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Chaffey v. Liberty Mutual Fire Insurance Co.

Court of Workers Compensation of Montana

January 25, 1994

TED CHAFFEY Petitioner

          Submitted: April 28, 1993


          Mike McCarter JUDGE

         The above-entitled matter was duly heard by Court-appointed Hearing Examiner, ROBERT J. CAMPBELL who conducted the hearing, considered the evidence and prepared and submitted Findings of Fact and Conclusions of Law and Proposed Judgment for consideration by the Court.

         The Court has reviewed the record of the proceedings. I also requested and received additional arguments from counsel concerning questions I had after my initial review of the hearing examiner's proposed decision. Having considered the additional arguments, I find that the hearing examiner's decision is correct except as to the amount of the wage supplement entitlement.

         Prior to his injury the claimant worked five ten hour days a week. With overtime he averaged a 55hour work week.

         The hearing examiner has determined that claimant is now limited to a 45-hour work week. I am persuaded that the finding is correct. Dr. Hilleboe medically restricted claimant to driving 45 hours a week. His testimony concerning the restriction was strong and unequivocal. While claimant is required to stop every 2 hours to check tires, thus providing him an opportunity to stretch and walk around, he spends most of his time in his truck driving. Evidence does not indicate that the time involved in tire-checks and a turn-around in Helena was substantial. While claimant may exceed the 45 hour a week limit on occasion, that fact does not prove that he could work 55 hours a week on the average. He testified that following his return to work he attempted a five-day work week but experienced discomfort. (Tr. at 21) In 1991 and 1992 he averaged 45.62 and 45.19 hours a week respectively. The averages are very close to the 45 hour restriction.

         However, we must still determine if claimant is entitled to wage supplement benefits based on the difference in hours. The insurer argues that claimant's work week was reduced to 45 hours for reasons unrelated to his injury, and that he therefore suffered no wage loss on account of his injury. Claimant responds that the statutory formula for wage supplement benefits is mechanical and must be applied whether or not the wage loss was in fact caused by the injury.

         The wage supplement benefit is computed by multiplying "the difference between the worker's actual wages at the time of the injury and the wages the worker is qualified to earn in the worker's job pool" by two thirds (2/3). Section 39-71-703 (1)(b)(i), MCA (1989). There is a statutory cap on the benefit. Id. If claimant's argument is adopted, the benefit is payable whether or not the difference resulting from the calculation is a consequence of the injury. The benefit would be payable even if the lesser wage the worker is qualified to earn in his post-injury job market is due entirely to circumstances unrelated to the injury, e.g. the elimination of the highest paid jobs from the job market on account of independent business or economic reasons. The benefit would also be payable even if the worker's inability to perform jobs within his pre-injury job market is due to reasons other than his industrial injury, e.g., to some other non-work injury or disease.

         The wage supplement provisions must be construed reasonably and with common sense. "It is a well-established rule of statutory construction that a statute be read as a whole and construed so as to avoid absurd results." Dover Ranch v. Yellowstone County, 187 Mont. 276, 283, 609 P.2d 711 (f1980). The purpose of the wage supplement is to compensate the worker for lost wages resulting from his industrial injury. The requirement of a causal connection is implicit in the statute, and it is explicit in the statement of purpose adopted by the legislature when it enacted the wage supplement provision. Section 39-71-105(1), MCA (1989), enacted in 1987, sets forth the following statement regarding wage loss benefits:

39-71-105. Declaration of public policy. For the purposes of interpreting and applying Title 39, chapters 71 and 72, the following is the public policy of this stated:
(1) . . . Wage-loss benefits are not intended to make an injured worker whole; they are intended to assist a worker at a reasonable cost to the employer. Within that limitation, the wage-loss benefit should bear a reasonable relationship to actual wages lost as a result of a work-related injury or disease. [Emphasis added.]

         Therefore, the claimant is not entitled to a wage supplement if the difference in his pre-injury wage and the wage he is qualified to earn in his post-injury job market is caused by circumstances unrelated to his injury.

         The evidence that the difference in this case is in fact attributable to claimant's injury is sufficient and convincing.

         At the time of his injury the claimant was one of three full-time feeder truck drivers working at the UPS regional center in Kalispell. Prior to his injury all three drivers worked five, ten hour days a week. Upon his return to work, UPS cut the days of work of all three drivers to four, ten hour days a week. There is uncontradicted evidence that the cutback in days of work was authorized by the contract between UPS and the union, of which claimant was a member. Other regional centers had adopted similar cutbacks. Thus, at first glance it would appear that the new policy was the independent intervening cause of claimant's lost hours of work.

         However, the cutback was effected only after claimant consented to it. Claimant's consent, as well as the consent of the other two feeder drivers, was required by the Union contract. Claimant testified that he consented to the cutback because of by his back injury. Before the cutback was broached by UPS, claimant had already requested "a four-day work week" on account of his medical restrictions. (Tr. at 21.) Thus, there is substantial evidence supporting a conclusion that the claimant's injury was a substantial factor in the elimination of the 55 hour position from his Kalispell labor market.

         There is also other evidence to support a finding that the wages which claimant is qualified to earn in his job pool were diminished by his injury. As the most senior employee at the Kalispell center, claimant had the option of taking another UPS driving job with a work-week greater than 45 hours. He declined the option because of his injury. (Tr. at 25.) There are also five other UPS feeder driving positions in Montana which still have five, ten hour day work weeks. All are located in rural areas far from Kalispell, namely Cut Bank, Havre, Malta, Lewistown and Broadus. (Tr. at 63.) In light of claimant's many years of residence in Kalispell, it is doubtful that he would pursue these jobs even if fully healthy, and his seniority at the Kalispell center would not provide him with any preference in applying for the positions. However, the wage supplement statute is based on the availability of jobs in the market, not on actual job openings, or the likelihood of a worker actually securing a particular position, or the geographical preferences of a worker. But for his injury, the five feeder driving positions would have been within the claimant's job market. Therefore, they provide an additional nexus between the claimant's injury and any wage loss benefit.

         The remaining matter to be decided is the calculation itself. The hearing examiner calculated the benefit by using claimant's wages from the four weeks immediately preceding the injury but increased those wages to reflect an increase in hourly pay which occurred subsequent to the injury. This resulted in wage supplement benefits based on current wages rather than the wages paid at the time of the injury, which is contrary to the statutory directive that the wages used in the calculation are "the worker's acknowledged wages at the time of the injury." Section 39-71-703 (1)(b)(i), MCA. Since the wage loss in this case is based on simple multiplication of the lost hours by the hourly wage, it was unnecessary and improper to use the present wage in the calculation.

         The calculation further distorts the benefit because it fails to account for the fact that the wages for the four weeks immediately preceding the injury included overtime hours at time and a half. While the hearing examiner's calculations assumed that all hours were paid at straight time, and similarly used straight time to compute wages for the 45 hour post-injury work week, this method of calculation in effect gave claimant credit for working an average pre-injury work week of 61 hours. ($983.41 divided by $16.13 equals 60.9677.) A review of pay records for the four pay periods immediately preceding the injury reflect claimant's actual overtime as follows:

Week ending

Overtime hours












         This average is somewhat more than the average number of overtime hours for the three previous years, which were as follows:


Average weekly overtime








         While almost two hours a week higher than the three year average, the four week average is not grossly disproportionate to the three year average and is consistent with the three year upward trend. I conclude that the average overtime hours for the four weeks preceding the injury is representative of overtime hours worked by claimant. See section 39-71-123(3), MCA. That average will therefore be used in calculating the wage supplement benefit.

         Claimant is medically limited to 45 hours a week, or 5 overtime hours weekly. In 1991 and 1992 he in fact averaged 5.405 hours a week in overtime, which is consistent with the limitation. Since actual hours are used in the pre-injury calculation, actual hours should also be used in post-injury calculations.[1] Using those hours, claimant is entitled to a $120.86 weekly wage supplement (16.645 minus 5.405 times 16.13 times 2/3) for 500 weeks, less any impairment award and wage supplement benefits already paid.

         THEREFORE, IT IS HEREBY ORDERED that the Findings of Fact and Conclusions of Law and Proposed Judgement of the Hearing Examiner are adopted with the revisions set forth in this order. Insofar as the Hearing Examiner's specific findings of fact and conclusion of law number are inconsistent with this Order, the Order shall govern.

         ACCORDINGLY, IT IS FURTHER ORDERED that Judgement is entered as follows:

         1.This Court has jurisdiction over this matter pursuant to section 39-71-2905, MCA.

         2. Claimant is entitled to 500 weeks of wage supplement benefits in the amount of $120.86 per week pursuant to section 39-71-703, MCA (1989). The defendant is entitled to a credit for any impairment award and wage supplement benefits previously paid.

         3. Claimant is not entitled to a 20 percent penalty pursuant to section 39-71-2907, MCA.

         4. Claimant is entitled to costs but not an attorney fee pursuant to section 39-71-612(2), MCA (1989).

         5.The JUDGMENT herein is certified as final for purposes of appeal pursuant to ARM 24.5.348.

         6.Any party to this dispute may have 20 days in which to request a rehearing from this Order Adopting Findings of Fact and Conclusions of Law and Proposed Judgment of the Hearing Examiner and Entering Judgment.


         1. Claimant filed a petition to resolve a dispute between himself and the insurer under Title 39, Chapter 71, Part 29, MCA.

         2. The Clerk of Court gave notice to interested parties of (a) the time, place and nature of the trial; (b) the legal authority and jurisdiction under which the trial was to be held; (c) the particular sections of the statutes and rules involved; and (d) the matters asserted by notifying all parties who appeared of record to have an interest by mailing to them a copy of the ORDER SETTING TRIAL AND PRETRIAL CONFERENCE with a copy of the PETITION FOR HEARING attached and a copy of the Clerk's Certificate of Mailing the Order and Petition. Section 2-4-601, MCA.

         3.A pretrial conference was conducted on January 27, 1993, before Clarice V. Beck, Hearing Examiner. The Pretrial Order was docketed on February 24, 1993. Pertinent parts of the Pretrial Order are as follows:

         STATEMENT ...

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