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Chavis v. TLC Home Health Care8/16/2005
97-2(5) (2004). On this issue the full Commission found the following finding of fact:
25. Plaintiff's average weekly wage cannot be determined based upon the Form 22 wage chart alone, because it does not reflect what plaintiff was paid for mileage. Plaintiff's mileage reimbursement must be included in the calculation of her average weekly wage because she was paid mileage in lieu of wages.
Because we are bound by the findings of the full Commission so long as there is some evidence of record to support them, we must disagree with TLC Home Health Care's argument. See Morrison, 304 N.C. at 6, 282 S.E.2d at 463. On all forms submitted to the Industrial Commission, TLC Home Health Care indicated that Ms. Chavis's average weekly wage was "to be determined." TLC Home Health Care submitted Form 22 to the Industrial Commission indicating "N/A" in response to the question: "Was this employee given free rent, lodging, or board or other allowances made in lieu of wages?" But Ms. Chavis testified that she was paid mileage reimbursement rather than an hourly wage when driving to and from different patients' houses during the work day. Ms. Locklear confirmed this payment arrangement. As Ms. Chavis was performing her job duties while driving from one patient's house to another, but was not paid an hourly wage during this time, there is competent evidence to support the finding that Ms. Chavis was paid mileage in lieu of wages, and the full Commission properly included the mileage in her average weekly wage. See, e.g., Shah v. Howard Johnson, 140 N.C. App. 58, 66, 535 S.E.2d 577, 582 (2000), disc. review denied, 353 N.C. 381, 547 S.E.2d 17 (2001) (full Commissionproperly included the value of the plaintiff's hotel room provided to him in lieu of wages).
Next, TLC Home Health Care argues that the full Commission erred in concluding that TLC Home Health Care must provide medical treatment should it become necessary. TLC Home Health Care failed to cite any authority in support of this argument in its brief; therefore, it is deemed abandoned. N.C. R. App. P. 28(b)(6).
Next, TLC Home Health Care argues that the full Commission erred in concluding that Ms. Chavis was temporarily and totally disabled from 26 October 2000 to 9 April 2001 because she was capable of performing sedentary work. We disagree.
To receive compensation under section 97-29 of the North Carolina General Statutes, a claimant has the burden of proving the existence of a disability as well as its extent. N.C. Gen. Stat. § 97-29 (2004). Section 97-2(9) of the North Carolina General Statutes defines "disability" as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." N.C. Gen. Stat. § 97-2(9) (2004). Thus, the claimant's burden is to show that because of injury his earning capacity is impaired. Russell v. Lowes Prod. Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993). The burden is on the employee to show that he is unable to earn the same wages he had earned before the injury, either in the same employment or in other employment. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). "Once the burden of disability is met, there is a presumption that disability continues until 'theemployee returns to work at wages equal to those he was receiving at the time his injury occurred.'" Simmons v. Kroger Co., 117 N.C. App. 440, 443, 451 S.E.2d 12, 14 (1994) (quoting Watkins v. Cent. Motor Lines, Inc., 279 N.C. 132, 181 S.E.2d 588 (1971)). The burden then shifts to the employer to produce evidence that the claimant is employable. Burwell v. Winn-Dixie Raleigh, Inc., 114 N.C. App. 69, 73, 441 S.E.2d 145, 149
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