Opinion
W.C. No. 4-253-804
August 20, 1997
ORDER OF REMAND
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ), which denied his request to include the reasonable value of housing and lodging in the calculation of the average weekly wage. We set the order aside and remand for entry of a new order.
The facts are essentially undisputed. In February 1995, the claimant was hired as a long haul truck driver. He was assigned to a truck together with another driver. The truck had dual bunkbeds, storage facilities, and a hot pad which the claimant could use to cook his meals. The claimant testified that he and the other driver would take turns driving and sleeping.
The parties stipulated that if a driver was not on the road for a "few days," the respondent-employer (Swift) would allow the driver "to keep his truck, as it is not time or cost effective to switch the driver's belongings out of the truck and re-assign the truck to another driver." The parties further stipulated that if a driver needed to be "off a truck for any reason," Swift retained the right to assign the truck to another driver so as to avoid a loss of productivity. Reassignment would occur "at any time the driver is off work for medical leave of absence, vacation, truck repairs, etc." Further, Swift was not required to "provide accommodations for an individual driver when they were not on the truck."
The claimant was injured on April 18, 1995, after completing approximately fifty days on the job. The ALJ found that during this period of time the claimant was "continuously" on the road with his partner, ate the majority of meals in the truck, and slept in the cab. At no time during this period did the claimant pay for a motel room. The ALJ found that the claimant and his partner did not have the opportunity to stop at a motel "since the truck was being operated while one of the individuals [was] sleeping."
The ALJ also found that after the claimant was hired he gave up the house in which he had lived. At the time of the injury, the claimant had no apartment or house.
Under these circumstances, the ALJ concluded that "allowing the Claimant to sleep in the cab of the truck while the vehicle [was] being operated" did not constitute "rent, housing, and lodging received from the employer," within the meaning of § 8-40-201(19)(b), C.R.S. (1996 Cum. Supp.). Consequently, the ALJ declined to determine the "reasonable value" of this arrangement and add it to the average weekly wage. In support of this conclusion, the ALJ stated that permitting the claimant to sleep in the truck had "no effect on the Claimant's decision" to surrender his residence. Further, the ALJ noted that the employer did not provide housing when the claimant was not on the road, and that the truck could be "re-assigned to another driver for any reason, at anytime." Finally, the ALJ stated that the claimant did not have the "option" to be in a hotel room while the truck was being operated by his partner.
On review, the claimant contends that the truck cab, which was equipped with sleeping and cooking facilities, falls within the plain and ordinary meanings of the terms "housing and lodging." Consequently, the claimant contends that the ALJ erred in declining to determine whether he established the "reasonable value" of the accommodations provided by the employer, and adding that value to the average weekly wage. We agree with the claimant, and therefore, remand for entry of a new order.
Section 8-40-201(19)(a), C.R.S. (1996 Cum. Supp.), provides that the term "wages" means the "money rate at which the services rendered are recompensed under the contract of hire in force at the time of the time of the injury." Section 8-40-201(19)(b) goes on to state the following:
"The term `wages' shall include . . . the reasonable value of board, rent, housing, and lodging received from the employer, the reasonable value of which shall be fixed and determined from the facts by the division in each particular case, but shall not include any similar advantage or fringe benefit not specifically enumerated in the subsection (19)."
In interpreting this statute, the primary objective is to give effect to the legislative intent. To determine this intent we must first examine the language of the statute, and give the words and phrases their plain and ordinary meanings unless some absurdity results. If the statutory language is clear and unambiguous, it is not necessary to resort to other interpretive rules of statutory construction. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). If, however, the statutory language admits of some ambiguity, we may consider the history of the statute and the problem it is thought to cure. We should also construe the entire statutory scheme in a manner that gives a consistent, harmonious, and sensible effect to all of its parts. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991). In so doing, we should assume that the legislature intended a just and reasonable result. McCallum v. Dana's Housekeeping, ___ P.2d ___ (Colo.App. No. 96CA0459, October 24, 1996).
The plain and ordinary meaning of the word "housing" is a building or other shelter in which people live. American Heritage College Dictionary, (Third Edition, 1993). The plain and ordinary meaning of the word "lodging" is a place to live or a sleeping accommodation. American Heritage College Dictionary, (Third Edition, 1993).
Here, the ALJ has found, as a matter of fact, that for fifty days prior to the injury the employer provided the claimant with shelter and a place to sleep at no charge to the claimant. Moreover, the claimant literally lived in the truck, and the truck was equipped to accommodate the claimant. Thus, under the plain and ordinary meaning of the statute the employer was providing housing and lodging to the claimant, and the reasonable value of that housing or lodging should be included in the average weekly wage, provided the evidence is sufficient to determine the value of this arrangement.
In reading this conclusion we recognize that the employer had the right to withdraw the claimant's use of the truck for housing and lodging under various circumstances. However, the employer had not done so at the time of the injury, and had provided housing and lodging on a regular basis for nearly two months. Moreover, the contract seems to contemplate that the claimant would be re-assigned to another truck as soon as circumstances permitted.
However, even if there is some ambiguity concerning whether or not the statute applies to these circumstances, we would not reach a different result. In Meeker v. Provident Health Partners, 929 P.2d 26 (Colo.App. 1996), the court discussed the circumstances under which a fringe benefit might be considered part of an employee's "wages" for purposes of § 8-40-201(19)(b). The court indicated that a benefit may be considered "wages" if it has a "reasonable, present-day, cash equivalent value," and the employee has "reasonable access" to the benefit on a "day-to-day basis, either actually or potentially," or has an expectation interest in receiving the benefit under "appropriate reasonable circumstances."
Here, the evidence supports a finding that the claimant had a reasonable day-to-day expectation of receiving housing or lodging in the cab of the truck. In fact, the claimant consistently received this benefit every day during his employment by the respondent-employer. It is true that there were some circumstances in which the benefit might have been revoked, at least on a temporary basis. However, the record indicates that the claimant could expect the opportunity to sleep in the cab under ordinary and "reasonable circumstances."
Further, there is evidence in the record from which the ALJ could find that the right to live in the truck cab had economic value which had a "cash equivalent." The claimant presented evidence concerning the value of hotel rooms, and testified that they are analogous to the truck cab in terms of the types of accommodation provided.
Put another way, the record contains evidence from which the ALJ could find that the right to inhabit the truck cab granted the claimant an economic advantage which should be included in his average weekly wage. In our view, the right to use the truck cab free of charge gave the claimant the opportunity to avoid the expense of maintaining a permanent residence, or to rent out any residence he kept. See 5 Larson, Workers' Compensation Law, § 60.12(a) (fringe benefits constituting real economic advantage should be included in the average weekly wage). Moreover, this conclusion is consistent with the purpose of calculating the average weekly wage, which is to fairly calculate the claimant's earning capacity. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
The respondents make the point that the claimant was "paid only by the mile and he did not receive any per diem payments." However, in our view, this point tends to reinforce the conclusion that the provision of sleeping and cooking facilities was intended as a fringe benefit. Section 8-40-201(19)(c), C.R.S. (1996 Cum. Supp.), creates a mechanism by which trucking companies may pay a per diem for travel expenses, including lodging, but avoid the inclusion of such expense payments in claimant's average weekly wage. See Ernie Baylog, Inc. v. Industrial Claim Appeals Office, 923 P.2d 361 (Colo.App. 1996). Here, however, Swift did not utilize this mechanism. Instead, it provided the claimant with the right to live in the truck cab on a more or less continuous basis, even if the truck was temporarily out of service. Under this arrangement, Swift had no reason to pay a per diem because the value of the benefit may well have been greater than a standard per diem.
Under these circumstances, we conclude that the ALJ erred in holding that Swift was not providing "housing and lodging" within the meaning of § 8-40-201(19)(b). However, it is for the ALJ to determine whether or not there is sufficient credible evidence concerning the "reasonable value" of this benefit such that it should be included in the claimant's average weekly wage. See Western Cultural Resource Management, Inc. v. Krull, 782 P.2d 870 (Colo.App. 1989). Under these circumstances, the matter must be remanded for entry of a new order determining whether the evidence establishes a "reasonable value" of this benefit, and awarding benefits in accordance with the ALJ's ultimate conclusion.
IT IS THEREFORE ORDERED that the ALJ's order dated October 16, 1996, is set aside, and the matter is remanded for 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 August 20, 1997 to the following parties:
Michael Campbell, P.O. Box 16081, Colorado Springs, CO 80935
Swift Transportation Co., Inc., 8150 W. 48th Ave., Wheat Ridge, CO 80033-3119
Laura Taylor, Swift Transportation Co., Inc., 5601 W. Mohave, Phoenix, AZ 85043
Lissa Pierce, GAB Robins North America, Inc., 7600 E. Eastman Ave., Ste. 350, P.O. Box 370750, Denver, CO 80237-0780
Lawrence D. Blackman, Esq., 1515 Arapahoe St., Tower 3, Ste. 600, Denver, CO 80202 (For the Respondents)
Steven R. Waldmann, Esq., 303 S. Circle Dr., Ste. 203, Colorado Springs, CO 80910-3026 (For the Claimant)
By: _______________________________