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Bates v. Ranger Insurance Co.

Court of Workers Compensation of Montana

June 3, 1997

VELLEDA BATES Petitioner
v.
RANGER INSURANCE COMPANY Respondent/Insurer for WESTERN CARE NURSING HOME Employer.

          May 20, 1997

          PARTIAL FINDINGS OF FACT, CONCLUSIONS OF LAW AND PARTIAL JUDGMENT

          Mike McCarter, Judge

         Summary: Former nurses aide, who is permanently totally disabled, claims her weekly wages for purposes of determining her PTD rate should include overtime.

         Held: Under section 39-71-116(20), MCA (1981), wages were defined as "average gross earnings received by the employee at the time of the injury for the usual hours of employment in a week, and overtime is not to be considered." In Coles v. Seven Eleven Stores, 217 Mont. 343, 704 P.2d 1048 (1985), the Supreme Court concluded that "usual hours of employment" and an exclusion of overtime created an ambiguity in situations where the employee's usual hours included overtime. The Supreme Court found the statute to exclude overtime hours "from the calculation unless the overtime is consistently and regularly part of the claimant's work record." Here, claimant did not prove she worked consistent and regular overtime.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: Section 39-71-116(20), MCA (1981). Former nurses aide, who is permanently totally disabled, claimed her weekly wages for purposes of determining her PTD rate should include overtime. Under section 39-71-116(20), MCA (1981), wages were defined as "average gross earnings received by the employee at the time of the injury for the usual hours of employment in a week, and overtime is not to be considered." In Coles v. Seven Eleven Stores, 217 Mont. 343, 704 P.2d 1048 (1985), the Supreme Court concluded that "usual hours of employment" and an exclusion of overtime created an ambiguity in situations where the employee's usual hours included overtime. The Supreme Court found the statute to exclude overtime hours "from the calculation unless the overtime is consistently and regularly part of the claimant's work record." Here, claimant did not prove she worked consistent and regular overtime.
Wages: Average Weekly Wage. Former nurses aide, who is permanently totally disabled, claimed her weekly wages for purposes of determining her PTD rate should include overtime. Under section 39-71-116(20), MCA (1981), wages were defined as "average gross earnings received by the employee at the time of the injury for the usual hours of employment in a week, and overtime is not to be considered." In Coles v. Seven Eleven Stores, 217 Mont. 343, 704 P.2d 1048 (1985), the Supreme Court concluded that "usual hours of employment" and an exclusion of overtime created an ambiguity in situations where the employee's usual hours included overtime. The Supreme Court found the statute to exclude overtime hours "from the calculation unless the overtime is consistently and regularly part of the claimant's work record." Here, claimant did not prove she worked consistent and regular overtime.
Wages: Overtime. Former nurses aide, who is permanently totally disabled, claimed her weekly wages for purposes of determining her PTD rate should include overtime. Under section 39-71-116(20), MCA (1981), wages were defined as "average gross earnings received by the employee at the time of the injury for the usual hours of employment in a week, and overtime is not to be considered." In Coles v. Seven Eleven Stores, 217 Mont. 343, 704 P.2d 1048 (1985), the Supreme Court concluded that "usual hours of employment" and an exclusion of overtime created an ambiguity in situations where the employee's usual hours included overtime. The Supreme Court found the statute to exclude overtime hours "from the calculation unless the overtime is consistently and regularly part of the claimant's work record." Here, claimant did not prove she worked consistent and regular overtime.

         This matter came for trial on Tuesday, May 20, 1997, in Helena, Montana. Petitioner, Velleda Bates (claimant), was present and represented by Mr. Andrew J. Utick. Respondent was represented by Mr. Jason G. Dykstra and Mr. Thomas A. Marra.

         After opening statements and colloquy with counsel, the Court determined that claimant's request for a lump sum was not ready for trial and that further information should be presented by claimant to respondent to enable respondent to fairly evaluate her request. That part of the trial was vacated and will be reset on an expedited basis if further information does not produce an agreement between the parties. The remaining matter, involving calculation of claimant's wages, proceeded to trial.

         Claimant testified, providing the only evidence with respect to the wage issue. Her objection to purported time records offered by respondent was sustained since the purported records were not authenticated.

         Following claimant's testimony the Court agreed to provide an expedited ruling on the wage issue. These Partial Findings of Fact, Conclusions of Law and Partial Judgment, shall serve as its disposition of the issue.

         Having considered claimant's testimony, the stipulated facts, the depositions and exhibits, insofar as they pertain to the wage issue, and the arguments of the parties, the Court makes the following:

         FINDINGS ...


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