              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-558

                              Filed: 5 September 2017

North Carolina Industrial Commission, No. Y26909

JEFF MYRES, Employee, Plaintiff-Appellant,

             v.

STROM AVIATION, INC., Employer, And UNITED STATES FIRE
INSURANCE/CRUM & FORESTER INSURANCE COMPANY, Carrier, Defendants-
Appellees.


      Appeal by plaintiff from opinion and award entered 10 July 2015 by the Full

Commission of the North Carolina Industrial Commission. Heard in the Court of

Appeals 9 March 2017.


      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.
                           MYRES V. STROM AVIATION, INC.

                                  Opinion of the Court



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



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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


       1The deputy commissioner and Full Commission also found that “plaintiff was not entitled to
temporary total disability benefits from July 20, 2013 through August 18 2013.” Plaintiff has not made
any argument regarding this part of the Commission’s order on appeal, and thus we have not
addressed it on appeal.

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                                   Opinion of the Court



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



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                                    Opinion of the Court



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



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                                  Opinion of the Court



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.



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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, which equates to $13.25 per
hour for a 40 hour work week. If plaintiff worked less than
40 hours during a week, his per diem earnings would be
prorated based upon the $13.25 hourly rate. At the time he
entered into the employment contract, plaintiff signed a
certificate verifying that his permanent residence
continued to be in Hertford, which is more than 50 miles
from Timco’s facility in Greensboro.

6. Plaintiff testified that he incurred expenses for
campground fees, gas, vehicle maintenance, internet
service and food, but he was not required to submit receipts
to defendant employer to substantiate these expenses.

7. The Internal Revenue Service ("IRS") has established
guidelines under which fixed per diem payments at or
below the Government Services Administration ("GSA")


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                     Opinion of the Court



maximum allowable amount provided to employees on a
uniform, objective basis are deemed substantiated travel
expenses without proof from employees of expenses
incurred.

8. For an employer to have per diem rates deemed
“substantiated,” it must follow three rules: (1) the per diem
must be paid with respect to ordinary and necessary
business expenses incurred or reasonably anticipated to be
incurred; (2) the per diem must be reasonably calculated
not to exceed the amount of the expenses or anticipated
expenses; and (3) the per diem must be paid at or below the
federal per diem rate found on the website.

9. Brian Lucker is defendant-employer’s Chief Financial
Officer. He testified, and the Full Commission finds, that
defendant-employer established the maximum amount of
per diem plaintiff received while working for defendant-
employer at Timco by obtaining the maximum per diem
rate listed on the GSA website for Greensboro ($994.00 per
week at the time plaintiff entered into his contract with
defendant-employer), and adjusting that amount down to
$530.00 based upon an informal assessment of local living
costs. Based upon this process, $530.00 is the amount of
business     expenses    defendant-employer     reasonably
anticipated plaintiff would incur in connection with his
work at Timco.

10. Where an employer follows the established federal
guidelines regarding per diem rates, the IRS does not
consider per diem payments made by that employer to be
wages or compensation, and therefore, such per diem
payments are not subject to employment or withholding
taxes.

11. Plaintiff confirmed that his per diem was not taxable
and that he did not include per diem payments in his
income tax filings. Plaintiff also acknowledged that, while
working for defendant-employer, his W-2 reflected straight
time wages and overtime pay, but not his per diem


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                                         Opinion of the Court



                 payments.

                 12. Plaintiff testified that the other aviation related
                 staffing agencies he has worked for paid him in the same
                 manner as defendant-employer paid him, with a straight
                 time hourly rate of $7.00 to $8.00, an overtime hourly rate,
                 and a per diem rate. As with the W-2 plaintiff received in
                 connection with his employment with defendant-employer
                 at Timco, plaintiff testified that the W-2s plaintiff received
                 from the other staffing agencies only reflected his taxable
                 wages.

                 13. Vocational rehabilitation counselor Michael Fryar was
                 retained by counsel for plaintiff in this matter. Mr. Fryar
                 testified that it would be extremely difficult for defendant-
                 employer and other staffing agencies to recruit mechanics
                 if they paid minimum wage. Mr. Fryar ultimately opined
                 that defendant-employer and other staffing agencies that
                 pay a minimum hourly wage plus a per diem are paying
                 the per diem in lieu of what other employers are paying as
                 wages. Mr. Fryar further testified with respect to plaintiff
                 specifically that the per diem compensation paid to
                 plaintiff by defendant-employer for his work at Timco was
                 paid in lieu of wages.2

        The Commission’s finding of ultimate fact which plaintiff challenges on appeal

is as follows:

                 14. Based upon the preponderance of the evidence in view
                 of the entire record, the Full Commission finds that the
                 method used by defendant-employer to calculate the rate
                 of per diem paid to plaintiff adjusts for the work locale and


        2 We note that some of the Commission’s findings are recitations of testimony, but its ultimate
finding resolves any uncertainty regarding which testimony the Commission found to be credible. But
we encourage the Commission to avoid recitations of testimony in its findings if at all possible as this
type of finding can lead to reversal and remand for clarification of findings if we are unable to
determine which evidence the Commission found credible. See People v. Cone Mills Corp., 316 N.C.
426, 442, 342 S.E.2d 798, 808 (1986) (“We, nevertheless, suggest to the Commission to make its
findings in the form of declarations of facts rather than recitations of testimony.”).

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            conforms to the federally established guidelines for
            treating an employee’s business expenses as deemed
            substantiated. Therefore, notwithstanding the opinions of
            Mr. Fryar, the Full Commission finds that the per diem
            payments received by plaintiff from defendant-employer
            were coordinated with plaintiff's actual business expenses
            and were not paid in lieu of wages. Accordingly, pursuant
            to the parties’ stipulations in this case, plaintiff's average
            weekly wage is $340.62.

      The Commission then concluded the following in Conclusion of Law No. 1:

            In calculating plaintiff’s average weekly wage, the
            Commission must first determine what constitutes
            plaintiff’s earnings. Regarding per diem payments, N.C.
            Gen. Stat. § 97-2(5) provides, “[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.” Per diem amounts set a fixed amount
            regardless of actual employee expenses may be considered
            part of the employee’s earnings. In the instant case, the per
            diem payments plaintiff received from defendant-employer
            were adjusted depending on locale, and were made subject
            to a policy in conformity with federal guidelines that
            allowed the payments to be treated as tax-deductible
            business expenses without further proof of actual expenses
            from the employee. The Full Commission therefore
            concludes that the per diem payments plaintiff received
            from defendant-employer were not made in lieu of wages,
            but instead were reimbursement for plaintiff’s business-
            related living expenses.

(Citation and quotation marks omitted).

                                IV.    Per Diem Payments

      Unlike most worker’s compensation cases, this case does not involve any issue

regarding the compensability of plaintiff’s injury, plaintiff’s medical expenses, or



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plaintiff’s relationship with the employer. The only issue on appeal is the amount of

Plaintiff’s “average weekly wages.” Plaintiff argues that the Commission erred by

calculating his “average weekly wages” based only upon his hourly rate and excluding

his per diem payments, since he contends that the per diem payments are really paid

“in lieu of wages” as defined by N.C. Gen. Stat. § 97-2(5).      With the per diem

payments, his hourly wages would be $20.50/hour; without it, they are $7.25/hour, or

the federal minimum wage. We agree that it seems obvious that an aircraft mechanic

with specialized training and over 20 years of experience would be paid far more than

minimum wage. We also realize that it is to defendant’s advantage to set up its

compensation structure to make its employees’ “average weekly wages” as low as

possible to reduce any potential worker’s compensation awards. For that matter, the

arrangement is also advantageous to the employee, whose income tax burden is

significantly lower if the per diem payments are not taxable income. The employee’s

problem with this pay structure arises only if he is injured on the job.   Overall, it

may not seem “fair and just to both parties” for the average weekly wage for an

employee such as plaintiff, with many years of specialized experience in aviation

mechanics, to have the same compensation rate as a teenager working at the drive-

thru window of a fast food restaurant. But it is not this Court’s role to weigh the

policy considerations involved in how aircraft mechanics are paid and taxed, and we




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are constrained by precedent to hold that the Commission did not err in its

determination.

      Workers compensation payments are based upon the employee’s “average

weekly wages,” which are defined by N. C. Gen. Stat. § 97-2(5), in pertinent part, as

follows:

             (5) Average Weekly Wages. -- “Average weekly wages” shall
             mean the earnings of the injured employee in the
             employment in which the employee was working at the
             time of the injury during the period of 52 weeks
             immediately preceding the date of the injury. . . .

             But where for exceptional reasons the foregoing would be
             unfair, either to the employer or employee, such other
             method of computing average weekly wages may be
             resorted to as will most nearly approximate the amount
             which the injured employee would be earning were it not
             for the injury.
             Wherever 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.

N.C. Gen. Stat. § 97-2(5). “The intent of [G.S. § 97-2(5)] is to make certain that the

results reached are fair and just to both parties. . . . Ordinarily, whether such results

will be obtained . . . is a question of fact; and in such case a finding of fact by the

Commission controls the decision.” Larramore v. Richardson Sports, Ltd. Partners,

141 N.C. App. 250, 255, 540 S.E.2d 768, 771 (2000) (citation and quotation marks

omitted). Plaintiff contends that the Commission erred by its reliance upon its

findings that defendant had followed “established federal guidelines” and that the



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IRS does not consider the per diem allowances to be wages or compensation (Findings

of Fact 7, 8, 9, 10, and 14 and Conclusion of Law 1).

      In Thompson, this Court addressed the same issue, for an “airframe and power

plant mechanic” who was placed by STS Holdings, Inc. -- another staffing company

like defendant-employer -- at TIMCO in the Greensboro location. 213 N.C. App. at

27, 711 S.E.2d at 828. He was also injured during his work at TIMCO. The plaintiff

in Thompson raised several other issues, since he had worked with four other

employers in addition to STS during the 52 weeks preceding his injury, but ultimately

the Commission and this Court also had to consider whether the per diem payments

should have been included in calculation of his average weekly wages. Just as in this

case, the Commission determined Thompson’s average weekly wage based only upon

his hourly rate and excluded the per diem payments, which reduced his compensation

rate dramatically, from $329.58 per week to $30.00 per week.

             STS paid Plaintiff an hourly wage of $7.50 an hour for
             Plaintiff's work with TIMCO. If Plaintiff worked overtime
             hours for STS, Plaintiff would earn overtime wages. STS
             also disbursed additional monies to Plaintiff while Plaintiff
             was in its employ. Plaintiff received a per diem amount for
             living expenses under certain circumstances.

             The Commission found as fact:

             The per diem is paid as non-taxable, is set at differing
             amounts according to the costs of staying in any given
             location, and is meant to reimburse employees for cost of
             living expenses while they are on the road. The per diem is
             set as a maximum weekly amount, and is paid on a pro-


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rated basis if the employee works fewer than 40 hours in a
particular week. Per diem payments are only available if a
worksite is located greater than 50 miles from the
employee’s permanent residence and the employee certifies
to [STS] that he is maintaining a temporary residence
nearer to the worksite. The Commission further found that
the method used by STS to calculate the per diem rate to
be paid to an employee was determined by first consulting
the maximum allowable rate as set forth on the federal
Government Services Administration website. STS would
then reduce that amount by twenty percent and make
additional downward adjustments related to the local cost
of living, if applicable. The Commission also found that
Plaintiff received travel pay for certain jobs to help defray
the cost associated with travelling to a jobsite. An officer
for STS testified that travel pay is used to assist employees
in travelling to the job and is paid as a business expense
reimbursement. . . . [T]ravel pay is typically tied to a
minimum stay at a particular work cite [sic], and if an
employee does not meet the minimum stay, the travel pay
is deducted from the employee's final check for that
contract as a cost or wage advance. The Commission
further found that STS would sometimes give an employee
wage advances. These advances constituted advance pay
for work an employee had not yet performed, but was
expected to perform. These advances were “deducted from
the employee’s subsequent post-tax earnings.” Finally, the
Commission found that Plaintiff's “payroll records
include[d] additional categories labeled ‘RC’ and ‘RE.’
However, the record of evidence [did] not include sufficient
information for the . . . Commission to determine how, or
whether, amounts listed in association with those
categories may have influenced the wages earned by
[P]laintiff.” Based in part on these findings of fact, the
Commission concluded that, while working for STS,
Plaintiff's wages consisted exclusively of his hourly wage
and overtime pay. The Commission further concluded that
the per diem, travel expenses, wage advances, and the
additional “RC” and “RE” amounts did not constitute
payments made by STS to Plaintiff in “lieu of wages.”


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Id. at 28, 711 S.E.2d at 828. Thus, the Thompson Court was considering a payment

structure which is essentially identical to plaintiff’s in this case, for an essentially

identical job, and even at the same worksite.

      Just as plaintiff here argues, the Thompson plaintiff argued:

             the Commission erred in excluding per diem, travel pay,
             and wage advances from the calculation of Plaintiff’s
             earnings while working for STS. Wherever 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. The determination of whether an
             allowance was made in lieu of wages is a question of fact[.]

Id. at 34, 711 S.E.2d at 831 (citation and quotation marks omitted). The Thompson

Court rejected this argument and stated:

             [O]ur review of the record shows that competent evidence
             exists in the record to support the Commission’s findings of
             fact that those items were not advanced to Plaintiff in lieu
             of wages.      Because some competent evidence exists
             supporting these findings of fact, they are binding on
             appeal—regardless of whether conflicting evidence might
             exist.

Id. at 34, 711 S.E.2d at 832.

      Since “[t]he determination of whether an allowance was made in lieu of wages

is a question of fact,” Greene, 184 N.C. App. at 366, 646 S.E.2d at 655 (citations

omitted), and since the evidentiary findings which support Finding No. 14 are not

specifically challenged, we are not at liberty to conduct de novo review of the

Commission’s determination.       We are also constrained by Thompson, which


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presented essentially the same issue and even the same factual scenario, to hold that

the Commission did not err by making its ultimate finding regarding calculation of

plaintiff’s average weekly wages.

      Plaintiff also challenges the Commission’s Conclusion of Law No. 1,

            In calculating plaintiff’s average weekly wage, the
            Commission must first determine what constitutes
            plaintiff’s earnings. Regarding per diem payments, N.C.
            Gen. Stat. § 97-2(5) provides, “[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.” Per diem amounts set a fixed amount
            regardless of actual employee expenses may be considered
            part of the employee’s earnings. In the instant case, the per
            diem payments plaintiff received from defendant-employer
            were adjusted depending on locale, and were made subject
            to a policy in conformity with federal guidelines that
            allowed the payments to be treated as tax-deductible
            business expenses without further proof of actual expenses
            from the employee. The Full Commission therefore
            concludes that the per diem payments plaintiff received
            from defendant-employer were not made in lieu of wages,
            but instead were reimbursement for plaintiff’s business-
            related living expenses.

      While this Court reviews the Commission’s conclusions of law de novo, this

review is “limited to whether the findings of fact support the Commission’s

conclusions of law.” Starr v. Gaston Co. Bd. Of Educ., 191 N.C. App. 301, 310, 663

S.E.2d 322, 328 (2008).

       Some of plaintiff’s arguments on appeal are based upon federal case law and

reference to IRS guidelines regarding treatment of per diem payments, but none of



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those arguments were presented to the Full Commission. And since the Commission

is not bound to define income in exactly the same way as the IRS or under exactly the

same rules, it is unlikely that consideration of any additional information would have

changed the result, particularly considering the similarity of the payment methods

between this case and Thompson.       Federal case law and IRS guidelines cannot

overcome precedential rulings by North Carolina courts on this issue.             The

Commission’s findings of fact fully support its conclusion of law and we therefore

must affirm the order.

                                   V. Conclusion

      Because the Commission’s finding of fact that the per diem payments were

not made in lieu of wages and its conclusion of law is supported by the findings, we

affirm the order and award.

      AFFIRM.

      Judges DILLON and MURPHY concur.




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