Our precedent clearly provides that these fringe benefits should be included as part of an employee's compensation. See Thibeault v. General Outdoor Advertising Co., 114 Conn. 410, 414, 158 A. 912 (1932) (allowances made to employee for board and lodging while away from home may, under certain circumstances, be considered earnings in determining compensation under Workers' Compensation Act). Furthermore, the majority's conclusion runs contrary to the liberal construction we must give to the Workers' Compensation Act. "It is well established that the Workers' Compensation Act is remedial in nature and that it should be broadly construed to accomplish its humanitarian purpose. . . . Construing the statute liberally advances its underlying purpose of providing financial protection for injured workers and their dependents."
However, when an employee is merely reimbursed for expenses incurred while travelling or while out of town for his employer or is given an allowance or subsistence to cover such expenses, courts generally do not include such amounts as "wages" in computing compensation benefits unless it appears that the employee derived some economic gain from those payments. Layne Atlantic v. Scott, Fla.App., 415 So.2d 837 (1982); Moorehead v. Industrial Commission, 17 Ariz. App. 96, 495 P.2d 866 (1972); Solheim v. Hastings Housing Co., 151 Neb. 264, 37 N.W.2d 212 (1949); Thibeault v. General Outdoor Advertising Co., 114 Conn. 410, 158 A. 912, 84 A.L.R. 184 (1932). These cases reason that an employee who is given an allowance or subsistence to cover away-from-home expenses which would not be incurred but for his employment suffers no economic loss when he no longer receives such allowance or subsistence after his employment ceases and he no longer incurs these extraordinary expenses.
The words "average weekly earnings" are not defined by statute. In Thibeault v. General Outdoor Advertising Co., 114 Conn. 410, 412, 158 A. 912, we said: "We have no provisions in our statutes defining the meaning of the word `earnings.' The purpose of the weekly compensation allowed for partial incapacity is to make the employee good to the extent of one half the earnings of which he has been deprived by the injury and the basis of the award is the resulting loss or impairment of earning power." The controlling statute in effect when that case was decided in 1932, 5237 of the Revision of 1930, provided that "[i]f any injury . . . shall result in partial incapacity, there shall be paid to the injured employee a weekly compensation equal to half of the difference between his average weekly earnings before the injury and the amount he is able to earn thereafter.
Moreover, in Chesnut Smith v. Lynch (1921) 84 Okla. 199, 202 P. 1018, without discussing the matter, we approved a finding by the commission of a wage based partly on evidence that the employee was paid board and room when away from home which amounted to $2.50 per day, and there was no indication in the opinion that any fixed sum had been agreed upon. Petitioners rely upon Picanardi v. Emerson Hotel Co. (1919, Md.) 108 A. 483, and Thibeault v. General Outdoor Advertising Co. (1932, Conn.) 158 A. 912, as supporting the view that expenses are not allowable unless the amount has been fixed in advance. But in Maryland the Workmen's Compensation Act provides that board and similar advantages received by the employee shall not be considered as wages unless the money value of such advantages is fixed by the parties at the time of hiring.
imant's Exhibit 1-A are to be used as a standard of computation, then deceased Urseth was not under the Workmen's Compensation Act and the commission had no jurisdiction. Sec. 3305, R.S. 1929; Newman v. Rice-Stix D.G. Co., 73 S.W.2d 264; Wahlig v. Krenning-Schlapp Gro. Co., 29 S.W.2d 128. (4) If deceased Urseth was subject to the Workmen's Compensation Act at all, and since his earnings cannot be computed or determined under subsection (c) of Section 3320, Revised Statutes 1929, the earnings must be computed under subsection (d) of said Section 3320. Coble v. Scullin Steel Co., 54 S.W.2d 777; Jackson v. Curtiss-Wright Airplane Co., 68 S.W.2d 715. (5) In determining the earnings of an employee, his expenses incidental to his work must be deducted in the computation. Wahlig v. Krenning-Schlapp Gro. Co., 29 S.W.2d 128; Newman v. Rice-Stix D.G. Co., 73 S.W.2d 264; Stapleton v. Gunn, 69 S.W. 1104; New Amsterdam Cas. Co. v. Stens, 192 N.E. 735; Russell v. Ely Walker D.G. Co., 60 S.W.2d 44; Thibeault v. Gen. Outdoor Adv. Co., 158 A. 912, 84 A.L.R. 184; Toon v. Evans Coffee Co., 103 S.W.2d 533; Texas Emp. Ins. Assn. v. Sitchler, 78 S.W.2d 145; Richards v. Cent. Iowa Fuel Co., 166 N.W. 1059; Moore v. Fleischman Yeast Co., 256 N.W. 589. (6) The commission had no criterion available by which to determine deceased's earnings under subsection (c) of Section 3320, Revised Statutes 1929. Since there was no showing as to expenses of deceased or of those salesmen chosen by the commission to use in its computation of earnings, subsection (d) of Section 3320, Revised Statutes 1929, must apply. Hartman v. Union E.L. P. Co., 53 S.W.2d 241; Jackson v. Curtiss-Wright Airplane Co., 68 S.W.2d 715; Coble v. Scullin Steel Co., 54 S.W.2d 777.
As contended by the insurer, the compensation is to be determined on the basis of the net pecuniary gain to the employee and not by the gross sum contracted to be paid. State v. District Court of Sibley County, 128 Minn. 486. Roper v. Hussey-Freke, 3 K.B. 222. Compare Powers's Case, 275 Mass. 515; Thibeault v. General Outdoor Advertising Co. Inc. 114 Conn. 410. We think, however, the bill of complaint was dismissed rightly.
All Brand Importers, Inc. v. Dept. of Liquor Control, 213 Conn. 184, 194, 567 A.2d 1156 (1989). From the use of the term wages instead of income in § 31-310, it is clear that the legislature intended that fringe benefits remuneration, such as health coverage and employee welfare plan contributions, were not to be included in calculating the plaintiff's base compensation rate. The plaintiff argues that the commissioner should have applied the test as articulated in Thibeault v. General Outdoor Advertising Co., 114 Conn. 410, 158 A. 912 (1932), to determine which benefits should be included in wages. In Thibeault, the Supreme Court held that the "test to be applied is, does the allowance represent a real and reasonably definite economic gain to the employee, reasonably within, or at least not contrary to, the fair intent of the parties . . . ."
The former may be included in the wage calculation; the latter may not. This distinction is noted in Thibeault v. General Outdoor Advertising Co., 114 Conn. 410, 158 A. 912 (1932). The court in Thibeault, in considering whether a daily allowance for board and lodging of plaintiff-employee when he was out of town should be included in his weekly earnings, set out the general test which was to guide later courts in addressing similar questions: "In each case the test to be applied is, Does the allowance represent a real and reasonably definite economic gain to the employee, reasonably within, or at least not contrary to, the fair intent of the parties?"
(Emphasis added).See also Thibeault v. General Outdoor Advertising Co., 114 Conn. 410, 158 A. 912 (1932); Weingarten v. Democrat Chronicle, 19 A.D.2d 566, 239 N.Y.S.2d 980 (1963); Turner v. Beatrice Foods Co., 165 Neb. 338, 85 N.W.2d 721 (1957); Le Voff v. Gompers Blau, 278 App. Div. 878, 104 N.Y.S.2d 326 (1951); and Federal Underwriters Exchange v. Tubbe, 143 Tex. 216, 183 S.W.2d 444 (1944). Contra, see Postal Telegraph Cable Co. v. Industrial Accident Commission, Cal.App., 32 P.2d 1067, revd. on other grounds, 1 Cal.2d 730, 37 P.2d 441 (1934).
(1) The Missouri Workmen's Compensation Commission and the circuit court erred in holding claimant's automobile expense and other special expenses entailed on him by the nature of his employment should be included in computing the annual earnings of claimant. Sec. 3732, R.S. Mo. 1939; Thibeault v. General Outdoor Advertising Co., 114 Conn. 410, 158 A. 912, 84 A.L.R. 184, 186, 187; Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909, 912; Sec. 3710, R.S. Mo. 1939, Sub-secs. (a) and (g); Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W.2d 128; Russell v. Ely Walker Dry Goods Co., 332 Mo. 645, 60 S.W.2d 44, 46; Stapleton v. Gunn (Mo. App.), 69 S.W.2d 1104, 1105; Newman v. Rice-Stix Dry Goods Co., 335 Mo. 572, 73 S.W.2d 264, 269, 270; Heisey v. Tide Water Oil Co. (Mo. App.), 92 S.W.2d 922, 929; Toon v. David G. Evans Coffee Co. (Mo. App.), 103 S.W.2d 533, 538; McClintock v. Skelly Oil Co., 232 Mo. App. 1204, 114 S.W.2d 181, 185; American Surety Co. v. Underwood, 74 S.W.2d 551, 553; McKeller v. Harkins, 184 Iowa 1378, 166 N.W. 1059, 1061; Beuhner v. Bowman, 81 Ind. App. 395, 143 N.E. 366, 367; 71 C.J., p. 809, Sec. 529; Sec. 444 of Schneider's Vol. 2, Workmen's Compensation, p. 1527; Moore v. Fleischman Yeast Co., 256 N.W. 589 (Mich. S.Ct., 1934).