NO. COA14-551

NORTH CAROLINA COURT OF APPEALS

Filed: 16 December 2014

KEITH TEDDER,

Employee, Plaintiff,

v. North Carolina

Industrial Commission

I.C. No. X41641

A&K ENTERPRISES, 

Employer,

and

PROTECTIVE INSURANCE COMPANY, 

Carrier, Defendants.

Appeal by defendants from opinion and award entered 10 

March 2014 by the North Carolina Industrial Commission. Heard 

in the Court of Appeals 6 October 2014.

Goodman McGuffey Lindsey & Johnson, LLP, by Michael A. 

Cannon, for defendants-appellants.

David Gantt Law Office, by David Gantt, for plaintiffappellee.

DIETZ, Judge.

This workers’ compensation case concerns the proper method 

of calculating average weekly wages for temporary employees. 

After two years of unemployment and a few months in a low-paying 

seasonal job, Plaintiff Keith Tedder began a seven-week 
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temporary position with Defendant A&K Enterprises that paid $625

per week. 

Unfortunately, Tedder injured his back after the first week 

in this temporary position and could not continue working. He 

then applied for workers' compensation benefits. In awarding 

benefits, the Industrial Commission calculated Tedder’s average 

weekly wage at $625, despite finding that Tedder was a temporary 

employee, that he could not expect to earn that wage full time, 

and that the $625 calculation was “unfair” to A&K.

The Commission’s calculation cannot be sustained. The

purpose of the average weekly wage calculation is to approximate 

what the employee would be earning were it not for the injury, 

not to provide an earnings safety net for the chronically 

unemployed or underemployed.

Consistent with this statutory purpose, we hold that in

calculating average weekly wages for employees in temporary 

positions, the Commission must take into account the number of 

weeks the employee would have been employed in that temporary 

position relative to a 52-week time period. Here, the short 

duration of Tedder’s temporary employment must result in an 

average weekly wage that is substantially less than $625. 

Accordingly, although we affirm the Commission’s conclusion that 
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Tedder is eligible for temporary total disability compensation, 

we reverse the Commission’s average weekly wage determination 

and remand for a new determination consistent with this opinion.

Factual Background

I. Tedder’s Employment History

Keith Tedder is a 48-year-old single father whose work 

experience consists entirely of heavy lifting and driving 

trucks. Over the years, Tedder has worked as a delivery driver 

for a number of different companies, loading and unloading items 

weighing up to 150 pounds. In June 2004, while delivering 

packages for an employer in Asheville, Tedder injured his back. 

He later settled his workers’ compensation claim with that

employer.

To alleviate the pain resulting from his 2004 injury,

Tedder underwent a right L4-5 laminectomy and discectomy on 7 

November 2005. Dr. Michael Goebel, who performed the surgery, 

noted that Tedder experienced a surprising recovery. On 14 

February 2006, Dr. Goebel found that Tedder had reached maximum 

medical improvement and assigned a 10% permanent partial 

impairment rating to his back. He released Tedder to mediumduty work, placing permanent restrictions on lifting more than 

fifty pounds, as well as limitations on bending, stooping, 
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twisting, squatting, crouching, and prolonged sitting or 

standing. 

After his release from Dr. Goebel’s care in April 2006,

Tedder did not find a job until March 2007, when he began 

working for Carolina Mulch as a delivery driver. He worked that 

job for eighteen months before being laid off in September 2008. 

While at Carolina Mulch, Tedder was able to perform all the 

duties of a delivery driver, including loading and unloading 

very heavy items without difficulty. He regularly exceeded Dr. 

Goebel’s permanent restrictions without incident. Although he 

occasionally experienced a sore back when he worked overtime, 

Tedder did not seek any medical assistance for his back while 

working for Carolina Mulch. 

After being laid off from Carolina Mulch in September 2008, 

Tedder was unemployed for more than two years. In November 

2010, Tedder accepted a position with Volt Management 

Corporation, a temporary staffing agency that contracted with 

Federal Express to provide extra delivery drivers during the 

press of the holiday season. Tedder worked approximately eight 

to ten hours per day, two days per week for Volt, earning at 

most $260 per week. Tedder did not seek any medical treatment 

for his back during his employment with Volt.
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II. Tedder’s Job at A&K

In February 2011, as Tedder’s seasonal work at Volt drew to 

a close, Defendant A&K Enterprises asked Volt for 

recommendations to fill an open position for a temporary 

delivery driver. A&K is a small “mom-and-pop” delivery company 

and subcontractor for Federal Express. The company hires 

temporary employees during the peak holiday season and also on 

an as-needed basis. A&K was searching for a temporary employee 

to fill in for one of its full-time delivery drivers who was

scheduled to undergo surgery. A&K anticipated that the fulltime employee would be absent for seven weeks on medical leave.

Volt referred Tedder to A&K, and A&K ultimately hired

Tedder as a temporary driver working five days per week for $625 

per week. The Full Commission expressly found that Tedder was 

“a temporary employee hired to work for a limited time period of 

seven weeks.”

III. Tedder’s Injury and Ongoing Treatment

On 8 March 2011, just one week after beginning his 

temporary employment with A&K, Tedder felt a sharp pain in his 

lower back while bending over to pick up a package. He was able 

to complete the remainder of his shift, but the route took him 

twice as long due to intense pain in his lower back. The next 
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day, Tedder called to inform the owners of A&K that he was 

unable to work due to the pain he was experiencing. A&K hired 

another temporary worker to cover the remainder of its full-time 

employee’s seven-week medical leave. 

Following his 8 March 2011 injury, Tedder sought care from 

a number of medical professionals to address the pain in his 

back. Despite this ongoing care, however, Tedder continued to 

experience sharp pain in his lower back, as well as pain and 

numbness in his left buttock, leg, and foot. He scheduled an 

appointment at the Carolina Spine & Neurosurgery Center in early 

2012, where he was examined by Dr. John Silver. Dr. Silver, a 

board certified neurosurgeon, determined that the 8 March 2011 

accident exacerbated Tedder’s pre-existing back condition. He 

recommended that Tedder undergo a Functional Capacity Evaluation 

to determine his physical limitations. Dr. Silver referred 

Tedder for an epidural injection and for additional evaluation 

with Dr. Margaret Burke. 

Before beginning treatment with Dr. Burke, Tedder underwent 

an independent medical evaluation (at Defendants’ request) with 

Dr. Richard Broadhurst, an expert in occupational and 

environmental medicine. Dr. Broadhurst recommended that until 

he receive further treatment, Tedder could return to work at the 
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sedentary level with a ten pound maximum lifting restriction, 

along with significant limitations on movement.

Tedder began treatment under the care of Dr. Burke, a 

physiatrist, on 29 March 2012. Dr. Burke diagnosed Tedder with 

chronic left L5 radiculopathy and prescribed a course of 

physical therapy. In her deposition testimony, Dr. Burke stated 

that Tedder’s condition was not purely degenerative in nature, 

and that the 8 March 2011 accident exacerbated Tedder’s preexisting back condition. Tedder has continued treatment with 

Dr. Burke, who is his ongoing pain management physician. As of 

the date of her post-hearing deposition conducted 14 January 

2013, Dr. Burke had not released Tedder at maximum medical 

improvement.

Since his injury in March 2011, Tedder has not returned to 

employment with A&K or any other employer. Tedder filed for 

workers’ compensation benefits on 2 May 2011. A&K and its 

insurer denied the compensability of the claim. Deputy 

Commissioner Myra L. Griffin granted Tedder’s claim in an 

opinion and award filed 15 April 2013, determining that he was 

entitled to temporary total disability compensation and 

calculating his statutory average weekly wages at $625 per week. 

Defendants timely appealed to the Full Commission.
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The Full Commission, in a unanimous decision by 

Commissioners Pamela T. Young, Bernadine Ballance, and Danny Lee 

McDonald, affirmed the deputy commissioner’s award on 10 March 

2014. Defendants timely appealed to this Court.

Analysis

Our review of a decision of the Industrial Commission “is 

limited to determining whether there is any competent evidence 

to support the findings of fact, and whether the findings of 

fact justify the conclusions of law.” Cross v. Blue Cross/Blue 

Shield, 104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991). 

The findings of the Commission are conclusive on appeal where

competent evidence exists, “even if there is plenary evidence 

for contrary findings.” Hardin v. Motor Panels, Inc., 136 N.C. 

App. 351, 353, 524 S.E.2d 368, 371 (2000). We review the Full 

Commission’s conclusions of law de novo. Conyers v. New Hanover 

Cnty. Sch., 188 N.C. App. 253, 255, 654 S.E.2d 745, 748 (2008).

I. Computation of Tedder’s Average Weekly Wages

Defendants first challenge the Commission’s computation of 

Tedder’s average weekly wages. “The determination of the 

plaintiff's ‘average weekly wages’ requires application of the 

definition set forth in the Workers' Compensation Act, and the 

case law construing that statute[,] and thus raises an issue of 
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law, not fact.” Boney v. Winn Dixie, Inc., 163 N.C. App. 330, 

331-32, 593 S.E.2d 93, 95 (2004) (citation and internal 

quotation marks omitted). We therefore review the Commission’s 

calculation of Tedder’s average weekly wages de novo. Id.

Average weekly wages are determined by calculating the 

amount the injured worker would be earning but for his injury. 

Loch v. Entm’t Partners, 148 N.C. App. 106, 111, 557 S.E.2d 182, 

185 (2001). The calculation is governed by N.C. Gen. Stat. § 

97-2(5), which sets out five distinct methods for calculating an 

injured employee’s average weekly wages. Conyers, 188 N.C. App. 

at 255, 654 S.E.2d at 748. The five methods are ranked in order 

of preference, and each subsequent method can be applied only if 

the previous methods are inappropriate. Id. Methods 1, 3, and 

5 are relevant in this case:

[Method 1] “Average weekly wages” shall mean 

the earnings of the injured employee in the 

employment in which the employee was working 

at the time of the injury during the period 

of 52 weeks immediately preceding the date 

of the injury, . . . divided by 52 . . . . 

. . . .

[Method 3] Where the employment prior to the 

injury extended over a period of fewer 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; 
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provided, results fair and just to both 

parties will be thereby obtained.

. . . .

[Method 5] 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. Gen. Stat. § 97-2(5) (2013).1

Under this statutory hierarchy, when an employee has worked 

at his job continuously for the preceding 52 weeks, average 

weekly wages must be calculated under Method 1 by simply 

dividing the total earnings during that 52-week period by 52. 

The Commission found, and we agree, that this method is 

inappropriate because Tedder only worked at A&K for one week, 

nowhere near the 52 weeks necessary to use Method 1.

Method 3 can be used when the employee was on the job less

than 52 weeks. Under Method 3, average weekly wages are

calculated by dividing the total earnings on the job by the 

number of weeks (or portions of weeks) the employee worked. 

Under Method 3, Tedder’s average weekly wage is $625, a figure 

 

1 The Commission determined, and the parties concede, that 

Methods 2 and 4 are inapplicable to the factual circumstances of 

this case, and therefore we need not address those methods in 

this opinion.
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obtained by dividing his total earnings, $625, by the total 

number of weeks worked, one. But Method 3 can be used only if 

“results fair and just to both parties will be thereby 

obtained.” N.C. Gen. Stat. § 97-2(5). Here, the Commission 

found as fact that Tedder was “a temporary employee hired to 

work for a limited time period of seven weeks.” Based on this

finding, the Commission determined, and we agree, that Method 3 

is inappropriate because the result “would be unfair . . . due 

to the temporary nature of the employment relationship shared by 

defendant-employer and plaintiff.” 

Having determined that Methods 1 and 3 were inappropriate

(and that Methods 2 and 4 were inapplicable), the Commission 

resorted to Method 5. This “catch-all” method does not dictate 

any particular methodology; it instructs the Commission to 

employ whatever method “will most nearly approximate the amount 

which the injured employee would be earning were it not for the 

injury.” N.C. Gen. Stat. § 97-2(5). It is available only where 

use of the previous four methods “would be unfair.” Id. 

The Commission, ostensibly applying Method 5, determined 

that Tedder’s average weekly wage was $625—effectively treating 

Tedder as if he was a full-time, permanent employee of A&K. We 

reject this computation because it squarely conflicts with the 
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statute’s unambiguous command to use a methodology that “will 

most nearly approximate the amount which the injured employee 

would be earning were it not for the injury.” N.C. Gen. Stat. § 

97-2(5). As the Commission found, Tedder would have earned that 

$625 wage for no more than seven weeks, until his temporary job 

ended. He would then be unemployed and searching for work, as 

he was for most of the preceding two years. Indeed, a $625 per 

week wage so vastly overstates Tedder’s actual “average”

earnings that, when applying Method 3, the Commission expressly 

found that a $625 average weekly wage was “unfair” to A&K. 

Accordingly, we must reverse and remand this case for a new 

average weekly wage calculation.

We leave it to the Commission on remand to determine the

appropriate average weekly wage consistent with the statutory 

language of Section 97-2(5). However, to assist with that 

calculation, we provide the following guidance based on existing 

precedent from our appellate courts.

First, the Supreme Court’s decision in Joyner v. A.J. 

Carey Oil Co., 266 N.C. 519, 146 S.E.2d 447 (1966), is 

instructive. In Joyner, the claimant was a relief truck driver 

who worked only as needed. Id. at 519-20, 146 S.E.2d at 448. 

The Court described the driver’s employment as “inherently part-
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time and intermittent.” Id. at 522, 146 S.E.2d at 450. In 

calculating the driver’s average weekly wage, therefore, the 

Court held that it was unfair to the employer not to take into 

consideration both peak and slack periods in the plaintiff’s 

employment. Id. Accordingly, the Supreme Court held that the 

employee’s average weekly wages should be calculated under the 

fifth method by taking the total wages he actually earned in the 

52 weeks prior to his injury and dividing that amount by 52, the 

number of weeks in a year. Id.

This Court later applied Joyner to cases involving 

employees who worked only part of the year. See Conyers, 188 

N.C. App. at 260-61, 654 S.E.2d at 751-52. In Conyers, the 

plaintiff was a bus driver who worked ten months per year. Id.

at 254, 654 S.E.2d at 747. We held that the fifth method was 

most appropriate to take into account the slack periods in the 

plaintiff’s employment. Id. at 261, 654 S.E.2d at 751. Noting

that the purpose of the calculation is to “most nearly 

approximate the amount which the [bus driver] would be earning 

were it not for the injury,” we held that the plaintiff’s 

average weekly wages should be determined by dividing the wages 

she earned in the 52 weeks before her accident by 52. Id.
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Finally, in Thompson v. STS Holdings, Inc., 213 N.C. App. 

26, 33, 711 S.E.2d 827, 831 (2011), this Court addressed the 

average weekly wage calculation for an employee who worked 

contract jobs for various employers throughout the year. At the 

time of his injury, the employee had worked a total of 14 days 

for his current employer. Id. at 28, 711 S.E.2d at 828. This 

Court held that the employee’s contract work for other employers 

during the year could not be considered in calculating his 

average weekly wages. Id. at 33-34, 711 S.E.2d at 831-32. We

again held, as we did in Conyers, that an employee’s average 

weekly wages under Method 5 should be calculated by taking the 

“wages earned by [the employee] while in the employ of [the 

current employer] in a fifty-two week period, then dividing that 

amount by fifty-two.” Id. at 33, 711 S.E.2d at 831.

In light of Joyner, Conyers, and Thompson, we hold that in

calculating average weekly wages for employees in temporary 

positions, the Commission must consider the number of weeks the 

employee would have been employed in that temporary position 

relative to a 52-week time period. One approach that would 

satisfy this requirement is to calculate the total amount the 

employee would have earned in the temporary position and divide

that amount by 52. We do not suggest that this is the only
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appropriate methodology in every case, as the intent of Method 5 

is to provide flexibility in reaching a result that “will most 

nearly approximate the amount which the injured employee would 

be earning were it not for the injury.” N.C. Gen. Stat. § 97-

2(5). But in this case, and others with similar facts, we hold 

that calculating the total amount the employee could expect to 

earn in the temporary position, and then dividing that amount by 

52, is an appropriate means of approximating the amount the 

injured employee would be earning were it not for the injury. 

We are mindful that this methodology, when applied to 

Tedder, will result in a compensation rate only slightly above 

the statutory minimum. But treating Tedder as if his “average 

weekly wages” were $625—in other words, treating Tedder as if he 

had a history of long-term, full-time employment in his 

temporary position at A&K—is a financial windfall for Tedder and 

an unjust result for A&K. This, in turn, violates the guiding 

principle and primary intent of the statute—obtaining “results 

that are fair and just to both employer and employee.” Conyers, 

188 N.C. App. at 256, 654 S.E.2d at 748. Accordingly, we 

reverse and remand this case to the Industrial Commission to 

recalculate Tedder’s average weekly wages consistent with this 

opinion.
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II. Determination of Temporary Total Disability

Defendants next argue that the Commission erred by 

concluding that Tedder is entitled to ongoing temporary total 

disability payments. Defendants’ argument is straightforward. 

In 2004, Tedder suffered a compensable back injury. In 2006, 

Tedder’s treating physician, Dr. Goebel, found that Tedder had 

reached maximum medical improvement and assigned a permanent 

“medium-duty” restriction on lifting more than fifty pounds as

well as limits on bending, stooping, twisting, squatting, 

crouching, and prolonged sitting or standing. Dr. Goebel never 

lifted that permanent restriction.

After his 2011 injury, Tedder again underwent treatment. 

His treating physician, Dr. Burke, testified that, as of 9

January 2013, she believed Tedder had shown improvement and that 

“I think anything up to medium would be fine.” Defendants argue 

that, because Tedder had medium-duty work restrictions before 

his 2011 injury, and had returned to medium-duty work capacity

as of 9 January 2013, he was no longer disabled under the terms 

of the Workers’ Compensation Act. For the reasons that follow, 

we reject this argument and affirm the Commission’s finding that 

Tedder is entitled to ongoing disability payments.
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The definition of disability under the Workers’ 

Compensation Act “specifically relates to the incapacity to earn 

wages, rather than only to physical infirmity.” Medlin v. 

Weaver Cooke Constr., LLC, ___ N.C. ___, ___, 760 S.E.2d 732, 

736 (2014). In Medlin, our Supreme Court reaffirmed the test

for establishing disability under the Workers’ Compensation Act

set out in Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 

S.E.2d 682 (1982). Hilliard articulated three factual elements

that a plaintiff must prove to support the legal conclusion of 

disability:

We are of the opinion that in order to 

support a conclusion of disability, the 

Commission must find: (1) that plaintiff was 

incapable after his injury of earning the 

same wages he had earned before his injury 

in the same employment, (2) that plaintiff 

was incapable after his injury of earning 

the same wages he had earned before his 

injury in any other employment, and (3) that 

this individual’s incapacity to earn was 

caused by plaintiff’s injury.

Id. at 595, 290 S.E.2d at 683.

Defendants contend that Dr. Burke’s testimony proves Tedder

was able to return to medium-duty work as of 9 January 2013, the 

same work level he had before his 2011 injury. Thus, Defendants 

argue that Tedder’s inability to find work was not “caused by” 
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his 2011 injury because he had the same functional capacity in 

January 2013 that he had before his injury in 2011. 

We agree that the portion of Dr. Burke’s testimony on which

Defendants rely supports their position. But under the 

deferential standard of review afforded to decisions of the 

Industrial Commission, we must affirm if there is “any competent 

evidence” supporting its findings of fact, even if there is 

evidence supporting a contrary finding. See, e.g., Davis v. 

Harrah’s Cherokee Casino, 362 N.C. 133, 137, 655 S.E.2d 392, 

394-95 (2008). Here, although there is evidence supporting 

Defendants’ position, there is at least some competent evidence 

supporting the Commission’s contrary findings.

Dr. Burke’s testimony is not a model of clarity. Dr. Burke 

testified that “I certainly think [Tedder] can do a job. I 

think anything up to medium would be fine.” But she also 

testified that “I think at this point I would anticipate him 

being able to do medium work.” She explained that while she 

expects this to be the case, she had not yet completed a 

Functional Capacity Evaluation, “so I can’t be very specific 

about exactly what he could lift, carry, stoop, bend, and all 

those other things at this point.” Dr. Burke concluded that “it 

is my overall feeling of his level of functioning, that [medium-
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duty work] is what he’s going to be able to do.” Thus, Dr. 

Burke did not unequivocally conclude that Tedder was capable, as 

of 9 January 2013, of performing medium-duty work. Her 

testimony also could be interpreted as an indication that she 

anticipates he will be capable of medium-duty work in the future 

as he continues his treatment. 

Moreover, in addition to the somewhat ambiguous exchange 

above, Dr. Burke testified that while Tedder was “close” to 

achieving maximum medical improvement, he had not yet reached 

that point. She indicated that Tedder was still experiencing 

“some numbness and tingling in the left foot,” as well as “some 

tightness over the lumbar spine.” Finally, she opined that she 

did not believe Tedder would be “in the shape [he is] in now” 

but for the 8 March 2011 injury. 

Under the applicable standard of review, this testimony is 

competent evidence supporting the Commission’s finding that

Tedder was unable to continue work as a delivery driver because 

of his back injury. Accordingly, we affirm the Commission’s 

award of temporary total disability compensation.

Conclusion

For the foregoing reasons, we affirm the Industrial 

Commission’s conclusion that Plaintiff Keith Tedder is entitled 
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to temporary total disability compensation. We reverse and 

remand for a determination of average weekly wages consistent 

with this opinion. 

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

Chief Judge McGEE and Judge STEPHENS concur.