Submitted: May 24, 2010, February 24, 2011
ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON AVERAGE WEEKLY WAGE AND ORDER DENYING PETITIONER'S MOTION TO AMEND PETITION AS MOOT
JAMES JEREMIAH SHEA, JUDGE.
Petitioner argued that Respondent incorrectly calculated his average weekly wage by not including his annual bonus or vacation pay which he had accrued at the time of his industrial injury. Respondent objected, arguing that Petitioner's bonus had not fallen within four pay periods of his industrial injury and that Petitioner had not shown good cause to have his average weekly wage calculated under § 39-71-123(3)(b), MCA. Respondent further argued that Petitioner's vacation pay was correctly excluded from his average weekly wage under § 39-71 -123(2)(c), MCA, and that Petitioner had either waived his right to have his bonus included in his average weekly wage calculation, or he was barred by either estoppel or laches. Petitioner further argued that if § 39-71-123(2)(c), MCA, precludes the inclusion of his vacation pay, then the statute is unconstitutional. Petitioner further contended that Respondent unreasonably refused to include his annual bonus in its calculation of his average weekly wage and that he should therefore be entitled to a penalty.
Petitioner has shown good cause to have his average weekly wage calculated under § 39-71-123(3)(b), MCA, and his annual bonus is properly included. Petitioner's vacation pay is excluded from his average weekly wage calculation pursuant to § 39-71-123(2)(c), MCA. Petitioner has not proven that § 39-71-123, MCA, is unconstitutional, nor has Petitioner proven that he is entitled to a penalty under § 39-71-2907, MCA.
¶ 1 Petitioner Phillip Peters moves this Court for summary judgment in his favor on the issue of the calculation of his average weekly wage and further moves that this Court award him a penalty under § 39-71-2907, MCA, for Respondent American Zurich Ins. Company's (Zurich) refusal to include his yearly bonus in its average weekly wage calculation for his claim. Zurich opposes Peters' motion and responds that it correctly calculated Peters' average weekly wage pursuant to § 39-71-123, MCA, and that Peters is neither entitled to a different calculation nor to a penalty.
¶ 2 On January 18, 1999, Peters suffered an industrial injury while employed by Roscoe Steel. At the time of his industrial accident, Peters earned $10.00 per hour.
¶ 3 Zurich accepted liability for the claim and has paid medical, temporary total, permanent partial, and permanent total disability benefits.
¶ 4 Peters received a $2, 000 bonus each year at Roscoe Steel.
¶ 5 Peters accrued "vacation pay" at Roscoe Steel and he had the option of either taking vacation or being paid for the vacation pay.
¶ 6 From July 22, 1998, through January 18, 1999, Peters earned 60 hours of vacation pay at a rate of $10.00 per hour, for a total of $600. This time period is 25.57 weeks long and $600 divided by 25.57 equals $23.46 per week.
¶ 7 On July 7, 1999, Roscoe Steel paid Peters the vacation pay which Peters had earned prior to his industrial injury.
¶ 8 Zurich did not include Peters' annual bonus and his accrued vacation pay in its calculation of Peters' average weekly wage.
¶ 9 In 2007, Peters asked Zurich to recalculate his average weekly wage to include his annual bonus and his accrued vacation pay. Zurich denied Peters' request.
Analysis and Decision
¶ 10 For the Court to grant summary judgment, the moving party must establish that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. The material facts necessary for disposition of the issues presented in this motion are ...