Morrison-Knudsen Construction Co. v. Director, Office of Workers' Compensation Programs , 103 S. Ct. 2045 ( 1983 )

Chief Justice Burger

delivered the opinion of the Court.

The question presented is whether employer contributions to union trust funds for health and welfare, pensions, and training are “wages” for the purpose of computing compensation benefits under § 2(13) of the Longshoremen's and Harbor Workers’ Compensation Act, 44 Stat. (part 2) 1425, 33 U. S. C. § 902(13) (Compensation Act).

I

James Hilyer, an employee of petitioner Morrison-Knudsen Construction Co., was fatally injured while working on the construction of the District of Columbia Metrorail System. At the time of his death, Hilyer was covered by the District of Columbia Workmen’s Compensation Act, D. C. Code §36-501 (1973), which incorporates the provisions of the Compensation Act. He was also a beneficiary of a collective-bargaining agreement between Morrison-Knudsen and his union, Local 456 of the Laborers’ District Council of Washington, D. C., and Vicinity (AFL-CIO).

Immediately upon Hilyer’s death, petitioner¹ began to pay 662/3% of Hilyer’s “average weekly wage” in death benefits to his wife and two minor children pursuant to 33 U. S. C. § 909(b).² Respondent Hilyer disputed the amount of benefits paid, claiming, among other things, that her husband’s average weekly wage included not only his take-home pay, as petitioner contended, but also the 680 per hour in contributions the employer was required to make to union trust funds under the terms of the collective-bargaining agreement.³ The Administrative Law Judge rejected Mrs. Hilyer’s contention and the Benefits Review Board affirmed. The Board reasoned that only values that are readily identifiable and calculable may be included in the determination of wages. Hilyer’s rights in his union trust funds were speculative. It was not clear from the record whether his pension rights had vested, and even if they had, the value of his interest in the Pension and Disability Fund depended on his continued employment with petitioner, while the value of his interest in the health, welfare, and training funds was contingent on his need for these benefits. The Board also rejected the notion that the values could be computed from the amounts contributed by the employer, noting that the family in all likelihood would not have been able to purchase similar protection at the same cost.

Mrs. Hilyer⁴ sought review of the Benefits Review Board’s decision in the Court of Appeals for the District of Columbia Circuit, reiterating her contention that her husband’s wages included the contributions that his employer made to the union trust funds.⁵ The Court of Appeals reversed. It agreed with the Board that the term “wages” includes only values that are readily identifiable and calculable, but held that the benefits at issue here met that definition. The court reasoned that since the contributions were intended for the benefit of the workers, the trustees could be viewed as “no more than a channel; ... a means by which the company provides life insurance, health insurance, retirement benefits, and career training for its employees.” Hilyer v. Morrison-Knudsen Construction Co., 216 U. S. App. D. C. 50, 53, 670 F. 2d 208, 211 (1981). Although the court conceded that the family would not be able to use the employer’s contribution to purchase benefits of equivalent value, it relied on United States ex rel. Sherman v. Carter, 353 U. S. 210 (1957), for the proposition that the employer’s contributions were a reasonable measurement of the value of the benefits to the employees.

We granted certiorari, 459 U. S. 820 (1982), and we reverse.

II

This case involves the meaning of 33 U. S. C. §902(13), a definitional section that was part of the Compensation Act in 1927, when it became law, and that has remained unchanged through 10 revisions of the Act.⁶ The section provides:

“ Wages’ means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the 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.”

A

We begin with the plain language of the Compensation Act. Since it is undisputed that the employers’ contributions are not “money . . . recompensed” or “gratuities received . . . from others,” the narrow question is whether these contributions are a “similar advantage” to “board, rent, housing, [or] lodging.” We hold that they are not. Board, rent, housing, or lodging are benefits with a present value that can be readily converted into a cash equivalent on the basis of their market values.

The present value of these trust funds is not, however, so easily converted into a cash equivalent. Respondent Hilyer urges us to calculate the value by reference to the employer’s cost of maintaining these funds or to the value of the employee’s expectation interests in them, but we do not believe that either approach is workable. The employer’s cost is irrelevant in this context; it measures neither the employee’s benefit nor his compensation. It does not measure the benefit to the employee because his family could not take the 680 per hour earned by Mr. Hilyer to the open market to purchase private policies offering similar benefits to the group policies administered by the union’s trustees. It does not measure compensation because the collective-bargaining agreement does not tie petitioner’s costs to its workers’ labors. To the contrary, the employee enjoys full advantage of the Training and Health and Welfare Funds as soon as he becomes a beneficiary of the collective-bargaining agreement. App. 37-38 and 40. He derives benefit from the Pension and Disability Fund according to the “pension credits” he earns. These pension credits are not correlated to the amount of the employer’s contribution; the employer pays benefits for every hour the employee works, while the employee earns credits only for the first 1,600 hours of work in a given year. Furthermore, although the employer is never refunded money that has been contributed, the employee can lose credit if he works less than 200 hours in a year or fails to earn credit for four years. Significantly, the employee loses all advantage if he leaves his employment before he attains age 40 and accumulates 10 credits.⁷ Id., at 49-68.

Nor can the value of the funds be measured by the employee’s expectation interest in them, for that interest is at best speculative. Employees have no voice in the administration of these plans and thus have no control over the level of funding or the benefits provided. Furthermore, the value of each fund depends on factors that are unpredictable. The value to the Hilyer family of the Health and Welfare Fund depends on its need for the services the Fund provides; the value of the Pension and Disability Fund depends on whether Hilyer’s interest vested, see n. 7, supra. And the value of the Training Fund, which was established to insure “adequate trained manpower,” see n. 3, supra, and not for the benefit of the individual workers, is even more amorphous.

United States ex rel. Sherman v. Carter, supra, is not to the contrary. That case concerned a claim under the Miller Act, 40 U. S. C. §270a et seq., which requires a contractor working for the United States to furnish a surety bond to insure the payment of “sums justly due” employees. When the employer failed to contribute to the union trust funds as required by the employees’ collective-bargaining agreement, the union trustees sued the surety on the bond. The Court allowed the trustees to maintain their action, reasoning that “contributions were a part of the compensation for the work to be done by [the] employees.” 353 U. S., at 217-218. The Court did not, however, base its conclusion on the notion these contributions were included in wages. Indeed the Court specifically noted that the Miller Act “does not limit recovery on the statutory bond to ‘wages.’” Id., at 217. A far different situation obtains here, where the Compensation Act specifically limits benefits to the worker’s “wages.” See also United States v. Embassy Restaurant, Inc., 359 U. S. 29, 35 (1959).

B

We are aided in our interpretation of § 902(13) by the legislative history of the Compensation Act, its structure, and the consistent policies of the agency charged with its enforcement. That history provides abundant indication that Congress did not intend to include employer contributions to benefit plans within the concept of “wages.”

In 1927, when the Act was enacted, employer-funded fringe benefits were virtually unknown, see United States Bureau of Labor Statistics, Beneficial Activities of American Trade-Unions, Bull. No. 465, pp. 3-4 (Sept. 1928); cf. S. Rep. No. 963, 88th Cong., 2d Sess., 1-2 (1964). Although the Act was amended several times in the ensuing years, including substantial revision in 1972, there is no evidence in the legislative history indicating that Congress seriously considered the possibility that fringe benefits should be taken into account in determining compensation under the Act.⁸ In comparison, over these same years, Congress has acted on several occasions to include fringe benefits in other statutory schemes, see, e. g., the Davis-Bacon Act, 40 U. S. C. § 276a et seq., which was amended in 1964 to bring the United States’ wage practices “into conformity with modern wage payment practices.” S. Rep. No. 963, supra, at l.⁹ From this evidence that Congress was aware of the significant changes in compensation practices, its willingness to amend and enact legislation in view of these changes, and its failure to amend the Compensation Act in the same manner, we can only conclude that Congress did not intend this expanded definition of “wages.”¹⁰

The structure of the Act lends further support for our conclusion; it uses the concept of wages in several ways: to determine disability and survivors’ actual benefits, 33 U. S. C. §§ 908 and 909, and to calculate the minimum and maximum level of benefits, § 909(e) (survivors’ benefits), § 906(b) (disability benefits). In the latter sense, the reference is to the “national average weekly wage. ” Since we have of ten stated that a word is presumed to have the same meaning in all subsections of the same statute, see Mohasco Corp. v. Silver, 447 U. S. 807, 826 (1980), we would expect the term “wages” to maintain the same meaning throughout the Compensation Act. Accordingly, were we to accept respondent Hilyer’s argument, we would also have to conclude that in determining the national average weekly wage, the Secretary of Labor is required to evaluate the benefit provisions of collective-bargaining agreements throughout the Nation. Any attempt to make this determination on a national basis would involve deciding which benefits to include, a subject on which different branches of the Government differ, see Chen, The Growth of Fringe Benefits: Implications for Social Security, 104 Monthly Labor Review 3, 9, n. 6 (Nov. 1981).¹¹ It would also require deciding how the benefits should be evaluated. Evaluating benefits is not simple in “defined contribution” plans such as the one involved in this case; in “defined benefit” plans, where the employer’s costs are actuarially determined to provide a certain level of services, the calculation is infinitely harder. See, e. g., the collective-bargaining agreement between General Motors Corp. and the United Auto Workers, cited in App. F to Brief for National Council of Self-Insurers as Amicus Curiae 16a. Without clear indication from Congress that this approach with its attendant problems is required, we decline to adopt it.

Finally, we note that, with the exception of the instant case, the Director of Workers’ Compensation has consistently taken the position that fringe benefits are not includible in wages, see Duncanson-Harrelson Co. v. Director, OWCP, 686 F. 2d 1336 (CA9 1982), and letters filed by the Department of Labor in Levis v. Farmers Export Co., appeal pending, No. 81-4258 (CA5), and Waters v. Farmers Export Co., No. 81-4273 (same). See also U. S. Dept. of Labor, LS/HW Program Memorandum No. 32, June 17, 1968, reprinted in App. to Brief for American Insurance Association as Amicus Curiae 1a-4a. Prior to the Court of Appeals’ decision in this case, the Benefits Review Board had uniformly rejected the argument pressed by respondent Hilyer. See, e. g., Waters v. Farmers Export Co., 14 BRBS 102 (1981); Freer v. Duncanson-Harrelson Co., 9 BRBS 888 (1979), rev’d in pertinent part and remanded sub nom. Duncanson-Harrelson Co. v. Director, OWCP, supra; Lawson v. Atlantic & Gulf Grain Stevedores Co., 6 BRBS 770 (1977); Collins v. Todd Shipyards Corp., 5 BRBS 334 (1977). Although not controlling, the consistent practice of the agencies charged with the enforcement and interpretation of the Act are entitled to deference. NLRB v. Hendricks County Rural Electric Membership Corp., 454 U. S. 170, 189-190 (1981); E. I. duPont de Nemours & Co. v. Collins, 432 U. S. 46, 54-55 (1977). We discern nothing to suggest that Congress intended the phrase “wages” as used in § 902(13) to include employer contributions to fringe benefit plans.

III

Respondent Hilyer argues that, despite these clear indications to the contrary, the remedial policies underlying the Act authorize the agency and require us to expand the meaning of the term to reflect modern employment practices. It is argued that fringe benefits are advantageous to both the worker, who receives tax-free benefits that he otherwise would have to buy with after-tax dollars, and to the employer, who reduces payroll costs by providing his workers with services that they could not on their own purchase with equivalent dollars. Respondent Hilyer contends that the incentive to trade salary for benefits should not be diluted by failing to consider the value of the benefits in determining survivorship and disability rights.

There is force to this argument, but a comprehensive statute such as this Act is not to be judicially expanded because of “recent trends.” Potomac Electric Power Co. v. Director, OWCP, 449 U. S. 268, 279 (1980). There we recognized that the Act was not a simple remedial statute intended for the benefit of the workers. Rather, it was designed to strike a balance between the concerns of the longshoremen and harbor workers on the one hand, and their employers on the other. Employers relinquished their defenses to tort actions in exchange for limited and predictable liability. Employees accept the limited recovery because they receive prompt relief without the expense, uncertainty, and delay that tort actions entail. Id., at 282, and n. 24; H. R. Rep. No. 1767, 69th Cong., 2d Sess., 19-20 (1927); cf. S. Rep. No. 92-1125, p. 5 (1972).

Against this background, reinterpretation of the term “wages” would significantly alter the balance achieved by Congress. As noted above, employer-funded benefits were virtually unknown in 1927; as a result, employers have long calculated their compensation costs on the basis of their cash payroll. Since 1927, however, the proportion of costs attributable to fringe benefits has increased significantly. In 1950, these benefits constituted only 5% of compensation costs; their value increased to 10% by 1970 and is over 15% presently. Chen, supra, at 5.¹² According to some projections, they could easily constitute more than one-third of labor costs by the middle of the next century, ibid. This shift in the relative value of take-home pay versus fringe benefits dramatically alters the cost factors upon which employers and their insurers have relied in ordering their affairs. If these reasonable expectations are to be altered, that is a task for Congress, J. W. Bateson Co. v. United States ex rel. Board of Trustees, 434 U. S. 586, 593 (1978).

An expanded definition of wages would also undermine the goal of providing prompt compensation to injured workers and their survivors. Under the Act as presently interpreted, more.than 95% of all lost-time injuries are immediately compensated without recourse to the administrative process. In all but 0.1% of the cases, delays averaged less than 10 months. Report by the Comptroller General of the United States, Longshoremen’s and Harbor Workers’ Compensation Act Needs Amending 31, 41 (Apr. 1982).¹³ This situation could well change drastically if every worker could challenge the manner in which his own wages were calculated or the basis used by the Secretary to determine the national average weekly wage.¹⁴

The language of this statute, Congress’ failure to include other benefits that were common in 1972, when the statute was amended, the longstanding administrative interpretation of the Act, and the policies underlying it, all combine to support our conclusion that Congress did not intend to include employer contributions to union trust funds in the Act’s term “wages.” Accordingly, the judgment of the Court of Appeals is

Reversed.

1 Morrison-Rnudsen’s insurer, the Argonaut Insurance Co., is also a petitioner here. Both parties are referred to collectively as “petitioner.”

2 Section 909(b) requires the employer to pay a surviving husband or wife 50% of the deceased spouse’s average weekly wages and each minor child (in excess of one) 16%% of the deceased parent’s wages. In no event, however, is the amount payable to exceed 66%% of such wages. The statute also establishes a minimum level of death benefits by providing that “the average weekly wages of the deceased shall be considered to have been not less than the applicable national average weekly wage” as determined by the Secretary of Labor, § 909(e), so long as benefits do not exceed the deceased’s average weekly wage.

3 In relevant part, that agreement provides:

“Section 5. The parties hereto agree to continue to operate the Health and Welfare Fund known as Laborers’ District Council Trust Fund No. 3 for the benefit of the employees covered by this collective bargaining agreement. The Employers agree to pay to such fund an amount equal to twenty-eight cents ($.28) per hour ... for all hours worked by employees who are covered by this Agreement....

“. . . The trustees shall use the payments to the Fund for the benefit of the Subway and Rapid Transit Laborers, their families and dependents, for medical, dental, and/or hospital care, compensation for injuries, and/ or illness resulting from occupational activity, or for unemployment benefits, or for the purchase of insurance covering life and accidental death, accident disability benefits, hospitalization, surgical, medical and sickness benefits. . . .

“Section 6. Parties hereto agree to continue to operate the Pension and Disability. . . Fund known as Laborers’ District Council Trust Fund No. 3 .... The employers shall pay such fund . . . thirty-five cents ($.35) per hour for all hours worked by employees ....

“. . . The trustees shall use the payments to the Fund for Subway and Rapid Transit Laborers, and their families and shall cover all disability and pension benefits as may in the discretion of the trustees be agreed upon

“Section 9. The parties hereto agree to establish and operate a Training Fund for the purpose of insuring adequate trained manpower to perform the work covered by this collective bargaining agreement. The employers agree to pay to such fund ... an amount equal to five cents ($0.05) per hour for all hours worked by employees . . . .” App. 37-40.

4 The Director of the Office of Workers’ Compensation Programs joined Mrs. Hilyer in her petition for review of the Benefits Review Board’s decision. That Office has, however, since readopted its prior understanding that the term “wages” does not include employer contributions to union trust funds. See, e. g., Duncanson-Harrelson Co. v. Director, OWCP, 686 F. 2d 1336, 1343 (CA9 1982). Accordingly, before this Court, the federal respondent has taken a position in support of the petitioner.

5 Mrs. Hilyer also disputed the manner in which the employer had accounted for the fact that Hilyer had worked for Morrison-Knudsen for only part of the year and had worked for substantially lower wages for the remainder of the year. The employer contended that the average weekly wages should be calculated on the basis of Hilyer’s actual wages; Mrs. Hilyer claimed that under 33 U. S. C. § 910(b), his wages should be determined by reference to the wages of a fellow employee “of the same class” who had worked “substantially the whole” of the preceding year. The Benefits Review Board upheld a determination by the Administrative Law Judge in Mrs. Hilyer’s favor but modified the amount of attorney’s fees awarded under 33 U. S. C. § 928. The employer’s and insurer’s cross-appeal from that determination was consolidated by the Court of Appeals with Mrs. Hilyer’s appeal of the Board’s adverse determination on the definition of wages. The court affirmed the decision of the Board to modify the attorney’s fees award but did not address the § 910(b) issue. Petitioner did not seek review of the determination on either the attorney’s fees issue or the § 910(b) issue. Accordingly, neither determination is before us.

6 The statute was amended in 1934, 1938, 1948, 1956, 1960, 1961, and 1969 to revise or increase benefits. It was amended in 1958 to require employers to maintain a reasonably safe workplace. In 1959, it was amended to allow certain third-party actions. In 1972, the Act was comprehensively revised. See S. Rep. No. 97-498, p. 20 (1982).

7 Since Hilyer worked for Morrison-Knudsen for less than a year, it is probable that his rights in the Pension and Disability Fund did not vest.

8 It is not insignificant that the Senate Report accompanying the 1972 Amendments, which raised the maximum benefit from a specific sum to a multiple of the national average weekly wage, stated: “Today the average weekly wage for private, non-agriculture employees in the United States is $135 a week.” S. Rep. No. 92-1125, p. 4 (1972). This figure apparently comes from earnings Statistics provided by the Bureau of Labor Statistics, see United States Bureau of Labor Statistics, Handbook of Labor Statistics 1978, p. 321 (1979) (listing data from 1972). The Bureau determines “earnings” by “dividing payrolls by hours. . . . The earnings ... do not measure the level of total labor costs . . . since the following are excluded: . . . payment of various welfare benefits . . . Id., at 4. (Emphasis added.)

9 See also, e. g., 46 U. S. C. § 814 et seq. (1976 ed. and Supp. V); 39 U. S. C. §1004 (1976 ed. and Supp. V); 38 U. S. C. § 2003A (1976 ed., Supp. V); 45 U. S. C. § 836; 38 U. S. C. § 4114; 41 U. S. C. § 351 et seq.

10 Recent consideration of this issue by the Senate Committee on Labor and Human Resources is also suggestive. The Committee, which was charged with reviewing administration of the Act to, inter alia, “reduce incentives for fraud and abuse [and] to assure immediate compensation,” S. Rep. No. 97-498, p. 1 (1982), recommended changing the Act’s definition of wages “to confirm past practice and congressional intent and to reaffirm the previously settled rule that fringe benefits are excluded from the definition of ‘wages.’ ” Id., at 41. The Committee would have the definition amended to read:

“The term ‘wages’ means the money rate at which the service rendered by an employee is compensated .... The term wages does not include fringe benefits, including but not limited to employer payments for or contributions to a retirement, pension, health and welfare, . . . fund or trust for the employee’s or dependent’s benefit . . . .” Id., at 3. (Emphasis added.)

11 Mrs. Hilyer asked only for the inclusion in wages of Morrison-Knudsen’s contributions to union trust funds. Her argument appears to imply, however, that every benefit of her husband's employment should be evaluated to determine his wages. This would seem to require the Secretary of Labor to include in his determination of the national average weekly wage such diverse elements as employer contributions to Social Security, administrative costs of maintaining savings and thrift plans, and the costs of Christmas parties, company outings, or gold watches.

12 See also Handbook of Labor Statistics, supra n. 8, at 388-393. The Chen figures are based on data obtained from the United States Department of Commerce. The figures in the Handbook are not identical to Chen’s because, as discussed above, the Departments of Commerce and Labor take different views on what benefits are to be included in the calculation of compensation.

13 The report states that in the 5% of eases that are referred to an administrative law judge, delays average 4-4.5 months, Report by the Comptroller General, at 41. The 1% of cases that are appealed to the Benefits Review Board, id., at 5, are resolved on the average in 10 months, id., at 41. Only 0.1% of all lost-time injuries reach the Courts of Appeals, id., at 5.

14 It is argued that the standard of living of the injured worker’s family will decrease if employer contributions are not included in wages because the family will be required to use a portion of their compensation benefits to purchase health, disability, training, and pension benefits for themselves. This argument is not well taken in the context of survivor benefits; upon the death of the worker, disability, pension, and training benefits have no relevance. Furthermore, under respondent Hilyer’s interpretation of the statute, she would be entitled to a death benefit (had her husband’s interest in his pension plan vested) as well as the funds necessary to purchase the benefit she has just received. We do not think Congress could have intended to provide this double “recovery.” While it is true that once the worker’s employment ends, his survivors will be forced to provide for their own health insurance, we do not believe that a statute as complex as this one should be interpreted in light of this single factor.