Meeker v. Provenant Health Partners

• Decision Date: 30 May 1996
• Docket Number: No. 95CA0904,95CA0904
• Parties: Margaret MEEKER, Petitioner, v. PROVENANT HEALTH PARTNERS; Sisters of Charity Health Care Systems, Inc.; Industrial Claim Appeals Office of the State of Colorado; and Director, Department of Labor & Employment, Division of Workers' Compensation, Respondents. . II
• Court: Colorado Court of Appeals

Page 26

929 P.2d 26

Margaret MEEKER, Petitioner, v. PROVENANT HEALTH PARTNERS; Sisters of Charity Health Care

Systems, Inc.; Industrial Claim Appeals Office of the State

of Colorado; and Director, Department of Labor &

Employment, Division of Workers' Compensation, Respondents.

No. 95CA0904.

Colorado Court of Appeals,

Div. II.

May 30, 1996.

As Modified on Denial of Rehearing

July 5, 1996.

Certiorari Denied Jan. 13, 1997.

Dwyer, Huddleson & Ray, P.C., Stephen J. Jouard, Fort Collins, for Petitioner.

Watson, Nathan & Bremer, P.C., Anne S. Myers, Karen R. Wells, Denver, for Respondent Provenant Health Partners and Sisters of Charity Health Care Systems, Inc.

No Appearance for Respondent The Industrial Claim Appeals Office or Director, Department of Labor & Employment, Division of Workers' Compensation.

Opinion by Judge CRISWELL.

The issue in this workers' compensation proceeding is whether the value of leave time credited to the employee, Margaret Meeker, during the course of her employment with Provenant Health Partners, is to be considered as "wages" under the pertinent 1992 statutory provision, Colo.Sess. Laws 1991, ch. 219, § 8-40-201(9) at 1293-1294. Based upon the parties' written stipulation of facts, an Administrative Law Judge (ALJ) concluded that such credit was required to be considered as such. The Industrial Claim Appeals Office (Panel) disagreed and modified the ALJ's order accordingly. We agree with the ALJ. Hence, we set the Panel's order aside and remand for entry of an order in accordance with this determination.

The stipulation of facts agreed to by the parties makes it apparent that the employer here had not established any program for its employees that specifically provided for any paid holidays, paid sick leave, or paid vacations. Rather, its employees were paid a cash salary, based on an hourly rate, only for the hours actually worked by them.

In lieu of any provision for paid holidays, paid sick leave, or paid vacations, however, the employer had established a benefit plan, which it referred to as "personal employee time," or "PET." Under this plan, each employee was given a credit for leave time for a specific number of hours for each pay period of two weeks. The number of hours credited to each employee was based upon the employee's length of service and ranged from a minimum of 8 to a maximum of 11.08 hours. At the time of her industrial injury, the employee here was being credited with approximately 9.5 hours for each two-week period that she worked. During each such two-week period, therefore, she was paid at the end of that pay period for the hours that she actually worked, and she received a leave credit for an additional 9.5 hours.

The hours thus credited to each employee were "deposited" into the employee's "bank," and the employee could choose to "draw" on those hours (by being paid therefor at the employee's current hourly rate) whenever the employee was absent from work. Thus, so long as the employee had hours in the bank, he or she could elect to receive pay for a holiday, for an absence because of illness, for a vacation period, or for any other work absence, including simply taking a day off.

There was no limit or cap upon the number of hours that an employee could accumulate in his or her bank. Nor does the record indicate that the employee was required to use (by being paid for absences) any of the hours in the bank. At the time of the hearing here, the employee had a credit in her bank of some 248 hours. This represented more than one year's accumulation of credits.

If upon termination of employment, the employee had elected not to use all of the hours credited to that employee's bank, then the employee was paid in full for all remaining hours, at the employee's then current hourly rate. Once the hours were earned and credited to the bank, therefore, the employee never forfeited any of them. Rather, at the employee's election, all of the hours credited were used either to pay the employee for work absences or to provide for a lump sum payment at the time of termination.

Under the Workers' Compensation Act, if an employee suffers either a temporary or permanent impairment, benefits are payable to that employee in an amount equal to 66 2/3% of the employee's "average weekly wage," up to a statutory maximum. Sections 8-42-102(1); 8-42-105(1); and 8-42-106, C.R.S. (1995 Cum.Supp.).

If, as here, the employee is paid by the hour, a daily wage is determined by multiplying the employee's "hourly rate" by the number of hours during the day that the employee was working at the time of the injury. This daily wage is then multiplied by the number of days in the week that the employee was working (or would have worked) at the time of the injury in order to obtain the employee's average weekly wage. Section 8-42-102(2)(c) and (d), C.R.S. (1995 Cum.Supp.).

In November 1992, at the time of the employee's injury here, the pertinent statute, Colo.Sess. Laws 1990, ch. 219, § 8-40-201(19) at 1293-1294, defined "wages" to mean:

the money rate at which the services rendered are to be recompensed under the contract of hire in force at the time of the injury, either express or implied.

For this purpose, the cost to an employee to continue an employer's group health insurance plan (or the cost of a similar or lesser plan), gratuities reported to the Internal Revenue Service for income tax purposes, and the reasonable value of board, rent, housing, and lodging received from the employer were to be included as "wages." However, under the statute, wages did not include "any similar advantage or fringe benefit not specifically enumerated" in the statute.

Prior to the time that the statute was amended in 1989 specifically to require the inclusion as part of the employee's wages the employee's cost of continuing or replacing an employer's group health insurance plan, see Colo.Sess. Laws 1989, ch. 67, § 8-47-101(2) at 411, two divisions of this court had held that, because such a benefit had a present value, that value was required to be considered as a part of the employee's wages. State Compensation Insurance Authority v. Smith, 768 P.2d 1256 (Colo.App.1988); Murphy v. Ampex Corp., 703 P.2d 632 (Colo.App.1985).

Likewise, our supreme court had determined that gratuities received by a waitress, although not paid by her employer, were required to be considered as wages. Petrafeck v. Industrial Commission, 191 Colo. 566, 554 P.2d 1097 (1976).

In contrast, neither an employer's contribution for FICA, Floyd v. AMF Tuboscope, Inc., 817 P.2d 534 (Colo.App.1990), nor one to PERA (at least where the employee's pension rights have not yet vested), Russell v. Colorado Division of Employment, 786 P.2d 483 (Colo.App.1989), is to be included in the average weekly wage computation.

In Russell, the division determined that the criteria for including a benefit as a part of the employee's wages, i.e., whether it is a part of "the money rate at which the services are to be recompensed," depends upon whether a "reasonable, present-day, cash equivalent value" can be placed upon it and whether the employee has "reasonable access on a day-to-day basis, either actually or potentially, to the benefit, or an immediate expectation interest in receiving the benefit under appropriate, reasonable circumstances." Russell v. Division of Employment, supra, 786 P.2d at 485.

The PET program here clearly meets the criteria established by Russell. During...