On February 23, 1993, a contested case hearing was held in (city), Texas, with (hearing officer) presiding. The claimant was Mr. S, who was employed by the (employer) at the time of his injury on (date of injury). The issue determined at the contested case hearing was whether amounts paid as non-taxable mileage reimbursement should be included in the claimant’s gross wages for purposes of computing his average weekly wage (AWW). The hearing officer determined that certain amounts that were expressed as “mileage reimbursement” on claimant’s paychecks, and in fact constituted reimbursement for mileage relating to his task delivering the paper on a route, should not be included in the claimant’s AWW. However, the hearing officer determined that certain amounts paid as a bonus to the claimant for collection activities should be included as part of the weekly wages, notwithstanding the carrier’s argument that these amounts were also for “mileage.” The basis for excluding the paper/delivery mileage is cited as Texas W.C. Rules, 28 TEXAS ADMIN. CODE § 128.1 (Rule 128.1).
Both parties have appealed the part of the decision that went against that party. The carrier argues that the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 1.01 et seq. (Vernon Supp. 1993) (1989 Act), contemplates calculation of the AWW upon “salary,” and that the bonus amounts were not salary. The claimant argues that the amount paid as “mileage” should not be excluded under Rule 128.1, and states that this does not apply to him because he was not being paid for the use of his equipment. The claimant also points out that when he was originally hired, his wage was disclosed as $120 per week, with $15 to be for mileage, and that this was changed before his injury to $120, with $44 to be counted as “mileage.” The carrier responds to this by asserting that this portion of the decision should be upheld.
DECISION
After reviewing the record, we affirm the decision of the hearing officer.
Claimant performed two tasks, at the time of his injury, in the course and scope of his employment for the employer. One task was the delivery of papers, or “throwing” papers as described in the record, in the (city) area. Claimant also testified that he drove 21 miles a night, seven days a week performing this task. The other task involved collections of overdue bills for the newspaper, in the area. As payment, a certain percentage of the amounts collected would be paid to claimant, and, in addition, he would receive a weekly bonus calculated on the number of individuals from whom amounts were collected. The claimant testified that he held on to the bills he was given until they were collected. Claimant testified, and a witness for the employer, (Ms. T) agreed, that he was paid for both tasks on a single check.
Claimant had worked for the employer for four or five years. He resided in (city), Texas. He stated that when he was hired, it was agreed that his remuneration for the “throwing” task consisted of $105 as “commission,”[1] and $15 for “mileage.”[2] The claimant testified that this arrangement was changed by the employer prior to his injury, and that it was announced by the employer that $44 of the $120 remuneration for the “throwing” task would be attributed to “mileage.” The claimant indicated that this announcement characterized the move as a salary increase. The claimant testified that he believed that the employer paid less Social Security withholding as a result of this change. For three weeks where the claimant did not deliver the paper all seven days, adjustments were made both to his $44 “mileage” and his $76 “commission.” The claimant testified that his actual out-of-pocket expense for travel related to “throwing” the paper was closer to $15 a week.
Ms. T, the safety program administrator for the employer, testified that both the bonus amounts for the collection work and the $44 for “throwing the paper” were intended as mileage for wear and tear on the employee’s car. She conceded, however, that the bonus for collections was tied to the number of persons from whom amounts were collected in any given week, and that if an employee drove several hundred miles, but collected from no one in a given week, no bonus amounts would be paid. Ms. T indicated that the bonuses represented “anticipated” travel in connection with collection of bills. Ms. T stated that neither the bonus nor the $44 mileage were included in an employee’s taxable income for federal income tax purposes. She was unable to describe how the bonus amounts were initially categorically set by the employer. A chart was entered into evidence which described the bonus amounts in terms of mileage, but indicated that the amounts were figured not by travel but by the number of persons from whom collections were made. Ms. T indicated that this system was adopted in lieu of a system whereby individual collectors would keep track of mileage and turn in claims.
Ms. T stated that for delivering papers, claimant’s “base rate” was $76 per week, and that this amount would be different for each carrier. When asked how the $44 figure for throwing was derived, she stated that it was based on the mileage from the branch office to the delivery area, and to some extent upon historical information about the length of a route. Ms. T stated she had no knowledge of what claimant’s arrangement was when he was hired, or whether the mileage amount was originally $15.00.
The hearing officer asked claimant why he contended that the $44 was not actually “mileage,” as claimed by the employer. The claimant indicated his primary reason was that this figure exceeded his actual expense in travelling to and through (city), and that the originally disclosed $15 was closer to his expense. The hearing officer then took a figure of $0.275 per mile (the state mileage reimbursement rate), applied it to the 21 miles that claimant said he travelled each night, and determined that the result would amount to slightly over $40, but less than $44 per week. The hearing officer noted that it thus appeared that the $44 figure was reasonably close to what reimbursement might be vehicle expense for someone travelling on business for the State of Texas.
Paycheck stubs in evidence show that $44 was separately listed as “mileage.” The amounts so listed do not appear to have been used to figure federal income tax and FICA withholding, although all other amounts were.
The hearing officer is the sole judge of the relevance and materiality, the weight and credibility, of the evidence offered in a contested case hearing. 1989 Act, Art. 8308-6.34(e). The decision of the hearing officer will be set aside only if the evidence supporting the hearing officer’s determination is so weak or against the overwhelming weight of the evidence as to be clearly wrong or manifestly unjust. Atlantic Mutual Insurance Co. v. Middleman, 661 S.W.2d 182 (Tex. App.-San Antonio 1983, writ ref’d n.r.e.).
At the outset, we would note that the carrier’s basic argument that AWW is derived from “salary” is not strictly accurate. For purposes of figuring AWW for payment of workers’ compensation income benefits, the amounts used are “wages,” which are defined in Article 8308-1.03(47) to broadly include “every form 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 other advantage that can be estimated in money which the employee receives from the employer as part of the employee’s remuneration.” As can be seen from the examples listed in the statute, there may be items provided by an employer that are not salary but will nevertheless be within the definition of “wage.”
The Texas Workers Compensation Commission, in Rule 128.1(c), has listed some categories of payments that will not be considered to be “remuneration.” Applicable to this case is exclusion of “payments made by an employer to reimburse the employee for the use of the employee’s equipment or for paying helpers. . . .” Rule 128.1(c)(1).
This provision was considered by the Appeals Panel in Texas Workers’ Compensation Commission Appeal No. 92119, decided May 4, 1992. That case dealt with the situation where, in addition to an agreement for a base salary, the employee and employer had agreed to an amount in addition to base salary to be paid for claimant’s use of her car in her job. This was fixed at $0.275 per mile. The employee in that hearing was required to keep track of mileage, and the amount for mileage included components of fuel, insurance, and maintenance. The amounts paid to the claimant in that case were directly traceable to the extent of use of her car, and were agreed to as an additional payment over and above her base salary. In that case, the Appeals Panel determined that Rule 128.1(c)(1) applied to exclude those amounts from computation into the AWW. The Appeals Panel noted that the burden would be on the claimant to prove how much, if any, of such mileage reimbursement amounts were for “fuel” as opposed to the use of the employee’s equipment.
The record in this case clearly indicates that the collection bonus amounts, which were not tied at all to the distance driven, are not for use of the claimant’s equipment, since no amounts are paid if no collections are made. The claimant sustained his burden of proving that collection bonus amounts were remuneration for the personal services of collecting bills from at least a certain “plateau” number of customers, not for vehicle use. The hearing officer’s determination that such amounts must be included is the average weekly wage computation is sufficiently supported by the evidence, and is affirmed.
By contrast, there is evidence in the record that the mileage component of the $120 per week for paper delivery was contemplated as reimbursement for the claimant’s use of his own vehicle to perform his job. He conceded that when he took the job, at least $15.00 of his weekly payment for paper delivery was disclosed as such. This was later amended to $44, which is not subjected to federal income tax.
We would agree, as the hearing officer stated during the hearing, that an employer may not simply take a figure, call it “mileage”, and seek to bind the fact finder to a holding that such an amount is excluded from average weekly wage by virtue of Rule 128.1(c)(1). Here, the hearing officer had paychecks stubs disclosing the amount as mileage and claimant’s testimony that he understood that at least $15 of his weekly payment for paper delivery was to compensate him for the use of his vehicle. In addition, the hearing officer used the state employees’ reimbursement rate as a method to “check” the reasonableness of the $44 figure as a fair value of compensation for use of claimant’s car, and found that the amount was very close.
We believe that the adjustment contemplated by Rule 128.1(c)(1) requires evidence of some understanding by the parties that certain amounts paid to the employee are for use of his equipment, that they be disclosed in terms such as mileage (and not as “bonuses”), and that such amounts also be reasonable. Those requirements are met here. We would caution parties against taking purely retrospective labels and applying them to justify deductions from the average weekly wage. For example, had the collection bonuses in this case been labelled as “mileage” on claimant’s checks, with no change in the substance of what those amounts were paid for, it would not convert such bonuses from remuneration to vehicle use.
The claimant’s point about whether his wage for paper delivery was reduced might be addressed by pointing out that average weekly wage is calculated based upon the thirteen week period prior to the accident. Article 8308-4.10(c). While we agree that claimant’s evidence on this brought forward pertinent points for the finder of fact to consider in determining what the $44 was paid for, we do not agree that his determination that $44 may be excluded under Rule 128.1(c)(1) is against the great weight and preponderance of the evidence, nor can we agree with claimant that this rule does not apply to him.
We affirm the decision of the hearing officer.
Susan M. Kelley – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Robert W. Potts – Appeals Judge
- The record, however, indicated, and the hearing officer pointed out at the hearing, that this was not a true commission derived as a percentage of persons to whom the paper was delivered, but was in the nature of salary. ↑
- The claimant has pointed out, correctly, that there is an error in the hearing decision listing this amount as “$115.” This appears to be an obvious typographical error, and does not indicate to us a misunderstanding by the hearing officer. ↑