*1 IN THE COURT OF APPEALS 597 WNA, DEROSIER v. (2002)] N.C.

[149 597 imposed, sentence we for resentencing. remand See State v. Brown, 213, 57, 513 Wortham, 70 State (1999); v. 318 351 S.E.2d (1987). part, in part,

Vacated no error in and remanded.

Judges WALKERand BRYANTconcur. DEROSIER, WNA, MARIE FIRE Plaintiff INCORPORATED/IMPERIAL Employee, COMPANY, COMPANY, HOSE and THE TRAVELERS INSURANCE Employer; Defendants Carrier,

No. COA01-72 (Filed April 2002) Compensation— Workers’ disability calculation —overtime in job available new compensation disability A workers’ award was remanded where had worked after the in a accident with provide defendant which did not as much overtime and the found had sustained decrease in her earning capacity. pre-injury earnings Plaintiffs should not be compared post-injury with her earnings in another because pre-injury job changed circumstances had in that the plant had plant-wide suffered downturn which in resulted in proper comparison reduction overtime. The should be person currently between amount overtime available to the postion plaintiffs former and tljieovertime available to position. new Judge dissenting. Greene

Appeal by defendants from and award entered 7 September Christopher Commissioner Scott of the North Appeals Carolina Industrial Commission. Heard the Court of December 2001. OF APPEALS THE COURT CO. FIRE HOSE INC./IMPERIAL *2 Acton, Jr., Stafford, P.A., by D. Devore, Acton & William for appellee.

plaintiff L.L.P., by C. Hedrick, Eatman, Kincheloe, Paul Gardner & appellants. Wallace, Terry and L. Lawrence defendant McCullough, judge. Inc./Imperial Hose, employer, and WNA, Fire

Defendants carrier, Company, appeal from Insurance Travelers awarding Industrial Commission and the North Carolina award disability partial pur- plaintiff permanent benefits Marie Derosier 97-30(1999). § suant to N.C. Gen. Stat. plaintiff slipped flight down a

On October 1996 and fell steps way, her steps gave at work. The and while beneath strain due to the accident. leg suffered a laceration back WNA, Inc./Imperial a Form with Fire Hose filed Defendant admitting plaintiff’s on 25 October Industrial disability paid plaintiff temporary total right compensation and benefits. what

Plaintiff, prior accident, assigned was is called to her department at at the position in the weave work time “floater” performs many different tasks as needed around accident. A floater $15.75 per per $10.50 hour and over- department. Plaintiff earned per averaged She 17.93 hours of overtime time hour as floater. week. improvement on 6 March

Plaintiff reached maximum medical pounds and given lifting had of 25 1998. Plaintiff been restriction gave Her a 2% bending, stooping squatting. doctor her limited disability partial permanent These permanent rating. restrictions prevented plaintiff performing the of a floater. from duties until 8 March 1997. She worked

Plaintiff did not return work September 1997, during time part-time through from then disability temporary partial benefits from defendants. she received Quality returned, plaintiff assigned When was Control she perform Department longer she no as a lab technician because could However, plaintiff earned of floater due to restrictions. when was a a lab as she did she wages the exact same as technician present as Plaintiffs were also the exact same floater. floater, DeMarco. Sheila

IN THE COURT OF APPEALS replaced plaintiff Sheila above, DeMarco as As said floater. Ms. hourly plaintiffs DeMarco’s wage hourly wage were identical when work. returned to Evidence in the record showed that Ms. DeMarco worked during period 436.5 hours of overtime January through September between During 1999. the same period, plaintiff 257.5 worked hours of overtime as a lab technician. averages per only This out to 13.23 hours week. average Not significantly less than averaged what a floater before she injured, per week, 17.93 hours but is less than present also floater. The record position shows the floater worked 179 more overtime hours than did during lab technician period. same time

The Industrial plaintiffs job Commission found as a that fact in Quality Department Control opportunities “afforded fewer her plaintiffs Consequently, capacity work overtime.” earning decreased. Finding of Fact #8 reads:

8. The of plaintiffs evidence record establishes in earnings following injury decrease by her accident was due to her in having Quality to work defendant-employer’s Control Department restrictions, as the of her result which afforded her opportunities fewer to work overtime and thus decreased her earning capacity.

The Commission “[p]laintiff made the conclusion of law that sus- admittedly tained pensable injury by decrease in her due to com- pertinent The read, part, accident.” award follows: Subject attorney’s

1. provided, fees hereinafter defend- pay weekly shall compensation pursuant ants to G.S. equal sixty-six 97-30 an amount percent § and two-thirds her average weekly between at the time difference injury average weekly wages and the which she has been and is able to earn until 300 from weeks the date of thereafter injury. (Emphasis added.) appeals opinion Defendant from this award. assignments

Defendant makes opinion several of error as to the award, presented question but the sole is whether the Industrial awarding pursuant Commission erred in benefits to N.C. Stat. § Gen. 97-30. THE COURT OF APPEALS

600 FIRE HOSE CO. INC./IMPERIAX App. N.C. 597

Standard of Review appellate of an and award The standard for review well Review limited to deter Commission is settled. “is Industrial by supported compe are findings of fact (1) mination of whether supported evidence, whether of law are (2) the conclusions tent World, 329, 331, N.C. 266 by findings.” v. Food 300 S.E.2d Barham Hosp., Memorial 137 676, (1980); Calloway also v. Mission 678 see 480, 484, 397, (2000); v. Howard App. 528 S.E.2d Shah N.C. App. 58, 577, (2000), Johnson, 61, 140 N.C. 535 S.E.2d disc. denied, 381, 547 17 (2001). S.E.2d review addition, long as is some ‘evidence of substance “so there directly support reasonable inference tends to or evidence, though bound even there is findings, Court is such ” contrary.’ supported finding Id. at that would have evidence 61-62, Corp., (quoting 535 S.E.2d at 580 RPC Porterfield Calloway The Court (1980)). went respective stating appeal weigh task on is not to further that “our competency support but to assess the of the evidence Calloway, Full Commission’s conclusions.” 528 S.E.2d at 401.

I. that the Industrial Commission erred Defendants contend *4 plaintiff pursuant in awarding benefits to N.C. Gen. Stat. 97-30 that § competent support findings record to its is no evidence the there of law sustained a decrease in of fact and conclusions that injury. earning due to her injury “disability” “incapacity

The term means because of to employee receiving the was at the time wages earn the any injury employment.” Gen. the same or other N.C. Stat. of disability, a of the 97-2(9). support “To conclusion § injury incapable the was after his of (1) must find: that injury in the earning wages the he earned before his same same incapable injury the was after his employment, (2) that injury any earning wages he earned before his the same employment (3) plaintiff’s incapacity to earn and injury.” that the other If Commission makes these find- was caused his the they supported by competent evidence, they are ings, are support appeal even there is though conclusive on contrary earn A claimant who is able work and some finding. 601 APPEALS IN THE COURT OF HOSE INC ./IMPERIAL FIRE CO. DEROSIER v. App. N.C. 597 injury, par- wages at the time of

wages, but than the earned less Disability binding tially legal is a conclusion will be disabled. supported by proper findings. court if reviewing on 354, Products, 349, 481 Harris v. North American employee 321, prove his (1997). The burden is on the S.E.2d incapacity compensable injury, the same earn, as a result injury. was the time Hall Thomason earning he at of the Chevrolet, Inc., 857, 861 (1965). 263 N.C. 139 S.E.2d correctly points “although post- out

Defendant that Plaintiffs injury earnings pre-injury earnings, than the focus were less earning capacity be on whether Plaintiffs or should the issue of Supreme that power has been diminished.” Our Court has held upon wage power “[c]ompensation earning must be based loss of actually rather than the amount received. It intended provide compensation only earning capacity.” statute to for loss DuBose, 446, 447-48, (1951). S.E.2d Hill v. support contention the Industrial Commission of its that erred, that downturn evidence defendants contend its economic comparison pre-injury wage post-injury wage negates capacity in being proper way earning to determine this case. “It is uniformly injured employee’s post-injury wages held that while an may presumption post-injury earning capacity, pre- create may upon sumption party showing either that such be rebutted employee’s determining actual wages are unreliable basis Harris, capacity. Carolina this rule.” earning North follows (citation omitted). at 325 employee The Harris dealt with an who became sick on case job on the site. he left that and found due conditions Once hourly up work, wage his went down but his income went other holding than that the working. he was Rather because hours employee capacity, this Court concluded suffered no loss of post- the plaintiff-employee’s that actual evidence showed post-injury earning his injury earnings were not a reliable indicator of capacity. The Court said: may post-injury earning capacity] be presumption

[T]he [of by independently showing incapacity or rebutted post-injury basis explaining away earnings as unreliable may Unreliability post-injury earnings capacity. estimating levels things]:] general wage be due to number of increase IN THE COURT OF APPEALS DEROSIEK v.

since accident; the time of the greater maturity claimant’s own or longer training; hours worked accident; claimant after payment wages disproportionate capacity sympathy out of claimant; temporary and the unpredictable character of post-injury earnings.”

Harris, at 481 S.E.2d at 325 (quoting Sjoberg’s Case, 394 Mass. 476 N.E.2d 198-99 (1985) (citations omitted)). present case, “plaintiff’s defendant contends that in- pre-injury wages

flated due to overtime during period hours worked stability subsequent economic and the plant downturn plant-wide resulted in a reduction of overtime hours avail- explains disparity plaintiff’s able pre-injury wages and her post-injury wages.” words, plaintiff’s In other decrease in injury by was not caused accident, period but due to the industry decline in the fire hose injury. coincided with her According defendants, employee now filling the floater position opportunities has less overtime than were available in the previous years.

We agree plaintiff’s with pre-injury defendants that earnings as floater compared should not be plaintiff’s post-injury with earnings as a lab technician to determine earning capacity her loss in in this case. The Industrial Commission was wrong compare pre-injury post-injury earnings capacity case, in this because contend, as defendants surrounding pre-injury circumstances changed. have Even if she was still floater, presumably she would not work the hours as she did before. However, this necessarily conclusion does not mandate that capacity. suffered no loss in earning It plain- would seem that

tiff harmed, all, would be if way: the following If she had not suf- injury, fered the she could working still be as a floater. That apparently has a certain amount of overtime hours available to work. Since injured, she was working she is now as a lab technician that also has a certain amount of overtime hours available to the employee. If there is a difference between the hours of overtime present available between present floater technician, lab then she has lost the to earn Thus, those overtime hours. proper comparison should be between the amount of overtime avail- able, worked, present not present floater and the in her job as lab technician.

IN OF APPEALS THE COURT WNA, DEKOSIER (2002)]

[149 comparison. The closest the The not allow such record does comparison exhibits making is with defendant’s record comes salary of Derosier and These exhibits are histories Ms. one two. They specified period time. show the during a of Sheila DeMarco respective employee. overtime, worked, regular hours each clearly they make marked, are and nowhere do refer- The columns available. ence overtime hours they

Testimony what these exhibits seems to confuse about personnel plainly represent. instance, Hutchinson, Sherrie For Hose, represented manager Imperial that the exhibits at Fire testified year-to-date earnings, which include hours over- “1998and 1999’s dealing When about the exhibit with the time hours worked.” asked DeMarco, repre- it present floater, Ms. Ms. Hutchinson testified that period hours available for a floater to work from that of sented “the through Finally, later on in Ms. August the end 1999.” time testimony, following exchange regard Hutchinson’s place: same two exhibits took

Q. be, essence, comparison over- These would hours, if we follow the two columns for both these

time people, compare

we Ms. Derosier can the overtime hours worked; Ms. Demarco is worked with the overtime hours right? A. Correct. [Hutchinson]: least, exactly very confusing as what records

At the it is represent. Ms. Derosier

We is evidence the record that do note that there opportunities as lab technician overtime has been allowed fewer as a than floater:

Q. technician, you . been to work . . And in lab have allowed you when work as had been offered before

as much overtime you awere floater? No,

A. sir. that, injury, Ms. Derosier did not due to her There also evidence her, though her doctor every hour available to even work overtime above, As we hold not work the overtime. said never said she could proper comparison arrive of this case that based on facts capacity is between the hours overtime Ms. Derosier’s present available floater and overtime available to COURT THE OF APPEALS INC./IMPERIAL FIRE CO. HOSE present provide in her as lab technician. The record does not comparison. such a Therefore we reverse decision and remand opinion. findings further consistent with this *7 and remanded. Reversed

Judge CAMPBELLconcurs.

Judge GREENE dissents.

GREENE,Judge, dissenting. remanding In Commission, majority this case to the Full accepts plaintiff’s post-injury defendants’ that overtime hours by decreased due to an experienced economic downturn company. majority The therefore orders the Full Commission to com- pare the number of present floater, overtime hours available to the DeMarco, Ms. post-injury job those available to in her a lab technician in order determine whether suffered a earning capacity. loss in analysis Because I believe this to be an issue only by that upon reached finding Full Commission that have defendants met their burden Harris Prods., under v. North Am. App. 349, (1997), 481 S.E.2d 321 a finding the Full make, did not I Commission dissent.1 Harris, In injured employee’s this held an post- Court that while injury wages presumption post-injury create “a earning capacity, may presumption by party upon be rebutted either a showing that such are an unreliable basis determining employee’s earning capacity.” actual Id. at case, at 325. downturn, defendants offered an evidence that economic resulting in overtime, plaintiff’s overall decrease in post-injury caused earn- ings deputy to be reduced. The commissioner “competent found . [plaintiff’s] evidence in record . . in earnings decrease fol- lowing admittedly compensable injury by her accident was due to her having defendant-employer’s Quality to work in the .Control Department opportunities her afforded fewer to work over- capacity.” time earning appeal and thus decreased her On Commission, Full assigned Defendants as error finding that this supported competent “not [rjecord that the Only 1. if the Full had found defendants to have their met burden of showing plaintiffs post-injury wages to be unreliable under Harris would the Full compare majority opinion. Commission have to available overtime as outlined in the OF APPEALS THE COURT OF CORE. v. McKIMMEY

N.C. DEP’T into account the economic [d]eputy failed take [c]ommissioner downturn, [d]efendant[-employer] the effect faced ability work The [plaintiffs] overtime.” economic downturn on implicitly rejected argument Commission, however, defendants’ Full As deputy finding verbatim. commissioner’s almost adopting proving met her a decrease in has burden showing have failed to meet their burden and defendants unreliable, id., I the Full plaintiff’s would affirm evidence to be see award. Commission’s Petitioner-appellant OF

NORTH CAROLINA DEPARTMENT CORRECTION, Respondent-appellee MICHAEL McKIMMEY, *8 No. COA00-1528 April (Filed 2002) Employees— probation/ Public Officers termination — job performance parole grossly inefficient officer — by upholding the Personnel The trial court did not err State respondent reinstating decision Commission’s recommended attorney after he probation/parole pay with back fees officer grossly performance alleged inefficient was terminated for for necessary paperwork (DAPP-1B) he failed turn in the when parolee parole and the thereafter parolee’s charges violation respond- Maryland Trooper, (1) State because: and killed a shot parolee’s misde- for a three failure to submit the DAPP-lBs ent’s job per- inefficient charges grossly assault not a meanor termination; (2) there existed insufficient justifying his formance DAPP-lBs respondent’s failure to submit potential death bod- in the or serious resulted creation 25, 1J.0606;and injury required by N.C. Admin. Code tit. r. ily separate in a letter of memorandum although judge (3) trial analysis in its inter- proximate of a causation discussed use rely 1J.0606, not on Code tit. r. he did pretation of N.C.Admin. analysis final order. in his such September by petitioner from order entered

Appeal County Superior Court. Heard Henry Barnette, Jr., V. in Wake Judge Appeals 8 November 2001. the Court of