RANDY L. RUNGE, Employee/Appellant, v. POINTE PEST CONTROL MINN., LLC, and PACIFIC EMPLOYERS INS. CO./ESIS, Employer-Insurer, and JW HUTTON (FISERV HEALTH), Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
MAY 7, 2009
WAGES - BOARD & ALLOWANCES. The compensation judge properly denied the employee’s request to include the value of an employer-provided vehicle in calculating his weekly wage, where the employee was allowed to use the vehicle solely for business purposes.
Determined by: Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: James F. Cannon
Attorneys: David B. Kempston, Law Office of Thomas D. Mottaz, Coon Rapids, MN, for the Appellant. James S. Pikala, Christine L. Tuft, and Noelle L. Schubert, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge’s decision regarding weekly wage, arguing that the judge erred in excluding the value of the employee’s use of a company truck. We affirm.
The employee began working for Pointe Pest Control [the employer] in June of 2007. As a technician, the employee serviced customers’ homes for pest and rodent control purposes. He generally worked Monday through Friday, visiting 10 to 16 customers per day. About three days per week, he drove first to the employer’s office in Edina, about 38 miles from his home in St. Michael, to pick up or turn in invoices and to obtain chemicals. On the days on which he did not visit the employer’s office, the employee drove directly from home to his first customer.
When he began working for the employer, the employee was provided with a company truck. According to the driving agreement governing the employee’s use of that truck, the employee could bring the truck home each evening but could use it “ONLY for work purposes,” not for “short errands or any other personal needs.” The agreement also obligated the employee to keep the vehicle clean, to secure the chemicals and tools, and to refer the vehicle for necessary maintenance. The employer gave the employee a debit card to use for gasoline; servicing and repairs were also performed without cost to the employee pursuant to an agreement between the employer and a repair business in Bloomington. Violation of the driving agreement was grounds for termination.
The employee testified that he would not have accepted a position with the employer had he not been allowed to use the company truck for commuting purposes, because he was close to reaching the mileage limit applicable to his leased personal vehicle. Lucas Spencer, the owner of the employer, testified that technicians were provided with trucks in part to meet regulations regarding the transport of chemicals used in the pest control business. As to why he allowed technicians to take the trucks home at night, Mr. Spencer explained that “[i]t just made more sense” to allow technicians to drive directly to customers’ residences from their homes in the morning rather than requiring the technicians to come to Edina at the start and end of their shifts every day. Sometimes, depending on the location of the job, allowing workers to drive the company truck from home to a job site saved the employer mileage expenses. The value of a commuting fringe benefit was not included on the W-2 form prepared by the employer, and the employee did not claim such a benefit when filing his income taxes.
The employee sustained a work-related injury on October 24, 2007. About a week after the injury, he began a light-duty assignment in the employer’s Edina office. At about that same time, the employer stopped allowing the employee to use the company truck, and the employee consequently drove his own car to the office, five days per week, until his doctor took him off work in early December of 2007.
The matter came on for hearing before a compensation judge on August 28, 2008, for resolution of the employee’s claim for underpayment of wage loss benefits. At issue was the employee’s weekly wage. The parties stipulated that the employee’s “base” weekly wage was $591.22, a combination of guaranteed salary and commissions. The question for the compensation judge was whether to include the value to the employee of the employee’s use of the company truck. The employee argued that this value was appropriately calculated by applying the IRS mileage reimbursement rate to the round-trip commute between the employee’s home and the employer’s Edina office, resulting in a $179.88 per week commuting benefit. The employer and insurer argued, in contrast, that, based on case law precedent, the value of the employee’s use of the truck was simply not includable. In a decision issued on November 20, 2008, a compensation judge concluded that the value of the employee’s use of the truck was not includable when calculating the employee’s weekly wage. The employee appeals.
STANDARD OF REVIEW
“[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers’ Compensation Court of Appeals] may consider de novo.” Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).
Pursuant to Minn. Stat. § 176.011, subd. 3, “[w]here board or allowances other than tips and gratuities are made to an employee in addition to wages as part of the wage contract they are deemed a part of earnings and computed at their value to the employee.” The sole issue in the present case is whether the employee’s weekly wage should include a figure representing the value to the employee of his use of the employer-provided truck for commuting purposes.
As previously indicated, the employee testified that he would not have taken the job with the employer had the truck not been part of the deal, because he was close to the mileage limit on his leased personal vehicle. The evidence - - and logic - - also establishes that the employee saved money on fuel and wear and tear on his own vehicle by having the company truck to use each morning, and that, had he not had that truck, he would have had to drive his own vehicle, or use some other mode of transportation, to get to and from the employer’s office each day. The compensation judge recognized that the employee’s ability to use the company truck was of “some value” to the employee, for these reasons. However, the judge nevertheless concluded that the “value” in question was not includable in the wage calculation because it did not constitute an includable allowance under applicable case law. We agree.
At hearing, the employee relied primarily on three cases to support his argument for inclusion of a commuting fringe benefit in this case: Aleckson v. Kennedy Motor Sales Co., 238 Minn. 110, 55 N.W.2d 696, 17 W.C.D. 222 (1952), Harris v. Jimmy Jingle, slip op. (W.C.C.A. Nov. 1, 2006), and Anderson v. Petrocelli’s Restaurant, slip op. (W.C.C.A. Jan. 12, 1988). However, the compensation judge properly distinguished each case in analyzing the employee’s claim.
As the judge noted, the employee in Aleckson was allowed personal use of the car in question; in fact he was compensated for his work - - car delivery - - primarily if not exclusively through his personal use of a car. And, the issue in Aleckson was not so much whether to include the value of the employee’s use of the car for purposes of determining his wage but rather whether the arrangement qualified as a contract of hire for purposes of establishing an employment relationship. In Harris, a commuting fringe benefit was included on the employee’s W-2, and the issue at the hearing level was not whether the value of the employee’s use of the company car was includable but rather only the value of that use. Finally, in Anderson, the employee was allowed unlimited use of the company-provided vehicle, and this court found it noteworthy that the employee claimed the “company-subsidized personal use portion of the car on her federal tax returns.” Anderson, slip op. at 2. Furthermore, in that case, we affirmed the judge’s inclusion of an amount representing the value of the employee’s personal use of the company car. In contrast to the cited cases, the employee in the present case was expressly forbidden from using the employer-provided truck for any personal reasons whatsoever, and neither he nor the employer accounted for his use of the truck for income tax purposes.
According to Larson’s treatise, “[a] car allowance is includable as wage only if it exceeds actual truck, or travel expenses.” 5 Arthur Larson & Lex K. Larson, Workers’ Compensation Law § 93.01 [a](2008). By the same reasoning, the use of a company-provided vehicle is includable only to the extent that it has value to the employee beyond the employee’s use of the vehicle for business purposes. See Thom v. Sauk Centre Hot Mix, slip op. (W.C.C.A. July 30, 1993) (while the employee’s use of a company vehicle may have saved the employee money it would have cost him to use his own vehicle for business purposes, the “savings” were not includable in the employee’s weekly wage); see also Morgan v. Homes by Windbreak, Inc., slip op. (W.C.C.A. Aug. 28, 1986) (where the employer provided the employee with a vehicle for both business and personal use, value of vehicle for personal use was includable in the employee’s weekly wage). Not everything that may have some value to an employee qualifies as a wage or an includable “allowance” pursuant to Minn. Stat. § 176.011, subd. 3. See Stewart v. Ford Motor Co., 474 N.W.2d 162, 45 W.C.D. 175 (Minn. 1991) (profit-sharing payment not includable in the employee’s weekly wage); Powell v. Northern Cass DAC, slip op. (W.C.C.A. Aug. 20, 1996) (employer-paid insurance premiums do not constitute allowances for weekly wage purposes); Lukat v. North Star Home Care, slip op. (W.C.C.A. Apr. 25, 2001) (mileage reimbursements were not includable in the employee’s weekly wage where the reimbursements were based on actual miles traveled). Generally, where “expenses are incurred solely by reason of the demands of the employment, and are paid only to the extent actually incurred, leaving no actual or potential discretionary compensation to the employee, their payment is not income which is lost to an employee after a work-related disability.” Lukat, id. at 7; see also Johnson v. American Red Cross, slip op. (W.C.C.A. June 3, 1993).
Under the circumstances of this case, especially because the employee was not allowed to use the company truck for anything other than work, the compensation judge correctly concluded that the employee’s use of the truck did not constitute an “allowance” or wage within the meaning of Minn. Stat. § 176.011, subd. 3. We therefore affirm the judge’s decision in its entirety.
 At the hearing before the compensation judge, the employee computed his claimed “commuting benefit” by multiplying the round-trip mileage between the employee’s home and the employer’s Edina office (76 miles) by the 2007 IRS mileage reimbursement rate ($0.485 cents per mile) and then multiplying the resulting figure ($36.86 per day) by the number of days he worked for the employer per week (4.88 days), for a total of $179.88 per week.
 Assuming that company trucks were kept at the employer’s office, the employee presumably would have had to pick up the truck at the office and then return it there at the end of the day. Mr. Spencer testified that some other pest control franchises are operated this way.
 The employee argues that the employer should have included the commuting value of the truck on the employee’s W-2 form, but he offered no evidence or legal authority to support the conclusion that such inclusion was either allowed or required under tax regulations.
 But see Larson v. Cleansoils, 541 N.W.2d 591, 54 W.C.D. 25 (Minn. 1996). In Larson, the Minnesota Supreme Court reversed a decision by the Workers’ Compensation Court of Appeals denying inclusion of expenses paid by the employer directly to a motel for the employee’s lodging during an out-of-town assignment. We decline to extend the Larson holding beyond board and lodging cases. We would also observe that the application of the Larson holding to “commuting benefit” cases would have the effect of establishing different weekly wages for workers who are otherwise identically classified and paid.