Opinion
CLAIM NO. E505523
OPINION FILED JUNE 11, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by STEPHEN MEEH, Attorney at Law, Fort Smith, Arkansas.
Respondent represented by CONSTANCE CLARK, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
Claimant appeals from a decision of the Administrative Law Judge filed July 17, 1996 finding that claimant earned an average weekly wage of $149.50 per week. Based upon our de novo review of the entire record, we find that claimant has failed to prove by a preponderance of the evidence that the $28 per day per diem should be included in the calculation of claimant's average weekly wage.
Claimant began working for respondent in February of 1995. On March 31, 1995, claimant was killed in the course and scope of his employment leaving two dependents, a widow and a minor child. Claimant's accident was accepted as compensable. The only issue before the Administrative Law Judge, and on appeal is the calculation of claimant's average weekly wage. Specifically, claimant contends that his average weekly wage includes a $28 per day per diem. However, respondent contends that the $28 per day per diem should not be included in claimant's average weekly wage. After reviewing the record impartially, without giving the benefit of the doubt to either party, we agree with respondent that the $28 per day per diem should not be included in claimant's average weekly wage.
Ark. Code Ann. § 11-9-102 (19) defines wages as:
The money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, including reasonable value of board, rent, housing, lodging, or other similar advantage received from the employer . . .
Professor Larson, in his treatise Workmen's Compensation Law expounds upon the definition of wages to include "anything of value received as consideration for the work . . . constituting real economic gain to the employee." § 60.12 (a). In our opinion, the $28 per day per diem does not constitute real economic gain to the employee. The record reflects that claimant was paid a rate of $28 per day for each day he spent on the road for reimbursement of his meal and other personal expenses. This per diem was paid so long as claimant was on the road, regardless of the actual work or services provided. The evidence reveals that the per diem allowance was designed solely to reimburse claimant for the cost of meals and other expenses which he had to pay himself while on the road for his employer. Claimant has not shown that this reimbursement constituted an advantage or a real economic gain.
The only reported case in Arkansas which directly addresses whether a per diem should be included in calculating the average weekly wage is a United States District Court for the Western District of Arkansas Opinion. In Employers Insurance of Wausau v. Polar Express, Inc., 780 F. Supp. 610 (W.D. Ark. 1991), Judge Franklin Waters held that a six cents per mile per diem allowance was not enumeration for services rendered but rather reimbursement to drivers for the necessary business expenses while on the road.
Although the Full Commission held in Jackson v. Caywood Trucking, FC Opinion August 14, 1996, ( E505719) that a $25 per diem allowance should be included in the calculation of average weekly wage, we now agree with Commissioner Holcomb's dissent in that case. The Full Commission did not address the Wausau v. Polar decision nor did it address Professor Larson's discussion of "real economic gain." In this case, claimant neither alleged nor has he proven that the per diem he received was in excess of his actual expenses and thus constituted a real economic gain. Accordingly, we find that claimant has failed to prove by a preponderance of the evidence that the per diem should be included in the calculation of average weekly wage.
In calculating claimant's average weekly wage, we note that the record reveals that the claimant received wages, tips or other compensation totalling $1196.00 for the eight weeks he worked for respondent. When claimant's total wages are divided by eight weeks the record reflects claimant earned an average weekly wage of $149.50 per week. Consequently, we find claimant's average weekly wage to be $149.50 per week.
Therefore, for those reasons discussed herein, we affirm the decision of the Administrative Law Judge excluding the per diem from claimant's average weekly wage and find that claimant earned an average weekly wage of $149.50 per week.
IT IS SO ORDERED.
DISSENTING OPINION
I must respectfully dissent from the opinion of the majority finding that the $28.00 per diem paid to the decedent was not wages and therefore could not be considered in determining the decedent's average weekly wage.
Ark. Code Ann. § 11-9-102 (19) defines wages as "the money rate at which the service rendered is recompensed under the contract hire in force at the time of the accident, including reasonable value of board, rent, housing, lodging, or similar advantage received from the employer. . . ."
The decedent was a truck driver for the employer and apparently worked only eight weeks prior to his death. The wage records indicate that he generally worked five days per week but had also worked six days in a couple of weeks. Regardless of the number of days worked, the decedent was paid the sum of $300.00 each week. These payments were split between gross or "regular" earnings and "per diem" earnings. Claimant was paid a flat per diem allowance of $28.00 for each day on the road. When claimant worked five days in a week, he received $140.00 per diem (5 times $28.00) and regular wages in the amount of $160.00. Correspondingly, when the decedent worked six days, he received $168.00 in per diem allowances and wages of $132.00. Thus, as claimant received more per diem pay, his regular pay deceased accordingly. Claimant did not receive a regular or gross pay which could be used to determine his average weekly wage, exclusive of the per diem allowances.
In my opinion, the per diem allowances should be included as wages for the purpose of determining claimant's average weekly wage. The facts of this case are similar to those in Jim Jackson v. Cawood Trucking, Full Commission opinion filed August 14, 1996 ( E505719), where the Commission included per diem allowances in calculating the average weekly wage and I simply incorporate the reasoning expressed by the Commission in Jackson. Finally, I realize that the United States District Court in Employers Insurance of Wausau v. Polar Express. Inc., 780 F. Supp. 610 (W.D. Ark. 1991) found that per diem allowances paid to a truck driver were not to be considered remuneration upon which workers' compensation premiums could be based. However, the employees in that case were also paid a regular or flat rate of 17 or 18 cents per mile in addition to the 6 cents per mile per diem. Further, the employer proved that the per diem allowance was reasonably calculated to approximate expenses incurred or the expenses the employer reasonably anticipated would be incurred. In the present case, the employee was not paid a fixed, regular wage in addition to the per diem allowance and there is insufficient evidence that the per diem allowance approximates actual expenses incurred.
For the foregoing reasons, I would reverse the opinion of the Administrative Law Judge and include the $28.00 per diem in calculating the decedent's average weekly wage.
PAT WEST HUMPHREY, Commissioner