Appeal of MacDonald

879 A.2d 1156, 152 N.H. 443, 2005 N.H. LEXIS 113
CourtSupreme Court of New Hampshire
DecidedJuly 18, 2005
DocketNo. 2004-503
StatusPublished
Cited by1 cases

This text of 879 A.2d 1156 (Appeal of MacDonald) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of MacDonald, 879 A.2d 1156, 152 N.H. 443, 2005 N.H. LEXIS 113 (N.H. 2005).

Opinion

Broderick, C.J.

The petitioner, Perry MacDonald, appeals a decision of the New Hampshire Compensation Appeals Board (board) that per diem payments he received during his employment with respondent, Nelson Communication Services, Inc. (NCS), are not included in calculating his average weekly wages under RSA 281-A:15,1 (Supp. 2004). Liberty Mutual Insurance, Inc. (Liberty Mutual), workers’ compensation insurance carrier for NCS, is the second respondent. We affirm.

The record supports the following facts. MacDonald was a site supervisor for NCS, a company that erected telecommunications antennas throughout New England. As site supervisor, he was responsible for planning and erecting antennas on sites ranging from unimproved woodland to church steeples. He supervised teams of varying size, usually between two and six individuals. When NCS hired him, it presented two remuneration options. He could select either an “hourly wage and a per diem payment” for jobs performed outside a sixty-five mile radius from either the home office in Albany or his home, or a higher “straight salary” with no per diem. Like most employees, he selected the lower hourly wage plus per diem. The per diem payment was seventy dollars for each night spent in the field. No per diem was paid when an employee either could spend the night at home because it was within sixty-five miles of the job site, or did spend the night at home. NCS did not require employees to produce records or receipts for actual expenditures. Consequently, employees often shared rooms and meals so as to minimize expenditures and retain as much of their per diem payment as possible. Neither MacDonald nor NCS appeared to treat per diem payments as income reportable to federal tax authorities.

On April 15,2002, MacDonald suffered a lower back injury in the course of employment, for which he subsequently filed a workers’ compensation claim with the department of labor. A dispute arose as to the average weekly wage upon which MacDonald’s award was to be calculated. A hearing officer concluded that the average weekly wage should include the per diem payments. He based his decision on the language of the statute that defines “wages” for the purposes of workers’ compensation benefits:

“Wages” means, in addition to money payments for services rendered, the reasonable value of board, rent, housing, lodging, fuel or a similar advantage received from the employer and gratuities received in the course of employment from others than the employer; but “wages” shall not include any sum paid by the employer to the employee to cover any special expenses incurred by the employee because of the nature of the employment.

[445]*445RSA 281-A:2, XV (Supp. 2004). The hearing officer determined that because the per diem payments represented “a quantified amount of the reasonable value of food and lodging paid to the claimant as contemplated in the negotiated contract of hire,” they fell under the first part of section XV, and did not constitute “special expenses.”

Liberty Mutual appealed to the board. After a de novo hearing, the board found that the per diem payments were reimbursements made to cover employment-related “special expenses” under the second part of RSA 281-A:2, XV. As a result, the board concluded that MacDonald’s average weekly wage should be calculated without including any per diem payments. The board denied MacDonald’s motion to reconsider, and this appeal followed.

We will uphold the board’s decision unless there has been an error of law, or its findings or conclusions are shown, by a clear preponderance of the evidence, to be clearly unreasonable or unjust. Appeal of Carnahan, 149 N.H. 433, 435 (2003); see Appeal of Chickering, 141 N.H. 794, 796 (1997). In reviewing the decision, we are confined to the hearing record and will not substitute our judgment for the board’s as to the weight of the evidence on questions of fact. Appeal of Lakeview NeuroRehabilitation Ctr., 150 N.H. 205, 208 (2003).

On appeal, MacDonald contends that the board erroneously: (1) interpreted our decision in Carnahan and thus erred in concluding that the per diem payments were “special expenses”; and (2) excluded the value of the per diem payments in calculating the average weekly wage. MacDonald contends, and we will assume for the purposes of this appeal, that “wages” as defined in RSA 281-A:2, XV are the basis upon which an employee’s average weekly wage is calculated pursuant to RSA 281-A:15, I. Cf. Carnahan, 149 N.H. at 436.

We have previously addressed whether certain expenses should be included in the definition of “wages.” In Carnahan, the claimant was an independent trucking contractor who derived $129,729 in gross income from his contracts, and claimed his expenses of $102,184, including such items as food, lodging, laundry and fuel, as business deductions. For purposes of his workers’ compensation claim, Carnahan attempted to characterize his gross income of $129,729 as his gross earnings, without any deduction for his expenses.

Under the relevant sections of RSA 281-A:15,1, “gross earnings” over a given number of weeks are divided by that number of weeks to furnish an average weekly wage for the purpose of calculating a workers’ compensation award. See RSA 281-A:15, 1(a), (b). Characterizing Carnahan’s gross income as his gross earnings would have increased by nearly a factor of five the average weekly wage upon which his award was [446]*446calculated, because the gross earnings would not have been reduced by his expenses. We rejected this characterization on the grounds that it would lead to the absurd result of Carnahan receiving an award based upon gross earnings of approximately five times those of another employee who received a salary equal to Carnahan’s net profit of $27,545, but whose gross earnings were only $27,545 because his employer paid $102,184 for business expenses incurred because of the nature of the employment. Carnahan, 149 N.H. at 434-35.

Carnahan also argued that his expenses for food, lodging, and the like constituted an economic “advantage” to him, and should be counted as “wages.” We disagreed, holding that such expenses were not an economic “advantage,” but rather “special expenses” incurred because of the nature of his employment. Such expenses are not included as “wages” under RSA 281-A:2, XV. Id. at 436.

MacDonald attempts to distinguish Carnahan by arguing that: (1) he was not a self-employed contractor, but rather an employee; (2) Carnahan’s expenses were his own deductible business expenses, and payments to cover them were distinguishable from the per diem payments MacDonald received; and (3) Carnahan attempted to inflate his gross earnings by including his expenses as part of his income, whereas MacDonald did not.

MacDonald’s first two arguments point out factual distinctions that do not amount to fundamental differences, because the issue is not the status of the claimant or the source of the payments, but whether a given payment should fall under the statutory definition of “wages.” In both cases, the monies in question were used to cover “special expenses incurred ... because of the nature of the employment”; these included food, lodging, and other expenses occasioned solely by work. See id. As we stated in Carnahan, “a salaried employee cannot include employer-reimbursed business expenses as ‘wages.’” Id. MacDonald’s third argument to distinguish Carnahan

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Bluebook (online)
879 A.2d 1156, 152 N.H. 443, 2005 N.H. LEXIS 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-macdonald-nh-2005.