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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
1997 MTWCC 34
RANGER INSURANCE COMPANY
CARE NURSING HOME
PARTIAL FINDINGS OF FACT, CONCLUSIONS OF LAW
AND PARTIAL JUDGMENT
Summary: Former nurses aide, who is permanently totally disabled, claims her weekly wages for purposes of determining her PTD rate should include overtime.
Held: Under section 39-71-116(20), MCA (1981), wages were defined as "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." In Coles v. Seven Eleven Stores, 217 Mont. 343, 704 P.2d 1048 (1985), the Supreme Court concluded that "usual hours of employment" and an exclusion of overtime created an ambiguity in situations where the employee's usual hours included overtime. The Supreme Court found the statute to exclude overtime hours "from the calculation unless the overtime is consistently and regularly part of the claimant's work record." Here, claimant did not prove she worked consistent and regular overtime.
This matter came for trial on Tuesday, May 20, 1997, in Helena, Montana. Petitioner, Velleda Bates (claimant), was present and represented by Mr. Andrew J. Utick. Respondent was represented by Mr. Jason G. Dykstra and Mr. Thomas A. Marra.
After opening statements and colloquy with counsel, the Court determined that claimant's request for a lump sum was not ready for trial and that further information should be presented by claimant to respondent to enable respondent to fairly evaluate her request. That part of the trial was vacated and will be reset on an expedited basis if further information does not produce an agreement between the parties. The remaining matter, involving calculation of claimant's wages, proceeded to trial.
Claimant testified, providing the only evidence with respect to the wage issue. Her objection to purported time records offered by respondent was sustained since the purported records were not authenticated.
Following claimant's testimony the Court agreed to provide an expedited ruling on the wage issue. These Partial Findings of Fact, Conclusions of Law and Partial Judgment, shall serve as its disposition of the issue.
Having considered claimant's testimony, the stipulated facts, the depositions and exhibits, insofar as they pertain to the wage issue, and the arguments of the parties, the Court makes the following:
1. Claimant was injured in a work-related accident on October 6,1982. At the time of her industrial accident, she was employed as a nurse's aid at Western Care Nursing Home (Western) in Helena, Montana. She filed a claim for compensation, which was accepted by Western's insurer, Ranger Insurance Company (Ranger).
2. Ranger has conceded that claimant is permanently totally disabled as a result of her industrial accident and has been paying her biweekly permanent total disability benefits.
3. At the time of her injury, the claimant's hourly wage was $3.93. In determining claimant's benefits the insurer used a 40-hour week, which yields a weekly wage of $157.20 and a permanent total disability rate of $104.80.
4. Claimant contends that her weekly wage should include overtime hours she worked during the eight weeks reported in the Employer's First Report. Those wages were as follows:
5. After taking the overtime rate of pay into consideration, the reported wages show that during the last four, two-week pay periods, the claimant worked the following hours:
Claimant contends that her weekly wages should be increased by $11.36 to $168.56 per week to reflect an additional 2.89 hours of work per week.
6. Claimant testified that until a month and a half prior to her injury she had been working 40-hour weeks. However, she said that nurse's aids at Western were then told that they had to provide reports to the next shift, which might or might not cause overtime, and that due to family complaints they were to take at least three patients for walks each day. If the walks were not accomplished during their normal shifts, they were required to stay and work overtime to complete them. Claimant was told that the requirement would continue until Western obtained volunteers to perform the function. Claimant expressed doubt that the employer would have followed through in obtaining volunteers, testifying:
(Tr. at 72, bold in original.)
7. There is no record or other evidence indicating the number of hours of overtime claimant might have worked on a regular basis, or how often she would have been unable to walk patients during her regular shift.
1. Claimant's benefits are governed by the 1981 version of the Workers' Compensation Act. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
2. At the time of claimant's injury, section 39-71-702, MCA (1981), provided that permanent total disability benefits "shall be 66 2/3% of the wages received at thetime of the injury." In turn, wages were defined as "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." § 39-71-116(20), MCA (1981).
3. Claimant cites two cases as supporting her contention that her overtime hours should be considered "usual hours of employment" counted in computing her benefits. Initially, she cites Coles v. Seven Eleven Stores, 217 Mont. 343, 704 P.2d 1048 (1985). In Coles the Supreme Court considered the "wages" definition set forth in the preceding paragraph. It considered whether any overtime hours could be included notwithstanding the limiting language "overtime shall not be considered." It held:
Id. at 348, 704 P.2d at 1051-52, emphasis added.
To prevail under Coles, claimant must prove that the overtime she worked was both consistent and regular. She has failed in her proof. There is no regularity or consistency to her overtime hours. The Court notes that in the final two week period of her employment, she worked two regular 40 hour weeks. Her industrial accident does not explain her lack of overtime hours for that week since those two weeks ended September 23, 1982, whereas her injury occurred on October 6, 1982. Moreover, the overtime hours she worked during two of the four periods were dissimilar and inconsistent. During one period she worked only 4.5 overtime hours, during the other 20.6. Counting the 20.6 hours grossly skews the overtime average and claimant has provided no credible evidence that those hours would have been regular and consistent in the future, indeed the very next period she worked no overtime. According to her own testimony, claimant was told by the employer that overtime was temporary until volunteers could be recruited to walk patients. Claimant speculated that the employer would not recruit volunteers, basing her testimony on the fact that she was unaware of any specific plans to recruit volunteers. (Tr. at 72.) Given the limited overtime claimant worked, the short period of time covered, and the fact that claimant worked no overtime during the last full two weeks recorded, her speculation is insufficient to prove that the employer required her to consistently and regularly work overtime.
Claimant also cites Stuber v. Moodie Implement, 236 Mont. 189, 769 P.2d 1205 (1989), as supporting her position. Stuber, however, addressed the number of pay periods which should be included in computing wages when the employee's hours were affected by large seasonal swings in his employment and he worked overtime on a seasonal basis. The decision does not support claimant's argument since this case does not involve seasonal fluctuations and both parties in Stuber agreed that overtime hours should be included. Stuber neither overrules nor modifies the test laid out in Coles.
1. Claimant is not entitled to inclusion of overtime in computing her wages for purposes of determining her permanent total disability benefits.
2. Claimant is not entitled to additional permanent total disability benefits with respect to past compensation.
3. The claimant's request for a lump sum is not presently ripe for adjudication. Further proceedings will be scheduled once it is ripe.
4. Any party to this dispute may have 20 days in which to request a rehearing from these Partial Findings of Fact, Conclusions of Law and Partial Judgment.
DATED in Helena, Montana, this 3rd day of June, 1997.
c: Mr. Andrew J. Utick
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