W.C. No. 4-276-722Industrial Claim Appeals Office.
June 17, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wells (ALJ), insofar as it calculated the average weekly wage. We affirm.
The claimant was an over-the-road truck driver who was paid twenty-one cents per mile. However, thirty-two percent of the per mile payment was considered a “per diem.” The per diem payment was not considered to be income for purposes of the claimant’s federal taxes.
Under these circumstances, the ALJ held that the portion of the per mile payment which was considered per diem should not be included in the claimant’s average weekly wage. In support of this conclusion, the ALJ relied on § 8-40-201(19)(c), C.R.S. (1996 Cum. Supp.).
I.
On review, the claimant first contends that the ALJ erred in excluding the per diem payment from the average weekly wage. The claimant points out that, under § 8-40-201(19)(b), C.R.S. (1996 Cum. Supp.), the reasonable value of employer-provided board, rent, and housing are includable in the average weekly wage. Thus, the claimant reasons that since the per diem was paid to compensate for his “room and board,” it should be included in the average weekly wage pursuant to subsection (b). The claimant also argues that there is no basis for giving subsection (c) precedence over subsection (b). We are not persuaded.
The claimant’s arguments notwithstanding, the court of appeals held in Ernie Baylog, Inc. v. Industrial Claim Appeals Office, 923 P.2d 361 (Colo.App. 1996), that per mile “per diem payments” are excludable from a claimant’s average weekly wage so long as the daily amounts do not exceed the guidelines established by the Internal Revenue Service, and are not considered wages for federal tax purposes. In support of this conclusion, the court stated that the main purposes for enacting subsection (c) were to exclude per diem payments from consideration in the average weekly wage, and to ease the record-keeping burden on truckdrivers and trucking companies.
Thus, it is apparent that subsection (c) constitutes a specific exception to the broader statute permitting consideration of “room and board” expenses in calculating the average weekly wage. See Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991) (specific statutory provision prevails over a general provision unless the general provision is later in time and the General Assembly manifested a clear intent that the general provision should prevail). Moreover, subsection (c) was enacted subsequent to subsection (b). 1994 Colo. Sess. Laws, ch. 225 at 1285-1287. Consequently, if there is an irreconcilable conflict between the two statutes, subsection (c) prevails since it is later in time. De Jiacomo v. Industrial Claim Appeals Office, 817 P.2d 552 (Colo.App. 1991).
The claimant also argues that allowing subsection (c) to prevail over subsection (b) is impermissible because it would result in a denial of equal protection of the laws. According to the claimant, subsection (c) creates an untenable distinction between claimants whose employers reimburse their expenses by way of “per diem” payments, and those employees who are reimbursed for room and board by some other means. However, regardless of the merits of this argument, we are not free to depart from the express holding of Ernie Baylog, Inc. v. Industrial Claim Appeals Office, supra. C.A.R. 35(f).
II.
The claimant also asserts that § 8-40-201(19)(c) is constitutionally flawed. However, we lack jurisdiction to consider this issue. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971).
IT IS THEREFORE ORDERED that the ALJ’s order dated September 3, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed June 17, 1997 to the following parties:
Bryce Young, 4260 Rollins St., Colorado Springs, CO 80911
Westway Express, Inc., P.O. Box 1243, Commerce City, CO 80022-0243
Helmsman Management Services, Inc., c/o NW Transport Services Inc., 13111 E. Briarwood Ave., #100, Englewood, CO 80112
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
John M. Connell, Esq. and David R. Little, Esq., 1675 Larimer St., #710, Denver, CO 80202 (For Respondents)
By: ________________________________