CLUKEY v. PISCATAQUIS SHERIFF'S DEPT.
6/4/1997
[ 1] The employer, Piscataquis County Sheriff's Department ("the County"), appeals from a decision of the Workers' Compensation Board granting the employee Dale J. Clukey's petition for award. The County contends that weekly allowances for meals and housing from his full-time concurrent employment with the National Guard should not be included in Clukey's average weekly wage. 39-A M.R.S.A. § 102(4)(F), (4)(H) (Supp. 1996). We affirm the decision of the Board.
[ 2] The facts of this appeal are not in dispute. Clukey was totally incapacitated by a work-related injury on October 31, 1993, while working part-time for the Piscataquis County Sheriff's Department. His part-time weekly earnings from the County were $43.98. At the time of his injury, Clukey also had a full-time concurrent job as a staff sergeant with the Maine Air National Guard. His base pay from the Guard was $378.90 per week. In addition to his base pay, Clukey also received the following meal and housing allowances:
(1) Basic Allowance for Subsistence ("BAS") = $59.44 per week.
The BAS is provided for the payment of meals for military
personnel who do not receive meals at the base. 37 U.S.C. § 402
(1996).
(2) Basic Allowance for Quarters ("BAQ") = $103.87 per week.
The BAQ is provided to military personnel who do not receive
military housing and is calculated according to marital status
and number of dependents. 37 U.S.C. § 403 (1996).
(3) Variable Housing Allowance ("VHA") = $21.59 per week. The
VHA is provided to employees who do not receive military
housing as a supplement to the BAQ. The VHA is calculated
according to actual housing costs that the employee must
certify annually. 37 U.S.C. § 403a (1996).
[ 3] Clukey filed a petition for award in 1994. There was no dispute that Clukey's wage should be calculated pursuant to 39-A M.R.S.A. § 102(4)(A), applicable to employment that continues longer than 200 days, or that his concurrent employment with the Guard should be included in the calculation pursuant to 39-A M.R.S.A. § 102(4)(E). The only dispute was whether the BAS, BAQ or VHA should be included in the wage. The Board granted the petition in August 1995, concluding that the allowances should be included in the average weekly wage. We granted the County's petition for appellate review pursuant to 39-A M.R.S.A. § 322.
[ 4] The County contends that the military allowances are a "special expense" pursuant to 39-A M.R.S.A. § 102(4)(F), providing that " hen the employer has paid the employee a sum to cover any special expense incurred by the employee by the nature of the employee's employment, the
H. "Average weekly wages, earnings or salary" does not include
any fringe or other benefits paid by the employer that continue
during the disability. Any fringe or other benefit paid by the
employer that does not continue during the disability must be
included for purposes of determining an employee's average
weekly wage to the extent that the inclusion of the fringe or
other benefit will not result in a weekly benefit amount that
is greater than 2/3 of the state average weekly wage at the
time of the injury.
39-A M.R.S.A. § 102(4)(H). We conclude that the BAS, BAQ and VHA are a basic part of Clukey's regular military compensation and therefore should be included in his average weekly wage.
[ 5] Title 37 U.S.C. § 101(25) expressly includes the BAS, BAQ and VHA in the statutory definition of the term "regular compensation." 37 U.S.C. § 101(25) (1996). Although the allowances are expressly excluded from the definition of the term "pay," 37 U.S.C. § 101(21) (1996), Congr
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