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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
KEVIN L. GREENE, Employee, Plaintiff, v. CONLON CONSTRUCTION
COMPANY, Employer, and ST. PAUL TRAVELERS INSURANCE CO.,
Insurance Carrier, Defendants
Filed: 3 July 2007
1. Workers' Compensation_weekly wage_per diem_correctly included
The Industrial Commission did not err in a workers' compensation case by including
plaintiff's per diem stipend for food and lodging in its calculation of his weekly wage.
Allowances made in lieu of wages are part of the wage contract. In lieu of wages needs no
special definition, and there was competent evidence to support the finding that the per diem was
in lieu of wages. N.C.G.S. § 97-2(5).
2. Appeal and Error_preservation of issues_failure to assign error
An issue was not preserved for appellate review where no error was assigned.
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,
Teague, Campbell, Dennis & Gorham, L.L.P., by Michael D.
Moore, for defendant-appellants.
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 phoneseveral 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
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
Law Dictionary 8th
Ed, and in lieu of means instead of or in place
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
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
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 tosubmit 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
(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
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 coverall of your expenses for meals and lodging in
all locations, but this will cover the
majority of your additional expenses for
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
Judges McGEE and JACKSON concur.
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