FINDINGS OF FACT, CONCLUSIONS OF LAW AND
trial in this matter was held on February 2, 1994, in
Billings, Montana. Petitioner, Curt David (claimant), was
present and represented by Mr. Patrick R. Sheehy. Respondent,
State Compensation Insurance Fund (State Fund), was
represented by Mr. Daniel J. Whyte. Claimant, Dennis Small
and Mike McCoy were sworn and testified. Exhibit Nos. 1
through No. 8 were admitted into evidence.
considered the Pretrial Order, the testimony presented at
trial, the demeanor of the witnesses, and the exhibits, the
Court makes the following:
Claimant is 33 years old and has a high school education and
some scattered college credits. His work history is primarily
as a cowboy, including rodeo work, but he is also trained as
a massage therapist.
Claimant suffered a previous back injury in 1986 and
underwent a fusion of his lower lumbar vertebrae. During
surgery rods were affixed to the vertebrae.
April 25, 1993, claimant was hired by Mike McCoy to work for
a single day moving cattle. Wages were not discussed but both
McCoy and claimant understood that claimant would be paid
$50.00. There was no prospect of additional employment beyond
the one day of work.
While moving cattle the claimant's horse bucked. The
bucking caused the rods in claimant's back to break,
although his fusion remained intact. (Ex. No. 3.)
the time of the injury the State Fund insured McCoy. It
accepted liability for the claim.
State Fund paid claimant temporary total disability benefits
for a period of eighteen weeks and four days at a rate of
$33.33. The rate was based on a weekly wage of $50.00.
Claimant disputes the temporary total disability rate but not
the duration of benefits. He alleges that his weekly wage
should be computed by multiplying $50.00 a day times five
days a week. He also contends that in computing his weekly
wage the earnings from his work as a massage therapist and
projected earnings from work as a rodeo clown/bull fighter
should be added.
Prior to his 1993 injury claimant worked as a self-employed
massage therapist at the Billings YMCA. In exchange for his
offering massage therapy at the YMCA facility, the YMCA
provided him office space but, as claimant sets forth in his
proposed findings of fact, he "developed his own
clientele at the Y and was paid by his clientele, not by the
Y." Claimant's earnings as a massage therapist for
the year of 1993 were as follows:
period of January 3, 1993 and April 25, 1993,
petitioner's average weekly earnings from his ...