MARK CRAIG, Employee/Appellant, v. AMERICOLD LOGISTICS and LIBERTY MUT. INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 7, 2002

 

HEADNOTES

 

WAGES - BENEFIT PAY.  Employer-paid insurance premiums are not included in the employee=s weekly wage calculation.

 

Affirmed.

 

Determined by Rykken, J., Wilson, J., and Johnson, C.J.

Compensation Judge:  Paul V. Rieke.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals the compensation judge=s conclusion that employer-paid medical insurance premiums should not be included in calculating the employee=s weekly wage.  We affirm.

 

BACKGROUND

 

On January 23, 2001, Mark Craig, the employee, sustained a work-related back injury while working for Americold Logistics, the employer, which was insured for workers= compensation liability by Liberty Mutual Insurance Company, the insurer.  The employee=s weekly wage was $320.00 per week; this amount does not include employer-paid contributions for medical insurance premiums. At the time of the employee=s injury, the employer was paying $90.37 per week, or $391.61 per month, for the employee=s medical insurance.  The employee was contributing $22.48 per week, or $97.40 per month, in post-tax pay for the medical insurance premiums.

 

 Following the employee=s injury, he was unable to return to work for the employer.  The employer and insurer paid temporary total disability benefits, and at the time of hearing continued to pay temporary total disability benefits.  The employee maintained his medical insurance until April 30, 2001.  After that date, the employee declined to continue participation in the employer=s health plan under COBRA, which would have cost him $498.80 per month.

 

The employee claimed a weekly wage of $410.37 based upon the inclusion of the employer-paid medical insurance premiums.  The employer and insurer objected, and are paying temporary total disability benefits of $213.33 per week based upon a weekly wage of $320.00 per week. This issue was submitted to the compensation judge on stipulated facts.  The compensation judge concluded that the medical insurance premium payment paid by the employer should not be included in calculating the employee=s weekly wage.^[1]  The employee appeals. 

 

STANDARD OF REVIEW

 

While this court may not disturb a compensation judge=s findings of fact unless clearly erroneous and unsupported by substantial evidence in the record as a whole, a decision which rests upon the application of a statute or rule to essentially undisputed facts involves a question of law which this court may consider de novo.  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

 

DECISION

 

The facts in this case are not disputed.  The employee=s weekly wage, not including employer-paid contributions for medical insurance premiums, was $320.00 per week.  At the time of the employee=s injury, the employer was paying $90.37 per week, or $391.61 per month, for the employee=s medical insurance.  The employee was contributing $22.48 per week, or $97.40 per month, in post-tax pay for the medical insurance premiums. 

 

The employee argues that the employer-paid premium payments are Aallowances@ which should be included in the employee=s Adaily wage,@ citing Minn. Stat. ' 176.011, subd. 3, which defines daily wage to include Aboard or allowances other than tips and gratuities . . . made to an employee in addition to wages as a part of the wage contract@ which are Adeemed a part of earnings and computed at their value to the employee.@  This argument was specifically rejected by this court in Powell v. Northern Cass DAC, slip op. (W.C.C.A. Aug. 20, 1996).  Benefits that are not paid directly to the employee, that the employee cannot use at his or her discretion, and that are not taxed as wages, are not included in the calculation of weekly wage.  Id.; see also Carothers v. Pride Mechanical, slip op. (W.C.C.A. Nov. 4, 1994) (citing Boschee v. Barry Blower, slip op. (W.C.C.A. Aug. 25, 1989)).  The employee argues that he had discretion over the employee-paid portion of the insurance premiums, since he could decide not to have insurance and receive that portion of the premium as income.  The employee-paid portion of the premium, however, is already included in the employee=s weekly wage since it is paid with post-tax income.  The employee had no discretion over the employer-paid portion of the medical insurance premiums since he could not decide to forego the medical insurance and instead receive that amount of money as additional income. 

 

The employee also argues that medical insurance is an important benefit to employees which is often negotiated by employees as part of a wage contract; employers are required to provide continuation coverage under certain circumstances; and a financial burden is placed on an employee required to replace insurance no longer being provided by paying the premiums out of earnings and/or wage-loss benefits.  Similar policy arguments were rejected in Powell, and are more appropriately addressed to the legislature than this court.  We affirm the compensation judge=s conclusion that employer-paid medical insurance premiums should not be included in calculating the employee=s weekly wage.