Opinion
CLAIM NOS. E603970 E414831
OPINION FILED SEPTEMBER 15, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by CONRAD ODOM, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by CONSTANCE CLARK, Attorney at Law, Fayetteville, Arkansas.
Decision of Administrative Law Judge: Affirmed as modified.
OPINION AND ORDER
Claimant appeals and respondent cross appeals from a decision of the Administrative Law Judge filed December 2, 1996 finding that claimant earned an average weekly wage in 1994 of $330.95 entitling claimant to temporary total disability at a rate of $221.00 and finding that claimant earned an average weekly wage in 1995 of $362.42 entitling claimant to a temporary total disability rate of $242.00 and finding that claimant sustained a 3% wage loss disability over and above his physical impairment rating. Based upon our de novo review of the entire record, we modify the Administrative Law Judge's decision with regard to claimant's average weekly wage in 1994. Our calculation reveals an average weekly wage of $329.02 which computes to a temporary total disability rate of $219.00 per week. We would also modify the decision of the Administrative Law Judge to clarify the appropriate permanent partial disability rate to be paid for the wage loss disability and to address respondents entitlement to a credit for any overpayment of permanent partial disability benefits.
The record reveals that claimant sustained two compensable injuries while working for respondent. The first injury occurred on June 19, 1994, when claimant injured his neck. Claimant sustained a second compensable injury on August 10, 1995, when he exacerbated his previous neck injury. At the time of claimant's injury he was employed by respondent as a short-haul driver. Respondent accepted the compensability of claimant's injuries and paid temporary total disability benefits, medical benefits, and a 5% physical impairment rating. The issues litigated at the August 27, 1996, hearing were claimant's entitlement to wage loss disability over and above the physical impairment rating, the appropriate calculation of claimant's average weekly wage, and respondents entitlement, if any, to overpayment for permanent partial disability benefits paid. Based upon our de novo review of the entire record, we find that the decision of the Administrative Law Judge should be affirmed as modified.
A dispute has arisen regarding whether claimant's average weekly wage should include the $35 per night per diem which claimant received whenever he made overnight deliveries. Claimant contends that this $35 per day is a subsistence allowance which should be included in claimant's wages as that term is defined by the Workers' Compensation Act. However, respondent contends that the $35 per day is not a real economic gain to claimant but rather a reimbursement of actual expenses and should therefore not be included in claimant's calculation of average weekly wage.
Arkansas 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 states that in computing average weekly wage one should consider not only wages and salary "but anything of value received as consideration for the work, as, for example, tips, bonuses, commissions, and room and board, constituting real economic gain to the employee." § 60.12 (a). We cannot find that the $35 per diem constituted a real economic gain to claimant. The $35 per diem was intended to reimburse claimant for his out-of-pocket expenses. Since claimant was on the road as a result of his employment, respondent reimbursed claimant for the cost of meals and other expenses which claimant would otherwise pay himself. The per diem allowance did not compensate or remunerate for services rendered in the course and scope of his employment. Claimant has not shown that the per diem constituted a real economic gain over and above his actual expenses while on the road.
Although the Arkansas Supreme Court and Arkansas Court of Appeals have not addressed whether a per diem such as this should be included in the calculation of average weekly wages, the United States District Court for the Western District of Arkansas has. In Employers Insurance of Wausau v. Polar Express, Inc., 780 F. Supp. 610 (W.D. Ark. 1991) Judge Franklin Waters held that the per diem allowance was not compensation for employment services and should therefore be excluded from the determination of workers' compensation premiums due. If it is not included in the calculation of premiums, neither should it be included in the calculation of average weekly wage.
In our opinion, the most just and fair way to calculate claimant's average weekly wage is to add his gross wages for the fifty-two weeks preceding his injury and to divide the total by fifty-two. Using this formula, we find that claimant earned a total gross salary for the fifty-two weeks preceding his 1994 injury of $17,109.15. This computes to an average weekly wage for the 1994 injury of $329.02 which would entitle claimant to a temporary total disability rate of $219.00 per week. Using the same method, we have calculated a gross wage for the fifty-two weeks preceding claimant's 1995 injury of $18,845.66. This computes to an average weekly wage of $362.42 which would entitle claimant to a temporary total disability rate of $242.00 per week.
With regard to the issue of wage loss, we affirm the finding of the Administrative Law Judge that claimant sustained a three percent (3%) wage loss disability over and above his physical impairment rating. In determining wage loss disability, the Commission may take into consideration the workers' age, education, work experience, medical evidence and any other matters which may reasonably be expected to affect the workers' future earning power. Such other matters are motivation, post-injury income, credibility, demeanor, and a multitude of other factors.Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984).Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990). A claimant's lack of interest in pursuing employment with his employer and negative attitude in looking for work are impediments to our full assessment of wage loss. The evidence reveals that claimant has continued to work for respondent although no longer in the capacity of a truck driver. Claimant is a high school graduate and army veteran. Claimant has an excellent work history and has worked in the field of air craft mechanics and as a district manager for a newspaper. As such, claimant possesses numerous transferrable skills. The record further reflects that claimant now earns $8.00 per hour or $320.00 per week. Claimant's current gross salary is very close to his gross salary at the time of the 1994 injury and slightly lower than at the time of claimant's 1995 injury. However, claimant did possess a potential to earn a higher salary when claimant was physically able to drive trucks for respondent. Now that claimant can no longer drive trucks he has suffered a decrease in his wage earning capacity. When we consider claimant's age, education, work experience, together with the medical evidence and other matters which may reasonably be expected to affect claimant's future earning capacity, we find that claimant has sustained a three percent (3%) decrease in his wage earning capacity. Therefore, we affirm the decision of the Administrative Law Judge with regard to wage loss.
Finally, we note that the Administrative Law Judge failed to address the issue of respondent's entitlement to a credit for any overpayment of permanent partial disability benefits and failed to address the appropriate permanent partial disability rate to be paid for the wage loss awarded. We find that the appropriate permanent partial disability rate for wage loss is the rate based upon claimant's average weekly wage at the time of claimant's second injury. The record reflects that claimant was capable of working as a truck driver after claimant's first injury. However, it was after claimant's re-injury in August of 1995 that claimant was finally permanently removed from driving trucks. It is this removal that has brought about claimant's wage loss. Since respondent paid the five percent (5%) physical impairment rating at the temporary total disability rate of $214.00 per week, we find that respondent is entitled to a credit for any overpayment of the five percent (5%) physical impairment rating towards the three percent (3%) wage loss disability after the correction has been made to adjust for the payment of temporary total disability benefits at the improper rate.
Accordingly, for those reasons stated herein, we affirm the decision of the Administrative Law Judge as modified.
IT IS SO ORDERED.
CONCURRING AND DISSENTING OPINION
I concur in that part of the majority opinion finding that the respondent is entitled to a credit for any overpayment of benefits. However, I must respectfully dissent from the remainder of the majority opinion finding that the per diem should not be considered in calculating the claimant's average weekly wage. I would simply point to my dissent in the recent case of Dennis v. D L Produce, Inc., Workers' Compensation Commission, Opinion filed June 11, 1997 ( E505523), which explains my position on this point.
I must also respectfully dissent from the majority's finding that the claimant is only entitled to a 3% wage loss benefit. Based on the claimant's age, education, work experience, and medical restrictions or condition, I believe that the claimant is entitled to an additional 15% wage loss disability benefit in addition to his 5% permanent partial impairment rating, totalling to a 20% permanent partial disability rating to the body as a whole. The claimant in this case is a sixty-two-year-old with only a high school education. His work experience is limited, and his physical restrictions extremely limit his earning potential. Accordingly, I would modify the Administrative Law Judge's decision in regard to the claimant's disability rating as stated above.
Therefore, I must respectfully dissent from the majority opinion which affirmed the Administrative Law Judge's decision on this point.
PAT WEST HUMPHREY, Commissioner