No. 85-240
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
LYDIA Lave,
Claimant and Appellant,
-VS-
SCHOOL DISTRICT # 2 , Employer,
and
STATE COMPENSATION INSURANCE FUND,
Defendant and Respondent.
APPEAL FROM: The Workers' Compensation Court, The Honorable
Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kelly & Halverson, P.C.; Sheehy, Prindle & Finn,
Billings, Montana
For Respondent:
Crowley Law Firm; William J. Mattix, Billings, Montana
Submitted on Briefs: Oct. 10, 1985
Decided: January 26, 1986
Filed:
JIM 2 i3 1986
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Lydia Lave appeals a Workers' Compensation Court order
awarding her permanent total disability benefits based on ten
hours of work per week and denying a lump sum payment of her
benefits. The issues on appeal are; (1) whether the lower
court erred in basing the benefits on appellant's usual hours
of employment rather than her earning capability, and
(2) whether the lower court erred in denying appellant a
lump sum award. We affirm the order of the Workers'
Compensation Court.
Appellant has worked on and off at various unskilled
labor positions since her childhood. Prior to 1977, these
jobs generally entailed forty hours of work per week and paid
the minimum wage or, in one instance, slightly more than the
minimum wage. In 1977, appellant began working for Billings
School District No. 2. At this job, appellant worked ten
hours per week at $3.20 an hour. In March 1979, appellant
was injured while working at her job at a Billings school and
as a result, she is permanently, totally disabled. The
School District's insurer, the respondent, accepted liability
for wage and medical benefits under the Workers' Compensation
Act. Since June 7, 1979, respondent has paid appellant
temporary total disability benefits of $21.33 per week.
Appellant has also received lump sum advances totaling
$5,100.
In December 1984, appellant filed a petition with the
Workers' Compensation Court requesting increased permanent
total disability benefits and a lump sum payment of her
benefits. Depositions were taken and a hearing was held on
the petition in February 1985.
At the hearing, appellant testified that at the time of
her injury she intended to quit her job at the school and
find full-time employment. She stated that she was sure she
could get a full-time job. Thus, she contends that her
benefits should not be based on her part-time position.
Appellant testified that she wanted a lump sum payment so she
could invest the money. Neither appellant nor her husband
had a specific investment in mind, nor had they talked with
financial advisors or investment counselors. Both testified
that they had outstanding debts and appellant's husband
calculated their debts as at least $4,650.
The Workers' Compensation Court denied appellant's
request for increased benefits and a lump sum payment. This
appeal followed.
The first issue is whether the lower court erred in
basing appellant's permanent total disability benefits on her
usual hours of employment rather than her earning capabilty.
Appellant cites § 39-71-116 (13), MCA, for the proposition
that her disability benefits should be based on her earning
capability. Section 39-71-116 (13), MCA, defines "permanent
total disability'' as "a condition resulting from injury as
defined in this chapter that results in the loss of actual
earnings or earning capability ... " (Emphasis added. )
Appellant asserts that she intended to get a job working
forty hours a week and could have secured such a position.
Therefore, she contends that under § 39-71-116(13), MCA, her
benefits should be based on forty hours of work a week. This
argument is without merit.
Notwithstanding the fact that the statutory definition
of "permanent total disability" mentions earning capability,
benefits for such a disability are based on the usual hours
of employment of the worker and not on earning capability.
This is clear from the statutes. Appellant worked ten hours
a week for the school. Section 37-71-702(l), MCA, directs
that,
Weekly compensntj-on benefits for injury
producing total. permanent disability
shall be 66 2/3% of the wages received
at the time of the injury. The maximum
weekly compensation benefits shall not
exceed the state's average weekly wage.
Total permanent disability benefits shall
be paid for the duration of the worker's
total permanent disability.
Section 39-71-116(20), MCA, defines wages as:
. .. the average gross earnings received
by the employee - - - - - the injury
at the time of
for - usual hours - employment - a
- the of in
week, and overtime is not to be
considered ...(Emphasis added.)
The Workers' Compensation Court correctly computed
appellant's benefits based on ten hours a week.
The second issue is whether the lower court erred in
denying appellant a lump sum pavment of her benefits.
Section 39-71-741, MCA, provides that the award of a lump sum
payment is within the discretion of the Workers' Compensation
Court. The standard of review is clear:
Lump sum settlements are granted in
exceptional circumstances. Outstanding
indebtedness, pressing need, or
circumstances in which the best interests
of the claimant, his family and the
general public are served justify such a
settlement. [Citations omitted.] The
decision to award or deny a lump sum
settlement will not be interfered with on
appeal unless there has been an abuse of
discretion. The Workers' Compensation
Court will be presumed correct and
affirmed if supported by substantial
evidence, and reversed only if the
evidence clearly preponderates against
its findings. [Citations omitted.] Wide
d-iscretion will be afforded the Workers'
Compensation Court in its determination.
(Citations omitted.)
Hock v. Lienco Cedar Products (Mont. 1981), 634 P.2d 1174,
1178-79, 38 St.Rep. 1598, 1603-04.
In the instant case, appellant advances two principal
reasons for requesting a lump sum payment. They are;
(1) appellant and her husband have outstanding debts, and
(2) appellant and her husband wish to invest the money and
receive a return which would be greater than the weekly
benefits. Neither appellant nor her husband have proposed a
concrete, specific plan of investment. Neither of the two
have personally contacted an investment or financial
counselor. An investment counselor did testify for appellant
on the return that appellant could expect if she was granted,
and invested, a lump sum award. In Kent v. Sievert (1971),
158 Mont. 79, 81, 489 P.2d 104, 105, this Court held that
where a claimant requested a lump sum payment proposing "to
put it 'on interest,'" that proposed use was insufficient to
warrant a lump sum payment. Kent is still the law and
appellant's desired investment is not reason, by itself, to
award her a lump sum payment. Otherwise, any claimant
desiring a lump sum award could. secure one by proposing to
invest it. This would defeat the statutory intent of
Montana's Workers' Compensation scheme, as lump sum awards
are to be the exception. Section 39-71-741, MCA.
Here, appellant also desires to pay off her family's
outstanding debts. However, we note that appellant has
received lump sum advances totaling $5,100. These advances
approximate the outstanding debts which appellant and her
husband testified their family had.
Given the Kent case and the lump sum advances already
made to appellant, we hold that the Workers' Compensation
Court did not abuse its discretion in denying a lump sum
payment to appellant.
Affirmed.
We concur: /+
/cMief
.-Justice
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Justices