Oregon: AWW Must Include “Subsistence Allowance” and Travel Pay for California Brick Mason

An Oregon appellate court recently affirmed a decision by the state’s Workers’ Compensation Board that concluded claimant’s subsistence and travel pay were “wages” for purposes of determining claimant’s TTD benefits under ORS 656.210(1) [SAIF Corp. v. Sparks, 2013 Ore. App. LEXIS 1004 (Aug. 21, 2013)].  

Claimant, a master mason from California, worked on two projects in Oregon. For the first project, he was paid a daily “subsistence pay” of $76, which was in addition to his regular hourly wages and, for the second project, he was paid a monthly “subsistence pay”/“travel allowance” of $600, in addition to his regularly hourly wages. The workers’ compensation carrier did not include either the subsistence pay or the one-time travel pay in calculating claimant’s average weekly wage.

Claimant contested SAIF’s calculation of his AWW, contending that he had been provided with the additional pay because he was a traveling employee. The carrier countered that the additional payment was not additional wages, but rather merely reimbursement for expenses incurred on the job and that according to an applicable rule, it should not be used to compute the AWW. Claimant disagreed, arguing that he was never required to submit receipts or other documentation for an equivalent reimbursement of the expended amount and that he was not obligated to use the pay in any particular manner. In the end, the ALJ sided with claimant and determined that the amounts should have been included in the computation process. The Board affirmed.

On further appeal, the appellate court agreed with the Board. According to the court, as the board had reasoned, the plain meaning of “reimburse” supported the conclusion that claimant’s subsistence and travel pay were not provided as reimbursements. Claimant was not paid back an equivalent amount of the expenses that he incurred. Rather, for each project, claimant received a set amount of subsistence and travel pay “regardless of any expenditures made during any particular pay period.” The ALJ’s analysis was correct.

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