AWW. Something is on the rise

(Update 2/11/22 at bottom)

So I know it's been a while. Not much has been going on at the appellate level in comp, until now. This is one to watch because the big dogs (amicus briefs) are getting involved.

Luon Nay v. Cornerstone Staffing Solutions is basically a fight about how to calculate the average weekly wage of an employee of a staffing agency. This case is just now being briefed at the Appeallates so sit tight.

From the Plaintiff's bar, we've had some tough cases come down in the last some odd years. Tedder and Thompson have basically allowed insurance companies to collect high premiums and pay out very little under the guise that "temporary workers" have no idea how long they'll be working so it's unfair to base their worker's comp benefits on what they were making.

Yea, I know, that sounds kinda dumb. But that's what those 2 opinions said.

Now there are a bunch of factual scenarios in these types of cases that can swing the argument one way or the other. Like, was the worker just working the holiday season and didn't have a job for the rest of the year? Or, was the worker in a temp to hire position (many manufacturing companies use staffing agencies for this exact purpose, so they don't have the do the leg work of getting workers in the door who ultimately suck) where most folks got hired on permanently after a 90 day review period, if they in fact, don't suck?

What the courts seem to have lost sight of is that the statute, NCGS 97-2(5), talks about fairness and using a wage indicator that would closely approximate what the employee "would be earning were it not for the injury." Having worker's comp pay a person $30/week when that employee was making $400/week isn't fair and it doesn't closely approximate anything; other than higher profits for insurance companies (which last time I read it, wasn't in the worker's compensation act of this state).

Update: 2/11/22

The Supremes have spoken on this issue. Kinda. The Appellates had told the Commission they used the wrong method (#5) and should have used (#3). The Supremes refused to go as far as the Appellates did in telling the Commission how to calculate the average weekly wage under Method 3, but the Supremes did remand and instruct the Commission to use use method 5 but the previous way the Commission used 5 wasn't fair. Basically saying you can't just divide by 52 given these circumstances. Determine the wage that “most nearly approximates the amount which the injured employee would be earning….in the employment in which he was working at the time of injury.”