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Pittsley v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

July 31, 1998

WILLIAM R. PITTSLEY Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for 3-MOR ENTERPRISES Employer.,

          Submitted: June 23, 1998

          PARTIAL SUMMARY JUDGMENT

          Mike McCarter, Judge.

         Summary: Permanently totally disabled sawyer claimed rental payments for timber falling equipment he received from employer should be included in his wages for purposes of determining benefit rate. State Fund relied on ARM 24.29.720 as authority for deducting up to $22.50 per working day in rental fees from wages.

         Held: Where ARM 24.29.720 by its own terms was effective January 1, 1993, which was after the sawyer's injury and the four relevant pay periods preceding his injury, the rule provided no authority for the deduction made by State Fund. Because the statute authorizing the DOL to adopt the rule, section 39-71-123(2)(a), MCA (1991), was neither self-executing as to specific exclusions, nor properly retroactively applied to claimant's situation, there is no basis for the deduction made by the insurer.

         Topics:

Constitutions, Statutes, Regulations and Rules: Administrative Regulations: ARM 24.29.720. Administrative rule adopted by DOL to specify employee expenses which are not wages was by its own terms effective only commencing January 1, 1993. Where sawyer's injury, and the relevant four pay periods preceding injury, occurred before the rule's effective date, the rule's specification that rental value of timber falling equipment not exceeding $22.50 per day could be excluded from wage rate was not applicable to computation of his wage rate.
Constitutions, Statutes, Regulations and Rules: Montana Code: 39-71-123, MCA (1987). ARM 24.29.720, an administrative rule adopted by DOL to specify employee expenses which are not wages, was by its own terms effective only commencing January 1, 1993. Where sawyer's injury, and the relevant four pay periods preceding injury, occurred before the rule's effective date, the rule's specification that rental value of timber falling equipment not exceeding $22.50 per day could be excluded from wage rate was not applicable to computation of his wage rate.
Statutes and Statutory Interpretation: Retroactive (defined). A retroactive law is one which takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions already passed. Statutes effecting substantive rights and obligations must be applied prospectively unless the legislation expressly provides otherwise. See §1-2-109, MCA. A statute need not specifically state that it is retroactive to avoid the rule. If it is unmistakable that an act was intended to operate retrospectively, that intention is controlling as to the interpretation of the statute. Language showing unmistakable legislative intention of retroactivity must, however, appear on the face of the statute.
Statutes and Statutory Interpretation: Retroactivity. ARM 24.29.720, an administrative rule adopted by DOL to specify employee expenses which are not wages, was by its own terms effective only commencing January 1, 1993. Where sawyer's injury, and the relevant four pay periods preceding injury, occurred before the rule's effective date, the rule's specification that rental value of timber falling equipment not exceeding $22.50 per day could be excluded from wage rate was not applicable to computation of his wage rate. Even if the rule were not express in its date of application, regulations, like statutes, are subject to the general rule against retroactive application.
Wages: Saw Rental. ARM 24.29.720, an administrative rule adopted by DOL to specify employee expenses which are not wages, was by its own terms effective only commencing January 1, 1993. Where sawyer's injury, and the relevant four pay periods preceding injury, occurred before the rule's effective date, the rule's specification that rental value of timber falling equipment not exceeding $22.50 per day could be excluded from wage rate was not applicable to computation of his wage rate.

         ¶1 This Court previously denied petitioner's motion for partial summary judgment on account of his failure to comply with rules governing summary judgment. Specifically, petitioner failed to set forth uncontroverted facts in serial fashion and failed to provide evidentiary support for his factual allegations. Order Denying Motion for Partial Summary Judgment (June 4, 1998).

         ¶2 Thereafter, the parties provided the Court with a Stipulated Statement of Uncontroverted Facts (June 22, 1998), and requested the Court to revisit the motion. Based on the stipulated facts, I find reconsideration appropriate.

         Uncontroverted Facts

         1.The Petitioner is permanently and totally disabled.

         2.At the time of the accident, the statutory maximum total disability rate was $336 per week.

         3.The State Fund is entitled to a Social Security offset of $98.39 per week.

         4.Gross earnings for the 4 semi-monthly pay periods preceding his date of accident are as follows:

10/25/91

$1235.30

11/12/91

1301.90

11/27/91

1341.60

12/12/91

686.50

         5.The gross earnings were proportioned as 75% for wages and 25% for saw rental.

         6.If the Petitioner is given full credit for saw rental, he would be entitled to the maximum of $336 per week, less the Social Security offset.

         7.The Petitioner claimed saw rental as income on his 1991 taxes, less certain deductions.

         8.The Respondent computed Mr. Pittsley's average weekly wage by using ARM 24.29.720 which set the maximum excludable around the saw rental at $22.50 per work day for chain saw and related timber falling expenses. The State Fund therefore deducted $112.50 per week from the average weekly wage ...


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