Frank v. Charlotte SymphonyÂ
255 N.C. App. 269
| N.C. Ct. App. | 2017Background
- Cynthia Frank, a violist for the Charlotte Symphony, alleged a work-related right-shoulder injury with an asserted average weekly wage of "$760.00+"; parties stipulated injury date of December 15, 2013.
- The Symphony’s regular season runs ~September–May (33 weeks); there is an optional 4-week summer season; musicians are not required to work year-round and may seek unemployment during layoff weeks.
- In the 52 weeks before the injury Frank performed services for the Symphony for 36 weeks and earned $39,412.83 from that employer; she also worked separate summer seasons with the Chautauqua Symphony (not concurrent) with higher weekly pay.
- Deputy commissioner calculated Frank’s average weekly wage as $757.94 (comp rate $505.32); Industrial Commission affirmed.
- Frank appealed, arguing the Commission used the wrong subsection of N.C. Gen. Stat. § 97-2(5) (she urged use of method two). The Court of Appeals reviewed the Commission’s legal conclusions de novo and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper §97-2(5) method to compute average weekly wage | Use method two (deduct weeks lost) because Frank had contract spanning a year and layoff weeks should count as "lost" time | Methods 1–3 inapplicable or produce unfair results; method five (exceptional method) best approximates pre-injury earnings | Affirmed use of method five: methods 1–3 inappropriate or unjust; exceptional method properly applied to approximate earnings |
Key Cases Cited
- Barham v. Food World, 300 N.C. 329 (legal standard for reviewing Commission findings and conclusions)
- McLaughlin v. Staffing Solutions, 206 N.C. App. 137 (Commission conclusions of law reviewed de novo)
- Swain v. C & N Evans Trucking Co., 126 N.C. App. 332 (average weekly wages is a question of law applying §97-2(5))
- Bond v. Foster Masonry, Inc., 139 N.C. App. 123 (distinguishing seasonal versus full-time irregular work for method selection)
- Wallace v. Music Shop, II, Inc., 11 N.C. App. 328 (interpretation of §97-2(5) methods and hierarchy)
- Conyers v. New Hanover Cty. Schools, 188 N.C. App. 253 (affirming use of exceptional method where applying other methods would produce unfair/windfall results)
- R.J. Reynolds Tobacco Co. v. N.C. Dep’t of Env’t & Natural Res., 148 N.C. App. 610 (statutory construction principle that provisions should not be rendered surplusage)