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In re Compensation of Sparks

Court of Appeals of Oregon

August 21, 2013

In the Matter of the Compensation of Jeffery P. Sparks, Claimant.
v.
JEFFERY P. SPARKS, Respondent. SAIF CORPORATION and PIONEER WATERPROOFING CO. INC., Petitioners, v.

Argued and submitted on May 08, 2012.

Workers' Compensation Board 1005303

Julie Masters argued the cause and filed the briefs for petitioners.

J. Michael Casey and Edward J. Harri filed the brief for respondent.

Before Ortega, Presiding Judge, and Hadlock, Judge, and Edmonds, Senior Judge.

ORTEGA, P. J.

Petitioners SAIF and Pioneer Waterproofing Co. Inc. (SAIF) seek review of an order of the Workers' Compensation Board (board), challenging the board's conclusion that SAIF did not correctly calculate claimant's temporary total disability (TTD) benefits when it failed to include in the calculation claimant's additional "wages" of subsistence pay and one-time travel pay. As explained below, we agree with the board's conclusion that claimant's subsistence and travel pay are indeed "wages" for purposes of determining claimant's TTD benefits under ORS 656.210(1) and OAR 436-060-0025(5)(c). Accordingly, we affirm.

We begin by explaining the legal framework at issue in this case. A worker who suffers a temporary disability as a result of a work-related injury is entitled to TTD benefits. ORS 656.210(1). Of significance to this case, TTD benefits are based on the "wage of the worker at the time of injury." ORS 656.210(2)(d)(A). "Wages, " for these purposes, are defined as

"the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, including reasonable value of board, rent, housing, lodging or similar advantage received from the employer[.]"

ORS 656.005(29).

Further, OAR 436-060-0025(5)(c) provides that, in cases in which

"workers [are] paid salary plus considerations (e.g. rent, utilities, food, etc.) insurers must compute the rate on salary only if the considerations continue during the period the worker is disabled due to the injury. If the considerations do not continue, the insurer must use salary plus a reasonable value of those considerations. Expenses incurred due to the job and reimbursed by the employer (e.g. meals, lodging, per diem, equipment rental) are not considered part of the wage."

(Emphases added.)

With that legal framework in mind, we turn to the undisputed facts of this case, as found by the board. Claimant, a master mason from California, worked on two projects in Oregon between June 2008 and February 2009. Specifically, from June through September 2008, claimant worked on a project in Corvallis and, from October 2008 until his injury in February 2009, a project in Portland. For the Corvallis project, claimant was paid a daily "subsistence pay" of $76, which was in addition to his regular hourly wages and, for the Portland project, a monthly "subsistence pay"/"travel allowance" of $600, in addition to his regularly hourly wages. On one occasion, he was also paid "travel pay" of $12. Although the purpose of the subsistence pay was to assist claimant in taking care of his needs, such as lodging, food, and other related expenses, claimant was not obligated to use the payment in any particular manner. For each project, claimant received the fixed amount of payment "regardless of any expenditures made during any particular pay period, " and he was "not required to submit receipts, " nor was he compensated based on the specific amount that he spent. Each time claimant was paid, the subsistence and travel pay was included in his regular hourly wages in a single paycheck. In February 2009, when claimant became disabled, the subsistence and ...


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