Wages: Average Weekly Wage

MONTANA SUPREME COURT DECISIONS
Sturchio v. Wausau, 2007 MT 311 The only interpretation of § 39-71-123, MCA, which furthers the legislative policy of § 39-71-105(1), MCA, (that wage-loss benefits “bear a reasonable relationship to actual wages lost”) is to interpret § 39-71-123(3), MCA, as applying to each concurrent employment and then using the resulting figures to calculate the employee’s aggregate average actual wage.
King v. State Fund, 282 Mont. 335, 938 P.2d 607 (1997) Supreme Court affirmed WCC conclusion that where claimant worked four pay periods prior to injury, the insurer was not required to base wages on fewer than four pay periods in order to increase her wage rate. Under section 39-71-123(3), MCA (1991), the insurer is directed to use the average actual earnings for the four pay periods preceding the injury, with two exceptions, neither of which supports claimant's request to use fewer than four pay periods.
 
MONTANA WORKERS' COMPENSATION COURT DECISIONS

Peters v. American Zurich Ins. Co. [02/11/14] 2014 MTWCC 4 Citing Sturchio v. Wausau Underwriters Ins. Co., 2007 MT 311, ¶ 15, the Court rejected Petitioner’s argument that the average weekly wage of a single employment may be divided into “components” and calculated under both § 39-71-123(3)(a) and (3)(b), MCA.

Peters v. American Zurich Ins. Co. [02/11/14] 2014 MTWCC 4 On reconsideration, the Court reaffirmed its previous holding that where Petitioner received a bonus on an annual basis, the amount of the bonus should be included in his average weekly wage over the time period of a year.

Nelson v. Montana Schools Group Ins. Auth. [01/09/14] 2014 MTWCC 1 Although Petitioner held two job positions with the same employer, governed by two separate employment contracts, § 39-71-123(1), MCA, defines wages as “all remuneration paid for services performed by an employee for an employer.”  Section 39-71-123(4)(c), MCA, provides that compensation for concurrent employments is based on the aggregate of average actual wages.  Therefore, whether Petitioner’s two positions are considered one employment or two concurrent employments, the average weekly wage calculation remains the same.

Peters v. American Zurich Ins. Co. [07/31/13] 2013 MTWCC 16 Since Petitioner did not receive his annual bonus within the last four pay periods preceding his industrial injury, using § 39-71-123(3)(a), MCA, to calculate his average weekly wage would disregard the bonus and therefore his average weekly wage calculation would not bear a reasonable relationship to his actual wages lost.  Therefore, good cause exists to calculate Petitioner’s average weekly wage under § 39-71-123(3)(b), MCA.

Peters v. American Zurich Ins. Co. [07/31/13] 2013 MTWCC 16 Merely demonstrating that using a different calculation method or time period would result in a higher average weekly wage does not mean that good cause exists to do so under § 39-71-123(3)(b), MCA.

Marjamaa v. Liberty Northwest Ins. Co. [07/03/12] 2012 MTWCC 23 Where Respondent did not dispute that the nine-month time period Petitioner asked the Court to use in calculating his average weekly wage was fairly typical of his work schedule, the Court ordered that Respondent use this time period and calculate Petitioner’s average weekly wage under § 39-71-123(3)(b), MCA.

Marjamaa v. Liberty Northwest Ins. Co. [07/03/12] 2012 MTWCC 23 In order to bear a reasonable relationship to actual wages lost, an average weekly wage calculation cannot include extraordinary events such as a prolonged absence from work due to an industrial injury.  In this instance, including four months of lost work due to an industrial injury would have artificially lowered Petitioner’s average weekly wage.

Gundermann v. Montana State Fund [06/04/12] 2012 MTWCC 18 The language of § 39-71-123, MCA, recognizes the validity of using different calculation methods for different employment situations to arrive at a wage loss benefit that bears a reasonable relationship to actual wages lost.  Where a seasonal employee worked for the same employer for 16 years, it is appropriate to use an average weekly wage calculation under § 39-71-123(3)(b), MCA, by taking the total earnings for the year prior to the injury divided by the number of weeks the wages were earned, including periods of idleness or seasonal fluctuations.  Because Petitioner was not idle during those weeks he worked for a second employer, those weeks should not be used in the calculation.

Holmes v. Safeway Inc. [03/06/12] 2012 MTWCC 8 Where a Petitioner was injured his second week of work and worked 28 hours his first week; he was scheduled to work 28 hours his second week; the position was typically a 24- to 30-hour-per-week position; and Petitioner put down on his application that he could work 30 hours a week, the Petitioner’s average weekly wage was correctly computed by the insurer under § 39-71-123(3)(a), MCA, based on the Petitioner being hired to work a 28 hour work week, not a full-time position as Petitioner claimed.
Leigh v. Montana State Fund [12/21/10] 2010 MTWCC 37 The average weekly wage calculation must be a reasonable relationship to the actual wages lost as mandated by § 39-71-105(1), MCA.  Where Respondent’s chosen calculation method created an artificially low average weekly wage and Petitioner’s suggested calculation method would have created a higher average weekly wage than his typical wages, the Court found that neither method met the reasonable relationship to wages lost required by § 39-71-105(1), MCA.

Leigh v. Montana State Fund [12/21/10] 2010 MTWCC 37 Where Petitioner had to be “rehired” after each lay off period and where he had no guarantee or rehire, his case is indistinguishable from the claimant in Brodie v. Liberty Northwest Ins. Co., 2001 MTWCC 30, in which this Court’s determination relied on the pivotal fact that the claimant was not guaranteed re-employment after her termination.  However, this lack of guarantee was also present in Gregory v. Michael Bailey & Sons Logging, 255 Mont. 190, 194, 841 P.2d 525, 527-28 (1992), in which the Montana Supreme Court held that a seasonal employee’s average weekly wage must be calculated under § 39-71-123(3)(b), MCA.  The Court found no compelling distinction between Petitioner’s case and Gregory which would allow it to deviate from the method endorsed in Gregory.
Leigh v. Montana State Fund [12/21/10] 2010 MTWCC 37 Where sporadic seasonal work is at issue, it is reasonable to calculate on a larger scale than four pay periods.  Fairness demands that sporadic, seasonal employment be determined in a way which accurately reflects the claimant’s employment history with the employer as dictated by § 39-71-123(3)(b), MCA.  Relying on § 39-71-123(3)(a), MCA, for determining average weekly wage in a seasonal employment situation is unreasonable and unfair.  Gregory v. Michael Bailey & Sons Logging, 255 Mont. 190, 194, 841 P.2d 525, 527-28 (1992).  Notwithstanding this Court’s bench ruling to the contrary in Brodie v. Liberty Northwest Ins. Co., 2001 MTWCC 30, an ongoing, multi-year relationship in which a worker is periodically terminated and rehired is part of the “employment history with the employer.”
Wombold v. Montana State Fund [12/29/09] 2009 MTWCC 40 Under § 39-71-123(1)(a), MCA, an injured worker’s average weekly wage is calculated by using his regular-time wage instead of his overtime rate of pay.
Kramer v. Montana Contractor Compensation Fund [10/27/08] 2008 MTWCC 48 Section 39-71-123(3)(b), MCA, provides that a method for calculating an employee’s wages other than using the four pay periods immediately preceding the injury may be used “for good cause shown.” A claims adjuster cannot simply “decide” that a particular type of job is seasonal without taking the facts of that particular claimant’s employment into consideration.
Kramer v. Montana Contractor Compensation Fund [10/27/08] 2008 MTWCC 48 While Petitioner argued the standard calculation method in § 39-71-123(3)(a), MCA, was appropriate, Respondent argued that the alternate calculation method of § 39-71-123(3)(b), MCA, was appropriate because Petitioner was a construction worker and construction work is seasonal. However, the evidence at trial demonstrated that Petitioner’s particular job was not seasonal, and he had full-time, year-round employment. Therefore, the correct calculation method for Petitioner’s average weekly wage is the statutorily-preferred method found in § 39-71-123(3)(a), MCA.
Sturchio v. Liberty [01/30/07] 2007 MTWCC 4 This Court has previously held that if a prior employment was terminated and a claimant was not guaranteed reemployment with the same employer, only the wages earned after the rehire may be used under § 39-71-123(3)(b), MCA, to calculate average weekly wage. Brodie v. Liberty Northwest Ins. Corp., 2001 MTWCC 30, ¶ 6. Where fewer than four pay periods occurred between Petitioner’s rehire date and the date of her industrial injury, the Court calculated her average weekly wage by dividing the hours Petitioner worked from the date of her rehire into the number of weeks she worked.
Sturchio v. Liberty [01/30/07] 2007 MTWCC 4 Section 39-71-105(1), MCA, mandates a reasonable relationship between benefits and actual wages lost, which the calculation methods found in § 39-71-123, MCA, are intended to achieve. Where a claimant has multiple concurrent employments, each employment is to be considered individually and the average weekly wage calculated by whatever method found in § 39-71-123, MCA, best maintains a reasonable relationship between benefits and actual wages lost.
Negethon v. Montana State Fund [12/14/06] 2006 MTWCC 40 Petitioner's unemployment benefits cannot be considered wages under § 39-71-123, MCA, and therefore cannot be used in calculating his average weekly wage for purposes of workers' compensation benefits.
Siaperas v. State Fund [1/15/04] 2004 MTWCC 4 Where the claimant, who was injured in September 1996, received substantial quarterly bonuses on a regular basis, and those bonuses are not reflected in her last four pay periods, her year-to-date earnings should be used in computing her average weekly wage. § 39-71-123(3)(b), MCA (1995).
Greene v. UEF [4/9/03] 2003 MTWCC 27 For purposes of determining the claimant's compensation rate, any back pay the claimant is entitled to on account of the employer's failure to comply with minimum wage and overtime pay requirements must be included. § 39-71-123(1)(b), MCA (1999).
Brodie v. Liberty NW Ins. Corp. [6/01/01] 2001 MTWCC 30 Where claimant had been employed on a seasonable basis for several years, but her employment had been terminated at the end of each season, and she was forced to reapply for employment with no guarantee of re-employment, her wages must be computed using her latest employment only. Wages for prior employments may not be considered. § 39-71-123(3).
Siegler v. Liberty Ins. Corp. [5/15/01] 2001 MTWCC 23 Where claimant worked less than four pay periods prior to his injury, but the insurer stipulated he would have worked as many hours as his replacement, the replacement's average hours will be used to determine claimant's weekly hours.
Lindskog vs. State Fund [9/13/00] 2000 MTWCC 61 Evidence of significant fluctuation in claimant's pre-injury wages provided good cause under section 39-71-123(3)(b), MCA (1997) to use more than the four pay periods preceding injury in calculating average weekly wages. Court looked to the entire prior year's wages to avoid impact of seasonal wage fluctuation.

Applying ARM 24.29.720, $7 per week added to wage rate where employer paid flat rate for meals $1 in excess of rate paid to state employees.
Burner v. UEF [12/15/98] 1998 MTWCC 89 In a bench ruling, Court found claimant's weekly wages to be hourly rate ($8) times 40 hours per week, relying on claimant's testimony and that of person who hired him, which suggested that claimant was on track to work forty hours per week.
Bates v. Ranger Ins. [6/3/97] 1997 MTWCC 34 Former nurses aide, who is permanently totally disabled, claimed her weekly wages for purposes of determining her PTD rate should include overtime. 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.
King v. State Fund [7/16/96] 1996 MTWCC 52 Where claimant worked four pay periods prior to injury, the insurer was not required to base wages on fewer than four pay periods in order to increase her wage rate. Under section 39-71-123(3), MCA (1991), the insurer is directed to use the average actual earnings for the four pay periods preceding the injury, with two exceptions, neither of which supports claimant's request to use fewer than four pay periods. (Note WCC affirmed in King v. State Fund, 282 Mont. 335, 938 P.2d 607 (1997).
Lugo v. Mont. Hosp. Assoc., Workers' Compensation Trust [11/01/95] 1995 MTWCC 86] Unemployment benefits received by part-time worker are not included in his average weekly wage where section 39-71-123, MCA (1993) defines wages as gross remuneration "for services rendered by an employee."
Robertson v. State Compensation Ins. Fund [01/23/95] 1995 MTWCC 4 When an employee’s term of employment for the same employer is less than four pay periods, the employee’s wages for purposes of workers’ compensation benefits “are the hourly rate times the number of hours in a week for which the employee was hired to work.” Although contract for temporary job stated that project could last 5 to 6 days, and shifts were 12 hours in length, claimant was told he would work for the duration of the project. Where no employee working on the project in fact worked more than 47 hours, claimant’s request for weekly wage based on 72 hours per week was rejected, with Court determining his benefits should be calculated on the basis of a 47-hour work week. Affirmed in Robertson v. Aero-Power Vac, Inc. and Montana State Fund, 272 Mont. 85 (No. 95-089).