On August 25, 1999, a contested case hearing (CCH) was held. The CCH was held under the provisions of the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). The issue at the CCH was the average weekly wage (AWW) of respondent (claimant). The hearing officer decided that claimant’s AWW is $537.80. Appellant (carrier) requests that the hearing officer’s decision be reversed and that a decision be rendered in its favor. Claimant requests affirmance.
DECISION
Affirmed.
The parties stipulated that claimant sustained a compensable injury on ____________. The parties also stipulated that claimant was the employee of (O Company) on ____________, and that O Company had workers’ compensation insurance with carrier. However, claimant testified that he was hired by (K Company) as a truck driver, and (DM), K Company’s “safety man,” testified that O Company handles K Company’s bookkeeping, payroll, insurance, and taxes. Claimant said that he began working on October 26, 1998. It is undisputed that in the 13-week period immediately prior to claimant’s compensable injury, he was off work from December 17, 1998, through January 1, 1999, due to a cause beyond his control. Carrier represented that there is not a same or similar employee on which AWW can be calculated and urged that a fair, just, and reasonable method be applied to determine AWW.
Claimant testified that when he was hired by K Company, a manager for K Company told him that he would be paid 25 cents per mile. Claimant said that when he has expenses relating to a trip, such as tolls, weighing fees, or drop fees that he pays for out of his own pocket, K Company reimburses him for those expenses. He said that when he goes on an overnight trip, he sleeps in the truck. He said that K Company also furnishes him with checks that he can fill out to pay for things like a flat tire. Claimant said that he does not submit receipts to K Company for reimbursement for meals and that he is not supposed to submit meal expenses to K Company. Claimant said that when he is on a trip that is going to take more than a day, K Company pays him $36.00. If it is a two-day trip K Company will pay him $72.00. He said he does not get the $36.00 if it is a trip he can make in one day. Claimant said that when K Company pays him the $36.00 when he has an overnight trip, then O Company will pay him 25 cents a mile for the trip mileage less the $36.00 (or $72.00 if that was what K Company paid him) that K Company paid him. He said that if it is not an overnight trip, then O Company pays him 25 cents per mile and there is no deduction for $36.00 because K Company would not have paid him $36.00 for that trip.
DM testified that he is familiar with how truck drivers are paid by K Company and O Company because he was a truck driver in that system. He said that the truck drivers receive 25 cents per mile. He also said that the way in which K Company determines whether a truck driver is to get a $36.00 per diem payment is to divide the number of miles to be driven on a trip by 55 miles per hour and then divide that figure by eight hours. If the trip is calculated to take less than half a day, no per diem is paid, but if the trip is to take more than half a day, a per diem is paid. DM said that the per diem is to reimburse the truck driver for expenses such as meals and laundry, but that the driver could spend it on a video machine, and that K Company pays the per diem to the driver. DM said that drivers are not required to submit meal expenses for reimbursement. He said that when a driver is paid a $36.00 per diem by K Company, that payment is “backed out” of the 25 cents per mile to be paid the driver and thus O Company pays the driver 25 cents per mile less the per diem payment of $36.00 and that the payment made to the driver by O Company constitutes the driver’s gross wages. He indicated that taxes are then deducted from the amount that O Company is to pay the driver. DM also said that expenses such as loading and drop fees that a driver is to be reimbursed for are added to the $36.00 per diem and a check for the total amount of those expenses and the per diem is issued to the driver by K Company.
Numerous documents are in evidence indicating miles driven by claimant and amounts paid to him. These documents reflect that K Company identifies the $36.00 payment referred to at the hearing as a per diem payment as a road expense and that “gross wages” are determined after deducting the $36.00 from the amount arrived at by multiplying 25 cents per mile by the number of miles driven on a trip. The documents also show that claimant is reimbursed by K Company for trip expenses such as drop fees, tolls, and scale weighing.
Section 401.011(43) states that wages “includes all forms of remuneration payable for a given period to an employee for personal services. The term includes the market value of board, lodging, laundry, fuel, and any other advantage that can be estimated in money that the employee receives from the employer as part of the employee’s remuneration.” See also Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 128.1(b). The hearing officer found that the money paid to claimant of 25 cents per mile he drove was a remuneration payable to claimant for personal services and constituted wages; that claimant drove 22,738 miles in the 13 weeks before the date of injury; that the $36.00 per diem that was subtracted from the payment for miles traveled was a remuneration payable to claimant for personal services and constituted wages; that claimant’s AWW is to be determined by a fair, just, and reasonable method under Section 408.041(c); and that the appropriate method to determine the claimant’s AWW is to divide his total wages of $5,684.50 earned between November 22, 1998, and February 20, 1999, by 10.57 weeks, which was the number of weeks claimant actually worked during that time period. The hearing officer concluded that claimant’s AWW is $537.80.
Carrier contends that the $36.00 per diem was an expense reimbursement and did not constitute wages. In Texas Workers’ Compensation Commission Appeal No. 970578, decided May 15, 1997, which is cited by carrier, the Appeals Panel held that a seven cents per mile per diem paid to a truck driver, which was included in the 22 cents per mile he was paid, was primarily a payment to defray travel expenses rather than a payment to provide a financial or economic gain to the driver for personal services and thus it was not properly characterized as a form of remuneration and the Appeals Panel reversed the hearing officer’s decision that included the seven cents per mile per diem in calculating AWW. In Texas Workers’ Compensation Commission Appeal No. 991126, decided July 8, 1999, also cited by carrier, the Appeals Panel reversed a hearing officer’s decision that a truck driver’s nine cents per mile per diem, which was included in the 30 cents per mile he was paid, was not a form of remuneration and was paid primarily to defray travel expenses rather than to provide a financial or economic gain to the driver, and rendered a decision that the AWW included the nine cents per mile per diem. The Appeals Panel stated that it had to look beyond the label of “per diem” and determined that the nine cents, which was paid to claimant based on the number of miles he drove, was remuneration for personal services, and noted that the facts in the case, which included the driver’s testimony that the only expense he incurred was food and that the employer reimbursed him for all truck expenses, were different than the facts in Appeal No. 970578, supra.
The issue of claimant’s AWW in the instant case provided a question of fact for the hearing officer to determine from the evidence presented. The hearing officer correctly noted that it is the substance of the payment, and not the label of “per diem,” that governs whether such payment is to be included as part of the AWW. The hearing officer noted several facts which he felt distinguished the instant case from the facts of Appeal No. 970578, supra. These included, among others, the circumstances under which a per diem was to be paid and then deducted from the mileage payment, and the reimbursement of travel expenses for such things as drop fees, load fees, and tolls, which he found were reimbursed upon presentation of receipts and were not wages. The 1989 Act makes the hearing officer the sole judge of the weight and credibility of the evidence. Section 410.165(a). We cannot conclude that the hearing officer erred as a matter of law as contended by carrier. We conclude that the hearing officer’s decision is supported by sufficient evidence and that it is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).
The hearing officer’s decision and order are affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Gary L. Kilgore – Appeals Judge