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Sims v. Charmes/Arby's Roast Beef2/6/2001
our reading of both the statute and the decision in Olivares-Juarez, this Court must agree. The burden of proving disability, therefore, remains with plaintiff.
Plaintiff next contends the Commission erred when it determined plaintiff had failed to prove his temporary total disability because he had earned income from self-employment businesses during the period in which he collected workers' compensation payments. Specifically, plaintiff asserts that since he conducted these businesses before his injury, the businesses represented concurrent employment and could not be considered when determining whether his earning capacity had diminished as a result of his injury.
Under the Workers' Compensation Act, a disability is defined as an "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). Thus, an employee who cannot command wages in the competitive job market because of injury will be classified as disabled under the statute. An employee's earning capacity "is based on his ability to command a regular income in the labor market." McGee v. Estes Express Lines, 125 N.C. App. 298, 300, 480 S.E.2d 416, 418 (1997). In McGee, this Court held that an employee's ownership of a business could support a finding of earning capacity if the employee is actively engaged in the business, but only if the work involves skills marketable in the labor market. Id. Thus, the relevant inquiry, even in circumstances involving an employee's on-going business operations, is whether the injury has diminished the employee's earning capacity.
In the present case, the Full Commission found that plaintiff operated three businesses following his injury on 25 October 1994, and that gross profits from these businesses expanded considerably in 1995 compared to 1994 figures. According to the Commission, plaintiff's photography and Race Fan businesses increased gross profits from $14,360.00 in 1994 to $23,580.00 in 1995. Based in part on these findings, the Commission concluded this increase in gross profits reflected plaintiff's ability to earn wages. Further, the Commission found plaintiff made no attempt to find employment between 25 October 1994 and 25 July 1995; in fact, he did not accept a new job until 29 July 1996, when he was hired as a manager-trainee at K-Mart. Plaintiff has the burden of proving " . . . not only that he had obtained no other employment but that he was unable to obtain other employment." Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982) (emphasis in original). Here, the Commission found that plaintiff failed to prove he was unable to earn income as a result of his on-the- job injury; indeed, the evidence shows that plaintiff earned income throughout the time he received temporary disability payments from defendants. The Commission's finding that plaintiff failed to sustain his burden of proving temporary total disability between 25 October 1994 and 25 July 1995 is supported by competent evidence. Plaintiff's assignment of error is therefore overruled.
Finally, plaintiff assigns as error the Commission's method of calculating his average weekly wage pursuant to G.S. § 97-2(5). Because of his brief period of employment, plaintiff contends his wage should have been calculated using a comparable employee's 52-week wage. We disagree.
G.S. § 97-2(5) establishes several methods for calculating wages under the Workers' Compensation Act. As pertinent to this appeal, the statute provides:
Where the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that per
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