in the Court of Appeals 23 August 2017.
by plaintiff from an opinion and award entered 7 December
2016 by the Full North Carolina Industrial Commission No.
M. Bernanke for plaintiff-appellant.
Rudisill, White & Kaplan, P.L.L.C., by Garth H. White,
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.
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.
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.
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.
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.
lies in this Court from opinion and award of the Commission
pursuant to N.C. Gen. Stat. §§ 97-86 and 7A-27(b)
Average Weekly Wages
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
Standard of Review
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).
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).