Arthur Larson, Larson's Workers' Compensation Law 93.01[2][b], at 93 (Rev.Ed.2015); see also Lamar v. Koehn, 968 P.2d 164, 167 (Colo.App.1998) (excluding an employer's contribution to an employee's pension plan from the calculation of weekly benefits); Luce v. United Technologies Corp., Pratt & Whitney Aircraft Div., 247 Conn. 126 (1998) (finding that the calculation of "wages" under the state's workers' compensation laws does not include pensions); Rainey v. Mills, 733 S.W.2d 756, 758 (1987) (declining to find statutory support to include fringe benefits, such as employer pension plan contributions, in weekly wage calculation); Barnett v. Sara Lee Corp., 627 A.2d 86, 90-91 (1993) (finding that pension plans could not be considered in the calculation of weekly wages for the purpose of determining a claimant's industrial loss of use); In re Gagnon, 965 A.2d 1154, 1159 (N.H.2009) (holding that weekly wages are calculated using a claimant's pre-tax pay and, therefore, it was not unjust for the collective bargaining agreement to exclude employer payments to an employee's pension plan from the definitio
The majority trend is to treat an employer's matching contribution to a 401k plan as a welfare benefit that falls under the category of “fringe benefits,” and thus is not included in the calculation of weekly benefits for workers' compensation purposes. 8 Arthur Larson et. al., Larson's Workers' Compensation Law § 93.01[2][b], at 93–20 (rev. ed.2015); cf. City of Lamar v. Koehn, 968 P.2d 164, 167 ( Colo.App.1998) (excluding an employer's contribution to an employee's pension plan from the calculation of weekly benefits); Luce v. United Techs. Corp., 247 Conn. 126, 717 A.2d 747, 755 (1998) (finding that the calculation of “wages” under the state's workers' compensation laws does not include pensions); Rainey v. Mills, 733 S.W.2d 756, 758 (Ky.Ct.App.1987) (declining to find statutory support to include fringe benefits, such as employer pension plan contributions, in weekly wage calculation); Barnett v. Sara Lee Corp., 97 Md.App. 140, 627 A.2d 86, 90–91 (1993) (finding that pension plans could not be considered in the calculation of weekly wages for the purpose of determining a claimant's industrial loss of use); In re Gagnon, 158 N.H. 391, 965 A.2d 1154, 1159 (2009) (holding that weekly wages are calculated using a claimant's pre-tax pay and, therefore, it was not unjust for the collective bargaining agreement to exclude employer payments to an employee's pension plan from the definition of wage
Before 1989, Colorado's definition of wages was like ours, "'the reasonable value of board, rent, housing, lodging or any other similar advantage received from the employer.'" City of Lamar v. Koehn, 968 P.2d 164, 166 (Colo.Ct.App. 1998) (quoting 1919 Colo. Sess. Laws, ch. 210, § 47, at 716). Based on that definition, the Colorado Court of Appeals held that FICA tax payments were not included in the "'other similar advantages'" definition of "wages."
We also note that prior to 1989 the term "wages" included the reasonable value of board, rent, housing, lodging, or any other similar employer-paid fringe benefits. In 1989, § 8-40-201(19)(b) was amended to narrow the definition of "wages" to exclude "any similar advantage or fringe benefit not specifically enumerated."See City of Lamar v. Koehn, 968 P.2d 164 (Colo.App. 1998). Therefore, even though the legislature may have increased the relative value of employer-paid health insurance, it also decreased the potential AWW by excluding certain fringe benefits from consideration.
Further, once the claimant earned the PET time, it was never forfeited and could be taken as fully compensated sick leave, vacation leave, or converted to cash when the employment ended. Conversely, in City of Lamar v. Koehn, 968 P.2d 164 (Colo.App. 1998) the court concluded that vacation and sick leave earned by the claimant did not constitute "cash equivalents" for purposes of § 8-40-201(19)(a) because the benefits were subject to forfeiture if the claimant accrued a specified maximum number of leave days. Section 8-40-201(19)(a), also provides that the average weekly wage includes the "fringe benefits" expressly enumerated in subsection 8-40-201(19)(b).
The term "wages" also includes "fringe benefits" expressly enumerated in subsection 8-40-201(19)(b), C.R.S. 2001. See City of LaMar v. Koehn, 968 P.2d 164 (Colo.App. No. 1998). Insofar as pertinent, the term "wages" includes: "the amount of the employee's cost of continuing the employer's group health insurance plan and, upon termination of the continuation, the employee's cost of conversion to a similar or lesser insurance plan."
In 1989 § 8-40-201(19)(a) was amended to narrow the definition of "wages," to exclude "any similar advantage or fringe benefit not specifically enumerated." City of Lamar v. Koehn, 968 P.2d 164 (Colo.App. 1998); Schelly v. Industrial Claim Appeals Office, supra. Therefore, even though the legislature may have increased the relative value of employer paid health insurance, it also depleted the potential average weekly wage by excluding certain fringe benefits from consideration.
In our view, § 8-40-201(19)(b) contains an express prohibition on the type of "gratuities" which the ALJ may include when calculating a "fair" average weekly wage. Since unreported tips are not a type of "advantage" specifically listed in § 8-40-201(19)(b), they are necessarily excluded from consideration. Cf. City of Lamar v Koehn, 968 P.2d 164 (Colo.App. 1998). Moreover, because § 8-40-201(19)(b) is a specific provision governing gratuities, it must prevail over the general considerations found in § 8-42-102(3).
The term "wages" includes "fringe benefits" expressly enumerated in subsection 8-40-201(19)(b). See City of LaMar v Koehn, 968 P.2d 164 (Colo.App. No. 1998) Contrary to the respondents' contention, the bonuses are not a form of "fringe benefit" for purposes of the statute.
We also held that the veterinary services did not have a "reasonable, present-day, cash equivalent value" because the claimant admitted the value of the services depended on her actual usage and could decline over time. See City of Lamar v. Koehn, 968 P.2d 164 (Colo.App. 1998). Consequently, we set aside the ALJ's prior order and directed him to determine the claimant's average weekly wage without regard to the value of the veterinary services.