Mason v. District of Columbia Department of Employment Services

562 A.2d 644, 1989 D.C. App. LEXIS 152, 1989 WL 89795
CourtDistrict of Columbia Court of Appeals
DecidedAugust 11, 1989
DocketNo. 88-376
StatusPublished
Cited by4 cases

This text of 562 A.2d 644 (Mason v. District of Columbia Department of Employment Services) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mason v. District of Columbia Department of Employment Services, 562 A.2d 644, 1989 D.C. App. LEXIS 152, 1989 WL 89795 (D.C. 1989).

Opinion

PER CURIAM:

Petitioner seeks review of a decision of the D.C. Department of Employment Services (DOES) awarding her partial disability payments under the D.C. Workers' Compensation Act. D.C.Code §§ 36-301 to 36-345 (1988 Repl.). She contends that DOES erred in computing both the amount of her post-injury wages and her wage loss. Specifically, she argues (1) that payments made by her employer to a taxicab company to provide for her transportation to and from work after her injury should not be included in determining her post-injury wages; and (2) that DOES erred in calculating her wage loss on the basis of her income as of the time of her injury rather than on the basis of what it would have been, absent injury, at the time of her maximum medical improvement. Although we determine that DOES properly calculated the wage loss, we agree with petitioner’s first contention and therefore must reverse.

I

The facts necessary to a resolution of the issues raised in this case are few; we mention them only briefly here. On February 5, 1983, petitioner injured her back while working as a housekeeper for her employer. She returned to work in a light-duty capacity on January 7, 1985, but did not work between April 1 and May 3, 1985.

Petitioner applied for disability benefits. A hearing examiner recommended that petitioner be awarded temporary partial disability payments based on 66% percent of her wage loss1 for the period January 7 through March 31, 1985, and May 4 through June 26, 1985. The examiner further recommended an award of permanent partial disability based on 66% percent of her wage loss 2 commencing June 27, 1985. The foregoing is not challenged on appeal.

In reaching this conclusion, the examiner determined that the wage loss should be the difference between petitioner’s stipulated average weekly wage before becoming disabled and her actual post-injury [646]*646earnings. The examiner further concluded that petitioner’s post-injury earnings should include amounts paid by her employer directly to a taxicab company which transported her back and forth to work. These determinations were affirmed by the Director of DOES. This appeal followed.

II

In reviewing a final DOES decision, we are limited to a determination whether “the findings of fact, upon which the compensation authorities based their decision, are supported by substantial evidence in the record and whether the ultimate decision is in accordance with the law.” Wright v. District of Columbia Department of Employment Services, 560 A.2d 509, 510 (D.C.1989) (citing Gomillion v. District of Columbia Department of Employment Services, 447 A.2d 449, 450-51 (D.C.1982); D.C.Code § 1-1510(a)(3)(E) (1987 Repl.)); see also Cohen v. District of Columbia Rental Housing Comm’n, 496 A.2d 603 (D.C.1985). As the factual findings in this case are not in dispute, we turn to examine DOES’ legal conclusions.

A.

Because of the injury petitioner suffered and her subsequent disability, when she resumed working she was unable to walk or use public transportation to get to and from her workplace. Instead, her employer arranged for a taxicab to transport her each day. The employer made direct payments to the cab company to cover the costs of that transportation. DOES determined that these payments should be included in computing petitioner’s post-injury wages. We conclude, however, that such a determination is counter to both the relevant statute and settled principles of law.

In computing wages, the ultimate objective is to ascertain the true economic benefit to the claimant. It is therefore generally recognized that not only wages and salary are included in those computations, but other things of value received in consideration for the work such as commissions, see, e.g., Miller v. Ben’s Service Station, Inc., 417 So.2d 266 (Fla.Dist.Ct.App.1982); bonuses, see, e.g., U.S. Fidelity & Guaranty Co. v. Branch, 178 Ga.App. 853, 344 S.E.2d 714, cert. denied, (1986); Sullivan v. Empire Equipment Engineering Co., 492 A.2d 1212 (R.I.1985); room and board, see, e.g., Roadway Express, Inc. v. Workmen’s Compensation Appeal Board, 110 Pa.Cmwlth. 535, 532 A.2d 1241 (1987); O’Neil v. William Randolph Dairy Farm, 65 A.D.2d 907, 410 N.Y.S.2d 695 (1978); and tips, see, e.g., Romero v. U-Let-Us Skycap Services, Inc., 740 P.2d 1004 (Colo.Ct.App.1987); Deason v. Travelers Ins. Co., 242 So.2d 906 (La.Ct.App.1971).

However, it is also recognized that “amounts paid an employee as reimbursement for expenditures which he is called upon to make in the course of his employment, in activities which he has no occasion to pursue when not employed, are not part of his earnings for the purpose of fixing workmen’s compensation.” 88 Am.Jur.2d Workmen’s Compensation § 371 (1976). Thus, “[a] car allowance is includable as wage only if it exceeds actual ... travel expenses.” 2 A Larson, Workmen’s Compensation Law § 60.12(a), at 10-631 to 10-632 (1987); see Moorehead v. Industrial Comm’n, 17 Ariz.App. 96, 98, 495 P.2d 866, 868 (1972); accord, Hairston v. Galliher & Hughley, H & AS No. 84-11, slip op. at 8 (D.C. Department of Employment Services 1985).

The rationale for this exception is fairly straightforward. Unlike payments such as tips and bonuses, travel expense payments do not constitute true economic benefit; rather, they are simply reimbursements to the claimant for expenses she or he would not otherwise incur. See Bosworth v. 7-Up Distributing Co. of Fredericksburg, 4 Va.App. 161, 163-64, 355 S.E.2d 339, 341 (1987) (automobile expenses); Weingarten v. Democrat & Chronicle, 19 A.D.2d 566, 566, 239 N.Y.S.2d 980, 981 (1963) (same); cf. Layne Atlantic Co. v. Scott, 415 So.2d 837, 839 (Fla.Dist.Ct.App.1982) (motel expenses).

It is evident that the payments to the cab company were in the nature of reimbursements. The payments were made directly to the cab company in the exact amount [647]*647owed. If the employer had ceased paying the allowance because petitioner no longer incurred those expenses, she would not have suffered any economic loss. Thus, as the payments constitute no true economic benefit to petitioner, they are not properly subject to inclusion as wages.

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