Opinion
W.C. No. 4-293-712
February 1, 1999.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which determined the claimant's average weekly wage. We affirm.
The claimant is employed as a pastor with the Faith Bible Chapel (employer). On March 9, 1996, the claimant suffered a work-related injury. The respondents admitted liability for temporary total and permanent partial disability benefits.
The claimant testified that he was hired by the employer at a salary of $615.22 per week. The claimant stated that he was also given the option to designate part of his salary as a "parsonage allowance" because Internal Revenue Service (IRS) regulation 1.107-1(c), allows a pastor to exclude part of his housing expenses from taxable income. Based upon the claimant's purchase of a house, he elected to designate $13,057 of his annual salary as a "parsonage allowance."
Section 8-40-201 (19)(b), C.R.S. 1998, provides that the term wages shall include "the reasonable value of board, rent, housing and lodging received from the employer." However, the reasonable value of housing is not included in the average weekly wage so long as the employer continues to provide "the advantage or fringe benefit."
Relying on § 8-40-201(19)(b), the respondents argue that the "parsonage allowance" is an "advantage" or "fringe benefit" which the employer has continued to provide following the industrial injury. Therefore, the respondents argue that the amount allocated to the "parsonage allowance" is not included in the average weekly wage.
The ALJ determined that the claimant's employment contract provides for a weekly wage of $615.22. The ALJ also determined that even though the employer apportions the claimant's salary consistent with his election of the "parsonage allowance," that no part of the negotiated wage is for housing provided by the employer. Therefore, the ALJ determined that claimant's average weekly wage is $615.22, and he ordered the respondents to pay admitted liability in accordance with that determination.
The respondents' arguments notwithstanding, there is substantial evidence in the record that the "parsonage allowance" represents a tax deduction provided by the IRS, and is not housing "received from the employer" within the meaning of § 8-40-201(19)(b). Compare Reynolds v. Miller, W.C. No. 4-331-168 (January 16, 1998); Campbell v. Swift Transportation Company Inc., W.C. No. 4-253-804 (August 20, 1997). The overall "money rate" at which the claimant's services are compensated is $615.22 per month, and the fact the IRS gives special treatment to this income does not change its quality as "wages." Section 8-40-201(19)(a), C.R.S. 1998.
The claimant testified that his salary negotiations did not include employer provided housing, and that his salary would be exactly the same without the parsonage allowance. (Tr. pp. 14, 18). He also stated that he was hired by the employer prior to buying a house, and that it was his sole decision to buy the house. (Tr. p. 13). He added that he makes the mortgage payments on the house, that the employer has no ownership interest in the house, and that he, not the employer, determines the portion of the salary which is allocated to the "parsonage allowance." (Tr. pp. 14, 16, 21).
Because the ALJ's findings of fact are supported by the record, they must be upheld. Section 8-43-301(8), C.R.S. 1998; Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). Furthermore, even if the "parsonage allowance" is an "advantage" or "fringe benefit" within the meaning of § 8-40-201(19)(a), the claimant's testimony supports the ALJ's implicit determination that it is a benefit in addition to a cash payment of $615.22 per week. It follows that the ALJ did not err in calculating the claimant's average weekly wage as $615.22 per week, regardless of whether the claimant has continued to allocate part of his salary to the "parsonage allowance."
The respondents remaining arguments have been considered and are unpersuasive.
IT IS THEREFORE ORDERED that the ALJ's order dated September 8, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________________ David Cain
_______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed February 1, 1999 to the following parties:
Timothy P. Lovell, 6292 Yank Court, Arvada, CO 80004
Faith Bible Chapel International, 12189 W. 64th Avenue, Arvada, CO 80004-4031
Maureen Zimmerman, Church Mutual Insurance Co., PO Box 342, Merrill, WI 54452
Jeffrey A. Goldstein, Esq., Goldstein Dodge, 1763 Franklin Street, Denver, CO 80218 (For Claimant)
Janice M. Greening, Esq., White Steele, PC, 1225 17th Street, Suite 2800, Denver, CO 80202-5528 (For Respondents)
BY: ________________