Filed
Washington State
Court of Appeals
Division Two
January 13, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
JENNINGS R. GUSTAFSON, No. 52200-4-II
Appellant,
v.
DEPARTMENT OF LABOR AND INDUSTRIES UNPUBLISHED OPINION
OF THE STATE OFWASHINGTON and ABC
LEGAL MESSENGER SERVICE,
Respondents.
SUTTON, J. — Jennings R. Gustafson appeals from the superior court’s judgment affirming
the Board of Industrial Insurance Appeals’ (Board) decision and order. He argues that the
Department of Labor and Industries (Department) should have included the mileage
reimbursement he was receiving at the time of his industrial injury when calculating his monthly
wage rate and also erred by averaging the hours he worked when calculating his monthly wages.
We disagree and affirm.
FACTS
In 2013, Gustafson began working full-time for ABC Legal Messenger Service as a legal
courier. On November 24, 2015, he suffered an industrial injury while working for ABC Legal.1
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Gustafson was also employed by Pacific Northwest Legal Support, Inc. at the time of his injury,
but he does not dispute the Department’s wage calculation regarding his employment with Pacific
Northwest Legal Support.
No. 52200-4-II
ABC Legal paid Gustafson $13.00 per hour. ABC Legal compensated Gustafson based on
the actual hours he worked. ABC Legal reimbursed workers for “actual travel and entertainment
expenses incurred in the transaction of authorized company business” incurred by workers, as long
as the expenses were reasonable. Clerk’s Papers (CP) at 406. This policy includes reimbursing
workers who use their own vehicles for company business at a specific mileage reimbursement
rate. ABC Legal paid Gustafson a set rate for mileage reimbursement. In 2010, ABC Legal began
paying mileage reimbursement through payroll instead of through its accounts payable department.
The mileage reimbursement did not become taxable income when ABC Legal made this switch.
At the start of 2015, ABC Legal used a set rate for mileage reimbursement of 41.5 cents
per mile. Later in 2015, ABC Legal increased the mileage reimbursement rate to 50 cents per
mile. ABC Legal intended the mileage reimbursement to cover all vehicle-related expenses such
as gas, insurance premiums, and vehicle maintenance. A worker did not receive any mileage
reimbursement if the worker did not drive. ABC Legal did not consider the mileage reimbursement
as part of the wages paid. ABC Legal paid only for a straight 8-hour shift when paying workers
for vacation, sick leave, or holidays, with nothing additional for mileage reimbursement. Because
ABC’s mileage reimbursement was lower than the rates recommended by the Internal Revenue
Service (IRS), the IRS allowed ABC Legal couriers to deduct the difference between the rates as
a business cost on their federal tax returns, and the IRS did not treat the mileage reimbursement as
taxable income.
On December 18, 2015, the Department issued an order allowing Gustafson’s claim, and
benefits were provided. On March 1, 2016, the Department issued a wage order setting
Gustafson’s monthly wages at $3,803.14. The wage rate consisted of $2,158.00 monthly salary
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from ABC Legal, $1,259.43 for his second job as a courier with Pacific Northwest Legal Support,
$383.37 for health care benefits, and $2.34 a month for overtime.
The Department calculated the monthly wage rate based on the payroll records it received
from ABC Legal that showed how many hours Gustafson had been paid at his hourly rate of $13.00
for the year before his industrial injury. The Department divided the number of hours recorded by
12 to arrive at 154.42 hours per month and then multiplied those hours by the hourly rate of $13.00
to arrive at the daily wage rate for his employment with ABC Legal. The Department also included
Gustafson’s pay for overtime hours worked and health care benefits paid by ABC Legal in his
monthly wage rate calculation. The Department did not include the mileage reimbursement in the
wage rate calculation.
Gustafson appealed the Department’s wage rate order to the Board. The Board’s judge
affirmed the Department’s order because mileage reimbursement was not considered wages under
RCW 51.08.178(1). Gustafson petitioned the three-member Board for review of the judge’s
decision. The Board agreed with the judge’s decision to affirm the Department’s order.
Gustafson then appealed to the superior court. The parties filed briefs and the superior
court heard argument. The superior court affirmed the Board’s order, including the method of
calculating Gustafson’s monthly wage rate, and ordered him to pay $200.00 in statutory attorney
fees.
Gustafson appeals the superior court’s order affirming the Board’s decision and order, and
appeals the method the Department used to calculate his monthly wage rate.
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No. 52200-4-II
ANALYSIS
Gustafson argues that the superior court and the Board erred by holding that his monthly
wage rate calculation did not include his mileage reimbursement and also erred by averaging his
hours to calculate his monthly wage rate. He argues that the mileage reimbursement was an
alternative method of calculating his monthly wages, not merely a fringe benefit or perk, and it
should have been included in the calculation of his monthly wage rate under RCW 51.08.178(1).
The Department argues that mileage reimbursements are not wages under RCW 51.08.178(1)
because they only cover the cost of work-related expenses and are not remuneration for the work
performed. The Department also argues it correctly averaged Gustafson’s hours worked to
calculate his monthly wage rate. We agree with the Department.
I. STANDARDS OF REVIEW
In worker’s compensation appeals of a superior court’s order affirming the Board, we
review the superior court’s order using the ordinary standard of review for civil cases.
RCW 51.52.140; Soriano v. Dep’t of Labor & Indus., 8 Wn. App. 2d 575, 582, 442 P.3d 269
(2019). The superior court reviews the issues de novo and relies exclusively on the certified Board
record. RCW 51.52.115; Rogers v. Dep’t of Labor & Indus., 151 Wn. App. 174, 179, 210 P.3d
355 (2009). Under the Industrial Insurance Act (IIA)2, the Board’s orders are prima facie correct,
and the party challenging the order has the burden of proof. RCW 51.52.115; Rogers, 151 Wn.
App. at 180.
2
Title 51 RCW.
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No. 52200-4-II
Statutory construction is a question of law and is reviewed de novo. Dep’t of Labor &
Indus. v. Granger, 159 Wn.2d 752, 757, 153 P.3d 839 (2007). “The primary goal of statutory
construction is to carry out legislative intent.” Cockle v. Dep’t of Labor & Indus., 142 Wn.2d 801,
807, 16 P.3d 583 (2001). “If a statute is plain and unambiguous, its meaning must be primarily
derived from the language itself.” Cockle, 142 Wn.2d at 807. “‘The guiding principle in
construing provisions of the [IIA] is that the Act is remedial in nature and is to be liberally
construed in order to achieve its purpose of providing compensation to all covered employees
injured in their employment, with doubts resolved in favor of the worker.’” Cockle, 142 Wn.2d at
811 (quoting Dennis v. Dep’t of Labor & Indus., 109 Wn.2d 467, 470, 745 P.2d 1295 (1987)).
II. MILEAGE REIMBURSEMENT WAS NOT CONSIDERED WAGES
Gustafson argues that his mileage reimbursement payments should be included in the
monthly wage rate calculation for his time-loss compensation. The Department argues that under
the plain language of RCW 51.08.178(1), only certain payments from an employer to an employee
constitute “wages” and mileage reimbursement is not included with the monthly wage rate
calculation under RCW 51.08.178(1). We agree with the Department.
RCW 51.08.178 governs the determination of compensation for time-loss and loss of
earning power, which is based on monthly wages the worker was receiving at the time of the injury.
RCW 51.08.178(1) defines “wages” to include hourly wages, monthly salaries, and other narrowly
defined payments such as board, housing, heating fuel, health care benefits, and other payments
“of like nature” to these items. To be of a like nature to board, housing, and heating fuel, the
claimed amount must be “critical to protecting [the] worker[’s] basic health and survival.” Cockle,
142 Wn.2d at 822.
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Washington courts have routinely held that “wages” consist of some form of consideration
received from the employer in exchange for performed work. Hill v. Dep’t of Labor & Indus., 161
Wn. App. 286, 297-98, 253 P.3d 430 (2011); Malang v. Dep’t of Labor & Indus., 139 Wn. App.
677, 687, 162 P.3d 450 (2007) (“determining whether income constitutes ‘wages’ requires
identifying the amount of income an employer paid in remuneration for work”) (emphasis added);
Rose v. Dep’t of Labor & Indus., 57 Wn. App. 751, 758, 790 P.2d 201 (1990). In Doty v. Town of
South Prairie, the court held that payments by an employer for full health care coverage would
qualify as a “wage” under Cockle, but clarified that other reimbursements of expenses that do not
pass the Cockle test are not wages. 155 Wn.2d 527, 543, 120 P.3d 941 (2005).
Gustafson first argues that the mileage reimbursement constitutes “other consideration of
like nature” as described in Cockle. Br. of Appellant at 12 (quoting Cockle, 142 Wn.2d at 822).
Gustafson contends that because the mileage reimbursement constitutes 41 percent of what ABC
Legal paid him and driving is the job, the mileage is readily identifiable, reasonably calculable,
and should be included in his monthly wage rate calculation. The Department argues that
Gustafson does not incur these work-related expenses for driving when he is not working, and
thus, his time-loss compensation payments should not include mileage reimbursement payments
in the monthly wage rate calculation because Gustafson does not incur those expenses in the first
place during periods that he is disabled from working.
Gustafson misconstrues the holdings in Cockle and Doty. In Cockle, our Supreme Court
interpreted the meaning of the phrase “other consideration of like nature” to determine whether
employer-provided health care coverage should be included in the statutory definition of “wages”
under RCW 51.08.178(1). The court held that the phrase other consideration of like nature
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“represented a readily identifiable and reasonably calculable in-kind component of [the worker’s]
lost earning capacity at the time of injury that is critical to protecting workers’ basic health and
survival.” Cockle, 142 Wn.2d at 805. To be covered under the Cockle test, the claimed amount
must be necessary during the time the worker is disabled. Cockle, 142 Wn.2d at 805. In Doty, the
court held that reimbursement of work-related expenses did not pass the Cockle test because the
expenses were not objectively critical to protecting the worker’s basic health and survival during
periods of disability. Doty, 155 Wn.2d at 541-43.
Here, ABC Legal only reimbursed Gustafson for the miles he drove while making
deliveries for work. Gustafson will not be making work deliveries when he is disabled. The
mileage reimbursement is provided by the employer because the driver incurs significant expenses
while driving a personally owned vehicle for work. When Gustafson is not working for ABC
Legal, he is not incurring these expenses. Therefore, there is no economic loss to compensate for
in the first place.
Gustafson next argues that the mileage reimbursement is critical to his health and survival
during the period when he is disabled. Under Cockle, our Supreme Court recognized that a worker
needs food, shelter, warmth, and access to health care whether the worker is working or not. 142
Wn.2d at 805. Thus, the Department includes an employer’s payments for board, housing, and
health care in a wage calculation when it calculates a worker’s time-loss payments. Cockle, 142
Wn.2d at 822-23. But mileage reimbursements are not “like” payments for board, housing, fuel,
or health care, and therefore, the Department correctly excluded the mileage reimbursement from
the calculation of Gustafson’s monthly wage rate. Cockle, 142 Wn.2d at 822-23; Doty, 155 Wn.2d
at 541-43.
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No. 52200-4-II
Thus, we hold that the Department did not err by not considering the mileage
reimbursement to be wages when calculating Gustafson’s monthly wage rate, and we affirm the
superior court’s order affirming the Board’s decision and order.
III. CORRECT MONTHLY WAGE RATE CALCULATION
Gustafson argues that the superior court and the Board erred by approving the
Department’s wage rate calculation when it averaged his hours to calculate his monthly wage rate.
We disagree.
The Department calculated Gustafson’s wages with ABC Legal by taking his total hours
worked over a 52-week period ($1,853.09), dividing this figure by 12 to arrive at the average hours
worked per month (154.42) and multiplying that figure by Gustafson’s hourly wage ($13.00),
which leads to a basic monthly wage from ABC Legal of $2,007.51. The Department then took
Gustafson’s total holiday hours over the 52-week period (72), divided this by 12 to determine the
monthly average (6), and multiplied it by $13.00, for an average monthly holiday pay of $78.00.
The Department then took Gustafson’s total vacation hours over the 52-week period (66), divided
this by 12 (5.5) and multiplied that figure by $13.00, to arrive at $71.50. The Department then
combined the $2,007.51 in wages with the $78.00 in holiday pay and $71.50 in vacation pay for a
total monthly wage rate calculation of $2,157.01, which it apparently rounded up to $2,158.00.
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No. 52200-4-II
Gustafson suggests that this calculation is incorrect and argues that the Department must
calculate a worker’s wages exclusively based on the worker’s scheduled hours. This suggestion
contradicts the plain language of the statute, which calls for calculating a worker’s wages based
on the hours the worker was “normally” employed, not the hours the worker was scheduled to
work. RCW 51.08.178(1). “If a statute is plain and unambiguous, its meaning must be primarily
derived from the language itself.” Cockle, 142 Wn.2d at 807.
Because the language in the statute is plain and unambiguous, the Department’s calculation
based on the average hours Gustafson actually worked is correct. We affirm the superior court’s
order affirming the Board’s decision and order
ATTORNEY FEES
Citing RCW 4.84.010, Gustafson requests an award of reasonable attorney fees and costs
on appeal. Under RAP 18.1, the prevailing party is entitled to attorney fees and costs on appeal
when applicable law authorizes the award. See McGuire v. Bates, 169 Wn.2d 185, 191, 234 P.3d
205 (2010). We deny this request because Gustafson is not the prevailing party, and thus, he is
not entitled to an award of appellate attorney fees and costs.
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CONCLUSION
We affirm the superior court’s order affirming the Board’s decision and order.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
WORSWICK, P.J.
CRUSER, J.
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