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opinions are subject to modification and technical correction prior to official
publication in the North Carolina Reports and North Carolina Court of Appeals
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authoritative.
NO. COA06-1311
NORTH CAROLINA COURT OF APPEALS
Filed: 3 July 2007
KEVIN L. GREENE,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 507986
CONLON CONSTRUCTION COMPANY,
Employer,
and
ST. PAUL TRAVELERS INSURANCE CO.,
Insurance
Carrier,
Defendants.
Appeal by defendants from Opinion and Award entered 3 August
2006 by the North Carolina Industrial Commission. Heard in the Court of Appeals 25 April 2007.
Scudder
and Hedrick, by John A. Hedrick and April D. Seguin, for plaintiff-appellee.
Teague,
Campbell, Dennis & Gorham, L.L.P., by Michael D. Moore, for defendant-appellants.
LEVINSON, Judge.
Conlon Construction Company and St. Paul Travelers Insurance
Company (defendants) appeal from an Opinion and Award of the North Carolina
Industrial Commission that awarded workers’ compensation benefits to plaintiff
Kevin Greene. We affirm.
The pertinent facts are summarized as follows: In June 2003 plaintiff was living in
Wendell, North Carolina, and worked in the construction business. Plaintiff answered an advertisement by
defendant Conlon Construction Company, and spoke on the phone several times
with defendant’s human resource supervisor about plaintiff’s taking a job with
defendant. They agreed on the terms of
employment, including the job description, starting date, hourly wage, weekly per
diem payment for out-of-town work, and health benefits.
Plaintiff started working for defendant on 14 July 2003 at a
job site in Athens, Georgia. On 25
August 2003 plaintiff suffered a compensable injury when he missed the last
three rungs of a ladder, landed on his right leg, and injured his leg and
back. After missing a few days of work,
plaintiff continued to work for defendant until the Georgia project was
completed. When the Georgia job was over,
plaintiff returned home to North Carolina, expecting that defendant would send
him next to a job in either Maryland or California. When plaintiff returned to North Carolina, he sought medical
treatment for the increasing pain in his lower back and numbness in his leg. The treatments failed to relieve the pain,
and plaintiff’s physician recommended a “minimally invasive fusion surgery” to
correct his back injury.
Plaintiff initially filed a workers’ compensation claim in
Georgia. Defendants accepted liability
for plaintiff’s claim under Georgia workers’ compensation law, but refused to
pay for the surgery recommended by plaintiff’s doctor. Plaintiff then filed a North Carolina
Industrial Commission Form 18, reporting the injury and seeking disability and
medical benefits. Defendants denied
liability, and a hearing was conducted on 16 June 2005.
Deputy Commissioner George R. Hall, III, issued an Opinion
and Award in November 2005, awarding plaintiff medical and disability benefits,
including plaintiff’s per diem supplement in his calculation of
plaintiff’s average weekly wages. Defendants
appealed to the Full Commission, which issued an Opinion and Award on 3 August
2006 that affirmed the Deputy Commissioner in all relevant respects. Defendants timely appealed from the Full
Commission’s Opinion and Award.
Standard of Review
“The [Industrial] Commission has exclusive original
jurisdiction over workers’ compensation cases and has the duty to hear evidence
and file its award, ‘together with a statement of the findings of fact, rulings
of law, and other matters pertinent to the questions at issue.’ N.C.G.S. §97-84 (2005). Appellate review of an award from the
Industrial Commission is generally limited to two issues: (i) whether the
findings of fact are supported by competent evidence, and (ii) whether the
conclusions of law are justified by the findings of fact.” Chambers v. Transit Mgmt., 360 N.C.
609, 611, 636 S.E.2d 553, 555 (2006) (citing Clark v. Wal-Mart, 360 N.C.
41, 42-43, 619 S.E.2d 491, 492 (2005)), reh’g denied, 361 N.C. 227, 641
S.E.2d 801 (2007). “The Commission’s
findings of fact ‘are conclusive on appeal when supported by competent evidence
even though’ evidence exists that would support a contrary finding.” Johnson v. Southern Tire Sales & Serv.,
358 N.C. 701, 705, 599 S.E.2d 508, 512 (2004) (quoting Hilliard v. Apex
Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982)). “Determinations of the weight and
credibility of evidence are for the Commission; this Court simply determines
whether the record contains any evidence tending to support the finding. Findings of fact not assigned as error are
conclusively established on appeal.” Hensley
v. Industrial Maint. Overflow, 166 N.C. App. 413, 418, 601 S.E.2d 893, 897
(2004) (citing Anderson v. Lincoln Constr. Co., 265 N.C. 431, 434, 144
S.E.2d 272, 274 (1965), and Robertson v. Hagood Homes, Inc., 160 N.C.
App. 137, 140, 584 S.E.2d 871, 873 (2003)), disc. review denied, 359
N.C. 631, 613 S.E.2d 690 (2005).
____________________
Defendants argue on appeal that the Industrial Commission
erred by including plaintiff’s per diem stipend in its calculation of
plaintiff’s weekly wage. We disagree.
This issue is addressed by N.C. Gen. Stat. §97-2(5) (2005),
which provides in pertinent part that “[w]herever allowances of any character
made to an employee in lieu of wages are specified part of the wage contract,
they shall be deemed a part of his earnings.”
Defendants argue first that our common law precedent has not defined the
meaning of the words “in lieu of wages.”
We conclude that this phrase needs no special definition. “Wages” are commonly understood to be
“payment for labor or services,” see 1610
Black’s Law Dictionary 8th Ed, and “in lieu of” means
“instead of or in place of,” see 803 Black’s
Law Dictionary 8th Ed.
Thus, allowances made “in lieu of wages” are those made “in place of
payment for labor or services.”
The determination of whether an allowance was made in lieu
of wages is a question of fact:
[Defendant-employer]
argues that the full Commission erred in concluding that [claimant’s] average
weekly wage should include . . . mileage reimbursement. . . . [W]e are bound by
the findings of the full Commission so long as there is some evidence of record
to support them[.] . . . As . . . there
is competent evidence to support the finding that [claimant] was paid mileage
in lieu of wages, the full Commission properly included the mileage in her
average weekly wage.
Chavis
v. TLC Home Health Care, 172 N.C. App. 366, 373-74, 616 S.E.2d 403, 410
(2005), appeal dismissed, 360 N.C. 288, 627 S.E.2d 464 (2006). Similarly, in Shah v. Howard Johnson,
140 N.C. App. 58, 535 S.E.2d 577 (2000), defendant argued that “the Commission
erred in finding that the value of plaintiff’s lodging was $ 100.00 per week,
and that plaintiff . . . [was] receiv[ing] lodging in lieu of additional
wages[.]” Id. at 65, 535 S.E.2d
at 582. This Court upheld the
Commission, noting that “we are bound by the findings so long as there is some
evidence of record to support them[.] . . . [T]here was ample evidence to
support a finding that lodging was furnished to plaintiff as part of his
employment contract, and . . . had a value of $ 100.00.” Id. at 66, 535 S.E.2d at 582.
In the present case, the Commission found in pertinent part
that:
18. . . . [P]laintiff earned hourly wages[.] . . . Additionally, [defendant] paid plaintiff allowances for food and lodging that . . . were not based on actual expenses for lodging or meals and plaintiff was not required to submit receipts or other documentation in order to receive allowances. [Defendant] paid plaintiff the weekly allowance of $320.00 regardless of whether he in fact had any expenses for lodging or meals. [Defendant] allowed plaintiff complete discretion of how to spend the allowances, if at all. The allowances paid to plaintiff were, therefore, in lieu of wages.
Regarding
the Commission’s findings that the $320.00 per week per diem (1) was not
based on actual expenses or submission of receipts for reimbursement; (2) was
paid in the same amount every week, even if plaintiff had no actual expenses
for lodging and meals; and (3) was to be spent in plaintiff’s complete
discretion, defendants concede that these “findings are factually
accurate.” Defendants challenge only
the Commission’s finding that the allowance was “in lieu of wages.”
We conclude that there is competent evidence to support the
finding that the per diem was in lieu of wages. This finding is consistent with the
Commission’s other findings which, as discussed above, are conceded by
defendants to be accurate.
Additionally, defendants’ own guidelines on the payment of the per
diem allowance support the finding that this payment is in lieu of
wages. Defendant’s “Lump Sum per
diem guidelines” states that:
Lump Sum per
diem is defined as the weekly amount you will receive for living expenses
while working away from your principal residence and is currently set at $320
per week. . . . Your per diem
will be paid weekly and included on your paycheck. . . .
. . . .
. . . We
suggest you shop for the best deals available.
You are spending your own money.
. . . It is not expected that
this will cover all of your expenses for meals and lodging in all locations,
but this will cover the majority of your additional expenses for travel.
Conlon has the
option to cover lodging and transportation at the actual expense. If Conlon pays for transportation and
lodging . . . [and] for meals also, the employee receives no per diem.
. . . .
For projects
with extremely high or low hotel rates, we will consider a request for changes
in allowances to reflect the expense.
These
guidelines clearly establish the payment of a set amount, neither determined by
reference to actual receipts, nor expected to cover all expenses of
travel. Indeed, reimbursement for
actual expenses is set out as an alternative option. We conclude that the Commission did not err
by finding that the per diem allowance was paid in lieu of wages. This assignment of error is overruled.
Defendants also argue that the Commission erred by finding
that its calculation of plaintiff’s weekly wage was “fair and just to both
parties.” Because defendants did not
assign error to this finding, this issue was not preserved for appellate
review. N.C. R. App. P. 10(a).
For the reasons discussed above, we conclude that the
Commission did not err and that its Opinion and Award should be
Affirmed.
Judges McGEE and JACKSON concur.