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Reinhardt v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

November 22, 1994

KELLY REINHARDT Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for BILLINGS HOSPITALITY ASSOCIATES, INCORPORATED Employer.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter, Judge.

         On August 12, 1994, the Court was advised that counsel representing the petitioner, Mr. Gary Overfelt, and counsel representing the respondent, Mr. Laurence A. Hubbard, were in agreement that this matter could be submitted for decision based on the Court file, a statement of uncontested facts, and briefs. On November 4, 1994, the Court received a stipulation of relevant facts.

         Issue Presented: The issue to be determined by the Court is whether claimant's pre-injury part-time earnings must be compared to the post-injury wages she is qualified to earn in the open market on a full-time basis.

         Having considered the Court file in its entirety, the stipulation, and the briefs filed by the parties, the Court adopts the stipulation of relevant facts and enters its conclusions of law and judgment as follows:

         STIPULATION OF FACTS

         1. On or about January 24, 1989 Petitioner, Kelly Reinhardt, suffered an industrial injury within the course and scope of employment with Billings Hospitality Associates, Billings, Montana.

         2. At the time of Petitioner's injury, the employer was insured by Plan 3, State Fund, of the Workers' Compensation Act.

         3. At the time of her injury, and at all relevant times hereto, Petitioner was employed on a part-time basis. Petitioner's employment on a part-time basis was voluntary due to her desire to spend time with her children at home. The time-of-injury job of banquet waitress was only available on a part-time basis and the employer did not have full-time positions available for that job. In the year preceding her injury, the Petitioner worked a total of 896.75 regular hours and 18.79 hours of overtime, resulting in an average work week of 17.6 hours. At the time of the injury, the Petitioner earned a base wage of $3.40 per hour. However, when gratuities are included, the Petitioner's earnings for 1988 totaled $10, 309.25 which results in an average weekly wage of $197.71.

         4. Petitioner has been medically precluded from returning to work at her time of injury job as a banquet waitress. On or about September 13, 1993, Petitioner's treating physician, James Lovitt, medically approved the positions of motel clerk and customer service associate/books, music and videos, on a full-time basis. The Petitioner has been vocationally approved for the two positions at jobs she is qualified to perform and at jobs that are typically available. The entry level wage for these jobs is $4.25 per hour. Petitioner still desires to work part-time post-injury to be at home with her young children.

         CONCLUSIONS OF LAW

         1. The statutes in effect on the date of claimant's injury govern. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 730 P.2d 380 (1986). Thus, the 1987 version of the Workers' Compensation Act applies.

         2. Section 39-71-703, MCA (1987), provides in relevant part:

39-71-703. Compensation for permanent partial disability -- impairment awards and wage supplements. (1) The benefits available for permanent partial disability are impairment awards and wage supplements. A worker who has reached maximum healing and is not eligible for permanent total disability benefits but who has a medically determined physical restriction as a result of a ...

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