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Swain v. C & N Evans Trucking Co.5/20/1997
GREENE, Judge.
Delbert Swain (plaintiff) appeals from an opinion and award of the North Carolina Industrial Commission (Commission) setting aside a Form 21 Agreement (Agreement) with C & N Evans Trucking Co., Inc. (defendant) and terminating plaintiff's compensation benefits.
On 6 June 1991 plaintiff sustained an injury to his foot by accident arising out of and in the course of his employment with defendant. On 9 June 1991 an Agreement was agreed to by defendant, its workers' compensation carrier and plaintiff and approved by the Commission. The Agreement provided that the "actual average weekly wage of the employee at the time of said injury" was "1469.58" and that the defendant and the "insurance carrier hereby undertake to pay compensation to [plaintiff] at the rate of $406.00 per week beginning June 15, 1991, and continuing for necessary weeks."
Judy Johnson (Johnson), personnel and safety director for defendant, calculated plaintiff's average weekly wage for the Agreement. She "pulled [plaintiff's] payroll file" and determined his wage by "using his gross trips earnings and dividing it by the number of weeks worked." Johnson did not know the amount of plaintiff's expenses when she figured his average weekly wages and did not ask him for his expenses or his assistance in determining that figure. Johnson called plaintiff prior to his receiving the Agreement and told him that he was required to sign it to receive any benefits.
Plaintiff presented evidence that when he signed the Agreement he did not know how his average weekly wage was determined and the $1,469.58 on the Agreement was "probably average gross" wages. He assumed that no expenses had been deducted from that figure.
Clarence Evans (Evans), the owner of defendant who had been an owner/operator in the trucking business for fifteen years, knew that owner/operators kept their own expenses. According to Evans, "a good rule of thumb" as an "owner/operator" in the trucking business, is that "typical take-home pay is generally about a third of the gross revenue." According to Evans, Johnson wrote down plaintiff's gross earnings because "she had no idea what his expenses is out on the road."
Defendant filed three separate applications to stop payment of compensation (Form 24) based upon plaintiff being "uncooperative and noncompliant with vocational rehabilitation." The Commission notified plaintiff of its receipt of each Form 24 and on 4 December 1992 and 29 March 1993 ordered him "to cooperate with rehabilitation" and stated that benefits were contingent upon such cooperation. On 3 December 1993 the third Form 24 was approved by the Commission at which time defendant ceased paying compensation to plaintiff. The Form 24 alleged that plaintiff had been "authorized to return to his former work duties" by Dr. Noah and plaintiff "has been uncooperative and noncompliant with vocational rehabilitation." Although plaintiff still complained that he could not work due to pain in his foot, the Commission did "not accept as credible plaintiff's testimony."
At the hearing before the Commission plaintiff presented evidence that he originally went to vocational rehabilitation meetings once a week, but eventually the counselor told him that she was required to start meeting with him only once a month. Defendant stated that the vocational rehabilitation services lasted only two months longer before they were stopped, but did not indicate why they were stopped. Plaintiff stated that he was fully cooperative during the rehabilitation sessions and generated from five to seven of his own job leads each week in addition to those found for him by the rehabilitation counselors.
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