Nebraska: Per Diem for Out-of-State Travel Not Part of Average Weekly Wage

The Nebraska Court of Appeals affirmed the exclusion from a construction worker’s average weekly wage of a per diem paid when the worker performed services outside of Nebraska, on the basis that the Compensation Court’s finding that it was fixed at the time of hiring and was a real and definite economic gain to the worker was not clearly wrong.  The appellate court acknowledged the worker’s testimony that he was paid $20 per day extra for out-of-state work and that he did not have to submit any receipts for travel related expenses to get the additional daily sum.  The court added, however, that the worker had not produced any evidence as to his actual out-of-state expenses and had testified that sometimes he came out ahead with the per diem and sometimes he did not.  The lower court had not clearly erred in finding the per diem offset the worker’s travel expenses.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See Fayle v. Thiesen Constr., 2014 Neb. App. LEXIS 142 (Aug. 26, 2014) [2014 Neb. App. LEXIS 142 (Aug. 26, 2014)]

See generally Larson’s Workers’ Compensation Law, § 93.01 [93.01]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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