Winfred Caldwell v. Delta Express, Inc.

As to this issue the Commission finds the deposition testimony of witness Theresa Carr, the most enlightening, explanatory, and credible.

Ms. Carr is the driver payroll clerk for employer; employer compensated the deceased employee with payments for services rendered based upon mileage driven, i.e., twenty-eight cents per mile as of the date of his death; also, Ms. Carr testified that the deceased employee received a "per diem" which she explained is a federally set amount that a driver is allowed to earn (emphasis added) and not be taxed; there were no restrictions imposed on the deceased employee concerning the use of the money designated "per diem" and no records were required to be kept by the employee; the amount designated to be "per diem" payment could be used as employee saw fit; the money payments designated to be "per diem" are non-taxable amounts; and the "per diem" amount was included in the gross wages paid the deceased employee in any pay period, reflecting the total gross earnings of the deceased employee based on the mileage driven for that particular pay period.

As explained by Ms. Carr during her testimony, assume the deceased employee earned gross wages of $\ 1372.00 in a pay period based on miles driven. If for the same pay period the non-taxable "per diem" amount totaled $\ 328.00, employer would report taxable earnings of $\ 1044.00 ( $\ 1372.00 minus $\ 328.00 ). It is clear from Ms. Carr's testimony that employer paid the non-taxable "per diem" amounts to employee as a portion of the deceased employee's gross wages for services performed for the employer. Ms. Carr conceded that the "per diem" was "simply a part of those gross wages that was not taxable."

Section 287.250.2 RSMo, provides in pertinent part as follows:

For purposes of this section, the term 'gross wages' includes, in addition to money payments for services rendered, the reasonable value of board, rent, housing, lodging or similar advance received from the employer,...Any wages paid to helpers or any money paid by the employer to the employee to cover any special expenses incurred by the employee because of the nature of his employment shall not be included in wages.

In the award issued by the administrative law judge, there was a finding by the administrative law judge that "per diem received by employees is also included when calculating gross wages." Although the administrative law judge made this finding the administrative law judge did not include the "per diem" amounts when calculating the gross wages and average weekly wage.

On appeal the employer contends that the "per diem" amounts are a special expense pursuant to $\S 287.250 .2$ RSMo, and therefore should not be considered or included in calculating the average weekly wage and cites in support of this contention the case of Grimes v. GAB Business Services, Inc., 988 S.W.2d 636 (Mo. App. 1999).

The Commission has reviewed Grimes, supra, and notes that the amounts designated as "per diem" in the Grimes case were clearly amounts above and beyond gross wages paid for services rendered and were further determined to be monies paid to the employee to cover expenses incurred because of the nature of the employment. These are not the facts in the instant case.

The Commission notes that the Grimes case, supra, deals with expenses and gross wages and properly holds that "any wages paid to helpers or any money paid by the employer to the employee to cover any special expense incurred by the employee because of the nature of his employment shall not be included in wages."

Simply stated amounts paid an employee as reimbursements for expenditures necessitated due to the employee's employment are not part of the employee's earnings for the purpose of calculating average weekly wage and corresponding compensation rates. In fact, in the instant case, Ms. Carr further testified that employees are reimbursed expenses upon production of receipts, which is a different accounting entry separate and distinct from the payments designated "per diem."

As stated by the appellate court in the Grimes case, supra, "It is ultimately the language of section 287.250.2 RSMo,...that controls."

The Commission also notes that the term "per diem" has various and sundry definitions: by the day; for each day; based on or calculated by the day; a monetary daily allowance, usually to cover expenses; or a daily fee. Black's Law Dictionary 1157 (7th Edition 1999). Thus, by definition, the term can be used to "cover expenses," but also has different meanings. Each case must be determined on its own set of facts.

Section 287.250.2 RSMo, defines the term "gross wages" as money payments for services rendered. These "per diem" payments were clearly gross wages representing money payments for services rendered based on mileage driven by the deceased employee. The fact that the amounts paid deceased employee designated as "per diem" were non-taxable amounts is not relevant in determining the deceased employee's gross wages. The method of payment is in fact somewhat analogous to $\S 287.252$ RSMo, in cases where employers have established cafeteria plans and the legislature has clearly expressed its intent that a reduction in salary of any employee participating in such cafeteria plan shall not reduce the compensation amount used in calculating an employee's compensation or wages for the purpose of any workers' compensation claim in Missouri.

These amounts designated as "per diem," clearly comprise gross wages as they were payments for services rendered, and there is no evidence whatsoever to support any conclusion or determination that these amounts designated as "per diem" payments represented monies to cover any special expenses incurred by the employee because of the nature of the employment. Ms Carr classified these payment amounts as non-taxable "earnings" allowed drivers. The sum total of the taxable earnings and the non-taxable earnings designated as "per diem" represented the exact amount owed the deceased employee based on mileage driven.

Accordingly, the Commission agrees that the amounts designated as per diem are to be included in calculating the deceased employee's average weekly wage and, ultimately, the death benefits compensation rate for the dependents.

When these amounts are properly included, the average weekly wage of the deceased employee is $\ 703.82 which results in a death benefits rate for the dependents of $\ 469.21.

In conclusion the Commission modifies the award of the administrative law judge by determining that the average weekly wage of the deceased employee was $\ 703.82 and the corresponding death benefits rate for the dependents is $\ 469.21. The findings of fact and conclusions of law pertaining to all remaining issues are found to be supported by competent and substantial evidence and made in accordance with the Missouri Workers' Compensation Act and are affirmed.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 9th day of October 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Employee: Winfred S. Caldwell, Deceased

Injury No. 05-105159

Dependents: Lynda Caldwell and Samuel Caldwell

Employer: Delta Express, Inc.

Additional Party: N/A

Insurer: American Home Assurance

(TPA: AIG Claims Services, Inc.)

Hearing Date: January 22, 2008

Checked by: CS/kh

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease? August 29, 2005
5. State location where accident occurred or occupational disease contracted: Indianapolis, Indiana
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident happened or occupational disease contracted: Employee was attempting to disconnect the trailer from the cab and was ran over which resulted in his death.
12. Did accident or occupational disease cause death? Yes