Gilliam v. Foothills Temporary Employment: Calculating Summer Employees’ Average Weekly Wage
The N.C. Court of Appeals recently provided new guidance on calculating the average weekly wage (AWW) in a case involving a summer job for a full time graduate student. Although the case also addressed the admissibility of testimony under Rule of Evidence 702, the discussion below focuses primarily on the Court’s average weekly wage analysis.
In Gilliam, the decedent was an employee of a temporary employment agency and assigned to work at Bimbo Bakeries in a general utility position. At the time, the decedent was enrolled in graduate school at Mississippi College and began working for Defendant-Employer earlier that summer. Although his employment was at-will with no specified end date, the evidence demonstrated the decedent was set to end his employment with Defendant-Employer in August 2018, to return to school at Mississippi College.
On July 29, 2018, Plaintiff was working on the lid line in the bakery when he collapsed on the floor and was found unresponsive. EMS was called and he was pronounced dead at the hospital. An autopsy revealed the cause of death was probably dysrhythmia due to cardiomegaly. It showed an enlarged heart with increased concentric left ventricle thickness and noted that an enlarged heart impairs proper coordinated electrical conduction and predisposes the person to a fatal arrythmia. The autopsy further demonstrated increased fibrosis. Decedent’s parents filed a claim, alleging that Decedent collapsed and died while working in high heat inside the bakery. Defendants denied Plaintiffs’ claim on the basis that Decedent died from natural causes.
As noted above, the primary issue in this case was the proper method of calculating Plaintiff’s average weekly wage given his short term of employment. Plaintiffs contended the decedent’s average weekly wage should be calculated pursuant to the third method of calculating average weekly wage under N.C. Gen. Stat. § 97-2(5), which states, “where the employment prior to the injury extended over a period of fewer than 52 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 be thereby obtained.” Defendants, however, contended that the third method overestimated Plaintiff’s wages he would have earned but for the accident, since he was slated to end his employment shortly after the accident to return to graduate school. Defendants argued that the decedent’s average weekly wage should instead be calculated to the fifth method, which states, “but where for exceptional reasons the foregoing [methods of calculating average weekly wages] would be unfair, either to the employer or employee, such other method of computing average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.”
After a hearing, the Deputy Commissioner concluded Decedent’s death was compensable and ordered Defendants to pay death benefits pursuant to the third statutory method of calculating average weekly wage. Defendants appealed to the Full Commission. The Full Commission affirmed the compensability of Decedent’s death but recalculated the average weekly wage pursuant to the fifth statutory method. The Full Commission found that the evidence demonstrated that Decedent would have ended his employment with Defendant-Employer and returned to school in August 2018. Medical records indicated Decedent was currently in grad school; a Facebook post from July 18, 2018, stated he was “so glad school starts in August so [he didn’t] have much longer in the bakery;” his sister testified he was in school at the time of his death; and his work history in the previous few years reflected he worked during the summer before returning to school each August. The Court concluded this evidence was sufficient to support its finding that Decedent would have ended his employment in August 2018. It held therefore that because he began working for Defendant-Employer on May 17, 2018, and would have ceased working in August 2018, within a few weeks of his death, Decedent’s earnings from May 17, 2018, to August 2018 would have constituted his total earnings in 2018. Thus, calculating his average weekly wage using the third method would overestimate his wages he would have earned but for the compensable accident. The Full Commission, using the fifth statutory method, calculated Plaintiff’s average weekly wage by adding his earned wages up to the date of the compensable accident and dividing that sum by fifty-two weeks. Defendants appealed the Full Commission’s Opinion and Award, and Plaintiffs cross-appealed.
The Court of Appeals ultimately found the Full Commission’s calculation did not fully capture the wages he would have earned but for the accident because it did not account for the remaining few weeks he would have worked before returning to school. The Court remanded the case to find the date he would have ended his employment and to recalculate the average weekly wage using that sum and dividing it by fifty-two weeks. The appeal was dismissed in part and vacated and remanded with instructions in part.
Gilliam provides support for a lower calculation of an injured employee’s average weekly wage in cases in which the injured employee had worked less than fifty-two weeks as of the date of injury, but where the evidence demonstrates that the employee was going to terminate employment with the defendant-employer at a specific date shortly after the accident. As in Gilliam, this new guidance is particularly applicable to cases involving seasonal employment.