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David v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

March 18, 1994

CURT DAVID Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for MIKE McCOY Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter JUDGE

         The 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.

         Having considered the Pretrial Order, the testimony presented at trial, the demeanor of the witnesses, and the exhibits, the Court makes the following:

         FINDINGS OF FACT

         1. 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.

         2. 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.

         3. On 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.

         4. 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.)

         5. At the time of the injury the State Fund insured McCoy. It accepted liability for the claim.

         6. The 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.

         7. 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.

         8. 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:

January 1993

$447.50

February 1993

360.00

March 1993

350.00

April 1993

560.00

TOTAL EARNINGS

$1, 717.50

         For the period of January 3, 1993 and April 25, 1993, petitioner's average weekly earnings from his ...


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