{ "id": 8185821, "name": "KEVIN L. GREENE, Employee, Plaintiff v. CONLON CONSTRUCTION COMPANY, Employer, and ST. PAUL TRAVELERS INSURANCE CO., Insurance Carrier, Defendants", "name_abbreviation": "Greene v. Conlon Construction Co.", "decision_date": "2007-07-03", "docket_number": "No. COA06-1311", "first_page": "364", "last_page": "368", "citations": [ { "type": "official", "cite": "184 N.C. App. 364" } ], "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": "627 S.E.2d 464", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635369, 12635370, 12635371, 12635372 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/627/0464-01", "/se2d/627/0464-02", "/se2d/627/0464-03", "/se2d/627/0464-04" ] }, { "cite": "616 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633569 ], "year": 2005, "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0403-01" ] }, { "cite": "613 S.E.2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633056, 12633057, 12633058 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/613/0690-01", "/se2d/613/0690-02", "/se2d/613/0690-03" ] }, { "cite": "641 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637939, 12637940, 12637941 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/641/0801-01", "/se2d/641/0801-02", "/se2d/641/0801-03" ] }, { "cite": "619 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633952 ], "year": 2005, "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0491-01" ] }, { "cite": "636 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637060 ], "year": 2006, "pin_cites": [ { "page": "555", "parenthetical": "citing Clark v. Wal-Mart, 360 N.C. 41, 42-43, 619 S.E.2d 491, 492 (2005)" } ], "opinion_index": 0, "case_paths": [ "/se2d/636/0553-01" ] }, { "cite": "535 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "582" }, { "page": "582" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 58", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12121612 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/140/0058-01" ] }, { "cite": "360 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787745, 3791782, 3787977, 3797401, 3793321, 3796109, 3789454, 3792409, 3787263 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0288-09", "/nc/360/0288-04", "/nc/360/0288-07", "/nc/360/0288-02", "/nc/360/0288-05", "/nc/360/0288-03", "/nc/360/0288-01", "/nc/360/0288-08", "/nc/360/0288-06" ] }, { "cite": "172 N.C. App. 366", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8320194 ], "year": 2005, "pin_cites": [ { "page": "373-74" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0366-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(5)" } ], "opinion_index": 0 }, { "cite": "359 N.C. 631", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3800229, 3793893, 3794537, 3799052, 3804845, 3795663, 3804149, 3798264, 3796825 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0631-01", "/nc/359/0631-07", "/nc/359/0631-05", "/nc/359/0631-04", "/nc/359/0631-08", "/nc/359/0631-03", "/nc/359/0631-06", "/nc/359/0631-02", "/nc/359/0631-09" ] }, { "cite": "584 S.E.2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "873" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 137", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954674 ], "year": 2003, "pin_cites": [ { "page": "140" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0137-01" ] }, { "cite": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "pin_cites": [ { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "601 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "897", "parenthetical": "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)" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 413", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411455 ], "year": 2004, "pin_cites": [ { "page": "418", "parenthetical": "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)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0413-01" ] }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "684" } ], "opinion_index": 0 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "year": 1982, "pin_cites": [ { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "599 S.E.2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "512", "parenthetical": "quoting Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982)" } ], "opinion_index": 0 }, { "cite": "358 N.C. 701", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987216 ], "year": 2004, "pin_cites": [ { "page": "705", "parenthetical": "quoting Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0701-01" ] }, { "cite": "361 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739170, 3739778, 3745188, 3739087, 3746672, 3742097, 3742770, 3737919 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0227-07", "/nc/361/0227-05", "/nc/361/0227-03", "/nc/361/0227-08", "/nc/361/0227-06", "/nc/361/0227-02", "/nc/361/0227-01", "/nc/361/0227-04" ] }, { "cite": "360 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788691 ], "year": 2005, "pin_cites": [ { "page": "42-43" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0041-01" ] }, { "cite": "360 N.C. 609", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787177 ], "year": 2006, "pin_cites": [ { "page": "611", "parenthetical": "citing Clark v. Wal-Mart, 360 N.C. 41, 42-43, 619 S.E.2d 491, 492 (2005)" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0609-01" ] } ], "analysis": { "cardinality": 602, "char_count": 10811, "ocr_confidence": 0.748, "pagerank": { "raw": 7.503459360989951e-08, "percentile": 0.44661348982122123 }, "sha256": "857d7b23fbd5018f745f84012a729f0146a6a85a21dc44efbfc0d255d82f9dee", "simhash": "1:f521f55ba6aec55e", "word_count": 1731 }, "last_updated": "2023-07-14T19:54:59.559545+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and JACKSON concur." ], "parties": [ "KEVIN L. GREENE, Employee, Plaintiff v. CONLON CONSTRUCTION COMPANY, Employer, and ST. PAUL TRAVELERS INSURANCE CO., Insurance Carrier, Defendants" ], "opinions": [ { "text": "LEVINSON, Judge.\nConlon Construction Company and St. Paul Travelers Insurance Company (defendants) appeal from an Opinion and Award of the North Carolina Industrial Commission that awarded workers\u2019 compensation benefits to plaintiff Kevin Greene. We affirm.\nThe 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\u2019s human resource supervisor about plaintiff\u2019s 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.\nPlaintiff 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 plaintiffs physician recommended a \u201cminimally invasive fusion surgery\u201d to correct his back injury.\nPlaintiff initially filed a workers\u2019 compensation claim in Georgia. Defendants accepted liability for plaintiffs claim under Georgia workers\u2019 compensation law, but refused to pay for the surgery recommended by plaintiff\u2019s 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.\nDeputy Commissioner George R. Hall, III, issued an Opinion and Award in November 2005, awarding plaintiff medical and disability benefits, including plaintiff\u2019s per diem supplement in his calculation of plaintiff\u2019s 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\u2019s Opinion and Award.\nStandard of Review\n\u201cThe [Industrial] Commission has exclusive original jurisdiction over workers\u2019 compensation cases and has the duty to hear evidence and file its award, \u2018together with a statement of the findings of fact, rulings of law, and other matters pertinent to the questions at issue.\u2019 N.C.G.S. \u00a7 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.\u201d 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\u2019g denied, 361 N.C. 227, 641 S.E.2d 801 (2007). \u201cThe Commission\u2019s findings of fact \u2018are conclusive on appeal when supported by competent evidence even though\u2019 evidence exists that would support a contrary finding.\u201d 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)).\u2019 \u201cDeterminations 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.\u201d 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).\nDefendants argue on appeal that the Industrial Commission erred by including plaintiff\u2019s per diem stipend in its calculation of plaintiff\u2019s weekly wage. We disagree.\nThis issue is addressed by N.C. Gen. Stat. \u00a7 97-2(5) (2005), which provides in pertinent part that \u201c[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.\u201d Defendants argue first that our common law precedent has not defined the meaning of the words \u201cin lieu of wages.\u201d We conclude that this phrase needs no special definition. \u201cWages\u201d are commonly understood to be \u201cpayment for labor or services,\u201d see 1610 Black\u2019s Law DICTIONARY 8th Ed, and \u201cin lieu of\u2019 means \u201cinstead of or in place of,\u201d see 803 Black\u2019s Law Dictionary 8th Ed. Thus, allowances made \u201cin lieu of wages\u201d are those made \u201cin place of payment for labor or services.\u201d\nThe determination of whether an allowance was made in lieu of wages is a question of fact:\n[Defendant-employer] argues that the full Commission erred in concluding that [claimant\u2019s] 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.\nChavis 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 \u201cthe Commission erred in finding that the value of plaintiff\u2019s lodging was $ 100.00 per week, and that plaintiff.... [was] receiving] lodging in lieu of additional wages[.]\u201d Id. at 65, 535 S.E.2d at 582. This Court upheld the Commission, noting that \u201cwe 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.\u201d Id. at 66, 535 S.E.2d at 582.\nIn the present case, the Commission found in pertinent part that:\n18. . . . [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.\nRegarding the Commission\u2019s 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\u2019s complete discretion, defendants concede that these \u201cfindings are factually accurate.\u201d Defendants challenge only the Commission\u2019s finding that the allowance was \u201cin lieu of wages.\u201d\nWe 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\u2019s other findings which, as discussed above, are conceded by defendants to be accurate. Additionally, defendants\u2019 own guidelines on the payment of the per diem allowance support the finding that this payment is in lieu of wages. Defendant\u2019s \u201cLump Sum per diem guidelines\u201d states that:\nLump 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. . . .\n. . . We suggest you shop for the best deals available. You are spending vour 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.\nConlon 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.\nFor projects with extremely high or low hotel rates, we will consider a request for changes in allowances to reflect the expense.\nThese 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.\nDefendants also argue that the Commission erred by finding that its calculation of plaintiffs weekly wage was \u201cfair and just to both parties.\u201d Because defendants did not assign error to this finding, this issue was not preserved for appellate review. N.C. R. App. R 10(a).\nFor the reasons discussed above, we conclude that the Commission did not err and that its Opinion and Award should be\nAffirmed.\nJudges McGEE and JACKSON concur.", "type": "majority", "author": "LEVINSON, Judge." } ], "attorneys": [ "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." ], "corrections": "", "head_matter": "KEVIN L. GREENE, Employee, Plaintiff v. CONLON CONSTRUCTION COMPANY, Employer, and ST. PAUL TRAVELERS INSURANCE CO., Insurance Carrier, Defendants\nNo. COA06-1311\n(Filed 3 July 2007)\n1. Workers\u2019 Compensation\u2014 weekly wage \u2014 per diem \u2014 correctly included\nThe Industrial Commission did not err in a workers\u2019 compensation case by including plaintiffs 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. \u201cIn lieu of wages\u201d 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. \u00a7 97-2(5).\n2. Appeal and Error\u2014 preservation of issues \u2014 failure to assign error\nAn issue was not preserved for appellate review where no error was assigned.\nAppeal 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.\nScudder and Hedrick, by John A. Hedrick and April D. Seguin, for plaintiff-appellee. ,\nTeague, Campbell, Dennis & Gorham, L.L.P., by Michael D. Moore, for defendant-appellants." }, "file_name": "0364-01", "first_page_order": 396, "last_page_order": 400 }