Opinion
No. 95-389.
November 2, 1995.
APPEAL FROM OFFICE OF WORKERS' COMPENSATION, NO. 93-08460, STATE OF LOUISIANA, HONORABLE SHARON E. McCAULEY, ADMINISTRATIVE LAW JUDGE.
Kenneth Neal Hawkins, Lafayette, for Darrell Nash.
Douglas Jay Cochran, Baton Rouge, for Premium Products of Louisiana, Inc.
Before COOKS, WOODARD and AMY, JJ.
The employer in this worker's compensation suit appeals an adverse judgment. For the following reasons, we affirm.
FACTS
Claimant, Darrell Nash, was injured on April 17, 1993 in the course and scope of his employment with Premium Products of Louisiana, Inc. (Premium). Nash subsequently filed a worker's compensation claim against Premium. A settlement was reached on all issues except the characterization of a weekly $80 payment.
After Nash began working for Premium, he used his personal truck and equipment while at work. Nash told Albert Chauvin, Jr., the owner of Premium, he needed to be compensated for the wear and tear of his truck and equipment. Chauvin tried to reimburse Nash for the use of his truck and tools on a mileage basis but this method was time consuming and paper driven. Eventually Chauvin and Nash agreed upon a weekly $80 payment as compensation.
After Nash was injured, a dispute arose over whether the $80 payments should be considered part of Nash's average weekly wage. Premium argued the payments should not be considered wages because they were not additional compensation for his labor. Premium asserted the payment was a return on capital, i.e., the rental of Nash's truck and equipment. The hearing officer concluded the $80 payment should be included in the calculation of Nash's average weekly wage. The hearing officer noted Premium paid Nash for the use of his truck and equipment, but this payment resulted in a reduction of Nash's hourly wage. The hearing officer also stated the $80 payments were inextricably tied to Nash's labor because the payments ceased after his injury although Premium had possession, and presumably use, of Nash's truck and equipment. Premium appeals.
DISCUSSION
Premium argues the hearing officer erred in finding Nash's weekly $80 payments were wages. La.R.S. 23:1021 (10) defines "wages" as the average weekly wage at the time of the accident. Generally, wages refer to the amount earned by the employee through his own labor rather than enterprise profits or income from equipment rental. France v. A M Wood Co., 566 So.2d 106 (La.App. 2 Cir. 1990); Herrin v. Georgia Cas. Sur. Co., 414 So.2d 1323 (La.App. 2 Cir. 1982); Malone Johnson, Worker's Compensation § 327 (1994). Premium claims the payments were a return on Nash's capital, his truck and tools, rather than his labor; and therefore, the payments should not be considered wages.
The appropriate standard for appellate review is the "manifest error-clearly wrong" standard, which precludes the setting aside of a trial court or jury's findings of fact unless those findings are clearly wrong in light of the record reviewed in its entirety. Rosell v. ESCO, 549 So.2d 840 (La. 1989).
Chauvin testified Nash was paid $80 per week as reimbursement for the expenses associated with the use of his truck and equipment. Nash testified he considered the payments part of his weekly wage. He told Chauvin he could not continue working for him and using his personal truck and equipment unless his wages were increased.
Although Premium was compensating Nash for the use of his truck and equipment, the payments were associated with his wages. When the payments began, Nash's hourly wage decreased. Moreover, after Nash was injured, Premium retained possession of Nash's truck and equipment but discontinued the payments. These factors are consistent with Nash's claim that the $80 was part of his wages. Therefore, the hearing officer was not clearly wrong in concluding the $80 payments should be included in the calculation of Nash's average weekly wage.
CONCLUSION
For the foregoing reasons, the hearing officer's judgment is affirmed. Costs are assessed to Premium.
AFFIRMED.
WOODARD, J., dissents and assigns reasons.
I respectfully dissent. A reading of the record in its entirety indicates that the hearing officer clearly erred. She based her ruling on inferences that are not supported by the record, which are, therefore, not reasonable. She found in favor of claimant, yet, claimant gave direct testimony which contradicts the hearing officer's inferences upon which she relied for her ruling. By the claimant's own admissions, the evidence is overwhelming that the now disputed $80.00 was intended by both parties to be rent, not wages, and that it was not being paid to Mr. Nash as compensation for his labor.
"The term 'wages' means the amount earned by the employee through his own labor, rather than profits for his enterprising or rental for any equipment he may provide. Where an employee furnishes his own truck and other pieces of equipment or provides his own helpers, an adjustment is ordinarily made in arriving at his wage so as to exclude those sums paid by the employer in remuneration for these items." Herrin v. Georgia Cas. Sur. Co., 414 So.2d 1323, 1327 (La.App. 2 Cir. 1982); citing Malone Johnson, Workers' Compensation, Sec. 327, p. 114 (Emphasis added).
Mr. Nash's testimony is unequivocal. He, like his employer, understood that the $80.00 extra he was receiving per week was being paid to him as rent for the use of his truck, tools and equipment, in addition to, and separate from, but at the same time as, his hourly wage for his labor:
Q. And who came up with the $80 per week amount?
A. Mr. Chauvin and I tried to discuss the matter, to do it. He said he would see a CPA and see which would be the legal way to do this tax purposely (sic) and he handled it, and this is what he come up with. And he produced (sic) this position (sic) to me: $80 a week for my tools, equipment and all my tools that were available. (Emphasis added).
See also item number (2) on Exhibit P-1, claimant's offering, a letter agreement, signed both by the claimant and his employer. This item says "$80.00 week for use of truck and tools." It is also noteworthy that the payroll summary, on which the hearing officer relied, Exhibit D-1, was entitled "Darrell Nash Payroll" and contains only the hourly wage and hours worked. The $80.00 is not calculated in the wages and does not even appear on this page. Those payments appear on a separate ledger page entitled "Darrell Nash Truck Tool Rental." Additionally, a reading of the record as a whole demonstrates that Nash never disputed any of the above. He substantiated it.
Notwithstanding, in her reasons for judgment, the hearing officer found that this rental fee was a factor considered by the parties in establishing the amount of Mr. Nash's wages. She concluded this based on inferences she drew from the payroll summary, which showed that Mr. Nash's hourly wage was reduced around the time that the parties agreed to the extra $80.00 per week and from the testimony that the employer continued to possess, but did not pay for, the truck and tools when Mr. Nash was absent from work due to his injury.
However, the record does not support these inferences and Mr. Nash gave direct testimony to explain what was actually intended, which was contradictory to the hearing officer's inferences. Regarding the hourly rate fluctuations, Nash never claimed that an increase or decrease in his hourly rate was ever tied to the use of, or payment for the use of, his truck. In fact, he continually maintained that the wages and rental were separate considerations:
Q. And was that (the rent money) discussed in terms of an agreement over your overall pay at Premium Prodcuts (sic)?
A. It had nothing to do with my pay, other than I — part of my pay. It was part of my pay weekly that I was to receive $80 a week with my pay, if that's what you mean. (Emphasis added).
Below, Mr. Nash, again, explains away the hearing officer's inference regarding continued possession of the truck with no payment. He says that his employer's continued possession was because Nash insisted on it and that he insisted on it against his employer's protest:
A. "We'll have to work out this tool situation, whatever it takes to work it out." He needed my equipment and he needed my tools, and I didn't want to take them away from him. He wanted — at one time, he (the employer) made me come and get my tools, right after I got out of the hospital. And I told him, no, I wasn't going to do him that. I left the tools that he needed to get his work done. I said, "You keep everything you need. I said, "If I put you out of business, I'm out of business." So that's basically what I told him. That's — (emphasis added).
Since both parties intended that the $80.00 per week paid to Mr. Nash was to reimburse him for the use of his truck, tools and equipment on the job, and was not compensation for his labor, the hearing officer was manifestly erroneous in concluding that the $80.00 was wages.