BRB No. 01-0778
JAMES C. BAKER )
)
Claimant-Petitioner )
)
v. )
)
TRUCK & TRAILER EQUIPMENT ) DATE ISSUED: 06/20/2002
COMPANY )
)
and )
)
LOUISIANA WORKERS' )
COMPENSATION CORPORATION )
)
Employer/Carrier- )
Respondents ) DECISION and ORDER
Appeal of the Decision and Order of Clement J. Kennington, United States
Department of Labor.
Mesonie J. Halley, Jr. (Pitre, Halley & Associates), Lake Charles,
Louisiana, for claimant.
Ted Williams (Johnson, Stiltner & Rahman), Baton Rouge, Louisiana, for
employer/carrier.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and
McGRANERY, Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order (00-LHC-3311) of Administrative Law
Judge Clement J. Kennington rendered on a claim filed pursuant to the provisions
of the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C.
§901 et seq. (the Act). We must affirm the findings of fact and
conclusions of law of the administrative law judge which are rational, supported
by substantial evidence, and in accordance with law. O'Keeffe v. Smith, Hinchman
& Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).
Claimant injured his back in a work-related accident on September 30, 1996.
Thereafter, claimant underwent surgery and continued to be temporarily totally
disabled. The sole issue presented at the hearing is whether employer's
contribution to claimant's Individual Savings Plan (ISP) account with the Southern
States Savings and Retirement Plan, made pursuant to a collective bargaining
agreement between employer and Teamsters Local 969, should be included in the
calculation of claimant's average weekly wage.
The administrative law judge found that employer's contributions to claimant's
ISP constitute a "fringe benefit" under Section 2(13) of the Act, 33 U.S.C.
§902(13). Therefore, the administrative law judge found that employer's
contributions do not constitute "wages" under the statutory definition, and are
excluded from the calculation of claimant's average weekly wage. Decision and
Order at 4. On appeal, claimant challenges the administrative law judge's finding
that employer's contribution to his ISP is a "fringe benefit" which must be
excluded from the calculation of his average weekly wage. Employer responds,
urging affirmance.
Section 2(13) of the Act 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 reasonable value of any advantage
which is received from the employer and included for purposes of any
withholding of 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 the employee's or dependent's benefit, or any other
employee's dependent entitlement.
33 U.S.C. §902(13) (emphasis added). In a pre-1984 Amendment case
addressing the inclusion of employer contributions to union trust funds for health
and welfare, pension and training, the Supreme Court formulated a standard that
"wages" include benefits with a present value that can readily be converted into
a cash equivalent on the basis of their market value.[1] Morrison-Knudsen Constr. Co. v. Director, OWCP, 461 U.S. 624,
15 BRBS 155(CRT) (1983). In Morrison-Knudsen, the payments at issue were
employer's 35 cents per man-hour contributions to the trust funds. The Court held
that such payments were a fringe benefit excluded from wages, because the benefits
could not be obtained on the open market through private insurance, and receiving
the benefits required the earning of pension credits related to hours worked and
vesting.
Claimant argues that the administrative law judge erred in finding that
employer's contributions to his ISP are appropriately excluded from his average
weekly wage calculation. Claimant contends that the administrative law judge erred
in determining that the ISP benefits are not easily convertible into cash or
readily calculable; claimant also avers that there is no vesting period.
In the instant case, employer made contributions to claimant's ISP in
accordance with the schedule set forth in the collective bargaining agreement. The
agreement provides for a flat rate weekly contribution to the Individual Savings
Plan for all full-time employees who work at least one day per week.[2] CX 1 at 7. The plan documents state that there
is immediate vesting in all employer and employee contributions. CX 3. The
collective bargaining agreement has a separate provision for payments made to a
pension plan by employer. CX 1.
We affirm the administrative law judge's finding that the Act expressly
excludes employer's contributions to claimant's ISP from the calculation of his
"wages" in order to determine his average weekly wage and corresponding
compensation rate. Where the language of a statute has a plain and unambiguous
meaning with regard to the particular dispute in a case, no further inquiry is
necessary. Robinson v. Shell Oil Co., 519 U.S. 337 (1997). Here, Congress
has directly spoken to the precise question at issue, in that the plain language
of the Act excludes employer's contributions to a retirement plan from the
definition of "wages." Although Article 12 of the collective bargaining agreement
is captioned "Individual Savings Plan," CX 1, the requisite supporting legal
documents state the plan's name is the "Southern States Savings and
Retirement Plan." CX 2, 3 (emphasis added). The administrative law
judge, therefore, properly found that the express language of the Act, stating that
"wages" do not include employer's payments for or contributions to a "retirement"
plan, bars inclusion of employer's contributions to the plan at issue here, from
the calculation of claimant's average weekly wage.
Moreover, even though this retirement plan does not have the characteristics
of the fringe benefits at issue in Morrison-Knudsen, in that the employer's
contribution appears to be readily calculable,[3]
there is immediate vesting, and similar plans are readily available on the open
market, e.g., Individual Retirement Accounts, these characteristics cannot
override the plain language of the Act regarding the exclusion of payments by
employer to a retirement plan.[4] Consequently,
we affirm the administrative law judge's denial of an increased average weekly wage
as it rational, supported by substantial evidence, and in accordance with law.
Accordingly, the administrative law judge's Decision and Order is affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
To Top of Document
Footnotes.
1)The pre-1984 Amendment version of Section 2(13) defined "wages"
as:
the money rate at which the service rendered is recompensed under the
contract of hiring in force at the time of injury, including the
reasonable value of board, rent, housing, and gratuities, received in
the course of employment from other than the employer.
33 U.S.C. §902(13) (1982) (amended 1984).
Back to Text
2)Claimant contends that for the one year period preceding his
September 30,1996 work accident, employer paid $65 per week into his ISP, totaling
$3,380. See CX 1 at 7; CX 4. Thus, claimant argues that he is entitled to
a recalculation of benefits, whereby an additional 2/3 of $3,380 or $2,252.66 per
year, $43.31 per week, should be added to his total disability benefits.
Back to Text
3)See n. 2 supra; CX 1. Any error in the
administrative law judge's finding to the contrary is harmless, however, due to the
express exclusion from wages of the payments at issue.
Back to Text
4)In Cretan v. Bethlehem Steel Corp., 24 BRBS 35
(1990), rev'd on other grounds, 27 BRBS 93(CRT) (9th Cir. 1993), cert.
denied, 512 U.S. 1219 (1994), the Board addressed the issue of whether payments into a tax-sheltered annuity were excluded from "wages" under Section 2(13). The employee
elected to put $6,000 of his base salary into the annuity; employer made no other
contributions to the annuity. The Board affirmed the administrative law judge's
finding that this $6,000 should be included in average weekly wage, as such an
annuity could be purchased on the open market like an IRA, it was earned when paid,
and it immediately vested. The plan in the instant case has such features also,
but the distinguishing factor here is that the payments were not sheltered salary
payments, but additional employer payments into a retirement plan.
Back to Text
NOTE: This is an UNPUBLISHED LHCA Document.
To Top of Document