No. 87-242
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
TERI PHELPS,
Claimant-Appellant,
-vs-
HILLHAVEN CORPORATION,
Defendant-Respondent.
APPEAL FROM: Workers' Compensation Court,
The Honorable Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert C. Kelleher, Sr.; Kelleher Law Office,
Billings, Montana
For Respondent:
William J. Mattix; Crowley, Haughy, Hanson, Toole
and Dietrich, Billings, Montana
Submitted on Briefs: February 25, 1988
Decided: March 24, 1988
Filed:
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Teri Phelps appeals from a decision of the Workers'
Compensation Court awarding Ms. Phelps permanent partial
disability benefits of $25.07 per week for 500 weeks, and
refusing her requests for partial lump sum conversion and
reasonable costs and attorney fees. We affirm.
Ms. Phelps presents the following issues on appeal:
1. Were the findings of the Workers' Compensation Court
pertaining to Ms. Phelps diminution of earning capacity
supported by substantial credible evidence?
2. Did the Workers' Compensation Court err in excluding
the value of fringe benefits when determining Ms. Phelps'
wages for the purpose of calculating her entitlement to
benefits for permanent partial disability?
3. Did the Workers' Compensation Court abuse its
discretion in refusing to grant Ms. Phelps a lump sum
conversion of her future entitlement to permanent partial
disability benefits?
4. Did the Workers' Compensation Court err in failing
to grant Ms. Phelps an award of costs and attorney fees
incurred in the Workers' Compensation and in this Court?
On August 26, 1983, Teri Phelps sustained an industrial
injury arising out of and in the course of her employment as
a nurses aide at the Livingston Convalescent Center
(Hillhaven Corporation). The defendant Hillhaven Corporation
was enrolled under plan I1 of the Workers' Compensation Act
with Ranger Insurance Co. being its insurer. The defendant
accepted liability for wage and medical benefits under the
Montana Workers' Compensation Act. Ms. Phelps was paid
temporary total disability benefits of $91.23 per week from
November, 1983, through September, 1985. Ms. Phelps reached
maximum healing in October, 1985, and her benefits were then
converted to permanent partial disability benefits at the
rate of $91.23 per week. Ms. Phelps received $91.23 weekly
up to the date of the Workers1 Compensation hearing.
A trial was held on May 7, 1986, before Robert J.
Campbell, a hearings examiner for the Workers1 Compensation
Court. The parties submitted the following issues to the
court for consideration:
1. What is the nature and extent of claimant's
entitlement to permanent partial disability benefits?
2. Is claimant entitled to a lump sum conversion of any
portion of her future entitlement, if any, to permanent
partial disability benefits?
3. Is claimant entitled to an award of costs and
attorney fees.
The hearings examiner found:
1. Ms. Phelps had an actual diminution in earning
capacity of $37.60 per week, which under § 39-71-703, MCA,
entitled her to permanent partial disability weekly benefits
of $25.07 (66 2/3% of $37.60) for a period of 500 weeks.
2. Ms. Phelps did not present sufficient evidence for
the court to determine if a lump sum conversion of a portion
of her future benefits was in her best interest; and,
3. Ms. Phelps was not entitled to an award of
reasonable costs and attorney fees.
On June 2, 1987, the Workers' Compensation Court issued
an order adopting the findings of fact and conclusions of law
of the hearings examiner and entered judgment. It is from
this judgment that Ms. Phelps appeals.
Ms. Phelps contends that the Workers1 Compensation Court
erred in determining her lost earning capacity under 5
39-71-703, MCA.
The standard for reviewing the Workers' Compensation
Court's findings of fact is whether the court's findings are
supported by substantial credible evidence in the record.
Poppelton v. Rollins, Inc. (Mont. 1987), 735 P.2d 286, 44
St.Rep. 644. We find substantial credible evidence to
support the findings of the Workers' Compensation Court and
affirm the judgment.
The Workers' Compensation Court engaged in a series of
calculations in order to determine Ms. Phelps' loss of
earning capacity. The record disclosed that prior to her
injury, Ms. Phelps worked an average of approximately 33
hours per week. The undisputed testimony of Russel Meech,
administrator of the Livingston Convalescent Center,
established that had Ms. Phelps continued in the employ of
the nursing home (until the time of trial), she would have
earned $5.33 per hour or approximately $175.68 per week. Ms.
Phelps testified that at the time of trial, she was employed
by Al's Pawn Shop in Bozeman and was paid $600 per month.
Over the course of a year's time, $600 per month amounts to
$138.08 per week. This was Ms. Phelps' average weekly salary
at the time of trial. This amounts to an actual loss of
$37.60 per week. The Workers' Compensation Court held under
§ 39-71-703, MCA, that Ms. Phelps is entitled to receive
$25.07 as weekly compensation for the permanent partial
disability. We find there is substantial credible evidence
supporting the finding of the Workers' Compensation Court and
we affirm their judgment.
Ms. Phelps submits that the Workers' Compensation Court
erred in considering her wages from her post-injury
employment at Al's Pawn Shop when determining her loss of
earning capacity under § 39-71-703, MCA. We disagree.
Ms. Phelps premises her contention on the letter from A1
Williams (the owner of Al's Pawn Shop) which was stipulated
into evidence by both parties. In the letter, Mr. Williams
referred to Ms. Phelp's job as "make work or psuedo work."
The letter goes on to say "we called it (Ms. Phelp's work) a
job to keep from calling it charity and hurting her
feelings. l1 However, Ms. Phelps testified that she was
involved in all facets of the operation of the pawn shop;
that she was at times left alone to run the business; that
she was responsible for doing the bookkeeping for the
business; that she waited on customers and that she bought
and sold used merchandise. Ms. Phelps provided the Workers1
Compensation Court with substantial credible evidence to find
that she was indeed employed by All s Pawn Shop. As such the
Workers' Compensation Court correctly considered Ms. Phelp's
wages from her employment when determining her loss of
earning capacity under 5 39-71-703, MCA.
Ms. Phelps also emphasizes this Court's holding in Fermo
v. Superline Products (1978), 175 Mont. 345, 574 P.2d 251,
wherein we delineated a number of factors that could affect
the reliability of post-injury earnings.
Unreliability of post-injury earnings may be due to
a number of variables:
1. Increase in general wage levels since the
accident.
2. Claimant's own maturity or training.
3. Longer hours worked by the claimant after the
accident.
4. Payment of wages disproportionate to capacity
to work out of sympathy to claimant.
Fermo, 175 Mont. at 349, 574 P.2d at 253.
Ms. Phelps alleges error on the part of the Workers1
Compensation Court in failing to consider the number of hours
(54) that comprised her post-injury work week when
determining her loss of earning capacity. Ms. Phelps further
submits that because of the longer hours worked her
post-injury earnings are unreliable. The evidence presented
to the Workers1 Compensation Court on this point is
conflicting. A1 Williams states (in his letter stipulated
into evidence) "For the most part she (Ms. Phelps) worked
about 40 hours per week." On the other hand, Ms. Phelps
testified that she was working 54 hours per week.
Although Ms. Phelps did present evidence relating to the
Fermo factors, there was evidence to the contrary presented
which the Workers1 Compensation Court found to be credible
and upon which it based its decision. "Me cannot substitute
our judgment for that of the trial court as to the weight of
the evidence on questions of fact." Cuellar v. Northland
Steel (Mont. 1987), 736 P.2d 130, 131, 44 St.Rep. 778, 780.
Ms. Phelps further argues that the Workers1 Compensation
Court erred in failing to adjust the wages from her
employment at Al's Pawn Shop to reflect the fact that the
employer was not withholding taxes. Ms. Phelps' position
regarding this issue is without merit.
The sole question regarding this issue is what was Ms.
Phelps earning in her post-injury employment at Al's Pawn
Shop. The fact that federal withholdings were not taken from
her paycheck is irrelevant. The unrefuted evidence in the
record clearly shows that Ms. Phelps was earning $600 per
month. As such there is substantial credible evidence in the
record to support such a finding by the Workers1 Compensation
Court.
Ms. Phelps next submits that the Workers1 Compensation
Court erred in not accepting the testimony of Cliff Larsen, a
vocational rehabilitation expert, regarding her pre-injury
earning capacity. Mr. Larsen testified that Ms. Phelps had a
pre-injury wage range of somewhere between $3.35 to $13.10
per hour. Ms. Phelps contends that $8.22 per hour (the
average of $3.35 and $13.10) represents her pre-injury
earning capacity, and as such her permanent partial
disability should be predicated upon that wage.
Mr. Larsen in determining Ms. Phelps pre-injury earning
capacity included a broad range of jobs in determining her
normal labor market and wage range. Mr. Larsen included
occupations that were not part of Ms. Phelpsl normal labor
market. In the immediate case, Mr. Larsen went outside of
the parameters of Ms. Phelps' normal labor market when
arriving at her pre-injury earning capacity. We affirm the
findings of the Workers' Compensation Court regarding Ms.
Phelps pre-injury earning capacity.
Ms. Phelps next contends that the Workers' Compensation
Court erred in excluding the value of sick leave and other
fringe benefits in calculating her wage rate (under 5
39-71-116 (20), MCA (1985)) , which in turn determined her
entitlement to benefits. We find the contrary to be true.
Section 39-71-116 (20), MCA (1985), provides:
"Wages" means 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. Sick leave benefits
accrued by employees of public corporations as
defined by subsection (16) of this section, are
considered wages.
If the intent of the legislature can be determined from
the plain meaning of the words utilized in the statute, this
Court will not go further and apply any other means of
interpretation. Glaspey v. Workman (Mont. 1988), - P.2d
,
- 45 St.Rep. 226; Murphy v. State of Montana (Mont. 1987),
748 P.2d 907, 44 St.Rep. 2030; State v. Hubbard (1982), 200
Mont. 106, 649 P.2d 1331.
It is clear from the plain meaning of the words used by
the legislature in 5 39-71-116(20), MCA (1985), that sick
leave benefits are included in determining wages only when
the claimant is an employee of a public corporation. Ms.
Phelps was not an employee of a public corporation at the
time of her injury. As such the Workers' Compensation Court
correctly excluded her sick leave benefits when determining
her wages.
In Linton v. State Compensation Insurance Fund (Mont.
19881, 749 P.2d 55, 45 St.Rep. 68, this Court engaged in an
exhaustive examination of whether fringe benefits should be
included as part of an employees wages for purposes of the
Workers' Compensation Act. In Linton, we held:
[ T I he term "wages" under the workers' compensation
act does not include employer contributions to
f u n d s t h a t p r o v i d e health or life insurance,
retirement, training, vacation and pension or
disability payment. (Emphasis added.)
Litton 749 P.2d at 59, 45 St.Rep. at 73.
We affirm the holding of the Workers' Compensation Court
in excluding the value of fringe benefits when determining an
employee's wages.
Ms. Phelps alleges that the Workers' Compensation Court
erred in refusing to grant a partial lump sum conversion of
her future entitlement to permanent partial disability
benefits. We affirm the holding of the Workers' Compensation
Court on the issue of lump sum conversion.
The Workers' Compensation Court has general discretion
to grant lump sum awards. Section 39-71-741, MCA. Ms.
Phelps incurred her injury prior to the 1985 and 1987
amendments to $ 39-71-741, MCA. An injured worker's rights
vest at the time of injury and as such those amendments are
of no import in this case. Buckman v. Montana Deaconess
Hospital (Mont. 1986), 730 P.2d 380, 43 St.Rep. 2216.
The relevant law for this case was stated in Willoughby
v. General Accident Fire & Life (1980), 187 Mont. 253, 256,
609 P.2d 700, 701, wherein this Court held
Where the best interests of the claimant are
generally served by paying compensation in regular
periodic installments, the conversion of benefits
to a lump sum settlement has been recognized as the
exception rather than the rule. (Citations
omitted. )
Claimant bears the burden of justifying departure from
periodic payments. Legowik v. Montgomery Ward & Co. (1971),
157 Mont. 436, 486 P.2d 867. The Workers' Compensation Court
in its conclusions of law held that Ms. Phelps did not
present sufficient evidence to the court to allow for a
determination of whether a lump sum conversion would be in
her best interests. Further, the Workers' Compensation Court
found Ms. Phelps' lump sum requests deficient in several
respects.
First, it is not clear who owes the obligations
submitted, the claimant or her husband. Secondly,
it is not clear the date that such obligations were
incurred and whether they were before or after the
injury. Third, the evidence is not clear which
obligations have been written off by the creditors.
Finally, no statement of the necessity of payment
is included to show why the proposed payments are
necessary and would be in the best interest of the
claimant.
Ms. Phelps contends at the very least she is entitled to
a lump sum conversion in the amount of $2,000 in order to pay
for dental work and $874 worth of debts. Ms. Phelps' request
is based upon an estimate from her dentist that was not
provided to the defendant within the deadline for exchange of
exhibits as set by the court. The Workers' Compensation
Court properly refused to consider these estimates as Ms.
Phelps' conduct deprived the defendant of the opportunity of
verifying the estimates prior to trial. It is clear from the
evidence in the record that the Workers1 Compensation Court
had sufficient jusification for denying plaintiff's request
for a lump sum conversion.
This Court will not interfere with the decision to award
or deny a lump sum settlement absent an abuse of discretion
on the part of the Workers' Compensation Court. Johnson v.
Gibson (Mont. 1987), 740 P.2d 665, 44 St.Rep. 136; Byrd v.
Ramsey Engineering (Mont. 1985), 701 P.2d 1385, 42 St.Rep.
991; Willoughby v. General Accident, Fire & Life (1980), 187
Mont. 253, 609 P.2d 700. Accordingly, we affirm the decision
of the Workers' Compensation Court in denying Ms. Phelpsl
request for a lump sum conversion.
Lastly, Ms. Phelps contends that under § 39-71-612, MCA,
she is entitled to an award of costs and attorney fees
incurred in the lower court and this Court.
An award of attorney fees from the insurer under §
39-71-612, MCA, is predicated on the plaintiff being
successful in obtaining benefits greater than the amount
previously paid or tendered by the insurer or employer. Ms.
Phelps was unsuccessful in her attempt to obtain benefits
greater than the amount paid or tendered by her employer.
Therefore, we affirm the decision of the Workers'
Compensation Court that Ms. Phelps is not entitled to an
award of costs and attorney fees.
The judgment of the Workers' Compensation Court is
affirmed.