This case facially involves the proper method of calculating the average weekly wages in a worker’s compensation action, and in essence it presents two underlying issues which are controlling. The first such issue is whether an Industrial Commission Form 21 agreement for compensation, entered into between the employer and the injured employee and approved by the full Commission, can be modified or set aside on appellate review in the absence of a finding by the Commission of error due to fraud, misrepresentation, undue *128 influence or mutual mistake. The second issue presented is whether the calculation of the average weekly wages of an injured employee may include wages or income earned in employment or work other than that in which the employee was injured. For the reasons hereinafter set forth, we hold the Court of Appeals erred in modifying the Form 21 agreement and in calculating the average weekly wages based on wages or income earned in employment other than that which produced the injury. Accordingly, we reverse the Court of Appeals and remand for reinstatement of the Commission’s award based on the Form 21 agreement.
The plaintiff, Brenda McAninch, was employed as a cafeteria worker for the defendant, Buncombe County Schools, for approximately eight years until 16 August 1990 when she sustained a compensable injury in the course of her employment. As a result of this injury, the plaintiff remains totally disabled. Because plaintiff’s position as a cafeteria worker existed only during the ten-month school year, she worked only forty-two weeks per year for the defendant. The plaintiff elected to receive her wages during the school year, rather than spread them throughout the entire year. Under this payment plan, the plaintiff received an average of $163.37 per week during the forty-two weeks that she worked, and she received no wages during the remaining ten weeks of the year. During the summer, plaintiff earned an average of $150.00 per week by babysitting, housekeeping and painting.
As found by the Commission, the defendant admitted liability for benefits under the Workers’ Compensation Act, and on 3 October 1990, the parties entered into a Form 21 agreement reflecting the average weekly wage of $163.37 based on the forty-two-week period that plaintiff worked, which yielded a workers’ compensation rate of $108.91 per week. This compensation rate did not reflect any wages the plaintiff earned from other employment undertaken during the ten-week summer vacation. This agreement was approved by the Commission.
Although the agreement provided that plaintiff would be compensated weekly so long as her disability continued, defendant refused to pay plaintiff during the summer vacation period on the ground plaintiff had worked and received paychecks only during the school year. Plaintiff filed a Form 33 request for a hearing, and the matter was heard before a deputy commissioner who determined plaintiff was entitled to compensation throughout the entire year. *129 However, the deputy commissioner also determined that plaintiffs average weekly wages should reflect her annual salary extended over fifty-two weeks. This calculation yielded average weekly wages of $132.49, instead of the $163.37 stipulated in the Form 21 agreement. The plaintiff appealed to the full Commission, which reinstated plaintiffs original average weekly wages and compensation rate, pursuant to the Form 21 agreement. The Commission also affirmed that plaintiff was entitled to compensation during the summer months and concluded that “[s]ince there is no basis to set aside the Form 21 Agreement in this case, it shall remain in full force and effect. N.C.G.S. § 97-17.”
The defendant appealed to the North Carolina Court of Appeals, which reversed and remanded the case to the Industrial Commission. The Court of Appeals, in construing N.C.G.S. § 97-2(5), concluded that to obtain a result that was “fair and just to both parties,” the Commission should have used a different method of calculation under the statute, which method “necessarily includes wages earned in employment other than that in which the employee was injured,”
McAninch v. Buncombe County Schools,
[1 ] The calculation of an injured employee’s average weekly wages is governed by N.C.G.S. § 97-2(5). This statute sets forth in priority sequence five methods by which an injured employee’s average weekly wages are to be computed, and in its opening lines, this statute defines or states the meaning of “average weekly wages.” It is clear from its wording and the prior holdings of this Court that this statute establishes an order of preference for the calculation method to be used, and that the primary method, set forth in the first sentence, is to calculate the total wages of the employee for the fifty-two weeks of the year prior to the date of injury and to divide that sum by fifty-two.
Hensley v. Caswell Action Comm., Inc.,
“Average weekly wages” shall mean the earnings of the injured employee in the employment in which he was working at *130 the time of the injury during the period of 52 weeks immediately preceding the date of the injury, including the subsistence allowance paid to veteran trainees by the United States government, provided the amount of said allowance shall be reported monthly by said trainee to his employer, divided by 52 ... . [3] Where the employment prior to the injury extended over a period of less 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. . . .
But where for exceptional reasons the foregoing would be unfair, either to the employer or employee, such other method of computing 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.G.S. § 97-2(5) (Supp. 1996). The final method, as set forth in the last sentence, clearly may not be used unless there has been a finding that unjust results would occur by using the previously enumerated methods.
Wallace v. Music Shop, II, Inc.,
After correctly stating that this statute “provides a hierarchy” of five methods of computing the average weekly wages, and after further stating that “we must first calculate plaintiffs average weekly wages pursuant to the third method in [N.C.G.S. §] 97-2(5)” (the method employed by the Commission),
McAninch,
In the instant case, the Industrial Commission explicitly found that the plaintiffs average weekly wages of $163.37, which the parties and the Commission determined by applying forty-two weeks under the third computation method, would be most equitable to both parties. Hence, the recalculation of plaintiff’s average weekly wages by the Court of Appeals through application of the fifth computation method constituted an improper contravention of the Commissions’s fact-finding authority, and specifically its finding of fairness in this case. The final opinion and award of the full Commission concludes:
In this case the Full Commission finds that a computation based on 10 months instead of 12 months would be most equitable. Also this is set forth in the Form 21 Agreement which was executed by the parties and approved by the Commission.
This Court has long held that, “ ‘[u]nder the Workmen’s Compensation Act, the Industrial Commission is made the fact-finding body, and the rule is, as fixed by statute and the uniform decisions of this Court, that the findings of fact made by the Commission are conclusive on appeal . . . when supported by competent evidence.’ ”
Inscoe v. DeRose Indus.,
Furthermore, the Commission in this case merely upheld the parties’ own agreement, concluding that the agreed-upon terms were fair *132 and equitable. Where the employer and employee have entered into a Form 21 agreement, stipulating the average weekly wages, and the Commission approves this agreement, the parties are bound to its terms absent a showing of error in the formation of the agreement. N.C.G.S. § 97-17 provides in pertinent part:
[N]o party to any agreement for compensation approved by the Industrial Commission shall thereafter be heard to deny the truth of the matters therein set forth, unless it shall be made to appear to the satisfaction of the Commission that there has been error due to fraud, misrepresentation, undue influence or mutual mistake, in which event the Industrial Commission may set aside such agreement.
N.C.G.S. § 97-17 (1991). “Thus, where there is no finding that the agreement itself was obtained by fraud, misrepresentation, mutual mistake, or undue influence, the Full Commission may not set aside the agreement, once approved.”
Brookover v. Borden, Inc.,
Further, with respect to the Court of Appeals’ recalculation to include “wages earned in employment other than that in which the employee was injured,” we hold that this aggregation of wages conflicts with our established law. In defining “average weekly wages,” N.C.G.S. § 97-2(5) explicitly provides that average weekly wages
*133
“shall mean
the earnings of the injured employee
in the employment in which he was working at the time of the injury.'”
N.C.G.S. § 97-2(5) (emphasis added). This issue was exclusively and definitively addressed by this Court in
Barnhardt v. Yellow Cab Co.,
[N.C.G.S. § 97-2(5)] contains no specific provision which would allow wages from any two employments to be aggregated in fixing the wage base for compensation. Plaintiff contends, however, that such authority is implied in method [5], since “the amount which the injured employee would be earning were it not for the injury” necessarily includes earnings from all sources if the employee had more than one job.
It seems reasonable to us that the Legislature, having placed the economic loss caused by a workman’s injury upon the employer for whom he was working at the time of the injury, would also relate the amount of that loss to the average weekly wages which that employer was paying the employee. Plaintiff, of course, will greatly benefit if his wages from both jobs are combined; but, if this is done, [the employer] and its carrier, which has not received a commensurate premium — will be required to pay him a higher weekly compensation benefit than [the employer] ever paid him in wages. . . . [T]o combine plaintiff’s wages from his two employments would not be fair to the employer. Method [5], “while it prescribes no precise method for computing ‘average weekly wages,’ sets up a standard to which results fair and just to both parties must be related.” Liles v. Electric Co.,244 N.C. 653 , 658,94 S.E.2d 790 , 794.
After having specifically declared, in the usual situations to which method (1) is applicable, that an injured employee’s average weekly wages shall be the wages he was earning in the employment in which he was injured, had the Legislature intended to authorize the Commission in the exceptional cases to combine those wages with the wages from any concurrent employment, we think it would have been equally specific. As was said in De Asis v. Fram Corp., [78 R.I. 249 , 253,81 A.2d 280 , 282 (1951)]: “If that radical and important change were intended, *134 it is not likely that the legislature would have left such intent solely to a questionable inference.”
We hold that, in determining plaintiffs average weekly wage, the Commission had no authority to combine his earnings from the employment in which he was injured with those from any other employment.
Barnhardt,
With respect to the statutory language setting out the fifth calculation method, the Court of Appeals,
We therefore reverse the decision of the Court of Appeals and remand this case to that court for further remand to the Industrial Commission for reinstatement of its award based upon the Form 21 agreement.
REVERSED AND REMANDED.