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[T] Rhodes v. Hersek Express6/3/2003
ted out any fines, tickets or damages to the truck which may have been received or sustained by plaintiff.
5. Plaintiff's average weekly wage is determined by the Full Commission to be $600.00, yielding a weekly compensation rate of $400.02. The evidence shows that plaintiff was paid $600.00 per trip and each trip took between five and seven days. The payroll records offered by defendant do not show any itemized per diem amounts which were allegedly deducted from his wages and paid in cash; therefore, the records are not indicative of the wages actually paid to plaintiff. The amounts deducted from plaintiff's wages for fines, tickets or damages to the truck should not be used to demonstrate a lower average weekly wage. Accordingly, the Full Commission finds that establishing plaintiff's wages by using the base pay for each weekly trip most nearly approximates the amount which plaintiff would have earned had he not been injured.
N.C. Gen. Stat. § 97-2(5) provides that an employee's average weekly wages are determined by dividing the earnings by the number of weeks and parts of weeks worked. However, where this general method "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 injuredemployee would be earning were it not for the injury ." N.C. Gen. Stat. § 97-2(5).
Plaintiff testified that he understood his weekly salary was $600.00. His co-worker testified that their base salary for the California trip was also $600.00. Defendant's payroll supervisor testified that expenses and advances as well as the per diem normally were deducted from the $600.00 base salary and the employee was given a check for the remainder, thus accounting for the lower amount of wages appearing on plaintiff's W-2 form.
The Commission found that calculating plaintiff's average wages using his base salary of $600.00 per trip most nearly approximated the amount he would have earned. This finding is supported by competent evidence of record and we are bound by the Commission's determination on this matter. We hold this assignment of error has no merit.
AFFIRMED.
Judges WYNN and TYSON concur.
Report per Rule 30(e).
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