No. 81-414
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
CONRAD GEE,
Claimant and Respondent,
-vs-
CARTWHEEL RESTAURANT, Employer,
and
STATE COMPENSATION INSURANCE FUND,
Defendant and Appellant.
Appeal from: Workers' Compensation Court, The William E.
Hunt, Judge presiding.
Counsel of Record:
For Appellant:
William Bailey Dunn, Helena, Montana
For Respondent:
Albert A. Frost; Page Wellcome, Bozeman, Montana
Submitted on Briefs: December 3, 1981
Decided: March 25, 1982
MAR 2 5 19@
Filed:
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The State Compensation Insurance Fund appeals from
the workers' Compensation Court's determination that a
claimant's wage base for temporary total disability benefits
should include gratuitous pay from a prior job that he had
resigned from.
On July 19, 1980, the claimant injured his right arm in
the course of his part-time employment as a dishwasher at
the Cartwheel Restaurant in Bozeman, Montana. The State
Compensation Insurance Fund accepted liability for the
injury and paid temporary total disability benefits based
upon the claimant's wages at the Cartwheel Restaurant. The
claimant then petitioned the Workers' Compensation Court to
order that he be paid benefits based upon his wages at the
Cartwheel Restaurant, as well as the Montana State University
Book Store, where he had been employed full-time since
October 23, 1969, but had resigned on June 30, 1980. During
July and August, 1980, however, he continued to receive his
usual monthly salary and benefits from the Book Store because
he had been a long-term employee.
The Workers' Compensation Court determined from the
parties' stipulated facts that the claimant continued to be
a Book Store "employee" within the meaning of the Workers'
Compensation Act through August 31, 1980, and that his wage
base for the computation of temporary total disability
benefits should include his earnings from the Book Store. The
State Compensation Insurance Fund appeals that determination,
contending that the claimant's earnings from the Book Store
should not be included because a loss of those wages is a
condition precedent to an award of temporary total disability
benefits under the Workers' compensation Act.
We hold that the gratuitous wages received from the
Book Store should not be included in the computation of the
claimant's temporary total disability benefits.
The legislature has defined a temporary total disability
as one ". . . that results in total loss of wages and exists
until the injured worker is as far restored as the permanent
character of the injuries will permit." Section 39-71-
1 6 1 9, A . Weekly compensation benefits for an injury
which produces total temporary disability shall be 66 2/3 percent
of the wages received at the time of the injury. Section
39-71-701(1), MCA. The legislature has defined wages as the
average gross earnings received by the employee at the time
of the injury - - usual weekly hours of employment.
for his -
Section 39-71-116(20), MCA.
The stipulated facts establish that although the claimant
was receiving his normal monthly wages from the Book Store
for July and August 1980, he was no longer actually employed
there, and did not lose those gratuitous wages upon becoming
disabled. The claimant, however, argues that the Book
Store's payment of his usual monthly wages should be considered
presumptive of an employer/employee relationship which
entitles him to compensation benefits based upon those wages
also.
The general rule is that earnings from concurrent
employments may be combined if the employments are sufficiently
similar so that a disabling injury at one employment would
necessarily disable the employee in respect to the other
employment. 2 Larson Workmen's Compensation - 5 60.31(a);
Law
Catteyson v. Falls Mobile Home Center (1979), - Plont. -I
599 P.2d 341, 36 St.Rep. 1443; Walter v. Public Auction
Yards (1979), Mont . , 592 P.2d 497, 36 St.Rep. 553.
However, there can be no computation of a workers' compensation
award based on concurrent employment unless there was such
employment. Beckinsale v. Charles H. Greenthal, Inc. (1967),
277 N.Y.S.2d 426, 27 App.Div.2d 129. Applying even the
most liberal statutory construction favoring the claimant,
to conclude that his average gross earnings should include
wages from this job at which he is no longer employed does
not fairly or reasonably represent wages lost from his usual
weekly hours of employment. The amount of compensation must
bear some reasonable relation to the loss sustained on
account of disability.
We have, in the past, allowed the aggregation of earnings
from separate, concurrent employments in the determination
of permanent disability benefits. See Catteyson v. Falls
Mobile Home Center, supra; Walter v. Public Auction Yards,
supra; Walker v. H. F. Johnson, Inc. (1978), - Mont . -I
591 P.2d 181, 35 St.Rep. 1667. However, any aggregation of
earnings must be done pursuant to the applicable statutory
definitions. In providing compensation for a temporary
total disability (section 39-71-116(19), MCA), the legislature
chose to restrict the compensation to that based upon loss
of wages, rather than for a loss of earnings or earning
capability as is provided in the statutory definitions of
permanent partial disability (section 39-71-116(12), MCA) and
permanent total disability (section 39-71-116 (13) , MCA) .
In essence, the Workers' Compensation Court has deter-
mined that the claimant is entitled to temporary total
disability benefits based upon lost wages for two concurrent
jobs, while the evidence in no way establishes that the
claimant was actually concurrently employed at the Book
Store or had suffered a loss of Book Store wages. To hold
that the claimant should receive benefits based upon more
weekly hours than he has actually ever worked does not
represent compensation based upon his usual weekly hours of
-
employment. This case is reversed and remanded for proceedings
consistent with this opinion.
We Concur:
Chief Justice