Def. of Comp.--does it include work comp. payments

[Guest Maxwell]

I'm trying to determine whether or not work comp. payments would be included as compensation when determining avg. comp. I know that some plans specifically enumerate whether these payments are included (usually excluded), but in this instance I'm working with a bad definition:

"Compensation" means the sum of payments made to an employee for performance of personal services, as certified on a written payroll of an employing department....

It would be easier if the def. included only taxable wages, because in that instance, work comp. payments are generally not taxable under sec. 104.

My hunch is that work comp would be excluded because it is generally considered payment for injuries and not payment for personal services, but I could be wrong...I just haven't found any good guidance or cases setting forth as much...

Any ideas?...thanks,,,

[AndyH]

Suggest checking the hour of service definition. It need not be counted as hours, but this depends upon the document referencing the correct DOL regulation.

A client of ours was involved in litigation on this issue.

If hours are specifically excluded for workers comp, that is one clue of the intent.

Also, there are two other areas to pursue. Is the Worker's Comp paid from by an insurance company or the employer ("self insured"), and if from the employer is it in fact paid "on a written payroll"?

And is it paid "for performance of personal services" or is it instead paid to satisfy the requirement of state workers compensation law? The latter is specifically distinguished in the DOL hour of service regulations.