Wages: Qualified to Earn

Carey v. American Home Assurance Co. [02/01/10] 2010 MTWCC 3 Although the Court found that the claimant's new job paid more than $2 per hour less than her time-of-injury job, the Court concluded the claimant was not entitled to PPD benefits under § 39-71-703(5)(c), MCA, because she successfully returned to her unmodified time-of-injury position at the wage she was earning prior to her industrial accident and chose not to apply for similar positions which she was admittedly qualified for after her job position was eliminated for reasons unrelated to her industrial injury.
McCuin v. Montana State Fund [12/21/06] 2006 MTWCC 41 The provision for post-injury wages based on what a claimant is “qualified to earn” takes into account the possibility that the claimant may not return to work immediately after reaching maximum healing or may be underemployed. Masters v. Liberty Northwest Ins. Corp., 2000 MTWCC 1 ¶37, citing § 39-71-703(5)(c), MCA (1997). “Qualified to earn” means that a claimant must be employable in fact, not only in theory. Siegler v. Liberty Ins. Corp., 2001 MTWCC 35, ¶ 3. Where Petitioner was incarcerated, he was qualified to earn more than he was earning and was unemployed because he absented himself from the job market by committing a crime which resulted in incarceration.
Masters v. Liberty Northwest Ins. Corp. [2/4/00] 2000 MTWCC 10 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.
Masters v. Liberty Northwest Ins. Corp. [1/6/00] 2000 MTWCC 1 Under section 39-71-703(5), MCA (1997), the measure of post-injury wages by what claimant is "qualified to earn" takes into account the possibility that claimant may not return to work immediately after reaching MMI or may be underemployed.

What claimant is "qualified to earn" in entry level positions is determined by her actual job opportunities, not some hypothetical highest wage, or even average wage, unless she is in fact competitive for the higher or average wage positions. In light of claimant's lack of prior experience in positions at issue, and her need for some OJT training, claimant is competitive only for the lower paying jobs in these positions, meaning she has a wage loss under 39-71-703 and is entitled to additional PPD benefits.

Gates v. Liberty Northwest Ins. Co. [11/07/95] 1995 MTWCC 94 Where the claimant is capable of working but does not return to work, to determine wage loss under section 39-71-703(c), MCA (1993), the Court looks to what he is capable of earning, that is, what jobs he is likely to obtain if he made a diligent job search. High end wages may be appropriate in one case, but inappropriate in another. If evidence establishes he will not likely obtain a high-end job, but can do better than a low-end job, an average of all wages for approved positions may be appropriate.