Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gates v. Liberty Northwest Insurance Companies

Court of Workers Compensation of Montana

November 7, 1995

JAN GATES Petitioner
v.
LIBERTY NORTHWEST INSURANCE COMPANIES Respondent/Insurer for DARBY LUMBER Employer.

          ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT

          Mike McCarter Judge

         Summary:

         Claimant has not returned to work since his industrial injury. He earned $9.50 per hour at time of injury; medically approved jobs identified by the insurer pay in a range from $4.25 to $9.73. Claimant seeks partial summary judgment that appropriate measure of wage loss would use average of medically approved jobs. Insurer argues for use of highest paid job, which would mean claimant would have no wage loss.

         Held:

         Partial summary judgment denied where the Court cannot determine the appropriate measure of wages on the facts given. Where the claimant is capable of working but does not return to work, the Court must determine what he is capable of earning, that is, what jobs he is likely to obtain if he made a diligent job search. High end wages may be appropriate in one case, but inappropriate in another. If evidence establishes he will not likely obtain a high-end job, but can do better than a low-end job, an average of all wages for approved positions may be appropriate.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-703, MCA (1993). Where the claimant is capable of working but does not return to work, to determine wage loss under section 39-71-703(c), MCA (1993), the Court looks to what he is capable of earning, that is, what jobs he is likely to obtain if he made a diligent job search. High end wages may be appropriate in one case, but inappropriate in another. If evidence establishes he will not likely obtain a high-end job, but can do better than a low-end job, an average of all wages for approved positions may be appropriate.
Wages: Wage Loss. Where the claimant is capable of working but does not return to work, to determine wage loss under section 39-71-703(c), MCA (1993), the Court looks to what he is capable of earning, that is, what jobs he is likely to obtain if he made a diligent job search. High end wages may be appropriate in one case, but inappropriate in another. If evidence establishes he will not likely obtain a high-end job, but can do better than a low-end job, an average of all wages for approved positions may be appropriate.
Wages: Qualified to earn. Where the claimant is capable of working but does not return to work, to determine wage loss under section 39-71-703(c), MCA (1993), the Court looks to what he is capable of earning, that is, what jobs he is likely to obtain if he made a diligent job search. High end wages may be appropriate in one case, but inappropriate in another. If evidence establishes he will not likely obtain a high-end job, but can do better than a low-end job, an average of all wages for approved positions may be appropriate.
Benefits: Permanent Partial Disability Benefits: Wage Loss. Where the claimant is capable of working but does not return to work, to determine wage loss under section 39-71-703(c), MCA (1993), the Court looks to what he is capable of earning, that is, what jobs he is likely to obtain if he made a diligent job search. High end wages may be appropriate in one case, but inappropriate in another. If evidence establishes he will not likely obtain a high-end job, but can do better than a low-end job, an average of all wages for approved positions may be appropriate.

         Petitioner (claimant) has moved for partial summary judgment, asking the Court to determine that, since he has not returned to work following an August 1993 injury, his wage loss for purposes of computing his percentage entitlement under section 39-71-703(c), MCA, is the difference between his wages at the time of his injury and the average wage of jobs which have been medically approved following his injury. Respondent, Liberty Northwest Insurance Co., argues that the highest wage for medically approved jobs must be used.

         The motion has been submitted on a Joint Stipulation of Parties. The essential facts set forth by the stipulation are as follows:

1. Claimant was injured at work on August 16, 1993, and has not returned to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.