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Lindskog v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

September 19, 2000

TIMOTHY LINDSKOG, Petitioner,
v.
STATE COMPENSATION INSURANCE FUND, Respondent/Insurer for FX DRILLING COMPANY, INCORPORATED, Employer.

          Date Submitted: August 16, 2000

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER, JUDGE

         Summary of the Case: Claimant seeks an increase in his temporary total and permanent partial disability rates, arguing that his rate was improperly calculated and failed to take per diem pay for meals into consideration.

         Held: Claimant's rate is properly calculated using a year of wages since his wages varied remarkably from week to week. § 39-71-123(3)(b), MCA (1997). However, the State Fund's calculations were erroneous and his rate is therefore recalculated by the Court. $23 of the $24 a day claimant received for meals while traveling was properly excluded from his wages pursuant to § 39-71-123(2)(a) and ARM 24.29.720, which provides that per diem for meals up to the amount by which state employees are reimbursed is excluded from wages.

         Topics:

         Constitutions, Statutes, Regulations and Rules: Montana Code: § 39-71-123(3)(b) (1997). Evidence of significant fluctuation in claimant's pre-injury wages provided good cause under section 39-71-123(3)(b), MCA (1997) to use more than the four pay periods preceding injury in calculating average weekly wages. Court looked to the entire prior year's wages to avoid impact of seasonal wage fluctuation.

         Constitutions, Statutes, Regulations and Rules: Administrative Regulations: ARM 24.29.720. Applying ARM 24.29.720, $7 per week added to wage rate where employer paid flat rate for meals $1 in excess of rate paid to state employees.

         Wages: Average Weekly Wage. Evidence of significant fluctuation in claimant's pre-injury wages provided good cause under section 39-71-123(3)(b), MCA (1997) to use more than the four pay periods preceding injury in calculating average weekly wages. Court looked to the entire prior year's wages to avoid impact of seasonal wage fluctuation.

         Applying ARM 24.29.720, $7 per week added to wage rate where employer paid flat rate for meals $1 in excess of rate paid to state employees.

         Wages: Meals. Applying ARM 24.29.720, $7 per week added to wage rate where employer paid flat rate for meals $1 in excess of rate paid to state employees.

         ¶1 The trial in this matter was held on Monday, June 5, 2000, in Great Falls, Montana, Petitioner, Timothy Lindskog (claimant), was present and represented by Mr. Cameron Ferguson. Respondent, State Compensation Insurance Fund, was represented by Mr. David A. Hawkins.

         ¶2 Exhibits: 1 through 6 were admitted without objection.

         ¶3 Witnesses and Depositions: Timothy Lindgskog and Denise Baird testified. No depositions were submitted.

         ¶4 Issues Presented: As set forth in the Pre-Trial Order, the following issues are presented:

1) What is claimant's correct weekly wage to be used in calculating his temporary total disability rate and his permanent partial disability rate?
2) Whether the per diem pay which the employer paid to claimant should be used to increase his average weekly wage?

(Pre-Trial Order at 2.)

         ¶5 Having considered the pre-trial order, the testimony presented at trial, the demeanor and credibility of the witnesses, the exhibits, and the ...


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