Custom Ship Interiors v. Roberts

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CUSTOM SHIP INTERIORS; FREMONT 

COMPENSATION INSURANCE GROUP,

Petitioners,

v.

MICHAEL ROBERTS; BENEFITS REVIEW  No. 01-1880

BOARD; DIRECTOR, OFFICE OF

WORKERS’ COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF

LABOR,

Respondents.



On Petition for Review of an Order

of the Benefits Review Board.

(BRB No. 00-832)

Argued: June 3, 2002

Decided: August 15, 2002

Before WILKINSON, Chief Judge, and NIEMEYER and

WILLIAMS, Circuit Judges.

Affirmed by published opinion. Chief Judge Wilkinson wrote the

majority opinion, in which Judge Williams joined. Judge Niemeyer

wrote a dissenting opinion.

COUNSEL

ARGUED: Frank Joseph Sioli, Jr., VALLE & CRAIG, P.A., Miami,

Florida, for Petitioners. Ralph R. Lorberbaum, ZIPPERER & LOR-

2 CUSTOM SHIP INTERIORS v. ROBERTS

BERBAUM, P.C., Savannah, Georgia, for Respondent Roberts. Mark

S. Flynn, Senior Appellate Attorney, UNITED STATES DEPART-

MENT OF LABOR, Washington, D.C., for Respondents Board and

Director. ON BRIEF: Lawrance B. Craig, III, VALLE & CRAIG,

P.A., Miami, Florida, for Petitioners. Howard M. Radzely, Acting

Associate Solicitor, Allen H. Feldman, Associate Solicitor for Special

Appellate and Supreme Court Litigation, Nathaniel I. Spiller, Deputy

Associate Solicitor, UNITED STATES DEPARTMENT OF LABOR,

Washington, D.C., for Respondents Board and Director.

OPINION

WILKINSON, Chief Judge:

Petitioner Custom Ship Interiors appeals the decision of the Bene-

fits Review Board ("BRB") that regular per diem payments made to

employees incurring no room and board expenses should be included

as wages under the Longshore and Harbor Workers’ Compensation

Act ("LHWCA" or "Act"), 33 U.S.C. §§ 901 et seq. (2002). Custom

Ship contends that the payments were "advantages" not subject to tax

withholding, and thus not properly viewed as "wages" under the Act.

Because the per diem payments were disbursed to the employee each

week despite the fact that Custom Ship knew that he was incurring

no food or lodging expenses needing reimbursement, we affirm the

judgment of the BRB that the payments were includable as "wages"

under the Act.

I.

Michael Roberts injured his back while remodeling a Carnival

Cruise ship for his employer, Custom Ship Interiors. Roberts had

worked for Custom Ship for approximately nine years. His work was

seasonal, covering roughly two-thirds of the year. During his periods

of employment, he normally worked six days a week for a total of

about sixty hours.

In addition to his weekly salary and any overtime pay, Roberts’

employment contract entitled him to per diem payments of approxi-

CUSTOM SHIP INTERIORS v. ROBERTS 3

mately $77.50 per day. According to Custom Ship, the per diem was

non-taxable and was intended to cover employees’ meal and lodging

expenses while they were on jobs away from home. However, Cus-

tom Ship provided these cash payments without any restrictions,

meaning the recipients could spend them in any way they saw fit. For

approximately one year prior to his injury, Roberts was assigned to

Carnival and incurred no room and board expenses because Carnival

provided free room and board to its remodelers. Custom Ship knew

that Carnival provided these amenities. Still, Custom Ship continued

to provide the unrestricted cash payments to employees working on

Carnival ships despite knowing that none of the employees incurred

any expenses.

On August 21, 1998, while working aboard a Carnival Cruise ship

docked in Norfolk, Virginia, Roberts was struck by a steel bunk bed

falling from the wall. Immediately after the accident, Roberts was

sent to lie down in an adjacent cabin and his supervisors were noti-

fied. A day or two later, after experiencing intense back, neck, head,

and right leg pain, he went to see a physician on the ship. He

remained on the ship for some time, hoping his condition would

improve and attempting to do some light work. However, he was

unable to work and eventually left the ship for Florida in order to seek

medical attention. Since the injury, Roberts has experienced constant

back pain and has not performed any further work for Custom Ship.

On March 15, 1999, Roberts filed a claim for disability benefits

under the Longshore and Harbor Workers’ Compensation Act, 33

U.S.C. §§ 901 et seq., in Florida where he was living at the time. His

claim went before an Administrative Law Judge who determined that

Roberts was temporarily disabled as a result of a work-related injury,

a finding not disputed on appeal. Roberts was thus entitled to benefits,

the amount of which are based on a claimant’s average weekly wage

as defined and calculated under the Act. Roberts claimed that in addi-

tion to his normal weekly wage and overtime, the $77.50 per diem

should be included in his average weekly wage calculation. However,

the ALJ ruled that tax-exempt per diems for the purpose of defraying

expenses for meals and lodging do not fall within the definition of

wages set forth in the Act. The ALJ concluded that Roberts’ average

weekly wage was $377.13.

4 CUSTOM SHIP INTERIORS v. ROBERTS

The Benefits Review Board reversed. Because the injury occurred

in Virginia, the law of this circuit was controlling. See 33 U.S.C.

§ 921(c). And under Universal Maritime Service Corp. v. Wright, 155

F.3d 311 (4th Cir. 1998), the Board held Roberts’ per diem payments

should be included in the calculation of average weekly wages. The

BRB based its conclusion primarily on the fact that Roberts received

the per diem in his pay check every week, regardless of whether he

incurred any expenses. Moreover, the BRB concluded that the per

diem was part of Roberts’ employment contract. Thus, the BRB deter-

mined that Roberts’ average weekly wage was $690.11. Custom Ship

now appeals.

II.

The Longshore and Harbor Workers’ Compensation Act compen-

sates covered workers for the loss of wage-earning capacity due to

disabling job-related injuries. See Metropolitan Stevedore Co. v.

Rambo, 521 U.S. 121 (1997). At the heart of the Act’s compensation

scheme is the definition of "wages" contained in § 2(13). That section

specifies what items will be used to determine the claimant’s pre-

injury average weekly wage, which is then used to calculate benefits.

See Wright, 155 F.3d at 317. It defines "wages" as:

the money rate at which the service rendered by an

employee is compensated by an employer under the contract

of hiring in force at the time of the injury, including the rea-

sonable value of any advantage which is received from the

employer and included for the purposes of any withholding

tax under subtitle C of the Internal Revenue Code of 1954

[26 U.S.C.A. § 3101 et seq.] (relating to employment taxes).

The term wages does not include fringe benefits, including

(but not limited to) employer payments for or contributions

to a retirement, pension, health and welfare, life insurance,

training, social security or other employee or dependent

benefit plan for employee’s or dependent’s benefit, or any

other employee’s dependent entitlement.

33 U.S.C. § 902(13).

In Wright, we interpreted § 2(13) to define "wages" as "the ‘money

rate’ of compensation that is provided (1) for the employee’s services

CUSTOM SHIP INTERIORS v. ROBERTS 5

(2) by an employer (3) under the employment contract in force at the

time of the injury." 155 F.3d at 325. All compensation that meets

these requirements satisfies the Act’s definition of wages, although

§ 2(13) contains two clauses under which a payment might fall.

The opening clause of § 2(13) broadly covers the money rate at

which an employee is compensated under his employment contract

for providing services. We concluded in Wright that, "[a]t a mini-

mum, this encompasses cash compensation" provided for services

rendered under the employment contract. Id. at 319. If the payment

at issue is not regular cash compensation it might still fall under the

second clause, which expressly includes as a "wage" the reasonable

value of "any advantage" received by the employee that is subject to

tax withholding. Id. at 319-20. It is important to note that the second

clause does not serve to limit the first. See id. at 319 n.10. Instead,

it defines a different category of benefits that might be considered

wages. Although the second clause encompasses both monetary and

in kind compensation so long as it is "readily identifiable and calcula-

ble," id. at 322-24, it primarily addresses nonmonetary benefits that

cannot be viewed as the regular money rate of compensation. See id.

at 319-21. Finally, the third clause expressly excludes other "fringe

benefits," whose value to the employee is "too speculative to be read-

ily converted into a cash equivalent." Id. at 320.

The Fifth Circuit subsequently interpreted our decision in Wright

to mean that if a benefit is paid in dollars and cents and therefore has

a value that is apparent on its face, it constitutes a wage rather than

a fringe benefit under § 2(13). James J. Flanagan Stevedores, Inc. v.

Gallagher, 219 F.3d 426, 432 (5th Cir. 2000). Thus, in Gallagher, the

Fifth Circuit held that container royalty benefits paid annually to

longshoremen are properly included as wages in the calculation of

benefits under the Act. Id. at 433.

III.

Custom Ship contends that the contested payments were reimburse-

ments for food and lodging rather than regular compensation, and

thus that they may not count as "wages" unless they were subject to

employment tax withholding. However, Custom Ship’s argument flies

in the face of its decision to regularly provide Roberts the payments

6 CUSTOM SHIP INTERIORS v. ROBERTS

despite knowing that he had no expenses to reimburse. Because the

payments were virtually indistinguishable from Roberts’ regular

hourly wages, we must affirm the decision of the BRB.

We recognize, of course, that per diem payments are traditionally

seen as reimbursements for expenses, including room and board when

traveling, and are not generally considered regular taxable wages. See

26 U.S.C. § 119 (2002). However, when a per diem is given in the

face of knowledge that the employee has no expenses, it is less clear

that the per diem is a reimbursement rather than a regular wage.

The payments here had every indicia of an ordinary wage. Roberts

regularly received them in his weekly pay check as a part of his

employment contract. Like his hourly wages, the payments correlated

to the amount of time Roberts worked each week. If Roberts worked

one day, he would receive one per diem payment in his pay check.

Moreover, the payments were unrestricted cash payments. There was

no requirement that Roberts spend the payments on room and board.

In fact, Roberts was not even required to incur any room and board

expenses at all. Thus, Custom Ship’s attempt to characterize the pay-

ments as room and board reimbursements, and thus nonmonetary "ad-

vantages," does not change the fact that they were obviously regular

wages.

Whether a true per diem reimbursement payment should be includ-

able as a "wage" under the Act is not the relevant question here

because these payments did not resemble reimbursements in any way.

True per diem reimbursements generally bear at least some rough

approximation to room and board expenses; however the payments

here were not linked to actual expenses of any sort. Custom Ship

knew that Carnival provided free food and lodging to ship remod-

elers. Thus, Custom Ship included the payments in Roberts’ weekly

pay checks despite knowing that he was not incurring any of the

expenses the per diem was nominally to reimburse.

Custom Ship argues that the payments at issue must be subject to

withholding to be viewed as a wage. However Custom Ship miscon-

strues the Act’s definition of a "wage." Whether or not a payment is

subject to withholding is not the exclusive test of a "wage." Monetary

compensation paid pursuant to an employment contract is most often

CUSTOM SHIP INTERIORS v. ROBERTS 7

subject to tax withholding, but the LHWCA does not make tax with-

holding an absolute prerequisite of wage treatment. As the BRB cor-

rectly noted, "the per diem at issue here is part of the money claimant

receives from employer, and is thus includable in average weekly

wage under the first clause of Section 2(13) regardless of whether it

is subject to tax withholding." Michael A. Roberts, BRB No. 00-832

(May 15, 2001). Because the payments are included as wages under

the first clause of § 2(13), Custom Ship’s invocation of the second

clause of § 2(13) is unavailing. This second clause enlarges the defini-

tion of "wages" to include meals and lodging provided in kind by the

employer, but only when the in kind compensation is subject to

employment tax withholding. The second clause, however, does not

purport to speak to the basic money rate of compensation for service

rendered by an employee under which the cash payments in this case

fall. See Wright, 155 F.3d at 319 & n.10.

Custom Ship further argues that we should follow the Fifth and

Ninth Circuits’ holdings that the value of meals and lodging furnished

by an employer is not includable as wages under the LHWCA. H.B.

Zachry Co. v. Quinones, 206 F.3d 474 (5th Cir. 2000); Wausau Ins.

Cos. v. Dir., Office of Workers Comp. Programs, 114 F.3d 120 (9th

Cir. 1997). This case is quite different from Quinones and Wausau,

however. The payment here was in the nature of monetary compensa-

tion. By contrast, Quinones and Wausau involved the value of meals

and lodging provided to employees. As we have already noted, mone-

tary compensation and in kind benefits are treated differently under

the statute in that the latter to be includable must be subject to tax

withholding. That is not true of Roberts’ monetary payments, how-

ever. In fact, we note further that the BRB rejected Roberts’ conten-

tion that the value of the free room and board provided by Carnival

should also be viewed as wages, and Roberts does not appeal that

decision. Instead, Roberts is claiming as wages only the actual money

he regularly received in his weekly pay check.*

The so-called per diem in this case was nothing more than a dis-

guised wage. Were it viewed otherwise, Roberts would not be ade-

*Custom Ship’s reliance on McNutt v. Benefits Review Board, 140

F.3d 1247 (9th Cir. 1998), is similarly unavailing. In McNutt, unlike

here, the claimant had incurred actual room and board expenses.

8 CUSTOM SHIP INTERIORS v. ROBERTS

quately compensated for the loss of his wage-earning capacity at the

time of his injury. That, of course, would undermine the entire prem-

ise of the Longshore and Harbor Workers’ Compensation Act.

IV.

For the foregoing reasons, we affirm the judgment of the Benefits

Review Board.

AFFIRMED

NIEMEYER, Circuit Judge, dissenting:

Michael Roberts was injured while working as an employee for

Custom Ship Interiors, a ship remodeling firm. At the time of his

injury, Roberts was working on the remodeling of a Carnival Cruise

ship. He filed a claim for disability benefits under the Longshore and

Harbor Workers’ Compensation Act ("LHWCA"), 33 U.S.C. § 901 et

seq., and the Administrative Law Judge ("ALJ") determined that Rob-

erts was entitled to benefits.

Disability benefits under the LHWCA are calculated using the

claimant’s average weekly wage as defined by the Act. See 33 U.S.C.

§ 902(13). In computing Roberts’ average weekly wage, the ALJ took

into account Roberts’ normal weekly wages and overtime pay, but not

the $77.50 per diem paid by his employer to defray the costs of Rob-

erts’ meals and lodging while Roberts worked away from home on

the Carnival Cruise ship. The Benefits Review Board reversed, con-

cluding that the per diem payments should be included as part of Rob-

erts’ average weekly wages because the per diem payments were paid

every week, regardless of whether Roberts incurred the meals and

lodging expense, noting that while working on the Carnival Cruise

ship, Roberts did not incur expenses for meals and lodging because

Carnival Cruise supplied meals and lodging to workers remodeling its

ship, not as a matter of contractual obligation, but merely as an

accommodation to the workers.

Because I agree with the ALJ’s decision not to include the per diem

in calculating Roberts’ weekly wage, I would reverse the decision of

the Benefits Review Board.

CUSTOM SHIP INTERIORS v. ROBERTS 9

It is true that Custom Ship Interiors paid the per diem regardless

of how much the employee actually incurred for meals and lodging

or whether the employee incurred any expense at all. It was a fixed

sum reimbursement paid to every employee who worked away from

home and did not depend on an employee’s accounting for his actual

expenses. And thus it is also true that to the extent that an employee

did not incur actual expenses equal to the $77.50 per diem paid by

Custom Ship Interiors, the per diem payment provided the employee

with a monetary advantage. But this monetary advantage was not

compensation for services. Rather, it was simply an advantage realiz-

able by the employee who did not use the entire per diem expenses.

The proper decision in this case turns on whether this monetary

advantage falls within the definition of wages. The controlling defini-

tion of wages is supplied by 33 U.S.C. § 902(13), which provides:

The term "wages" means the money rate at which the ser-

vice rendered by an employee is compensated by an

employer under the contract of hiring in force at the time of

the injury, including the reasonable value of any advantage

which is received from the employer and included for pur-

poses of any withholding of tax under subtitle C of the Inter-

nal Revenue Code of 1954 [26 U.S.C. §§ 3101 et seq.].

(emphasis added). The text of this provision requires that a wage be

compensation for "service," not a reimbursement for expenses, and

we have so concluded. See Universal Maritime Service Corp. v.

Wright, 155 F.3d 311, 319 (4th Cir. 1998) (defining "wages" as "the

‘money rate’ of compensation that is provided (1) for the employee’s

services (2) by an employer (3) under the employment contract in

force at the time of the injury"). Simply because a per diem is granted

regardless of the amount of expenses actually incurred is not a basis

by which to convert the per diem allowance into a compensation for

service. Indeed, were the employee able to work while living at home,

he would not receive the per diem but would still have rendered the

same services to his employer.

Moreover, the "including" clause — which defines as a wage "the

reasonable value of any advantage which is received from the

employer and included for purposes of any withholding of tax under

10 CUSTOM SHIP INTERIORS v. ROBERTS

subtitle C of the Internal Revenue Code" — does not make a reim-

bursement for expenses a component of average weekly wages for

two reasons. First, the per diem is paid for expenses incurred on the

road, whether actually incurred or not, and it is not a compensation

for services. Second, the per diem is not included in any W-2 form

reported to the IRS. As we explained in Universal Maritime, the "in-

cluding" clause defines as a wage any form of nonmonetary compen-

sation as long as that nonmonetary compensation could be included

as wages "and must be subject to tax withholding." Id. at 323.

The majority suggests that if an employee does not incur the

expenses up to the amount of per diem for meals and lodging, it

somehow receives the balance as compensation for services. If this

principle were correct, every employee who "saved" money on a fixed

per diem would owe the United States taxes. But this is not the law,

nor is it the practice. See, e.g., H.B. Zachry Co. v. Quinones, Director

OWCP, 206 F.3d 474, 479 (5th Cir. 2000); McNutt v. Benefits Review

Board, 140 F.3d 1247, 1248 (9th Cir. 1998) (per curiam).

Because I conclude that the per diem expenses which were paid

irrespective of actual expenses were not compensation for services

and therefore should not have been included in Roberts’ average

weekly wage for calculation of disability benefits, I would reverse the

decision of the Benefits Review Board. Accordingly, I respectfully

dissent.