Fill and Sign the 91 12646 E 6979 Form

MISSISSIPPI WORKERS' COMPENSATION COMMISSION **** CLAIMANT MWCC NO. 91-12646-E-6979 **** EMPLOYER APPEARING FOR CLAIMANT: ****, Attorney, Jackson, Mississippi APPEARING FOR EMPLOYER: ****, Attorney, Jackson, Mississippi FULL COMMISSION ORDERThis matter was heard on July 26, 1993 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi pursuant to "Employee's Notice of Appeal of the Administrative Law Judge Order," and "Employer's Notice of Appeal of Administrative Judge Order." We are being asked to review an Order of Administrative Judge dated April 23, 1993 awarding medical benefits, and benefits for temporary total and permanent partial disability. I. Claimant suffered an admittedly compensable injury to her right arm on July 29, 1991. It was stipulated that Claimant reached maximum medical improvement on September 24, 1992. The Administrative Judge found this injury, which resulted in a 30% medical impairment to the left arm. Claimant 90% permanently awarded accordingly. We have reviewed the record as well as the applicable law, and we agree with the finding of the Administrative Judge that Claimant suffered a 50% permanent disability within the meaning of the Act, and is entitled to compensation therefore. The issue which we are left with on this appeal is whether the Administrative Judge correctly determined the Claimant's average weekly wage. II.At the time of her injury, Claimant's base monthly salary was $859.21. This translates into an average weekly wage of $198.28. As a state employee, Claimant also received certain fringe benefits. The Employer provided health insurance at a cost of $128.00 per month, life insurance at a cost to it of $2.55 per month, and the Employer contributed $83.77 to the state retirement fund on behalf of the Claimant. The Administrative Judge included these additional benefits to find that Claimant's average weekly wage at time of injury was $247.L74]. On this appeal we are asked to decide whether these so- called fringe benefits are to be included in the Claimant's average weekly wage. We begin with the Act which defines "wages" as "the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of injury, and also the reasonable value of board, rent, housing, lodging or similar advantage received from the employer and gratuities to us that if these fringe benefits are includable at all, it must be under the "similar advantage" provision of section 71-3-3(k). There is nothing in this record to suggest these benefits constitute part of "the money rate at which the service rendered is recompensed," and clearly these benefits are not allowances for "board, rent, housing [or] lodging," or gratuities. A. The Administrative Judge relied on, and felt bound by, the decision of the Circuit Court of Hinds County, Mississippi in Blakely v. Mohawk Data Sciences Corp. et al., No. 37,777, holding that "fringe benefits" constituted 4 a "similar advantage" under section 71-3-3(k) and were includable in Claimant's average weekly wage. In that case, the Circuit Court reversed an Order of the Full Commission which held that employer provided benefits of life insurance, dental insurance, health insurance and pension plan should not be included in the average weekly wage calculation. Blakely v. Mohawk Data Sciences Corporation et al., MWCC No. 85-02764-C-9972.In Blakely, the Full Commission relied upon Morrison-Knudsen Constr. Co. v. Director, Office Workers' Comp. Programs, 461 U.S. 624, 103 S.Ct. 2045, 76 L.Ed. 194 (1983). Professor Larson, in his treatise on workers' compensation, adequately relates the holding of the Morrison-Knudsen case, and incidentally "the majority position on fringe benefits," as follows: The Supreme Court here held that employer contributions whether the decedent's wage basis should include 68 cents representing the per-hour value of three "fringe benefits": 28 cents paid into the union health and welfare trust fund, 35 cents paid into its pension fund, and 5 cents paid into its training fund. The statutory provision reads as follows: "'Wages' means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of injury, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer, and gratuities received in the course of employment from others than the employer." . The Supreme Court . . . began with the plain language of the Act. Obviously these contributions were not the "money rate" or "gratuities." This left "similar advantage." They were not similar to board and lodging because the latter had a present value that could be readily convertible into a cash equivalent. The contributions could not be so converted. There was no direct relation between the size of the contributions and the size of the decedent's benefits or pension credits. . . . In spite of the well known upsurge of "fringe benefits," Congress had never amended the definition [of wages] to include them . . . The court then noted that the concept of "wage" figures in several places in the Act, and, to be consistent, the expanded concept would also have to be adopted in calculating the "national average weekly wage," which forms the basis for arriving at the overall maximum weekly benefit figure; and such a calculation would be one of extreme difficulty. . . . Any such change would significantly alter the careful balance struck by Congress between the rights of employees and employers. It would also undermine the goal of promptness of payment, since the wage calculation process, which is now almost never a source of controversy, would be a focus of challenge and dispute in almost every case. 2 Larson, Larson's Workmen's Compensation Law Section 60.12(b) (1993). Larson goes on to observe that: Workers' Compensation has been in force in the United States for over seventy years, and fringe benefits have been a common feature of American industrial life for most of that period. Millions of compensation benefits have been paid during this time. Whether paid voluntarily or in contested and adjudicated cases, they have always begun with a wage basis calculation that made "wage" mean the "wages" that the worker lives on and not miscellaneous "values" that may or may not someday have a value to him depending on a number of uncontrollable contingencies.The provision being interpreted in Morrison-Knudsen is indistinguishable from our own, and we find this case as persuasive today as we did in Blakely. It is our view that "similar advantage" as used in section 71-3-3(k) refers plainly to those advantages which are similar in kind to "board, rent, housing and lodging." These are the kinds of advantages which the court in Morrison-Knudsen noted could be readily converted into a cash equivalent, or which have a real present value to the employee. Cecil S. Madden received in our opinion a "similar advantage" because he "was furnished a nice home in which to live, received his gas free, received $5 a month on his electric bill, received a large supply of milk per day, and was allowed a garden spot." Fowler Hereford Farm v. Madden, 207 So.2d 622, 624 (Miss. 1968). ****, the Claimant herein, did not receive a "similar advantage" within the meaning of the Act. C. We realize that the Administrative Judge felt bound by the decision of the Circuit Court in Blakely, it being the highest court on record in this State to have addressed the issue. We also are aware that in reviewing decisions of this Commission, circuit courts act as intermediate appellate courts, and "are governed by the same rules and endowed with the same powers applicable to courts of appeal under appellate tradition." M & J Oil Co., Inc. v. Dependents of Wilson, 498 So.2d 344, 345 (Miss. 1986). We view this statement, however, more as a statement of ~irnit~tinn on the circuit court's scone of review than a compensation cases have presidential value equivalent to that of our own Supreme Court. We consider the circuit court's decision in Blakely as establishing the law of that case, and no more. Common law notions of stare decisis, in our opinion, have no application in this context. See generally State Ex Rel. Moorev. Molpus, 578 So.2d 624, 633-395 (Miss. 1991) (discussing the concept of stare decisis).Such a drastic change in the way a Claimant's average weekly wage is calculated should originate within, and flow from, the legislature. We are not and may not be vested with law-making power, Broadhead v. Monaghan, 238 Miss. 239, 117 So.2d 881, 892, 894 (1960), and in order to accommodate the position advanced by Claimant, we would have to engage in an exercise of precisely this kind of power. Fringe benefits such as those received by Jones are not expressly or by implication included in the definition of wages. We simply do not read Section 71-3-3(k) to include them as a "similar advantage." Our authority as an administrative agency allows us to go no further. III. The Order of Administrative Judge awarding disability benefits is therefore affirmed, but amended to provide that said benefits be paid at the rate of $132.19 per week, based on a corrected average weekly wage of $198.28. The remainder of the Order of Administrative Judge is affirmed. SO ORDERED this the ___ day of _______,20___. MISSISSIPPI WORKERS' COMPENSATION COMMISSION