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Bill Motheral v. Workers' Compensation Appeals Board and Golden Empire Council (Bsa) et al

August 25, 2011

BILL MOTHERAL, PETITIONER,
v.
WORKERS' COMPENSATION APPEALS BOARD AND GOLDEN EMPIRE COUNCIL (BSA) ET AL., RESPONDENTS.



WCAB Case No. ADJ1207580 (SAC0369001)

The opinion of the court was delivered by: Blease ,j.

Motheral v. WCAB

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This appeal concerns the calculation of an injured employee's "average weekly earnings" for purposes of determining his temporary disability benefits. (Lab. Code, § 4653.)*fn1

Bill Motheral worked as a camp ranger for Golden Empire Council, Boy Scouts of America (the Council). He was paid an annual salary equal to 40 hours per week at the minimum wage. His employment contract specified that his salary "include[d] $5,055 per year for [his] living quarters and utilities (gas, electricity and telephone) at the ranger's residence . . . ." It also provided that he would receive $187.50 a month "for use of [his] vehicle for business . . . ."

Motheral was injured at work in August 2007 and was paid temporary total disability benefits from the date of his injury. The parties disputed whether section 4454 required that the market value of Motheral's living quarters, utilities, and car allowance be included in computing his average weekly earnings and his resulting disability payment. That section provides in pertinent part: "In determining average weekly earnings . . ., there shall be included . . . the market value of board, lodging, fuel, and other advantages received by the injured employee as part of his remuneration, which can be estimated in money . . . ."

An administrative law judge calculated Motheral's average weekly earnings based solely on his full-time employment (40 hours per week) at the minimum wage, finding it was unnecessary to determine the value of the living quarters and utilities "because it was the parties' intent to pay the applicant at the minimum wage."*fn2 The Workers' Compensation Appeals Board (Board) denied Motheral's petition for reconsideration.

We issued a writ of review to consider whether Motheral was entitled to have the market value of his living quarters, utilities, and car allowance included in the calculation of his average weekly earnings and resulting disability payment. We shall conclude that section 4454 mandates the inclusion of those sums. Accordingly, we shall annul the Board's decision denying reconsideration and remand for further proceedings to recalculate Motheral's average weekly earnings and resulting disability payment.

FACTUAL AND PROCEDURAL BACKGROUND

Motheral worked as a camp ranger at Camp Pollock in Sacramento from 2002 until the date of his injury. The terms of his employment were set forth in a written agreement, which states in pertinent part: "Based on a 40 hour per week schedule, your salary will be $14,040 annually ($6.75 per hour)[*fn3 ] . . . . Your salary includes $5,055 per year for your living quarters and utilities (gas, electricity and telephone) at the ranger's residence at 1501 Northgate Blvd. . . . [¶] It will be necessary for you to provide and maintain an automobile in the performance of your duties, [and] to carry an automobile insurance program which meets the minimum state requirements for liability insurance . . . . [¶] . . . You will receive $187.50 per month for use of your vehicle for business, plus an additional allowance of .15 cents per business mile for operating costs."

On August 18, 2007, Motheral injured his right ankle in the course of his employment, which resulted in the amputation of his right leg below the knee.

State Compensation Insurance Fund (State Fund) provided workers' compensation coverage at all relevant times. State Fund paid Motheral temporary disability benefits from August 19, 2007. State Fund calculated Motheral's average weekly earnings based on an annual figure of $15,332.29, which included $12,570.40 in gross ...


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