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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
2001 MTWCC 63
WCC No. 2001-0379
Summary: Petitioner, a volunteer ambulance worker, seeks temporary total disability benefits based on his hours of volunteer work and the state's average weekly wage.
Held: Petitioner is not entitled to temporary total disability benefits. Section 39-71-701, MCA (1995), requires that benefits be based on claimant's wages, and he had none. He is not entitled to benefits for his concurrent employment since that employment was self-employment and he failed to elect workers' compensation coverage with respect to the employment. He is not entitled to benefits based upon imputed wages pursuant to section 39-71-118(7), MCA (1995), since it applies only to firefighters for rural fire districts. Clamant was not a firefighter, nor was he employed by a rural fire district.
¶1 The parties have entered into a stipulation of facts and agreed to submit their dispute upon Petitioner's Motion for Summary Judgment. The stipulated facts, as set forth by the parties, are as follows:
¶1f At the time of the injury, Petitioner was self-employed and did not carry workers' compensation insurance on himself. Petitioner is not claiming benefits for concurrent employment.
¶2 There is one additional fact stated in respondent's brief in opposition to summary judgment. Petitioner has not replied to that statement, although he had an opportunity to do so.(1) In light of the agreement of the parties on other facts, the lack of a reply by petitioner, and the obvious intent of the parties to submit the case for decision based on agreed facts, the Court adopts the additional fact. If for any reason it should not have done so, petitioner may request reconsideration. The additional fact is as follows:
(Respondent's Response to Petitioner's Motion for Summary Judgement at 2.(2))
¶3 The issue presented for decision is whether, despite the fact he received no wages for his volunteer work, the petitioner is entitled to temporary total disability (TTD) benefits.
¶4 Resolution of the dispute is a matter of the interpretation and application of statutes governing volunteer firemen. Since petitioner was injured on October 31, 1996, the 1995 version of the Workers' Compensation Act applies. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
¶5 Initially, section 39-71-118(1)(g), MCA (1996), governs volunteer ambulance workers. It provides:
Thus, claimant was an employee and entitled to temporary total disability benefits if he had a wage loss. Those benefits are governed by section 39-71-701(3)(c), MCA (1995), which provides:
Of course, as a volunteer, petitioner had no wages. Two-thirds of nothing is nothing, hence he is entitled to nothing under the formula.
¶6 Petitioner argues that since he is an employee under the statute, section 39-71-123(4)(b), MCA (1995), does not apply to him. His argument, however, does not advance his cause. Section 39-71-123(4)(b), MCA, concerns concurrent employment, providing:
Even if claimant is not considered a "covered volunteer" under the section, he is still not entitled to include wages from self-employment since subsection (c) expressly provides that as to employees self-employment wages may be included in determining benefits only if the claimant has elected coverage with respect to his self-employment venture. Section 39-71-123(4)(c), MCA (1995), provides:
Since claimant did not elect coverage for his self-employment, he is not entitled to benefits based on a loss of wages from the employment.
¶7 Petitioner argues that he should receive compensation based upon section 39-71-118(7), MCA (1995), which provides:
He argues that since "[t]here is no separate provisions for ambulance workers . . . it must be concluded that the benefit formula used for firefighters was also intended to apply to ambulance workers." (Petitioner's Motion for Summary Judgment at 3.) If correct, wages would be imputed to petitioner based upon his volunteer hours and the state's average weekly wage. The argument, however, is unpersuasive.
¶8 In construing statutes the Court is precluded from inserting requirements or entitlements which the legislature has omitted. "In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted." § 1-2-101, MCA. No mention is made in the cited section of ambulance workers, and the Court cannot expand the coverage of the section to include ambulance workers. Moreover, subsection (7) applies only to Rural Fire Districts. Petitioner was not employed by a Rural Fire District as a fireman, ambulance driver, or otherwise, thus the section is inapplicable.
¶9 Having failed to cite any legal authority which might entitle him to TTD benefits, summary judgment must be granted to respondent, not petitioner.(3)
¶10 The petition in this matter is dismissed with prejudice. Each party is responsible for his/its costs and attorney fees.
¶11 This Summary Judgment is certified as final for purposes of appeal.
c: Ms. Laurie Wallace
1. Petitioner had an opportunity to file a response brief but notified the Court that he would not do so. He could have controverted the additional factual statement in such brief.
2. Respondent offered to confirm this fact by affidavit if petitioner wished. (Id.) Petitioner did not respond to the offer, thus further indicating that the fact may be accepted as true for purposes of the summary judgment motion.
3. A formal cross-motion is not required for the court to grant summary judgment to the non-moving party, as long as "the original movant had a full and fair opportunity to meet the proposition" and the other party is entitled to judgment as a matter of law. Hereford v. Hereford, 183 Mont. 104, 107-08, 598 P.2d 600, 602 (1979).
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