GREGORY v BAILEY SONS LOGGING
Annotate this Case
Download PDF
92-115 NO. IN THE SUPREMECOURT OF THE STATE OF MONTANA 1992 LON GREGORY, Claimant, Respondent and Cross Appellant, -vsMICHAEL BAILEY & SONS LOGGING, Employer, and STATE COMPENSATION MUTUAL INSURANCE FUND, Defendant APPEAL FROM: and Appellant. The Workers' Compensation Court, The Honorable Timothy W. Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant and Employer: Laurence Hubbard, For Respondent Robert Attorney at Law, Helena, and Cross Appellant: K. Ogg, Grenfell Submitted & Ogg, Missoula, on Briefs: Decided: 1 Montana Clerk August Montana 20, 1992 November 12, 1992 Justice Fred 3. Weber delivered This is an appeal from a decision Court awarding claimant history with the employer. The issue on appeal erred in only his Claimant, operator July 1989. seasonal not work. work in employees after worked seasonal weather June 1, 1990. 1991, Compensation Insurance While It the purpose the of for A hearing the injury had to calculate of determining of 2 of do these 1990, when to work on during On August before the 29, Workers' Compensation calculated was held usually was injured hearing State involves He returned 1990. in by the month. mid-February 10, backhoe (Bailey) Most are paid Gregory Mutual his "wages" under on November 4, 1991. was uncontested, the average compensation. a which year. work. on August Fund) improperly MCA (1989). the that that as 40 employees 1989 until for hired business Employees a petition alleging by instead and Sons Logging prevented employment Court Court fall layoff. employer was logging is uncontested filed responsibility Compensation the and compensation pay periods. Bailey from July Fund (State § 39-71-123, with (Gregory) conditions of his Gregory four in spring return course work history is Court claimant's The crew of approximately the Gregory the calculating by Michael Bailey work Compensation the Workers' Gregory and laborer entire We affirm. preceding Lon Compensation based upon his is whether entire the immediate of the Court. by the Workers' compensation unreasonably considering the Opinion weekly the Workers' salary for On January its Findings 13, of determined Fact, that 71-123, total calculated the The of time Fund with State the 5 appeals nature of his State when a break weather Fund, its that argues also that are weekly less computed hours the the for which the Court to seasonal does time. not idleness. State earned over Court for the should erred purposes have 5 39-71-123(3), "term of employment" a full time rate times was hired to of relied of employee of time. court hourly end because (a) the 3 cross- full occurs that pay periods, by multiplying the ' Compensation contends the for forced off the appropriate wages include court for inherently actual subsection four is employment of The cross-appeal. same employer benefits, than of resulting Compensation not reasons if the § 39- Bailey. account the Workers that directs is the Gregory of a Gregory to a term should (a) same employer wages employment calculations Subsection of other compensation hourly that for it is of earnings that job The court week. weekly to and the or for calculations. determining the argues per Workers' MCA, where with worked issued purposes determination. the contends of Gregory that with conditions span all responding employment therefore, entire in Fund in $208.10 wage determination employment week, Gregory this Fund argues a claimant's of which wage for per by using 39-71-123(3), adjust Further, in State Fund misapplied rate Court and Judgment. weekly $312.00 compensation State appealed was Compensation of Law, average disability length Workers' Conclusions (1989), temporary the Gregory's MCA entire 1992, on MCA. for the employee's the number work. Such calculation, argues Gregory, within the preceding Bailey because of the weather, weekly figure This several four would pay periods to compute his case revolves statutes. mean that those weeks in which he did not work for the court should have used the $400 benefits. around Section during the 39-71-701, use and interpretation of MCA, states: (1) . . . a worker is eligible for temporary total disability benefits when the worker suffers a total loss of wages as a result of an injury and until the worker reaches maximum healing . . . (3) Weekly compensation benefits for injury producing temporary total disability shall be 66 2/3% of the wages received at time of injury . . . Section 39-71-123, MCA, states: (1) "Wages" means the gross remuneration paid in money, or in a substitute for money, for services rendered by an employee . . . (3) For compensation benefit purposes, the average actual earnings for the four pay periods immediately preceding the injury are the employee's wages, except if: (a) the term of employment for the same employer is less than four pay periods, in which case the employee's wages are the hourly rate times the number of hours in a week for which the employee was hired to work: or (b) for good cause shown by the claimant, the use of the four pay periods does not accurately reflect the claimant's employment history with the employer, in which case the insurer may use additional pay periods. The Workers' Compensation 39-71-123(3)(b), consider MCA, sufficient additional suggested average Compensation interpretation monthly three. determined cause pay periods main body of subsection The Workers' Court existed beyond the pursuant for four the mentioned to 3 court to in the We agree. Court concluded and formula amount of money higher earned in any of the four that preceding 4 would that using Gregory's provide than the total months before his him with an sum of money injury except The court one. found Court Compensation calculations nature for the the entire of the number and then divided This (31) * of by $10 per hour, $312.00. of calculation gave offset number of then per week. consideration by the of Compensation worked court multiplied the equal by a Workers' used parties weeks to 66 2/3 when sum of percent determined periods of for that Gregory this worked a disproportionately high hours. the (1990), conclusions are 245 Mont. of disability 470, rate wages earned at the time method used by the Workers' usual 236 Workers' Compensation logging Mont. correct. 601. Inc. injury, of law Dept. v. Further, of "[a]~ long approximates and reasonabl[y] the the this Court will uphold Compensation Court to determine 192, Court conclusions Steer, of employment." 189, business of Court's 803 P.2d fairly hours (19891, the the 59 weeks wage, when he worked as the of to The court to Gregory's The court 31. number multiplied by periods as to whether claimant's actual hourly seasonal Therefore, constituted worked Fund's the considered week which regular $208.10 We review Revenue per Workers' State time. stipulated by the hours sum was compensation little, 31.2 (967) the off which the account court Gregory hours Gregory's This Bailey number comes to into the 59 weeks, this of by including with work use take fairness, history Likewise, that business Of those total be unfair. accurately total employment employment. to logging sake to determined failed of this 769 took while Stuber P.2d into still 5 v. 1205, account basing Moodie 1207. the its a Implement Here, seasonal calculations the nature on "actual" hours history. worked We have compensation, Infelt Horen precedent Inc. exists computing (1987), record job during 31 by Bailey. 18 these that Gregory of a total Gregory Bailey, In of forced weekly Such salary of Because the of court had consider look to subsection (b) circumstances aspect his We conclude is larger reasonable scale a sporadic, which he only a total the of Slack, seasonal was hours by of court entire 967 hours excluded The the employed his weather. fairly the court actual then number approximates consider forced idleness, § 39-71-123, MCA, under subsection as of A. during of of calculations to in to periods pertaining idleness the of average Gregory. not of at that worked calculation and method James weeks actual Yet, 831. because number worked. v. calculations, idleness total weeks its a job. 556. forced establishes record P.2d of worked 59 of Sandahl P.2d of nature 346 work calculating periods pay. 732 31 weeks. the weekly actual when seasonal 217, including 208, out total that the Mont. Mont. with divided not average The weeks 136 reveals The employment consider for the 225 employee's stated should (1959), also when the consistently a court v. during within this (a) reliance on the set of seasonal it when fails under to to a fair Gregory's inappropriate it a job required was of considering facts. is nature argument this consider any set of seasonal employment. that when than where sporadic, calculating four seasonal "usual" pay periods; 6 work salary therefore, to is at issue, calculate reliance it on a on subsection (b) demands that way as to with the Mont. at of sporadic, seasonal employment reflect the "accurately employer" 192. compensation as subsection Further, for (a) of § 39-71-123, MCA, is § 39-71-123, it a sporadic, 236 when determining to MCA, as such calculations history See, Stuber, dictates. job, in such a employment inappropriate seasonal Fairness be determined claimant's (b) is appropriate. rely will on subsection be unreasonable and unfair. We hold calculating with the Workers' compensation the employer instead Compensation by using Court claimant's of only the immediate periods. We Concur: 7 did entire not work preceding err in history four pay November12, 1992 CERTIFICATEOF SERVICE I herebycertify that the following order was sentby United Statesmail, prepaid,to the following named: LAURENCE HUBBARD, LegalCounsel StateCompensation Mutual Insurance Fund 5 SouthLast ChanceGulch Helena,MT 59604-4759 ROBERTK. OGG Grenfell& Ogg 412 West Alder Missoula,MT 59802 ED SMITH CLERK OF THE SUPREMECOURT
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
