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Wood v. Montana School Groups Insurance Authority

Court of Workers Compensation of Montana

August 12, 1994

STEVE WOOD Petitioner
v.
MONTANA SCHOOL GROUPS INSURANCE AUTHORITY Respondent/Insurer for BIG SKY SCHOOL Employer.

          ORDER GRANTING PARTIAL SUMMARY JUDGMENT

          MIKE MCCARTER JUDGE

         This matter is before the Court on a motion for summary ruling filed by the respondent, Montana School Groups Insurance Authority (MSGIA). Petitioner, Steve Wood (Wood), agrees that the issues raised by the MSGIA's motion are appropriate ones for summary judgment but argues that they should be resolved in his favor. [1] However, he also contends that after resolving those issues, others still remain for trial. Neither party has requested oral argument.

         Summary Judgment Standard

         The rules of this Court recognize motions for summary rulings, ARM 24.5.316, but provide no further guidance with respect to such motions. It has therefore been the practice of the Court in recent decisions to treat motions for summary rulings as motions for summary judgment and to apply Rule 56, Mont.R.Civ.P. E.g., State Compensation Ins. Fund v. Frank Richter, WCC. No. 9308-6367, Order Denying Summary Judgment (March 4, 1994). Rule 56 (c), Mont.R.Civ.P., provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to a judgment as a matter of law." See also First Security Bank v. Vander Pas, 250 Mont. 148, 152, 818 P.2d 384 (1991). The rule also contemplates partial summary judgment where uncontroverted facts permit resolution of some but not all issues presented in the case. Rule 56 (d), Mont.R.Civ.P. The issues presented by MSGIA's motion are essentially legal in nature, so there is no need for an extended discussion of the required factual basis for summary judgment.

         Discussion

         Mr. Wood suffered an industrial accident on November 8, 1990, while employed as a maintenance engineer at Big Sky High School in Missoula. MSGIA accepted liability for the claim and paid temporary total disability benefits and medical expenses. The first controversy in this case is over the computation of Wood's actual wages for purposes of determining the amount of temporary total disability benefits and wage supplement benefits. The second controversy is over Wood's entitlement to wage supplement benefits.

         I. Computation Of Wages

         In addition to his employment at Big Sky High School, Wood operated his own excavation business and also worked as a ditch rider for Big Flat Irrigation District, a job that was seasonal. In computing "the wages received at the time of the injury," § 39-79-701, 702 and 703, MCA (1989), [2] MSGIA has refused to include wages from either employment on the ground that those employments were not "concurrent." It also refuses to include any amounts from self-employment because claimant elected not to obtain workers' compensation insurance coverage for his own business.

         Section 39-71-123, MCA (1989) defines "wages" for purposes of the Workers' Compensation Act. It therefore defines "wages" for purposes of calculating temporary total disability benefits (§ 39-71-701 (3), MCA (1989)) and wage supplement benefits (§ 39-71-703 (b)(i), MCA (1989)). The section requires inclusion of wages from concurrent employments in computing wages, but specifically excludes wages from self-employment where the self-employed worker elects not to be covered by workers' compensation insurance. Section 39-71-123 (4)(c), MCA provides:

(c) The compensation benefits for an employee working at two or more concurrent remunerated employments must be based on the aggregate of average actual wages of all employments, except self-employment as a sole proprietor or partner who elected not to be covered, from which the employee is disabled by the injury incurred. [Italic added.]

         Wood testified in his deposition that he operated his excavation business as a sole proprietor and was not covered by workers' compensation insurance. (Wood Dep. at 16, 20.) Therefore, Wood's earnings from his excavation business have been properly excluded by MSGIA in computing his time-of-injury wages.[3]

         MSGIA argues that the claimant's wages from employment as a ditch rider should also be excluded in the wage calculation because that employment was not "concurrent" within the meaning of the statute. The facts concerning the employment are not in dispute. Claimant had worked for several years for the irrigation district. His employment was seasonal, running from April to October of each year. In 1990 he worked until mid-October, approximately three weeks prior to his November 8, 1990 injury. He planned on continuing as a ditch rider the next spring and the irrigation district considered his employment to be continuous. He was free to seek other employment and "would have taken a better job if one had been offered." (Wood Affidavit.) However, he would have given the irrigation district at least two weeks notice had he accepted another job.

         In Lamping v. State Compensation Ins. Fund., WCC No. 9303-6738 (August 25, 1993), this Court held that a school bus driver's wages were from concurrent employment even though the driver was injured on a summer job and did not drive for the school district during the summer months. The claimant in Lamping was injured on July 19, 1988, while working for Helena Sand and Gravel. During the school year he was employed as a school bus driver. The prior school year had ended, and he had not driven for the school district since June, 1988. However, he had signed a contract to drive a bus during the upcoming school year. MSGIA argues that Lamping was wrongly decided and that in any event the written contract in Lamping distinguishes it from this case.

         In Lamping the insurer argued that the claimant's employment as a bus driver during the school year was not "concurrent employment" because he was not actually employed at that job at the time of his injury. My predecessor in office, Judge Timothy W. Reardon, disagreed. While observing that the "at the time of injury" language in sections 39-71-701 and 702, MCA "suggests that claimant's bus driving wage perhaps should not be included," he concluded that prior precedents of the Montana Supreme Court mandated the inclusion of the bus driving wages in computing benefits. (Lamping at 10; italics added.)

         I have on previous occasions overruled prior legal precedents of this Court, but I have done so only when I have reached a firm and reasoned conviction that the original decision was erroneous as a matter of law. However I might have decided the issue if presented as a matter of first impression, I view the issue as a difficult one and conclude that even if further analysis caused me to reach a contrary conclusion, I would be unable to reach a level of conviction which would permit me to overrule Lamping. As Judge Reardon noted, there is precedent for consideration of seasonal fluctuations in employment when determining wages. E.g., Sandahl v. James A. Slack, Inc., 225 Mont. 208, 732 P.2d 831 (1987). After Lamping's injury the 1989 Legislature added a specific provision concerning concurrent injuries. §39-71-123 (4), MCA (enacted by 1989 Montana Laws, ch. 333, § 12.) That provision, however, does not define "concurrent" and expressly ties the method of calculating concurrent wages to the method for calculating the wages of the time-of-injury job. Section 39-71-123 (4) (a), MCA provides:

For the purpose of calculating compensation benefits for an employee working concurrent employments, the average actual wages must be calculated as provided in subsection (3).

         Subsection (3) in turn provides that:

(3) For compensation benefit purposes, the average actual wages four pay periods immediately preceding the injury are the ...

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