Opinion
W.C. No. 4-222-552
November 1, 1995
FINAL ORDER
The claimant seeks review of an order of Chief Administrative Law Judge Felter (ALJ) which determined the claimant's average weekly wage. We modify the contested portion of the order.
The pertinent issue involves the definition of "wages" for purposes of calculating the average weekly wage. Section 8-40-201(19)(a), C.R.S. (1995 Cum. Supp.) defines "wages" as "the money rate at which the services rendered are recompensed under the contract of hire in force at the time of the injury." However, § 8-40-201(19)(c), C.R.S. (1995 Cum. Supp.), which applies to injuries on or after May 22, 1994, provides that, "[N]o per diem payment shall be considered wages under this subsection (19) unless it is also considered wages for federal income tax purposes." 1994 Colo. Sess. Laws ch. 225 at 1285.
The claimant suffered an admitted injury on August 26, 1994, during the course of her employment as an over the road truck driver for Ernie Baylog, Inc. (the employer). Under the terms of the employment contract, the claimant was paid $.12 per mile. The employer's witness, Katherine Baylog testified that $.08 per mile represented the claimant's wages and $.04 per mile represented payment for travel expenses such as showers and food.
The ALJ found that "the $.04 per mile paid by the employer is a per diem payment for the expenses of the Claimant and it is not reported or considered as wages for federal income tax purposes." Consequently, the ALJ concluded that the $.04 per mile payment is not part of the claimant's "wages" for the purpose of computing the claimant's average weekly wage.
Further, the parties stipulated, and the ALJ found that, the claimant received an average of $174.60 per week at $.04 per mile and $349.20 per week at $.08 per mile. Therefore, the ALJ determined that the claimant's average weekly wage is $349.20.
On review the claimant contends, inter alia, that the ALJ erred in concluding that the $.04 payment is a "per diem" payment within the meaning of § 8-40-201(19)(c). In support of her argument, the claimant notes that the $.04 payment was based on a "per mile" rate. The claimant also asserts that the $.04 payment bore no relation to her actual travel expenses because she had none, and the employer paid all operating expenses for the truck. We agree with the claimant that the $.04 payment is not a "per diem" payment within the meaning of § 8-40-201(19)(c).
The principles of statutory construction require that statutes be construed in such manner as to further the legislative intent for which they were enacted. Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995). To discern the intent of the General Assembly, we must first examine the language of the statute, and unless the result is absurd, the words must be given their plain and ordinary meaning. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993) ; Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1995); Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995). Furthermore, if the statutory language is clear and unambiguous, the statute must be applied as written without resort to the rules of statutory construction. Husson v. Meeker, 812 P.2d 731 (Colo.App. 1991).
Black's Law Dictionary p. 1023 (5th ed. 1968) defines the term "per diem" to mean "by the day, an allowance or amount of so much per day." Similarly, Websters's Seventh New Collegiate Dictionary, p. 626 (1963) defines the term "per diem" to mean "by the day" or "for each day."
Giving the statutory language in § 8-40-201(19)(c) its plain and ordinary meaning results in the conclusion that "wages" excludes per day payments by the employer to the claimant unless such per day payments are also considered wages for federal income tax purposes.
This conclusion is consistent with § 8-42-102(2)(c), C.R.S. (1995 Cum. Supp.), which contemplates that an employee is providing services on aper diem basis where she is paid a "daily wage." Moreover, this construction is consistent with the meaning of the term "per diem" as used in caselaw. For example, in Newbury v. Vogel, 151 Colo. 520, 379 P.2d 811 (1963), "per diem" referred to a "time segment basis" of awarding damages for pain and suffering. In the context of workers' compensation benefits, the term has been construed to mean a flat, per day, payment rate. See St. Mary's Church Mission v. Industrial Commission, 735 P.2d 902 (1986); Western Cultural Resource Management, Inc. v. Krull, 782 P.2d 870 (Colo.App. 1989).
Under these circumstances the plain and ordinary meaning of the statutory language is clear and unambiguous. Therefore, we need not consider the rules of statutory construction.
However, even if we were to consider the legislative intent of the statute, which we presume is to exclude actual expense reimbursements from the term "wages," our conclusion would be unchanged. In Sneath v. Express Messenger, 881 P.2d 453 (Colo.App. 1994), the court concluded that an employer cannot evade its responsibility to the employee by labeling a portion of the employee's compensation as an expense reimbursement, at least in cases "where there is no rational or realistic relationship" between the actual expenses and the amount claimed as expense reimbursement. In reaching its conclusion, the Sneath court expressly cited Filippone v. Industrial Commission, 41 Colo. App. 322, 590 P.2d 977 (1978), in which the court declined to deduct work-related expenses in determining the claimant's average weekly wage, "in the absence of a clear legislative directive" to exclude a portion of the employee's compensation. Although decided under prior law, we consider Sneath and Filippone instructive.
Here, the ALJ found, and it is undisputed that the $.04 payment was a "per mile" payment not a "per day" payment. Further, the claimant denied that she incurred any travel expenses, and Ms. Baylog did not explain the relationship between the claimant's actual travel expenses and the $.04 per mile payment. Tr. pp. 9, 12, 15-16. Instead, the record supports the claimant's assertion that both the $.08 per mile payment and the $.04 payment were based upon the actual amount of driving services performed by the claimant for the employer. Accordingly, the $.04 per mile payment is more akin to compensation paid for the claimant's services to the employer, than reimbursement for actual expenses incurred in the performance of those services.
Based upon Filippone we decline to infer that the General Assembly intended to exclude any part of the "per mile" compensation in the absence of a clear legislative directive to do so. Therefore, we conclude that the ALJ erred in failing to include the $.04 per mile payment in the calculation of the claimant's average weekly wage.
IT IS THEREFORE ORDERED that the ALJ's order dated February 14, 1995, is modified to reflect that the claimant's average weekly wage is $523.80, and the respondents' payment of workers' compensation benefits shall be based upon this average weekly wage.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE
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. (1995 Cum. Supp.).
Copies of this decision were mailed November 1, 1995 to the following parties:
Sally A. Olney, 7655 W. 67th Ave., #310, Arvada, CO 80004
Ernie Baylog, Inc., 4428 S. Argenne Way, Aurora, CO 80015
Colorado Compensation Insurance Authority, Attn: D. Kroll, Esq., M. Steiner, Esq., (Interagency Mail)
Mark A. Simon, Esq., 501 S. Cherry St., Ste. 820, Denver, CO 80222
(For the Claimant)
BY: _______________________