Wages: Overtime

MONTANA SUPREME COURT DECISIONS

Flink v. American Alternative Ins. Co., 2000 MT 224 WCC erred in concluding that overtime hours claimant would have worked if not injured were speculative where employer did not guarantee overtime or hire her to work a scheduled number of overtime hours. The WCC should have determined the amount of overtime hours claimant would have worked based on circumstantial evidence. Those additional hours should have been included in her wage rate for purposes of determining benefits.

MONTANA WORKERS' COMPENSATION COURT DECISIONS

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.

Flink v. American Alternative Ins. Co.[11/22/00] 2000 MTWCC 73 Where there is no guarantee of overtime but overtime is expected, and the worker is injured shortly after becoming employed, the best evidence of the number of overtime hours she would have worked is the overtime hours worked by a similarly situated employee. See Flink 2000 MT 224.

Kapphan v. State Fund [2/17/00] 2000 MTWCC 8 Under 39-71-703, MCA (1997), claimant entitled to wage loss benefits of 10%, not 20%, where proper calculations indicated he suffered wage loss of $1.70 per hour after injury. Court compared actual hourly earnings pre-injury (total weekly earnings divided by 60, where claimant worked 60 hour weeks) with actual post-injury hourly earnings. Court refused to find claimant's wage loss was greater where he was working 60 hours pre-injury and only 40 hours post-injury because it did not credit claimant's testimony that he could no longer work additional hours and no medical evidence suggested he was in fact limited.

Flink v. American Alternative Ins. Co. [5/25/99] 1999 MTWCC 36 Although the WCC found it more probable than not that claimant would have worked overtime had she continued her employment, the Court was unable to find, on a more probable than not basis, how may hours claimant would have worked. Thus, the WCC refused to include overtime hours in the wage rate appropriate for computing benefits. [Note: the decision of the WCC regarding the exclusion of possible overtime hours in the wage rate was reversed in Annette Flink v. American Alternative, 2000 MT 224.]

McLaughlin v. ANR [6/4/97] 1997 MTWCC 36 A 45-year old truck driver suffered crush injury to hand and wrist. No longer able to perform trucking work, he obtained an accounts manager job with his same employer. When adjustments are made for the fact that he now works an average of 65 hours per week, while previously working on average 42 hours in the trucking job, he sustained a loss-of-earning capacity of $166.40 weekly. Under loss of earning capacity theory, sections 39-71-703 and -705, MCA (1985), he is entitled to 280 weeks of PPD benefits for the loss of use of his arm through the shoulder.

Bates v. Ranger Ins. [6/3/97] 1997 WCC 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.

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).