677965.doc

I.C. NO. 677965, SANDRA BASILE, Employee, Plaintiff v. CHRIS'S OPEN HEARTH STEAK HOUSE, Employer, KEY RISK INSURANCE COMPANY, Carrier, Defendants.  OPINION AND AWARD for the Full Commission by BERNADINE S. BALLANCE, Commissioner, N.C. Industrial Commission.  Filed 28 October 2009.



The Full Commission reviewed this matter on 20 April 2009 upon appeal of plaintiff from the Opinion and Award by Deputy Commissioner James C. Gillen, filed, 8 October 2008.  Deputy Commissioner Gillen initially heard this matter on 25 June 2008.  After oral arguments before the Full Commission, and pursuant to an Order of 10 June 2009 by the Full Commission, defendants submitted additional information relating to plaintiff's average weekly wage which is admitted into evidence.
A P P E A R A N C E S
	Plaintiff:	Oxner Thomas & Permar, Attorneys, Greensboro, NC; Todd P. Oxner, appearing.

	Defendants:	Brooks Stevens & Pope, Attorneys, Cary, NC; Joy H. Brewer, appearing.

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The Full Commission has reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Gillen and the briefs and oral arguments of the parties, and has also reviewed the additional evidence submitted pursuant to the Full Commission Order entered after oral arguments.  With reference to the errors assigned by plaintiff, the Full Commission finds that plaintiff has not shown good grounds to reconsider the evidence, to receive further evidence or to rehear the parties or their representatives.  Accordingly, the Full Commission AFFIRMS with minor modifications, the Opinion and Award of the Deputy Commissioner and enters the following Opinion and Award.
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ISSUES TO BE DETERMINED
1.	What is plaintiff's proper average weekly wage for the purposes of this claim?
2.	Whether plaintiff justifiably or unjustifiably refused suitable employment pursuant to N.C. Gen. Stat. §97-32?
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The Full Commission finds as facts and concludes as matters of law the following, which were entered into by the parties at the hearing, and in a Pre-Trial Agreement which was admitted into the record and marked as Stipulated Exhibit (1) as:
STIPULATIONS
1.	The date of the injury that is the subject of this claim is 7 October 2006.
2.	On 7 October 2006 the parties were subject to and bound by the provisions of the North Carolina Workers' Compensation Act.
3.	On 7 October 2006 an employment relationship existed between plaintiff-employee and defendant-employer.
4.	On 7 October 2006 defendant-employer employed three or more employees.
5.	Defendant-employer is insured by Key Risk Insurance Company.
6.	Plaintiff's average weekly wage is a matter in dispute.  Defendants have been paying ongoing total disability compensation at the rate of $155.77 per week.
	7.	At the hearing, the parties submitted the following:
a.	A Packet of Medical Records, which was admitted into the record, and marked as Stipulated Exhibit (2);
b.	A Packet of Discovery Responses, which was admitted into the record, and marked as Stipulated Exhibit (3) and;
c.	A Packet of Industrial Commission Forms, Correspondence and Miscellaneous Documents, which was admitted into the record, and marked as Stipulated Exhibit (4).
	8.	Subsequent to the hearing before the Full Commission, defendants submitted a Daily Accounting of Plaintiff's Credit Card Sales in her position with defendant-employer and a Daily Accounting of Defendant-Employer's Gross Daily Sales for the days worked by plaintiff.  This information is hereby admitted into the evidentiary record.
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Based upon a review of all of the evidence of record, the Full Commission makes the following:
FINDINGS OF FACT
1.	Plaintiff worked for defendant-employer, Chris's Open Hearth Steak House, as a server.  Plaintiff began working for defendant-employer on 2 June 2006.  Plaintiff had a substantial work history as a restaurant server prior to her employment with defendant-employer.
2.	Plaintiff sustained an injury to her back while working for defendant-employer on 7 October 2006 when she slipped and fell while carrying a tray.  Defendants filed an Industrial Commission Form 60 dated 30 November 2006 accepting plaintiff's claim as compensable.  The Form 60 reflects an average weekly wage of $233.65 and a weekly compensation rate of $155.77.  However, these amounts are in dispute.
3.	On 8 October 2006, plaintiff attempted to return to work at reduced wages, but was later medically excused from all work by Dr. Zane Walsh.  Thereafter, defendants reinstated payments of temporary total disability compensation to plaintiff and she continued to receive such payments through the date of the hearing before Deputy Commissioner Gillen.
4.	On 15 October 2007 defendants filed an Industrial Commission Form 24 Application to suspend plaintiff's temporary total disability compensation on the grounds that she had unjustifiably refused suitable employment.  Plaintiff had refused to accept a hostess position offered to her by defendant-employer.  The Form 24 was disapproved by a Special Deputy Commissioner in the Office of the Executive Secretary by Order filed 3 December 2007.
5.	Servers with defendant-employer, including plaintiff, derive most of their income from tips, with defendant-employer paying a nominal $2.13 hourly wage.  Normally, on payday plaintiff received checks with a zero amount from defendant-employer due to the amount of withholdings from the nominal hourly wages paid.
6.	Defendant-employer required that their servers sign a salary logbook on paydays.  This book functioned as a record of the servers' reported tip income.  Plaintiff testified that she knew that the tip logs she signed did not reflect her entire tip income, but only reflected the tip income that defendant-employer reported to the Internal Revenue Service (IRS).  Plaintiff further testified that, like a number of other employees with whose normal practice she was familiar, she had never reported her full tip income to the IRS.  Plaintiff also testified that she did not read the tip logs that she signed.
7.	Before the Deputy Commissioner, the tip logbook was the only evidence presented from which plaintiff's average weekly wage could be calculated.  The Full Commission reopened the record for submission of additional evidence on plaintiff's actual wages.  The information included in the Daily Accounting of Plaintiff's Credit Card Sales and the Daily Accounting of Defendant-Employer's Gross Daily Sales for the days worked by plaintiff was sought in an effort to more fully calculate plaintiff's total income from tips.  However, the submitted information for the Daily Accounting of Defendant-Employer's Gross Daily Sales is not useful because there is no reliable way to determine plaintiff's total tip income for any specific day.
8.	Given the foregoing, the Full Commission finds that defendant-employer correctly calculated plaintiff's income from tips using the amount of $3,106.00 that she claimed as actual tips and correctly calculated plaintiff's wages for the hours worked at the base pay of $2.13.  Based upon the greater weight of the evidence presented, the Full Commission finds that plaintiff's average weekly wage was $233.65.
9.	Defendants offered plaintiff a job as a hostess in July and October of 2007. Plaintiff declined these positions and testified that she was unable to perform the hostess duties because the associated lifting requirements were beyond her physical restrictions.  In declining these hostess job offers, plaintiff relied upon her experience and knowledge of what the job duties of a hostess for defendant-employer were.  Plaintiff also relied upon her knowledge that hostesses for defendant-employer earned substantially less than defendant-employer's servers.
10.	There is conflicting testimony regarding the physical requirements of the hostess position.  Plaintiff testified that the physical demands of the position were beyond her twenty-five (25) pound lifting restriction.  However, Ms. Sylvia Morris, a hostess for defendant-employer, testified that the position did not require lifting more than twenty-five (25) pounds and that she had never lifted anything heavier than twenty-five (25) pounds during the course of her employment with defendant-employer as a hostess.
11.	After plaintiff went out of work, defendant-employer began a new salary system for hostesses and began paying hostesses a "tip out."  Pursuant to this policy, a hostess's tip-out would be based upon the number of customers served during their shift.  This policy, which allowed hostesses to earn wages in addition to their base salary, was not in effect when plaintiff worked for defendant-employer.  However, the date that this new policy took effect is unclear from the evidence.
12.	When plaintiff worked for defendant-employer prior to her injury, hostesses earned $7.00 to $7.50 per hour, compared to approximately $10.00 per hour earned by servers.  The evidence indicates that currently defendant-employer's hostesses earn wages substantially similar to those of servers, a wage level higher than what was earned by hostesses when plaintiff worked for defendant-employer.
13.	Considering the change in defendant-employer's hostess pay policy subsequent to plaintiff's injury, plaintiff may not have been aware of the new policy at the time of her refusals and her refusals of the hostess position were therefore justified at the time.
14.	In a medical note dated 3 July 2007, plaintiff was released by Dr. Walsh to return to work with a permanent lifting restriction of twenty-five (25) pounds.  Also as of that date, Dr. Walsh opined that plaintiff had reached maximum medical improvement and assigned a five percent (5%) permanent partial impairment rating to her back.
15.	One of plaintiff's friends owns or manages a dog kennel and plaintiff sporadically worked at this kennel subsequent to her injury.  This position was quasi-volunteer in nature and plaintiff was able to come and go as her physical condition allowed.  Plaintiff's sporadic light work for the kennel is not indicative of her ability to attain and sustain competitive employment.  Furthermore, this work is not indicative of her wage earning capacity and does not constitute suitable employment.
16.	On 25 September 2007, Dr. Walsh approved the job description of the hostess positions offered by defendant-employer to plaintiff.
17.	The evidence establishes that up to the time of the filing of Deputy Commissioner Gillen's Opinion and Award on 8 October 2008, the hostess position remained available to plaintiff and defendant-employer would have hired plaintiff in that job.  The Full Commission finds as fact that Deputy Commissioner Gillen correctly determined in his Opinion and Award of 8 October 2008, that plaintiff's continued refusal to return to work for defendant-employer in the hostess position was unjustified.
18.	Based upon the credible medical and vocational evidence of record, and as a result of her 7 October 2006 compensable injury by accident, plaintiff was unable to earn wages in her former position with defendant-employer or in any other employment from 11 October 2006, through the date of the filing of Deputy Commissioner Gillen's Opinion and Award on 8 October 2008, with the exception of the period during which plaintiff was able to work at reduced wages.
19.	The Full Commission has considered the methods for calculating average weekly wages set forth in N.C. Gen. Stat. §97-2(5) and finds the third method to be appropriate in this case.  The first method is inappropriate as plaintiff worked less than fifty-two (52) weeks immediately preceding her injury.  The second method is inappropriate as it applies to an employee who has worked fifty-two (52) weeks but missed more than seven consecutive days during that period.  The third method applies to employees who worked less than fifty-two (52), weeks, and calculates the average weekly wage by dividing the actual total earnings by the number of weeks worked, provided the results are fair and just to both parties.  This method generates an average weekly wage for plaintiff of $233.65, which yields a weekly compensation rate of $155.77.  Given the circumstances of this case, this result is fair and just to both parties and this method of computation is appropriate.  The fourth and fifth methods are therefore not applicable in this case.
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Based on the foregoing Stipulations and Findings of Fact, the Full Commission enters the following:
CONCLUSIONS OF LAW
1.	On 7 October 2006 plaintiff sustained an injury by accident while working for defendant-employer.  N.C. Gen. Stat. §97-2(6).  Defendants accepted this accident as compensable pursuant to an Industrial Commission Form 60 dated 30 November 2006.  Perez v. American Airlines, 174 N.C. App. 128, 620 S.E.2d 288 (2005); Reinninger v. Prestige Fabricators, Inc., 136 N.C. App. 255, 523 S.E.2d 720 (1999); Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867 (1997).
2.	In this case, the application of the third method of calculation under N.C. Gen. Stat. §97-2(5) is appropriate.  Together with the greater weight of the evidence regarding plaintiff's verifiable earnings, this computation results in an average weekly wage for plaintiff of $233.65, which yields a weekly compensation rate of $155.77.  N.C. Gen. Stat. §97-2(5).
3.	The Form 60 filed in this matter does not create a presumption of continuing disability and, therefore, the burden of proving compensable disability remains with plaintiff.  Sims v. Charmes/Arby's Roast Beef, 142 N.C. App. 154, 542 S.E.2d 277 (2001).  In this case, plaintiff has produced sufficient evidence to prove that her admittedly compensable 7 October 2006 work injury caused her subsequent disability through the date of the filing of Deputy Commissioner Gillen's Opinion and Award on October 8, 2008.  N.C. Gen. Stat. §97-29; Russell v. Lowes Prod. Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993).
4.	Pursuant to Dixon v. City of Durham, 128 N.C. App. 501, 495 S.E. 2d 380 (1998), the suitability of an offered position is not limited to a consideration of physical suitability.  The "similarity of the wages or salary of the pre-injury employment and the post-injury job offer" must also be considered.  Id.  Given plaintiff's reasonable misapprehension regarding the wages paid to hostesses and the physical requirements of the position, plaintiff's refusals of that position were justified through the date of the filing of Deputy Commissioner Gillen's Opinion and Award on October 8, 2008.  Dixon v. City of Durham, 128 N.C. App. 501, 495 S.E. 2d 380 (1998); N.C. Gen. Stat. §97-32.
5.	Given that the new wage policy for hostesses was made known to plaintiff in Deputy Commissioner Gillen's Opinion and Award, as of the date of its filing on October 8, 2008, plaintiff's refusal to return to work for defendant-employer in the hostess position was unjustified.  N.C. Gen. Stat. §97-32.
6.	Based on the credible medical and vocational evidence of record, and as a result of her 7 October 2006 compensable injury by accident, plaintiff is entitled to be paid by defendants total disability compensation at the rate of $155.77 per week for the period of 11 October 2006 through the date of the filing of Deputy Commissioner Gillen's Opinion and Award on 8 October 2008, with the exception of the period during which plaintiff was able to work at reduced wages and received temporary partial disability benefits.  N.C. Gen. Stat. §97-29; Russell v. Lowes Prod. Distribution, 108 N.C. App. 762 (1993).
7.	Regarding plaintiff's work at the kennel; an employer may rebut the presumption of continuing disability through evidence "that suitable jobs are available to the employee and that the employee is capable of getting one, taking into account the employee's physical and vocational limitations."  Franklin v. Broyhill Furniture Industries, 123 N.C. App. 200, 472 S.E.2d 382, cert. denied, 344 N.C. 629, 477 S.E.2d 39 (1996).  "[M]ere proof of a return to work is insufficient to rebut the . . . presumption," because "capacity to earn is the benchmark test of disability."  Kisiah v. W.R. Kisiah Plumbing, 124 N.C. App. 72, 476 S.E.2d 434 (1996), disc. review denied, 345 N.C. 343, 483 S.E.2d 169 (1997).  Given the foregoing, plaintiff's sporadic light work for the kennel was not "suitable employment" such as to establish a capacity to earn competitive wages.  Id.
8.	As the result of her 7 October 2006, admittedly compensable injury by accident, plaintiff is entitled to be paid by defendants permanent partial disability compensation at the rate of $155.77 per week for a period of fifteen (15) weeks for the five percent (5%) impairment rating to her back.  N.C. Gen. Stat. §97-31(23).
9.	Subject to the provisions of N.C. Gen. Stat. §97-25.1, plaintiff is entitled to have defendants provide all medical treatment, incurred or to be incurred, necessitated by the admittedly compensable injury, when the medical bills have been approved according to established Industrial Commission procedures.  N.C. Gen. Stat. §§97-25; 97-25.1.
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Based on the foregoing Findings of Fact and Conclusions of Law, the Full Commission enters the following:
A W A R D
1.	Based upon the credible medical and vocational evidence of record, and as the result of her 7 October 2006 compensable injury by accident, defendants shall pay to plaintiff total disability compensation at the rate of $155.77 per week for the period of October 11, 2006 date of the filing of Deputy Commissioner Gillen's Opinion and Award on October 8, 2008, with the exception of the period during which plaintiff was able to work at reduced wages and received temporary partial disability benefits.  Having accrued, subject to the attorney's fee approved herein, this compensation shall be paid to plaintiff in a lump sum.
2.	Defendants shall pay to plaintiff permanent partial disability compensation at the rate of $155.77 per week for a period of fifteen (15) weeks for the five percent (5%) impairment rating to her back.  Having accrued, subject to the attorney's fee approved herein, this compensation shall be paid to plaintiff in a lump sum.
3.	Defendants shall pay all of plaintiff's medical expenses incurred or to be incurred as a result of her 7 October 2006 admittedly compensable injury by accident, subject to the provisions of N.C. Gen. Stat. §97-25.1, when the medical bills have been approved according to established Industrial Commission procedures.
4.	A reasonable attorney fee of twenty-five percent (25%) of the compensation due plaintiff under paragraph 1 of this Award is approved for plaintiff's counsel and shall be paid as follows:  Twenty-five percent (25%) of any lump sum due plaintiff shall be deducted and paid directly to plaintiff's counsel.
5.	Defendants shall pay the costs.
This the __ day of October 2009.



			S/			
BERNADINE S. BALLANCE
COMMISSIONER


CONCURRING:



			S/			
PAMELA T. YOUNG
CHAIR



			S/			
STACI T. MEYER
COMMISSIONER

I.C. No. 677965	Page 12

Code:  223