Foster-Rettig v. Indoor Football Operating, L.L.C. ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/20/2018 08:13 AM CST
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FOSTER-RETTIG v. INDOOR FOOTBALL OPERATING
Cite as 25 Neb. Ct. App. 551
A ldwin R. Foster-R ettig, appellee, v.
Indoor Football Operating,
L.L.C., appellant.
___ N.W.2d ___
Filed February 20, 2018. No. A-17-048.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or
award of the Workers’ Compensation Court may be modified, reversed,
or set aside only upon the grounds that (1) the compensation court acted
without or in excess of its powers; (2) the judgment, order, or award was
procured by fraud; (3) there is not sufficient competent evidence in the
record to warrant the making of the order, judgment, or award; or (4)
the findings of fact by the compensation court do not support the order
or award.
2. Workers’ Compensation: Evidence: Appeal and Error. In testing
the sufficiency of the evidence to support the Workers’ Compensation
Court’s findings, an appellate court considers the evidence in the light
most favorable to the successful party. The appellate court resolves
every controverted fact in the successful party’s favor and gives that
party the benefit of every inference that is reasonably deducible from
the evidence.
3. Workers’ Compensation: Appeal and Error. The Workers’
Compensation Court’s factual findings have the effect of a jury ver-
dict, and an appellate court will not disturb them unless they are
clearly wrong.
4. ____: ____. An appellate court independently reviews questions of law
decided by a lower court.
5. Workers’ Compensation. Pursuant to the Nebraska Workers’
Compensation Act, the term “wage” means the money rate at which the
service rendered is recompensed under the contract of hiring in force
at the time of the accident. It shall not include gratuities received from
the employer or others, nor shall it include board, lodging, or similar
advantages received from the employer, unless the money value of such
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FOSTER-RETTIG v. INDOOR FOOTBALL OPERATING
Cite as 25 Neb. Ct. App. 551
advantages shall have been fixed by the parties at the time of hiring,
except that if the workers’ compensation insurer shall have collected
a premium based upon the value of such board, lodging, and similar
advantages, then the value thereof shall become a part of the basis of
determining compensation benefits.
6. ____. When determining whether payments for an employee’s meals
or lodging should be included in a calculation of weekly wages, there
must be evidence to demonstrate that (1) the money value of the
advantages was fixed by the parties at the time of hiring and (2) the
advantages constitute a real and reasonably definite economic gain to
the employee.
Appeal from the Workers’ Compensation Court: Daniel R.
Fridrich, Judge. Affirmed.
James D. Garriott, of Cassem, Tierney, Adams, Gotch &
Douglas, for appellant.
Jeffrey F. Putnam, of Law Offices of Jeffrey F. Putnam, P.C.,
L.L.O., for appellee.
Pirtle, R iedmann, and A rterburn, Judges.
A rterburn, Judge.
INTRODUCTION
Indoor Football Operating, L.L.C. (Indoor Football), appeals
from the Nebraska Workers’ Compensation Court’s award of
benefits to Aldwin R. Foster-Rettig. On appeal, Indoor Football
asserts that the compensation court erred in calculating Foster-
Rettig’s average weekly wage. For the reasons set forth herein,
we affirm the decision of the compensation court.
BACKGROUND
On April 28, 2014, Foster-Rettig was playing football for
the Omaha Beef football team when he suffered a back injury.
As a result of the injury incurred by Foster-Rettig, he was
unable to continue to play football and was ultimately placed
on an “injured reserve” status by the Omaha Beef football
team for the remainder of the season. He remains unable to
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play football; however, he has since found employment in a
different capacity. Although it is not entirely clear from our
record, it appears as though the Omaha Beef football team
was owned by Indoor Football and, as such, Foster-Rettig was
an employee of Indoor Football when he was playing for the
Omaha Beef football team.
Foster-Rettig subsequently filed a claim in the compensa-
tion court alleging that he was entitled to disability benefits
from Indoor Football as a result of his work-related injury.
After a trial, the compensation court entered an award in favor
of Foster-Rettig, awarding him both temporary total disability
payments and permanent partial disability payments. Indoor
Football appeals from the award.
Indoor Football’s appeal concerns only the compensation
court’s calculation of Foster-Rettig’s average weekly wage.
Accordingly, we focus our recitation of the evidence presented
at trial on that evidence which is relevant to the calculation of
Foster-Rettig’s average weekly wage.
Foster-Rettig testified at trial that when he played for the
Omaha Beef football team, he received a weekly salary of
between $225 to $250. This salary equated to a payment of
$225 per game he played in, with the ability to earn an addi-
tional $25 per game if the team won or if Foster-Rettig played
particularly well. In addition to this salary, Foster-Rettig testi-
fied that he received “room and board” from Indoor Football.
In fact, he testified that his receiving “room and board was
required” to his playing for the Omaha Beef football team,
because he was not from Omaha, Nebraska.
Indoor Football paid for Foster-Rettig to stay at a particular
hotel in Omaha 7 days a week during the football season. If he
chose not to stay at the hotel on a particular night, however,
he did not receive any additional compensation from Indoor
Football. Foster-Rettig testified that he never paid anything to
stay at the hotel and that he did not know exactly how much
his staying at the hotel cost Indoor Football. He did offer into
evidence a letter from a local travel agent who estimated that
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from March to June 2012, the average nightly rate at that par-
ticular hotel was $50.
During the football season, Indoor Football also provided
to Foster-Rettig “a stack of meal vouchers” every week so
that he could eat three meals a day at local restaurants. Foster-
Rettig testified that he would receive at least 21 meal vouch-
ers per week. Some of those vouchers entitled him to a “free
meal[]” and others entitled him to spend a specific amount
of money on a meal, typically between $10 and $25. Foster-
Rettig testified that each voucher would “take[] care” of the
cost of a meal. However, he never received any additional
money from Indoor Football if he did not use the full amount
of a voucher or if he did not use all the vouchers allotted to
him. In addition, he never had to return any unused vouch-
ers to Indoor Football. Foster-Rettig offered into evidence a
document indicating that the daily meal rates for traveling
employees across the country ranged from $46 per day to $69
per day.
At trial, Foster-Rettig alleged that his average weekly wage
should include the amount that Indoor Football paid for his
lodging and for the value of his meals. To the contrary, Indoor
Football alleged that Foster-Rettig’s average weekly wage
should be calculated based only on his salary of either $225 or
$250 per week. Specifically, Indoor Football alleged that based
on what Foster-Rettig actually earned while he played for the
Omaha Beef football team, his average weekly wage should
total $231.25.
In its award, the compensation court calculated Foster-
Rettig’s average weekly wage to be $903.25. In calculating this
amount, the court stated:
The court finds [Foster-Rettig’s] average weekly wage
was $231.25 without adding in the per diem of meals and
lodging. . . . When adding in $350.00 per week for lodg-
ing and $322.00 per week for meals, the average weekly
wage of [Foster-Rettig] is $903.25 per week. The Court
so finds.
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The compensation court went on to explain:
The Court finds the lodging [Indoor Football] paid
on behalf of [Foster-Rettig] should be included in [his]
average weekly wage calculation. The Court finds the
payment of [Foster-Rettig’s] lodging constituted real and
definite economic gain to [him]. [Foster-Rettig] had no
other home. This hotel was his home. . . . Consequently,
the payment of his lodging did not “offset” his costs of
travel. . . .
The same is true of the meals paid by [Indoor Football].
[Foster-Rettig] had no wife or child to support. He lived
in Omaha. He was not living on the road. The meals that
were paid for by [Indoor Football] obviated the need
for [Foster-Rettig] to pay for his own meals out of his
paycheck. This provided a real and economic gain to
[Foster-Rettig].
The compensation court then calculated the amount of dis-
ability benefits owed to Foster-Rettig by utilizing its calcula-
tion of his average weekly wage.
Indoor Football appeals from the compensation court’s
award.
ASSIGNMENT OF ERROR
On appeal, Indoor Football asserts that the compensation
court erred in calculating Foster-Rettig’s average weekly wage.
STANDARD OF REVIEW
[1-4] A judgment, order, or award of the Workers’
Compensation Court may be modified, reversed, or set aside
only upon the grounds that (1) the compensation court acted
without or in excess of its powers; (2) the judgment, order,
or award was procured by fraud; (3) there is not sufficient
competent evidence in the record to warrant the making of the
order, judgment, or award; or (4) the findings of fact by the
compensation court do not support the order or award. Damme
v. Pike Enters., 289 Neb. 620, 856 N.W.2d 422 (2014). In
testing the sufficiency of the evidence to support the Workers’
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Compensation Court’s findings, an appellate court consid-
ers the evidence in the light most favorable to the successful
party. Id. The appellate court resolves every controverted fact
in the successful party’s favor and gives that party the benefit
of every inference that is reasonably deducible from the evi-
dence. Id. The Workers’ Compensation Court’s factual findings
have the effect of a jury verdict, and an appellate court will
not disturb them unless they are clearly wrong. Id. An appel-
late court independently reviews questions of law decided by
a lower court. Id.
ANALYSIS
On appeal, Indoor Football alleges that the compensa-
tion court erred in calculating Foster-Rettig’s average weekly
wage. Specifically, Indoor Football alleges that the court
erred in including in its calculation estimates of what Indoor
Football spent on meals and lodging for Foster-Rettig when
he was employed as a football player. Upon our review, we
find that the compensation court did not err in its calcula-
tion of Foster-Rettig’s average weekly wage. Accordingly,
we affirm the decision of the compensation court which cal-
culated Foster-Rettig’s average weekly wage to be $903.25
per week.
[5] Neb. Rev. Stat. § 48-126 (Reissue 2010) defines how
to calculate a person’s wages for the purpose of determining
workers’ compensation benefits. Section 48-126 provides, in
relevant part:
Wherever in the Nebraska Workers’ Compensation Act
the term wages is used, it shall be construed to mean the
money rate at which the service rendered is recompensed
under the contract of hiring in force at the time of the
accident. It shall not include gratuities received from
the employer or others, nor shall it include board, lodg-
ing, or similar advantages received from the employer,
unless the money value of such advantages shall have
been fixed by the parties at the time of hiring, except
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that if the workers’ compensation insurer shall have col-
lected a premium based upon the value of such board,
lodging, and similar advantages, then the value thereof
shall become a part of the basis of determining compen-
sation benefits.
The first case which addressed the issue before us is
Maryland Casualty Co. v. Geary, 123 Neb. 851, 244 N.W. 797
(1932). In that case, George Geary was employed by a com-
pany as a truckdriver. Geary’s weekly wage “was $10 a week,
plus the cost of his meals and lodging while he was employed.”
Id. at 854, 244 N.W. at 798. The record revealed that the cost
of Geary’s meals and lodging was at least $12.50 per week. On
appeal, the employer argued that the meals and lodging pro-
vided to Geary should not be considered a part of his weekly
compensation “because the money value of these items was not
fixed at the time of hiring.” Id. In support of this argument, it
cited to § 48-126.
In the opinion, the Nebraska Supreme Court analyzed the
language of § 48-126 to determine whether the cost of Geary’s
meals and lodging should be included in a calculation of his
weekly wage. Specifically, the court examined the follow-
ing statutory language: “‘[T]he term “wages” . . . shall not
include gratuities received from the employer or others, nor
shall it include board, lodging, or similar advantages received
from the employer, unless the money value of such advantages
shall have been fixed by the parties at the time of hiring.’”
Maryland Casualty Co. v. Geary, 123 Neb. at 854, 244 N.W.
at 798. The court then stated, “Were it not for the statutory
limitation above quoted, there would be no doubt that the
meals and lodging furnished by the employer would constitute
a part of the employee’s weekly wage.” Id. The court went
on to consider that the value of Geary’s meals and lodging
was not specifically fixed by the parties at the time of his hir-
ing. Instead,
[Geary] was required to obtain his meals at various
cafes, restaurants and hotels, and his lodging at various
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hotels and boarding houses. Neither the employer nor the
employee could know what the precise amount would be
until such items were furnished to the latter. Whatever the
cost of these items was, they were within the contempla-
tion and agreement of the parties.
Id. at 855, 244 N.W. at 798.
Ultimately, the court found, “[A] liberal interpretation of
[§ 48-126] requires us to hold that the cost of meals and lodg-
ing was a part of the compensation which [Geary] received.”
Maryland Casualty Co. v. Geary, 123 Neb. at 855, 244 N.W. at
799. The court explained:
In this case, the cost of the meals and lodging was capable
of being, and actually was, rendered certain. The money
value of the meals and lodging was fixed at the time of
hiring. [Geary] furnished weekly a sheet on which these
items were listed, and he was reimbursed therefor.
Maryland Casualty Co. v. Geary, 123 Neb. 851, 855, 244 N.W.
797, 798-99 (1932). In reaching its conclusion, the court cited
to the beneficent purposes of the workers’ compensation law.
Maryland Casualty Co. v. Geary, supra.
[6] In a subsequent case which raised the issue of whether
payments for meals or lodging should be included in a calcula-
tion of weekly wages, the Supreme Court interpreted the statu-
tory language of § 48-126 to require evidence to demonstrate
that (1) the money value of the advantages was fixed by the
parties at the time of hiring and (2) the advantages constitute
a real and reasonably definite economic gain to the employee.
See Solheim v. Hastings Housing Co., 151 Neb. 264, 37
N.W.2d 212 (1949).
Here, there is no question that the meals and lodging
provided to Foster-Rettig as a part of his employment con-
stituted a real and reasonably definite economic gain. The
issue in contention is whether the money value of the meals
and lodging was fixed by the parties at the time that Indoor
Football hired Foster-Rettig. Upon our review of the record,
we conclude that, based upon the rationale of the Supreme
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Court in Maryland Casualty Co. v. Geary, supra, the money
value of the meals and lodging was fixed at the time of hiring.
Accordingly, the compensation court did not err in including
the value of these advantages in its calculation of Foster-
Rettig’s average weekly wage.
At trial, Foster-Rettig testified that at the time he started
playing football for the Omaha Beef football team, he and
Indoor Football agreed that Indoor Football would provide
him with meals and lodging during the football season. In fact,
Foster-Rettig testified that “room and board was required” to
his employment with Indoor Football. Indoor Football did not
present any evidence to contradict Foster-Rettig’s assertion
that “room and board” was to be a part of his compensation
package. In fact, during its cross-examination of Foster-Rettig,
Indoor Football appeared to concede that Foster-Rettig was
provided with these benefits during his employment. Indoor
Football questioned Foster-Rettig about both the meal vouch-
ers and the lodging he received. Based on the evidence pre-
sented at trial, we find support for the compensation court’s
determination that Indoor Football agreed, at the time of hiring
Foster-Rettig, to provide him with meals and lodging as a part
of his compensation.
However, similar to the situation presented in Maryland
Casualty Co. v. Geary, 123 Neb. 851, 244 N.W. 797 (1932),
Indoor Football and Foster-Rettig did not agree to a particular
value for the meals and lodging which was to be a part of
Foster-Rettig’s compensation package. As the Supreme Court
found in Maryland Casualty Co. v. Geary, supra, though,
whatever the cost of the meals and lodging was, it was clearly
within the contemplation and agreement of the parties. Given
the Supreme Court’s decision in Maryland Casualty Co. v.
Geary, supra, and given the beneficent purpose of the work-
ers’ compensation law, we do not find that the compensation
court erred in concluding that the cost of meals and lodging
was a part of the compensation which Foster-Rettig con-
tracted to receive.
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Unlike the employee in Maryland Casualty Co. v. Geary,
supra, however, Foster-Rettig was unable to establish with
precision the amount that Indoor Football actually spent on his
meals and lodging while he was employed by the company.
The evidence Foster-Rettig presented about the value of the
meals and lodging he received from Indoor Football did not
demonstrate exactly what Indoor Football paid for these advan-
tages, but, rather, it only estimated what such advantages may
have cost during the spring of 2012 when Foster-Rettig was
playing for the Omaha Beef football team.
Foster-Rettig testified that he did not know how much
Indoor Football paid the hotel for members of the team to stay
there, because Indoor Football paid the hotel directly. Prior to
the trial, Foster-Rettig was unable to obtain records about the
payments directly from the hotel, because it had gone out of
business since the time he stayed there. In addition, Exhibit
17 reveals that when Foster-Rettig made discovery requests
to Indoor Football regarding his accomodations for room and
board, Indoor Football did not provide him with any payment
records. In fact, during the discovery process the company
denied paying for such benefits, even though it conceded at
trial that such benefits were provided to Foster-Rettig. Instead
of pursuing additional discovery from Indoor Football, Foster-
Rettig chose to seek out estimates of the value of his lodging
at the hotel. He offered into evidence a letter from a local
travel agent, who estimated that from March to June 2012, the
average nightly rate at the hotel was $50.
Foster-Rettig had similar difficulties in supplying the com-
pensation court with an exact value of the meals he was given
by Indoor Football during his employment, because he was
provided with meal vouchers for each meal, rather than with
a specific dollar amount or reimbursement for the amount he
spent on food. Foster-Rettig indicated during his testimony that
many of the meal vouchers he received were from restaurants
that sponsored the Omaha Beef football team. As we stated
above, during the discovery process, Indoor Football denied
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providing this benefit to Foster-Rettig. As such, Foster-Rettig
was unable to provide the compensation court with records of
exactly how much was spent on his meals during his employ-
ment. Instead, he offered into evidence a document indicating
that the daily meal rates for traveling employees across the
country ranged from $46 per day to $69 per day.
The compensation court utilized Foster-Rettig’s evidence
regarding the estimated values of his meals and lodging in
calculating his average weekly wage. We cannot say that
the court erred in relying on such evidence. Foster-Rettig
attempted to obtain the exact values of the benefits he received
from his employment with Indoor Football, but, due to inter-
vening factors such as the closing of the hotel, and due to
Indoor Football’s failure to cooperate with discovery requests,
Foster-Rettig was unable to obtain precise figures. Under these
circumstances, we find Foster-Rettig’s evidence of the value
of the benefits to be sufficient to warrant inclusion in a calcula-
tion of his average weekly wage. Accordingly, we find that the
court did not err in calculating Foster-Rettig’s average weekly
wage to be $903.25.
CONCLUSION
We affirm the finding of the compensation court that Foster-
Rettig’s average weekly wage totaled $903.25. As such, we
affirm the award to Foster-Rettig in its entirety.
A ffirmed.