On August 14, 1997, a contested case hearing (CCH) was held with the record closing on November 21, 1997. 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 respondent’s (claimant) preinjury average weekly wage (AWW). The appellant (carrier) requests review and reversal of the hearing officer’s decision that the claimant’s preinjury AWW was $625.26. The claimant responds that the hearing officer’s decision is supported by the evidence and requests affirmance.
DECISION
Affirmed.
The parties stipulated that on _____, the claimant sustained a compensable back injury while working for (employer). The claimant testified that he owns a house in City 1, Texas, and that he began renting that house to a person in 1994. He said he had an understanding with the person renting the house that he could return to the house if something happened to him, which he did after his injury of _____. In July 1995 the claimant was working for a trucking company in City 2, Texas, and he was hired by the employer as a working supervisor on July 31, 1995. It is undisputed that the employer paid the claimant a weekly base salary of $440.00. The claimant began working for the employer at a job site in City 2 on August 1, 1995, and he worked at that location until August 11, 1995. The carrier did not pay for the claimant’s meals and lodging while he was working in City 2. The claimant said that when the employer asked him if he would be willing to work outside of the City 2 area, he told the employer that he would if the employer paid for his meals and lodging and that the employer agreed that it would pay for his meals and lodging. The claimant said that he was going to quit working for the employer but did not based on the employer’s agreement to pay for his meals and lodging. From August 13, 1995, to the date of his injury, _____, the claimant worked for the employer in City 3, Texas which the claimant said is about 800 miles from City 1 The claimant’s testimony and the carrier’s evidence reflects that while the claimant was working for the employer in City 3 the employer paid the claimant an extra $10.00 per day for meals and paid for the claimant’s room at a motel in City 4, Texas. The $10.00 a day for meals was paid to the claimant seven days a week, whether the claimant was working or not, and the employer paid for the claimant’s motel room for seven days a week. Usually the employer made direct payments to the motel for the claimant’s room, although there is evidence that for the first several days the claimant was in City 3 the employer gave him funds out of petty cash to pay for his motel room and in one instance the claimant paid for the motel room and was reimbursed by the employer for that payment. The claimant said that while working for the employer in City 3, he did not return to City 1 until after his injury. It is also undisputed that the claimant was paid an additional $207.60 in overtime pay while working for the employer. The employer’s owner provided an affidavit that the employer reimbursed the claimant for meals when he was out of town working for the employer at a “per diem” rate of $10.00 and directly paid for his lodging.
The hearing officer determined that the claimant worked for the employer for six weeks and one day prior to his injury. It is undisputed that the claimant did not work for the employer for at least 13 weeks immediately preceding his injury, that there is not a same or similar employee to base the claimant’s AWW on, and that the claimant’s AWW should be determined under a fair, just, and reasonable method. See Section 408.041. The hearing officer determined the total amount the employer paid for the claimant’s motel room while he was working in City 3 (he determined that the amount the employer spent for the claimant’s motel room was the fair market value of lodging) and the total amount the employer paid the claimant for meals at the rate of $10.00 a day while working in City 3. The hearing officer divided those amounts by the six weeks and one day the claimant worked for the employer prior to his injury. He also divided the $207.60 in overtime pay by the six weeks and one day the claimant worked for the employer. The hearing officer then added the weekly amounts he arrived at for meals, motel room, and overtime to the claimant’s base salary of $440.00 to find an AWW of $625.26, which he determined was the claimant’s AWW based on a fair, just, and reasonable method.
The carrier states that it is challenging the factual sufficiency of the evidence to support Findings of Fact Nos. 7 through 14, which are the hearing officer’s calculations on the AWW issue, but states that the crux of the dispute centers around whether the money spent by the employer for the claimant’s motel accommodations and meals should be included in the claimant’s AWW. In other words, there does not appear to be any dispute as to the amounts the hearing officer found the employer paid for the claimant’s motel room (the employer provided evidence regarding the amounts paid for the motel room) and meals or as to the hearing officer’s arithmetic in computing the AWW; rather, the dispute is whether the amounts the hearing officer found the employer paid for the claimant’s motel room and meals should be included in determining AWW. The hearing officer found that the amounts the employer paid for the claimant’s motel room and the amounts the employer paid the claimant for meals were part of the claimant’s remuneration. The carrier contends that the amounts the employer paid for the claimant’s motel room and meals are “reimbursements” rather than “remuneration” and should not be included in his AWW, citing Texas Workers’ Compensation Commission Appeal No. 931152, decided February 4, 1994.
Section 401.011(43) provides as follows:
(43)”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.
Tex. W.C. Comm’n, 28 TEX. AMIN. CODE §§ 128.1(b) and (c) (Rules 128.1(b) and (c)) provide as follows:
(b)An employee’s wage, for the purpose of calculating the [AWW] shall include every form of remuneration paid for the period of computation of [AWW] to the employee for personal services. An employee’s wage includes, but is not limited to:
(1)amounts paid to the employee by the employer for time off such as holidays, vacation, and sick leave;
(2)the market value of any other advantage provided by an employer as remuneration for the employee’s services that the employer does not continue to provide, including but not limited to meals, lodging, clothing, laundry, and fuel; and
(3)health care premiums paid by the employer.
(b)An employees wage, for the purpose of calculating the [AWW], shall not include:
(1)payments made by an employer to reimburse the employee for the use of the employee’s equipment or for paying helpers; or
(2)the market value of any non-pecuniary advantage that the employer continues to provide after the date of injury.
In support of his decision, the hearing officer cited American Surety Co. of New York v. Underwood, 74 S.W.2d 551 (Tex. Civ. App.-Waco 1934, writ ref’d). The Underwood case is a workers’ compensation case and it concerned a traveling salesman who was paid a salary and, in addition thereto, the employer would reimburse the employee for his expenditures for meals and lodging while away from home in the discharge of his duties of his employment. The court held that the trial judge did not err in instructing the jury that the word “wages” includes the market value of board and lodging which can be estimated in money which the employee receives from the employer as part of his remuneration. The carrier in Underwood contended that, since the sums the employer paid the employee for board and lodging were restricted to the amounts actually expended by him, he received no pecuniary advantage from such reimbursement and that those sums were not part of his remuneration or wages. In affirming the judgment of the trial court in favor of the employee on the wage issue, the court stated:
Whether an employee maintains his own home or not, he must nevertheless have a place to sleep and food to eat, and some pecuniary advantage must ordinarily result to him from having these necessities supplied by his employer. Our statute does not require an injured employee to show the amount actually saved by his absence from home while traveling at the expense of his employer, but makes the market value of his board and lodging paid by his employer a specific element of his average wages upon which his compensation is to be based. Appellant’s contention is without merit.
In Texas Workers’ Compensation Commission Appeal No. 941044, decided September 16, 1994, the Appeals Panel reversed a hearing officer’s decision that a $32.00 per day “per diem” the employee was paid, which was in addition to his hourly wage, was not to be included in his AWW, and remanded the case to the hearing officer. There was evidence that the per diem amount was paid to the employee seven days a week for food and lodging while the employee worked for the employer away from his home. In remanding the case, the Appeals Panel cited the definition of wages in Section 401.011(43) and stated:
We believe this definition makes clear that one must look beyond labels of “remuneration” and “per diem” to determine what the payments or advantages represent. Lodging and board described in the rule are undoubtedly “expenses” that a worker would have to bear regardless of the employment. However, we believe that the statute makes clear that in those instances, for example, where residence at or near a particular location is required, “board” or “lodging” furnished by the employer is part of weekly wage.
The carrier in the case under consideration relies on Appeal No. 931152, supra, for the proposition that the amounts the employer paid for the claimant’s motel room and the amounts it paid the claimant for meals are not part of his remuneration. The carrier in Appeal No. 941044, supra, also relied on Appeal No. 931152, for the proposition that the per diem paid to the employee was not part of his remuneration. In addressing the carrier’s argument in Appeal No. 941044 the Appeals Panel stated:
The carrier relied heavily on a prior decision of the Appeals Panel at the hearing and in its response. It is important to realize that the Appeals Panel has not simply ruled that any payments denominated as “per diem” are per se excluded from AWW. Texas Workers’ Compensation Commission Appeal No. 931152, decided February 4, 1994, dealt with facts different from those here. In issue in that case was whether specific per diem allowances paid to workers who traveled out of town occasionally, for periods in excess of 24 hours, were includable in AWW. That case expressly noted that the employee had been sent both away from home and the local work area. That is a situation distinguishable from payments made to secure an employee’s presence at or near the “local work area” on a fairly continuous basis.
Following our remand in Appeal No. 941044, supra, the hearing officer in that case determined that the employee’s per diem was part of his AWW and we affirmed that decision in Texas Workers’ Compensation Commission Appeal No. 941532, decided December 30, 1994, stating:
We believe the regularity of the payments, the fact that they were paid based upon a seven-day week, not just working days, and the fact that with the exception of Iowa, no travel expenses were actually incurred for which per diem could be viewed as “reimbursement,” are sufficient evidence to support the hearing officer’s decision that such amounts are remuneration and as such includable in claimant’s AWW. In the absence of evidence that there was reimbursable travel, such payments are analogous to the “lodging” or “board” components of remuneration that are defined as “wages” in the 1989 Act, for purposes of calculating the AWW. In any case, they would come well within “any form” of “remuneration,” as the hearing officer has determined as a conclusion of law.
With regard to the carrier’s contention in the instant case, which challenges the factual sufficiency of the evidence to support the hearing officer’s findings and his conclusion that the claimant’s AWW is $625.26, we conclude that the hearing officer’s findings and conclusion are supported by sufficient evidence and that they are 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). We further conclude that the carrier has not shown that the hearing officer erred in determining that the amounts the employer paid for the claimant’s motel room and the amounts the employer paid him for meals were remuneration to be included in the computation of his AWW. To the extent that Appeal No. 931152, supra, may appear to conflict with the court’s decision in Underwood, under the particular facts presented in this case, we find the decision in Underwood to be dispositive of the issue presented in this appeal.
The hearing officer’s decision and order are affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Judy L. Stephens – Appeals Judge