2004-503, APPEAL OF PERRY MACDONALD

supervised teams of varying size, usually between two and six individuals. antennas on sites ranging from unimproved woodland to church steeples. He Englan d. As site supervisor, he was responsible for planning and erecting for NCS, a company that erected telecommunications antennas throughout New The record supports the following facts. MacDonald was a site supervisor

NCS, is the second respondent. We affirm. Insurance, Inc. (Liber ty Mutual), workers’ compensation insurance carrier for average weekly wages under RSA 281 - A:15, I (Supp. 2004). Liberty Mutual Communication Services, Inc. (NCS), are not included in calculating his payments he received during his employment with respondent, Nelson of the New Hampshire Compensation Appeals Board (board) that per diem BRODERICK, C.J. The petitioner, Perry MacDonald, appeals a decision

brief and orally), for the respondents. Law Offices of John B. Schulte, of Manchester (John B. Schulte on the

(Gregory R. Couture on the brief and oral ly), for the petitioner. Coolidge, Mathieu, Barrington & Couture, PLLC, of Somersworth

(New Hampshire Compensation Appeals Board) APPEAL OF PERRY MACD ONALD

No. 2004 - 503 Compensation Ap peals Board

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

evidence, to be clearly unreasonable or unjust. Appeal of Carn ahan, 149 N.H. law, or its findings or conclusions are shown, by a clear preponderance of the We will uphold the board’s decision unless there has been an error of

denied MacDonald’s motion to reconsider, and this appeal followed. should be calculated without including any per diem payments. The board XV. As a result, the board concluded that MacDonald’s average weekly wage employment - related “special expenses” under the second part of RSA p. 2 281 - A:2, found that the per diem payments were reimbursements made to cover Liberty Mutual appealed to the board. After a de novo hearing, the board

not constitute “special expenses.” negotiated contract of hire,” they fell under the first part of section XV, and did value of food and lodging paid to the claimant as contemplated in the the per diem payments represented “a quantified amount of the reasonable RSA p. 2 281 - A:2, XV (Supp. 2004). The hearing officer determined that because

by the employee becau se of the nature of the employment. employer to the employee to cover any special expenses incurred the employer; but “wages” shall not include any sum paid by the gratuities received in the course of employment from others than fuel or a similar advantage received from the employer and rendered, the reasonable value of board, rent, housing, lodging, “Wages” means, in addition to money payments for services

“wages” for the purposes of workers’ compensation benefits: payments. He based his decision on the language of the statute that defines concluded that the average weekly wage should include the per diem upon which MacDonald’s award was to be calculated. A hearing officer with the department of labor. A dispute arose as to the average weekly wage of employment, for which he subsequently filed a workers’ compensation claim On April 15, p. 2 2002, MacDonald suffered a lower back injury in the course

treat per diem payments as income reportable to federal tax authorities. their per diem payment a s possible. Neither MacDonald nor NCS appeared to shared rooms and meals so as to minimize expenditures and retain as much of records or receipts for actual expenditures. Consequently, employees often site, or did spend the night at home. NCS did not require employees to produce could spend the night at home because it was within sixty - five miles of the job each night spent in the field. No per diem was paid when an employee either lower hourly wage plus per diem. The per diem payment was seventy dollars for higher “straight salary” with no per diem. Like most employe es, he selected the sixty - five mile radius from either the home office in Albany or his home, or a either an “hourly wage and a per diem payment” for jobs performed outside a When NCS hired him, it presented two remuneration options. He could select p. 3 3

A:2, XV. Id. at 4 p. 3 36. his employment. Such expenses are not included as “wages” under RSA 281 - “advantage,” but rath er “special expenses” incurred because of the nature of “wages.” We disagreed, holding that such expenses were not an economic constituted an economic “advantage” to him, and should be counted as Carnahan also argued that his expenses for food, lodging, and the like

of the employment. Carnahan, 149 N.H. at 4 p. 3 34 - 35. employer paid $102,184 for business expenses incurred because of the nature profit of $27,545, but whose gross earnings were only $27,545 because his t imes those of another employee who received a salary equal to Carnahan’s net Carnahan receiving an award based upon gross earnings of approximately five characterization on the grounds that it would lead to the absurd result of earnings would not have been reduced by his expenses. We rejected this average weekly wage upon which his award wa s calculated, because the gross as his gross earnings would have increased by nearly a factor of five the award. See RSA 281 - A:15, I(a), (b). Characterizing Carnahan’s gross income average weekl y wage for the purpose of calculating a workers’ compensation given number of weeks are divided by that number of weeks to furnish an Under the relevant sections of RSA 281 - A:15, I, “gross earnings” over a

expenses. income of $129,729 as his gross earnings, without any deduction for his workers’ compensation claim, Carnahan attempted to charact erize his gross food, lodging, laundry and fuel, as business deductions. For purposes of his his contracts, and claimed his expenses of $102,184, including such items as independent trucking contractor who derived $129,729 in gross income from included in the definition of “wages.” In Carnahan, the claimant was an We have previously addressed whether certain expenses should be

is calculated pursuant to RSA 281 - A:15, I. Cf. Carnahan, 149 N.H. at 4 p. 3 36. RSA 281 - A:2, XV are the basis upon which an employee’s average w eekly wage and we will assume for the purposes of this appeal, that “wages” as defined in diem payments in calculating the average weekly wage. MacDonald contends, diem payments were “special expenses”; and (2) excluded the value of the per interpreted our decision in Carnahan and thus erred in concluding that the per On appeal, MacDonald contends that the board erroneously: (1)

208 (200 p. 3 3). questions of fact. Appeal of Lakeview NeuroRehabilitation Ctr., 150 N.H. 205, substitute our judgment for the board’s as to the weight of the evidence on reviewing the decision, we are confined to the hearing record and will not p. 4 433, 435 (2003); see Appeal of Chickering, 141 N.H. 794, 796 (1997). In 4

the employee because of the nature of the employment.” RSA 281 - A:2, XV. paid by the employer to the employee to cover any special expenses incurred by the employer.” It explicitly excludes from the definition of “wages” “any sum value of board, rent, housing, lodging, fuel or a similar advantage received from present case: “mo ney payments for services rendered” and “the reasonable kinds of remuneration that can be considered wages in the context of the does not convert per diem payments into “wages.” The statute sets forth two The mere fact that NCS employees opted for this method of compensation

busi ness expenses. their income on tax filings, so they did not categorize those payments as employees did not attempt to deduct their per diem payments or expenses from therefore the per diem payments cannot be considered reimbursement; and (5) require employees to keep receipts or records of their expenditures, and considered reimbursement for business - related expenses; ( p. 4 4) NCS did not than the per diem amount, and therefore the per diem payments cannot be employees were given the same amount even if their expenses were greater keep the balance, so those payments amounted to supplementary income; (3) able to spend less than the amount of the per diem payments they received and payments should be considered part of the wage structure; (2) employees were employees opted for this method of compensation, and there fore the per diem RSA 281 - A:2, XV. In support of this contention, MacDonald argues that: (1) received from the employer” that is included in the definition of “wages” under lodging, and thus constituted the “reasonable value of . . . [an] advantage MacDonald next argues that his per diem payments paid for food and

as wages. accomplish by including per diem payments, made to cover “special expenses,” in fact, inflat ing his “gross earnings” is exactly what MacDonald is seeking to Id. MacDonald’s third argument to distinguish Carnahan falls short because, employee cannot include employer - reimbursed business expenses as ‘wages.’” occasioned solely by work. See id. As we stated in Carnahan, “a salaried nature of the employment”; these included food, lodging, and ot her expenses in question were used to cover “special expenses incurred . . . because of the should fall under the statutory definition of “wages.” In both cases, the monies the claimant or the source of the paymen ts, but whether a given payment not amount to fundamental differences, because the issue is not the status of MacDonald’s first two arguments point out factual distinctions that do

expenses as part of his income, whereas MacDonald did not. and (3) Carnahan attempted to inflate his gross earnings by includin g his them were distinguishable from the per diem payments MacDonald received; expenses were his own deductible business expenses, and payments to cover was not a self - employed contractor, but rather an employee; (2) Carnahan’s MacDonald attempts to distinguish Carnahan by arguing that: (1) he p. 5 5

Conseq uently, the board did not err in excluding the per diem payments from were reimbursements made to cover employment - related “special expenses.” diem payments received by MacDonald were not part of his “wages,” but rather We hold, therefore, that the board did not err in deciding that the per

justification for this. purpose of calculating his workers’ compensation award. We fail to see an y purposes by not reporting them as income, yet include them as wages for the at 43 p. 5 5. MacDonald similarly wishes to exclude his per diem payments for tax them in his income for workers’ compensation p urposes. Carnahan, 149 N.H. his expenses as deductions from his income for tax purposes, but to include seeking to capitalize on a contradiction. There the claimant sought to exclude purposes. Just as t he claimant attempted to do in Carnahan, MacDonald is Neither MacDonald nor NCS reported the per diem payments as income for tax a deduction from his income for tax purposes does not change our view. Finally, the fact that MacDonald did not report his per diem payments as

issue because MacDonald did not make such a d emonstration. assume that the board did in fact so decide, we need not further address that board decided the excess would be included as part of his wages. Even if we diem payments e xceeded his actual expenses through record keeping, the MacDonald argues that, had he been able to demonstrate that his per

accounting. payments are standardized in order to eliminate the need for any further field. Requiring no receipts is presumably reflective of NCS’ determination that designed to cover “a seven course meal” while an employee was working in the least fuel - efficient vehicle on the road, NCS’ per diem payments were not reimbursement is not necessarily calculated to cover the costs of driving the loss may be suffered if the employee is extrav agant. Just as a mileage - rate expense,” some surplus may be retained if the employee is frugal, and some definition of “wages.” As with any standardized sum paid to cover a “special receipts or subseq uent accounting, does not bring these payments under the how much employees actually spent on food and lodging, and required no The fact that NCS provided a standard per diem payment, regardless of

expenses” while on the road for work. paid,” and they are paid only when the employee is likely to incur “special the per diem payments at issue here. Those per diem payments are “sums package. The “special expenses” clause distinguishes such advantages from employee would otherwise have to purchase, as part of his compensation some “in kind” advantage, such as in - house board, lodging, or utilities that the The “reasonable value” clause refers to instances where the employer furnishes p. 6 6

NADEAU, DALIANIS, DUGGAN and GALWAY, JJ., concurred.

wage under RSA 281 - A:15, I. MacDonald’s gross earnings for the purpose of calculating his average weekly