Nay v. Cornerstone Staffing Sols.

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-8

No. 409PA20

Filed 11 February 2022

LUON NAY, employee

v.

CORNERSTONE STAFFING SOLUTIONS, employer, and STARNET

INSURANCE COMPANY, carrier, (KEY RISK MANAGEMENT SERVICES,

administrator)

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, 273 N.C. App. 135 (2020), reversing and remanding an

opinion and award entered on 22 February 2019 by the North Carolina Industrial

Commission. Heard in the Supreme Court on 4 October 2021.

Law Offices of Kathleen G. Sumner by Kathleen G. Sumner; David P. Stewart;

and Jay Gervasi, P.A., by Jay A. Gervasi, for plaintiff-appellee.

Brewer Defense Group by Joy H. Brewer and Ginny P. Lanier for defendant-

appellants.

Dickie McCamey & Chilcote, P.C., by Michael W. Ballance; Teague Campbell

Dennis & Gorham, L.L.C., by Tracey L. Jones and Bruce Hamilton, for the

North Carolina Association of Defense Attorneys and North Carolina

Association of Self-Insurers, amici curiae.

Lennon, Camak & Bertics, PLLC, by Michael W. Bertics; Poisson Poisson

Bower, PLLC, by E. Stewart Poisson, for the North Carolina Advocates for

Justice, amicus curiae.

ERVIN, Justice.

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2022-NCSC-8

Opinion of the Court

¶1 This case involves the issue of whether the Commission’s decision concerning

the method that should be utilized to calculate an injured worker’s average weekly

wages pursuant to N.C.G.S. § 97-2(5) and the Commission’s determination

concerning the extent to which the results obtained by a particular method for

determining the injured employee’s average weekly wages are “fair and just to both

parties” so as to “most nearly approximate the amount which the injured employee

would be earning were it not for the injury” are questions of law or questions of fact.

After careful consideration of the relevant facts in light of the applicable law, we

modify and affirm the Court of Appeals’ decision and remand this case to the

Commission for further proceedings not inconsistent with this opinion, including the

entry of a new order containing appropriate findings of fact and conclusions of law.

I. Factual and Procedural History

A. Substantive Factual Background

¶2 On 25 August 2015, plaintiff Luon Nay began working for defendant

Cornerstone Staffing Solutions, a staffing agency owned and operated by Thomas

Chandler. In the course of its business, Cornerstone places people seeking

employment with companies in need of workers in the Charlotte-Mecklenburg and

Rock Hill-York County regions. According to Mr. Chandler, Cornerstone often places

workers in jobs with logistics and manufacturing companies that pay between ten

and thirteen dollars per hour, with its employees being primarily people who are

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either unemployed and seeking full-time employment or are, while currently

employed, seeking a better or higher-paying job. Mr. Chandler described many of the

entities with whom Cornerstone places workers as “medium-size or small companies”

that lack “broad Human Resources department[s],” with these entities having elected

to use Cornerstone to hire their workers and take care of employment-related costs

such as those involved in recruiting potential employees, performing drug tests and

background checks, and the handling of “Medicare, Social Security, Workers’ Comp,”

and any other expenses that are typically involved in the hiring of new workers.

¶3 At least ninety-five percent of the workers that Cornerstone places with other

entities occupy “temp-to-perm” positions which will, hopefully, lead the entity with

whom the worker has been placed to hire that worker to fill a permanent position at

the end of a successful trial period. During the trial period, which typically lasts until

the worker has worked for 520 hours with the entity with whom he or she has been

placed, the worker is still technically employed by Cornerstone. After the worker has

worked with the entity with whom he or she has been placed for at least 520 hours,

the worker is typically either given full-time employment by the entity with whom

Cornerstone has contracted or the assignment ends, with there being no guarantee

that the worker will receive full-time employment at the conclusion of the 520-hour

trial period.

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Opinion of the Court

¶4 Cornerstone placed plaintiff in a temp-to-perm position with FieldBuilders, an

entity that creates and updates athletic fields and performs other landscaping tasks,

with plaintiff having worked at FieldBuilders during the interval between 25 August

2015 and 7 December 2015. According to Mr. Chandler, a worker’s schedule with

FieldBuilders could be affected by the “[h]olidays, weather, [or] season.” In the course

of a typical week, plaintiff worked with FieldBuilders for eight hours a day for four

to five days each week and was compensated at the rate of eleven dollars per hour.

On occasion, however, plaintiff worked as few as six hours or as many as ten hours

each day.

¶5 On 24 November 2015, while working with FieldBuilders, plaintiff and another

worker attempted to lift a heavy machine into a truck given their inability to load the

machine using the truck’s broken ramp. As plaintiff tried to raise the machine, he

heard a noise and felt a pop on the right side of his lower back and immediately

recognized that he had been injured. The lower back pain that plaintiff was

experiencing gradually worsened throughout the day upon which he was injured and

the day after that. Although plaintiff attempted to return to work on the following

Monday, he was only able to work for about four hours before his lower back pain

forced him to stop. On 1 December 2015, plaintiff sought medical treatment for his

persistent back pain and was prescribed medication and physical therapy. After a

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Opinion of the Court

treatment session on 22 December 2015, plaintiff stopped attending physical therapy

due to increased lower back pain.

¶6 On 19 January 2016, Cornerstone filed a Form 19, which is titled “Employer’s

Report of Employee’s Injury or Occupational Disease to the Industrial Commission,”

stating that plaintiff had worked with FieldBuilders for five days each week and that

plaintiff had earned average weekly wages of $440.00. On 15 February 2016,

Cornerstone filed Form 22, which is titled “Statement of Days Worked and Earnings

of Injured Employee,” reciting that plaintiff had worked for four days during the last

week of August 2015, which was the first week during which he had been assigned to

work with FieldBuilders; that plaintiff worked for five days each week during

September 2015; that plaintiff worked for five days each week during October 2015;

that plaintiff had worked for five days each week during three weeks in November

2015 and for four days during one week in November 2015; and that plaintiff had

worked for three days during the first week of December 2015 and for one day during

the second week of December, which was plaintiff’s last day of work at FieldBuilders.

Cornerstone’s records indicated that plaintiff had earned a total of $5,805.25 during

the sixteen weeks that he had been assigned to work at FieldBuilders.

¶7 On 8 March 2016, the Commission received a completed Form 18, which is

titled “Notice of Accident to Employer and Claim of Employee, Representative, or

Dependent,” describing plaintiff’s back injury. On 25 March 2016, Cornerstone filed

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Opinion of the Court

a Form 63 with the Commission and began directing the medical care that plaintiff

received and paying temporary total disability benefits to plaintiff. In June 2016,

plaintiff returned to Cornerstone for the purpose of seeking another job placement

and was placed with an entity known as JMS, at which plaintiff worked for eight

hours per day cleaning and polishing metal. After plaintiff had worked with JMS for

three weeks, he was told that there was no more work for him at that placement and

that Cornerstone had been unable to find another entity with which to place him.

B. Procedural History

¶8 On 21 July 2017, plaintiff filed a Form 33, which is titled “Request That Claim

Be Assigned for Hearing,” in which he claimed that Cornerstone had unilaterally

lowered the amount of temporary total disability benefits that he had been receiving

with respect to his back injury and that the parties had been unable to reach

agreement with respect to the amount of benefits that plaintiff was entitled to receive.

On 9 February 2018, plaintiff’s claim came on for hearing before Deputy

Commissioner David Mark Hullender. At the hearing, plaintiff contended that his

average weekly wage was $419.20, which yielded a compensation rate of $279.48,

while Cornerstone and defendant Starnet Insurance Company contended that

plaintiff’s average weekly wage was $111.64, which yielded a compensation rate of

$74.43. The parties stipulated that Cornerstone had paid benefits to plaintiff at the

rate of $258.03 per week between 1 December 2015 and 5 July 2016 and that

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Opinion of the Court

Cornerstone had lowered plaintiff’s compensation rate to $74.43 per week after that

point, with this figure having been derived by dividing the $5,805.25 in total earnings

that plaintiff had received while working with FieldBuilders by fifty-two weeks. In

an opinion and award filed on 7 June 2018, Deputy Commissioner Hullender found

that the lower weekly compensation rate for which Cornerstone had advocated was

the correct one. Plaintiff noted an appeal from Deputy Commissioner Hullender’s

order to the Commission.

¶9 On 22 February 2019, the Commission filed an opinion and award finding, in

pertinent part, that “[d]efendants’ modification of [p]laintiff’s average weekly wage

and compensation rate to $111.64 and $74.43, respectively, . . . was appropriate.” In

making this determination, the Commission reviewed the five methods for

calculating an injured employee’s average weekly wages set out in N.C.G.S. § 97-2(5),

which states that

[Method 1:] “Average weekly wages” shall mean the

earnings of the injured employee in the employment in

which the employee was working at the time of the injury

during the period of 52 weeks immediately preceding the

date of the injury, . . . divided by 52[.]

[Method 2: [B]ut if the injured employee lost more than

seven consecutive calendar days at one or more times

during such period, although not in the same week, then

the earnings for the remainder of such 52 weeks shall be

divided by the number of weeks remaining after the time

so lost has been deducted.

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Opinion of the Court

[Method 3:] 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.

[Method 4:] Where, by reason of a shortness of time during

which the employee has been in the employment of his

employer or the casual nature or terms of his employment,

it is impractical to compute the average weekly wages as

above defined, regard shall be had to 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.

[Method 5:] But where for exceptional reasons the

foregoing 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.

N.C.G.S. § 97-2(5) (2021). In its findings of fact, the Commission determined that the

first and second methods set out in N.C.G.S. § 97-2(5) had no application to plaintiff

given that he had not been employed by Cornerstone for the fifty-two week period

immediately preceding his injury. In addition, in Finding of Fact 13, the Commission

determined that the third method set out in N.C.G.S. § 97-2(5) was not appropriate

for use in this case given that

[u]se of the 3rd method in this claim would produce an

inflated average weekly wage that is not fair to

[d]efendants because [p]laintiff was employed in a

temporary capacity with no guarantee of permanent

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Opinion of the Court

employment, length of a particular assignment, or specific

wage rate, and he was assigned to a client account whose

work was seasonal. Thus, the 3rd method would not take

into account that [p]laintiff was on a temporary

assignment that in all likelihood would not have

approached 52 weeks in duration.

After declining to use the fourth method on the grounds that “no sufficient evidence

was presented of wages earned by a similarly situated employee,” the Commission

determined in Finding of Fact 15 that “exceptional reasons exist, and [p]laintiff’’s

average weekly wage should be calculated pursuant to the 5th method,” so that the

$5,805.25 in total wages that plaintiff had earned while working with FieldBuilders

over the course of the sixteen-week period prior to his injury should be divided by

fifty-two in order to calculate plaintiff’s average weekly wage. According to the

Commission, “[t]he figure of $111.64 is an average weekly wage that is fair and just

to both sides” because “[i]t takes into account that [p]laintiff was working a temporary

assignment that most likely would have ended once he worked 520 hours” and that

the average weekly wage that the Commission believed to be appropriate

“annualize[d] the total wages that [p]laintiff likely could have expected to earn in the

assignment.” After making these findings of fact, the Commission repeated many of

these determinations in its conclusions of law, concluding that the “calculation of

[p]laintiff’s average weekly wage via the 3rd method does not yield results that are

fair and just to both parties,” that the use of the “first [four] methods of calculating

[p]laintiff’s average weekly wage” would not be appropriate, and that “exceptional

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Opinion of the Court

reasons exist in this case, so [that p]laintiff’s average weekly wage should be

calculated based upon the 5th method as this is the only method which would

accurately reflect [p]laintiff’s expected earnings but for his work injury” and because

the use of the fifth method “produces results that are fair and just to both parties.”

Plaintiff noted an appeal to the Court of Appeals from the Commission’s order.

¶ 10 In seeking relief from the Commission’s order before the Court of Appeals,

plaintiff argued that (1) the Commission had erred by determining that the fifth

method for calculating his average weekly wage was appropriate for use in this case,

(2) that the use of the third method for calculating plaintiff’s average weekly wage

would be fair and just to both parties, and (3) that the use of the fifth method for

calculating plaintiff’s average weekly wage was unfair, unjust, and provided

defendants with a windfall. In reversing the Commission’s order and remanding this

case to the Commission for further proceedings, the Court of Appeals began by

holding that the Commission’s decision to use the fifth method for calculating

defendant’s average weekly wage set out in N.C.G.S. § 97-2(5) was subject to de novo

review given that the Commission’s determination that this approach would be “fair

and just” to both parties was “actually [a] conclusion[ ] of law to the extent that [it]

declared a particular method of calculating [plaintiff’s] average weekly wages to be

fair or unfair.” Nay v. Cornerstone Staffing Sols., 273 N.C. App. 135, 142 (2020). In

support of this determination, the Court of Appeals relied upon Boney v. Winn Dixie,

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Opinion of the Court

Inc., 163 N.C. App. 330, 331–32 (2004), for the proposition that “[t]he determination

of [a] plaintiff’s average weekly wages requires application of the definition set forth

in the Workers’ Compensation Act, and the case law construing that statute” so as to

“raise[ ] an issue of law, not fact.” Nay, 273 N.C. App. at 141 (second alteration in

original). In addition, the Court of Appeals cited Tedder v. A & K Enterprises, 238

N.C. App. 169, 173 (2014), in which it had relied upon Boney for the proposition that

“review [of] the Commission’s calculation of [the plaintiff]’s average weekly wages [is]

de novo.” Nay, 273 N.C. App. at 141–42. As a result, given its conclusion that the

choice of a method for determining a plaintiff’s average weekly wages was a

conclusion of law, the Court of Appeals “review[ed] de novo the Commission’s

declaration that a Method 3 calculation of [plaintiff’s] average weekly wages under

N.C.G.S. § 97-2(5) was unfair in Finding of Fact 13, and that a Method 5 calculation

of [plaintiff’s] average weekly wages under N.C.G.S. § 97-2(5) was fair in Finding of

Fact 15.” Nay, 273 N.C. App. at 142.

¶ 11 After having identified what it believed to be the correct standard of review,

the Court of Appeals addressed the issue of which method for calculating a plaintiff’s

average weekly wages would be “fair and just” to both parties and should, for that

reason, have been used in calculating the relevant amount. Id. at 142–43. According

to the Court of Appeals, “[r]esults fair and just . . . consist of such average weekly

wages as will most nearly approximate the amount which the injured employee would

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Opinion of the Court

be earning were it not for the injury, in the employment in which he was working at

the time of his injury.” Id. (quoting Liles v. Faulkner Neon & Elec. Co., 244 N.C. 653,

660 (1956)). The Court of Appeals further noted that, in the event that it

“determine[d] Method 3 to be fair, [it] need not consider Method 5” given that “[t]he

five methods [listed in N.C.G.S. § 97-2(5)] are ranked in order of preference, and each

subsequent method can be applied only if the previous methods are inappropriate.”

Id. (citing Tedder, 238 N.C. App. at 173–74).

¶ 12 In the Court of Appeals’ view, a calculation of plaintiff’s average weekly wages

utilizing the third method would be “fair and just” given that this determination was

intended to reflect the amount that plaintiff would be earning in the absence of his

compensable injury, with calculation of plaintiff’s “average weekly wages according

to what he earned from Cornerstone [divided by] the number of weeks he worked for

the staffing agency fairly approximat[ing] what he would have earned but for the

injury.” Id. at 143. In determining that the third method for calculating plaintiff’s

average weekly wages would be fair and just to both parties, the Court of Appeals

noted “the lack of a definite employment end date for [plaintiff] with Cornerstone is

important” and the fact that plaintiff had “continued his relationship with

Cornerstone after his injury and could have continued to earn money from

Cornerstone indefinitely.” Id. As a result, the Court of Appeals held that a

calculation of plaintiff’s average weekly wages using the third method “averages [his]

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Opinion of the Court

earnings over the course of his employment at Cornerstone, not a hypothetical 52

week period”; that this calculation produced results that were fair and just to both

parties; and that the Commission’s decision should be reversed and this case

remanded to the Commission for recalculation of plaintiff’s average weekly wage. Id.

at 143–44. This Court allowed defendants’ request for discretionary review of the

Court of Appeals’ decision on 3 February 2021.

II. Analysis

A. Parties’ Arguments

¶ 13 In seeking to persuade us to overturn the Court of Appeals’ decision,

defendants begin by arguing that the Court of Appeals erred by utilizing a de novo

standard in reviewing the Commission’s decision concerning the manner in which

plaintiff’s average weekly wages should be calculated. In support of this contention,

defendants direct our attention to this Court’s decision in Liles, 244 N.C. at 660, in

which we stated that the question of whether a method for calculating an injured

employee’s average weekly wages produces results that are “fair and just” “is a

question of fact”; that, “in such a case[,] a finding of fact by the Commission controls

[the] decision”; and that “this [principle] does not apply if the finding of fact is not

supported by competent evidence or is predicated on an erroneous construction of the

statute.” In addition, defendants direct our attention to several earlier decisions in

which we utilized the “any competent evidence” standard in reviewing the

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Commission’s findings of fact. See Munford v. W. Constr. Co., 203 N.C. 247, 249

(1932) (stating that, since the “evidence indicated both shortness of time and casual

nature of the employment[,] . . . regard sh[ould] be had to the average wages earned

by others,” with these considerations being “questions of fact for the [C]ommission to

pass on”); Mion v. Atl. Marble & Tile Co., 217 N.C. 743, 747 (1940) (stating that the

Commission’s findings “appear[ed] to be supported by the evidence except with

respect to the average weekly wage”); Early v. W. H. Basnight & Co., 214 N.C. 103,

107 (1938) (using the “any competent evidence” standard in reviewing the lawfulness

of the Commission’s findings of fact). According to defendants, this Court’s precedent

“requires application of the any competent evidence standard as opposed to the de

novo review erroneously applied by the Court of Appeals” in reviewing a challenge to

the lawfulness of the Commission’s decision with respect to the manner in which an

injured employee’s average weekly wages should be calculated.

¶ 14 In addition, defendants argue that the Court of Appeals erred to the extent

that it interpreted Boney, 163 N.C. App. 330; McAninch v. Buncombe Cnty. Schs., 347

N.C. 126 (1997); and Tedder, 238 N.C. App. 169, as supporting the use of a de novo

standard of review in evaluating the validity of plaintiff’s challenge to the

Commission’s average weekly wages calculation. Similarly, as a matter of public

policy, defendants assert that the use of a de novo standard of review in examining

the Commission’s decision concerning the manner in which an injured employee’s

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Opinion of the Court

average weekly wages should be calculated would “create uncertainty and increased

litigation with respect to the correct calculation of average weekly wage.”

¶ 15 Finally, defendants argue that the Commission’s determination that the use of

the third method to calculate plaintiff’s average weekly wages would be unfair to

defendants was a finding of fact that should be upheld on the grounds that it had

adequate evidentiary support. In defendants’ view, the record contains evidence

tending to show that the amount of work that plaintiff would have expected to be

assigned while working with FieldBuilders could have potentially been impacted by

the weather or the season of the year; that plaintiff’s assignment with FieldBuilders

was temporary and would, “in all likelihood, . . . not have approached 52 weeks”; and

that there is “no evidence [that] plaintiff ever earned or would have earned an annual

salary close to” $21,798.40, which is the salary that correlates with plaintiff’s

contended average weekly wages of $419.20, so that “provid[ing] him benefits at this

rate” would give plaintiff a “substantial, unfounded windfall.” Similarly, defendants

contend that the record contains sufficient evidence to support the Commission’s

determination that the use of the fifth method to calculate plaintiff’s average weekly

wages would be fair to both parties on the theory that plaintiff would not have worked

for an entire year with Cornerstone given that he would have “either been hired

permanently by FieldBuilders and/or he would have experienced gaps in employment

because another assignment could not be identified due to many different variables.”

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As a result, defendants urge us to reverse the Court of Appeals’ decision and reinstate

the Commission’s order.

¶ 16 In seeking to persuade us to affirm the Court of Appeals’ decision in this case,

plaintiff argues that the Court of Appeals correctly utilized a de novo standard of

review in evaluating the Commission’s calculation of plaintiff’s average weekly wages

because the issue of whether a particular calculation is “fair and just to both parties”

is either a question of law or a mixed question of law and fact. More specifically,

plaintiff argues that, “[a]lthough there is some language in Boney supporting the

proposition that the fair and just determination is, at least in part, a question of fact,

it is nevertheless clear that the Boney Court properly employed a de novo standard of

review” when it reviewed the Commission’s conclusions, citing Boney, 163 N.C. App.

at 331–32. According to plaintiff, the Court of Appeals, citing Tedder, 238 N.C. App.

169, and Frank v. Charlotte Symphony, 255 N.C. App. 269 (2017), and this Court,

citing Liles, 244 N.C. 653, McAninch, 347 N.C. 126, and Barnhardt v. Yellow Cab Co.,

266 N.C. 419 (1966), overruled on other grounds by Derebery v. Pitt Cnty. Fire

Marshall, 318 N.C. 192 (1986), have utilized a de novo standard of review in

evaluating the validity of challenges to the Commission’s average weekly wages

calculation. In addition, plaintiff argues that average weekly wages of $419.20 would

be fair and just to both parties given that this amount is “based upon [plaintiff’s]

actual weekly earnings,” which are “the very same weekly earnings used by

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[Cornerstone’s] carrier to compute the weekly workers’ compensation premium to

cover the ‘temp to perm’ employees of [Cornerstone].” Finally, plaintiff urges us to

uphold the Court of Appeals’ decision on public policy grounds and contends that, if

the Court of Appeals’ decision were to be reversed, injured workers would receive

compensation based upon average weekly wages that would only be “a fraction” of the

amount that they actually earned during their period of employment.

B. Standard of Review

¶ 17 “The findings of fact by the Industrial Commission are conclusive on appeal if

supported by any competent evidence.” Gallimore v. Marilyn’s Shoes, 292 N.C. 399,

402 (1977). “The Commission’s findings of fact are conclusive on appeal when

supported by such competent evidence, ‘even though there [is] evidence that would

support findings to the contrary.’ ” McRae v. Toastmaster, Inc., 358 N.C. 488, 496

(2004) (alteration in original) (quoting Jones v. Myrtle Desk Co., 264 N.C. 401, 402

(1965)). The Commission’s conclusions of law, on the other hand, are subject to de

novo review on appeal. Id.

¶ 18 Subsection 97-2(5) “sets forth in priority sequence five methods by which an

injured employee’s average weekly wages are to be computed” and “establishes an

order of preference for the calculation method to be used,” with the Commission to

refrain from using the fifth method “unless there has been a finding that unjust

results would occur by using the [four] previously enumerated methods.” McAninch,

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347 N.C. at 129–30. “[T]he primary intent of this statute is that results are reached

which are fair and just to both parties.” Id. at 130 (citing Liles, 244 N.C. at 660). As

we have already noted, the ultimate issue before us in this case is whether the

Commission’s selection of a method for calculating an injured employee’s average

weekly wages and the extent to which the method that the Commission has selected

is “fair and just” is a question of law or a question of fact. In order to make this

determination, we must begin by reviewing the relevant decisions of this Court and

the Court of Appeals.

¶ 19 In Liles, this Court reviewed a Commission order entered in a case in which a

worker had worked part-time for his employer until the time of the worker’s death

and in which the Commission used the third method (which is now the fourth method)

described in N.C.G.S. § 97-2(5) for the purpose of calculating his average weekly

wages. 244 N.C. at 658. In reaching this result, the Commission “conclude[d] as a

matter of law that results fair and just to both parties [could] not be obtained” using

the preceding statutory methods on the grounds that, in light of “the casual nature

or terms of [the injured worker’s] employment it would be impractical to compute his

average weekly wage by basing [the] same on his average earnings for the previous

52 weeks” and that the injured worker’s average weekly wages should be set at $34.88

“based upon the earnings of a person of the same grade and character employed in

the same class of employment in the same locality or community.” Id. at 656. On

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appeal, this Court held that the Commission had improperly “determined the

‘average weekly wages’ of a part-time employee to be the amount he would have

earned had he been a full-time employee” given that there was “no factual basis” for

the Commission’s use of the third (now fourth) method in light of the fact that the

worker had been employed on a part-time basis and that there was “no evidence that

any part-time worker, the nature of whose employment was similar to that of [the

worker], earned ‘average weekly wages’ ” that approximated those calculated under

the third (now fourth) method. Id. at 658–59. In the course of making this

determination, we stated that

all provisions of [N.C.]G.S. [§] 97-2(e) must be considered

in order to ascertain the legislative intent; and the

dominant intent is that results fair and just to both parties

be obtained. Ordinarily, whether such results will be

obtained by the said second method is a question of fact;

and in such case a finding of fact by the Commission

controls [the] decision. However, this does not apply if the

finding of fact is not supported by competent evidence or is

predicated on an erroneous construction of the statute.

The words “fair and just” may not be considered

generalities, variable according to the predilections of the

individuals who from time to time compose the

Commission. These words must be related to the standard

set up by the statute. Results fair and just, within the

meaning of [N.C.]G.S. [§] 97-2(e), consist of such ‘average

weekly wages’ as will most nearly approximate the amount

which the injured employee would be earning were it not

for the injury, in the employment in which he was working

at the time of his injury.

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Id. at 660. After concluding that “the evidence does not warrant a finding of fact or

conclusion of law that the said second method would not obtain results fair and just

to both parties,” we held that the Commission erred by applying the third [now

fourth] method rather than the second method, with the extent to which “fair and

just” results had been obtained being dependent upon whether the Commission had

correctly construed the relevant statutory language in accordance with its spirit and

the underlying legislative intent. Id. at 660–61. As a result, a careful reading of our

opinion in Liles indicates that we did not give significant deference to the

Commission’s decision concerning the manner in which the plaintiff’s average weekly

wages should be calculated in that case.

¶ 20 Approximately four decades later, we considered a case involving an injured

worker who had been employed as a cafeteria worker for the Buncombe County

Schools during the school year and as a babysitter, housekeeper, and painter during

the summer months. McAninch, 347 N.C. at 128. In that case, the injured worker

and the school system had entered into an agreement pursuant to which the

defendant was required to pay the worker an amount of compensation based upon

average weekly wages of $163.37, a rate that “did not reflect any wages [that] the

[worker had] earned from other employment undertaken during the ten-week

summer vacation.” Id. After the Commission affirmed the average weekly wages

determination to which the parties had agreed, the Court of Appeals reversed the

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Commission’s decision, holding that the Commission should have included the extra

income that the worker had earned performing her additional jobs in its calculation

and should have computed the plaintiff’s average weekly wages by “aggregating her

wages from defendant with her summer earnings and then dividing that sum by fifty-

two.” Id. at 129. This Court, in turn, reversed the Court of Appeals’ decision, id. at

134, on the theory that the Court of Appeals’ “recalculation of plaintiff’s average

weekly wages . . . through application of the fifth computation method constituted an

improper contravention of the Commission’s factfinding authority, and specifically its

finding of fairness in this case,” id. at 131.

¶ 21 In reaching this result, we quoted from our prior decision in Barnhardt, 266

N.C. at 427–29, in which we held that the fifth method for calculating an injured

employee’s average weekly wages did not give the Commission the “implied

authority” to aggregate wages from multiple sources of employment in the course of

calculating an injured employee’s average weekly wages for the reason that such a

result would be unfair to the employer. McAninch, 347 N.C. at 133. According to our

decision in Barnhardt, “had the Legislature intended to authorize the Commission in

the exceptional cases to combine those wages with the wages from any concurrent

employment, we think it would have been equally specific,” with it being unlikely

“that the legislature would have left such intent solely to a questionable inference.”

Id. at 133–34 (quoting Barnhardt, 266 N.C. at 427–29). As a result, we concluded

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that “the definition of ‘average weekly wages’ and the range of alternatives set forth

in the five methods of computing such wages . . . do not allow the inclusion of wages

or income earned in employment or work other than that in which the employee was

injured.” Id. at 134.

¶ 22 Our decision in Barnhardt involved a worker who had performed both part-

time work as a cab driver and part-time work as a machine maintenance man. 266

N.C. at 420. After having become permanently disabled while working as a cab

driver, the plaintiff sought workers’ compensation benefits from the cab company. Id.

In determining the amount of workers’ compensation benefits to which the plaintiff

was entitled, the Commission utilized the fourth (now fifth) method for calculating

the plaintiff’s average weekly wages, having combined the wages that the plaintiff

had earned while working for both the cab company and the entity for which the

plaintiff performed machine maintenance work. Id. at 422. In vacating and

remanding the Commission’s order, we stated that “[N.C.]G.S. § 97-2(5) contains no

specific provision which would allow wages from any two employments to be

aggregated in fixing the wage base for compensation” before noting that

[u]nusually severe or totally disabling injuries are not the

exceptional reasons contemplated by method (4) [now five].

It seems reasonable to us that the Legislature,

having placed the economic loss caused by a workman’s

injury upon the employer for whom he was working at the

time of the injury, would also relate the amount of that loss

to the average weekly wages which that employer was

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paying the employee. Plaintiff, of course, will greatly

benefit if his wages from both jobs are combined; but, if this

is done, Cab Company and its carrier, which has not

received a commensurate premium, will be required to pay

him a higher weekly compensation benefit than Cab

Company ever paid him in wages. Whether an employer

pays this benefit directly from accumulated reserves, or

indirectly in the form of higher premiums, to combine

plaintiff’s wages from his two employments would not be

fair to the employer.

Id. at 427 (citations omitted). In reaching this conclusion, we both interpreted

N.C.G.S. § 97-2(5) and applied our understanding of the relevant legal principles to

the facts of this case without making any obvious use of the “any competent evidence”

standard of review.

¶ 23 In Boney, 163 N.C. App. 330, the Court of Appeals discussed the standard of

review that a reviewing court should utilize in evaluating the validity of a challenge

to the Commission’s average weekly wages determination. As an initial matter, the

Court of Appeals described the Commission’s determination that the worker’s

“average weekly wage of $194.88 yield[ed] a weekly compensation rate of $129.93” as

a conclusion of law, noting that the “determination of the plaintiff's ‘average weekly

wages’ requires application of the definition set forth in the Workers’ Compensation

Act, N.C.[G.S.] § 97-2(5) (2001), and the case law construing that statute and thus

raises an issue of law, not fact.” Id. at 331–32 (cleaned up) (quoting Swain v. C & N

Evans Trucking Co., 126 N.C. App. 332, 335–36 (1997)). On the other hand, however,

the Court of Appeals stated that the issue of “[w]hether the results of calculating the

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average weekly wage by the applicable enumerated method would be unfair to either

employer or employee is a question of fact, and the Commission’s determination on

this issue would control, unless there was no competent evidence in the record to

support the determination.” Id. at 333. At the conclusion of its analysis, the Court

of Appeals refrained from determining whether the Commission had erred in

selecting a method for calculating the plaintiff’s average weekly wages and, instead,

remanded the case to the Commission for recalculation of the worker’s average

weekly wages given the Commission’s failure to “clearly state what method it used to

calculate [the worker]’s average weekly wage,” id., with the Court of Appeals having

instructed the Commission that, if it found on remand that “that the calculation of

[the worker]’s average weekly wage by use of the second method in N.C.G.S. § 97-2(5)

would create an unfair result,” it was authorized to “use an appropriate method to

calculate [the worker]’s average weekly wage ‘as will most nearly approximate the

amount which [the worker] would be earning were it not for the injury’ under the fifth

method,” id. at 334 (quoting Liles, 244 N.C. at 660).

¶ 24 In Tedder, 238 N.C. App. 169, the Court of Appeals reversed the Commission’s

average weekly wages calculation after utilizing what it described as a de novo

standard of review. Id. at 173. In Tedder, the Commission had determined that the

plaintiff had been hired by the employer to work for a limited period of seven weeks

at a rate of $625 per week, during which time the plaintiff had injured his back. Id.

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at 172. After determining that the use of the first four methods for the purpose of

calculating the plaintiff’s average weekly wages would be inappropriate, the

Commission had utilized the fifth method and determined that plaintiff’s average

weekly wages should be set at $625, even though the plaintiff would have only earned

that amount for the seven-week period during which he had been employed by the

defendant. Id. at 175. After citing Boney for the proposition that a “determination of

the plaintiff’s ‘average weekly wages’ require[d] application of the definition set forth

in the Workers’ Compensation Act, and the case law construing that statute[,] and

thus raises an issue of law, not fact,” the Court of Appeals stated that it would “review

the Commission’s calculation of [plaintiff]’s average weekly wages de novo,” id. at 173

(quoting Boney, 163 N.C. App. at 331–32 (second alteration in original)), before

reversing the Commission’s decision with respect to that issue on the grounds that

“it squarely conflicts with [N.C.G.S. § 97-2(5)]’s unambiguous command to use a

methodology that ‘will most nearly approximate the amount which the injured

employee would be earning were it not for the injury,’ ” id. at 175 (quoting N.C.G.S.

§ 97-2(5) (2013)). According to the Court of Appeals, the Commission’s decision to

utilize the fifth method for the purpose of calculating the plaintiff’s average weekly

wages created “a financial windfall for [the plaintiff] and an unjust result for” the

employer in contravention of “the guiding principle and primary intent of the

statute—obtaining ‘results that are fair and just to both employer and employee.’ ”

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Id. at 177 (quoting Conyers v. New Hanover Cnty. Schs., 188 N.C. App. 253, 256

(2008)). As a result, the Court of Appeals remanded this case to the Commission for

the making of a new average weekly wages calculation.

¶ 25 The difference between a question of law, on the one hand, and a question of

fact, on the other, is well-established, although often difficult to determine. As a

general proposition, questions of fact involve “things in space and time that can be

objectively ascertained by one or more of the five senses or by mathematical

calculation,” State ex rel. Utils. Comm’n v. Pub. Staff–N.C. Utils. Comm’n, 322 N.C.

689, 693 (1988), while questions of law involve a “determination requiring the

exercise of judgment or the application of legal principles,” State v. Sparks, 362 N.C.

181, 185 (2008) (quoting In re Helms, 127 N.C. App. 505 (1997)). Although this Court

has not, to the best of our knowledge, previously determined whether the selection of

the proper method for calculating an injured employee’s average weekly wages is a

question of law or a question of fact, it appears to us that the making of the required

determination involves “the application of legal principles” to the facts, making it, as

the Court of Appeals correctly determined in Boney, a question of law that requires

the Commission to properly apply the relevant statutory principles based upon

findings of fact that are supported by “any competent evidence.” See Boney, 163 N.C.

App. at 331–32.

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¶ 26 As we have already noted, this Court held in Liles that the extent to which the

use of a particular calculation method produces a result that is “fair and just” was a

question of fact, subject to the caveat that “the finding of fact is . . . supported by

competent evidence” and does not rest upon “an erroneous construction of the”

relevant statutory provision. Liles, 244 N.C. at 660. For that reason, we are unable

to interpret Liles as requiring a single, universally-valid standard of review which

applies to all issues that might arise concerning the “fairness and justness” of a

particular Commission determination; on the contrary, the language in which Liles

is couched, when read literally and in context, requires a reviewing court to

undertake a much more nuanced analysis than either party seems to suggest. As a

result, in the absence of a showing that the use of a particular method for calculating

an injured employee’s average weekly wages does or does not produce “fair and just”

results lacks sufficient evidentiary support or rests upon an erroneous application of

the relevant legal standard, which is whether the result reached by the Commission

“most nearly approximate[s] the amount which the injured employee would be

earning . . . in the employment in which he [or she] was working at the time of his

injury,” id., the applicable standard of review is whether the Commission’s decision

with respect to that issue is supported by any competent evidence. In the event that

the issue before the Court is whether the Commission’s determination rests upon a

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misapplication of the applicable legal standard, that determination is, according to

Liles and its progeny, a question of law subject to de novo review.

¶ 27 The approach that we deem to be appropriate appears to properly reconcile the

various decisions of this Court that the parties have discussed in their briefs. After

acknowledging in Liles that “[t]he words ‘fair and just’ may not be considered

generalities, variable according to the predilections of the individuals who from time

to time compose the Commission,” and must, instead, “be related to the standard set

up by the statute,” we reversed the Commission’s average weekly wages decision on

the grounds that the Commission’s decision improperly applied the applicable legal

standard without giving any apparent deference to the Commission’s decision. Id.

Similarly, in Barnhardt, we held that it “would not be fair to the employer” to combine

wages from the worker’s two jobs in calculating his average weekly wage, on the

grounds that, “had the Legislature intended to authorize the Commission in the

exceptional cases to combine those wages with the wages from any concurrent

employment, . . . it would have been equally specific,” and that it was “not likely that

the legislature would have left such intent solely to a questionable inference.” 266

N.C. at 427. In the same vein, our decision in McAninch relied upon a determination

that the average weekly wages calculation that the Court of Appeals had deemed

appropriate could not be squared with the relevant statutory language. In other

words, neither Liles, Barnhardt, nor McAninch employs a simple sufficiency of the

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evidence analysis; instead, all of them focus upon the extent to which particular

“fairness and justness” determinations reflect a proper understanding of the relevant

statutory language. As a result, it is clear that the understanding of the applicable

standard of review set out above is completely consistent with the prior decisions of

this Court, which subject what are essentially issues of statutory construction to de

novo review regardless of whether they are made in the context of the selection of the

appropriate method for determining an injured employee’s average weekly wages or

determining whether the use of a particular method would produce results that are

“fair and just” in light of the applicable legal standard.

¶ 28 In its order, the Commission determined that the use of the third method for

calculating plaintiff’s average weekly wages set out in N.C.G.S. § 97-2(5) “would

produce an inflated average weekly wage that is not fair to [d]efendants because

[p]laintiff was employed in a temporary capacity with no guarantee of permanent

employment, length of a particular assignment, or specific wage rate, and he was

assigned to a client account whose work was seasonal” and that average weekly wages

of $111.64 would be “fair and just to both sides” given that it took “into account that

[p]laintiff was working a temporary assignment that most likely would have ended

once he worked 520 hours” and that “annualize[d] the total wages that [p]laintiff

likely could have expected to earn in the assignment.” As we understand his brief,

plaintiff’s challenge to the validity of the Commission’s determinations rests upon an

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assertion that the approach adopted by the Commission cannot be squared with the

applicable legal standard that has been enunciated by this Court. Although the

record does contain sufficient evidence to support the specific factual assertions set

out in the Commission’s order, its analysis does not, at least in our opinion, reflect a

proper understanding of that legal standard, which focuses upon whether, based upon

a consideration of all relevant facts and circumstances, the chosen method for

calculating plaintiff’s average weekly wages “most nearly approximate[s] the amount

which the injured employee would be earning . . . in the employment in which he [or

she] was working at the time of his [or her] injury,” Liles, 244 N.C. at 660 (emphasis

added), given that dividing the wages that plaintiff earned over sixteen weeks by

fifty-two, instead of sixteen, assumes that plaintiff would have only worked for

Cornerstone for a fraction of a year in the absence of his injury, an assumption that

might not be a plausible one given the existence of evidence tending to show that

temporary employees sometimes worked more than 520 hours at specific assignments

and the Commission’s failure to find that plaintiff would not have received further

work assignments from Cornerstone had he not sustained a compensable back injury

(regardless of what the situation might have been with an “average” employee). As a

result, since the Commission appears to have found the facts on the basis of a

misapprehension of the applicable law, McGill v. Town of Lumberton, 215 N.C. 752,

754 (1939) (stating that it is still the rule that “[f]acts found under misapprehension

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of the law will be set aside on the theory that the evidence should be considered in its

true legal light”), and since the Court of Appeals appears to have made its own factual

determinations in the course of reversing the Commission’s decision rather than

simply reviewing the Commission’s decision using the applicable standard of review,

we believe that the most appropriate disposition would be for this case to be remanded

to the Commission for the entry of a order that contains findings and conclusions

based upon a correct understanding of the applicable law.

III. Conclusion

¶ 29 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. We further hold that

the findings and conclusions that the Commission made in support of its average

weekly wages determination in this case appear to rest upon a misapplication of the

applicable legal standard. As a result, we modify and affirm the Court of Appeals’

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decision and remand this case to the Commission for further proceedings not

inconsistent with this opinion, including the entry of a new opinion and award

containing appropriate findings of fact and conclusions of law.

MODIFIED AND AFFIRMED.

Justice BERGER did not participate in the consideration or decision of this

case.

Justice BARRINGER dissenting.

¶ 30 The issue before this Court is whether the Industrial Commission correctly

calculated plaintiff’s average weekly wage under N.C.G.S. § 97-2(5). The majority’s

answer to this question should be troubling for staffing agencies and similar entities

who hire part-time or temporary workers. In a workers’ compensation action, the

determination of which method calculates an average weekly wage that is fair and

just to both employee and employer is a question of fact. This Court’s precedent has

never indicated otherwise. Here, the Commission found that the fifth method, not the

third method, produced results fair and just to both parties. Competent evidence

supported this finding. As a result, this Court should affirm the Commission’s opinion

and award. Accordingly, I respectfully dissent.

I. Background

¶ 31 Defendant, Cornerstone Staffing Solutions, provides temporary staffing to

businesses primarily located in and around Charlotte, North Carolina, and Rock Hill,

South Carolina. Client businesses contract directly with defendant, and defendant

then sends its employees to work for the client businesses for a limited period of time,

generally 520 hours. Defendant recruits, hires, and manages the payroll of these

employees, even though they complete work for the client business. Defendant’s

employees are paid only for time spent working for a client business. On average,

employees work only ten weeks for defendant. Some employees go on to be hired by

the client business, either during or at the end of the 520 hours. Others stop working

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of their own volition or do not receive further work because defendant is unable to

place them with another client business. Employment with defendant is limited by

the needs of the client businesses and the qualifications of defendant’s employees.

¶ 32 Plaintiff, Luon Nay, began working for defendant on 25 August 2015. Prior to

working for defendant, plaintiff had not been able to find work for eight months.

Defendant assigned plaintiff to work for Field Builders, a client business that creates

and updates ball fields at schools and performs landscaping work. While on

assignment with Field Builders, plaintiff suffered a compensable workplace injury.

As a result, plaintiff ceased working for defendant on 7 December 2015 after working

over 496.25 hours and earning wages of $5,805.25.

¶ 33 Plaintiff was medically released to full duty work in June of 2016—meaning

he could accept any job without restriction. Plaintiff went back to work for defendant

and was placed with another client. Three weeks later, however, that client had no

more work for plaintiff. Plaintiff requested defendant find him another job, but

defendant informed him that at the present time there were no jobs available, even

though plaintiff had no medical restrictions. A week later, plaintiff checked again,

and again there was no work for him. Later, plaintiff attempted to find work through

another staffing agency, but it too was unable to place him.

¶ 34 After plaintiff’s injury, defendant began paying disability benefits to plaintiff.

Initially, defendant calculated plaintiff’s average weekly wage by dividing plaintiff’s

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total wages of $5,805.25 across the fifteen-week period plaintiff worked for defendant,

which produced an average weekly wage of $387.02. However, given the temporary

nature of plaintiff’s employment, defendant subsequently modified its calculation to

$111.64, which was reached by dividing plaintiff’s total wages across the previous

fifty-two weeks. Plaintiff requested a hearing before the Commission to challenge this

recalculation.

¶ 35 After a hearing, the presiding deputy commissioner entered an opinion and

award finding that defendant had correctly calculated plaintiff’s average weekly wage

as $111.64. To reach this finding, the deputy commissioner found that given the

temporary nature of employment with defendant, plaintiff’s employment would not

have “extended over a 52-week period if he had not been injured” and that there was

no evidence of a similarly situated employee whose wages could be used to calculate

plaintiff’s average weekly wage. Thus the first four methods of calculating an average

weekly wage laid out in N.C.G.S. § 97-2(5) did not produce results fair and just to

both parties, and the deputy commissioner had to use the fifth method. Under this

method, the deputy commissioner took into account the temporary nature of

plaintiff’s work and divided plaintiff’s total wages by fifty-two weeks to reach an

average weekly wage of $111.64.

¶ 36 Plaintiff appealed to the full Commission which entered an opinion and award

using the same calculation as the deputy commissioner. The full Commission found

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that plaintiff’s employment with defendant “most likely would have ended once he

worked 520 hours,” and thus an average weekly wage of $111.64 calculated under the

fifth method produced fair and just results.

¶ 37 Plaintiff appealed the opinion and award of the full Commission to the Court

of Appeals. Reversing and remanding the Commission’s opinion and award, the Court

of Appeals held that the determination of which method calculates a fair and just

average weekly wage was a question of law, subject to de novo review. Nay v.

Cornerstone Staffing Sols., 273 N.C. App. 135, 141–42 (2020). Next, the Court of

Appeals examined the evidence and drew different inferences from it than those

drawn by the Commission, finding that plaintiff “could have continued to earn money

from Cornerstone indefinitely.” Id. at 143. As a result, the Court of Appeals concluded

that the third method produced an average weekly wage that was fair and just to

both parties. Id. at 143–44. Defendant petitioned this Court for review.

II. Analysis

¶ 38 At issue in this case is whether the Commission correctly calculated plaintiff’s

average weekly wage under N.C.G.S. § 97-2(5). Subsection 97-2(5) requires that the

calculation of an employee’s average weekly wage produce “results fair and just to

both parties.” N.C.G.S. § 97-2(5) (2021). Results fair and just to both parties are

reached when the Commission calculates an average weekly wage that “most nearly

approximate[s] the amount which the injured employee would be earning were it not

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for the injury, in the employment in which he was working at the time of his injury.”

Liles v. Faulkner Neon & Elec. Co., 244 N.C. 653, 660 (1956) (citing N.C.G.S. § 97-

2(5)).

¶ 39 This calculation requires the Commission to determine not only the rate of pay

at the time of the injury but also the total number of hours the employee would have

worked in a year for the employer if not for the injury. See McAninch v. Buncombe

Cnty. Schs., 347 N.C. 126, 128–31 (1997) (recognizing that because the plaintiff

worked only forty-two weeks out of the year for the employer in whose employ she

was injured, her average weekly wage would be calculated by extending her earnings

from the forty-two weeks across an entire year). Determining the length of time an

employee would have worked for an employer but for the injury is especially

important in cases involving temporary or seasonal workers, where a failure to

recognize the limited duration of employment would result in a windfall—with the

employer paying far more in disability benefits than the employee would ever have

earned if not for the injury.

¶ 40 To perform this calculation, N.C.G.S. § 97-2(5) “sets forth in priority sequence”

five methods for calculating an employee’s average weekly wage. McAninch, 347 N.C.

at 129; N.C.G.S. § 97-2(5). The Commission must consider each method in turn,

starting with the first method and only moving on to the next prescribed method if it

finds that the previous one would not fairly or justly reflect the wages which the

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employee would have been earning if not for the injury. McAninch, 347 N.C. at 129–

30; Liles, 244 N.C. at 657–60. Whichever method the Commission first finds to

accurately estimate the average weekly wage that the employee would be earning

were it not for the injury is the one the Commission must use to calculate the

employee’s disability benefit. McAninch, 347 N.C. at 129–30; Liles, 244 N.C. at 660.

¶ 41 When a party appeals a decision by the full Commission to the North Carolina

appellate courts, the appellate courts review the decision to “determine, first, whether

there is competent evidence to support the Commission’s findings of fact and, second,

whether the findings of fact support the conclusions of law.” McAninch, 347 N.C. at

131. Since this Court started reviewing the Commission’s decisions, it has treated the

calculation of an employee’s average weekly wage as a question of fact. This case

should be no different.

A. The Calculation of an Average Weekly Wage that Obtains Fair and Just

Results Is a Question of Fact.

¶ 42 Our precedent uniformly holds that whether a certain method calculates an

average weekly wage that is fair and just is a question of fact. Most recently, in

McAninch v. Buncombe County Schools, we held that, “the primary intent of

[N.C.G.S. § 97-2(5)] is that results are reached which are fair and just to both parties.

Ordinarily, whether such results will be obtained is a question of fact; and in such

case a finding of fact by the Commission controls [the] decision.” 347 N.C. at 130

(cleaned up). McAninch, when laying out this standard, quoted Liles v. Faulkner Neon

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& Electric Co., which, over forty years prior to McAninch, stated that N.C.G.S. § 97-

2(5)’s: “dominant intent is that results fair and just to both parties be obtained.

Ordinarily, whether such results will be obtained by the said second method is a

question of fact; and in such a case a finding by the Commission controls [the]

decision.” 244 N.C. at 660. Notably, Liles did not distinguish between the question of

whether results are fair and just and the question of whether a selected calculation

obtains results that are fair and just, or hold that the first inquiry involves a question

of fact and the second a question of law. Instead, it simply held that there is one single

question of fact: whether the use of a given calculation method will produce results

fair and just. Id.

¶ 43 Going back even further, Early v. W. H. Basnight & Co., 214 N.C. 103 (1938),

one of this Court’s first decisions reviewing an Industrial Commission award, likewise

treated as a question of fact the Commission’s determination that “exceptional

reasons” existed such that it needed to use the last method provided in the statute

for calculating the employee’s average weekly wage. Id. at 106–07. In no case has this

Court reviewed the calculation method chosen by the Commission under a different

standard. How many hours and at what rate are quintessential questions of fact. See

State ex rel. Utils. Comm’n v. Pub. Staff-N.C. Utils. Comm’n, 322 N.C. 689, 693 (1988)

(“Facts are things in space and time that can be objectively ascertained by one or

more of the five senses or by mathematical calculation.”). Accordingly, our review of

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the Commission’s calculation in this case should simply involve determining whether

it was supported by competent evidence.1

B. The Commission’s Findings are Supported by Competent Evidence.

¶ 44 Applying the correct standard of review to this case confirms that the full

Commission’s opinion and award should be affirmed. The Commission found as fact

that none of the other methods in N.C.G.S. § 97-2(5) produced a fair and just result,

and therefore, exceptional reasons existed for calculating plaintiff’s average weekly

wage pursuant to the fifth method. Further, in performing this calculation, the

Commission complied with this Court’s previous interpretations of N.C.G.S. § 97-2(5)

by considering only the wages that plaintiff earned from the employment in which he

was injured and disregarding all other sources or potential sources of income. See

Barnhardt v. Yellow Cab Co., 266 N.C. 419, 427–29 (1966), overruled on other grounds

by Derebery v. Pitt Cnty. Fire Marshall, 318 N.C. 192 (1986). Accordingly, the opinion

and award should be affirmed.

¶ 45 Plaintiff does not challenge the Commission’s findings that the first, second,

and fourth methods were improper for calculating plaintiff’s average weekly wage.

1 Of course, as Liles also notes, this Court will reverse the Commission’s opinion and

award if it is “predicated on an erroneous construction of the statute.” Liles v. Faulkner Neon

& Elec. Co., 244 N.C. 653, 660 (1956). However, this statement has no bearing on whether

the calculation of an average weekly wage according to the fifth (or any other) method is a

question of fact—which Liles already answered in the affirmative. Id. Rather, it was merely

a recognition of the fundamental principle that it is emphatically the province and duty of an

appellate court to say what the law is. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

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Additionally, plaintiff does not challenge the following findings by the Commission:

Plaintiff suffered a compensable injury while working for defendant, a staffing

agency. At the time of the injury, plaintiff was on a work assignment for one of

defendant’s clients, Field Builders. Plaintiff worked more than 496.25 hours for

defendant from 25 August 2015 until 7 December 2015 and earned $5,805.25 total.

Ninety-five percent of defendant’s employees were placed in “temp-to-perm”

positions. In a temp-to-perm position, an employee was eligible to be hired by the

client after working 520 hours but had no guarantee of receiving an offer from the

client.

¶ 46 Plaintiff does challenge the following findings by the Commission:

[E]mployees for [defendant] worked an average of 10 weeks

in the 52 weeks prior to [p]laintiff’s work injury . . . .

. . . The 3rd method, which applies when the period

of employment prior to the injury extended over a period

fewer than 52 weeks, calls for the earnings of the employee

to be divided by the actual number of weeks and parts

thereof that the employee earned wages, provided that the

result is fair and just to both sides. Use of the 3rd method

in this claim would produce an inflated average weekly

wage that is not fair to [d]efendant[ ] because [p]laintiff

was employed in a temporary capacity with no guarantee

of permanent employment, length of a particular

assignment, or specific wage rate, and he was assigned to

a client account whose work was seasonal. Thus, the 3rd

method would not take into account that [p]laintiff was on

a temporary assignment that in all likelihood would not

have approached 52 weeks in duration.

. . . [T]he payroll data submitted into evidence

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merely shows the temporary and sporadic nature of a

temporary employees’ employment with [defendant].

. . . The Full Commission finds that exceptional

reasons exist, and [p]laintiff’s average weekly wage should

be calculated pursuant to the 5th method. Based upon a

preponderance of the evidence in view of the entire record,

the Full Commission finds that [p]laintiff would have at

least worked 520 hours in his assignment with [Field

Builders] but for his [24 November 2015] work injury.

Thus, [p]laintiff’s total earnings of $5,805.25 should be

divided by 52 weeks, which yields an average weekly wage

of $111.64 and compensation rate of $74.43. The figure of

$111.64 is an average weekly wage that is fair and just to

both sides in this claim. It takes into account that [p]laintiff

was working a temporary assignment that most likely

would have ended once he worked 520 hours . . . .

¶ 47 Reviewing the record demonstrates that these findings were supported by

competent evidence. Thomas Chandler, CEO and owner of defendant, testified that

defendant’s clients would sign a contract with defendant agreeing not to hire an

employee until the employee worked for 520 hours. Agreements like this were

standard in the industry, though some companies used the term thirteen weeks—the

weekly equivalent of 520 hours. Sometimes, a client would want to hire an employee

full-time before the 520 hours were completed. In that situation, the client still had

to pay defendant for the full 520 hours. However, many employees did not stay with

defendant for the full 520 hours, as the average amount of time employees worked for

defendant was ten weeks.

¶ 48 Chandler testified that if an employee was not hired by a client after working

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a particular job assignment for 520 hours, the client rarely had the employee stay on,

as the client would have to pay a premium to retain the employee through defendant.

Typically, employees who were not hired were either let go or the assignment ended.

When not assigned to a client, employees might wait a significant amount of time

before another position became available. Thus, as Chandler noted, it was not “fair

to say that there[ was] pretty much always a job available.” Since employees could

only be placed in positions for which they were qualified, an employee’s language

barrier might prevent him or her from finding a position. Plaintiff testified that he

spoke very little English.

¶ 49 Chandler further testified that plaintiff was working for Field Builders, a

company that creates or updates ball fields at schools and performs landscaping work.

Field Builders’s work can be impacted by the weather, the season, and holidays.

Plaintiff had exceeded thirteen weeks with Field Builders and had completed over

ninety-five percent of his 520 hours when he ceased working.

¶ 50 Plaintiff was injured in December 2015 but was medically released to full duty

work in June of 2016—allowing him to accept any job without restriction. Initially,

defendant found plaintiff work with a client for three weeks. However, after that job

ended, defendant was unable to place plaintiff with another client. Later, a different

staffing agency was also unable to find plaintiff work. Additionally, plaintiff was

unable to find a job for the eight months preceding his employment with defendant.

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Barringer, J., dissenting

¶ 51 This competent evidence supported the Commission’s findings that plaintiff

would have stopped working for defendant around 7 December 2015, regardless of

the injury. As the Commission repeatedly stated, “[p]laintiff would have at least

worked 520 hours in his assignment with Field[ ]Builders but for his November 24,

2015 work injury,” “[p]laintiff was working a temporary assignment that most likely

would have ended once he worked 520 hours,” and plaintiff’s employment with

defendant “in all likelihood would not have approached 52 weeks in duration.”

Supporting this finding was the evidence that plaintiff had completed over ninety-

five percent of the required 520 hours. Accordingly, either plaintiff would have

reached 520 hours and been hired by Field Builders, or his position would have ended.

If plaintiff had gone to work for Field Builders, any income he earned from them

would not have counted toward his average weekly wage calculation since Field

Builders was a different employer than defendant. See Joyner v. A. J. Carey Oil Co.,

266 N.C. 519, 521 (1966) (“When an employee who holds two separate jobs is injured

in one of them, his compensation is based only upon his average weekly wages earned

in the employment producing the injury.”). Conversely, if the position ended, the

Commission could reasonably infer that plaintiff would have ceased working for

defendant since, when plaintiff returned to defendant in June of 2016 with no work

restrictions, defendant was unable to find plaintiff a job, other than three weeks with

one client. As such, the third method would not produce results fair and just to

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defendant because it would compensate plaintiff for far more hours than he would

have worked for defendant if he was not injured. Rather, a fair and just average

weekly wage would reflect the Commission’s finding that plaintiff would not have

worked significantly longer for defendant. The Commission’s chosen calculation

under the fifth method—dividing plaintiff’s wages by fifty-two weeks—obtained that

outcome.

¶ 52 Perhaps different factual inferences could be drawn from the evidence.

However, that is not the role of the appellate courts. Appellate courts review the

Commission’s resolutions of questions of fact simply to determine if they are

supported by competent evidence; they do not “have the right to weigh the evidence

and decide the issue on the basis of its weight.” Anderson v. Lincoln Constr. Co., 265

N.C. 431, 433–34 (1965). Competent evidence in this case supported the

Commission’s findings. Accordingly, we should affirm the opinion and award.

III. Conclusion

¶ 53 “The rule is well settled to the effect that, if in any reasonable view of the

evidence it will support, either directly or indirectly, or by fair inference, the findings

made by the commission, they must be regarded as conclusive.” McGill v. Town of

Lumberton, 218 N.C. 586, 591 (1940) (cleaned up). Here, a reasonable view of the

evidence and fair inferences support the finding of the Commission that plaintiff’s

average weekly wage should be calculated according to the fifth method. Further, a

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careful review of this Court’s precedent demonstrates that the Commission’s finding

rested on a proper interpretation of N.C.G.S. § 97-2(5). There is no need to remand

this case to the Commission for further findings or a reperformance of a calculation

that it has already correctly performed. Accordingly, I respectfully dissent.

Chief Justice NEWBY joins in this dissenting opinion.