Employers Reinsurance Corp. v. Beaty , 1979 Tex. App. LEXIS 3089 ( 1979 )

J. CURTISS BROWN, Chief Justice.

In this workers’ compensation case the issue is whether money received by an employee for holidays, vacations, and disability is included within the scope of “average daily wage” as defined in the Texas Workers’ Compensation Act.

Appellee, James Beaty, sued appellant, Employers Reinsurance Corporation, for compensation for work related back injuries. After trial to the jury, the trial court, upon appellee’s motion, disregarded the answer to Special Issue 13, which provided:

Find from a preponderance of the evidence the average daily wage which plaintiff earned during the days that he actually worked in such year .

Answer: $51.40.

Instead, the trial court found as a matter of law that appellee’s average daily wage prior to injury was $72.71. The trial court’s finding was based on the following answers to interrogatories propounded to appellant:

9. State the total number of days actually worked by Plaintiff for Shell Oil Company in the 12 months immediately preceding December 29, 1975 .

[Response] Full days worked 212 . . .

10. State the total amount of money paid Plaintiff by Shell Oil Company in the 12 month period immediately preceding December 29, 1975.

[Response] $15,416.61.

Appellant contends that the amount “paid” represents 15 days disability, four weeks paid vacation, and nine paid holidays in addition to remuneration for 212 full days appellee “actually worked.” It is appellant’s position that the amount “paid” to appellee should be reduced to the amount “earned” by appellee on the days he “actually worked” by deducting the pay for disability, holidays and vacations. However, we find as a matter of law that remuneration for holidays, vacations, and disability constitute part of appellee’s “wages” for the purpose of determining average daily wage. See, Morris v. Transport Insurance Company, 487 S.W.2d 780 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.). The relevant statute provides:

“Average weekly wages” shall mean . If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same employer or not, for at least two hundred ten (210) days of the year immediately preceding the injury, his average weekly wage shall consist of three hundred (300) times the average daily wage or salary which he shall have earned during the days that he actually worked in such year, divided by fifty-two (52) . . .

Said wages shall include the market value of board, lodging, laundry, fuel and other advantage which can be estimated in money which the employee receives from the employer as a part of his remuneration.

Tex.Rev.Civ.Stat.Ann. art. 8309, § 1(1) and (4) (1967) (emphasis added).

Hence, the trial court correctly determined that the jury answer did not comply with the requirements of the statute and that the proper response was to be obtained by dividing the number of days actually worked, admitted by appellant to be 212 days, into the amount of wages earned, admitted by appellant to be $15,416.61, resulting in an average daily wage of $72.71. The judgment appealed from is affirmed.

Affirmed.