Perryman v. State Compensation Mutual Insurance Fund/Blue Range Mining Co. ( 1994 )

No. 94-011
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
MONTE PERRYMAN,
Petitioner and Appellant,
v.
STATE COMPENSATION MUTUAL
INSURANCE FUND/BLUE RANGE MINING CO.,
Respondent/EmploYer
and Respondent.
APPEAL FROM: The Workers' Compensation Court
The Honorable Mike McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Torger S. Oaas, Lewistown, Montana
For Respondent:
Charles G. Adams, Helena, Montana
Submitted on Briefs: November 21, 1994
Decided: December 23, 1994
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Monte Perryman appeals the decision of the Workers' Compensa-
tion Court denying his claim for wage supplement benefits. We
affirm.
We rephrase the issue as whether the Workers' Compensation
Court erred in denying Perryman's claim for wage supplement
benefits.
In September 1990 Perryman was injured while working on an
underground mining project near Lewistown, Montana. A rock fell
and struck him on the back, resulting in a herniated disc.
Perryman's employer, Blue Range Mining Co., was covered under the
State Compensation Insurance Fund (State Fund) Perryman filed a
workers' compensation claim. State Fund accepted liability for
Perryman's claim, and paid various compensation and medical
benefits.
Following Perryman's surgery and rehabilitation, an Employ-
ability Assessment was performed. Based on medical testimony and
Perryman's previous vocational experience, the assessment found
Perryman capable of working as a heavy equipment operator. The
Department of Labor then formed a Rehabilitation Panel pursuant to
§§ 39-71-1016 and -1017, MCA (1989). The Panel concurred with the
Employability Assessment, finding that the first appropriate option
for Perryman was to "return to a related occupation suited to the
claimant's education and marketable skills" pursuant to § 39-71-
1012 (2) Cc), MCA (1989). Perryman did not contest the Panel's
2
findings. On April 13, 1993, the Department of Labor issued an
Order affirming the recommendations of the Rehabilitation Panel.
Perryman did not appeal this order. Both parties agreed that heavy
equipment operation was within Perryman's post-injury capabilities.
Perryman has held several post-injury occupations, with wages
ranging from $4.50 per hour to $10.00 per hour. At the time of
this petition, Perryman was employed as a truck driver with Casino
Creek Concrete Co. earning approximately $8.00 per hour.
Betty Cross, a vocational rehabilitation counselor, testified
as a witness on behalf of State Fund. Cross's research revealed
that a heavy equipment operator in Montana earns between $10.00 and
$18.00 per hour. Cross testified that based on Perryman's previous
work experience he was capable of earning between $12.00 and $16.00
per hour.
At the time of his injury, Perryman was earning $12.00 per
hour at Blue Range Mining Co. However, Perryman did not consis-
tently work 40 hours per week during his employment with Blue
Range. Had he consistently worked 40 hour weeks, his average pay
would have been $480 per week. Due to his reduced working hours,
the Workers' Compensation Court calculated his actual average
earnings to be $388.61 per week during the entire period he worked
at Blue Range and $393.75 per week during his final four pay
periods.
The Workers' Compensation Court found that while Perryman only
earned $8.00 per hour at the time of his petition, he had failed to
3
show that he had been diligent in attempting to procure higher
paying employment. The court found that since Perryman was capable
of earning as much or more than he actually earned at the time of
his injury, he was not entitled to wage supplement benefits under
§ 39-71-703, MCA (1989).
Did the Workers' Compensation Court err in denying Perryman's
claim for wage supplement benefits?
We review the findings of the Workers' Compensation Court to
determine if they are supported by substantial credible evidence.
Buckentin v. State Compensation Insurance Fund (Mont. 1994), 878
P.2d 262, 263, 51 St.Rep. 656, 657.
We review the Workers' Compensation Court's interpretation of
the law to determine if its interpretation is correct. Steer, Inc.
v. Department of Revenue (19901, 245 Mont. 470, 474-75, 803 P.2d
601, 603.
The law in effect at the time of the claimant's injury
controls. Buckman v. Montana Deaconess Hospital (19861, 224 Mont.
318, 730 P.2d 380. Since Perryman was injured in September of
1990, the 1989 version of the Montana Code applies.
Perryman claims that the Workers' Compensation Court misinter-
preted §§ 39-71-123 and -703, MCA (1989). He argues that this
misinterpretation resulted in assigning him an artificially low
pre-injury wage and an artificially high post-injury wage, thus
unfairly denying him a wage supplement claim.
4
Perryman first argues that the Workers' Compensation Court
misinterpreted § 39-71-703, MCA (1989). Section 39-71-
703(l) (b) (i), MCA (1989), reads:
(b) The following procedure must be followed for a wage
supplement:
(i) 'A worker must be compensated in weekly benefits
equal to 66 2/3% of the difference between the worker's
actual waqes received at the time of the injury and the
wages the worker is qualified to earn in the worker's job
p o o l . [Emphasis added.]
Perryman claims that the term "actual wages" should be interpreted
as the claimant's dollar per hour wage extrapolated over a 40 hour
work week. He insists the Workers' Compensation Court erred by
applying § 39-71-123, MCA (1989), in calculating his pre-injury
wages. Perryman claims that while the wage calculation method set
out in 5 39-71-123, MCA (1989), has been used for calculating pre-
injury wages in other types of workers' compensation claims, this
Court has never approved its use in a wage supplement claim.
Section 39-71-123(3), MCA (1989), states:
For compensation benefit purposes, the average actual
earninqs 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 claim-
ant's employment history with the employer, in which case
the insurer may use additional pay periods. [Emphasis
added.]
A wage supplement claim, like any other workers' compensation
claim, is a claim for a type of compensation benefits. Since
Perryman seeks a form of compensation benefits, § 39-71-I23(3), MCA
(1989), mandates the use of the four pay period average for
calculating his pre-injury wages unless one of the enumerated
exceptions is met. Perryman's requested method of calculating his
wages is in essence the method provided for in § 39-71-123(3)(a),
MCA (1989). However, multiplying a worker's hourly rate by his or
her scheduled working hours is only permitted when the worker has
been employed at a job for less than four pay periods. Perryman
had worked for Blue Range in excess of four pay periods; therefore
this method is not available to him.
The other exception to the last four pay period method
provided by 5 39-71-123, MCA (1989), is if this method "does not
accurately reflect the claimant's employment history with the
employer." If the four pay period method does not provide an
accurate reflection of the employee's wages, additional pay periods
can be used. Section 39-71-123(3) (b), MCA (1989). Calculating
Perryman's average weekly wages utilizing all his pre-injury pay
periods at Blue Range, the Workers' Compensation Court determined
his wages to be $388.61 per week. This amounts to approximately
five dollars per week less than his average weekly wages during his
last four pay periods. Looking at either his entire employment
history with Blue Range or his last four pay periods prior to his
injury, Perryman worked, on an average, less than 40 hours per
6
week. Thus, the last four pay period method provided in 5 39-71-
123, MCA (1989), is the appropriate method for calculating
Perryman's pre-injury wages.
We conclude that the 5 39-71-123, MCA (1989), was the proper
method of determining Perryman's pre-injury wages for his wage
supplement claim and that the Workers' Compensation Court properly
applied § 39-71-123, MCA (1989), in determining his pre-injury
wages.
Perry-man also claims that the Workers' Compensation Court
assigned him an artificially high post-injury wage, thus further
frustrating his wage supplement claim. He argues that the Workers'
Compensation Court should take into account all his qualified post-
injury employment in calculating his post-injury income. Perryman
claims the court erred by relying on State Fund's witness, who
testified that he was qualified and able to earn between $12.00 and
$16.00 per hour as a heavy equipment operator. Perryman claims
that the court should consider his actual post-injury earnings
rather than relying on his earning capacity as alleged by State
Fund.
As previously stated, § 39-71-703(l) (b) (i), MCA (19891,
governs wage supplement benefits. This section states:
(b) The following procedure must be followed for a wage
supplement:
(i) A worker must be compensated in weekly benefits
equal to 66 2/3% of the difference between the worker's
actual wages received at the time of the injury and the
waqes the worker is qualified to earn in the worker's job
pool . . . [Emphasis added.1
7
This section clearly indicates that the wages a worker is qualified
to earn, not what he actually earns, will be used to calculate wage
supplement benefits.
The Employability Assessment Report on Perryman indicated that
he was qualified and physically capable of working as a heavy
equipment operator. Perryman likewise admitted at trial that
working as a heavy equipment operator was within his post-injury
capabilities. State Fund presented evidence that Perryman was
qualified and able to earn between $12.00 and $16.00 per hour as a
heavy equipment operator. State Fund's witness, Cross, justified
the $12.00 to $16.00 per hour figure based on extensive statewide
employment data, availability of jobs in this field, and Perryman's
previous experience and training as a heavy equipment operator.
The Workers' Compensation Court found Cross to be a qualified and
credible witness.
The Workers' Compensation Court did not, contrary to Perry-
man's assertion, assign him the "highest possible" post-injury
wage. The evidence established that a heavy equipment operator in
Montana could earn approximately $10.00 to $18.00 per hour,
depending on his or her training and experience. Cross opined
that, based on Perryman's previous training and experience, he was
capable of earning between $12.00 and $16.00 per hour.
Also, the Workers' Compensation Court did take into consider-
ation Perryman's actual post-injury wages in qualified employment.
8
However, the court was not persuaded by this evidence, stating in
its findings of fact:
In reaching its determination, the Court has considered
the fact that petitioner is presently earning only $8.00
an hour. However, it does not give great weight to that
fact. Since his injury, petitioner has held higher
paying jobs. He did not present evidence of a diligent
job search for higher paying jobs . . . .
The court properly considered both Perryman's actual post-injury
earnings and his potential post-injury earnings.
The Workers' Compensation Court found State Fund's witness to
be credible while it found Perryman to be less credible. We will
defer judging the credibility and weight of conflicting evidence to
the Workers' Compensation Court. Kuenning v. Big Sky of Montana
(19881, 231 Mont. 1, 5, 750 P.2d 1091, 1094. We will not substi-
tute our judgment for that of the trial court. Estate of Alcorn
(1994), 263 Mont. 353, 360, 868 P.Zd 629, 633.
The Workers' Compensation Court found that Perryman did not
lose a $12.00 per hour, 40 hour per week job due to his injury.
His average weekly earnings at the time of his injury were not
$480.00 per week, but were rather $393.75 per week. The latter
amount is the proper pre-injury baseline by which Perryman's claim
for wage supplement benefits must be calculated. Since the
Workers' Compensation Court found that Perryman is capable of
earning as much if not more as he was earning at the time of his
injury, he is not entitled to wage supplement benefits under § 39-
71-703, MCA (1989).
9
We conclude that the Workers' Compensation Court's findings of
fact were supported by substantial credible evidence and that its
interpretation of §§ 39-71-123 and -703, MCA (1989), were correct.
We hold that the court did not err in denying Perryman's claim for
wage supplement benefits.
We affirm the decision of the Workers' Compensation Court.
We concur: 6
Justices
10
Justice Terry N. Trieweiler specially concurring.
I concur that based on the law we are asked to construe, there
was sufficient evidence to support the Workers' Compensation
Court's denial of benefits in this case. However, that law is a
model of anti-worker bias. The disability statute which pertains
to Perryman's claim was described as follows shortly after its
enactment:
In other words, a worker's partial disability benefits
under the new benefit provision are now determined by
comparing what the worker actuallyearned at the time of his
injury to some wage that he might theoretically be
capable of earning subsequent to his injury. The new law
thus uses the most conservative possible standard for
pre-injury earning capacity and the most liberal possible
standard for post-injury earning capacity. It makes no
difference if the worker had been capable of working in
heavy industry at $12 an hour and was injured during a
temporary lay-off while pumping gas for $3.35 an hour.
The fact that the worker is now physically incapable of
returning to his former occupation will have no bearing
on the rate at which he is paid partial disability
benefits.
To make matters even more unfair, the reduced actual
earnings at the time of his injury will be compared to
some theoretical earnings in the worker's 'I job pool"
after his injury. It makes no difference that the job is
unavailable, that the employer would not hire the worker,
or that the job is 500 miles away on the other side of
Montana. In determining the pre-injury standard, actual
earnings are all that count. However, in determining the
post-injury standard against which pre-injury earnings
must be compared, the computer and the vocational
consultant's imagination are the only limits.
. . .
Such a scheme is arbitrary, irrational and, by
design, unfair to the worker who has forfeited common-law
rights to compensation for what now appears, at best, to
be an illusory system of income protection.
What sense does it make to limit a worker's
pre-injury earning capacity to his actual earnings at the
11
time of his injury, but base his post-injury earning
capacity on a "job pool" which may have no practical
relevance to what he is actually able to earn? In the
worst case scenario, the worker's actual earnings at the
time of his injury may be atypically 1OW and
unrepresentative of what he was actually capable of
earning, and his "job pool" may represent no real
opportunities for employment. That worker may find
himself unable to continue in employment that would
previously have paid $30,000 to $40,000 a year, with no
realistic alternatives in the present job market, and no
disability benefits under Montana's current workers'
compensation system. That worker has received nothing of
value in exchange for the forfeiture of his common law
and constitutional rights to legal redress. If this is
the price of improving Montana's economic climate, then
the price is too high.
Terry N . Trieweiler , The New Workers’ Compensation Act--Somethingfor all Montanans
tobeAshamed of, 50 Mont. L. Rev. 83, 91-93 (1989) (footnote omitted).
Section 39-71-703, MCA (1987), is the result of a concerted
effort by recent legislatures to skew the Workers' Compensation Act
completely in favor of employers and their insurers, and against
those crippled and disabled workers for whose benefit and
protection the Act was originally created. It is an example of
government by business interest groups at its worst.
It is a reminder that what was once a progressive act for the
protection of disabled workers and their families has been reduced
to nothing more than a shield against liability for their
employers.
Nevertheless, there is no constitutional requirement that the
legislature act wisely, fairly, or compassionately. And, so long
as the Legislature acts within its constitutional constraints, this
Court has no authority to overrule its enactments.
12
Therefore, I conclude that based on the statutory law with
which the Court is presented, the majority has arrived at the
correct conclusion, and I reluctantly concur in that conclusion.
However, it is with a good deal of regret that I acknowledge this
sorry state of affairs for injured workers in Montana.
1 ust'ice
Justice William E. Hunt, Sr., joins in the foregoing concurring
opinion.
Justice
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December 23, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Torger S. Oaas
Attorney at Law
P. 0. Box 76
Lewistown, MT 59457
Charles G. Adams
Legal Counsel
5 South Last Chance Gulch
Helena, MT 59601
ED SMITH
CLERK OF THE SUPREME COURT