Ball v. Bayada Home Health CareÂ, 255 N.C. App. 1

Elizabeth Ball began part-time work for Bayada on May 26, 2010 at $8/hr, later moved to full-time and then to a different client on February 10, 2011 at $10/hr.
On February 10, 2011 Ball was injured while working for the new client but continued to work at the higher hours and pay through May 18, 2011, when she alleged a second injury.
Defendants admitted compensability of the February 10, 2011 injury to the right leg and filed a Form 60 admitting disability beginning May 19, 2011, but disputed other injury claims and the May 18 incident.
A deputy commissioner found both injuries compensable and used Method 5 to calculate average weekly wage; the Industrial Commission on de novo review found only the February 10 injury compensable and applied Method 3 to compute an average weekly wage of $284.79.
Ball appealed, arguing Method 3 was not “fair and just” because it ignored her post-injury months of higher hours and higher pay; the Court of Appeals agreed and reversed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Method 3 of N.C.G.S. § 97-2(5) was appropriate to compute Ball’s average weekly wage	Method 3 is unfair because it only considers pre-injury part-time, lower pay and ignores post-injury increased hours and pay	No certainty Ball would have continued increased hours/pay absent injury given variable client assignments	Use of Method 3 was not fair and just; reversed and remanded to apply Method 5 considering post-injury work

Joyner v. A. J. Carey Oil Co., 266 N.C. 519, 146 S.E.2d 447 (N.C. 1966) (Method 3 inappropriate where employment was inherently part-time/intermittent; Method 5 required)
Conyers v. New Hanover Cty. Sch., 188 N.C. App. 253, 654 S.E.2d 745 (N.C. Ct. App. 2008) (Method 3 unfair when it would overcompensate employee and unduly burden employer; use Method 5)
Liles v. Faulkner Neon & Elec. Co., 244 N.C. 653, 94 S.E.2d 790 (N.C. 1956) (statute requires average weekly wage that most nearly approximates what employee would earn but for injury)
Tedder v. A&K Enters., 238 N.C. App. 169, 767 S.E.2d 98 (N.C. Ct. App. 2014) (Method selection must approximate earnings but for the injury; distinguishes temporary employment contexts)
Shaw v. U.S. Airways, Inc., 362 N.C. 457, 665 S.E.2d 449 (N.C. 2008) (explains the priority sequence of the five statutory methods)
Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (N.C. 1998) (standard of review for Commission findings and conclusions)