Appeals Panel Rules that AWW Includes Value of Benefits Employer did not Provide on Date of Injury
The appeals panel has reversed the decision and order of an administrative law judge that failed to include the market value of an employee’s rent and utilities in the AWW even though the non-pecuniary benefits were no longer being furnished by the employer on the date of injury. The decision, Texas Division of Workers’ Compensation Appeals Panel Decision No. 201505, decided December 11, 2020, was remanded the AWW to the ALJ for further decisions consistent with the appeals panel’s opinion.
The claimant leased an apartment beginning on August 1, 2018. The employer acquired the apartment building where claimant was living in January of 2019. The claimant was hired in May 2019. At that time, the employer allowed the claimant to continue living rent-free in the apartment. The employer also took over all the claimant’s utility payments. However, at the end of July of 2019, the employer informed the claimant that his family members could not continue to live in the apartment with him because it was strictly for employees. Therefore, the claimant elected to move due out of the apartment.
The claimant worked for the employer throughout the 13-week period prior to the date of injury. The ALJ calculated the claimant’s AWW by dividing the wages from the 13 weeks preceding the compensable injury by 13 as provided for in Section 408.041(a). The ALJ also added the cost of discontinued health care premiums in the amount of $48.21 per week for the period of December 2, 2019, through the date of the CCH, as stipulated by the parties.
The claimant argued that in addition to the health insurance premiums, the nonpecuniary wages of his housing and utilities should be included in the calculation of the AWW. The ALJ rejected the argument, reasoning that since the employer had ceased paying the claimant’s rent and utilities before the date of injury and the claimant had chosen to move out, the AWW did not include the value of rent and utilities. The appeals panel disagreed.
The evidence indicates that the claimant lived rent-free during at least a portion of the 13-week period that was used to calculate his AWW and provided evidence that the value of the apartment was $825.00 per month. The Appeals Panel has previously held that the market value of an apartment may be included in calculating the AWW. See Appeals Panel Decision (APD) 042364-s, decided November 17, 2004, and APD 130022, decided March 18, 2013.
In addition to receiving the value of the apartment, the employer paid the claimant’s utilities in full during a portion of the 13-week period used to calculate the claimant’s AWW. As stated above, Section 401.011(43) provides that “wages” includes all forms of remuneration payable for a given period to an employee for personal services, and that the term includes the market value of board, lodging, laundry, fuel, and any other advantage that can be estimated in money that the employee receives from the employer as part of the employee’s remuneration. We hold that the ALJ erred in failing to consider the value of the apartment and utilities that the claimant received during a portion of the 13-week period in calculating the claimant’s AWW. Therefore, the ALJ’s determinations that the AWW from September 16 through December 1, 2019, is $1,168.17 and the AWW from December 2, 2019, through the date of the CCH is $1,216.38 are reversed.
Because the ALJ did not make a finding regarding the value and amount of nonpecuniary wages that the claimant received during the 13-week period immediately preceding the date of injury and that amount was in dispute, the appeals panel remanded the AWW issue to the ALJ to determine the claimant’s AWW in accordance with the decision.
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