By John Kamin
Partner, Bradford & Barthel
When doing average weekly wage (AWW) calculations, it can quickly get complicated when deciding whether per diems and reimbursements should be included.
Fortunately, there are several panel decisions that interpret the Labor Code and boil it down to a simple litmus test – if it counts as a remuneration, and not simply a reimbursement, then it should be included in the average weekly wage (AWW) calculation. If it is a straightforward reimbursement, then it should not be included in the AWW.
Labor Code 4454 states that AWW calculations should include the market value of any advantages that count as remuneration, but AWWs should not include “any sum the employer pays to or for the injured employee to cover any special expenses entailed on the employee by the nature of his employment …”
The WCAB examined this topic in the May 2008 panel decision of Lisa Burke v. Winterland Productions. In that case, the WCAB took a close look at LC 4454, and dissected it to determine that:
- Remuneration should be counted in the AWW
- Reimbursement of expenses should be excluded from the AWW
Some per diems qualify as remuneration, whereas others are more akin to a simple reimbursement.
In the Burke case, the WCAB cited to a 1989 writ denied panel decision (Olds v. WCAB (1989), 54 Cal.Comp.Cases 323) which stated that a $540/month per diem allowance was not included in the computation of an AWW. Why not? The WCAB determined that per diem was not a “bargained for economic advantage.” Instead, the $540/month per diem was to offset expenses incurred while applicant worked as a truck driver.
Now let’s compare that to a hypothetical from Mad Men. Let’s say Don Draper’s employer gives him $200/day for his infamous liquid lunches to among other things, help make sure that he is properly buttering up his marketing firm’s clientele. $200 is obviously far more than the average person – in the 1960s and 1970s, or even by today’s standards – would spend on lunch. And as most per diems operate, if Mr. Draper only spent $150 on Tuesday’s lunch, then he could pocket the remaining $50.
That would be more akin to a bargained-for benefit that would qualify as remuneration.
Turning back to the Burke decision, the WCAB determined that applicant Lisa Burke’s reimbursed expenses for lodging, gas, and food were not remuneration because “the applicant only incurred these expenses while on tour and her employer’s reimbursement of the expenses did not provide any bargained for economic advantage to the applicant.” Those expenses weren’t putting any additional money or benefit in Ms. Burke’s pockets, they were just making her whole for what she had spent on travel costs. Thus, they were not part of the AWW, because they weren’t remuneration.
Some would say that this argument leaves open the door to an argument that:
- The part of the per diem that actually reimburses expenses is not subject to the AWW
- The “extra” part of the per diem that applicant pockets is included in the AWW calculations
However, it could be a little tricky to prove exactly how much applicant spent on expenses with their per diem, especially when they didn’t anticipate to have to keep track of how they spent their per diem.
When evaluating whether to include a per diem in an AWW calculation, ask yourself, “Was this an overly beneficial per diem? Was it more than the average person would spend?”
If “yes,” then it should be included in the AWW. If “no,” or if it’s just a strict reimbursement of costs, then it should not be factored into the AWW calculations.
Mr. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location, where he monitors the recent legislative affairs as the firm’s Director of the Editorial Board. Mr. Kamin previously worked as a journalist for WorkCompCentral, where he reported on work-related injuries in all 50 states.