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Ganly & Ramer is successful in Court of Appeals

Ball v. Bayada Home Health 

Ms. Ball was a CNA/home-health who began working earning $8.00 per hour and worked sporadic, part-time, PRN earning $3,215 in 79 days. In February 2011 she transferred to the Hendersonville office, working with a specific client which increased her pay rate to $10 per hour for at least 40 hours per week.

On February 10, 2011, Ms. Ball was injured when the client pushed her and she feel down several stairs. She received medical care for her knee injury but continued to work until May 18, 2011, when she alleged she sustained a second injury. From February to May, Ms. Ball averaged more than 40 hours per week of work. Defendants admitted compensability of the February 10, 2011 but denied compensability of the May 18, 2011 incident. Despite denying the May 18, 2011 injures, Defendants admitted "disability resulting from the injuries began on May 19, 2011."

The judge at the hearing ruled that Plaintiff's average weekly wage, including her post-injury wages before she stopped working, was $510,33 and yielded a weekly compensation rate of $340.24. On appeal, the Full Commission ignored the higher post injury earnings and calculated the average weekly wage and compensation rate based solely on the part-time, pre-injury earnings.

The Court of Appeals reversed the Industrial Commission's calculation of Plaintiff's average weekly wage based on only her pre-injury earnings. The Court noted the Workers' Compensation Act G.S. 97-2(25) requires calculation of an average weekly wage that will, "most nearly approximate the amount which the injured employee would be earning were it not for the injury." The Court also noted the Act requires the calculation of the average weekly wage that is "fair and just" to both the employer and employee.

In agreeing with the Plaintiff's appeal and reversing the Commission's decision the Court of Appeals held the Commission committed reversible error of law by ignoring any post-injury earnings. The Court held,

we need not speculate about whether Plaintiff would have worked increased hours and pay for at least some period of time after her 10 February 2011 injury, as evidence in the record proves that she did. It is undisputed that, after Plaintiff's 10 February 2011 injury she worked more than 3 months at the increased hours and pay-a fact that application of Method 3 unfairly ignores.

As a result of Ganly & Ramer's successful appeal of this matter, the Plaintiff's weekly Workers Compensation benefits will almost double.  (

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