Javier Hidalgo claimed injury to various body parts while employed by defendant Ducoing Management Inc., as a laborer on January 26, 2023. On October 11, 2023, the matter proceeded to trial on several issues including earnings. The employee claimed $1,658.46 per week. The employer/carrier claimed $620.00 per week.
Hidalgo testified that he was hired to work full time, was to be provided lodging. He lived at a hotel during his employment, and would be at different locations. One week he would be in San Francisco and the following week in Sacramento. He agreed that the employer provided the lodging.
According to the Applicant, he was hired 3 months prior to his injury. On the first day of work he went to Modesto. He was taken there by a person and then on the same day at the end of the workday he was taken to Oakland. He was then provided lodging in Oakland. He was in Oakland for about a week. He was provided lodging the entire time he was in Oakland and given money for food. After being in Oakland, he went to Salinas and then Sacramento where the employer also provided food and lodging.
He estimated that he worked about 75 out of 90 days for the employer. He stated he was still provided a hotel by the employer for the 15 days he did not work. He worked in Bakersfield for about week. That is the last location he recalled working at.
Applicant was provided with lodging for the entire three month period and never went back home or to Orange County. During the three months he worked there if he had any mailed he used the foreman’s P.O. box in Oakland. He stated he was injured in Bakersfield which resulted in hospitalization for about a week at a trauma hospital then he was sent to a rehabilitation hospital. Thereafter, he went to stay with his sister.
About 15 years ago he worked with the same employer doing the same work and that lodging was not provided during that employment.
According to an employer’s witness, the Applicant stayed at hotels or lodges that the employer paid for. The employer did not give Applicant any money directly for lodging. Lodging was considered a business expense. The employer made the arrangements for lodging and covered for lodging outside of Anaheim. The employer would not cover for any lodging near Anaheim. Applicant was given a per diem check for food. The company only gave money for food to employees working off-site outside of Anaheim. The per diem for food was provided when traveling.
After a trial the WCJ found, in pertinent part, that applicant’s lodging and food allowance are considered part of his wages; that applicant’s weekly earnings are $1,439.10 a week.
The Defendant filed a Petition for Reconsideration, which contended in part that the WCJ erred in considering applicant’s lodging and food allowance as part of his wages. Reconsideration was granted in the panel decision of Hidalgo v Ducoing Management Inc -ADJ17503090 (March 2024).
Labor Code section 4453(c)(1), provides that “[w]here the employment is for 30 or more hours a week and for five or more working days a week, the average weekly earnings shall be the number of working days a week times the daily earnings at the time of the injury.” With respect to whether specific items, such as food and lodging, are included in the computation of average weekly earnings, the WCAB panel looked to section 4454 which states “average weekly earnings shall not include any sum which the employer pays to or for the injured employee to cover any special expenses entailed on the employee by the nature of his employment, .”
Remuneration is defined by Black’s Law Dictionary as “Payment; reimbursement. Reward; recompense; salary; compensation.” (Black’s Law Dict. (6th ed. 1990) p. 1296, col. 1.)
The analysis of whether lodging and meals are “remuneration” as opposed to “special expenses” is outlined in Burke v. Workers’ Comp. Appeals Bd. (2009) 74 Cal.Comp.Cases 359, as follows: In the context of employment, remuneration is payment or reward for services rendered. The plain meaning of “remuneration” does not include reimbursement for costs or expenses. When an employee’s expenses “entailed by the nature of [her] employment” are paid by an employer, an exchange of services for payment does not take place and the applicant does not obtain an advantage from the transaction. Determining whether fuel, lodging, and meals are “remuneration” or “special expenses” requires an analysis of several factors including whether they were provided in exchange for services, whether they are an advantage to the applicant, and whether they are provided to the applicant only while the applicant is performing employment duties.
With respect to meals, Burke provides the following: “Meals are remuneration if the employee is provided with meals in exchange for services and the meals are an economic advantage to applicant. For example, in Watson v. Workers’ Comp. Appeals Bd. (Ramirez) (1980) 45 Cal.Comp.Cases 50 (writ den.), the value of meals were included in the calculation of applicant’s earnings as a waitress. The applicant was relieved of the necessity of providing herself with the meals … and, therefore, her employer’s provision of the meals was an economic advantage to the applicant.”
Because all of Hildago’s “jobsites in 2022 and 2023 were away from home, it logically follows that applicant received a per diem for all of the days worked in 2022 and 2023. However, there was no evidence presented that the per diem for meals was part of his remuneration or understood to be an economic advantage to applicant above and beyond his wages.”
Turning to whether the cost of applicant’s lodging is remuneration for purposes of calculating his average weekly earnings, the WCAB noted that “the evidence is less clear cut.”
“Upon return, the WCJ should consider whether lodging was an expense necessitated by the nature of applicant’s employment, and whether payment for lodging provided any bargained for economic advantage to applicant.”