The North Carolina Court of Appeals addressed this issue in a case decided on August 7, 2012. In Tunell v. Resource Manufacturing/Prologistix, COA 12-103, the Court reversed the Industrial Commission’s decision (IC# W77904) with regard to the calculation of the employee’s post-injury earnings.
Mr. Tunell held two jobs when he was hurt in his full time position with the Defendant. He was unable to return to work in that full time job. Before and after his injury, he also worked part time for a retailer, Ross Dress-for-Less. The Deputy Commissioner, after a hearing, entered an Award holding that Mr. Tunell was entitled to temporary partial compensation based on his pre-injury earnings at the full time job, less the money he made working at Ross every week after he returned to work. The employee appealed and the Full Commission upheld this method of calculating temporary partial. He appealed again to the Court of Appeals. That Court reversed the Full Commission, and held that the insurance company and Resource could not count his post-injury earnings at Ross against what they owed him for not being able to return to his full time job. However, if he increased his hours and earnings at Ross over what he made there before the injury, then they could count that increase against what they owed.
I think the Court of Appeals got this right. Now, for the first time, we have clear guidance from our courts on how to calculate post-injury disability when concurrent employment is involved.
If you are in this situation in North Carolina and would like to know more about this, contact attorney Bob Bollinger for a free, no obligation consultation. Mr. Bollinger can be contacted at the numbers or the contact form on this blog.