N.C. Gen. Stat. § 97-2

Section 97-2(5) permits an exceptional method of calculating average weekly wages when the listed methods would be unfair, to approximate what the employee would earn absent the injury.

Swift v. Richardson Sports · filed 2003-10-30(5)

Exceptional reasons exist for using the method for calculating Plaintiff's average weekly wage that will most accurately approximate the amount that the injured employee would be earning were it not for the injury. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) permits use of the third method of calculating average weekly wage when it is fair and equitable to the parties.

Torres v. Smith · filed 2004-02-12(5)

Pursuant to N.C. Gen. Stat. § 97-2 (5), the third method of calculating average weekly wage is the fair and equitable way to the parties. Plaintiff's average weekly wage is $398.72, which yields a compensation rate of $265.83.

Section 97-2(5) primarily calculates average weekly wage from the employee’s earnings in the employment held at the time of injury during the preceding 52 weeks.

France v. MURROW'S TRANSFER · filed 2004-03-16(5)

As to the amount awarded to plaintiff, under N.C. Gen.Stat. § 97-2(5), average weekly wage is primarily defined as "the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury." N.C. Gen.Stat. § 97-2(5) (2003); see also McAninch v. Buncombe County Schools, 347 N.C. 126, 129-30, 489 S.E.2d 375, 377 (1997) (discussing role of the Commission as fact finder and calculation of average weekly wage).

Section 97-2(5) permits use of the exceptional-reasons method to calculate average weekly wages when sporadic employment makes the usual methods inapplicable or unfair; under that method, total wages are divided by the period of employment.

Thomas v. Chavis · filed 2004-06-09(5)

N.C. Gen. Stat. § 97-2 (5) provides four methods of calculating a claimant's average weekly wage. The first method is not applicable to this case because plaintiff worked less than 52 weeks. The second method results in an inequity to the employer-defendant because plaintiff worked sporadically. See Postell v. BD Construction Co. , 105 N.C. App. 1 , 411 S.E.2d 413 (1992). The third method is not applicable because a similarly situated employee does not exist. Id. Fairness to both parties can only be obtained by applying the "exceptional reasons" provision, and the method of calculation used in Postell wherein the employee's total wages earned are divided by the period of time the employee was employed by the defendant-employer.

Section 97-2(5) permits average weekly wage to be based on later earnings when the prescribed methods cannot fairly measure earnings, including where commission timing distorts pre-injury wages and comparable-employee wage evidence is unavailable.

Ridalls v. Oakwood Homes · filed 2004-06-14(5)

Due to the nature of commission sales work and when commissions are calculated by defendant, fair and just results cannot be obtained by calculating the average weekly wage based on the actual weeks plaintiff worked prior to her injury of December 13, 1996, the third method provided in N.C. Gen. Stat. § 97-2 (5). No evidence has been presented of the average weekly wage of an employee of the same grade and character as plaintiff and in the same locality or community earned in the fifty two weeks preceding plaintiff's injury by accident therefore it is impossible to calculate plaintiff's average weekly wage according to the fourth method provided in N.C. Gen. Stat. § 97-2 (5). Calculating plaintiff's average weekly wage by any of the foregoing methods would be unfair to the employee, therefore, for these exceptional reasons, the Full Commission determines that plaintiff's earnings in 1997 reflect her true earning capacity. It is determined that plaintiff's average weekly wage as of December 13, 1996 was $604.88, which yields a compensation rate of $403.27.

Average weekly wage includes vested employer 401(k) contributions under the worker’s control and the value of personal use of a company car above work-related vehicle expenses.

Meares v. Dana Corp. · filed 2004-07-13(5)

Plaintiff's average weekly wage should include amounts from his 401(k) account, which were quantifiable and to which defendant contributed and plaintiff was vested and had control. ... Plaintiff's average weekly wage should include the value of the car provided to plaintiff in his employment, which exceeded the actual expenses associated with his work use of the car by at least $359.32 in the year preceding plaintiff's compensable injury.

Section 97-2(5) permits average weekly wage to be calculated from earnings during the worker’s final eight months with the employer when that method is fairer to both parties.

Colbert v. Nekoosa Packaging Corp. · filed 2004-07-28(5)

It is fairer to both parties to compute decedent's average weekly wage based on his earnings during his last eight months of employment at Nekoosa Packaging Corporation. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) permits an exceptional method for calculating average weekly wage when its ordinary methods would be unfair, using the amount the worker would have earned absent the injury.

Woolford v. Richardson Sports Ltd. Partners · filed 2004-07-28(5)

Calculating plaintiff's average weekly wage by any of the foregoing methods would be unfair to the employee, therefore, exceptional reasons exist to use the method herein for calculating plaintiff's average weekly wage that most accurately approximates the amount which plaintiff would be earning were it not for the injury he sustained. N.C. Gen. Stat. § 97-2 (5). Plaintiff's average weekly wage should be determined from the amount he would have earned if he had continued to play football for defendants.

When an employee worked the fifty-two weeks before an injury, § 97-2(5) requires use of its first method to calculate average weekly wage and the corresponding compensation rate.

Mayfield v. Hannifin · filed 2004-07-28(5)

Given that plaintiff had worked the fifty-two weeks prior to his injury, the Act mandates that the first method under N.C. Gen. Stat. § 97-2 (5) for calculating his average weekly wage and corresponding compensation rate be used to calculate his average weekly wage.

When an employee has worked less than twelve months and evidence for other wage calculations is insufficient, average weekly wage may be based on promised hours and pay rate when that method is fair and just.

Barrett v. Morgan Corp./wal-Mart · filed 2004-07-29(5)

Plaintiff was not employed by defendant-employer for twelve (12) months proceeding 12 October 2001, and there is insufficient evidence regarding other average weekly wage calculations, therefore it is more fair and just to determine plaintiff's average weekly based on the promised number of hours at the promised rate. This computes to an average weekly wage of $575.00 yielding $383.35 per week compensation rate. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) includes a percentage of retail sales and housing and utilities allowances in the calculation of average weekly wage.

Hale v. Public Storage · filed 2004-10-12(5)

The calculation of plaintiff's average weekly wage should include a percentage of retail sales, and housing and utilities allowances. Therefore, plaintiff's average weekly wage was $446.50, yielding a compensation rate of $297.67. N.C. Gen. Stat. § 97-2 (5).

An average weekly wage may be calculated from earnings in the last full calendar year of employment when that produces the fairest and most accurate figure given the circumstances and available records.

Wallace v. Yeargin · filed 2004-10-28(5)

In the last full calendar year of his employment, the plaintiff earned $34,552.35, which yields an average weekly wage of $664.47 and a weekly compensation rate of $443.00. Given the circumstances of this case and the records available, the $664.47 figure is the most fair and accurate weekly wage to use for the purposes of this decision. N.C. Gen. Stat. § 97-2 (5).

When a worker’s brief employment makes his own earnings an unfair measure of average weekly wage, § 97-2(5) permits using the earnings of a worker of the same grade and character in the same class of employment and locality.

Wilson v. Shannon Foust Constr. · filed 2004-11-18(5)

By reason of the shortness of time during which the employee has been in the employment of his employer it is impractical to compute the average weekly wages by adding his wages during the most recent 52 weeks of employment and dividing by 52 and it is likewise unfair to derive a weekly wage by use of the earnings of the 10 days worked. The fairest method to both parties is to determine the average weekly amount which during the 52 weeks previous to the injury was being earned by a person of the same grade and character employed in the same class of employment in the same locality or community.

Section 97-2(5) calculates an owner-operator’s average weekly wage from earnings after deducting expenses incurred to generate gross income.

Trudeau v. Roadmaster Transport · filed 2004-12-21(5)

These expense amounts that were not taken into consideration by defendants in calculating plaintiff's average weekly wage are not indicative of wages earned by plaintiff and do not yield an amount that would most nearly approximate what plaintiff would have earned but for her injury.

Section 97-2(5) permits a just and fair average weekly wage calculation based on actual earnings divided by the number of days worked.

Hamby v. Building Materials Wholesale · filed 2005-01-20(5)

The method of calculating plaintiff's average weekly wage which is just and fair to the parties is to divide his actual earnings by the number of days worked. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) permits use of its third calculation method to determine average weekly wage from available evidence when documented wages are inaccurate.

Beatty v. Loftis · filed 2005-02-10(5)

Although neither party has clean hands regarding the accuracy of plaintiff's documented wages at the time of the accident, the available evidence, taken with the third method of calculation under N.C. Gen. Stat. § 97-2 (5), puts plaintiff's average weekly wage at the time of the accident at $500.00, yielding a compensation rate of $333.33.

Average weekly wage may be calculated from earnings in the 52 weeks before the injury when that method is fair and just; a tax return covering the year of injury is unsuitable when it includes post-injury earnings.

Shingleton v. Chick-Fil-A · filed 2005-02-14(5)

Decedent's tax return for the year 2001 is not appropriate to use in calculating decedent's average weekly wage based upon her August 1, 2001 injury by accident. Furthermore, plaintiff failed to demonstrate that any method other than the first method of calculation should be used to determine decedent's average weekly wage. On the Form 60 filed on approximately October 29, 2003, defendant calculated decedent's weekly compensation rate as $175.94 based upon her salary and hours for the 52 weeks prior to her August 1, 2001 injury. Considering decedent's hourly rate and average hours worked per week for the 52 weeks prior to her injury, this average weekly wage and compensation rate is fair and just to the parties. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) uses average weekly wage to set the compensation rate.

Ramirez v. Golden Corral · filed 2005-02-15(5)

Plaintiff's average weekly wage is $295.40, yielding a compensation rate of $196.94. Plaintiff is entitled to have defendants pay the arrearage that is due based on temporary total disability compensation that was paid at a lower compensation rate pursuant to the Form 60 filed in this matter. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) uses an employee’s average weekly wage to determine the weekly compensation rate.

Arms v. Transit Svcs. · filed 2005-02-17(5)

Plaintiff's average weekly wage of $295.93 yields a compensation rate of $197.39 per week. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) permits average weekly wages to be calculated using the employee’s hourly wage and normal hours when reduced light-duty hours caused by an unresolved earlier injury would make the usual methods unfair.

Tuttle v. GREER, INC. · filed 2005-03-01(5)

Finally, the stipulations documenting that plaintiff was in a light duty position with lifting restrictions support the Commission's finding that a fair method would be to use the employee's hourly wage and the number of hours he normally worked but for his not having reached maximum medical improvement.

Section 97-2(5) uses the average weekly wage shown by a Form 22 to determine the weekly compensation rate.

Castillo v. Morton Metalcraft Co. · filed 2005-05-27(5)

Based upon the Form 22 in evidence, plaintiff had an average weekly wage of $444.48, which yields a compensation rate of $296.33. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) uses earnings from the 52 weeks before injury to calculate average weekly wage when the circumstances do not justify an alternate method.

Skidgel v. Chatham Tech./bm MacHining · filed 2005-06-30(5)

Plaintiff's average weekly wage shall be calculated based upon his earnings in the fifty-two weeks immediately prior to his injury. N.C. Gen. Stat. § 97-2 (5). The circumstances presented by Plaintiff do not constitute sufficient basis for using an alternate method to calculate Plaintiff's average weekly wage.

Section 97-2(5) uses the average weekly wage for wage-loss compensation and keeps the same compensation rate for later disability causally related to the original compensable condition.

Spinks v. Allied Signal · filed 2005-07-20(5)

For purposes of paying plaintiff compensation for wage loss, plaintiff's average weekly wage is calculated to be $542.88, yielding a compensation rate of $361.93. Plaintiff's compensation from March 1, 2001 forward is properly paid at this same rate given that her disability following March 1, 2001 was causally related to the 1998 incident. § 97-2 (5).

Section 97-2(5) permits contracted future earnings to be used to calculate average weekly wages when exceptional reasons justify that method and the finding has competent evidentiary support.

Renfro v. Richardson Sports Ltd. Partners · filed 2005-08-02(5)

Given the fact that plaintiff only worked sixteen weeks out of the fifty-two weéks prior to his injury and only earned approximately $16,000.00, the Commission’s finding that exceptional reasons existed for using plaintiff’s future earnings under the contract to determine the average weekly wage is supported by some competent evidence.

Mileage reimbursement paid in lieu of wages for required travel is included in an employee’s average weekly wage.

Chavis v. TLC Home Health Care · filed 2005-08-16(5)

As Ms. Chavis was performing her job duties while driving from one patient's house to another, but was not paid an hourly wage during this time, there is competent evidence to support the finding that Ms. Chavis was paid mileage in lieu of wages, and the full Commission properly included the mileage in her average weekly wage.

Section 97-2(5) permits average weekly wage to be calculated from the employee’s total earnings and days worked.

Keith v. Manpower Temporary Services · filed 2005-10-12(5)

The Form 22 submitted by the defendants shows that during the plaintiff's employment with the defendant-employer, the plaintiff worked for a total of 103 days, earning a total of $6,671. This results in an average weekly wage of $453.37, and a compensation rate of $302.26. ... Plaintiff's average weekly wage is $453.37, which yields a compensation rate of $302.26. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) uses the employee’s average weekly wage to determine the compensation rate.

Rayl v. Bald Head Island · filed 2005-11-04(5)

Plaintiff's average weekly wage on the relevant dates was $362.45, which results in a compensation rate of $241.63. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) permits the second method of calculating average weekly wage when the employee has worked for the employer for less than a year and that method is fair and just to both parties.

Austin v. Morehead Memorial Hospital · filed 2006-01-03(5)

Since plaintiff had worked less than a year with this employer, method 2 of N.C. Gen. Stat. § 97-2 (5) is the proper method to use in calculating average weekly wage and is fair and just to both parties.

Section 97-2(5) permits use of the third method to calculate average weekly wage for intermittent work on recurring year-round projects when the result is fair and just to both parties.

Lopez v. Ray · filed 2006-01-23(5)

The evidence of record shows that plaintiff and many of defendant-employers other workers worked semi-regularly for defendant-employer and not just for one-time, fixed-term projects. Thus, The Full Commission finds the third method of calculation under N.C. Gen. Stat. § 97-2 (5) is applicable to the facts of this case and is fair and just to both parties.

Section 97-2(5) permits the Commission to determine average weekly wage from the Form 18 when the record contains no Form 22, Form 60, or other wage information.

Ezzell v. Wal-Mart Associates Inc. · filed 2006-03-30(5)

There is not a Form 22 or Form 60 in the record, or any other wage information; therefore, the Full Commission finds that Plaintiff's average weekly wage is as stated on the Form 18, which is $472.40, yielding a compensation rate of $314.95. ... Plaintiff's average weekly wage is $472.40, yielding a compensation rate of $314.95. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) requires method three to calculate average weekly wage when methods one and two are inapplicable.

Estate of Kay v. Excel Body Works, Inc. · filed 2006-04-07(5)

Pursuant to N.C. Gen. Stat. § 97-2 (5), method three must be used to calculate the deceased-employee's average weekly wage as methods one and two are inapplicable under the facts of this case.

Section 97-2(5) calculates average weekly wages from the employment in which the employee was injured, excluding earnings from other work.

Jones v. New Hanover County Schools · filed 2006-06-07(5)

N.C. Gen. Stat. § 97-2 (5) provides that "average weekly wages" shall mean the earnings of the injured employee in the employment in which she was working at the time of the injury. Accordingly, the calculation of plaintiff's average weekly wage shall not include wages or income earned in employment or work other than that in which the employee was injured.

Section 97-2(5) permits calculating average weekly wage by dividing earnings by the weeks remaining after lost time is deducted when an employee missed work for an unrelated accident during the preceding 52 weeks.

Ramsey v. Piedmont Airlines · filed 2006-06-16(5)

As plaintiff missed work for an unrelated automobile accident during the 52 weeks prior to the accident, the second method of calculating plaintiff's average weekly wage is appropriate, and plaintiff's earnings are divided by the number of weeks remaining after lost time has been deducted.

Section 97-2(5) permits average weekly wage to be calculated from a pro rata share of annual W-2 earnings when incomplete wage records make that method fair and just to both parties.

Britt v. Gator Wood, Inc. · filed 2006-06-16(5)

The Full Commission therefore finds it fair and just to both parties, and necessary due to the absence of additional evidence in the record regarding plaintiff's weekly earnings during 2001, to calculate plaintiff's earnings from May 1, 2001, through December 31, 2001, as a pro rata share of plaintiff's total earnings from 2001 as reported on his W-2 form.

Section 97-2(5) permits use of the fair-and-just method to calculate average weekly wages over a professional athlete’s written contract period and includes housing and related allowances made in lieu of wages but excludes meal reimbursements.

Gholston v. Carolina Football Enterprises · filed 2006-07-28(5)

For the reasons given, the Full Commission concludes that the fifth method of computing average weekly wages will most nearly approximate the amount in which Plaintiff would be earning were it not for his injury and would be fair to the parties. Therefore, the Full Commission finds that determining Plaintiff's average weekly wage, including allowances, by dividing his total income by the total weeks covered by the written contract period will most accurately approximate the amount which Plaintiff would be earning were it not for his injury and will provide a result which is fair and just to both parties. ... The reimbursement payments Plaintiff received for money spent on meals at away games were not made in lieu of wages and do not constitute a part of Plaintiff's average weekly wages. The payments for housing at $675.00 per month, electric power service at $90.00 per month, water service at $25.00-$50.00 per month, cable television at $50.00 per month, washer-dryer rental at $35.00 per month, and furniture rental at $300.00 per month, are allowances made in lieu of wages and should be included in the computation of Plaintiff's average weekly wage.

Section 97-2(5) includes food and lodging allowances in average weekly wage when they are paid regardless of actual expenses and are in lieu of wages.

Greene v. Conlon Construction Company · filed 2006-08-03(5)

The allowances were not based on actual expenses for lodging or meals and plaintiff was not required to submit receipts or other documentation in order to receive allowances. Defendant-employer paid plaintiff the weekly allowance of $320.00 regardless of whether he in fact had any expenses for lodging or meals. Defendant-employer allowed plaintiff complete discretion of how to spend the allowances, if at all. The allowances paid to plaintiff were, therefore, in lieu of wages. ... Plaintiff's average weekly wage, including allowances, is $1,165.17, which yields the maximum compensation rate for 2003 of $674.00 per week. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) uses the third method to calculate average weekly wage when the employee did not work for fifty-two weeks before the injury, making the first two methods unavailable.

Conyers v. New Hanover Schools · filed 2006-09-01(5)

The correct average weekly wage and compensation rate is best determined by using method three, as methods one and two cannot be used since plaintiff did not work for fifty-two weeks prior to the injury. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) allows an agreed average weekly wage to support the compensation rate when the employer fails to produce sufficient evidence that the calculation is wrong.

McRae v. Toastmaster, Inc. · filed 2006-10-02(5)

Plaintiff's average weekly wage as agreed upon but subject to modification by the parties on the Form 21 Agreement for Compensation for Disability approved by the Commission was recorded as $250.00 per week yielding a weekly disability compensation rate of $166.67. As defendant has failed to produce sufficient evidence that this calculation is incorrect, defendant is not entitled to modify plaintiff's disability compensation rate. N.C. Gen. Stat. §§ 97-2 (5) and 97-82 .

Section 97-2(5)'s third method calculates average weekly wage by dividing earnings from the employment in which the worker was injured before the injury by the weeks and parts of weeks actually worked during that period.

Mata-Zavala v. Stephenson · filed 2006-12-11(5)

The correct method for calculating plaintiff's average weekly wage is the "third method" set forth under N.C. Gen. Stat. § 97-2 (5), which divides the plaintiff's earnings from the employment in which he was injured in the weeks prior to the injury by the actual number of weeks and parts thereof worked during the same period.

Section 97-2(5) uses the third method to calculate average weekly wage when employment before injury lasted fewer than 52 weeks, unless that method produces unjust results.

Smith v. Triumph · filed 2007-01-10(5)

Because plaintiff's employment in the instant case extended over a period of fewer than 52 weeks, the third method of calculation is appropriate, unless it results in unjust results.

Section 97-2(5) allows average weekly wage to be calculated from recent full-time earnings when including earlier part-time earnings would be unfair and no fairer alternative is shown.

Johnson v. Dillards · filed 2007-02-02(5)

Plaintiff's average weekly wage with defendant-employer was $511.03, in that she had not worked fifty-two weeks prior to her injury, in that her period of employment included a period of part-time work whereas she was working full time prior to her injury so there was an exceptional reason for not using her earnings during her entire period of employment, and in that defendants did not offer an alternative means of computing an average weekly wage, such as a wage chart from a comparable employee, which might have provided a more fair way to determine the wage.

When full-time employment before injury lasted less than fifty-two weeks, average weekly wage is calculated from earnings during that period divided by the weeks and parts of weeks worked, if the result is fair and just to both parties.

James v. Carolina Power Light · filed 2007-02-16(5)

The Full Commission finds that where the employment prior to the injury extended over a period of less than fifty-two weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed; provided, results fair and just to both parties will thereby be obtained. N.C. Gen. Stat. § 97-2 (5). The Full Commission finds that this method, more commonly known as "method two" is the appropriate means of determining Plaintiff's average weekly wage because Plaintiff's full-time employment with Defendant-employer was for less than fifty-two weeks prior to the injury.

For a sole proprietor, average weekly wage accounts for business expenses incurred in producing revenue rather than simply dividing gross receipts by the weeks worked.

Morgan v. Morgan · filed 2007-02-19(5)

The Full Commission finds that it would not be fair or just to compute plaintiff's average weekly wage by simply dividing plaintiff's gross receipts by the number of weeks in 2003 that preceded his injuries, since the nature of plaintiff's sole proprietorship requires consideration of business expenses incurred in producing revenue.

Section 97-2(5) allows average weekly wages to be calculated from a subcontractor’s net earnings divided by the weeks worked when the full 52-week earnings record is unavailable and the result is fair.

Dominguez-Zapata v. Masonry · filed 2007-05-14(5)

There is no record of plaintiff's exact earnings during the 52 weeks preceding December 20, 2004. However, his 2004 federal tax return shows that in the nine months in 2004 in which plaintiff worked as a subcontractor for defendant, plaintiff's net earnings were $25,680.00. This figure is derived from the $289,098.00 that plaintiff grossed from defendant, less contract labor, vehicle expenses, insurance, maintenance, supplies, travel and meals, utilities and other expenses. Dividing $25,680.00 by the 40-week period from April 1, 2004 through December 31, 2004 yields an average weekly wage of $642.00. It is found that this is a fair calculation of plaintiff's average weekly wage pursuant to N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) permits calculating average weekly wages from the employee’s hourly rate multiplied by a 40-hour week when that method produces a fair and just result.

Estate of Coons v. Corey · filed 2007-05-16(5)

Therefore, the Full Commission concludes that fair and just results can only be obtained by calculating the average weekly wage based on the hourly wage being paid to the decedent and multiplying that amount by a 40 hour week.

Section 97-2(5) determines average weekly wage from evidence of the employee’s earnings and uses that wage to calculate the workers’ compensation rate.

Steinbrecher v. Raleigh Housing Authority · filed 2007-06-20(5)

In this case, the Forms 22 submitted, together with the greater weight of the evidence regarding plaintiff's earnings, results in an average weekly wage of $704.40, which results in a workers' compensation rate of $469.62. N.C. Gen. Stat. § 97-2 (5).

Under § 97-2(5), allowances are paid in lieu of wages when they replace payment for labor or services.

Greene v. Conlon Construction Co. · filed 2007-07-03(5)

Thus, allowances made “in lieu of wages” are those made “in place of payment for labor or services.”

Section 97-2(5) calculates average weekly wage for an employee who worked less than 52 weeks by dividing actual earnings by weeks worked, if the result is fair and just to both parties.

Smith v. Cumberland County brd.of Edu. · filed 2007-08-23(5)

The third method applies to an employee who worked less than 52 weeks and is used to calculate average weekly wage by dividing the actual earnings by the number of weeks worked, provided the results are fair and just to both parties.

Average weekly wage calculated from Form 22 determines the compensation rate, and temporary total disability payments made at a lower rate must be supplemented.

Ramirez v. Golden Corral · filed 2007-08-30(5)

Plaintiff's average weekly wage is $295.40, yielding a compensation rate of $196.94. Plaintiff is entitled to have defendants pay the arrearage that is due based on temporary total disability compensation that was paid at a lower compensation rate pursuant to the Form 60 filed in this matter. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) uses average weekly wage to determine the compensation rate, with arrearages due when temporary total disability benefits were paid at a lower rate.

Ramirez v. Golden Corral · filed 2007-09-20(5)

Plaintiff's average weekly wage is $295.40, yielding a compensation rate of $196.94. Plaintiff is entitled to have defendants pay the arrearage that is due based on temporary total disability compensation that was paid at a lower compensation rate pursuant to the Form 60 filed in this matter. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) allows average weekly wage to be based on expected weekly earnings when the earlier calculation methods cannot be used or would be unfair.

Nottingham v. Thumpers Bar and Grill · filed 2007-09-26(5)

Because plaintiff only worked for approximately one month prior to his injury, his average weekly wage cannot be calculated by use of the first or second methods provided in N.C. Gen. Stat. § 97-2 (5). Further, to divide the money earned by plaintiff during the time he worked for defendant-employer by the number of weeks of employment would not provide a fair and just result to plaintiff as, for reasons not disclosed in the record, he had not worked all the hours or days for which he was hired; therefore, the third method provided in N.C. Gen. Stat. § 97-2 (5) may not be utilized. No evidence has been presented of the average weekly wage of an employee of the same grade and character as plaintiff and in the same locality or community earned in the 52 weeks preceding plaintiff's injury by accident; therefore, it is impossible to calculate plaintiff's average weekly wage according to the fourth method provided in N.C. Gen. Stat. § 97-2 (5). As such, plaintiff's average weekly wage is determined to be $160.00, as the evidence shows that this is the amount plaintiff would earn each week while working for defendant-employer.

Section 97-2(5) calculates average weekly wage for an employee who worked less than 52 weeks before injury by dividing actual earnings by the number of weeks worked, when the result is fair and just to both parties.

Boger v. Ecmd · filed 2007-10-19(5)

The first two methods require that plaintiff's employment prior to the injury extend over a period of 52 weeks. The third method applies to employees who worked for less than 52 weeks preceding the injury and calculates their average weekly wage by dividing the actual earnings by the number of weeks worked.

Under § 97-2(5), an accurate Form 22 may establish the employee’s average weekly wage and compensation rate.

Nuttall v. Hornwood, Inc. · filed 2008-01-08(5)

Defendants' Form 22 accurately reflects plaintiff's average weekly wage and compensation rate. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) permits an employee benefit to count toward average weekly wages if it can be converted into a cash equivalent; fringe benefits are assessed individually.

Shaw v. U.S. Airways, Inc. · filed 2007-11-06(5)

Under Kirk, therefore, employee benefits must be considered on a case-by-case basis to determine whether they can be converted into a cash equivalent. If so, such benefits may be considered as part of the worker's average weekly wage.

Section 97-2(5) permits average weekly wage to be based on the employee’s agreed earnings when a work injury prevents completion of the first week.

Britt v. DURDEN HOME IMPROVEMENT PTR · filed 2007-12-18(5)

The evidence presented indicates that DHI "regularly employed" three or more individuals and was subject to the requirements of the Workers' Compensation Act. ... Although plaintiff was unable to complete a week of work because of his injuries, the Commission appropriately calculated plaintiff's average weekly wage by determining the amount plaintiff would be earning but for his injury.

Section 97-2(5)'s similar-employee wage method is inappropriate when calculating from the injured worker's own wages is fair and practicable.

Goodson v. Mafco Holdings, Inc. · filed 2008-01-24(5)

As calculated by the third method, plaintiff's average weekly wage is $417.06, which yields a compensation rate of $278.05. The fourth method involving a similar employee's wages is inappropriate considering that the third method does not yield unfair results and it is not impractical. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) permits average weekly wage to be calculated from earnings after a return to work while excluding periods when the employee received disability benefits for a prior injury.

Katsifos v. McAdams Company · filed 2008-01-24(5)

It would be inappropriate to consider the periods during which Plaintiff was drawing disability benefits in 2001 and 2002 due to his prior injury. The Full Commission concludes that the most appropriate method of calculating Plaintiff's wages prior to his injury of September 16, 2002 is to consider his wages earned in the return to work period as shown on the stipulated exhibits from the pay periods shown as February 9, 2002 through the pay period shown as September 14, 2002.

For an employee who worked fewer than 52 weeks before injury, average weekly wage may be calculated from permanent-employment earnings that best approximate what the employee would have earned without the injury, excluding temporary-employment earnings.

Womble v. G D Transportation · filed 2008-02-13(5)

As plaintiff worked less than fifty-two (52) weeks prior to his left shoulder injury, plaintiff's average weekly wage for this injury should be computed using a method that is fair both to plaintiff and defendants. ... Because plaintiff's earnings as a permanent employee most nearly approximate the amount he would be earning were it not for the injury, plaintiff's earnings while a temporary employee should not be included in the calculation.

Section 97-2(5) sets out five methods in order of preference for calculating average weekly wage; the fifth applies when it best approximates what the employee would have earned without the injury.

Mendoza-Mejia v. Hurtado · filed 2008-03-03(5)

N.C. Gen. Stat. § 97-2 (5) sets forth five methods, listed in order of preference, to determine a claimant's average weekly wage. ... The fifth method is most appropriate in this case as it most nearly approximates the amount for which plaintiff would be earning, were it not for the injury.

Section 97-2(5) permits calculating average weekly wage by dividing earnings during employment of less than 52 weeks by the weeks and parts of weeks worked when the first two statutory methods would not be fair and just to both parties.

Masood v. Erwin Oil Company · filed 2008-03-27(5)

Since the first two methods of calculating plaintiff's average weekly wage pursuant to N.C. Gen. Stat. § 97-2 (5) would not be fair and just to both parties, plaintiff's average weekly wage is determined by dividing the earnings during his period of employment, which was less than 52 weeks, by the number of weeks and parts thereof during which plaintiff earned wages. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) permits average weekly wages for employment lasting less than 52 weeks to be calculated by dividing earnings by the weeks and parts of weeks worked when the first two calculation methods would not be fair and just to both parties.

Masood v. Erwin Oil Co. · filed 2008-06-10(5)

Since the first two methods of calculating plaintiff's average weekly wage pursuant to N.C. Gen. Stat. § 97-2 (5) would not be fair and just to both parties, plaintiff's average weekly wage is determined by dividing the earnings during his period of employment, which was less than 52 weeks, by the number of weeks and parts thereof during which plaintiff earned wages. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) calculates average weekly wage for employment lasting less than 52 weeks by dividing earnings by the number of weeks and parts thereof worked.

Moore v. Sullbark Builders, Inc. · filed 2008-07-14(5)

As Plaintiff's period of employment prior to his work injury was less than 52 weeks, Plaintiff's average weekly wage is based upon the method of dividing his earnings during his period of employment by the number of weeks and parts thereof.

Section 97-2(5) bars use of its first two average-weekly-wage methods when an employee worked less than 52 weeks and permits rejection of the third method when the nature of the work and pay would make its result unfair.

Crutchfield v. Carolina Football Enterprises · filed 2008-07-24(5)

Plaintiff had worked less than 52 weeks at the time of his compensable injuries by accident; therefore his average weekly wage cannot be calculated by use of the first or second methods provided in N.C. Gen. Stat. § 97-2 (5). Due to the nature of professional football and how contracts are negotiated and paid, fair and just results cannot be obtained via the third method provided in N.C. Gen. Stat. § 97-2 (5), which calculates the average weekly wage based on the actual weeks plaintiff worked prior to his injuries of February 14, 2003 and April 11, 2003.

Section 97-2(5) excludes room and board provided based on financial need from the employee’s average weekly wage.

Dobson v. the Salvation Army · filed 2008-07-28(5)

Plaintiff's average weekly wage calculation does not include room and board that was provided based on financial need.

Section 97-2(5) permits average weekly wage to be calculated from earnings over the available work period when the evidence for the preceding 52 weeks is insufficient and the first two methods would not be fair and just to both parties.

Lincoln v. McLamb · filed 2008-08-19(5)

Because there is insufficient evidence as to plaintiff's weekly wages over the 52 weeks immediately preceding the date of injury, the Full Commission concludes that the first and second methods of calculating average weekly wage would not yield results fair and just to both parties. Based upon the third method of calculating average weekly wage pursuant to N.C. Gen. Stat. § 97-2 (5), the Full Commission finds plaintiff's average weekly wage to be $440.00 ($8,800.00 divided by 20 weeks equals $440.00), which yields a weekly compensation rate of $293.33.

Section 97-2(5) permits use of the third method to calculate average weekly wage when employment lasted fewer than 52 weeks and that method is fair and just to both parties.

Salto v. Pride · filed 2008-11-14(5)

As plaintiff's employment prior to her injury extended for a period of fewer than 52 weeks, methods one and two of determining plaintiff's average weekly wage are not appropriate, therefore, the Full Commission finds that the use of method three is fair and just to all parties pursuant to N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) permits average weekly wage to be based on wages from the fifty-two weeks before disability when that period gives a fair and just estimate.

Brodie v. Excel Staffing Services · filed 2008-12-03(5)

Based upon a careful review of the record in this matter, the Full Commission concludes that plaintiff's wages during the fifty-two weeks immediately proceeding the date of plaintiff's disability to be a fair and just estimation of plaintiff's average weekly wage. The Full Commission concludes that plaintiff's average weekly wage for the fifty-two weeks immediately proceeding plaintiff's disability is $678.86, which yields a compensation rate of $452.80. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) permits an alternative average weekly wage calculation when exceptional reasons make the other methods inappropriate, using the amount that most nearly approximates what the employee would have earned but for the injury.

Floyd v. Panthers Football, L.L.C. · filed 2008-12-04(5)

Specifically, at the time of the injury giving rise to this claim, the Plaintiff had not been employed by the Defendants for a fifty-two week period and use of the other methods of calculating the average weekly wage are not appropriate, and it would be unfair to use his training camp wages; nor has any credible evidence been presented by the Defendants to support any method other than the last method under N.C. Gen. Stat. § 97-2 (5). Therefore, it is appropriate to resort to such other method of computing average weekly wages as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.

Section 97-2(5) allows an injured player’s average weekly wage to be based on what he would have earned had he continued playing when exceptional reasons make that amount the closest approximation of his earnings without the injury.

Knight v. Panthers Football · filed 2008-12-23(5)

Exceptional reasons exist for using the method used herein for calculating plaintiff's average weekly wage that most accurately approximates the amount which plaintiff would be earning were it not for the injury he sustained. N.C. Gen. Stat. § 97-2 (5). Plaintiff's average weekly wage should be determined from the amount he would have earned if he had continued to play football for defendants.

Section 97-2(5) permits the second method of calculating average weekly wage when an employee missed more than seven consecutive days in the preceding 52 weeks, dividing wages earned by the weeks worked.

Keith v. North Carolina Granite Corp. · filed 2009-01-06(5)

In this case, the application of the second method of calculation under N.C. Gen. Stat. § 97-2 (5) is appropriate. Plaintiff missed more than seven consecutive days during his 52 weeks of employment prior to the date of injury. Evidence was submitted reflecting that plaintiff worked for 46.14 weeks of the 52 weeks preceding his injury. Plaintiff's wages for these 46.14 weeks totaled $27,297.08. This figure divided by 46.14 generates an average weekly wage for plaintiff of $591.61, which yields a weekly workers' compensation rate of $394.41.

Section 97-2(5)'s fourth method permits using a comparable entry-level adult worker's wage to calculate a minor employee's average weekly wage when that is fair and just to both parties.

Little v. Anson County Board of Education · filed 2009-01-08(5)

Given the nature of Plaintiff's employment and the legislative intent to treat children fairly, the undersigned concludes that, per the "fourth method" of N.C. Gen. Stat. § 97-2 (5), the only result that is fair and just to all parties for the calculation of Plaintiff's average weekly wage is arrived at by using an average weekly wage of an entry-level janitor as Plaintiff's average weekly wage.

Section 97-2(5) calculates average weekly wage from earnings in the 52 weeks before injury, deducting qualifying lost time from the divisor.

Thompson v. Western Carolina University · filed 2009-02-04(5)

Based upon review of the Form 22, plaintiff's average weekly wage was not properly calculated under N.C. Gen. Stat. § 97-2 (5), which provides, in pertinent part: ... In calculating plaintiff's wages for the 52 weeks prior to his injury by accident, where plaintiff worked a total of 289 days and earned $19,800, his average weekly wage was $479.58, yielding a compensation rate of $319.73.

Section 97-2(5) calculates average weekly wage using the employee’s earnings in the 52 weeks before injury divided by 52 when that method applies; the Commission must explain a different figure.

Erickson v. Siegler · filed 2009-03-03(5)

Under this method, the average weekly wage is calculated by totaling the employee’s earnings for the 52 weeks prior to the injury and dividing that sum by 52. ... It appears to us that application of the first method in § 97-2(5) to the figures in the Form 22 would result in an average weekly wage of $538.33. Since we cannot determine how the Commission reached the conclusion that plaintiff’s average weekly wage should be $662.06, we remand for further findings of fact regarding plaintiff’s average weekly wage.

Section 97-2(5) permits an interim compensation rate based on the average weekly wage of a similarly situated employee when wage evidence is incomplete, pending receipt of further evidence.

Rodriguez v. Raleigh Carpentry Remodeling · filed 2009-06-11(5)

Given that no Industrial Commission Form 22 has been filed, the Full Commission determines that plaintiff's compensation rate shall be based upon the average weekly wage of a similarly situated employee as found by Deputy Commissioner Phillips, until further evidence on this issue can be presented at a future hearing. N.C. Gen. Stat. § 97-2 (5).

For an employee who worked fewer than 52 weeks, § 97-2(5) calculates average weekly wage by dividing earnings by the weeks and parts of weeks in which wages were earned, if the result is fair and just to both parties.

Farence v. Colpa-Dolce · filed 2009-06-15(5)

Plaintiff worked for Colpa-Dolce for less than 52 weeks, therefore, his average weekly wage is to be calculated using the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages, provided that the results are fair and just to both parties.

Section 97-2(5) calls for an average weekly wage calculation fair to both employee and employer; when the evidence is insufficient to calculate it, the Commission may reopen the record for more evidence.

Golden v. Waffle House · filed 2009-06-15(5)

Plaintiff's average weekly wage should be computed using a method that is fair to both plaintiff and defendant. Based on the record before the Full Commission there is insufficient evidence from which to compute average weekly wage and this matter should be reopened for additional evidence on this issue.

Section 97-2(5) permits average weekly wage to be calculated by dividing earnings by the weeks worked or parts thereof when that method is fair and just to all parties.

McCray v. Thorne · filed 2009-06-22(5)

Computing plaintiff's average weekly wage using method three, dividing the earnings by the number of weeks worked or parts thereof, would produce a result that is fair and just to all parties. Thus, plaintiff's average weekly wage is $868.63, which yields a compensation rate of $579.16.

Section 97-2(5) permits calculating a worker’s average weekly wage from total earnings over the weeks worked when the worker was employed for only nine weeks.

Murray v. G J Transport Company, Inc. · filed 2009-09-25(5)

Plaintiff earned $7,513.56 during the 63 days (nine weeks) he worked for defendant-employer G J Transport Company. Decedent's average weekly wage is, therefore, $834.82, which yields a compensation rate of $556.55. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) allows average weekly wage to be calculated from a similarly situated coworker’s earnings when the injured employee had worked for less than a month.

Gross v. Gene Bennett Co. · filed 2009-10-06(5)

24. Because Plaintiff had been working for Defendant-Employer for less than a month in 2007 when he was hurt, Defendants produced a Form 22 utilizing the data for a similarly situated co-worker, Charlie Bennett, who worked the same hours as Plaintiff and was paid at the same rate. The Form 22 shows Mr. Bennett earned $23,472.50 over the 52 weeks preceding Plaintiff's accident. ... 5. Based upon the Form 22, Plaintiff's average weekly wage is $451.39, which yields a compensation rate of $300.94. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) requires a fair and just result under the third average-weekly-wage method; when that method produces an unfair result, the fourth method may be used.

Holman v. Bowman Business Associates, Inc. · filed 2009-11-04(5)

Therefore, regardless of the credibility of Mr. Brown's testimony, the third method for calculating average weekly wage cannot be used in this case.

Section 97-2(5) calls for a fair determination of average weekly wage; when the submitted Form 22 does not permit that determination, additional wage information is needed.

Thompson v. Aramark, Inc. · filed 2009-12-16(5)

Based upon the Form 22 submitted by the parties, the Full Commission is not able to fairly determine Plaintiff's average weekly wage. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) permits method five when the other methods would be unfair, but average weekly wages under that method cannot include earnings from other employers.

Barrett v. ALL PAYMENT SERVICES, INC. · filed 2009-12-22(5)

Employee argues that the Commission erred in using method five under N.C. Gen. Stat. § 97-2(5) to calculate his average weekly wage and including wages from jobs other than the job on which he was injured. We conclude that the Commission properly used method five, but hold that it misapplied this method by including wages from other employers in computing employee’s average weekly wage.

Section 97-2(5) requires use of the second average-weekly-wage method when an employee missed weeks of work during the preceding 52 weeks because of employer plant shutdowns and the first method would be unfair.

Shehan v. Taylor Togs, Inc. · filed 2009-12-23(5)

In the case at bar, method one (1) under N.C. Gen. Stat. § 97-2 (5) cannot be used because Plaintiff, although employed, worked for Defendant-Employer fewer than 52 weeks in the year preceding the work injury, and it would be unfair to Plaintiff to use method one (1), since she did not earn wages during all of the 52 weeks of employment preceding her November 14, 2005 work injury due to Defendant-Employer's plant shut-downs.

Section 97-2(5) excludes per diem payments tied to business-related living expenses from earnings when they are not made in lieu of wages.

Thompson v. Sts Holdings, Inc. · filed 2010-01-05(5)

The Full Commission therefore concludes that the per diem payments received by plaintiff were not made in lieu of wages, but instead were coordinated with plaintiff's actual business-related living expenses.

Section 97-2(5) permits an asbestosis claimant’s average weekly wage to be calculated from the last full year of employment when the claimant had no earnings at diagnosis and using diagnosis-time earnings would be unfair.

Pope v. Manville · filed 2010-01-19(5)

Abernathy and Moore are controlling in this case. ... Given that Plaintiff was not earning any income at the time of his diagnosis, the Full Commission followed the approach approved in Abernathy and calculated a weekly compensation rate of $399.06 based on the wages that Plaintiff earned during his last full year of employment. ... As a result, the Full Commission did not err in the manner in which it calculated Plaintiff's weekly compensation rate, since it followed an approach that has clearly been found to be appropriate in this Court's previous decisions.

Section 97-2(5) requires the average weekly wage calculation methods to be considered in order of preference, so method five cannot be used when method four produces fair and just results for both parties.

Krause v. Bak Transport · filed 2010-01-28(5)

Because N.C. Gen. Stat. § 97-2 (5) sets forth in order of preference the methods of computing average weekly wages, method five (5) cannot be utilized if method four (4) will produce fair and just results to both parties.

When a worker was employed for less than 52 weeks before injury, average weekly wage is calculated by dividing earnings during that employment by the weeks and parts of weeks in which the worker earned wages.

Holden v. Brickey Acoustical, Inc. · filed 2010-03-10(5)

As plaintiff's employment with defendant-employer prior to his injury was for a period of time less than 52 weeks, plaintiff's average weekly wage should be determined by dividing the earnings during his period of employment by the number of weeks and parts thereof for which he earned wages with defendant-employer.

Section 97-2(5) includes a per diem in average weekly wages when it is paid in addition to regular wages, is discretionary, and does not require expense receipts.

Rudolph v. Newber's Refrigeration · filed 2010-05-06(5)

Under N.C. Gen. Stat. § 97-2 (5), which provides for the inclusion of allowances made to employees in lieu of wages, Plaintiff's per diem should be included in his average weekly wage calculation. Plaintiff was not required to submit receipts for the expenditure of this money, Plaintiff received the same amount every time he went out of town, and the money was to be spent at Plaintiff's discretion. This money was not taken from Plaintiff's regular pay, but rather, was in addition to it.

Section 97-2(5) uses its third method to calculate average weekly wage when employment lasted fewer than 52 weeks and that method is fair and just to both parties; the method divides earnings by the weeks or parts of weeks worked.

Locklear v. Wecc, Inc. · filed 2010-05-10(5)

Plaintiff's average weekly wage should be calculated by using method three (3) under N.C. Gen. Stat. § 97-2 (5), because his work for Defendant-Employer extended over a period of fewer than 52 weeks in the year preceding his August 19, 2008 work injury and this method would yield results that are fair and just to both parties. Under this method, Plaintiff's earnings are divided by the number of weeks or parts thereof that he worked for Defendant-Employer.

Section 97-2(5) bases a disabled volunteer firefighter’s compensation on the average weekly wage from the employment in which the firefighter principally earned a livelihood at the time of injury; minimal pay for some firefighting duties does not remove volunteer status.

Marini v. City of King · filed 2010-05-17(5)

The de minimus wages paid to plaintiff for some of his firefighting duties should not remove plaintiff from the statutory protections for volunteer firefighters. ... N.C. Gen. Stat. § 97-2 (5) specifically states that in case of a disabling injury to a volunteer fireman, compensation shall be calculated upon the average weekly wage he was "earning in the employment wherein he principally earned his livelihood as of the date of the injury."

Section 97-2(5) permits the Commission to use another method to determine average weekly wages when exceptional reasons make the first three methods unfair, choosing one that most nearly approximates earnings absent the injury.

Tyson v. H. K. Porter Company · filed 2010-05-17(5)

Where for exceptional reasons the first three methods would be unfair, either to the employer or employee, the Commission may employ such other method as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.

Section 97-2(5) permits calculating average weekly wage by dividing earnings during the 52 weeks before the injury by 52.

Winstead v. Saint Gobain Corporation · filed 2010-08-05(5)

Using the first method set forth in N.C. Gen. Stat. § 97-2 (5) and according to the Form 22 and wage documents submitted, plaintiff earned $56,568.96 during the 52 week period prior to the injury. This amount divided by 52, results in an average weekly wage of $1,087.86.

Section 97-2(5) permits average weekly wage to be calculated by dividing wages earned in the prior 52 weeks by the weeks remaining after deducting periods of lost time exceeding seven consecutive days.

Steen v. Triad International Maintenance Corp. · filed 2010-09-02(5)

His attendance records show that he lost more than seven consecutive days in two of the 52 weeks. Because plaintiff did not work a full 52 weeks, the first method outlined in the Act for the calculation of his average weekly cannot be used. Using the second method outlined in N.C. Gen. Stat. § 97-2 (5), dividing plaintiff's wages by the number of weeks remaining (50) after deducting the lost time, results in an average weekly wage of $756.77, yielding a compensation rate of $504.54.

When an employee worked less than 52 weeks before an injury, Section 97-2(5) permits the third method of calculating average weekly wage if it is the most fair and just: divide earnings during that employment by the weeks and parts of weeks in which the employee earned wages.

Salvie v. Medical Center Pharmacy of Concord · filed 2010-09-14(5)

As Plaintiff worked for Defendant for a period of less than 52 weeks prior to his injury, the Full Commission finds that the third method of determining Plaintiff's average weekly wage under N.C. Gen. Stat. § 97-2 (5) is the most fair and just. Under the third method, the average weekly wage is determined by dividing the earnings during the period of employment prior to the injury by the number of weeks and parts thereof during which the employee earned wages.

Section 97-2(5) permits average weekly wage for an employee who worked less than 52 weeks to be calculated by dividing total earnings during employment by the weeks and parts thereof when that method is most fair and just.

Carroll v. Triangle Grading · filed 2010-09-22(5)

As plaintiff was employed with defendant-employer for a period of less than 52 weeks, the most fair and just method to determine plaintiff's average weekly wage is to divide the total earnings during the period of employment by the weeks and parts thereof.

Section 97-2(5) permits the third method of calculating average weekly wage for an employee who worked fewer than 52 weeks before injury, dividing earnings during that employment, including a housing allowance, by the weeks and parts of weeks in which wages were earned.

Salvie v. Medical Center Pharmacy of Concord · filed 2010-11-22(5)

As Plaintiff worked for Defendant for a period of less than 52 weeks prior to his injury, the Full Commission finds that the third method of determining Plaintiff's average weekly wage under N.C. Gen. Stat. § 97-2 (5) is the most fair and just. Under the third method, the average weekly wage is determined by dividing the earnings during the period of employment prior to the injury by the number of weeks and parts thereof during which the employee earned wages. Prior to Plaintiff's injury, Plaintiff worked 30.29 weeks during which time he earned $17,090.77 in actual wages and $4,700.00 as a housing allowance totaling $21,790.77 in wages.

Section 97-2(5) excludes a per diem from average weekly wage when it reimburses actual travel and lodging expenses rather than serving as an allowance in lieu of wages.

Coley v. Professional Pipe · filed 2010-11-29(5)

The per diem was paid to Plaintiff only when he had to stay overnight on an out-of-town job and was concordant with his actual hotel and meal expenses when he did so. As such, it was not an allowance made to Plaintiff in lieu of wages and specified as part of his wage contract. Thus, it is not part of his earnings in calculating the average weekly wage.

Section 97-2(5) permits calculating average weekly wage for an employee who worked fewer than 52 weeks by dividing earnings during employment by the weeks and parts of weeks in which the employee earned wages when that method is fair and just.

Naylor v. Cumberland County · filed 2010-11-29(5)

As Plaintiff worked for Defendant for a period of less than 52 weeks prior to his injury, the Full Commission finds that the third method of determining Plaintiff's average weekly wage under N.C. Gen. Stat. § 97-2 (5) is the most fair and just. Under the third method, the average weekly wage is determined by dividing the earnings during the period of employment prior to the injury by the number of weeks and parts thereof during which the employee earned wages.

Section 97-2(5) includes per diem payments and use of a company vehicle in average weekly wage when they are allowances in lieu of wages specified as part of the wage contract.

Lisk v. Stanley Fixtures Company, Inc. · filed 2010-12-29(5)

The per diem and use of the company van was an allowance made to plaintiff in lieu of wages and specified as a part of his wage contract and thus is deemed part of his earnings in the average weekly wage calculation.

When an employee worked the entire fifty-two weeks before an injury, Section 97-2(5) requires the first method to calculate average weekly wage using that pre-injury period.

Solomon v. Nc State Veterans Nursing Home-Fayette. · filed 2011-01-03(5)

Because plaintiff worked the entire fifty-two (52) weeks prior to her April 29, 2008, injury by accident, method one, as outlined in N.C. Gen. Stat. § 97-2 (5), must be used to calculate her average weekly wage. This period does not include days subsequent to April 29, 2008, or prior to April 29, 2007.

Section 97-2(5) excludes an out-of-town per diem from average weekly wages when it matches actual lodging and meal expenses and is not paid in lieu of wages.

Coley v. Pipe · filed 2011-01-25(5)

The per diem was paid to Plaintiff only when he had to stay overnight on an out-of-town job and was concordant with his actual hotel and meal expenses when he did so. As such, it was not an allowance made to Plaintiff in lieu of wages and specified as part of his wage contract. Thus, it is not part of his earnings in calculating the average weekly wage.

Section 97-2(5) permits method 5 to calculate average weekly wage when the time and nature of the employment make that method the fairest.

Jackson v. Adams Adams Construction · filed 2011-03-01(5)

Due to the time and nature of Plaintiff's employment, the most fair method of calculating Plaintiff's average weekly wage is to use method 5 under N.C. Gen. Stat. § 97-2 . As Plaintiff worked four hours per day at the time of the injury earning $15 per hour, Plaintiff's average weekly wage is $300.00 resulting in a compensation rate of $200.01.

Section 97-2(5) permits the fifth average weekly wage method when the first two methods do not apply, the third would be unfair, and the evidence is insufficient for the fourth.

Elder v. Ddp Holdings, Inc. · filed 2011-03-01(5)

Given that the first and second methods under N.C. Gen. Stat. § 97-2 (5) do not apply, the third method would be unfair, and there is insufficient evidence to use the fourth method, the Full Commission finds that the fifth method is the most fair and just means to both parties to determine plaintiff's average weekly wage.

Section 97-2(5) calculates the average weekly wage of an employee who worked less than 52 weeks by dividing total earnings by the weeks or parts of weeks worked when that method is fair and just to both parties.

Deroche v. Canine · filed 2011-03-21(5)

The first two methods of calculating average weekly wages provided in N.C. Gen. Stat. § 97-2 (5) are inapplicable because plaintiff was employed for less than one year before the date of injury including all periods of employment. N.C. Gen. Stat. § 97-2 (5). Based on the evidence of record, the third method of calculating average weekly wages provided in N.C. Gen. Stat. § 97-2 (5) is appropriate as it provides results that are fair and just to both parties. Plaintiff's average weekly wage is calculated by dividing her total earnings by the total number of weeks (or parts thereof) that she worked for defendant-employer.

Section 97-2(5) permits the Commission to calculate average weekly wages using a method that most nearly approximates what the employee would earn but for the injury when the usual fifty-two-week calculation is distorted by an earlier injury.

Wilson v. Toby Wells Pontiac Buick Gmc · filed 2011-04-04(5)

Having considered the foregoing, the fourth method under N.C. Gen. Stat. § 97-2 (5) should be used, which allows the Commission to use methods of computing average weekly wages which will most nearly approximate the amount which the injured employee would be earning were it not for the injury. The Commission concludes that the method that would most nearly approximate what plaintiff would be earning but for his second injury is the earnings for the fifty-two weeks prior to his first injury by accident on August 4, 2004.

Section 97-2(5) permits averaging a seasonal employee’s earnings over all 52 weeks before injury when excluding seasonal shutdown weeks would unfairly inflate the average weekly wage.

Wallace v. Alliance One International Inc. · filed 2011-06-20(5)

The greater weight of the competent and credible evidence of record reveals that, due to the admittedly seasonal nature of Plaintiff's employment with Defendant-Employer, computation of his average weekly wage according to the usual and preferred method under N.C. Gen. Stat. § 97-2 (5) (i.e., by deducting the 22 weeks Plaintiff missed from work as a result of Defendant-Employer's seasonal shutdown) would result in a windfall to Plaintiff, an undue burden on Defendants, and is therefore an unfair method of calculation.

Section 97-2(5) permits an average weekly wage based on what the injured worker would have earned without the injury when the other calculation methods are unfair.

Kubick v. Guilford County Schools · filed 2011-07-12(5)

The fifth method under N.C. Gen. Stat. § 97-2 (5) is to compute the average weekly wage that will most nearly approximate the amount which the injured worker would be earning were it not for the injury.

Section 97-2(5) does not permit average weekly wage to be calculated solely from an employee’s hourly pay rate.

Brown v. City of Burlington · filed 2011-07-12(5)

Defendant-Carrier arrived at that figure using Plaintiff's hourly pay rate as provided by Defendant-Employer. In so calculating Plaintiff's average weekly wage, Defendants failed to properly apply the statutory definition of "average weekly wage." N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) permits use of its fifth method to calculate an average weekly wage when the first four methods cannot be used and the result is fair and just to both parties.

Harrell v. Edgecombe County Schools · filed 2011-07-25(5)

In the case at bar, methods one (1) through four (4) under N.C. Gen. Stat. § 97-2 (5) cannot be used for the reasons set forth above. Based on the competent evidence of record, the appropriate method of calculating an average weekly wage that will provide results fair and just to both parties is the fifth method prescribed by N.C. Gen. Stat. § 97-2 (5); Conyers v. New Hanover County Schools , 188 N.C. App. 253 , 654 S.E.2D 745 (2008).

Section 97-2(5) calculates average weekly wage from the worker’s earnings over the remaining weeks after excluding periods of more than seven consecutive days without work.

Jaimes v. Uwharrie Knits, Inc. · filed 2011-08-01(5)

Based upon the stipulated Form 22 wage chart, Plaintiff's average weekly wage can be calculated by dividing her earnings by the number of weeks remaining after deducting the time for periods where she lost more than seven consecutive days, which generates an average weekly wage of $281.23, which equates to a weekly compensation rate of $187.50.

Section 97-2(5) uses the third method to calculate average weekly wages when it fairly accounts for seasonal fluctuations in the employee’s actual earnings, without resort to the fifth method.

Bullard v. T.R. Lee Oil Company · filed 2011-08-01(5)

Inasmuch as method three produces a result that is fair and just to both parties, to the extent that it takes into account both the busy and the slow times of Defendant-Employer's business, Plaintiff's average weekly wage should be calculated utilizing method three without resort to method five or wages from another employee whose employment was not of the same grade, class and character as that of Plaintiff.

Section 97-2(5) calculates average weekly wage for employment lasting fewer than 52 weeks by dividing earnings by the weeks and parts of weeks worked when that method is appropriate.

Thomas v. Richmond Yarns Inc. · filed 2011-08-26(5)

As Plaintiff's actual wages are reflected in the Form 22 wage chart and Plaintiff's employment was for less than 52 weeks prior to the injury, the third method of calculation is the most appropriate method to be used to properly calculate Plaintiff's average weekly wage. Plaintiff's wages are thus calculated by dividing his gross earnings provided on the Form 22 wage chart by the number of weeks and parts thereof during which Plaintiff earned wages.

Under the fifth method for calculating average weekly wages, business expenses may be deducted from gross receipts to approximate the injured worker’s earnings, while uncertain per diem expenses may be left undeducted.

Gibson v. Gibson · filed 2011-09-27(5)

In the instant case, deducting the Gibsons' expenses, with the exception of the amount they claimed for per diem, is necessary in order to "most nearly approximate the amount which the injured employee would be earning were it not for the injury" pursuant to N.C. Gen. Stat. § 97-2 (5). Viewing the evidence in the light most favorable to Plaintiff, the Full Commission declines, however, to deduct the Gibson's per diem expenses as the evidence is unclear as to what portion of the amount claimed was actually spent on food, meals and other items which would typically be considered per diem expenses.

Section 97-2(5) permits the fifth method of calculating average weekly wage when a brief period of employment makes the first four methods unfair to the parties.

Smith v. Denross Contracting · filed 2011-10-13(5)

As Plaintiff worked for a period of less than 52 weeks and due to the brevity of Plaintiff's employment, methods one through three of determining Plaintiff's average weekly wage would not be fair and just and are not applicable in this case. N.C. Gen. Stat. § 97-2 (5). As a result of the circumstances surrounding Plaintiff's employment, method four of determining Plaintiff's average weekly wage would not be fair to both parties. Therefore, the fifth method of compensation is the most fair and appropriate.

Section 97-2(5) does not treat a firefighter paid wages as a part-time employee as a volunteer firefighter for calculating average weekly wage.

Merrill v. Jupiter Volunteer Fire Dept. · filed 2011-10-17(5)

Based upon the preponderance of the evidence, plaintiff was paid wages as a part-time firefighter, such that his relationship with defendant-employer was as an employee and plaintiff was not a "volunteer" as contemplated within the coverage of the statute.

Section 97-2(5) excludes short- and long-term disability benefits from earnings when calculating average weekly wage.

Burton v. Arvinmeritor, Inc. · filed 2011-11-07(5)

Even though he received short-and long-term disability benefits during the time he was out of work, those amounts were not "earnings" within the meaning of N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) permits calculating average weekly wage by dividing the employee’s earnings by the days worked and multiplying by seven.

Helfrich v. Coca-Cola Bottling Company Cons. · filed 2011-11-17(5)

The Industrial Commission finds that plaintiff's average weekly wage for the September 20, 2006 work injury should be $825.30, with a corresponding compensation rate of $550.23. Plaintiff's earnings in the amount $38,317.42 were divided by the number of days worked (325) and then multiplied by 7 (days per week) to yield the average weekly wage.

Under § 97-2(5), an employee paid $13 per hour for a 40-hour workweek has an average weekly wage of $520.

Locklear v. Dial · filed 2011-11-21(5)

Plaintiff's average weekly wage was $520.00, which generates a compensation rate of $346.68 per week. N.C. Gen. Stat. § 97-2 (5).

For short seasonal employment, § 97-2(5) permits the fifth method when the third method would overstate earnings; the calculation may use projected wages through the expected end of employment divided by 52.

Gilliam v. Foothills Temp. Emp't · filed 2023-02-21(5)

However, the Commission erred under the fifth method in calculating Decedent’s average weekly wage by using his “total earnings” from 17 May 2018 to 29 July 2018 instead of the “total earnings” he would have accrued had he worked until August 2018.

Section 97-2(5) permits the third method to calculate average weekly wages for employment lasting fewer than 52 weeks when the result is fair and just to both parties, even if the employer’s project later ends.

Taylor v. Southland Indus. · filed 2024-10-01(5)

In descending order of preference, Method 3 of N.C. Gen. Stat. § 97-2(5) provides a “fair and just” calculation for both parties under these facts.

Section 97-2(5) requires using the wages of comparable adult employees to calculate benefits for a deceased minor when those wages are available.

Hensley v. Caswell Action Committee, Inc. · filed 1979-02-05(5)

We read this statute as establishing a clear order of preference. When the first method of compensation can be used, it must be used.

Section 97-2(5)’s fourth method permits an independent contractor’s average weekly wage to be calculated from net income across jobs when the other methods would be unfair or impractical.

Holloway v. T. A. Mebane, Inc. · filed 1993-07-20(5)

We hold the Commission correctly determined plaintiff’s earning capacity as an independent contractor under the fourth method ... listed in section 97-2(5) by averaging plaintiffs net income for the years 1988 and 1989.

Section 97-2(5) calculates average weekly wage from earnings during the 52 weeks before injury, deducting a nine-day absence when the result is fair and just to both parties.

Jordan v. Perfect Fit Industries · filed 1995-01-18(5)

As by statute provided, computing plaintiff's average weekly wage based on the Form 22 which reflects his earnings during the period of 52 weeks immediately preceding the date of injury, less the nine consecutive calendar days lost from work, produces an average weekly wage of $349.40 which is fair and just to both parties.

Section 97-2(5) uses evidence of actual hourly wages and overtime to determine average weekly wage and the resulting compensation rate.

Frye v. Arguto Inc. · filed 1995-02-03(5)

The preponderance of the evidence indicates that plaintiff's actual average weekly wage during his employment with the defendant employer was $241.88, rendering a compensation rate of $161.25, which is fair and just to both parties. ... The best evidence regarding plaintiff's correct compensation rate is the plaintiff's testimony that during the seven or eight months he worked for defendant he was earning $5.00 an hour for approximately half that time and $5.75 an hour for the other half, and that he averaged five hours of overtime per week. N.C.G.S. § 97-2(5).

Section 97-2(5) permits an alternative average-weekly-wage calculation when the usual method would be unfair; for a school employee who worked ten months each year, the Commission used ten months instead of twelve.

McAninch v. Buncombe County Schools · filed 1995-03-13(5)

However, where for exceptional reason the foregoing would be unfair, either to the employer or employee, such other method of computing average weekly wage may be resorted to as would most nearly approximate the amount the injured employee would be earning were it nor for the injury. N.C.G.S. § 97-2(5). In this case the Full Commission finds that a computation based on 10 months instead of 12 months would be most equitable.

Section 97-2(5) permits an average weekly wage that most reasonably approximates what the employee would have earned from the employer absent the injury.

Richardson v. Prn-Professional Registered Nurses · filed 1995-03-17(5)

However, since plaintiff has returned to work for one day on 22 February 1993 for six hours at $18.00 per hour, an average weekly wage of $108.00, yielding a weekly compensation rate of $72.00, would most nearly and most reasonably approximate what she would have earned from defendant if not for her injuries.

Section 97-2(5) permits consideration of a prior employer’s wages when using only the current employer’s wages would unfairly understate the employee’s average weekly wage.

Johnson v. Barnhill Contracting Co. · filed 1995-12-05(5)

Accordingly, we hold that the Commission erred by failing to consider evidence of employee’s wages at OBC during the fifty-two (52) weeks preceding his death.

Section 97-2(5) allows average weekly wage to be calculated using an alternative method when exceptional reasons make the first three methods unfair to the employer or employee.

Kivett v. Cain Builders · filed 1995-12-19(5)

G.S. § 97-2 (5) sets fourth methods by which average weekly wage may be calculated. The appropriate method in this case is the one that applies in situations when, for exceptional reasons, the first three would be unfair, either to the employer or the employee.

Section 97-2(5) allows average weekly wages to be calculated from the wages of a similarly situated employee when that method is fair and just to both parties.

Hill v. Pope Masonry Contractors · filed 2002-04-25(5)

Considering results fair and just to both parties, the appropriate method of computing plaintiff's average weekly wage is by determining the wages of a similarly situated employee which yields an average weekly wage of $588.13 and disability compensation rate of $392.11 per week.

Section 97-2(5) permits the Commission to use an exceptional method of calculating average weekly wage when its first four methods would not produce a result fair and just to both parties.

Hodgin v. Hodgin · filed 2002-05-28(5)

None of the first four methods of wage calculation listed in N.C.G.S. § 97-2(5) would yield a compensation rate fair and just to both parties. In this case, the facts are exceptional and the Commission will resort to plaintiff's 1998 Lowe's 1099 form covering 6 months of work during that year for the fairest approximation of the amount plaintiff would have been earning were it not for the injury.

Section 97-2(5) permits an average weekly wage based on expected earnings when dividing actual earnings by weeks worked would be unfair because the employment was brief.

Martinez v. Godwin · filed 2002-07-02(5)

The plaintiff worked for the defendant-employer such a short period of time that to calculate his average weekly wage by dividing his total earnings by the number of weeks worked would be impractical and unfair. The defendant-employer presented no evidence of the average weekly wage of another employee with similar duties. An average weekly wage of $450 most nearly approximates the amount the plaintiff would be earning as a finisher for the defendant-employer but for his injury.

Section 97-2(5) requires sufficient wage evidence to calculate an employee's average weekly wage and compensation rate.

Lackey v. Sears, Roebuck Company · filed 2002-08-12(5)

The only information in the evidentiary record regarding decedent's wages are two W-2 wage statements. This information is insufficient to calculate decedent's average weekly wage and resulting compensation rate pursuant to N.C.G.S. § 97-2(5).

Under § 97-2(5), two W-2 wage statements alone are insufficient to calculate an employee's average weekly wage and compensation rate.

Lackey v. Sears, Roebuck Co. · filed 2002-10-09(5)

The only information in the evidentiary record regarding decedent's wages are two W-2 wage statements. This information is insufficient to calculate decedent's average weekly wage and resulting compensation rate pursuant to N.C.G.S. § 97-2(5).

When a short period of employment makes the usual wage calculations unfair, Section 97-2(5) permits average weekly wage to be based on the earnings of a comparable worker in the same locality.

Culberson v. Hawks Builders of Rockingham · filed 2003-03-13(5)

Due to the short duration of plaintiff's employment with defendant-A M Trucking at the time of his injury by accident and in order to achieve a result fair and just to both parties, plaintiff's average weekly wage should be computed via the fourth statutory method using the hourly wage of a person of the same grade and character employed in the same class of employment in the same locality or community over fifty-two weeks preceding the date of plaintiff's injury.

Section 97-2(5) prescribes methods for calculating average weekly wage; a Form 21 wage figure calculated by none of those methods and subject to verification is not binding.

Collins v. Speedway Motor Sports Corp. · filed 2003-03-28(5)

The average weekly wage on the Form 21 agreement was not properly calculated by any of the methods prescribed in N.C.G.S. § 97-2(5) and was subject to verification per the Form 21 agreement. Therefore, the average weekly wage as listed on the Form 21 agreement is not binding on the parties.

Section 97-2(5) permits a substitute teacher’s average weekly wage to be calculated from a similar employee’s earnings when the employer does not provide the teacher’s wage information.

Stewart v. Durham Public Schools · filed 2003-04-28(5)

The plaintiff's Form 22, Wage Chart, was never produced by defendant. A Form 22 was provided by defendant reflecting the wage information of a "similar employee." ... According to the Form 22 submitted by defendant, a similar employee earned $2,531.93 during a school year. Computed over a 10-month school year, this results in an average weekly wage of $58.47. Plaintiff's average weekly wage of $58.47 produces a weekly compensation rate of $38.98. ... Plaintiff's average weekly wage at the time of the accident was $58.47, which yields a weekly compensation rate of $38.98. N.C.G.S. § 97-2(5).

Section 97-2(5) permits the third method of calculating average weekly wage when employment lasted less than fifty-two weeks and that method is fair and just to both parties.

Mullins v. Crete Carrier Corp./shaffer Trucking · filed 2004-01-09(5)

As plaintiff's employment with defendant-employer extended over a period of less than fifty-two (52) weeks, the third method of computation of average weekly wage as prescribed by the Workers' Compensation Act provides results fair and just to both parties.

Section 97-2(5) excludes employer contributions to an employee’s retirement accounts from the calculation of average weekly wage.

Shaw v. U.S. Airways, Inc. · filed 2008-08-27(5)

Based on the plain language of section 97-2(5), we hold that employer contributions to an employee’s retirement accounts are not included in the calculation of the employee’s average weekly wage.

Under § 97-2(5), selection of the proper average weekly wage calculation method is reviewed de novo; whether the method produces fair and just results is generally reviewed for competent evidence, while a misapplication of the legal standard is reviewed de novo.

Nay v. Cornerstone Staffing Sols. · filed 2022-02-11(5)

Thus, for the reasons set forth above, we hold that the issue of whether the Commission selected the correct method for determining plaintiff’s average weekly wages pursuant to N.C.G.S. § 97-2(5) is a question of law subject to de novo review and that the issue of whether a particular method for making that determination produces results that are “fair and just” is a question of fact subject to the “any competent evidence” standard of review in the absence of a showing that the Commission’s determination lacked sufficient evidentiary support or rested upon a misapplication of the relevant legal principle, in which case the relevant issue of statutory construction is subject to de novo review on appeal.

When an employee worked fewer than 52 weeks and the employment had no definite end date, Method 3 uses earnings over the weeks worked if that calculation fairly approximates earnings absent the injury; Method 5 is not reached when Method 3 is fair.

Nay v. Cornerstone Staffing Solutions · filed 2020-08-18(5)

In our de novo review of the Record, we determine that a calculation of Nay’s average weekly wages under Method 3 of N.C.G.S. § 97-2(5) would be fair and just—appropriate under Tedder and the definitions from our caselaw. Accordingly, the Commission erred in Conclusions of Law 3 and 5 in concluding that Method 3 was unfair and reaching Method 5 to calculate Nay’s average weekly wages.

Section 97-2(5) defines average weekly wage for calculating a worker's compensation rate.

Hutchins v. Smith Brothers Trucking · filed 2002-07-09(5)

Plaintiff's average weekly wage at the time of the injury by accident was $604.80 per week, yielding a compensation rate of $403.22 per week. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) governs the calculation of an injured employee’s average weekly wage for workers’ compensation.

Slade v. Albemarle forest/evans Lumber · filed 2003-05-08(5)

Plaintiff's average weekly wage is $301.07, producing a weekly compensation rate of $200.72. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) provides for calculating average weekly wage and the resulting compensation rate.

Turner v. Bennett College · filed 2003-07-14(5)

Plaintiff's average weekly age on 17 September 1999 was $519.23, which yields a compensation rate of $346.33. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) uses average weekly wage to determine the worker's compensation rate.

Ball v. Cantrell Constr. Co. · filed 2003-09-25(5)

Although the defendants paid plaintiff compensation at the $337.62, the Form 22 wage chart yields an average weekly wage of $497.30 and a compensation rate of $331.55 and thus, this is the compensation rate at which plaintiff should be paid.

Section 97-2(5) governs the calculation of average weekly wage for workers’ compensation.

Galloway v. Sanger Clinic · filed 2004-01-30(5)

Plaintiff's average weekly wage while working for defendant-employer was $555.00, yielding a compensation rate of $370.18. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) defines average weekly wage for calculating workers’ compensation.

Atkins v. Kelly Springfield Tire Co. · filed 2004-08-24(5)

Plaintiff's average weekly wage on November 3, 1995 was $1,109.50, which yields the maximum compensation rate for 1995 of $478.00. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) uses the employee's average weekly wage to determine the compensation rate.

Peeples v. Thor-Lo · filed 2004-12-15(5)

At the time of her injury, plaintiff's average weekly wage was $540.35, which yields a compensation rate of $360.25. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) governs the calculation of average weekly wage and the resulting compensation rate.

Castillo v. Morton Metalcraft Co. · filed 2005-01-28(5)

Based upon the Form 22 in evidence, plaintiff had an average weekly wage of $444.48, which yields a compensation rate of $296.33. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) governs the average weekly wage used to calculate a worker's compensation rate.

Korolchuk v. Auto Truck Transport Corporation · filed 2009-06-02(5)

On all relevant dates, plaintiff's correct average weekly wage was $761.69, yielding a compensation rate of $507.79. N.C. Gen. Stat. § 97-2 (5).

Section 97-2(5) defines the average weekly wage used to calculate a worker's compensation rate.

Simpson v. the Hutton Cos./adp Totalsource, Inc. · filed 2010-01-21(5)

At the time of her injury by accident, Plaintiff had an average weekly wage $683.95, yielding a compensation rate of $455.99. N.C. Gen. Stat. § 97-2 (5).