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IN
THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
2000
MTWCC 10
WCC
No. 9906-8271
DONNA
MASTERS
Petitioner
vs.
LIBERTY
NORTHWEST INSURANCE CORPORATION
Respondent/Insurer
for
HAMPTON
INN
Employer.
ORDER DENYING REQUEST FOR
RECONSIDERATION
Summary:
Insurer moved for reconsideration of WCC decision finding claimant suffered
wages loss. Relying on S.L.H. v. State Compensation Ins. Fund, 1999
MTWCC 6, insurer argued claimant, who worked only part-time pre-injury,
could earn more post-injury if she worked full time.
Held:
Motion to reconsider denied. Where claimant was working only part-time
pre-injury, appropriate comparison involves absolute wages pre- and
post-injury in part-time work. Topics:
Constitutions,
Statutes, Regulations, Rules: Montana Code: section 39-71-703(5)(c).
Where claimant was working only part-time pre-injury, the question
of wage loss is determined by comparing absolute part-time wages pre-
and post-injury. Court distinguished situation where claimant loses
the ability to work full time as a result of the injury, which requires
some adjustment in computing wages pre- and post-injury.
Benefits:
Permanent Partial Benefits: Lost Earning Capacity. Where claimant
was working only part-time pre-injury, the question of wage loss is
determined by comparing absolute part-time wages pre- and post-injury.
Court distinguished situation where claimant loses the ability to
work full time as a result of the injury, which requires some adjustment
in computing wages pre- and post-injury.
Wages:
Wage Loss. Where claimant was working only part-time pre-injury,
the question of wage loss is determined by comparing absolute part-time
wages pre- and post-injury. Court distinguished situation where claimant
loses the ability to work full time as a result of the injury, which
requires some adjustment in computing wages pre- and post-injury.
Wages:
Qualified to Earn. Where claimant was working only part-time pre-injury,
the question of wage loss is determined by comparing absolute part-time
wages pre- and post-injury. Court distinguished situation where claimant
loses the ability to work full time as a result of the injury, which
requires some adjustment in computing wages pre- and post-injury.
¶1 On January
6, 2000, this Court entered its Findings of Fact, Conclusions of Law
and Judgment, holding that claimant suffered a wage loss and is entitled
to permanent partial disability benefits. The respondent/insurer has
timely filed a Motion for New Trial or Alternatively Request for Amendment
to Findings of Fact, Conclusions of Law and Judgment. The motion has
been briefed and is submitted for decision.
Discussion
¶2 Relying upon
this Court's decision in S.L.H. v. State Compensation Ins. Fund,
1999 MTWCC 6, respondent argues that the Court erred in finding
a wage loss because claimant can earn more post-injury by working full-time
than she was earning part time pre-injury.
¶3 In S.L.H.
the claimant had been working 32 hours a week. Post-injury she was restricted
to 20 hours a week. Thus, even if she earned the same absolute hourly
wage post-injury as preinjury, she suffered a substantial wage loss.
Under those circumstances, I held:
Statutes
must be construed reasonably to avoid absurd results. Billings
Properties, Inc. v. Yellowstone County, 144 Mont. 25, 38, 394
P.2d 182, 198 (1964) ("Statutory or constitutional construction should
not lead to absurd results if reasonable construction will avoid it.").
If section 39-71-703(3)(c), MCA (1991), is construed as requiring
that the post-injury wage per hour be compared with the preinjury
hourly wage without consideration of the number of hours of employment,
then a worker who preinjury was working 40 hours a week at $7.00 but
post-injury can work only 10 hours a week but still earn $7.00 an
hour during those 10 hours would suffer no "wage
loss" under the section. That result is contrary to the plain meaning
of "wage loss." It is also contrary to the first phrase of the subsection
which, without regard to an hourly rate, provides that a
worker is entitled to no wage loss benefits only if the worker "has
no wage loss as a result of the industrial injury." A worker who cannot
work as many hours post-injury as preinjury has a "wage loss" even
if she can work at the preinjury "hourly" wage, thus an interpretation
of the subsection as limiting wage loss comparisons to absolute hourly
rates would fly in the face of the plain meaning of "wage loss" and
the language of the first phrase of the subsection.
The only
way to compute wages in such cases, and thereby avoid an absurd result,
is to divide the weekly post-injury compensation by the number of
hours the worker was employed per week preinjury. That will provide
an hourly rate based on the number of preinjury hours and result in
a reasonable comparison of pre- and post-injury wages. In this case,
claimant returned to work at a $5.15 an hour job for 20 hours a week,
earning $103.00 weekly. On a 32-hour work week basis she earned $3.21
an hour. Even at $6.00 an hour for 20 hours a week, on a 32-hour work
week basis she would earn $3.75 an hour. In either case she experienced
more than a $2.00 an hour wage loss based on a 32 hour week and is
entitled to a 20% award.
S.L.H. ¶¶
64-65.
¶4 S.L.H.
addressed only the situation where the injury restricts the number
of hours a claimant can work. In this case, the respondent would turn
the holding upside down. The simple answer to its argument is that yes,
claimant can work 40 hours a week post-injury, but she was also
able to work 40 hours a week preinjury. The injury did not
increase her ability to work. Thus, there is no reason or justification
for adjusting the absolute hourly wages or for departing from an absolute
hourly wage comparison.
¶5 The respondent's
motion is denied.
DATED in Helena,
Montana, this 23rd day of February, 2000.
(SEAL)
\s\ Mike
McCarter
JUDGE
c: Ms. Laurie
Wallace
Mr. Larry W. Jones
Date Submitted: February 4, 2000
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