IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-560
Filed 21 February 2023
North Carolina Industrial Commission, I.C. No. 18-035130
GLORIA GILLIAM and REX MAURICE CONNELLY, Parents of MAURICE
CONNELLY, Deceased Employee, Plaintiffs,
v.
FOOTHILLS TEMPORARY EMPLOYMENT, Employer, SYNERGY INSURANCE
COMPANY, Carrier, Defendants.
Appeal by Defendants and cross appeal by Plaintiffs from Opinion and Award
entered 19 April 2022 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 10 January 2023.
Sellers, Ayers, Dortch & Lyons, PA, by Christian R. Ayers, John F. Ayers, III,
and I. Matthew Hobbs, for Plaintiffs-Appellees.
Goldberg Segalla LLP, by Gregory S. Horner and Allegra A. Sinclair, for
Defendants-Appellants.
COLLINS, Judge.
Defendants Foothills Temporary Employment and Synergy Insurance
Company appeal from an Opinion and Award entered by the North Carolina
Industrial Commission awarding Plaintiffs Gloria Gilliam and Rex Maurice Connelly,
parents of Decedent Maurice Connelly, death benefits at a rate of $64.37 per week for
GILLIAM V. FOOTHILLS TEMP. EMP’T
Opinion of the Court
500 weeks. Defendants contend that the Commission erroneously admitted expert
testimony under Rule 702 of the North Carolina Rules of Evidence, and that, absent
such testimony, the Commission’s findings of facts and conclusions of law are
unsupported. Plaintiffs cross appeal, contending that the Commission erroneously
calculated Decedent’s average weekly wage under N.C. Gen. Stat. § 97-2(5).
Defendants failed to preserve their argument regarding the admission of expert
testimony under Rule 702. Although the Commission did not err by using the fifth
method of calculating average weekly wage under N.C. Gen. Stat. § 97-2(5), the
Commission erred in its calculation of Decedent’s average weekly wage. We dismiss
Defendant’s appeal, and we vacate and remand the Opinion and Award with
instructions.
I. Procedural History and Factual Background
Decedent was an employee of Foothills Temporary Employment, a temporary
employment agency that places individuals with various employers. On 15 July 2018,
Decedent was assigned to work at Bimbo Bakeries, a large-scale bread-making
facility, in a “general utility” position for $11.50 per hour. Bimbo Bakeries had been
training Decedent in multiple areas, but on 29 July 2018 he was working on the lid
line. The lid line is approximately 4 feet wide by 60 feet long and runs along a
conveyor belt. Lid line workers “are generally responsible for observing that the lids
are being produced efficiently, for ensuring that the type of lid being produced is
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Opinion of the Court
consistent with the product currently being baked, and for stacking the lids to the
side of the conveyor belt in racks as appropriate during changeover periods.”
On 29 July 2018, Decedent’s shift began “around 4:00 or 5:00 p.m.” On that
day, Decedent was working on the lid line with Larry Brooks, a Bimbo Bakeries
employee, and “monitoring the lids.” Decedent gave Brooks a 20-minute break in the
break room while he continued to work on the lid line. Leon Weaver, an oven operator
for Bimbo Bakeries, spoke with Decedent a few minutes prior to his collapse: “I looked
at him and I asked him, I was like, ‘Are you – are you okay? You good? You need
water or anything?’ He said he was fine and then I just walked back down to the
oven.” When Brooks came back from his break, he found Decedent lying face down
on the lid line platform.
Burke County EMS arrived at the scene where Decedent was “unresponsive to
all stimuli,” his “pupils were fixed and dilated,” and he was “placed on the cardiac
monitor via defibrillation pads . . . [and] found to be in Vfib.” Lieutenant Nicole
Carswell, a paramedic with Burke County, noted that “we defibrillated quite a few
times and there was no significant change in that until we were arriving at the
hospital. He stayed in defib the entire time.” Decedent was pronounced dead at the
hospital, and an autopsy revealed that
[t]he cause of death is probable dysrhythmia due to
cardiomegaly. Major findings at autopsy were an enlarged
heart with increased concentric left ventricle thickness. An
enlarged heart impairs proper coordinated electrical
conduction and predisposes to a fatal arrythmia. In
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Opinion of the Court
addition to the increased muscle mass, there was an
increased fibrosis seen microscopically.
Plaintiffs filed a workers’ compensation claim, alleging that Decedent “collapsed and
died while working in high heat inside bakery.” Defendants denied Plaintiffs’
workers’ compensation claim on the basis that Decedent “died from natural causes as
ruled by OSHA and Medical Examiner.” After a hearing, Deputy Commissioner
Tiffany M. Smith entered an Opinion and Award, concluding that Decedent’s death
was compensable and ordering Defendants to pay death benefits calculated pursuant
to the third statutory method of calculating average weekly wage under N.C. Gen.
Stat. § 97-2(5). Defendants appealed the Opinion and Award, and the Full
Commission affirmed the compensability of Decedent’s death but recalculated the
average weekly wage pursuant to the fifth statutory method. Defendants appealed
the Commission’s Opinion and Award, and Plaintiffs cross-appealed.
II. Discussion
A. Expert Witness Testimony
Defendants contend that the Commission erred under Rule of Evidence 702 by
admitting Dr. Owens’ testimony and thus the Commission’s findings of fact and
conclusions of law concerning compensability are unsupported. Plaintiffs contend
this issue is not preserved for our review.
Pursuant to North Carolina Industrial Commission Rule 701, an application
for review of a Deputy Commissioner’s opinion and award must be made within 15
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Opinion of the Court
days from the date notice of the opinion and award was given. Workers’ Comp. R.
N.C. Indus. Comm’n 701(a), 2021 Ann. R. N.C. 635-36.1 The Commission must
acknowledge the request for review by letter and within 30 days, must prepare and
provide the parties involved with the official transcript and exhibits, if any, along
with a Form 44 Application for Review. Id. Rule 701(c).
The appellant shall submit a Form 44 Application for
Review stating with particularity all assignments of error
and grounds for review, including, where applicable, the
pages in the transcript or the record on which the alleged
errors shall be recorded. Grounds for review and
assignments of error not set forth in the Form 44
Application for Review are deemed abandoned, and
argument thereon shall not be heard before the Full
Commission.
Id. Rule 701(d).
“[T]he portion of Rule 701 requiring appellant to state with particularity the
grounds for appeal may not be waived by the Full Commission.” Roberts v. Wal-Mart
Stores, Inc., 173 N.C. App. 740, 744, 619 S.E.2d 907, 910 (2005). The penalty for
non-compliance with the particularity requirement on appeal to the Full Commission
is waiver of the grounds. Wade v. Carolina Brush Mfg. Co., 187 N.C. App. 245, 249,
652 S.E.2d 713, 715 (2007) (citations omitted). Grounds waived on appeal to the Full
Commission are not preserved for this Court’s review. See Bentley v. Jonathan Piner
Constr., 254 N.C. App. 362, 368, 802 S.E.2d 161, 165 (2017).
1 The Rules of the North Carolina Industrial Commission are codified as 11 N.C. Admin. Code
23A.0701 (2021).
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Defendants argue that the following assignment of error2 in its Form 44 was
sufficient to preserve its argument that the Commission erred under Rule 702 by
admitting Dr. Owens’ testimony: “Defendants allege error in Findings of Fact 1-2,
7-9, 21, 23-27, 34-49 as these findings are either unsupported by competent evidence,
conflict with the evidence of record and/or are against the weight of the evidence
taken as a whole.”
However, that assignment of error is only a generalized assignment of error
regarding the Commission’s findings of facts that fails to state with particularity as
grounds for review the admissibility of Dr. Owens’ testimony under Rule of Evidence
702. See Reed v. Carolina Holdings, 251 N.C. App. 782, 787-88, 796 S.E.2d 102, 106
(2017) (holding that Defendants failed to preserve an issue where there was “no
indication in the record that [the] issue was raised at all before the Commission prior
to the Opinion and Award” and that “Defendants pleaded only a generalized
assignment of error . . . .”). Furthermore, the record on appeal before this Court does
not contain Defendants’ brief or other document filed with the Full Commission
stating with particularity as grounds for review the admissibility of Dr. Owens’
testimony under Rule 702. Cf. Cooper v. BHT Enters., 195 N.C. App. 363, 369, 672
2 Although our Rules of Appellate Procedure no longer limit the scope of appellate review to
those issues presented by assignments of error set out in the record on appeal, North Carolina
Industrial Commission Rule 701(d) requires a party appealing a Deputy Commissioner’s opinion and
award to the Full Commission “to submit a Form 44 Application for Review stating with particularity
all assignments of error and grounds for review . . . .” Workers’ Comp. R. N.C. Indus. Comm’n 701(d).
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Opinion of the Court
S.E.2d 748, 753-54 (2009) (“Since both this Court and the plain language of the
Industrial Commission’s rules have recognized the Commission’s discretion to waive
the filing requirement of an appellant’s Form 44 where the appealing party has stated
its grounds for appeal with particularity in a brief or other document filed with the
Full Commission, we overrule these assignments of error.”). See also Reed, 251 N.C.
App. at 789-90, 796 S.E.2d at 107-08 (“Although Defendants contend in response to
the Motion to Dismiss that they stated their challenge to the Commission’s authority
to award attorney’s fees in their brief to the Commission on appeal from the Deputy
Commissioner’s decision, they did not include the referenced brief in the record.”).
Finally, the Commission did not explicitly address in its Opinion and Award the
admission of Dr. Owens’ testimony under Rule 702; thus, it is not apparent that the
Commission considered that ground for review. See Adcox v. Clarkson Bros. Constr.
Co., 241 N.C. App. 178, 186, 773 S.E.2d 511, 517 (2015). Accordingly, there is no
indication in the record that the admission of Dr. Owens’ testimony under Rule 702
was raised before the Commission prior to the filing of the Opinion and Award from
which this appeal arises. Accordingly, that ground was abandoned before the
Commission and Defendants have failed to preserve it for our review.
B. Average Weekly Wage
Plaintiffs contend that the Commission erred by concluding that the fifth
method of calculating average weekly wage under N.C. Gen. Stat. § 97-2(5) should be
applied instead of the third method. Plaintiffs further contend that even if the fifth
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method is used, the Commission erroneously calculated Decedent’s average weekly
wage by using the earnings he accrued from 17 May 2018 to his death on 29 July 2018
rather than the earnings he would have accrued from 17 May 2018 to when he would
have ceased working for Defendant-Employer in August 2018.
Review of an opinion and award of the Industrial Commission “is limited to
consideration of whether competent evidence supports the Commission’s findings of
fact and whether the findings support the Commission’s conclusions of law.”
Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d 582,
584 (2008) (citation omitted). “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, 597 S.E.2d 695, 700 (2004) (brackets, quotation marks, and citation
omitted). The Commission’s conclusions of law are reviewed de novo. Pickett v.
Advance Auto Parts, 245 N.C. App. 246, 249, 782 S.E.2d 66, 69 (2016).
1. Application of the Fifth Method
Plaintiffs contend that the Commission’s decision to apply the fifth method of
calculating average weekly wage was erroneous.
Whether the Commission selected the correct method of calculating average
weekly wage under N.C. Gen. Stat. § 97-2(5) is a question of law that we review de
novo. Nay v. Cornerstone Staffing Sols., 380 N.C. 66, 85, 867 S.E.2d 646, 659 (2022).
Whether a particular method of calculating average weekly wage produces “fair and
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just” results is a question of fact subject to the “any competent evidence” standard.
Id.
The calculation of average weekly wage is governed by N.C. Gen. Stat.
§ 97-2(5). “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 . . . .” Id. at 77, 867 S.E.2d
at 654. (citation and quotation marks omitted).
The third method of calculating average weekly wage 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.” N.C. Gen. Stat. § 97-2(5)
(2021). Results fair and just, within the meaning of N.C. Gen. Stat. § 97-2(5), “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.” Liles v. Faulkner Neon & Elec. Co.,
244 N.C. 653, 660, 94 S.E.2d 790, 796 (1956) (emphasis and quotation marks
omitted).
The fifth method of calculating average weekly wage 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
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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. Gen.
Stat. § 97-2(5). The fifth method may not be used unless there has been a finding
that unjust results would occur by using one of the first four methods. McAninch v.
Buncombe Cnty. Sch., 347 N.C. 126, 130, 489 S.E.2d 375, 378 (1997).
Here, the Commission found, in relevant part, as follows:
6. Although Decedent’s employment with
Defendant-Employer was at-will and had no specified end
date, the preponderance of the evidence demonstrates that
Decedent would have ended his employment with
Defendant-Employer and returned to school in August
2018. The medical record from the 11 July 2018 “Well Male
Check” reflects that Decedent was “currently in grad school
for sports communication at Mississippi college.”
Furthermore, an 18 July 2018 Facebook post authored by
Decedent expressed his plan to return to school: “I’m so
glad school starts in August so I don’t have much longer in
the bakery lol.” Decedent’s sister testified that Decedent
was “in school” at the time of his death. Moreover, ceasing
his employment to return to school in August 2018 would
have followed the pattern of Decedent’s work history in
recent years. The Work Experience portion of Decedent’s
14 May 2018 employment application with
Defendant-Employer reflects that he worked for two
different employers during the previous two summers
before departing each August. The document reflects that
Decedent worked from 8 June 2017 until 7 August 2017
and from 31 May 2016 until 1 August 2016, and on this
form he indicated that he discontinued his work in those
positions due to “school.”
7. According to the Form 22 Statement of Days Worked and
Earnings of Injured Employee stipulated into evidence,
Decedent worked for Defendant-Employer for 64 days over
a 73-day period starting 17 May 2018 and ending with his
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death on 29 July 2018. Defendant-Employer’s payroll
records reflect that Plaintiff earned $5,021.13 during this
period.
....
33. Based upon the preponderance of the evidence in view
of the entire record, exceptional reasons, including the
limited duration of Decedent’s work for
Defendant-Employer and the fact that Decedent would
have terminated the employment within a few weeks but
for his death, the first four methods of calculating average
weekly wage under N.C. Gen. Stat. § 97-2(5) are
inappropriate. Given the nature of Decedent’s employment
with Defendant-Employer, the Full Commission finds that
dividing Decedent’s total earnings by 52 yields an average
weekly wage which most nearly approximates what
Decedent would be earning were it not for the injury.
Decedent’s medical records, Facebook post, employment application, and Form
22 are competent evidence to support the Commission’s findings of fact, including
“that Decedent would have ended his employment with Defendant-Employer and
returned to school in August 2018” and that “Decedent would have terminated the
employment within a few weeks but for his death . . . .” Because Decedent began
working for Defendant-Employer on 17 May 2018 and would have ceased working for
Defendant-Employer in August 2018, within a few weeks of his death, Decedent’s
earnings from May to August would have constituted his total earnings in 2018. If
Decedent’s total earnings are divided by the number of weeks and parts thereof that
he would have worked, this would yield an average weekly wage reflecting that
Decedent would have worked for the entire year rather than just three months.
Accordingly, the Commission’s findings of fact support its conclusion of law
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that applying “a third method [of] calculation would be unfair to Defendants in this
case in that it would overestimate the wages Decedent would have earned but for the
compensable accident. The third method is therefore inappropriate in this case as it
would not produce results ‘fair and just to both parties.’” See Joyner v. A. J. Carey
Oil Co., 266 N.C. 519, 521-22, 146 S.E.2d 447, 448-49 (1966) (holding that dividing
plaintiff’s earnings by the number of weeks in his brief period of employment during
peak season would not be fair and just where plaintiff’s employment was “inherently
part-time and intermittent” and did not “provide work in each of the 52 weeks of the
year; some weeks the job is non-existent”).
Furthermore, the Commission’s findings of fact support its conclusion that the
fifth method should be used:3
Given the highly unusual situation presented by the facts
of this case, “exceptional reasons” exist and “such other
method of computing average weekly wages” “as will most
nearly approximate the amount” Decedent “would be
earning were it not for the injury” must be used. N.C. Gen.
Stat. § 97-2(5). The fifth method of calculation under N.C.
Gen. Stat. § 97-2(5) is therefore appropriate. See Pope v.
Johns Manville, 207 N.C. App. 157, 700 S.E.2d 22 (2010).
2. Calculating Average Weekly Wage under the Fifth Method
Plaintiffs further contend that, even if the fifth method is used, the
Commission erroneously calculated Decedent’s average weekly wage by using his
3 The Commission’s conclusion of law 4 also details why the first, second, and fourth methods
of calculating Decedent’s average weekly wage should not be used. Plaintiffs do not argue that this
portion of the Commission’s conclusion was erroneous.
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date of death to calculate his total earnings when there was no competent evidence
that Decedent would have ceased working for Defendant-Employer on that date.
Findings of fact 6, 7, and 33, as recited above, including that “Decedent would
have ended his employment with Defendant-Employer and returned to school in
August 2018[,]” that “Decedent would have terminated the employment within a few
weeks but for his death,” and that “dividing Decedent’s total earnings by 52 yields an
average weekly wage which most nearly approximates what Decedent would be
earning were it not for [his death]” are supported by competent evidence. However,
these findings do not support the Commission’s conclusion of law calculating
Decedent’s average weekly wage as follows:
5. . . . In the case at bar, the evidence shows that Decedent
earned $5,021.13 during his summer employment with
Defendant-Employer. This figure divided by 52 yields an
average weekly wage of $96.56. This average weekly wage
most nearly approximates the amount Decedent would be
earning were it not for the injury. This average weekly
wage yields a corresponding weekly workers’ compensation
rate of $64.37. N.C. Gen. Stat. §§ 97-2(5); 97-38 (2021).
Because there is no evidence that Decedent would have ceased working for
Defendant-Employer on 29 July 2018 but for his death, using the $5,021.13 Decedent
earned from 17 May 2018 to 29 July 2018 as his “total earnings” to calculate his
average weekly wage underestimates the wages Decedent would have earned but for
the compensable accident. Instead, using the amount Decedent would have earned
from 17 May 2018 to the date he would have ceased working for Defendant-Employer
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Opinion of the Court
in August 2018 as his “total earnings,” and dividing that figure by 52, yields an
average weekly wage that most nearly approximates the amount Decedent would be
earning were it not for his death.
Accordingly, the Commission erroneously calculated Decedent’s average
weekly wage under the fifth method by using the “total earnings” he accrued from 17
May 2018 to 29 July 2018 rather than the “total earnings” he would have accrued had
he worked from 17 May 2018 to August 2018, within a few weeks of his death.
III. Conclusion
Defendants did not properly preserve their argument that Dr. Owens’
testimony was inadmissible, and we therefore dismiss Defendants’ appeal. The
Commission did not err by concluding that the third method of calculating Decedent’s
average weekly wage under N.C. Gen. Stat. § 97-2(5) would not produce results “fair
and just to both parties” in that it would overestimate the wages Decedent would
have earned but for the compensable accident. As such, the Commission did not err
by concluding that the fifth method of calculation under N.C. Gen. Stat. § 97-2(5) is
appropriate.
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. Accordingly, we vacate the Commission’s Opinion and Award and
remand with the following instructions: find, based on competent evidence, the date
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Decedent would have ended his employment with Defendant-Employer, had he not
died; determine Decedent’s “total earnings” based on his start date of 17 May 2018
and the date Decedent would have ended his employment with Defendant-Employer;
calculate Decedent’s average weekly wage by dividing Decedent’s “total earnings” by
52; enter a new opinion and award consistent with these findings and conclusions.
DISMISSED IN PART; VACATED AND REMANDED WITH
INSTRUCTIONS IN PART.
Chief Judge STROUD and Judge ZACHARY concur.
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