemming from the 18 May 2011 incident. Despite denying the compensability of Plaintiff's alleged 18 May 2011 injuries, Defendants filed a Form 60 on 10 June 2011, admitting Plaintiff's "disability resulting from the injur[ies] began on" 19 May 2011.

         Plaintiff filed a Form 33 on 31 May 2012, requesting that her disability claim be assigned for hearing, and a hearing was held before a deputy commissioner on 26 May 2015. Following that hearing, the deputy commissioner filed an opinion 16 August 2012 concluding as a matter of law that Plaintiff suffered compensable injuries on both 10 February 2011 and 18 May 2011. The deputy commissioner also determined that the appropriate method to determine Plaintiff's average weekly wage was Method 5, as listed in N.C. G.S. § 97-2(5), which resulted in an average weekly wage of $510.33 and a corresponding weekly compensation rate of $340.24 for Plaintiff's temporary total disability payments. Defendants appealed to the Commission.

         Upon its de novo review, the Commission concluded as a matter of law that, inter alia: (1) Plaintiff had suffered a compensable injury on 10 February 2011; (2) there was not sufficient, competent evidence of Plaintiff's being injured on 18 May 2011; (3) Plaintiff's disability began on 19 May 2011; and (4) Plaintiff had ongoing medical treatment needs. The Commission concluded as a matter of law that Methods 1, 2, and 4, as listed in N.C. G.S. § 97-2(5), were inapplicable to the facts of the present case, and as such that "utilization of [M]ethod [3] for calculation of average weekly wage" applied to Plaintiff's claim.

         The Commission determined that, applying Method 3, Plaintiff was entitled to "an average weekly wage of $284.79 with a compensation rate of $189.87." The Commission further found that "calculation of [P]laintiff's average weekly wage using [Method 3] [was] fair and ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.