Opinion
W.C. No. 4-249-239
June 7, 1996
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) concerning the claimant's average weekly wage. We set aside the order, and remand for entry of a new order.
The claimant suffered a compensable injury in 1995 during her employment with Drywall Specialists. The respondents admitted liability for temporary disability benefits based upon the claimant's average weekly of $255.41 at Drywall Specialists. However, at the time of the injury the claimant was concurrently employed by American Property Management Inc. (American).
The claimant testified that she was paid a "flat" or "per job" fee for each home inspection she performed for American. She stated that during the four week period prior to the industrial injury she earned an average of $200 per week at American. (Tr. pp. 5, 6, 7). In support, the claimant submitted paystubs for the four week period prior to the industrial injury. (Claimant's Exhibit A). The paystubs reflect that the claimant's taxable compensation was determined by subtracting a "mileage" payment from the "gross" compensation." The claimant's paycheck was then calculated by adding the net taxable compensation, together with the "mileage" payment and the payment for "expenses."
The ALJ found that the claimant's average weekly wage at American was $200. In support of her determination the ALJ expressly relied upon Filippone v. Industrial Commission, 41 Colo. App. 322, 590 P.2d 977 (1978), in which the court concluded that where it was undisputed that the claimant's "wages" are based upon an "hourly rate of compensation," the fact finder lacks authority to reduce the claimant's "wages" by allocating a portion of the claimant's hourly rate of pay to the claimant's transportation expenses. The ALJ concluded that if the fact finder is not empowered to allocate a portion of the wages to transportation expenses "then the employer can have no such power, either." Consequently, the ALJ concluded that the claimant's average weekly wage must include the percentage of the flat fee which American allocated to "mileage." Therefore, the ALJ determined that the claimant's combined average weekly wage was $445.41, and ordered the respondents to pay temporary disability benefits consistent with that determination.
On review, the respondents' sole contention is that the portion of the claimant's concurrent earnings which was allocated to "mileage" is not part of the claimant's "wages." Because the ALJs' findings suggest that she may have applied the wrong legal standard in finding to the contrary, we must remand the matter for entry of a new order.
Section 8-40-201(19)(a), C.R.S. (1995 Cum. Supp.) defines "wages" to mean:
"the money rate at which the services rendered are recompensed under the contract of hire in force at the time of the injury, either express or implied."
As argued by the respondents, under § 8-40-201(19)(b) the cost of group health insurance, and the reasonable value of board, rent, housing and lodging is included in the term "wages." However, other "similar advantages" or "fringe benefits not specifically enumerated" are not included.
The statute also provides that "per diem" payments are not considered "wages" unless the payments are also considered wages for federal income tax purposes. Subsequent to the ALJ's order the Court of Appeals held that the term "per diem" means a "flat daily rate" or payment "figured on a per mile basis." Baylog Inc., v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 95 CA1969, May 16, 1996). Consequently, insofar as the ALJ determined as a matter of law that "mileage" payments cannot constitute "per diem" payments, she erred.
Furthermore, Filippone does not support the ALJ's conclusion that the employer may never allocate a portion of the claimant's gross compensation to "expense reimbursement." Rather, in Sneath v. Express Messenger, 881 P.2d 453 at 456 (Colo.App. 1994), the court stated that:
"an employer cannot evade its responsibility to its employee under the Workers' Compensation Act by labeling a portion of the compensation paid to that employee as an expense reimbursement, at least in those instances, as here, in which there is no rational or realistic relationship between the employee's actual expenses and the amount claimed as a reimbursement."
In Sneath the claimant 'suffered injuries while working as a delivery man, which required him to use his personal vehicle. He was paid a commission equal to 45% of the proceeds derived from all deliveries. When issuing the claimant's paycheck, the employer designated 1/2 of the gross commissions as a "non-taxable expense reimbursement," for use of the claimant's personal vehicle. However, the claimant was not required to submit any receipts documenting his vehicle expenses. Furthermore, the claimant received a single paycheck purporting to cover both the taxable and nontaxable portions of his compensation. Consequently, the Sneath court concluded that the employer's allocation of a part of the claimant's salary to "expense reimbursement" was "arbitrary," and thus, the claimant's average weekly wage must include the "expense reimbursement."
Here, the evidence is subject to conflicting inferences. The claimant admitted that she is reimbursed for mileage. (Tr. p. 9, lines 20-23). However, the record does not contain evidence that the amount allocated to "mileage" was based upon actual mileage records maintained by the claimant. Further, Claimant's Exhibit A indicates reimbursement for specific "expenses" such as film and mailing, which was not included in the gross compensation rate, but rather was added to the net taxable compensation. (Tr. p. 10).
On remand, the ALJ must resolve the conflicts in the evidence and redetermine the claimant's average weekly wage. Specifically, the ALJ is directed to whether the claimant was paid "mileage," and whether those payments constituted a "per diem" payment under the meaning of § 8-40-201(19)(b). Furthermore, if the claimant was paid "mileage" the ALJ must determine whether the employer's allocation of a portion of the claimant's gross compensation to "mileage" bore a rational relationship to the claimant's actual expenses, and the ALJ shall make specific findings concerning the evidence she relied upon in support of her determination. In her discretion the ALJ may hold additional hearings if she determines that additional evidence is necessary to resolve these issues.
Moreover, our remand should not be understood as an opinion concerning the credibility or probative weight of the evidence. Those are matters within the sole prerogative of the ALJ. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ's order dated September 14, 1995, is set aside, and the matter is remanded for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed June 7, 1996 to the following parties:
Glenda G. Wofford, 1110 Montrose Ave., Colorado Springs, CO 80906
Drywall Specialists, 6255 S. 29th St., Colorado Springs, CO 80904
Liberty Mutual Insurance Company. Attn: Kelle Walker, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For the Claimant)
Raymond A. Melton, Esq., 1120 Lincoln St., Ste. 1606, Denver, CO 80203 (For the Respondents)
BY: _______________________