No. 84-549
I N THE SUPREME COURT O F THE STATE O F MONTANA
1985
S H I R L E Y RUSSO COLES,
C l a i m a n t and R e s p o n d e n t ,
SEVEN ELEVEN STORES,
Employer,
and
AMERICAPJ MOTORISTS INSURAPJCE
COMPANY,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: Workers' Compensation Court, The Honorable Timothy
Reardon, Judge p r e s i d i n g .
COUNSEL OF RECORD:
For A p p e l l a n t :
K e l l e r , R e y n o l d s , D r a k e , S t e r n h a g e n & Johnson; Paul
T. K e l l e r , H e l e n a , Montana
For R e s p o n d e n t :
C h a r l e s Smith, Helena, Montana
-- -
S u b m i t t e d on B r i e f s : May 2 3 , 1985
Decided: A u ~ " s ~2 0 , 1985
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
The insurer, American Motorists Insurance Company,
appeals a decision of the Workers' Compensation Court
ordering it to pay the claimant, Shirley Russo Coles,
permanent total disability benefits rather than permanent
partial disability benefits; setting the rate of compensation
at $123.39 per week; and awarding costs, attorneys' fees and
a 20% penalty to the claimant. We affirm.
On October 10, 1981, while working as a clerk in a
convenience store, the claimant fell from a ladder, struck
her mid and lower back on a sink and then hit the floor on
her back and left side of her head. Following an examination
at the hospital emergency room, she was released to go home.
She attempted to return to work the next week, but after
about one day she had to leave because her neck was stiff and
sore and she had developed a severe headache.
The Workers' Compensation Court found that the claimant
had fibromyositis, a significant soft tissue injury. Relying
primarily on the treating physician's statements, the judge
also found that the claimant's condition was as far restored
as her injuries would permit on April 10, 1983. He found
that she had a 15% whole person impairment. From her medical
condition and the presence of non-medical elements of
disability such as her lack of specialized training and
limited work experience, the court concluded the claimant was
temporarily totally disabled until April 10, 1983 and, "until
vocationally retrained, is permanently totally disabled as a
result of her industrial accident." (Emphasis in original. )
The insurer calculated the claimant's rate of
disability payments based on a forty-hour work week. When
she began work in August 1981, her scheduled hours of
employment were 2:00 to 10:30 p.m., seven days a week, with
additional hours as needed to fill in for absent employees.
She worked the following hours after being hired:
straight time hours overtime hours
1 week 57.75
2 weeks 80.00
2 weeks 72.00
2 weeks 80.00
fina 1 week 29.00
The court below determined that her overtime hours were part
of her usual hours and should be included in the calculation
of disability benefits.
The insurer terminated the claimant's temporary total
disability payments on about October 9, 1982. Thereafter, it
paid 25 weeks of permanent partial disability based on a
physician's report estimating her medical impairment rating
at 5%. The report did not refer to her ability to return to
work. The insurer refused to pay any further benefits
despite repeated requests by the claimant. On May 21, 1984,
the same day an order was issued setting a hearing date on
the claimant's petition for an emergency hearing, the insured
paid part of the back payments due. Just prior to the
hearing date, it paid the remaining back payments to
claimant. The Workers' Compensation Court found the
insurer's termination of benefits and its refusal to pay
permanent total disability benefits unreasonable.
The claimant's petition came to trial before the
Workers' Compensation Court on September 12, 1984. On
November 20, 1984 t h e c o u r t e n t e r e d its findings of fact,
conclusions of law and judgment o r d e r i n g t h e i n s u r e r t o pay
t h e c l a i m a n t t e m p o r a r y t o t a l d i s a b i l i t y b e n e f i t s from O c t o b e r
11, 1982 u n t i l A p r i l 9, 1983 and p e r m a n e n t t o t a l d i s a b i l i t y
b e n e f i t s from A p r i l 1 0 , 1983 u n t i l f u r t h e r o r d e r e d ; o r d e r i n g
the payment of compensation benefits at $123.39 per week;
o r d e r i n g t h e i n s u r e r t o p a y t h e c l a i m a n t a 20% i n c r e a s e i n
the rate as a penalty; awarding the claimant costs and
attorneys' fees; and ordering the Division of Workers'
Compensation t o determine if vocational rehabilitation was
possible f o r t h e claimant.
The insurer raises the following issues on appeal:
(1) Did t h e Workers' Compensation C o u r t e r r by f i n d i n g
the claimant permanently totally disabled rather than
permanently p a r t i a l l y d i s a b l e d ?
(2) Did the Workers' Compensation Court err by
including overtime hours when calculating the rate of
compensation?
( 3 ) Did t h e Workers' Compensation C o u r t e r r by a w a r d i n g
a penalty t o the claimant?
When r e v i e w i n g a d e c i s i o n o f t h e Workers' Compensation
Court, t h e standard i s "whether t h e r e i s s u b s t a n t i a l evidence
t o s u p p o r t t h e f i n d i n g s and c o n c l u s i o n s o f t h a t c o u r t . We
c a n n o t s u b s t i t u t e o u r judgment f o r t h a t o f t h e t r i a l c o u r t a s
t o w e i g h t o f t h e e v i d e n c e on q u e s t i o n s o f f a c t . Where t h e r e
i s s u b s t a n t i a l e v i d e n c e t o s u p p o r t t h e W o r k e r s ' Compensation
Court, t h i s Court cannot overturn t h e d e c i s i o n . " (Citations
omitted.) Hume v . S t . R e g i s P a p e r Company ( 1 9 8 0 ) , 1 8 7 Mont.
5 3 , 5 9 , 608 P.2d 1 0 6 3 , 1066.
Section 39-71-116(13), MCA defines permanent total
disability as:
" a c o n d i t i o n r e s u l t i n g from i n j u r y a s
defined i n t h i s chapter t h a t r e s u l t s i n
the loss of actual earnings o r earning
capability t h a t e x i s t s a f t e r the injured
worker is as far restored as the
permanent c h a r a c t e r o f t h e i n j u r i e s w i l l
p e r m i t and which r e s u l t s i n t h e w o r k e r
h a v i n g no r e a s o n a b l e p r o s p e c t o f f i n d i n g
r e g u l a r employment o f any k i n d i n t h e
normal l a b o r m a r k e t . D i s a b i l i t y s h a l l be
s u p p o r t e d by a p r e p o n d e r a n c e of m e d i c a l
evidence."
I n t h e c a s e a t b a r , t h e t e s t i m o n y and r e p o r t s o f t h e t r e a t i n g
physicians supported t h e c o u r t ' s f i n d i n g s on t h e c l a i m a n t ' s
disability. The i n s u r e r ' s m e d i c a l r e p o r t , a l t h o u g h s t a t i n g a
different conclusion, contained no medical findings that
contradicted those of the treating physicians. The
disability was supported by a preponderance of medical
evidence.
Disability has non-medical as we11 as medical
components. I n Metzger v . Chemetron Corp. (Mont. 19841, 687
P.2d 1033, 1035, 4 1 St.Rep. 1788, 1790-1791, we h e l d that:
"To establish the existence of no
r e a s o n a b l e p r o s p e c t o f employment i n t h e
normal l a b o r m a r k e t , a c l a i m a n t must
introduce s u b s t a n t i a l c r e d i b l e evidence
o f (1) what j o b s c o n s t i t u t e h i s normal
labor market, and (2) a complete
i n a b i l i t y t o p e r f o r m t h e employment and
d u t i e s a s s o c i a t e d with t h o s e jobs because
of h i s work-related i n j u r y . " (Citations
omitted. )
Once a claimant presents evidence showing there is no
reasonable prospect of employment, "the burden of proof
shifts to the employer to show that suitable work is
available." Metzger, 687 P.2d at 1036. The c l a i m a n t had
little job experience and no specialized training. Her
physician, who was i n a p o s i t i o n t o have t h e most c o m p l e t e
p i c t u r e o f h e r p h y s i c a l condition, t e s t i f i e d t h a t she should
n o t r e t u r n t o t h e t y p e of work i n which s h e had e x p e r i e n c e .
This evidence sufficiently showed t h a t t h e c l a i m a n t had no
reasonable job prospects in the labor market. The employer
failed to carry the subsequent burden of proof when it did
not introduce any evidence to establish suitable work was
available. We hold that the Workers' Compensation Court's
decision finding the claimant permanently and totally
disabled is supported by substantial evidence, particularly
in light of the court's referral of the claimant for a
vocational rehabilitation evaluation pursuant to section
39-71-1001 et. seq., 14CA.
Section 39-71-116(20), MCA defines wages as "the
average gross earnings received by the employee at the time
of the injury for the usual hours of employment in a week,
and overtime is not to be considered ... " The insurer
argues, in the second issue, that section 39-71-116 (20), MCA
should be strictly construed so that the claimant's regular
overtime hours are not considered when computing her rate of
compensation. The claimant argues that the words "usual
hours of employment" and "overtime" as used in this statute
are conflicting when a person's usual hours includes overtime
hours. The court below acknowledged the conflict and
concluded that the statute was ambiguous because its
reference to overtime does not indicate whether this means
overtime earnings are not to be considered, overtime hours
are not to be considered, or both. We agree that the statute
is ambiguous under these circumstances.
When construing a statute, every provision must be
given meaning or effect if possible. State v. District Court
of the First Judicial Dist. in and for Lewis and Clark County
(1926), 77 Mont. 290, 250 P. 973. Further, the Court is
under a duty to construe the Workers' Compensation Act
liberally, section 39-71-104, MCA, and resolve ambiguity in
favor of the injured worker. Gaffney v. Industrial Accident
Board (1955), 129 Mont. 394, 287 P.2d 256. The
interpretation that gives effect to a l l the provisions and
also resolves the ambiguity in favor of the injured worker is
one which includes overtime hours that are part of a
claimant's usual hours of employment at the straight pay rate
in the benefit calculation. Thus, overtime will generally be
excluded in determining the usual hours of employment.
However, if the work record shows that the employer hired the
claimant expecting overtime work and the claimant actually
worked overtime on a consistent and regular basis, as in the
case at bar, then that overtime becomes part of the usual
hours of employment. The overtime will not he included at
the premium rate, but as extra hours at regular pay.
We construe section 39-71-116(20), MCA to mean overtime
premium earnings are not considered in calculating wages and
that the phrase "usual hours of employment" excludes overtime
hours from the calculation unless the overtime is
consistently and regularly part of the claimant's work
record, as in the case at bar.
The final issue concerns the penalty assessed for the
unreasonable conduct of the insurer. Section 39-71.-2907, MCA
provides :
"When payment of compensation has been
unreasonably delayed or refused by an
insurer, either prior or subsequent to
the issuance of an order by the workers'
compensation judge granting a claimant
compensation benefits, the full amount of
the compensation benefits due a claimant,
between the time compensation benefits
were delayed or refused and the date of
the order granting a claimant
compensation benefits, may be increased
by the workers' compensation judge by
20%. The question of unreasonable delay
or refusal shall be determined by the
workers' compensation judge, and such a
finding constitutes good cause to
rescind, alter, or amend any order,
decision, or award previously made in the
cause for the purpose of making the
increase provided herein."
Whether the insurer's conduct was unreasonable is a factual
question and on appeal, a finding of unreasonableness will
not be overturned if supported by substantial evidence.
Wight v. Hughes Livestock Co., Inc. (Mont. 1981), 634 P.2d
1189, 38 St.Rep. 1632. A review of the record shows
sufficient evidence was presented to support this finding.
We therefore will not overturn the Workers' Compensation
Court's judgment awarding claimant the 20% penalty for the
insurer's unreasonable actions.
The decision of the Workers' Compensation Court is
affirmed.
We concur: