Wages: Wage Loss

MONTANA SUPREME COURT DECISIONS
Tinker v. Montana State Fund [06/24/09] 2009 MT 218 A determination of whether a worker is “disabled” would of necessity be measured by reference to whether he or she suffered a wage loss.
Tinker v. Montana State Fund [06/24/09] 2009 MT 218 Within the Workers’ Compensation Act, “disability” is defined with reference to a worker’s diminished capacity to work and earn wages. Until a claimant knows that he or she is suffering some form of wage loss as a result of an injury, condition, or impairment, then he or she lacks knowledge of their “disability” within the meaning of the Act.
 
MONTANA WORKERS' COMPENSATION COURT DECISIONS

Dostal v. Uninsured Employers' Fund [02/16/12] 2012 MTWCC 5 An injured worker’s eligibility for TTD benefits is determined not by whether the worker performs labor, but by whether the worker has suffered a “total loss of wages” as set forth in § 39-71-701(1), MCA.

Chapman v. Twin City Fire Ins. Co. [11/05/10] 2010 MTWCC 30 Petitioner continued to perform her time-of-injury employment for several months after her industrial accident until she was terminated for performance issues.  Although a claimant could arguable demonstrate that attendance issues were related to difficulties from an industrial injury, in the present case, Petitioner was disciplined by her employer for insubordination and disregard for company policies or procedures; she has not demonstrated that these performances issues relate to her industrial injury.  Therefore, the Court concluded that Petitioner was terminated from her employment for reasons unrelated to her industrial injury and she therefore is not entitled to TTD benefits.

Sherwood v. Watkins & Shepard Trucking [06/30/10] 2010 MTWCC 19 A claimant who lost his job for performance issues and not because of his industrial injuries did not suffer a total loss of wages as the result of an injury.
Aldrich v. Montana State Fund [12/20/07] 2007 MTWCC 57 Where Petitioner had not worked for approximately eleven years and had been drawing Social Security retirement benefits for approximately two years, and none of the facts presented to the Court establish that Petitioner suffered any wage loss as a result of his injury when he was no longer at maximum healing, the Court held that Petitioner failed to meet his burden of proof that he was entitled to TTD benefits.
Markovich v. Liberty Northwest [06/14/07] 2007 MTWCC 21 Petitioner has not suffered an “actual wage loss” where he alleges he has been unable to find a position which pays what a vocational rehabilitation counselor determined he is qualified to earn and where he has conducted his search by reading classified ads in the local newspaper and posting his résumé on the Internet, which his counselor asserts is not an adequate method for searching for a professional-level job. Furthermore, Petitioner has demonstrated a passion and desire to pursue a career in teaching which he has pursued much more aggressively than he has pursued job opportunities for which he is qualified in the higher-paying public relations field.
Campbell v. MCCF [8/20/03] 2003 MTWCC 58 In determining what a claimant is "capable of earning" for purposes of determining "actual wage loss" under the 1999 Workers' Compensation Act, four factors are considered in determining whether a job can be included in the computation. First, the claimant must be physically capable of performing the job. Second, the claimant must be vocationally qualified for the job. Third, the job must be available in the claimant's geographical job market. Fourth, the claimant must have a reasonable prospect of actually securing the job.
Campbell v. MCCF [8/20/03] 2003 MTWCC 58 Under the 1999 Workers' Compensation Act, a claimant is entitled to PPD benefits in addition to an impairment award only if he or she suffers an actual wage loss. Wage loss is computed by subtracting the greater of what the claimant in fact earns or what he is capable of earning post-injury from his or her time-of-injury wage.
Siegler v. Liberty Ins. Corp. [6/22/01] 2001 MTWCC 35Actual wage loss is measured by post-injury earnings or, in the alternative, what the claimant "is qualified to earn." Post-injury wages in this case were less than time-of-injury wages, and respondent does not argue otherwise. "Qualified to earn" is what the claimant in fact is qualified to earn. Qualifications are measured in the real world, not hypothetically. If a claimant's physical disability or some other factor render him non-hireable in the open labor market for a particular job, then he is not qualified to earn the wages for that position.
Siegler v. Liberty Ins. Corp. [5/15/01] 2001 MTWCC 23 To demonstrate a wage loss for purposes showing entitlement to permanent partial disability and rehabilitation benefits, the claimant need only show that following his injury he was precluded from doing his time-of-injury job and that his actual earnings or earning capacity is less than the time-of-injury wages. Proof that he lost or would have lost his time-of-injury job irrespective of his injury is immaterial.
Siegler v. Liberty Ins. Corp. [5/15/01] 2001 MTWCC 23 Claimant's actual employment after his injury establishes his post-injury wage for wage loss purposes where there is no evidence indicating that claimant had a reasonable opportunity to obtain employment in the only other job which was medically approved for him.
Lalum v. Safeco Ins. [3/19/01] 2001 MTWCC 11 Where claimant=s immediate post-injury jobs include higher paying light-duty positions which have never been medically disapproved, there is no wage loss and therefore no entitlement to permanent partial benefits.  ' 39-71-703 (1995).
Delaney v. Hartford [3/1/01] 2001 MTWCC 10 Where the average wages for jobs which claimant is approved post-injury are less than his time-of-injury wage and vocational evidence is lacking which would show that claimant can reasonably be expected to earn high-end wages which equal or exceed his time-of-injury wage, the claimant has suffered a wage loss.
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.
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.
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.

Jenkins v. State Fund [7/30/99] 1999 MTWCC 47 Nurses aide hurt left shoulder at work. When she returned to work in a modified position pre-MMI, she hurt her right shoulder. Undisputed facts indicated she could not return to work as a nurses aide and suffered a wage loss. While claimant was entitled to a PPD award under section 39-71-703, MCA (1995) including percentages for wage loss, restrictions, age and impairment relating to the first injury, she was not entitled to a similar award relating to the second injury where that injury did not cause her wage loss.
Huffman v. Twin City Fire Ins. Co. [11/16/98] 1998 MTWCC 83 A 48-year old driver in the movie and television industry hurt his shoulder while working on the production of Lonesome Dove in Montana. With regard to wage loss benefits, the appropriate period to assess wages is the full year post-injury, given evidence that claimant's first post-injury job was not representative of his post-injury wages. See, section 39-71-123(3), MCA (1993). WCC was satisfied that since claimant returned to work, he has experienced periods of unemployment he would not otherwise have experienced. He was also forced to accept lower-paying, less physically demanding jobs when higher-paying, more physically demanding jobs, would have been available to him but for his injury. On a long term basis – one year and more – claimant has suffered a wage loss exceeding $2.00 an hour because of his injury.
McGillis v. State Fund [11/2/98] 1998 MTWCC 79 Under section 39-71-703(5)(c), MCA (1995), the wage loss factor is predicated on the difference between claimant's actual wage at the time of his injury and his actual wage he earns or is capable of earning after he reaches maximum medical healing. The subsection refers to wages generally and does not define the periods during which the wages are to be measured. Court holds that section 39-71-123(3)(a), MCA, provides some indication of the appropriate time period for considering post-injury wages under section 39-71-703(5)(c), MCA, leading the Court to look at earnings of a period not to exceed one year if earnings during the period of four paychecks does not give an appropriate indication of expected earnings. WCC finds that, over a one year period post-injury, claimant suffered a wage loss of greater than $2.00 an hour, entitling him to 20% for wage loss. While claimant did work at a relatively high wage rate for some periods post-injury, the credible evidence suggests that such work was a lucky break, not likely to be repeated, leaving claimant realistically in a much lower wage bracket.
Caplette v. Reliance National Indemnity Co. [10/1/98] 1998 MTWCC 69 Under section 39-71-703(1)(a), MCA (1995), claimant is entitled to PPD benefits for lost lifting capacity and wage loss only if he suffered an actual wage loss because of his injury. Similarly, under section 39-71-1011(2), MCA (1995), claimant is entitled to further rehabilitation benefits only if he proves an actual wage loss as the result of the injury. Claimant has not proved wage loss as the result of his injury where he earned a slightly lower wage post-injury because he chose to take a lower-paying job because it was scheduled to last longer and was closer to home. Moreover, his higher paying pre-injury job (a Davis-Bacon construction job) was only a short term job and he has not proven the injury caused him to lose the opportunity to work on such jobs. Although claimant now has a medium-duty restriction, he has not proved an actual loss of ability to find work as a heavy equipment operator at the same wage rate as the result of that restriction.
Anderson v. Hammer, 252 Mont. 73, 826 P.2d 931 (1992) Earning capacity must be measured by comparing pre-injury earning capacity with post-injury earning capacity in the same time frame. The WCC erred by subtracting 1990 post-injury wages from 1981 pre-injury wages to assess wage loss.
Kiefer v. Liberty NW Ins. Corp. [3/23/98] 1998 MTWCC 27 Even if Court had believed and accident occurred as alleged by claimant, claimant did not suffer a total loss of wages as a result of the alleged accident where he continued to work a second job after the alleged accident and quit the second job not on the advice of a physician and for reasons not related to his alleged condition.
Holcomb v. MMIA and Subsequent Injury Fund [12/2/97] 1997 MTWCC 66A A 46-year old former truck driver/laborer with the City of Missoula Street Department claimed wage supplement benefits under section 39-71-703, MCA (1987). Because the Subsequent Injury Fund was potentially liable, the matter was heard before a hearing officer of the Department of Labor pursuant to section 39-71-910, MCA (repealed in 1997), then appealed to the WCC. The hearing officer's finding that claimant is presently qualified to earn the same wage as his time-of-injury wage, and is thus not entitled to wage-loss benefits, is supported by the record. With the exception of time off for brief lay-offs, and to recover from medical treatment, claimant remained in employment with the same employer from his injury in 1987 until he resigned in 1996, to move to Bozeman, where his wife accepted a promotion with her employer. Although claimant argued he retained employment with the City of Missoula at his time-of-injury wage rate, and higher rates, only because the employer accommodated his condition, evidence indicated otherwise. There was also evidence that claimant is competitive for similar jobs in Bozeman once those positions come open. Appeal denied.
Bratcher v. Liberty Northwest Ins. Corp. [10/21/97] 1997 MTWCC 57 Former parts-runner for auto parts stores was not able to return to time of injury job after compensable car accident where she could no longer lift over fifty pounds. Although claimant returned to work as housekeeper earning $5.25 per hour, she was not entitled to PPD benefits for wage loss where she is "qualified to earn" at least $6.25 an hour, her time of injury wages. §39-71-703(5)(c), MCA (1995). Claimant has a high school education, a stable work history, and some experience dealing with customers in person and on the phone. She is qualified for and competitive for positions as receptionist or telemarketer paying $6.50 per hour and more. Such positions are and have been available in her area since her time of injury.
Miller v. Western Guaranty Fund Services [7/29/96] 1996 MTWCC 55 Where claimant elected to seek PPD benefits pursuant to section 39-71-703, MCA (1983), which provides lost earning capacity benefits, and the parties agreed to assess earning capacity based on 1996 wages, the Court set the PPD rate by finding claimant's likely wage as a waitress in 1996 if not injured and subtracting her probable 1996 wage as a receptionist, the position the Court deemed most likely claimant could obtain and perform.
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 earing 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.
Ware v. State Fund [5/15/96] 1996 MTWCC 34 Under 1991 Act, claimant not entitled to TTD during period he lost wages not as the result of his injury, but because he chose to move to be nearer his children. He was also not entitled to TTD during period for which he failed to establish he was unemployed as the result of flare-ups of his condition and not merely lack of immediate jobs in his labor market. He was entitled to back TTD, however, for period after which his shoulder condition deteriorated such that surgery was recommended, including period during which insurer insisted on further conservative treatment prior to paying for surgery.
Gates v. Liberty NW Ins. Co. [2/13/96] 1995 MTWCC 114A The WCC will not adopt a bright line rule defining a claimant’s geographical labor market for assessing permanent partial disability benefit entitlement. While the Court found Missoula, which is eighty miles from claimant’s home, to be outside this particular claimant’s geographical labor, each case must turn on its own facts, including consideration not only of distance in miles, but possibly also such matters as ease of travel in winter and claimant’s available transportation.
Gates v. Liberty NW Ins. Co. [12/29/95] 1995 MTWCC 114   Where a worker does not immediately return to work, the rehabilitation requirement of section 39-71-2001, MCA (1993), must be met before any determination is made regarding claimant’s post-injury wages.
Gates v. Liberty NW Ins. Co. [12/29/95] 1995 MTWCC 114   If a rehabilitation plan calls for immediate return to work, the time for measuring wage loss is at the time the eight weeks of rehabilitation benefits specified in section 39-71-2001(3), MCA (1993), are exhausted. If at that time the claimant has been unable to secure employment despite his best good faith efforts, his post-injury wage is zero and his entitlement to permanent partial disability benefits shall be computed accordingly. If a plan calls for retraining, then a reasonable time must be allowed for claimant to find work upon completion of the plan, at a minimum eight weeks, before wage loss is assessed.
Gates v. Liberty NW Ins. Co. [12/29/95] 1995 MTWCC 114  When assessing wage loss for purposes of permanent partial disability benefits, court will not consider jobs not available within a reasonable distance of claimant’s home or which claimant would not be able to obtain and perform.
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.