North Carolina: Average Weekly Wage Computation Must Be Just to Both Parties

Construing a statutory provision that describes how an injured employee’s average weekly wage should be computed, a North Carolina appellate has affirmed a determination by the state’s Industrial Commission that based an award of death benefits on the wages the deceased employee earned during the last full year of his employment, rather than the earnings he “enjoyed” at the time he was diagnosed with lung cancer resulting from work-related asbestos exposure. The employee retired in 1991, when he became disabled due to multiple sclerosis, unrelated to his exposure to asbestos. At that time his average weekly wage was $606.36. Three years later, he was diagnosed with asbestosis. In February 2010, the employee was diagnosed with lung cancer and the employer conceded that the condition was causally connected to the asbestosis exposure. The employer contended, however, that death benefits should be based on the minimum benefit allowable—$30.00 per week—since the employee had enjoyed no earnings at the time he was diagnosed with asbestosis and none when he was diagnosed with cancer. The Commission disagreed and the appellate court affirmed. The statute (N.C. Gen. Stat. § 97–2(5)) set forth five sequential methods for computing AWW, said the court. The fifth, where the Commission makes a finding that unjust results would otherwise occur, allowed the sort of computation utilized here: to look back to the final year the employee worked for the employer.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See Lipe v. Starr Davis Co., Inc., 2014 N.C. App. LEXIS 1127 (Nov. 4, 2014) [2014 N.C. App. LEXIS 1127 (Nov. 4, 2014)]

See generally Larson’s Workers’ Compensation Law, § 93.01 [93.01]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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