Myres v. Strom Aviation, Inc., 090517 NCCA, COA16-558
| Opinion Judge | STROUD, Judge. |
| Party Name | JEFF MYRES, Employee, Plaintiff-Appellant, v. STROM AVIATION, INC., Employer, And UNITED STATES FIRE INSURANCE/CRUM & FORESTER INSURANCE COMPANY, Carrier, Defendants-Appellees. |
| Attorney | Stanley E. Speckhard, PLLC, by Stanley E. Speckhard, for plaintiff-appellant. Cranfill Sumner & Hartzog, LLP, by Jaye E. Bingham-Hinch, for defendant-appellees. |
| Judge Panel | Judges DILLON and MURPHY concur. |
| Case Date | September 05, 2017 |
| Court | North Carolina Court of Appeals |
Heard in the Court of Appeals 9 March 2017.
Appeal by plaintiff from opinion and award entered 10 July 2015 by the Full Commission of the North Carolina Industrial Commission No. Y26909
Stanley E. Speckhard, PLLC, by Stanley E. Speckhard, for plaintiff-appellant.
Cranfill Sumner & Hartzog, LLP, by Jaye E. Bingham-Hinch, for defendant-appellees.
STROUD, Judge.
Plaintiff, Jeffery Myres appeals from the opinion and award of the Full Commission concluding that: (1) plaintiff's per diem payments were not made in lieu of wages, but were reimbursement for plaintiff's business-related living expenses; (2) plaintiff's average weekly wage was $340.62; and (3) plaintiff was not entitled to temporary total disability benefits from 20 July 2013 through 18 August 2013. Because the Commission's determination of plaintiff's average weekly wage was in accord with precedent of this Court, we affirm.
I. Background
Plaintiff suffered a compensable ankle injury while working for defendant-employer and the basic facts regarding his injury and employment are uncontested. Plaintiff is a trained and licensed airplane mechanic with over 21 years of experience in the aviation and aerospace industry. At the time of his ankle injury, he worked for defendant-employer, Strom Aviation, Inc. ("Strom"). Strom is an employment agency providing contract labor or temporary staffing to companies in the aerospace and aviation industry. The parties stipulated that an employee-employer relationship existed between the plaintiff and defendant-employer. Plaintiff's ankle injury occurred on 22 April 2012 and he received medical treatment, including two surgeries. His doctor determined that he had a 25% permanent partial rating for his left ankle on 26 June 2013 and released him to full-duty work without restrictions. After working briefly through Strom at another location, Pat's Aircraft in Georgetown, Delaware, plaintiff stopped working due to ankle pain and as of 20 December 2013, he had not returned to work.
On 16 August 2013, plaintiff initiated a workers compensation claim for his ankle injury by filing a Notice of Accident to Employer and Claim of Employee, and on 12 December 2013 filed a Request that Claim be Assigned for Hearing. In their response, defendants disagreed with plaintiff's allegation of his average weekly wage and mileage reimbursement. On 31 December 2014, the deputy commissioner ultimately determined that "the per diem payments received by plaintiff were not made in lieu of wages, but instead were coordinated with a reimbursement for plaintiff's business-related living expenses; . . . plaintiff's average weekly wage upon which workers compensation benefits is calculated is $340.62."1
Plaintiff appealed to the Full Commission on 8 January 2015, and ultimately the Full Commission filed an opinion and award on 10 July 2015, denying plaintiff's Motion to Receive Additional Authority and agreeing with the deputy commissioner as to both the per diem payment and plaintiff's average weekly wage of $340.62. Plaintiff submitted a Motion to Reconsider on 29 July 2015, and defendants filed a Response to Plaintiff's Motion to Reconsider on 10 August 2015. Plaintiff's Motion to Reconsider was denied by the Full Commission on 28 January 2016. Plaintiff timely appealed to this Court on 11 February 2016.
On appeal, plaintiff challenges only the Commission's determination of his average weekly wage. Although he states in his brief in a general sense that some of the findings of fact are not supported by the evidence, he does not specifically challenge any finding of fact other than Finding No. 14, which is the Commission's finding of ultimate fact that the per diem payments he received from Strom were not "paid in lieu of wages" and thus should not be used in the calculation of his average weekly wage. See Woodard v. Mordecai, 234 N.C. 463, 472, 67 S.E.2d 639, 645 (1951) ("An ultimate fact is the final resulting effect which is reached by processes of logical reasoning from the evidentiary facts."). Plaintiff's general statements that certain evidentiary findings were not supported by the evidence, without any specific argument as to any particular finding, are simply not sufficient to allow appellate review. See Allred v. Exceptional Landscapes, Inc., 227 N.C.App. 229, 232, 743 S.E.2d 48, 51 (2013) ("Appellate review of an order and award of the Industrial Commission is limited to a determination of whether the findings of the Commission are supported by the evidence and whether the findings in turn support the legal conclusions of the Commission. Unchallenged findings of fact are presumed to be supported by competent evidence and are binding on appeal." (citation and quotation marks omitted)). Since plaintiff's brief does not challenge any specific finding of fact other than finding 14, the other findings of fact are binding on appeal. See id. However, we also note that the other findings of fact mentioned by plaintiff are fully supported by the evidence. For example, several of the findings plaintiff mentions in his brief are simply summaries of certain IRS rules, and there is no question that those findings accurately reflect the IRS rules. We have reviewed all of the evidence, and the evidentiary findings upon which Finding No. 14 is based are fully supported by the record. Plaintiff's real argument is that the Commission should not have relied upon those IRS rules in its analysis, finding of ultimate fact, and conclusion of law.
II. Standard of Review
"The 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." Thompson v. STS Holdings, Inc., 213 N.C.App. 26, 20, 711 S.E.2d 827, 829 (2011). Our standard of review for an opinion and award from the Industrial Commission is limited to a determination of (1) whether its findings of fact are supported by any competent evidence in the record; and (2) whether the Industrial Commission's findings of fact justify its legal conclusions. The Industrial Commission's conclusions of law are reviewable de novo by this Court.
Moore v. City of Raleigh, 135 N.C.App. 332, 334, 520 S.E.2d 133, 136 (1999) (citation and quotation marks omitted). "The determination of whether an allowance was made in lieu of wages is a question of fact[.]" Greene v. Conlon Constr. Co., 184 N.C.App. 364, 366, 646 S.E.2d 652, 655 (2007). Although the question of whether the per diem payments were made "in lieu of" wages may appear to be a legal conclusion subject to de novo review, prior cases have clearly established that this issue is an issue of fact. In Greene, this Court noted that the defendant's employer and insurance carrier argued that the Commission "erred by including plaintiff's per diem stipend in its calculation of plaintiff's weekly wage." Id. at 366, 646 S.E.2d at 654. This Court affirmed the Commission's inclusion of the per diem in the average weekly wage and noted: 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, and in lieu of means instead of or in place of. Thus, allowances made in lieu of wages are those made in place of payment for labor or services.
Id. at 364, 646 S.E.2d at 652 (citation and quotation marks omitted). "The Commission's findings of fact may be set aside on appeal only where there is a complete lack of competent evidence to support them." Jones v. Candler Mobile
Village, 118 N.C.App. 719, 721, 457 S.E.2d 315, 317 (1995) (emphasis added).
III. Findings of Fact
The relevant evidentiary facts, as found by the Commission, regarding Plaintiff's employment are as follows: 2. Defendant-employer is an employment agency that provides contract labor and temporary staffing to companies in the aerospace and aviation industries, including Timco.
3. On 17 October 2011, plaintiff entered into an employment contract with defendant-employer to perform structural repair work for Timco.
4. Defendant-employer pays mechanics a straight time hourly wage and an overtime hourly wage, both of which are treated as taxable income. In addition, defendant-employer pays mechanics a non-taxable per diem amount. The per diem payment is intended to reimburse employees for the cost of living expenses while working away from home. Therefore, per diem is only available if the worksite is located more than 50 miles from the employee's permanent residence and the employee certifies that they are maintaining a temporary residence closer to the worksite. Per diem rates are set at a maximum weekly amount, and the amount of the payment is pro-rated if the employee works fewer than 40 hours in a week.
5. Pursuant to plaintiff's employment contract with defendant-employer, plaintiff was to be paid at a taxable "straight time rate" of $7.25 per hour, and an overtime rate of $20.50 per hour. The contract further reflects that plaintiff would be eligible to receive a maximum "per diem" amount of $530.00 per week,...
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