{ "id": 1073551, "name": "DONNA SWEARINGEN et al., Appellants, v. THE INDUSTRIAL COMMISSION et al. (T.T.C. of Illinois, d/b/a Henderson Tracking, Appellee)", "name_abbreviation": "Swearingen v. Industrial Commission", "decision_date": "1998-08-24", "docket_number": "No. 5-97-0160WC", "first_page": "666", "last_page": "672", "citations": [ { "type": "official", "cite": "298 Ill. App. 3d 666" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "413 So. 2d 816", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9567279 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/so2d/413/0816-01" ] }, { "cite": "415 So. 2d 837", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9562194 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "839" } ], "opinion_index": 0, "case_paths": [ "/so2d/415/0837-01" ] }, { "cite": "17 Ariz. App. 96", "category": "reporters:state", "reporter": "Ariz. App.", "case_ids": [ 1228501 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/ariz-app/17/0096-01" ] }, { "cite": "113 N.M. 2", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723195 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/nm/113/0002-01" ] }, { "cite": "3 Neb. App. 173", "category": "reporters:state", "reporter": "Neb. Ct. App.", "case_ids": [ 4393715 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/neb-app/3/0173-01" ] }, { "cite": "12 Kan. App. 2d 441", "category": "reporters:state", "reporter": "Kan. App. 2d", "case_ids": [ 396639 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/kan-app-2d/12/0441-01" ] }, { "cite": "237 Mont. 424", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 2646406 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/mont/237/0424-01" ] }, { "cite": "5 Neb. App. 538", "category": "reporters:state", "reporter": "Neb. Ct. App.", "case_ids": [ 1594496 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/neb-app/5/0538-01" ] }, { "cite": "923 P.2d 361", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10319525 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/p2d/923/0361-01" ] } ], "analysis": { "cardinality": 685, "char_count": 14582, "ocr_confidence": 0.75, "pagerank": { "raw": 2.8807430629175183e-07, "percentile": 0.8435374031458976 }, "sha256": "d52838ac0bb64cf5b546224ae15782cf285827249bc1c43a92eaf370df6e97ec", "simhash": "1:d9c4c9f5ede7e400", "word_count": 2318 }, "last_updated": "2023-07-14T16:29:38.148323+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DONNA SWEARINGEN et al., Appellants, v. THE INDUSTRIAL COMMISSION et al. (T.T.C. of Illinois, d/b/a Henderson Tracking, Appellee)." ], "opinions": [ { "text": "JUSTICE RARICK\ndelivered the opinion of the court:\nClaimants, Donna Swearingen and Ronald Scroggins, sought benefits pursuant to the Workers\u2019 Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1992)) for injuries received while in the employ of Henderson Trucking (Henderson). Both were long-haul truck drivers. Swearingen was a \u201csecond driver\u201d on a two-person crew and was earning 11 cents per mile. Scroggins was a driver-in-training earning 10 cents per mile. Both were paid approximately $400 per week. In addition, drivers who completed one year of employment during which they logged 140,000 miles were eligible for one week\u2019s vacation pay of $400. Swearingen was injured while lifting the bunk in the tractor of her truck in Salinas, California, on November 6, 1992. Scroggins was injured when he fell from a loading dock while unloading a truck in Torrance, California, on August 6, 1992. Arbitration hearings were held in each case. In both cases, the claimant\u2019s average weekly wage for temporary total disability (TTD) purposes was determined to be approximately $200. This determination was based upon the testimony of Terry Burnett, Henderson\u2019s safety director. Burnett testified that Henderson treats 50% of all drivers\u2019 gross pay as reimbursement for travel expenses, rather than earned income. This money was to cover drivers\u2019 personal expenses. Drivers were not required to turn in any expense report or receipts. The travel expense allowance did not cover the cost of fuel, tolls, or repairs; lead-seat drivers were reimbursed separately for those expenses. Swearingen testified that she was not reimbursed for lodging or meals or other expenses, except fuel and truck-related expenses. She did not pay income taxes on the expense-reimbursement portion of her check. Scroggins paid income taxes on the expense reimbursement, based on the advice of his accountant. The only other travel expense incurred by either claimant was for meals. Swearingen was awarded 822/v weeks of TTD benefits, based on an average weekly wage of $412.02. Scroggins was awarded 453/7 weeks of TTD benefits based on an average weekly wage of $196.86. The arbitrator calculated Scroggins\u2019 average weekly wage to be one-half of his gross pay. The arbitrator determined that one-half of Scroggins\u2019 gross pay was not earned income but was reimbursement for travel expenses. The arbitrator also awarded Scroggins permanent partial disability (PPD) benefits, finding him to be permanently partially disabled, to the extent of 5% of the person as a whole, and to have suffered a 10% loss of the use of his left arm.\nThe Illinois Industrial Commission (Commission) reversed the arbitrator\u2019s decision in Swearingen\u2019s case, finding Swearingen\u2019s average weekly wage to be $207.01. The Commission found that half of Swearingen\u2019s pay constituted a reimbursement for per diem travel expenses and as such constituted fringe benefits excluded under section 10 of the Act (820 ILCS 305/10 (West 1992)). In Scroggins\u2019 case, the Commission modified the PPD. award, finding that,Scroggins had lost 15% of the use of his left arm. The Commission otherwise affirmed and adopted the decision of the arbitrator. Commissioner Kinnamon dissented, disagreeing with the majority\u2019s conclusion that 50% of Scroggins\u2019 pay represented per diem travel expenses. The cases were consolidated for purposes of judicial review, and the circuit court of Marion County confirmed both decisions.\nOn appeal, claimants argue that the Commission erred in determining that the 50% of their pay designated by Henderson as a reimbursement for travel expenses did not constitute compensable income under the Act. Specifically, claimants contend that the per diem allowance was not and did not constitute a reimbursement for any actual travel expenses, but Henderson merely designated half of their pay as a reimbursement for travel expenses in order to reduce the amount of state and federal withholdings and workers\u2019 compensation benefits it had to pay.\nSection 10 of the Act provides in pertinent part:\n\u201cThe compensation shall be computed on the basis of the \u2018Average weekly wage\u2019 which shall mean the actual earnings of the employee in the employment in which he was working at the time of the injury during the period of 52 weeks ending with the last day of the employee\u2019s last full pay period immediately preceding the date of injury, illness [,] or disablement^] excluding overtime[ ] and bonus[,] divided by 52.\u201d 820 ILCS 305/10 (West 1992).\nThe average weekly wage includes \u201canything of value received as consideration for the work, as, for example, tips, bonuses, commissions[,] and room and board.\u201d 5 A. Larson & L. Larson, Larson\u2019s Workers\u2019 Compensation \u00a7 60 \u2014 12(a), at 10 \u2014 648 through 10 \u2014 655 (1993). \"The question of whether a travel expense reimbursement should be considered when calculating the average weekly wage appears to be one of first impression in Illinois. It has, however, been addressed in numerous other jurisdictions.\nIn Ernie Baylog, Inc. v. Industrial Claim Appeals Office, 923 P.2d 361 (Colo. App. 1996), the claimant, Sally Olney, was an over-the-road truck driver. She was paid eight cents per mile as wages and an additional four cents per mile to cover all personal expenses incurred while driving, such as meals, showers, and an occasional motel room. Her employer deducted income taxes and social security taxes from the eight cents per mile designated as wages, but not from the four cents per mile paid to cover personal expenses. The court in Ernie Baylog, Inc. held that the four-cent-per-mile payment should not be included in Olney\u2019s weekly wage. The court based this conclusion on statutory provisions which provided that a per diem payment was not considered \u201cwages\u201d for purposes of computing workers\u2019 compensation benefits unless it is also considered \u201cwages\u201d for federal income tax purposes.\nIn McGinnis v. Metro Package Courier, Inc., 5 Neb. App. 538, 561 N.W.2d 587 (1997), the claimant, DeLoris McGinnis, was a courier for Metro Fackage Courier, Inc. (Metro). She used her own vehicle to make deliveries. She was given two paychecks, one for salary and one for \u201cmileage reimbursement.\u201d The court in McGinnis held that McGinnis\u2019s paycheck for \u201cmileage reimbursement\u201d should be included in the calculation of her average weekly wage. The court reasoned that the evidence demonstrated that Metro was not actually reimbursing McGinnis for her car expenses, because her mileage reimbursement check did not necessarily correspond to the miles she reported to Metro. The court concluded that Metro had labeled a majority of its drivers\u2019 pay as \u201cmileage reimbursement,\u201d rather than salary, in order to maximize tax benefits for both parties.\nIn Scyphers v. H&H Lumber, 237 Mont. 424, 774 P.2d 393 (1989), the claimant was a long-haul truck driver. He was paid 14 cents per mile plus 3 cents per mile per diem. Drivers were not reimbursed for meals and lodging and were not required to turn in expense reports. Taxes were withheld from the 14-cent-per-mile payment, but not from the 3-cent-per-mile per diem, and it was paid by separate check. Following several other jurisdictions, the court held that 3 cents per mile paid to a truck driver as \u201cper diem\u201d compensation should be included in his wages for the purpose of determining workers\u2019 compensation benefits, because such compensation was not an actual reimbursement for out-of-pocket expenses but, rather, constituted real economic gain to the driver.\nIn Ridgway v. Board of Ford County Commissioners, 12 Kan. App. 2d 441, 748 P.2d 891 (1987), claimant was a process server for the sheriffs department. He used his own car, for which the county paid him $225 per month pursuant to a leasing agreement. The court held that an employee\u2019s car allowance should be included in the calculation of his average weekly wage because the evidence demonstrated that the allowance represented real economic gain to the employee and was not simply reimbursement for out-of-pocket expenses.\nIn Logan v. Rocky Mountain Rental, 3 Neb. App. 173, 524 N.W.2d 816 (1994), claimant was an interstate truck driver. His pay included a per diem of $44. The employer did not withhold federal social security or income taxes from this amount, and the claimant did not report it as income. There was no evidence that the claimant needed to actually incur $44 per day in road expenses in order to receive the reimbursement. The court held that because the evidence failed to establish that a $44 per diem \u201croad expenses\u2019\u2019 payment constituted an actual reimbursement for actual incurred expenses, such amounts therefore represented real economic gain and should be included in the driver\u2019s weekly wage.\nIn Antilion v. New Mexico State Highway Department, 113 N.M. 2, 820 P.2d 436 (1991), the court declined to include the claimant\u2019s per diem reimbursement for travel expenses in his wages for purposes of calculating workers\u2019 compensation benefits. After noting that, by law, a state employee\u2019s per diem is a reimbursement for travel expenses incurred in the performance of public business, the court held that a reimbursement for expenses incurred in the performance of the job is not considered a part of the worker\u2019s wage unless the reimbursement is in excess of the employee\u2019s actual expenses and thus constituted a real economic gain to the employee. Because the employee failed to provide any evidence to show that the per diem he received was in excess of his actual expenses and therefore constituted real gain to him, such per diem could not be included in his wage for purposes of calculating workers\u2019 compensation benefits. Antilion is clearly distinguishable from the present case because the characterization of the per diem was controlled by statute.\nIn Moorehead v. Industrial Comm\u2019n of Arizona, 17 Ariz. App. 96, 495 P.2d 866 (1972), the court held that before any part of travel allowances or reimbursements for travel expenses could be considered as a part of an employee\u2019s wages, there should be some showing that the payments are more than sufficient to reimburse the employee for the work-related expenses, so that the excess can be considered as extra compensation to the employee.\nHenderson cites Layne Atlantic Co. v. Allen Eugene Scott, 415 So. 2d 837 (Fla. Dist. Ct. App. 1982), for the proposition that out-of-town expenses should not be considered when computing the claimant\u2019s average weekly wage. In Layne Atlantic Co., the court held that out-of-town motel expenses could not be considered wages because they were solely a creature of the job. Because Scott, the claimant, no longer worked for Layne Atlantic Co., he was no longer incurring the out-of-town motel expenses. Because he was no longer incurring these expenses, the court reasoned, he suffered no economic loss as a result of his failure to receive reimbursement. The court in Layne Atlantic Co. went on to distinguish its prior decision in Viking Sprinkler Co. v. Thomas, 413 So. 2d 816 (Fla. Dist. Ct. App. 1982), wherein the court held that a $90 weekly expense allowance was found to be includable in the average weekly wage. The court noted that in Viking Sprinkler Co., \u201cthe uniformity and regularity of the expense payments!,] coupled with the employee\u2019s broad discretionary ability in putting the money to use[,] was sufficient evidence from which the deputy [Commissioner] could conclude that the allowance was not a bona fide make-whole reimbursement and that the employee had received independent personal benefit.\u201d Layne Atlantic Co., 415 So. 2d at 839.\nLayne Atlantic Co. does not support Henderson\u2019s position in the present case. Indeed, the situation in the present case seems far more analogous to that in Viking Sprinkler Co. Although claimants herein did not receive a set dollar amount for expenses, neither did they receive a dollar-for-dollar reimbursement for actual expenses.\nThe general rule that most jurisdictions seem to have adopted is that payments designated as a \u201creimbursement\u201d for travel expenses should be included when calculating an employee\u2019s average weekly wage to the extent that such payments represent real economic gain rather than the actual reimbursement for actual travel expenses. As in many of these cases, the claimants in the present case were not required to keep any kind of expense records or turn in any receipts in order to receive the \u201creimbursement.\u201d It appears that Henderson simply designates a percentage of its employees\u2019 salaries as \u201creimbursement\u201d in order to take advantage of Internal Revenue Service tax regulations. Henderson is not required to withhold federal social security or income taxes from the \u201creimbursement\u201d portion of claimant\u2019s pay, and the claimants are not required to pay income taxes on this money. Although Henderson maintains that it carefully calculated the per diem reimbursement so as to reflect the amount its employees actually spent on lodging, meals, and incidental expenses, there is no evidence in the record to support this contention. We also find significant that eligible drivers were entitled to a one-week paid vacation at $400. If one-half of the amount Henderson paid its drivers was reimbursement for expenses, then vacation pay would have been $200, because the drivers would not have been incurring any expenses while on vacation. That Henderson paid its drivers $400 per week while on vacation suggests that that portion of drivers\u2019 wages which Henderson designated as \u201creimbursement\u201d was actually in the nature of wages constituting real economic gain to the drivers.\nFor the foregoing reasons, the judgment of the circuit court of Marion County is reversed, and both cases are remanded to the Commission for a determination of whether, and to what extent, the \u201creimbursements\u201d constitute real economic gain and for a recalculation of the average weekly wage based upon such determination.\nReversed and remanded with directions.\nMcCULLOUGH, Ed., and RAKOWSKI, COLWELL, and HOLD- . RIDGE, JJ., concur.", "type": "majority", "author": "JUSTICE RARICK" } ], "attorneys": [ "Mark Glass and Michael B. Marker, both of Carr, Korein, Tillery, Kunin, Montroy & Glass, of East St. Louis, for appellant Donna Swearingen.", "Ronald Tulin and Douglas J. Quivey, both of Ronald Tulin, Ltd., of Charleston, for appellant Ronald Scroggins.", "David M. Barish, of Cohn, Lambert, Ryan & Schneider, Ltd., of Chicago, for appellee." ], "corrections": "", "head_matter": "DONNA SWEARINGEN et al., Appellants, v. THE INDUSTRIAL COMMISSION et al. (T.T.C. of Illinois, d/b/a Henderson Tracking, Appellee).\nFifth District (Industrial Commission Division)\nNo. 5\u201497\u20140160WC\nOpinion filed August 24, 1998.\nMark Glass and Michael B. Marker, both of Carr, Korein, Tillery, Kunin, Montroy & Glass, of East St. Louis, for appellant Donna Swearingen.\nRonald Tulin and Douglas J. Quivey, both of Ronald Tulin, Ltd., of Charleston, for appellant Ronald Scroggins.\nDavid M. Barish, of Cohn, Lambert, Ryan & Schneider, Ltd., of Chicago, for appellee." }, "file_name": "0666-01", "first_page_order": 686, "last_page_order": 692 }