DAVID v STATE FUND
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NO. 94-129 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994 CURT DAVID, Petitioner and Appellant, -vSTATE COMPENSATION MUTUAL INSURANCE FUND, Respondent and Insurer for, MIKE MCCOY, Employer. APPEAL FROM: Workers' Compensation Court State of Montana The Honorable Michael McCarter, Judge presiding. COUNSEL OF RECORD: For Appellant: Patrick R. Sheehy, Billings, Montana Halverson, Sheehy & Plath, For Respondent: Dan Whyte, Legal Counsel, State Compensation Mutual Insurance Fund, Helena, Montana Submitted on Briefs: September 1, 1994 Decided: November 14, 1994 Filed: Cle&k Justice Fred J. an This in is favor Weber appeal of claimant the David. We consider the I. Did the temporary II. of a work that method of the Court. Court calculating following Workers' issues on decision benefits for Compensation appeal: Court disability rate Workers' Compensation Workers' 20% day's Montana, for to be err paid a as rodeo rodeos as in to determining claimant Court had David his spine. the spine David calculated the David? deny properly time of hired with this therapist future testified that on he the had clown throughout day David worked for his saddle him to slam inserted thrown from injuries support. filed DavidUs a into in his spine his horse, required the These workers' compensation rods the 2 to do of $50.00 for was also as to a work his breaking a 1986 of horse a fusion surgery. several fusion In parts of rods in removed. claim. interpreting circuit McCoy, and never Billings, season. Mike insertion in contracts during compensation by rodeo fracturing we.re McCoy YMCA oral an David employment, the deny (1991)? Mike compensation for work MCA by one The for was day properly 39-71-2907, rodeo been was 5 Court a the forcing one massage David During of anticipated clown. twelve a to (David) period At Compensation pursuant David work. and that penalty Curt self-employed 1986, Fund's the Did ranch rod of Workers' Compensation the Claimant bucked, a Opinion fees? III. award the affirm. total Did attorney from State We the delivered § State 39-71-123, Fund MCA (1991), to mean that a person who is hired to work only one day has an average weekly State Fund would amount found received to weeks As a Workers' March that equalling David four result of 18, (1991), 1994, the disability wage From of these $50 or wages. and that Here, his the benefits $33.33 per week. benefits for a calculation, The Fact, Fund rate that, day's David period of days. concluding State earned Court. Findings one disability this Compensation its of total and that had two-thirds temporary eighteen entered wage that, his findings Workers' Conclusions properly for David employment and Law upon determined and 5 the with Judgment on MCA temporary Mike David Court 39-71-123, David's conclusions, to Compensation of based appealed total McCoy. appeals to this Court. I Did the temporary total David benefits McCoy full time a in represent Fund the of what he or that accurate his have State jobs State and the Court to $250. week, other an should The a rate that total for Compensation disability argues on Mike contends Workers' be paid Fund would This is award of picture have earned because $33.33 mean that his actual the 3 wages Workers' the David? calculated his he for had he per wages. aggregated determining claimant his not that to of does argues in should have argument Fund err worked was week employed does not However, he from David feels State all the his Compensation jobs. Court was correct in interpreting the entire statute instead of only one subsection of 5 39-71-123, MCA (1991). The State Fund argues that the statute clearly dictates that when a sole proprietor has not provided workers' compensation coverage for his business, he cannot include money made from the business in the total from which award benefits are calculated. The State Fund contends that because David had his own massage business he was a sole proprietor. Further, David's alleged contracts with the rodeos were not in force yet and could not be included in the award either. At issue 'here is the Worker's interpretation of 5 39-71-123, MCA (1991). made by a Workers' Compensation Court whether the conclusion is correct. is Compensation Court's A conclusion of law reviewed Gibson v. State to determine Compensation Mut. Ins. Fund (1992), 255 Mont. 393, 842 P.2d 338. The court concluded that the State Fund had calculated David's award correctly. That award came to $33.33 based upon the figure of $50 that he made while working for Mike McCoy. that only § 39-71-123(3)(a), MCA (1991), applies. David argues State Fund argues that the entire statute must be used to determine the benefit rate for David, including the limitations placed on an award by subsection 4(c) of the statute. The pertinent statute in its entirety reads: Wages defined. (1) "Wages" means the gross remuneration paid in money, or in a substitute for money, for services rendered by an employee. Wages include but are not limited to: (a) commissions, bonuses, and remuneration at the regular hourly rate for overtime work, holidays, vacations, and 4 sickness periods; (b) board, lodging, rent, or housing if it constitutes a part of the employee's remuneration and is based on its actual value: and (c) payments made to an employee on any basis other than time worked, including but not limited to piecework, an incentive plan, or profit-sharing arrangement. (2) Wages do not include: (a) employee expense reimbursements or allowances for meals, lodging, travel, subsistence, and other expenses, as set forth in department rules: special rewards for individual invention or (b) discovery: (c) tips and other gratuities received by the employee in excess of those documented to the employer for tax purposes; Cd) contributions made by the employer to a group insurance or pension plan; or (e) vacation or sick leave benefits accrued but not paid. (3) For comoensation benefit purposes, the averaqe actual earninqs for the four nay periods immediately nrecedinq the iniurv are the employee's waqes, except if: (a) the term of employment for the same emplover is less than four pay periods, in which case the employee's waqes 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. For the purpose of calculating compensation (4) (a) benefits for an employee working concurrent employments, the average actual wages must be calculated as provided in subsection (3). (b) The compensation benefits for a covered volunteer must be based on the average actual wages in his regular employment, except self-employment as a sole proprietor or partner who elected not to be covered, from which he is disabled by the injury incurred. (c) The compensation benefits for an employee workinq at two or more concurrent remunerated employments must be based on the aqqreqate of average actual wages of all emplovments, except self-employment as a sole proprietor or partner who elected not to be covered, from which the emnlovee is disabled by the injury incurred. (5) The compensation benefits and the payroll, for premium purposes, for a volunteer firefighter covered pursuant to 39-71-118(4) must be based upon a wage of not less than $900 a month and not more than 1 and l/2 times the average weekly wage as defined in this chapter. 5 Section 39-71-123, MCA (1991); relevant parts of this statute have been highlighted. The Workers" Compensation Court relied on both 123(3)(a) and § 39-71-123(4)(c), MCA. g 39-71- According to the court, David worked less than four pay periods for McCoy; therefore, the court found that the State Fund was correct in using the exact number of hours worked and the exact pay received as stated in subsections 3(a) and 4(a). or $50.00. employment. employee This amounted to eight hours at $6.25 The court also looked at the fact that David had other The other employments, however, were not employer- situations. David was self-employed as a massage therapist: he was not an l'employee.'V Thus, the court found him to be a sole proprietor who had elected not to be covered by workers' compensation insurance and pursuant to subsection 4(c) he could, therefore, not include any of the money made from this work. The court further denied inclusions of potential amounts provided by future contracts for work as a rodeo clown. The .court determined that the future contracts were also obtained by David in a capacity as sole proprietor. The Workers' Compensation Court was correct in considering 5 39-71-123, MCA (1991) in its entirety; a statute must be read as a whole. Dover Ranch v. 609 P.2d 711. YellOWStOne COUnty (1980), 187 Mont. 276, While David chooses only subsection 3, subsection cannot be interpreted in isolation. 6 that The entire statute provides more than the rote "four-previous-pay-periods" which David argues. formula for The statute anticipates a situation like David's by stating that if the work was not equal to four-payperiods for the same employer, then the "actual" hours worked and the This is the exact "actual" pay obtained must be used. calculation used by the State Fund and the Workers' Compensation Court. David was hired for one day of work. He did not work for McCoy before this one day nor did he work for him after. David argues that the State Fund should have projected his weekly salary to $250 which is what he would have earned had he worked for McCoy for a week. However, this total does not resemble at all the "actual average wages" received from McCoy. MCA (1991). Section 39-71-123(3), The "actual" wages were only $50. Yet, David cites us to Love11 v. State Compensation Insurance (1993) 0 260 Mont. 279, 860 P.2d 95, for the proposition that his David method of calculation is appropriate. claims that Love11 permits him to project his one day's wages to that of what a full week would have been. full-time, David believes that because he was employed albeit at other work, he is entitled to make this projection. Love11 does not support David' reasoning. The Workers' Compensation Court in Love11 determined that g 39-71-123(3)(a), (1987), MCA precluded aggregation of wages from other sources when determining an employee's award benefit. 7 On appeal, we concluded that this was not a correct interpretation of the law. We then considered the correct interpretation of "wages" and the changes made to the workers' compensation law in 1987. We concluded that the 1987 changes did not affect the longstanding rule However, we permitting were aggregation of cognizant that concurrent because of employment. the Workers' Compensation Court's stance on non-aggregation, the court had not considered whether Love11 met the definition of "employee" with regard to other work he may have been performing or whether other income constituted therefore, wages remanded the from concurrent employment. action back to the court for We, this determination. Here, the Workers' Compensation Court did make a determination that David was not an "employee" but was a "sole proprietor" who had made no workers' compensation provisions for his business. Such a designation means that the benefit calculations must be made without consideration of any money earned from the business. David had the burden of proving he was an "employee" in order that his other full-time employment could be considered for his benefit award. Our statutes provide very long and detailed definitions of what constitutes an "employee" and an "employer." Sections 39-71-117 and 39-71-118, MCA (1991). a "sole proprietor." An employee is not Section 39-71-118(3)(d), MCA (1991). Thus, "persons who are truly independent in their operations according to the standards established for determining that issue should not be 8 held to be employees." St. John's Lutheran v. State Comp. Ins. Fund (1992), 252 Mont. 516, 523, 830 P.2d 1271, 1276. Whether a person is an "employee" is important because both subsections 3(a) "employees." sole and 4(a) However, proprietors. calculate the award benefits for subsection 4(c) contains an exclusion for Subsection 4(c) states that when a sole proprietor elects not to provide workers' compensation coverage he cannot include money derived from his business for the purpose of determining his benefit. David admits the YMCA merely supplied him with a room in the YMCA facility. The record indicates that the YMCA did not control his business as a massage therapist. The record clearly shows that within his role as massage therapist, he was "free from control." David independently established his business and ran it himself; he was not an employee. Therefore, we conclude that the State Fund had to consider the statutory limitations put on sole proprietors by subsection 4(c) of 5 39-71-123, MCA (1991). Because David has not supplied evidence that he paid workers' compensation premiums, the exclusions in 4(c) require that any money David received from his massage business must not be counted toward his award benefit. Without "employee" status for David's alleged full-time work, the State Fund and the Workers' Compensation Court had to rely on the specific calculations called for in subsection 3(a) and 4(a), plus the exclusions found in 4(c). inclusion of "actual" These calculations call for hours worked per week for "actual" wages 9 received. This total is then multiplied by 66 and 2/3% to get the benefit amount for temporary total disability. MCA (1991). Section 39-71-701, State Fund calculated David's benefits accordingly as did the Workers' Compensation Court. We hold that the Workers' Compensation Court did not err in determining the temporary total disability rate to be paid to claimant David. II Did the Workers' Compensation Court properly deny attorney fees? The statute governing payment of attorney's fees states: [if] the case is brought before the workers' compensation judge for adjudication of the controversy, and the award granted by the judge is greater than the amount paid or offered by the insurer, a reasonable attorney's fee and costs . . . may be awarded by the judge in addition to the amount of compensation. Section 39-71-612(l), MCA (1991). Here, the Workers' Compensation Court agreed with the award calculated by the State Fund. Therefore, because the award by the court was the same, attorney fees would be inappropriately awarded to David. We hold that the Workers' Compensation Court properly denied attorney fees. III. Did the Workers' Compensation Court properly deny an award of a 20% penalty pursuant to § 39-71-2907, MCA (1991)? The workers' compensation judge may increase by 20% the 10 full amount of benefits due a claimant during the period of delay or :refusal to pay . . . Section 39-71-2907(l), MCA (1991). The insurer here did not deny the full amount of benefits, but calculated the benefits correctly. Therefore, there exists no basis for a 20% penalty. The Workers' Compensation Court properly denied an award of a 20% penalty pursuant to 5 39-71-2907, MCA (1991). Affirmed. We Concur: 11 November 14, 1994 CERTIFICATE OF SERVICE I hereby certify that the following certified order was sent by United States mail, prepaid, to the following named: Patrick R. Sheehy HALVERSON, SHEEHY & PLATH, P.C. P.O. Box 1817 Billings, MT 59103-181 7 Dan Whyte, Legal Counsel State Compensation Mutual Insurance Fund P.O. Box 4759 Helena, MT 59604-4759 ED SMITH CLERK OF THE, SUPREME COURT STATE OF MONTANA BY: : Deputy
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