Brown v. Walnut Cove Volunteer Fire Department

HILL, Judge. The sole question presented by this appeal is the correctness of the determination of plaintiffs earnings in setting his compensation. Defendants contend the Industrial Commission erred by holding that plaintiffs compensation benefits were to be based on [411] the average weekly wage earned while in the employment of Roadway Express, a company from which plaintiff had been laid off for almost a year. We disagree and for the reasons which follow affirm the decision of the Industrial Commission. G.S. 97-2(5) of the Workers’ Compensation Act provides in pertinent part as follows: Average Weekly Wages. — “Average weekly wages” shall mean the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury . . . divided by 52. . . . In case of disabling injury or death to a volunteer fireman . . . under compensable circumstances, compensation payable shall be calculated upon the average weekly wage the volunteer fireman . . . was earning in the employment wherein he principally earned his livelihood as of the date of injury. The Industrial Commission calculated the compensation rate in this case based on the wages which plaintiff earned during his employment at Roadway Express, concluding that “[t]he General Assembly intended that a volunteer fireman injured under com-pensable circumstances at a time when he was laid off subject to recall from his principal employment be compensated in accordance with his average weekly wages he was earning when laid off.” Defendants point out that plaintiff was laid off some eleven months prior to the accident and had not worked for Roadway Express for six months prior thereto. Nevertheless, plaintiffs employment with Roadway Express in this case represents “the employment wherein he principally earned his livelihood as of the date of the injury,” G.S. 97-2(5), because this vocation corresponds to plaintiffs primary source of income upon which plaintiff relied and intended to return to as soon as he was recalled to work. We do not believe the term “laid off’ means a total severance of the employer-employee relationship under the facts of this case. The very fact that plaintiff had been recalled for work at Roadway Express during the interim is evidence that the employer intended to honor its commitment to recall plaintiff during the three [412] year period subsequent to the lay off as provided in the union contract. In his claim for injury, plaintiff indicated to the adjuster that he expected to return to work for Roadway Express, and that he did not want his injury to interfere with his regular employment. The fact that plaintiff sought other outside employment is immaterial. Not only was he unsuccessful, but such a job search was to be expected. His income had been reduced fifty percent after allowance for unemployment benefits. Nor do we consider the small earnings received as a self-employed mechanic to be of any significance. The fact that plaintiff did not report the income originally on his tax return and never took depreciation as a business expense are evidence that such employment was not where he “principally earned his livelihood as of the date of the injury.” G.S. 97-2(5). Furthermore, we believe our holding exemplifies the basic tenet that the intent of the legislature regarding the operation of a particular provision of the Workers’ Compensation Act “is to be discerned from a consideration of the Act as a whole — its language, purposes and spirit.” Deese v. Lawn and Tree Expert Co., 306 N.C. 275, 278, 293 S.E. 2d 140, 143, reh’g denied, 306 N.C. 753 (1982). This spirit is one of liberal construction, whenever appropriate, “so that benefits will not be denied upon mere technicalities.” Id. at 277, 293 S.E. 2d at 143. Accordingly, we find no error in the Full Commission’s conclusion as a matter of law that “[t]he General Assembly intended that a volunteer fireman under compensable circumstances at a time when he was laid off subject to recall from his principal employment be compensated in accordance with the average weekly wages he was earning when laid off.” The Full Commission properly excluded plaintiffs average weekly earnings as a self-employed auto mechanic and properly refused to apply the minimum compensation rate prescribed by statute. The decision of the Full Commission is Affirmed. Judge Hedrick concurs. Judge WEBB dissents.