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Sims v. Charmes/Arby's Roast Beef2/6/2001
iod by the number of weeks and parts thereof during which the employee earned wages shall be followed; provided, results fair and just to both parties will be thereby obtained. Where, by reason of a shortness of time during which the employee has been in the employment of his employer or the casual nature or terms of his employment, it is impractical to compute the average weekly wages as above defined, regard shall be had to the average weekly amount which during the 52 weeks previous to the injury was being earned by a person of the same grade and character employed in the same class of employment in the same locality or community.
Thus, in circumstances where determining the weekly wage is too uncertain, the statute provides an alternative: using the wage of a comparable employee.
In this case, the Commission had ample evidence to permit the weekly wage to be calculated based on plaintiff's actual wages during his employment. Plaintiff earned $240.00 a week in a probationary period as a manager-trainee. Although some dispute arose concerning the test administered to plaintiff during this training period, it appears undisputed that some trainees fail to advance to permanent employment. If the Commission were to determine plaintiff's weekly wage by using the wages earned by a permanent employee, it would have had to make the assumption that plaintiff would one day move into a permanent position. The statutory language of G.S. ยง 97-2(5) permits the use of a comparable employee's wages when it is impractical to use the injured employee's weekly wages. Here, plaintiff's weekly wages were undisputed and the Commission was justified in calculating plaintiff's wage using his actual wages. This assignment of error is overruled.
For the foregoing reasons, we affirm both the Full Commission's opinion and award filed 18 December 1997 and its subsequent order filed 7 October 1998.
Affirmed.
Chief Judge EAGLES and Judge HORTON concur.
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