PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CUSTOM SHIP INTERIORS; FREMONT
COMPENSATION INSURANCE GROUP,
Petitioners,
v.
MICHAEL ROBERTS; BENEFITS REVIEW No. 01-1880
BOARD; DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(BRB No. 00-832)
Argued: June 3, 2002
Decided: August 15, 2002
Before WILKINSON, Chief Judge, and NIEMEYER and
WILLIAMS, Circuit Judges.
Affirmed by published opinion. Chief Judge Wilkinson wrote the
majority opinion, in which Judge Williams joined. Judge Niemeyer
wrote a dissenting opinion.
COUNSEL
ARGUED: Frank Joseph Sioli, Jr., VALLE & CRAIG, P.A., Miami,
Florida, for Petitioners. Ralph R. Lorberbaum, ZIPPERER & LOR-
2 CUSTOM SHIP INTERIORS v. ROBERTS
BERBAUM, P.C., Savannah, Georgia, for Respondent Roberts. Mark
S. Flynn, Senior Appellate Attorney, UNITED STATES DEPART-
MENT OF LABOR, Washington, D.C., for Respondents Board and
Director. ON BRIEF: Lawrance B. Craig, III, VALLE & CRAIG,
P.A., Miami, Florida, for Petitioners. Howard M. Radzely, Acting
Associate Solicitor, Allen H. Feldman, Associate Solicitor for Special
Appellate and Supreme Court Litigation, Nathaniel I. Spiller, Deputy
Associate Solicitor, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondents Board and Director.
OPINION
WILKINSON, Chief Judge:
Petitioner Custom Ship Interiors appeals the decision of the Bene-
fits Review Board ("BRB") that regular per diem payments made to
employees incurring no room and board expenses should be included
as wages under the Longshore and Harbor Workers’ Compensation
Act ("LHWCA" or "Act"), 33 U.S.C. §§ 901 et seq. (2002). Custom
Ship contends that the payments were "advantages" not subject to tax
withholding, and thus not properly viewed as "wages" under the Act.
Because the per diem payments were disbursed to the employee each
week despite the fact that Custom Ship knew that he was incurring
no food or lodging expenses needing reimbursement, we affirm the
judgment of the BRB that the payments were includable as "wages"
under the Act.
I.
Michael Roberts injured his back while remodeling a Carnival
Cruise ship for his employer, Custom Ship Interiors. Roberts had
worked for Custom Ship for approximately nine years. His work was
seasonal, covering roughly two-thirds of the year. During his periods
of employment, he normally worked six days a week for a total of
about sixty hours.
In addition to his weekly salary and any overtime pay, Roberts’
employment contract entitled him to per diem payments of approxi-
CUSTOM SHIP INTERIORS v. ROBERTS 3
mately $77.50 per day. According to Custom Ship, the per diem was
non-taxable and was intended to cover employees’ meal and lodging
expenses while they were on jobs away from home. However, Cus-
tom Ship provided these cash payments without any restrictions,
meaning the recipients could spend them in any way they saw fit. For
approximately one year prior to his injury, Roberts was assigned to
Carnival and incurred no room and board expenses because Carnival
provided free room and board to its remodelers. Custom Ship knew
that Carnival provided these amenities. Still, Custom Ship continued
to provide the unrestricted cash payments to employees working on
Carnival ships despite knowing that none of the employees incurred
any expenses.
On August 21, 1998, while working aboard a Carnival Cruise ship
docked in Norfolk, Virginia, Roberts was struck by a steel bunk bed
falling from the wall. Immediately after the accident, Roberts was
sent to lie down in an adjacent cabin and his supervisors were noti-
fied. A day or two later, after experiencing intense back, neck, head,
and right leg pain, he went to see a physician on the ship. He
remained on the ship for some time, hoping his condition would
improve and attempting to do some light work. However, he was
unable to work and eventually left the ship for Florida in order to seek
medical attention. Since the injury, Roberts has experienced constant
back pain and has not performed any further work for Custom Ship.
On March 15, 1999, Roberts filed a claim for disability benefits
under the Longshore and Harbor Workers’ Compensation Act, 33
U.S.C. §§ 901 et seq., in Florida where he was living at the time. His
claim went before an Administrative Law Judge who determined that
Roberts was temporarily disabled as a result of a work-related injury,
a finding not disputed on appeal. Roberts was thus entitled to benefits,
the amount of which are based on a claimant’s average weekly wage
as defined and calculated under the Act. Roberts claimed that in addi-
tion to his normal weekly wage and overtime, the $77.50 per diem
should be included in his average weekly wage calculation. However,
the ALJ ruled that tax-exempt per diems for the purpose of defraying
expenses for meals and lodging do not fall within the definition of
wages set forth in the Act. The ALJ concluded that Roberts’ average
weekly wage was $377.13.
4 CUSTOM SHIP INTERIORS v. ROBERTS
The Benefits Review Board reversed. Because the injury occurred
in Virginia, the law of this circuit was controlling. See 33 U.S.C.
§ 921(c). And under Universal Maritime Service Corp. v. Wright, 155
F.3d 311 (4th Cir. 1998), the Board held Roberts’ per diem payments
should be included in the calculation of average weekly wages. The
BRB based its conclusion primarily on the fact that Roberts received
the per diem in his pay check every week, regardless of whether he
incurred any expenses. Moreover, the BRB concluded that the per
diem was part of Roberts’ employment contract. Thus, the BRB deter-
mined that Roberts’ average weekly wage was $690.11. Custom Ship
now appeals.
II.
The Longshore and Harbor Workers’ Compensation Act compen-
sates covered workers for the loss of wage-earning capacity due to
disabling job-related injuries. See Metropolitan Stevedore Co. v.
Rambo, 521 U.S. 121 (1997). At the heart of the Act’s compensation
scheme is the definition of "wages" contained in § 2(13). That section
specifies what items will be used to determine the claimant’s pre-
injury average weekly wage, which is then used to calculate benefits.
See Wright, 155 F.3d at 317. It defines "wages" as:
the money rate at which the service rendered by an
employee is compensated by an employer under the contract
of hiring in force at the time of the injury, including the rea-
sonable value of any advantage which is received from the
employer and included for the purposes of any withholding
tax under subtitle C of the Internal Revenue Code of 1954
[26 U.S.C.A. § 3101 et seq.] (relating to employment taxes).
The term wages does not include fringe benefits, including
(but not limited to) employer payments for or contributions
to a retirement, pension, health and welfare, life insurance,
training, social security or other employee or dependent
benefit plan for employee’s or dependent’s benefit, or any
other employee’s dependent entitlement.
33 U.S.C. § 902(13).
In Wright, we interpreted § 2(13) to define "wages" as "the ‘money
rate’ of compensation that is provided (1) for the employee’s services
CUSTOM SHIP INTERIORS v. ROBERTS 5
(2) by an employer (3) under the employment contract in force at the
time of the injury." 155 F.3d at 325. All compensation that meets
these requirements satisfies the Act’s definition of wages, although
§ 2(13) contains two clauses under which a payment might fall.
The opening clause of § 2(13) broadly covers the money rate at
which an employee is compensated under his employment contract
for providing services. We concluded in Wright that, "[a]t a mini-
mum, this encompasses cash compensation" provided for services
rendered under the employment contract. Id. at 319. If the payment
at issue is not regular cash compensation it might still fall under the
second clause, which expressly includes as a "wage" the reasonable
value of "any advantage" received by the employee that is subject to
tax withholding. Id. at 319-20. It is important to note that the second
clause does not serve to limit the first. See id. at 319 n.10. Instead,
it defines a different category of benefits that might be considered
wages. Although the second clause encompasses both monetary and
in kind compensation so long as it is "readily identifiable and calcula-
ble," id. at 322-24, it primarily addresses nonmonetary benefits that
cannot be viewed as the regular money rate of compensation. See id.
at 319-21. Finally, the third clause expressly excludes other "fringe
benefits," whose value to the employee is "too speculative to be read-
ily converted into a cash equivalent." Id. at 320.
The Fifth Circuit subsequently interpreted our decision in Wright
to mean that if a benefit is paid in dollars and cents and therefore has
a value that is apparent on its face, it constitutes a wage rather than
a fringe benefit under § 2(13). James J. Flanagan Stevedores, Inc. v.
Gallagher, 219 F.3d 426, 432 (5th Cir. 2000). Thus, in Gallagher, the
Fifth Circuit held that container royalty benefits paid annually to
longshoremen are properly included as wages in the calculation of
benefits under the Act. Id. at 433.
III.
Custom Ship contends that the contested payments were reimburse-
ments for food and lodging rather than regular compensation, and
thus that they may not count as "wages" unless they were subject to
employment tax withholding. However, Custom Ship’s argument flies
in the face of its decision to regularly provide Roberts the payments
6 CUSTOM SHIP INTERIORS v. ROBERTS
despite knowing that he had no expenses to reimburse. Because the
payments were virtually indistinguishable from Roberts’ regular
hourly wages, we must affirm the decision of the BRB.
We recognize, of course, that per diem payments are traditionally
seen as reimbursements for expenses, including room and board when
traveling, and are not generally considered regular taxable wages. See
26 U.S.C. § 119 (2002). However, when a per diem is given in the
face of knowledge that the employee has no expenses, it is less clear
that the per diem is a reimbursement rather than a regular wage.
The payments here had every indicia of an ordinary wage. Roberts
regularly received them in his weekly pay check as a part of his
employment contract. Like his hourly wages, the payments correlated
to the amount of time Roberts worked each week. If Roberts worked
one day, he would receive one per diem payment in his pay check.
Moreover, the payments were unrestricted cash payments. There was
no requirement that Roberts spend the payments on room and board.
In fact, Roberts was not even required to incur any room and board
expenses at all. Thus, Custom Ship’s attempt to characterize the pay-
ments as room and board reimbursements, and thus nonmonetary "ad-
vantages," does not change the fact that they were obviously regular
wages.
Whether a true per diem reimbursement payment should be includ-
able as a "wage" under the Act is not the relevant question here
because these payments did not resemble reimbursements in any way.
True per diem reimbursements generally bear at least some rough
approximation to room and board expenses; however the payments
here were not linked to actual expenses of any sort. Custom Ship
knew that Carnival provided free food and lodging to ship remod-
elers. Thus, Custom Ship included the payments in Roberts’ weekly
pay checks despite knowing that he was not incurring any of the
expenses the per diem was nominally to reimburse.
Custom Ship argues that the payments at issue must be subject to
withholding to be viewed as a wage. However Custom Ship miscon-
strues the Act’s definition of a "wage." Whether or not a payment is
subject to withholding is not the exclusive test of a "wage." Monetary
compensation paid pursuant to an employment contract is most often
CUSTOM SHIP INTERIORS v. ROBERTS 7
subject to tax withholding, but the LHWCA does not make tax with-
holding an absolute prerequisite of wage treatment. As the BRB cor-
rectly noted, "the per diem at issue here is part of the money claimant
receives from employer, and is thus includable in average weekly
wage under the first clause of Section 2(13) regardless of whether it
is subject to tax withholding." Michael A. Roberts, BRB No. 00-832
(May 15, 2001). Because the payments are included as wages under
the first clause of § 2(13), Custom Ship’s invocation of the second
clause of § 2(13) is unavailing. This second clause enlarges the defini-
tion of "wages" to include meals and lodging provided in kind by the
employer, but only when the in kind compensation is subject to
employment tax withholding. The second clause, however, does not
purport to speak to the basic money rate of compensation for service
rendered by an employee under which the cash payments in this case
fall. See Wright, 155 F.3d at 319 & n.10.
Custom Ship further argues that we should follow the Fifth and
Ninth Circuits’ holdings that the value of meals and lodging furnished
by an employer is not includable as wages under the LHWCA. H.B.
Zachry Co. v. Quinones, 206 F.3d 474 (5th Cir. 2000); Wausau Ins.
Cos. v. Dir., Office of Workers Comp. Programs, 114 F.3d 120 (9th
Cir. 1997). This case is quite different from Quinones and Wausau,
however. The payment here was in the nature of monetary compensa-
tion. By contrast, Quinones and Wausau involved the value of meals
and lodging provided to employees. As we have already noted, mone-
tary compensation and in kind benefits are treated differently under
the statute in that the latter to be includable must be subject to tax
withholding. That is not true of Roberts’ monetary payments, how-
ever. In fact, we note further that the BRB rejected Roberts’ conten-
tion that the value of the free room and board provided by Carnival
should also be viewed as wages, and Roberts does not appeal that
decision. Instead, Roberts is claiming as wages only the actual money
he regularly received in his weekly pay check.*
The so-called per diem in this case was nothing more than a dis-
guised wage. Were it viewed otherwise, Roberts would not be ade-
*Custom Ship’s reliance on McNutt v. Benefits Review Board, 140
F.3d 1247 (9th Cir. 1998), is similarly unavailing. In McNutt, unlike
here, the claimant had incurred actual room and board expenses.
8 CUSTOM SHIP INTERIORS v. ROBERTS
quately compensated for the loss of his wage-earning capacity at the
time of his injury. That, of course, would undermine the entire prem-
ise of the Longshore and Harbor Workers’ Compensation Act.
IV.
For the foregoing reasons, we affirm the judgment of the Benefits
Review Board.
AFFIRMED
NIEMEYER, Circuit Judge, dissenting:
Michael Roberts was injured while working as an employee for
Custom Ship Interiors, a ship remodeling firm. At the time of his
injury, Roberts was working on the remodeling of a Carnival Cruise
ship. He filed a claim for disability benefits under the Longshore and
Harbor Workers’ Compensation Act ("LHWCA"), 33 U.S.C. § 901 et
seq., and the Administrative Law Judge ("ALJ") determined that Rob-
erts was entitled to benefits.
Disability benefits under the LHWCA are calculated using the
claimant’s average weekly wage as defined by the Act. See 33 U.S.C.
§ 902(13). In computing Roberts’ average weekly wage, the ALJ took
into account Roberts’ normal weekly wages and overtime pay, but not
the $77.50 per diem paid by his employer to defray the costs of Rob-
erts’ meals and lodging while Roberts worked away from home on
the Carnival Cruise ship. The Benefits Review Board reversed, con-
cluding that the per diem payments should be included as part of Rob-
erts’ average weekly wages because the per diem payments were paid
every week, regardless of whether Roberts incurred the meals and
lodging expense, noting that while working on the Carnival Cruise
ship, Roberts did not incur expenses for meals and lodging because
Carnival Cruise supplied meals and lodging to workers remodeling its
ship, not as a matter of contractual obligation, but merely as an
accommodation to the workers.
Because I agree with the ALJ’s decision not to include the per diem
in calculating Roberts’ weekly wage, I would reverse the decision of
the Benefits Review Board.
CUSTOM SHIP INTERIORS v. ROBERTS 9
It is true that Custom Ship Interiors paid the per diem regardless
of how much the employee actually incurred for meals and lodging
or whether the employee incurred any expense at all. It was a fixed
sum reimbursement paid to every employee who worked away from
home and did not depend on an employee’s accounting for his actual
expenses. And thus it is also true that to the extent that an employee
did not incur actual expenses equal to the $77.50 per diem paid by
Custom Ship Interiors, the per diem payment provided the employee
with a monetary advantage. But this monetary advantage was not
compensation for services. Rather, it was simply an advantage realiz-
able by the employee who did not use the entire per diem expenses.
The proper decision in this case turns on whether this monetary
advantage falls within the definition of wages. The controlling defini-
tion of wages is supplied by 33 U.S.C. § 902(13), which provides:
The term "wages" means the money rate at which the ser-
vice rendered by an employee is compensated by an
employer under the contract of hiring in force at the time of
the injury, including the reasonable value of any advantage
which is received from the employer and included for pur-
poses of any withholding of tax under subtitle C of the Inter-
nal Revenue Code of 1954 [26 U.S.C. §§ 3101 et seq.].
(emphasis added). The text of this provision requires that a wage be
compensation for "service," not a reimbursement for expenses, and
we have so concluded. See Universal Maritime Service Corp. v.
Wright, 155 F.3d 311, 319 (4th Cir. 1998) (defining "wages" as "the
‘money rate’ of compensation that is provided (1) for the employee’s
services (2) by an employer (3) under the employment contract in
force at the time of the injury"). Simply because a per diem is granted
regardless of the amount of expenses actually incurred is not a basis
by which to convert the per diem allowance into a compensation for
service. Indeed, were the employee able to work while living at home,
he would not receive the per diem but would still have rendered the
same services to his employer.
Moreover, the "including" clause — which defines as a wage "the
reasonable value of any advantage which is received from the
employer and included for purposes of any withholding of tax under
10 CUSTOM SHIP INTERIORS v. ROBERTS
subtitle C of the Internal Revenue Code" — does not make a reim-
bursement for expenses a component of average weekly wages for
two reasons. First, the per diem is paid for expenses incurred on the
road, whether actually incurred or not, and it is not a compensation
for services. Second, the per diem is not included in any W-2 form
reported to the IRS. As we explained in Universal Maritime, the "in-
cluding" clause defines as a wage any form of nonmonetary compen-
sation as long as that nonmonetary compensation could be included
as wages "and must be subject to tax withholding." Id. at 323.
The majority suggests that if an employee does not incur the
expenses up to the amount of per diem for meals and lodging, it
somehow receives the balance as compensation for services. If this
principle were correct, every employee who "saved" money on a fixed
per diem would owe the United States taxes. But this is not the law,
nor is it the practice. See, e.g., H.B. Zachry Co. v. Quinones, Director
OWCP, 206 F.3d 474, 479 (5th Cir. 2000); McNutt v. Benefits Review
Board, 140 F.3d 1247, 1248 (9th Cir. 1998) (per curiam).
Because I conclude that the per diem expenses which were paid
irrespective of actual expenses were not compensation for services
and therefore should not have been included in Roberts’ average
weekly wage for calculation of disability benefits, I would reverse the
decision of the Benefits Review Board. Accordingly, I respectfully
dissent.