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Pollari v. Maco Workers' Compensation Trust

Court of Workers Compensation of Montana

December 21, 1994

PATTI POLLARI Petitioner
v.
MACO WORKERS' COMPENSATION TRUST Respondent/Insurer.

          DECISION AND JUDGMENT

          Mike McCarter JUDGE

         Summary: Parties disputed claimant's entitlement to permanent partial disability benefits based on alleged wage loss.

         Held: Under section 39-71-703, MCA (1991), where claimant is working, wage loss for purposes of permanent partial disability benefits must be computed on a comparison of claimant's wages for her time-of-injury job and her wages for her post-injury work. The comparison must be made for the same time period, because wages may rise over time. Where the wages for claimant's post-injury work, for all periods of time, were less than her time-of-injury wages, but not more than two dollars per hour less, she is entitled to a 10% PPD award.

         Topics:

Constitutions, Statutes, Regulations, and Rules: Montana Code Annotated: section 39-71-703, MCA (1993). Under section 39-71-703, MCA (1991), where claimant is working, wage loss for purposes of permanent partial disability benefits must be computed on a comparison of wages for claimant's time-of-injury job and those for post-injury work. The comparison must be made for the same time period, because wages may rise over time. Where the wages for claimant's post-injury work were less than her time-of-injury wages, but not more than two dollars per hour less, she was entitled to a 10% PPD award.
Benefits: Permanent Partial Disability Benefits: Wage Loss. Under section 39-71-703, MCA (1991), where claimant is working, wage loss for purposes of permanent partial disability benefits must be computed on a comparison of wages for claimant's time-of-injury job and those for post-injury work. The comparison must be made for the same time period, because wages may rise over time. Where the wages for claimant's post-injury work were less than her time-of-injury wages, but not more than two dollars per hour less, she was entitled to a 10% PPD award.

         This case comes to the Court on an agreed stipulation of facts and briefs. The Court will, therefore, render its decision in narrative form.

         Agreed Facts and Nature of the Dispute

         Petitioner, Patti Pollari (claimant), was injured in an industrial accident on June 22, 1993. At that time she was working for Pioneer Nursing Home (Pioneer). She hurt her back while transferring a patient from a chair to a bed.

         At the time of the accident, Pioneer was insured under the Montana Association of Counties Workers' Compensation Trust (MACO). MACO accepted liability for claimant's injury and has paid medical costs and temporary total disability benefits.

         MACO also concedes that it is responsible for permanent partial disability benefits. However, the amount of its liability is in dispute. Under the formula set forth in section 39-71-703, MCA (1991), the parties agree that claimant is entitled to a twenty-nine (29%) percent award based on a five (5%) percent impairment rating, two (2%) percent for claimant's age, two (2%) percent for her education, and twenty (20%) percent for her physical restrictions. Claimant asserts that she is entitled to an additional ten (10%) percent for lost wages. MACO disagrees, hence this action.

         The parties' stipulation provides the Court with the following wage information:

Claimant's salary for February 1993 was $846.00; the March salary was at a reduced figure due to claimant taking a nurse's aide test; April salary was $814.50; May was $957.13; and June was $866.88.
At the time of claimant's injury, her salary was $4.75 per hour for a 40-hour week. As of July 1, 1993, the position paid $5.25 per hour; and as of July 1, 1994, the position paid $6.10 per hour. At times, claimant was paid overtime, and she received vacation pay, health insurance, and sick leave.
On October 15, 1993, claimant began employment with Town Pump at the rate of $5.00 per hour for a 40-hour week. As of June 22, 1993, the person in the position now held by claimant was $4.50 per hour. On June 15, 1994, claimant's salary was raised to $6.00 per ...

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