BRADFORD, Judge.

Case Summary

Appellee-Plaintiff William Wressell brought a claim against his employer Appellant-Defendant R.L. Turner Corporation ("RLTC") alleging that he did not receive wages he was entitled to under the Indiana Common Construction Wage Act ("CCWA"). The trial court found that RLTC provided insufficient fringe benefits to meet the minimum wage requirements of the CCWA and awarded Wressell compensatory damages for the unpaid fringe benefits as well as statutory treble damages. The trial court also awarded attorney's fees to Wressell pursuant to the fee shifting provision of the Indiana Wage Payment Statute.

On appeal, RLTC raises several issues which we consolidate and restate as follows: (1) whether the CCWA can form the basis for a private cause of action; (2) whether the trial court erred in finding that RLTC provided insufficient fringe benefits to meet the minimum requirements of the CCWA; and (3) whether the trial court erred in awarding attorney's fees to Wressell. Wressell argues on appeal that the trial court erred in failing to consider his overtime hours in calculating the amount of wages he was entitled to. We affirm the judgment of the trial court; however, we remand with instructions that the trial court award Wressell additional damages for overtime compensation.

Facts and Procedural History

Wressell filed a claim against RLTC on January 5, 2012 for unpaid wages. (App. 20-23) In December of 2012, the trial court granted a motion for summary judgment in favor of RLTC. That decision was reversed by this court on appeal in Wressell v. R.L. Turner Corporation, 988 N.E.2d 289 (Ind.Ct.App.2013), trans. denied. We have previously out-lined the facts of this case, the relevant portions of which are as follows:

* * *

Wressell also averred to the following

Wressell, 988 N.E.2d at 292-96 (footnotes omitted).1

The trial court granted RLTC's June 29, 2012 motion for summary judgment. On appeal, we concluded that there were genuine issues of material fact regarding, among other things, whether Wressell was paid sufficiently for fringe benefits. Id. at 298. As such, we reversed the trial court's order of summary judgment and remanded for further proceedings on "whether RLTC properly paid Wressell for fringe benefits." Id.

After the case was remanded, the trial court held a bench trial in which it made the following findings and conclusions:

1.   Premium payments for                 $1,991.76
     health insurance

2.   Premium payments for                 $  140.22
     dental insurance

3.   Premium payments for                 $   25.02
     group life insurance

4.   Premium payments for                 $    5.94
     accidental death and dismemberment
     insurance

5.   Premium payments for                 $   56.62
     short term disability insurance

6.   Premium payments to                  $   11.40
     fund an employee assistance
     program of at least

7.   Paid time off (PT)                   $  260.00

8.   Payment for three (3)                $  624.00
     holiday

9.   Payments made by Company             $    5.10
     to a third party to
     comply with COBRA requirements

TOTAL                                     $3,119.96

Appellant's App. pp. 10-13.

Following the judgment, both parties filed motions to correct error, both of which were denied by the trial court. Wressell then filed a petition requesting that RLTC be ordered to pay his attorney's fees. On October 23, 2014, the trial court granted that motion with the following order.

Appellant's App. pp. 209-212.

Discussion and Decision

RLTC raises several issues in this appeal which we consolidate and restate as follows: (1) whether the CCWA can form the basis for a private cause of action; (2) whether the trial court erred in finding that RLTC provided insufficient fringe benefits to meet the minimum requirements of the CCWA; and (3) whether the trial court erred in awarding attorney's fees to Wressell. Wressell also raises one claim of error on appeal, arguing that the trial court failed to consider his overtime hours in calculating the amount of compensation he was entitled to.

I. Private Cause of Action Under the CCWA

As a threshold issue, RLTC argues that the CCWA cannot form the basis for a private civil action. "`Questions of statutory interpretation are questions of law and are reviewed de novo.'" In re Howell, 27 N.E.3d 723, 726 (Ind.2015) (quoting In re Carroll Cnty. 2013 Tax Sale, 21 N.E.3d 832, 834 (Ind.2014)).

As RLTC notes, the text of the CCWA does not expressly create a private cause of action. However, in Stampco Construction Co., Inc. v. Guffey, 572 N.E.2d 510, 512 (Ind.Ct.App.1991), this court held that a private cause of action could be brought under Indiana's prevailing wage statute. See also Burgess v. E.L. C. Elec., Inc., 825 N.E.2d 1, 16 (Ind.Ct. App.2005); E.L.C. Elec., Inc. v. Indiana Dep't of Labor, 825 N.E.2d 16, 18 (Ind.Ct. App.2005) (acknowledging that a private cause of action may be brought under the CCWA). RLTC notes that the United States District Court for the Southern District of Indiana called Stampco into doubt and certified for the Indiana Supreme Court the question of whether such a private cause of action exists under the CCWA. Lewis v. Gaylor, Inc., 914 F.Supp.2d 925 (S.D.Ind.2012). However, the case was voluntarily dismissed before the Supreme Court had an opportunity to consider the question. We acknowledge RLTC's argument but decline to part from precedent and will leave any such decision to the Indiana Supreme Court.

II. Fringe Benefits

RLTC claims that the trial court erred in failing to include other proffered fringe benefits in its calculation of total compensation and that the trial court erred in shifting the burden of proof on this issue from Wressell to RLTC.

A. Burden of Proof

RLTC argues that trial court improperly shifted the burden of proof to RLTC regarding whether RLTC provided certain fringe benefits to Wressell. Essentially, RLTC claims that the trial court inappropriately required RLTC to prove the fringe benefits it provided Wressell instead of Wressell having to prove that he did not receive certain benefits. We cannot agree with RLTC's characterization of the burden of proof. Their approach would essentially require Wressell to prove a negative by identifying benefits which he did not receive. We find this illogical. Wressell met his initial burden by establishing (1) the amount of compensation which, in his opinion, he actually received in wages and fringe benefits, and (2) that the amount he received was less than the total wages required to be paid under the CCWA to a worker of his skill level. In its defense, RLTC argued that Wressell received additional fringe benefits which, when considered with his other wages, amounted to a total compensation in excess of that required by the CCWA. The trial court declined to credit much of RLTC's argument as to what it considered fringe benefits. Whether or not the trial court erred in its determination of what constitutes a fringe benefit is the crux of this litigation which we will examine in more detail below. However, the trial court did not improperly shift the burden of proof to RLTC.

B. Whether the Trial Court Erred in Determining What Constituted Fringe Benefits

Determining whether certain benefits provided by an employer constitute fringe benefits for purposes of the CCWA is a question of law. See Burgess, 825 N.E.2d at 10. Appellate courts evaluate questions of law de novo and owe no deference to a trial court's determination of such questions. Seel v. State, 739 N.E.2d 170, 172 (Ind.Ct.App.2000).

RLTC claims that the trial court erred in failing to consider the following items fringe benefits: "health and welfare benefits, availability of a 401K plan2, training, travel per diem, benefits orientation, and benefits administration." Appellant's Br. pp. 18-19. Aside from travel per diem, RLTC only lists these proffered benefits by name and provides no explanation as to what these benefits entail, their monetary value, or why it believes they should be considered fringe benefits for purposes of the CCWA. As such, we address only the issue of whether the trial court erred in failing to include travel per diem as a fringe benefit.3

In Union Township School Corp. v. State ex rel. Joyce, 706 N.E.2d 183 (Ind.Ct.App.1998), trans. denied, we concluded that, for purposes of the CCWA, the term "wages" includes fringe benefits and adopted the following definition for wages:

Id. at 191. In order to be considered a fringe benefit, there has to be a clear benefit to the employee. Wressell, 988 N.E.2d at 296.

RLTC's President and CEO, Greg Turner, testified that RLTC had a policy of paying a travel per diem of two dollars per hour worked to employees who traveled more than sixty miles one-way to get to a job site. (Tr. 396-98) Wressell testified that when he was initially asked by his supervisor to move to the Gatewood Project he declined because it would cost him too much in gas to make the trip. (Tr. 141) Wressell agreed to work the Gatewood Project only after he was informed that he would be paid an additional two dollars an hour in travel per diem. (Tr. 141)

Following the parties' closing statements at trial, the trial court stated that "I think the two dollars [an hour per diem] which comes out to $1452 [sic] additional to what was stipulated to is appropriate, is an appropriate fringe benefit but I'm not sure about the rest of it." Tr. p. 468. However, the trial court later stated that it did not consider travel per diem to be a legitimate fringe benefit and explained its rationale for that decision as follows:

Appellant's App. p. 209 n.1.

Based on the facts of this particular case, we are unpersuaded that per diem paid as a reimbursement for travel costs should be considered a fringe benefit for purposes of the CCWA. Traveling from Indianapolis to the Gatewood Project in Lafayette imposed a significant cost on Wressell and similarly situated employees. RLTC's payment of travel per diem operated to shift a portion of that cost from those employees back to the company. However, the payments did not provide a standalone benefit to Wressell. Should Wressell have been injured or taken paid time off, he would be paid only his typical hourly wage, and would not receive per diem because he incurred no travel costs.

In his appellate brief, Wressell provides an insightful example which we paraphrase here: if an employee is required by his employer to travel by plane to another city for work, the employee receives no benefit when the employer reimburses him for the cost of the plane ticket. The airfare is simply a cost of doing business which the company incurs, there is no standalone benefit to the employee. The same logic applies here. RLTC was incurring a cost to assure its workers were able to travel to the job site.

We also note that the travel per diem payments had few similarities as other wages or benefits. Wressell did not receive per diem in the same fashion as he did other wages or fringe benefits, but received a tax-free cash payment at the end of each day as per diem. Aside from his daily work, Wressell incurred no cost in order to receive his other fringe benefits, e.g. health, dental, and life insurance, paid time off, and paid holidays.

This reasoning is supported by other jurisdictions which have addressed this issue and have declined to include travel per diem as a wage or fringe benefit where the per diem did not exceed the cost incurred by the employee. See Antillon v. N.M. State Highway Dep't, 113 N.M. 2, 820 P.2d 436, 440 (N.M.Ct.App.1991) (reimbursement for travel expenses is not considered part of a worker's wage unless the reimbursement is in excess of the employee's actual expenses and thus constitutes a real economic gain to the employee); see also Hackett v. W. Express, Inc., 21 A.3d 1019, 1022 (Me.2011) (per diem payments to reimburse employee for travel expenses is "not includable to any extent in average weekly wage"). Accordingly, we affirm the trial court's decision regarding the amount of fringe benefits received by Wressell for purposes of the CCWA.

III. Attorney Fees

We review a trial court's award of attorney's fees, and the amount of any such award, for an abuse of discretion. Daimler Chrysler Corp. v. Franklin, 814 N.E.2d 281, 286 (Ind.Ct.App.2004) (citing Malachowski v. Bank One, Indpls., N.A., 682 N.E.2d 530, 533 (Ind.1997)). "An abuse of discretion occurs when the trial court's award is clearly against the logic and effect of the facts and circumstances before the court." Id. at 286-87. "An award of attorney's fees will be reversed on appeal as excessive only where an abuse of the trial court's discretion is apparent on the face of the record." Id. at 287 (citing Owen v. Vaughn, 479 N.E.2d 83, 88 (Ind.Ct.App.1985)). "We do not reweigh the evidence; rather, we determine whether the evidence before the trial court can serve as a rational basis for its decision." DePuy Orthopaedics, Inc. v. Brown, 29 N.E.3d 729, 732 (Ind.2015) (citation omitted).

A. Whether Wressell was Entitled to Attorney's Fees Under Indiana's Wage Payment Statute

Indiana Code Section 22-2-5-2 provides that employers who fail to pay their employees' wages are liable for an employee's reasonable attorney's fees and court costs incurred as a result of litigation to obtain unpaid wages. RLTC contends that fringe benefits should be treated differently than wages for purposes of the attorney fee shifting provision of Indiana's Wage Payment Statute (Ind. Code § 22-2-5-1 et seq.). For several reasons, we disagree with this proposition.

The purpose of the fee shifting provision is to deter employers from playing "fast and loose with wage obligations" by imposing treble damages and attorney's fees for non-compliant employers. St. Vincent Hosp. & Health Care Ctr., Inc. v. Steele, 766 N.E.2d 699, 706 (Ind.2002). Fringe benefits are a distinct form of compensation but are nonetheless an obligation owed to the employee by the employer. We have no reason to believe that the legislature did not intend for this deterrent scheme to extend to fringe benefits.

Furthermore, this court has previously treated employee benefits as wages in several different contexts. When this case was on appeal previously, we noted that "for the purposes of the CCWA, `wages' include fringe benefits," and that fringe benefits are "a subset of wages." Wressell, 988 N.E.2d at 296 (citing Union Township School Corp., 706 N.E.2d 183). We have also determined that deferred benefits, such as "PTO, pension benefits, retirement savings plans," etc., which have accrued during an employee's tenure, are wages for purposes of the Wage Payment Statute. Taylor v. Cmty. Hospitals of Ind., Inc., 860 N.E.2d 1200, 1203 (Ind.Ct. App.2007). RLTC was required to compensate Wressell at an expressly defined rate under the CCWA and failed to do so. Consequently, Wressell was entitled to treble damages and attorney's fees under the Wage Payment Statute.

B. Whether the Trial Court's Award of Attorney's Fees was Reasonable

RLTC argues that the trial court's award of attorney's fees was unreasonable (1) compared to the damages awarded and (2) because it was based on an unreliable calculation of actual hours worked.

In determining a reasonable amount of attorney's fees, consideration should be given to the nature and difficulty of the litigation; the time, skill, and effort involved; the fee customarily charged for similar legal services; the amount involved; the time limitations imposed by the circumstances; and the result achieved in the litigation. See In re Eiteljorg, 951 N.E.2d 565, 573 (Ind.Ct.App.2011); see also Zebrowski & Assocs., Inc. v. City of Indpls., By & Through its Bd. of Dirs. for Utils. of its Dep't of Pub. Utils., 457 N.E.2d 259, 264 (Ind.Ct.App.1983).

i. Amount Involved and Result Achieved

RLTC neglects to analyze the reasonableness of the fee award under the aforementioned factors and instead argues that an attorney fee award of four times the potential recovery is patently unreasonable. RLTC cites Ponziano Construction Services., Inc. v. Quadri Enterprises, LLC to suggest that limits on attorney's fee awards based on potential recovery have been upheld in Indiana. 980 N.E.2d 867, 877 (Ind.Ct.App.2012). However, the Ponziano court was addressing a very narrow issue.

Id. at 877 (citations omitted). Ponziano dealt with too distinct of an issue to provide significant support for a comparable limitation here. RLTC cites no other cases or statutes which support the imposition of limits to attorney's fee awards based solely on the potential compensatory award.

We acknowledge the policy dilemma faced by lawmakers in striking an appropriate balance between (1) creating a mechanism which helps employees vindicate wage claims and (2) the risk of exploitation of that mechanism by attorneys to the detriment of employers. Our courts play a part in maintaining this balance by using the abovementioned factors to assure that all attorney's fees awarded are reasonable. Despite RLTC's argument, there is no precedent which provides for a definitive cap to attorney's fee awards based on the potential or actual recovery. The recovery is only one consideration which the court may take into account when determining what amount of fees are reasonable. RLTC is free to lobby the legislature to promulgate such a rule but it is not this court's place to do so.

In the same vein, RLTC argues that the trial court erred by failing to consider either the actual or potential award in its decision to award attorney's fees. However, the trial court addressed both the "amount involved" and "result achieved" factors enunciated above. Wressell claimed that he was underpaid $8,205.82, (App. 209), and was ultimately awarded $3,852.82 in compensatory damages for unpaid wages and $7,705.64 in treble damages. The trial court noted that the disputed amount was relatively small, especially when compared to the attorney's fees, but "[i]f an attorney cannot earn a fee commensurate with the significant work it takes to vindicate what might be a modest right or a modest injustice — $3,800.00 of underpaid wages over two years — than [sic] modest injustices will continue." Appellant's App. p. 210. The trial court's reasoning echoes the purpose of the fee shifting provision; to deter employers from failing to pay workers their due wages. Steele, 766 N.E.2d at 706.

ii. Calculation of Attorney Time Billed

Wressell's attorney's requested fees for 349.8 hours of work. The trial court found that, overall, the amount of hours worked was reasonable considering the complexity of the issues and the length of the case, which lasted several years and included defending and losing on summary judgment, prevailing in a 2013 appeal in which this court overturned that summary judgment, and ultimately prevailing at trial. The trial court found the attorneys billing statements to be adequately precise and detailed. Of the over 300 hours billed, the trial court found only 3.7 hours to contain "less detail than might be desired." Appellant's App. p. 211. The trial court also deducted 16.9 hours from the requested amount for time spent on a failed cross-motion for summary judgment and ultimately determined the reasonable fees to be 332.9 hours at a rate of $300 per hour for a total of $99,870 (RLTC does not contend that the hourly rate was unreasonable).

RLTC makes no specific argument as to why the calculation of hours worked is unreasonable and instead argues only that the documents cataloguing the attorney's hours worked should be viewed with skepticism because the client, Wressell, was not actively reviewing the accuracy of those billed hours. Further, RLTC argues that the trial court erred when it "accepted and awarded fees based on the time entries as presented." Appellant's Br. p. 33. However, as described above, the trial court conducted its own objective review of the time entries and, with the exception of 16.9 hours deducted for time spent on a failed cross-motion, found the total calculation of hours to be reasonable. As such, RLTC's argument is essentially a request for this court to reweigh the evidence and reevaluate the credibility and accuracy of the time entries. "We do not reweigh the evidence; rather, we determine whether the evidence before the trial court can serve as a rational basis for its decision." DePuy Orthopaedics, 29 N.E.3d at 732. Based on the fact that this case has continued for nearly four years and is now on appeal for a second time, we think the trial court had ample basis for its decision on the reasonableness of the amount of hours billed by Wressell's attorneys.

iii. Culpability for Protracted Litigation

When determining an appropriate attorney fee award, this court has also looked to whether either party is responsible for unduly delaying the litigation. Eiteljorg, 951 N.E.2d at 573. The reason for the protracted litigation in this case was due, in large part, to RLTC's reluctance to cooperate during mediation or during the IDOL investigation, as well as RLTC's attempts to hinder discovery. IDOL stated that it was unable to resolve Wressell's claim "primarily because [RLTC] either failed or refused to cooperate in the investigations and refused to produce the records necessary for [IDOL] to determine whether [RLTC] paid wages in accordance with the [CCWA]." Appellant's App. p. 47. Therefore, litigation may have been unnecessary had RLTC cooperated with IDOL's investigation. Additionally, it appears RLTC was guilty of dilatory discovery tactics. The trial court described the parties' discovery as "not always amenable," Appellant's App. p. 211, and, at one point, Wressell was forced to file a motion to compel discovery and requesting sanctions before RLTC ultimately complied with certain discovery requests. (App. 4)

iv. Reasonableness of Attorney Fees — Analysis

In light of the protracted nature of this litigation, RLTC's obstructive litigation behavior, the complexity of the issues, the mostly successful result achieved for Wressell, and the purpose behind the fee shifting provision of the Wage Payment Statute, we find that the trial court did not abuse its discretion in fashioning its attorney's fees award. As the trial court noted, "While the fees claimed in this matter are breathtaking and giving of pause to their imposition, the law is the law. If reasonable fees cannot be earned, no lawyer will take the case." Appellant's App. p. 210. Were we to find that the fees awarded in this case were unreasonable solely in light of the ultimate compensatory award, there would be a chilling effect on the ability of injured employees to find attorneys willing to take their cases.

C. Fee Agreement

Finally, RLTC argues that the attorney's fees awarded should have been limited to forty percent of the total award pursuant to the contingency fee arrangement between Wressell and his attorneys. Wressell's attorney fee agreement reads as follows:

Appellant's App. p. 198. RLTC argues that an award of attorney's fees greater than forty percent of the recovery would be punitive in nature and provide a "windfall" to Wressell. Appellant's Br. p. 36. This argument is without merit. The trial court's award of attorney's fees was based on the total hours worked by Wressell's attorneys and will compensate the attorneys for their time spent on the case. In the fee agreement with his attorneys, Wressell agreed to pay "actual attorney's fees awarded ... by a court." Appellant's App. p. 198. Therefore, despite RLTC's contention otherwise, Wressell will not be enriched in any manner by the attorney fee award because he will retain none of that award for himself.

D. Appellate Fees

RLTC claims that, pursuant to Indiana Appellate Rule 66(E), Wressell was not entitled to receive attorney's fees for appellate work or appellate court costs for work regarding Wressell's appeal in 2013. Appellate Rule 66(E) provides that "[t]he Court may assess damages if an appeal, petition, or motion, or response, is frivolous or in bad faith. Damages shall be in the Court's discretion and may include attorneys' fees." However, Wressell's claim for attorney's fees was made under Indiana Code section 22-2-5-2, not under Rule 66(E). Section 22-2-5-2 does not exclude appellate work from that recoverable as reasonable attorney's fees. Furthermore, the Indiana Supreme Court has previously held that appellate attorney's fees are properly awardable under Section 22-2-5-2. St. Vincent Hosp. & Health Care Ctr., Inc. v. Steele, 766 N.E.2d 699, 706 (Ind.2002). RLTC cites to no cases or statutes supporting its contention that appellate fees are not recoverable under Section 22-2-5-2.

IV. Overtime

In his cross-appeal, Wressell argues that the trial court erred in failing to include overtime hours in its calculation of his rate of pay. RLTC did not address Wressell's claim for overtime compensation in either its initial brief or reply brief. Failure to respond to an issue raised in an opposing party's brief is akin to failing to file a brief, as to that issue. Gwinn v. Harry J. Kloeppel & Assocs., Inc., 9 N.E.3d 687, 690 (Ind.Ct.App.2014). Where one party fails to file an appellate brief, we may reverse the trial court if the appellant presents a case of prima facie error. Id. "Prima facie means `at first sight, on first appearance, or on the face of it.'" Id. (quoting Ponziano, 980 N.E.2d at 875.)

Indiana Code section 22-2-2-4(k) provides that "no employer shall employ any employee for a work week longer than forty (40) hours unless the employee receives compensation for employment in excess of the hours above specified at a rate not less than one and one-half (1.5) times the regular rate at which the employee is employed." Wressell claims, and the trial court acknowledged in its judgment, that Wressell worked 22 hours of overtime on the Gatewood Project and 21.5 hours of overtime on the Informatics Project. However, the trial court did not include any overtime compensation in its calculation of total compensation Wressell is entitled to under the CCWA.

Wressell claims that he is entitled to an additional $500.56 in compensatory damages for the uncalculated overtime hours and a corresponding $1,001.12 in additional liquidated damages pursuant to Indiana Code section 22-2-5-2. According to Wressell's time sheets, Plaintiff's Ex. 7, it appears that Wressell did work overtime on both the Gatewood and Informatics Projects and his calculations of the total overtime compensation are correct. Therefore, Wressell has established prima facie error by the trial court. We remand with instructions that the trial court award Wressell an additional $500.56 in compensatory damages and $1,001.12 in liquidated damages.

The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions.

MAY, J., and CRONE, J., concur.