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King v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

July 16, 1996

SONJA KING Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for SUPER 1 FOODS Employer.

          Submitted Date: May 29, 1996

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          Mike McCarter Judge

         Summary: Sole issue submitted by parties involved claimant's wage rate for permanent partial disability benefits. Under section 39-71-123, MCA (1991), the employee's wages for purposes of benefits are based on "the average actual earnings for the four pay periods immediately preceding the injury." Claimant had worked at least four pay periods prior to the injury, but her wages in the last three pay periods were higher than those in the earliest of the four periods. She asked for an order that wages be based only on the last three pay periods.

         Held: Section 39-71-123, MCA (1991) contains two exceptions to use of the four pay p-periods, but neither requires an insurer to use fewer than four pay periods when claimant worked a full four pay periods prior to injury. (Note, WCC affirmed in King v. State Compensation Insurance Fund, 282 Mont. 335, 938 P.2d 607 (1997) (No. 96-482).)

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-123(3), MCA (1991). Where claimant worked four pay periods prior to injury, the insurer was not required to base wages on fewer than four pay periods in order to increase her wage rate. Under section 39-71-123(3), MCA (1991), the insurer is directed to use the average actual earnings for the four pay periods preceding the injury, with two exceptions, neither of which supports claimant's request to use fewer than four pay periods. (Note WCC affirmed in King v. State Compensation Insurance Fund, 282 Mont. 335, 938 P.2d 607 (1997) (No. 96-482).)
Wages: Average Weekly Wage. Where claimant worked four pay periods prior to injury, the insurer was not required to base wages on fewer than four pay periods in order to increase her wage rate. Under section 39-71-123(3), MCA (1991), the insurer is directed to use the average actual earnings for the four pay periods preceding the injury, with two exceptions, neither of which supports claimant's request to use fewer than four pay periods. (Note WCC affirmed in King v. State Compensation Insurance Fund, 282 Mont. 335, 938 P.2d 607 (1997) (No. 96-482).)

         This case was scheduled for trial on April 22, 1996. At that time the parties advised the Court that all issues had been resolved except claimant's compensation rate. (Order Setting Briefing Schedule on Calculation of Wage Loss, April 25, 1996.) Counsel agreed to present that issue to the Court upon stipulated facts and briefs. No stipulated facts were filed with the Court other than those contained in the Pre-trial Order docketed on April 18, 1996. The parties also filed 14 agreed-to exhibits and have provided factual narrative in their briefs. Based on the exhibits and their narrative, there does not appear to be any dispute concerning the material facts, and in any event, the issue presented is essentially a legal one. Therefore, with the filing of Claimant's Reply Brief on May 29, 1996, the Court deemed this matter submitted for decision.

         Issue presented: Whether the calculation of a claimant's average weekly wage can be based upon post-injury wages.

         Since the issue presented is a legal one, and the factual background is not in dispute, this decision will be in narrative form.

         Factual Background

         The petitioner in this matter is Sonja King (claimant), who was injured on April 13, 1992, while working as a bakery salesperson at Super 1 Foods in Hamilton, Montana. She suffered a twisting injury of her neck. The State Compensation Insurance Fund (State Fund) insured Super 1 Foods and accepted liability for the injury. It has since paid both medical and disability benefits.

         Following her injury, claimant continued working. However, her job changed to that of a cake decorator, a position which she held during the remainder of her employment with Super 1 Foods.

         Although she continued working, claimant experienced neck pain. She was treated by a chiropractor until sometime in November 1993. The State Fund then referred her to Dr. Catherine Capps, an orthopedic surgeon, for evaluation. Claimant became pregnant in late 1993 and the evaluation by Dr. Capps was delayed.

         Claimant continued to work up until the birth of her child on July 19, 1994. After the birth of her child, Dr. Capps examined her and determined that she should not return to work as a bakery salesperson or as a cake decorator on account of her continuing neck pain. Ultimately, on March 1, 1995, Dr. Capps concluded that the claimant had reached maximum medical improvement and rated her impairment at 6% of the whole person.

         Prior to her industrial injury claimant worked 30.75 hours during the two weeks ending January 4, 1992. She did not work during the remainder of January. In February 1992 she worked 34.25 hours during the two weeks ending February 15, 1992, and 14.75 hours during the two weeks ending February 29, 1992. During the next three pay periods, encompassing the two week periods ending March 14, March 28, and ...


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