NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOHN MAUZY PITTMAN, JUDGE

DIVISION III

JAMES N. COOK

APPELLANT

V.

GRAVES OIL COMPANY

APPELLEE

CA00-1202

July 5, 2001

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E513080]

AFFIRMED

James Cook, a co-owner and salaried employee of Graves Oil Company, suffered a compensable back injury on May 1, 1989, when an oil drum overturned in the back of his truck and he returned it to its upright position. In 1995, Graves Oil contested the need for further chiropractic treatment and any permanent disability benefits in excess of five percent. The administrative law judge found that Cook had sustained a five-percent permanent impairment and a twenty-five-percent wage-loss disability. The Workers' Compensation Commission affirmed the finding of permanent impairment but found that there was no wage-loss disability. On appeal, Cook contends that the Commission erred in failing to consider the value of income derived from use of company equipment as part of his "wage" in determining loss of earnings. We affirm.

Cook testified that before his injury he was a welder who physically worked on oil wells and in the fields. He climbed derricks, used large wrenches and prongs, drove a tractor, dug large holes, climbed electrical poles to repair damaged equipment, and repaired leaking pipelines. He also contracted himself out to other oil companies and performed similar manual duties for them, using tools and equipment owned by Graves Oil, servicing as many as twenty wells and earning as much as $2000 per month.

Cook further testified that he was unable to work for two to four days, but that it did not affect his income when he returned to work for Graves Oil because he was on salary. He testified that he had to restrict his activities to those that his back would allow him to do, and that after being injured he could not perform the manual part of his job. He said that his position at Graves Oil had become strictly an administrative one, in which he acted as an inspector and observer in an advisory and decision-making capacity. He said that he was unable to continue to perform any of the work he formerly did for other companies as an independent contractor.

The Commission's decision included the following discussion of Cook's lost wages:

As we interpret the "gratuities included in wages" under Ark. Code Ann. § 11-9-102(8), the only gratuities included as wages are those gratuities which are received from others than the employer. In the present matter, the claimant appears to argue that wages should include an alleged gratuity from the employer. This argument is without merit, in that the plain meaning of the statute characterizes "gratuities" as those received "from others than the employer." Clearly, the gratuity (free use of company tools and equipment) appellant seeks to have factored into a determination of his wages must not be deemed a gratuity within the meaning of Ark. Code Ann. § 11-9- 102(8) (1987) because this alleged gratuity was not received from others than the employer.

The respondents assert in the present matter that the claimant returned to his same job after the injury earning the same amount of money. We note that the claimant's attorney states on the record, "he's still employed by Graves Oil Company making wages in excess of what he made at the time." See, Transcript, p. 4. We also note that even though Dr. Giles opined in 1994 that the claimant was entitled to a 5% rating, Dr. Giles never assigned any permanent work restrictions. The Full Commission finds that this literate 47 year old man, who is making more money now than before his injury, has failed to prove entitlement to wage loss.

The Commission concluded that under Ark. Code Ann. § 11-9-522 (1987), respondents had met their burden of proving that Cook had returned to work for Graves Oil at wages equal to or greater than his average weekly wage at the time of the accident.

Arkansas Code Annotated section 11-9-522(b)(2), which was in effect at the time of Cook's primary injury, states that an employee shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment if, subsequent to his injury, he has returned to work, has obtained other employment, or has a bonafide and reasonably obtainable offer to be employed at wages equal to or greater than his average weekly wage at the time of the accident. Arkansas Code Annotated section 11-9-102(8) (1987), to which the Commission referred in its opinion, defines wages as follows:

"Wages" means the money rate at which the service rendered is recompensed under the contract of hire in force at the time of the accident, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer and including gratuities received in the course of employment from others than the employer when such gratuities are received with the knowledge of the employer. [Emphasis added.1]

Cook argues that his free use of Graves Oil's expensive tools to service other owners' oil wells constituted a "similar advantage" in line with board, rent, housing, or lodging under section 11-9-102(8). He views this advantage as readily convertible into cash value of $2000 a month, i.e., the amount of additional income that he allegedly earned, and he concludes that his wage-earning potential diminished when his injury rendered him unable to perform this extra work.

We need not decide whether the Commission should have considered the free use of company tools as an "advantage" rather than a "gratuity" within the meaning of wages found in Arkansas Code Annotated § 11-9-102(8). Even were we to agree with that aspect of Cook's argument, we still could not agree with his further argument that the income derived through this free use was readily convertible into value for the purpose of determining lost wages. The pertinent part of section 11-9-102(8) defines wages as the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer.2 Here, any advantage received from the employer would be use of the company tools; it would not be the additional income derived from their use. However, Cook presented no evidence, such as fair rental value, to prove the cash value of use of the tools.

Because the abstracted record is devoid of proof of the value of using the tools, and in light of testimony that Cook's actual salary had not decreased, we affirm the Commission's finding that Cook failed to prove entitlement to wage-loss disability.3

Affirmed.

Neal, J., agrees.

Bird, J., concurs.

SAM BIRD, Judge, concurring. I agree with Judges Pittman and Neal that this case should be affirmed, but not for the reasons set forth in Judge Pittman's opinion.

The dispute between the parties to this appeal is whether the extra money Cook earned using Graves's tools in the performance of contracts with persons other than the employer constitutes "wages" within the meaning of Arkansas Code Annotated section 11-9-102 (1987). Cook argues that this extra income is wages because it is an advantage that is similar to board, rent, housing, and lodging. On the other hand, Graves argues in support of the Full Commission's conclusion that Cook's free use of Graves's tools is not a gratuitywithin the meaning of section 11-9-102 because the benefit to Cook (the free use of tools) was received from Graves, the employer, and not from "others than the employer."

In my view, this case should be affirmed because appellant has not made a persuasive argument or cited convincing authority for the proposition that extra income he derived from using Graves's tools to perform services for someone other than Graves constitutes an advantage to Cook that is similar to board, rent, housing, or lodging within the meaning of section 11-9-102. Today's opinion avoids a resolution of the issue argued by the parties and disposes of the case on an issue, the lack of evidence to prove the cash value of use of the tools, not raised by either party and not addressed by the Commission.

1 Although Act 796 of 1993 amended this section, it did not change the "advantages" language that we have italicized.

2 See Tabor v. Levi Strauss & Co., 33 Ark. App. 71, 76-77, 801 S.W.2d 311, 314-15 (1990), for our discussion of board, rent, housing, or lodging as benefits with a present value readily converted into a cash equivalent.

3 The concurrence points out that Cook's utter failure to prove the value of the use of the tools was not raised by Graves Oil or addressed by the Commission. It is true that, ordinarily, we will not affirm the Commission for a reason other than those stated in the Commission's opinion. However, that is because the ordinary case turns on resolution of fact questions, and the Commission is obligated to find the facts and this court is prohibited from doing so. In this case, however, our conclusion is that the income that one might derive from combining an advantage provided by his employer with his personal labor and expertise is simply not proof of the value of the thing given. This conclusion does not require any fact finding or exercise of discretion left to the province of the Commission; our conclusion is simply one of law. Therefore, we are not prohibited from affirming the Commission's decision on this basis.