COLES v SEVEN ELEVEN STORES

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No. 84-549 I N THE SUPREME COURT O F THE STATE O F MONTANA 1985 S H I R L E Y RUSSO COLES, C l a i m a n t and R e s p o n d e n t , SEVEN ELEVEN STORES, Employer, and AMERICAPJ MOTORISTS INSURAPJCE COMPANY, D e f e n d a n t and A p p e l l a n t . APPEAL FROM: Workers' Reardon, Compensation Court, The Honorable Timothy Judge p r e s i d i n g . COUNSEL OF RECORD: For A p p e l l a n t : K e l l e r , R e y n o l d s , D r a k e , S t e r n h a g e n & Johnson; T. K e l l e r , H e l e n a , Montana Paul For R e s p o n d e n t : C h a r l e s Smith, Helena, Montana - - S u b m i t t e d on B r i e f s : Decided: Clerk May 2 3 , 1985 A u ~ " s ~2 0 , 1985 Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. The appeals insurer, decision a ordering it to pay American of Motorists the the Workers' claimant, Insurance Company, Compensation Shirley Court Russo Coles, permanent total disability benefits rather than permanent partial disability benefits; setting the rate of compensation at $123.39 per week; and awarding costs, attorneys' fees and a 20% penalty to the claimant. We affirm. On October 10, 1981, while working as a clerk in a convenience store, the claimant fell from a ladder, struck her mid and lower back on a sink and then hit the floor on her back and left side of her head. Following an examination at the hospital emergency room, she was released to go home. She attempted to return to work the next week, but after about one day she had to leave because her neck was stiff and sore and she had developed a severe headache. The Workers' Compensation Court found that the claimant had fibromyositis, a significant soft tissue injury. Relying primarily on the treating physician's statements, the judge also found that the claimant's condition was as far restored as her injuries would permit on April 10, 1983. that she had a 15% whole person impairment. condition disability and such the presence as her From her medical non-medical of lack of He found elements specialized training of and limited work experience, the court concluded the claimant was temporarily totally disabled until April 10, 1983 and, "until vocationally retrained, is permanently totally disabled as a result of her industrial accident." The insurer calculated the (Emphasis in original. ) claimant's rate disability payments based on a forty-hour work week. of When she began work in August 1981, her scheduled hours of employment were 2:00 to 10:30 p.m., seven days a week, with additional hours as needed to fill in for absent employees. She worked the following hours after being hired: straight time hours 1 week 57.75 2 weeks 80.00 2 weeks 72.00 2 weeks 80.00 fina 1 week overtime hours 29.00 The court below determined that her overtime hours were part of her usual hours and should be included in the calculation of disability benefits. The insurer terminated the claimant's temporary total disability payments on about October 9, 1982. paid Thereafter, it 25 weeks of permanent partial disability based on a physician's report estimating her medical impairment rating at 5%. The report did not refer to her ability to return to work. The insurer refused to pay any further benefits despite repeated requests by the claimant. On May 21, 1984, the same day an order was issued setting a hearing date on the claimant's petition for an emergency hearing, the insured paid part of the back hearing claimant. date, it The payments due. paid the Workers' Just prior to the remaining back Compensation insurer's termination of benefits and payments to found the Court its refusal to pay permanent total disability benefits unreasonable. The Workers' claimant's Compensation petition Court on came to trial September before 12, 1984. the On November 20, 1984 t h e c o u r t e n t e r e d conclusions of its findings of fact, law and judgment o r d e r i n g t h e i n s u r e r t o pay t h e c l a i m a n t t e m p o r a r y t o t a l d i s a b i l i t y b e n e f i t s from O c t o b e r 11, 1982 u n t i l A p r i l 9, 1983 and p e r m a n e n t t o t a l d i s a b i l i t y b e n e f i t s from A p r i l 1 0 , 1983 u n t i l f u r t h e r o r d e r e d ; o r d e r i n g the payment of compensation benefits at $123.39 per week; o r d e r i n g t h e i n s u r e r t o p a y t h e c l a i m a n t a 20% i n c r e a s e i n the rate as attorneys' a penalty; fees; Compensation and awarding ordering t o determine if the the claimant Division vocational costs of and Workers' rehabilitation was possible f o r t h e claimant. The insurer raises (1) Did t h e Workers' the claimant the following issues on appeal: Compensation C o u r t e r r by f i n d i n g permanently totally disabled rather than permanently p a r t i a l l y d i s a b l e d ? (2) including Did the overtime Workers' hours Court Compensation when err by the rate of calculating compensation? ( 3 ) Did t h e Workers' Compensation C o u r t e r r by a w a r d i n g a penalty t o the claimant? When r e v i e w i n g a d e c i s i o n o f t h e Workers' Compensation Court, t h e standard i s "whether t h e r e i s s u b s t a n t i a l evidence t o s u p p o r t t h e f i n d i n g s and c o n c l u s i o n s o f t h a t c o u r t . We c a n n o t s u b s t i t u t e o u r judgment f o r t h a t o f t h e t r i a l c o u r t a s t o w e i g h t o f t h e e v i d e n c e on q u e s t i o n s o f f a c t . Where t h e r e i s s u b s t a n t i a l e v i d e n c e t o s u p p o r t t h e W o r k e r s ' Compensation Court, t h i s Court cannot overturn t h e d e c i s i o n . omitted.) Hume v . 5 3 , 5 9 , 608 P.2d Section disability as: " (Citations S t . R e g i s P a p e r Company ( 1 9 8 0 ) , 1 8 7 Mont. 1 0 6 3 , 1066. 39-71-116(13), MCA defines permanent total " a c o n d i t i o n r e s u l t i n g from i n j u r y a s defined i n t h i s chapter t h a t r e s u l t s i n the loss of actual earnings o r earning capability t h a t e x i s t s a f t e r the injured is as far restored as the worker permanent c h a r a c t e r o f t h e i n j u r i e s w i l l p e r m i t and which r e s u l t s i n t h e w o r k e r h a v i n g no r e a s o n a b l e p r o s p e c t o f f i n d i n g r e g u l a r employment o f any k i n d i n t h e normal l a b o r m a r k e t . D i s a b i l i t y s h a l l be s u p p o r t e d by a p r e p o n d e r a n c e of m e d i c a l evidence." I n t h e c a s e a t b a r , t h e t e s t i m o n y and r e p o r t s o f t h e t r e a t i n g physicians supported t h e c o u r t ' s disability. different The i n s u r e r ' s m e d i c a l r e p o r t , a l t h o u g h s t a t i n g a conclusion, contradicted disability f i n d i n g s on t h e c l a i m a n t ' s those was contained of the supported no medical treating by a findings that physicians. preponderance The of medical as medical evidence. Disability components. P.2d 1033, has non-medical I n Metzger v . 1035, as we11 (Mont. 19841, 687 Chemetron Corp. 4 1 St.Rep. 1788, 1790-1791, we h e l d that: "To establish the existence of no r e a s o n a b l e p r o s p e c t o f employment i n t h e normal l a b o r m a r k e t , a c l a i m a n t must introduce s u b s t a n t i a l c r e d i b l e evidence o f (1) what j o b s c o n s t i t u t e h i s normal labor market, and (2) a complete i n a b i l i t y t o p e r f o r m t h e employment and d u t i e s a s s o c i a t e d with t h o s e jobs because of h i s work-related i n j u r y . " (Citations omitted. ) Once a claimant presents reasonable prospect shifts the to available." little job physician, of employment, employer Metzger, experience evidence to show 687 P.2d and no at showing "the that burden suitable 1036. specialized is there of no proof work is The c l a i m a n t had training. Her who was i n a p o s i t i o n t o have t h e most c o m p l e t e p i c t u r e o f h e r p h y s i c a l condition, t e s t i f i e d t h a t she should n o t r e t u r n t o t h e t y p e of work i n which s h e had e x p e r i e n c e . This evidence sufficiently showed t h a t t h e c l a i m a n t had no reasonable job prospects in the labor market. The employer failed to carry the subsequent burden of proof when it did not introduce any evidence to establish suitable work was available. decision We hold that the Workers' Compensation Court's finding the claimant permanently and totally disabled is supported by substantial evidence, particularly in light of the vocational court's referral of the claimant for a rehabilitation evaluation pursuant to section 39-71-1001 et. seq., 14CA. Section 39-71-116(20), MCA defines wages as "the 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 ... " The insurer argues, in the second issue, that section 39-71-116 (20), MCA should be strictly construed so that the claimant's regular overtime hours are not considered when computing her rate of compensation. The claimant argues that the words "usual hours of employment" and "overtime" as used in this statute are conflicting when a person's usual hours includes overtime hours. The concluded court that the below acknowledged statute was the ambiguous conflict and because its reference to overtime does not indicate whether this means overtime earnings are not to be considered, overtime hours are not to be considered, or both. We agree that the statute is ambiguous under these circumstances. When construing a statute, every provision must be given meaning or effect if possible. State v. District Court of the First Judicial Dist. in and for Lewis and Clark County (1926), 77 Mont. under a duty to 290, 250 P. 973. Further, the Court is construe the Workers' Compensation Act liberally, section 39-71-104, MCA, and resolve ambiguity in favor of the injured worker. Gaffney v. Industrial Accident Board 394, (1955), 129 Mont. 287 P.2d 256. The interpretation that gives effect to a l l the provisions and also resolves the ambiguity in favor of the injured worker is one which includes overtime hours that are part of a claimant's usual hours of employment at the straight pay rate in the benefit calculation. excluded in determining Thus, overtime will generally be the usual hours of employment. However, if the work record shows that the employer hired the claimant expecting overtime work and the claimant actually worked overtime on a consistent and regular basis, as in the case at bar, then that overtime becomes part of the usual hours of employment. The overtime will not he included at the premium rate, but as extra hours at regular pay. We construe section 39-71-116(20), MCA to mean overtime premium earnings are not considered in calculating wages and that the phrase "usual hours of employment" excludes overtime hours from consistently the and calculation regularly unless part of the the overtime claimant's is work record, as in the case at bar. The final issue concerns the penalty assessed for the unreasonable conduct of the insurer. Section 39-71.-2907, MCA provides : "When payment of compensation has been unreasonably delayed or refused by an insurer, either prior or subsequent to the issuance of an order by the workers' compensation judge granting a claimant compensation benefits, the full amount of the compensation benefits due a claimant, between the time compensation benefits were delayed or refused and the date of a claimant the order granting compensation benefits, may be increased by the workers' compensation judge by 20%. The question of unreasonable delay or refusal shall be determined by the workers' compensation judge, and such a finding constitutes good cause to rescind, alter, or amend any order, decision, or award previously made in the cause for the purpose of making the increase provided herein." Whether the insurer's conduct was unreasonable is a factual question and on appeal, a finding of unreasonableness will not be overturned if supported by substantial evidence. Wight v. Hughes Livestock Co., Inc. (Mont. 1981), 634 P.2d 1189, 38 St.Rep. 1632. A review of the record shows sufficient evidence was presented to support this finding. We therefore will not overturn the Workers' Compensation Court's judgment awarding claimant the 20% penalty for the insurer's unreasonable actions. The decision of the Workers' Compensation Court is affirmed. We concur:

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