{ "id": 11912088, "name": "ELLEN LOUISE GREENMAN, Employee, Plaintiff, v. PONY EXPRESS, Employer, and TRANSPORTATION INSURANCE COMPANY, Carrier, Defendants", "name_abbreviation": "Greenman v. Pony Express", "decision_date": "1996-07-02", "docket_number": "No. COA94-1156", "first_page": "136", "last_page": "139", "citations": [ { "type": "official", "cite": "123 N.C. App. 136" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "632 So.2d 765", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7468176, 7468137, 7468215 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/so2d/632/0765-02", "/so2d/632/0765-01", "/so2d/632/0765-03" ] }, { "cite": "628 So.2d 192", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7546680 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/so2d/628/0192-01" ] }, { "cite": "293 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "816", "parenthetical": "\"[Expenses incurred in producing revenue should be deducted.\"" }, { "page": "816", "parenthetical": "\"depreciation as allowed by the [IRS] might not coincide with actual depreciation\"" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 602", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525761 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "604", "parenthetical": "\"[Expenses incurred in producing revenue should be deducted.\"" }, { "page": "604" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0602-01" ] }, { "cite": "472 S.E.2d 18", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "343 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798785, 798887, 798824, 798831, 798934 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0513-02", "/nc/343/0513-05", "/nc/343/0513-04", "/nc/343/0513-01", "/nc/343/0513-03" ] }, { "cite": "468 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "286" }, { "page": "286" }, { "page": "286" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 124", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915971 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "128-29" }, { "page": "129" }, { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0124-01" ] } ], "analysis": { "cardinality": 453, "char_count": 7670, "ocr_confidence": 0.741, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2441601807672957 }, "sha256": "c51075ce9761bb0ce328b4d45eb0200bdb2254a40e4e05115697d346c577c17f", "simhash": "1:51a1e52bdd4aebd4", "word_count": 1200 }, "last_updated": "2023-07-14T18:05:31.519627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and LEWIS concur." ], "parties": [ "ELLEN LOUISE GREENMAN, Employee, Plaintiff, v. PONY EXPRESS, Employer, and TRANSPORTATION INSURANCE COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "JOHN, Judge.\nPlaintiff appeals an Opinion and Award of the North Carolina Industrial Commission (the Commission). Plaintiff specifically challenges the Commission\u2019s decision not to include vehicle lease payments received from her employer, defendant Pony Express, in calculating her average weekly wages under N.C.G.S. \u00a7 97-2(5) (1991 & Cum. Supp. 1995). We affirm the Commission\u2019s decision.\nPlaintiff\u2019s compensation arrangement as a courier for Pony Express involved payment of a predetermined weekly rate for running her delivery route; however, plaintiff routinely received this set amount in two separate checks. The first check was designated as \u201cwages\u201d and represented the product of the total hours plaintiff worked multiplied by the minimum wage. The second was denominated payment under a \u201cMotor Vehicle Equipment Lease\u201d (the \u201cLease\u201d). According to the \u201cLease,\u201d plaintiff was reimbursed for use of her personal truck on her delivery route; in turn, she was responsible for gas, maintenance, and other expenses attributable to that vehicle. The weekly \u201cLease\u201d check contained the total weekly rate due plaintiff minus the sum received as \u201cwages\u201d in the initial check. Under this payment scheme, the amount received by plaintiff as \u201cwages\u201d was consistently less than that characterized as \u201cLease\u201d payments.\nIt is undisputed that plaintiff suffered a compensable injury to her back on 21 May 1991. She requested a hearing before the Commission, contending her average weekly wages under N.C.G.S. \u00a7 97-2(5) should be calculated to include not only the sum designated \u201cwages,\u201d but also payments received under the \u201cLease.\u201d Following a hearing, the Deputy Commissioner rendered a decision excluding \u201cLease\u201d payments from plaintiff\u2019s average weekly wages. The Full Commission affirmed that decision in a 16 May 1994 Opinion and Award. Plaintiff filed notice of appeal to this Court 6 June 1994.\nIt is well established that upon appeal from the Commission, our review is limited to two questions: (1) whether the Commission\u2019s findings of fact are supported by any competent evidence, and (2) whether those findings sustain its conclusions of law. Pittman v. Thomas & Howard, 122 N.C. App. 124, 128-29, 468 S.E.2d 283, 286, disc. review denied, 343 N.C. 513, 472 S.E.2d 18 (1996).\nWe first observe the Commission properly acknowledged that lease payments to plaintiff in excess of her actual expenses in maintaining her truck would be includable as income. See G.S. \u00a7 97-2(5) (\u201cWherever 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.\u201d); Baldwin v. Piedmont Woodyards, Inc., 58 N.C. App. 602, 604, 293 S.E.2d 814, 816 (1982) (\u201c[Expenses incurred in producing revenue should be deducted.\u201d); 2 Arthur Larson & Lex K. Larson, The Law of Workmen\u2019s Compensation, \u00a7 60.12(a) (1995) (\u201cA car allowance is includable as wage only if it exceeds actual truck, or travel expenses.\u201d).\nAt plaintiffs hearing, there was a dispute as to whether she might attempt to prove her actual operating expenses for the vehicle were less than the amount received as lease payments under circumstances where, by using the standard deduction, plaintiff had claimed on her income tax return that those expenses were greater than her lease payments.\nThe Commission\u2019s findings of fact in this regard included, inter alia, the following:\nAt the hearing, plaintiff provided only fragmentary evidence of her actual vehicle expenses during the 12-month period preceding her injury. (Some of such evidence related to a period prior to May 21, 1990). This was insufficient to permit the Deputy Commissioner or the undersigned to extrapolate what her actual expenses were in the relevant period. . . . The most reliable information in this record, based on information supplied IRS under penalty of perjury, is that plaintiff operated her vehicle in the 12 months prior to her injury at a net economic loss.\nWe do not believe a claimant who has utilized the legal standard deduction to report expenses for income tax purposes is barred from subsequently presenting evidence of her actual operating expenses before the Commission. Indeed, this Court has previously intimated that the amount the Internal Revenue Service [IRS] allows as a deduction from income may not coincide with the actual loss suffered by a taxpayer. See Baldwin, 58 N.C. App. at 604, 293 S.E.2d at 816 (\u201cdepreciation as allowed by the [IRS] might not coincide with actual depreciation\u201d).\nHowever, the only documentary evidence submitted by plaintiff regarding expenses in operating her vehicle consisted of seven gasoline receipts dated the period between 2 April 1990 and 6 April 1990, more than a year prior to plaintiff\u2019s injury, see G.S. \u00a7 97-2(5) (\u201c \u2018Average weekly wages\u2019 shall mean the earnings of the injured employee . . . during the period of 52 weeks immediately preceding the date of the injury . . . .\u201d). Plaintiff also testified she spent \u201cabout $50.00 a week\u201d on gasoline. When questioned about any additional automobile expenses, plaintiff simply replied, \u201cJust buying oil, which was like maybe $7.00 or $8.00 because we did all our oil changes, did our tune-ups and everything ourself.\u201d\nThe Commission\u2019s finding of fact that \u201cplaintiff provided only fragmentary evidence of her actual vehicle expenses\u201d is supported by competent evidence. See Pittman, 122 N.C. App. at 129, 468 S.E.2d at 286. Further, the finding sustains the conclusion of law that plaintiff failed to present sufficient evidence of vehicle operation expenses so as to permit the Commission to determine what portion, if any, of the lease payments should have been included in the calculation under G.S. \u00a7 97-2(5) of her average weekly wages.\nWe note in conclusion that the two check method of compensation at issue herein, i.e., one check designated as wages and the other as a lease payment, has been criticized elsewhere. See LaPrarie v. Pony Express Courier, 628 So.2d 192 (La. Ct. App. 1993), writ denied, 632 So.2d 765 (La. 1994) (claimant compensated in manner identical to that of plaintiff sub judi\u00f3e-, court held lease payments \u201cwere used as a device to minimize [the] exposure [of Pony Express] to worker\u2019s compensation liability\u201d and entire lease payment included in calculation of claimant\u2019s average weekly wages). However, as noted above, the record supports the Commission\u2019s determination that plaintiff\u2019s evidence of her actual vehicle expenses in the year preceding her injury was, at best, \u201cfragmentary.\u201d See Pittman, 122 N.C. App. at 129, 468 S.E.2d at 286.\nAffirmed.\nJudges EAGLES and LEWIS concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "David Gantt Law Offices, by David Gantt, for plaintiff-appellant.", "Harrell and Leake, by Larry Leake, for defendant-appellees." ], "corrections": "", "head_matter": "ELLEN LOUISE GREENMAN, Employee, Plaintiff, v. PONY EXPRESS, Employer, and TRANSPORTATION INSURANCE COMPANY, Carrier, Defendants\nNo. COA94-1156\n(Filed 2 July 1996)\nWorkers\u2019 Compensation \u00a7 260 (NCI4th)\u2014 vehicle lease payments from employer to plaintiff \u2014 no inclusion in calculation of average weekly wage\nThe Industrial Commission did not err in failing to include vehicle lease payments received from plaintiff\u2019s employer in calculating her average weekly wages under N.C.G.S. \u00a7 97-2(5) where plaintiff failed to present sufficient evidence of vehicle operation expenses so as to permit the Commission to determine what portion, if any, of the lease payments should have been included in the calculation.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 418-430.\nAppeal by plaintiff from Opinion and Award entered 16 May 1994 by the North Carolina Industrial Commission. Heard in the Court of Appeals 22 August 1995.\nDavid Gantt Law Offices, by David Gantt, for plaintiff-appellant.\nHarrell and Leake, by Larry Leake, for defendant-appellees." }, "file_name": "0136-01", "first_page_order": 170, "last_page_order": 173 }