IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA 16

- 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 Comm ission

. 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.M YRES V

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Opinion of the Court

- 2

- 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 aerospa ce 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 theirM YRES V

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Opinion of the Court

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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 compen sation 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 agree in g 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 2 015. 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, p laintiff challenges only the Commission’s determination of his

average weekly wage. A lthough 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 C ommission’s

1 The deputy commissioner and F ull C ommission 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.M YRES V

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Opinion of the Court

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- 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 fina l resulting effect which is reached by processes of logical

r easoning 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 fi nding, 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 appe al.” (citation and quotation marks

omitted) ). Since p laintiff’s brief does not challenge any specific finding of fact other

than f inding 14, the other findings of fact are binding on appeal. See i d. 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 byM YRES V

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Opinion of the Court

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- 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 is sue.” 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. 3 32, 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 C ourt noted that t he defendant ’ s employer and insuranceM YRES V

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Opinion of the Court

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- 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

C ourt affirmed the Commission’s inclusion of th e 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 co ntract, 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.M YRES V

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Opinion of the Court

- 7

- 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 hour ly 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. There fore, 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 we ekly

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 cont r act with

defendant

- employer, plaintiff was to be paid at a taxable

"straight time rate" of $7.25 per h our, 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, whic h 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 su bstantiate 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")M YRES V

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Opinion of the Court

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- maximum allowable amount provided to employees on a

uniform, obje ctive 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 an d 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 defenda nt

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 informa l 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 fe deral

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 th at 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 diemM YRES V

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Opinion of the Court

- 9

- pa yments.

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 ra te. 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 minimu m 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 t he 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

fi nding 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 C ommission 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.”)

.M YRES V

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Opinion of the Court

- 10

- conforms to the federally established gu idelines 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 pl aintiff'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 pa yments 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 o f 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 expens es.

(Citation and quotation marks omitted).

I V

. 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, orM YRES V

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Opinion of the Court

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

Plaint iff’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 o f 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 t raining 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 poten tial 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 arise s 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 rat e 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 weM YRES V

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Opinion of the Court

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- are constrained by precedent to hold that the Comm ission did not err in its

determination.

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

weekly wages,” which are defined by N

. C

. G en. S tat. § 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 forego ing 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 all owances 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 fa ct 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

f indings that defendant had followed “established federal guidelines” and that theM YRES V

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Opinion of the Court

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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 h is 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 di sbursed 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

amount s 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

-M YRES V

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Opinion of the Court

- 14

- rated basis if the employee works fe wer 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 t he 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 webs ite. 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 asso ciated 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 w ork 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 record s

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 influence d 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 di em, travel expenses, wage advances, and the

additional “RC” and “RE” amounts did not constitute

payments made by STS to Plaintiff in “lieu of wages.”M YRES V

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Opinion of the Court

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

structure which is es sentially identical to p laintiff’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 fr om 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

C ourt rejected this argument and stated:

[O]ur review of the record shows that competent evidence

exists i n 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 conflict ing 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

, whichM YRES V

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Opinion of the Court

- 16

- presen ted 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 emp loyee 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

relat ed 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 ofM YRES V

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Opinion of the Court

- 17

- 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 payme nt methods

between this case and Thompson

. Federal case law and IRS guidelines cannot

overcome precedential rulings by North Carolina courts on this issue. T he

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

must affirm the o rder.

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

.