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Frank v. Symphony

Court of Appeals of North Carolina

September 5, 2017

CYNTHIA FRANK, Employee, Plaintiff,
v.
CHARLOTTE SYMPHONY, Employer, and SELECTIVE INSURANCE COMPANY OF AMERICA, Carrier, Defendants.

          Heard in the Court of Appeals 23 August 2017.

         Appeal by plaintiff from an opinion and award entered 7 December 2016 by the Full North Carolina Industrial Commission No. 14-743149.

          Seth M. Bernanke for plaintiff-appellant.

          Rudisill, White & Kaplan, P.L.L.C., by Garth H. White, for defendant-appellees.

          TYSON, Judge.

         Cynthia Frank ("Plaintiff") appeals from the Opinion and Award of the North Carolina Industrial Commission ("Commission"), which determined the amount of her average weekly wages and compensation rate. We affirm the Commission's Opinion and Award.

         I. Background

         Plaintiff was employed by the Charlotte Symphony Orchestra ("Defendant-Employer") as a violist. On 24 June 2012, Plaintiff filed a Form 18 ("Notice of

          Accident to Employer and Claim of Employee, Representative, or Dependent") with the Commission. She alleged sustaining a compensable injury and/or occupational disease to her right shoulder. Plaintiff listed her average weekly wages as "$760.00" on the Form 18, and stated both the number of hours per day and the days of the week she worked "varies." Plaintiff listed her date of injury as 15 December 2013.

         Defendant-Employer and its insurance carrier (collectively, "Defendants") filed a Form 61 ("Denial of Workers' Compensation Claim"). Plaintiff's claim was heard before the deputy commissioner on 22 June 2015. Prior to the hearing, Defendants accepted Plaintiff's shoulder injury as compensable. The parties agreed the only issue to be determined by the deputy commissioner was the calculation of Plaintiff's average weekly wages.

         The deputy commissioner issued her Opinion and Award and determined Plaintiff's average weekly wages to be $757.94, which produced a compensation rate of $505.32. Plaintiff appealed the determination of her average weekly wages to the Commission.

         By Opinion and Award dated 7 December 2016, the Commission unanimously affirmed the deputy commissioner's determination of Plaintiff's average weekly wages and compensation rate. Plaintiff appeals.

         II. Jurisdiction

         Jurisdiction lies in this Court from opinion and award of the Commission pursuant to N.C. Gen. Stat. §§ 97-86 and 7A-27(b) (2015).

         III. Average Weekly Wages

         Plaintiff's sole argument on appeal asserts the Commission erred by applying the incorrect method under N.C. Gen. Stat. § 97-2(5) (2015) to calculate her average weekly wages. We disagree.

         A. Standard of Review

         This Court reviews an opinion and award of the Commission to determine whether the findings of fact are supported by competent evidence and whether the conclusions of law are supported by the findings of fact. Barham v. Food World, 300 N.C. 329, 331, 266 S.E.2d 676, 678 (1980). However, "[t]his Court reviews the Commission's conclusions of law de novo." McLaughlin v. Staffing Solutions, 206 N.C.App. 137, 143, 696 S.E.2d 839, 844 (2004) (citation omitted).

         "The determination of the plaintiff's 'average weekly wages' requires application of the definition set forth in the Workers' Compensation Act, [ N.C. Gen. Stat. § 97-2(5)], and the case law construing that statute and thus raises an issue of law, not fact." Swain v. C & N Evans Trucking Co., 126 N.C.App. 332, 335-36, 484 S.E.2d 845, 848 (1997).

         B. ...


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