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In re Appeal of MacDonald7/18/2005
Argued: May 18, 2005
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, I (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.
RSA 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,
Page 1 2 3 4 New Hampshire Personal Injury Attorneys
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