Horse boarding is not included in calculation of average weekly wage and is not a fringe benefit.

In Flores, the ALJ ordered that the average weekly wage (“AWW”) calculation for the claimant include a fringe benefit. Here, the ALJ included the value the claimant derived from boarding his multiple horses with his employer. Respondents sought review of this order with the Industrial Claim Appeals Office (the “Panel”). Respondents argued that the claimant’s calculated AWW should not include value of boarding his animals, as it was not a fringe benefit that could be considered part of claimant’s “wage.” The issue in this case was what fringe benefits can be considered and valued in calculating an injured employee’s AWW.

The facts in Flores are as follows: The claimant was working as a pen rider when the horse he was riding slipped on ice, causing the two to fall to the ground. The injury was found compensable and soon after the fall, the employer filed a general admission of liability (“GAL”), which admitted to an average weekly wage of $718.63. This claim went to hearing, in part, to determine whether an onset of symptoms after the fall was related to the work incident. The ALJ not only found that the onset of symptoms was work-related, but also recalculated the claimant’s AWW. As a benefit of his employment, the claimant was able to board his horses with employer. The ALJ calculated the economic benefit of that boarding and included that calculation in the claimant’s AWW. Respondents sought review of the ALJ’s decision regarding both the relatedness of the newer symptoms and the AWW calculation. The Panel did not overturn the findings pertaining to the symptoms, as the ALJ made these findings based on substantial evidence. However, the Panel did find that the ALJ had made an error in recalculating the claimant’s AWW.

The Panel explained that the calculation of AWW, when including fringe benefits, is dictated by statute. As it specifically relates to this case, Section §8-40-201(19)(b), C.R.S. provides that “wages” are to include the “reasonable value of board, rent, housing, and lodging received from the employer, the reasonable value of which shall be fixed and determined from the facts by the division in each particular case, but does not include any similar advantage or fringe benefit not specifically enumerated in this subsection (19).” In the calculation of AWW, the ALJ included boarding of claimant’s horses. However, the Panel explained that the “board, rent, housing, and lodging” provision did not apply to animals owned by an employee. For that reason, the ALJ’s calculation did not adhere to this statutory requirement and was therefore improper. The boarding of claimant’s horses was not a value that could be included in the calculation of his AWW. For that reason, the Panel reversed the ALJ’s decision only to the extent it included the cost of boarding horses in the claimant’s average weekly wage.

Flores v. Timmerman & Sons Feeding Co., W.C. No. 5-100-090-003 (I.C.A.O. Dec. 16, 2020).

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February 2021 Newsletter