Grimes v. Gab Business Services Inc.

RICHARD B. TEITELMAN, Judge,

dissenting.

I respectfully dissent from the majority holding on Employer’s first issue on appeal, and would instead remand the issue to the Commission for a further factual determination.

The issue upon which I differ with the majority involves the nature of a per diem expense allowance and whether that amount is appropriately included as part of Employee’s gross income. Though I generally agree with the majority that amounts paid for “special expenses” should not be included as part of Employee’s income, I respectfully disagree with the majority’s holding that the entire per diem amount was paid to Employee to cover such expenses and that it should thus be excluded.

I find it significant that Employer did not reimburse Employee for his actual expenses. Rather, Employer paid Employee a per diem expense allowance and did not require any proof as to actual expenses. To the extent that Employer did not require an accounting as to the expenses and paid a flat daily rate for incidental living expenses, such an arrangement more closely resembles a bargained-for wage for services rendered than an agreement for the payment of special expenses. Moreover, I do not believe that all of the expenses the per diem amount provided for were special expenses.

In Newman v. Rice-Stix Dry Goods Co., 335 Mo. 572, 73 S.W.2d 264, 270 (1934), the Missouri Supreme Court discussed the difference between the value of “board, rent, housing, lodging and fuel” and “special expenses.” “Board, rent, housing, lodging and fuel” are described as “ordinary or general living expenses which every person, whether employed or not, necessarily incurs.” “Special expenses,” on the other hand, are incurred because of the nature of the employment. In a case such as this where a per diem amount is paid to an employee for his room, board and living expenses such as laundry while he travels on business, the expenses meant to be covered by the per diem include both “ordinary or general living expenses” and “special expenses.” While it is true that Employee would not have incurred hotel expenses if he had not been working for Employer in Florida, he certainly would have incurred meal and laundry expenses wherever he was.

An almost identical fact scenario and issue were present in Viking Sprinkler Company v. Thomas, 413 So.2d 816 (Fla.App. Dist. 1 1982). In that case, the claimant was paid a $90 weekly expense allowance while he was out of town. The allowance was paid for daily living expenses, including room and meals, and partly for mileage, and no accounting for these expenses or for the expenditure of the allowance was required. The Florida court found the allowance to be part of the claimant’s wages. Id. at 817. In a later decision, the Florida court examined a similar issue and held that a “dollar-for-dollar reimbursement for an away-from-home motel room satisfies a need that would not exist but for the idiosyncrasies of work, so it cannot be considered as ‘wages.’ ” Layne Atlantic Co. v. Scott, 415 So.2d 837, 839 (Fla.App. Dist. 1 1982). The court also said, however, that items such as meals and uniforms satisfy independent personal needs for food and clothing and thereby qualify as “wages.” The court distinguished Viking Sprinkler, stating “[tjhere, the uniformity and regularity of the expense payments coupled with the employee’s broad discretionary ability in putting the money to use was sufficient evidence from which the deputy could conclude that the allowance was not a bona fide make-whole reimbursement and that the employee had received independent personal benefit.”1

*643Workers’ compensation provisions are to be liberally construed with a view to public welfare. Bass v. National Super Markets, Inc., 911 S.W.2d 617, 619 (Mo.banc 1995). Accordingly, we resolve all doubts in favor of the employee. Schuster v. State Division of Employment Security, 972 S.W.2d 377, 381 (Mo.App. E.D.1998) (citing Cook v. Sunnen Products Corp., 937 S.W.2d 221 (Mo.App. E.D.1996)).

While the amount Employee spent on his hotel expense in this case arguably should not be included as part of his wages, the amount he spent on meals, laundry and other expenses that were not “special expenses” related to his job should be included. The record does not reflect what Employee’s exact expenses were, only that his expenses exceeded his allowance. Therefore, I disagree with the disallowance of the per diem amount as a whole because the record does not support a finding that the per diem amount only paid for hotel expenses. Rather, a reasonable inference drawn from viewing the facts in a light most favorable to the Commission’s Award is that the per diem amount most certainly was spent on more than a single expense.

For that reason, I would remand this issue to the Commission for further findings of fact. Though it is possible that Employee spent $66 per day on his hotel expenses, it is more likely that part of the per diem amount provided a real economic gain to him, especially considering that the per diem amount was not a dollar for dollar reimbursement and Employee had absolute discretion in spending the money.2 The Commission, as finder of fact, should make that determination. I would afford broad deference to the Commission in determining what is appropriate and fair on issues of compensation.3

I fully concur in the well-reasoned analysis of the majority opinion regarding Employer’s remaining issue on appeal and Employee’s cross appeal.

. Though the Florida workers' compensation law does not provide a distinction for amounts paid to cover “special expenses,” Florida courts do seem to embody Professor Larson’s “real eco*643nomic gain" test in determining which amounts to include as wages.

. I would not rely on the fact that Employer did not withhold taxes from the per diem allowance because the record does not contain information from which we can determine whether or not Employer acted properly when it did not withhold tax, and the taxation issue is not before us.

. Section 287.250.4 RSMo 1994 provides:

If pursuant to this section the average weekly wage cannot fairly and justly be determined by the formulas provided in subsections 1 to 3 of this section, the division or the commission may determine the average weekly wage in such manner and by such method as, in the opinion of the division or the commission, based upon the exceptional facts presented, fairly determine such employee’s average weekly wage.
Had the Commission determined that the inclusion of the entire amount of the per diem expense allowance would be fair and just, instead of including the per diem amount as a “similar advance,” I would affirm the entire Award. The facts in this case could warrant a finding that the per diem amount should be included as a matter or fairness to Employee.
Employee was lured to Florida for a job with a promised pay much higher than that which Employer was willing to pay once Employee reached Florida to start work. Employee took the job anyway, accepting the lower pay in the form of $95 in salary, $65 in per diem expense allowance, and $5 special travel expense allowance per day. Employee testified that both the $95 and the $65 that he was paid per day were part of his salary. Moreover, Employer acted as though the per diem amount was part of Employee’s wages when it required no accounting of the manner in which Employee spent the funds.