250 Mont. 373, 378,
820 P.2d 742, 745;
citing Steer, Inc. v. Dept. of Revenue (1990),
245 Mont. 470, 474-
475,
803 P.2d 601, 603, The Workers1 Compensation Court's findings
of fact will be upheld if supported by substantial credible
evidence. Nelson v. Semitool, Inc. (Mont. 1992),
829 P.2d 1, 3, 49
St.Rep. 253, 254.
This case hinges upon the distinction between two important
concepts: ttwagesrt "income from prof its.tt Mike asserts that due
and
to his injuries he sustained a total loss of wages. While he
performs minor duties for the business, he is not involved in any
of the physical plumbing activities in which he previously engaged.
Further, he has not taken a salary draw from the business since his
injuries. Consequently, he has earned no wages and is therefore
entitled to continued temporary total disability benefits under
5 39-71-701, MCA (1987).
State Fund contends that the profits and subsequent income to
Mike from Alpine Plumbing and Heating has increased since Mike's
injuries, therefore, Mike has not suffered a total loss of wages as
required by the statutes. We disagree.
Section 39-71-118(2), MCA (1987), provides:
If the employer is a partnership or sole
proprietorship, such employer may elect to include as an
employee within the provisions of this chapter any member
of such partnership or the owner of the sole
proprietorship devoting full time to the partnership or
proprietorship business ... For premium ratemaking and
for the determination of weekly wage for weekly
compensation benefits, the insurance carrier shall assume
a salary or wage of such electing employee to be not less
than $900 a month and not more than 1 5 times the average
weekly wage as defined in this chapter.
Pursuant to the aforementioned statute, Mike elected coverage
and complied with the requirements of the statute. State Fund
processed his application and promised coverage that insured Mike
against injury that affected his wages.
We acknowledge that the concepts of wages and income from
profits are often used interchangeably but they are not the same,
and it is error to use them synonymously. In the case at bar,
State Fund made such an error.
A review of the record indicates that the success of Alpine
Plumbing and Heating and its subsequent increase in profitability
was not attributed to the ongoing efforts of Mike in his capacity
as a plumber. In fact, the record illustrates the determination
and tenacity of Mike's wife Cheryl and the rest of his family as
they faced and survived the circumstances that befell them. During
Mike's initial infirmity period, Mike's son and father carried out
the physical aspects of the business while Cheryl continued to
schedule plumbing jobs and prepare all necessary paperwork. When
Mike was further unable to work due to his hip surgeries, Cheryl
and Mike decided to hire employee plumbers to carry on their
business. This business decision apparently enabled Alpine
Plumbing and Heating to not only remain operational, but increase
in popularity and success, resulting in increased profits. It is
clear that these increased profits have not come as a result of
Mike's involvement in the business post-injury. Therefore, we will
not allow State Fund to escape responsibility under the valid
contract of insurance which they negotiated with Mike. This Court
does not dispute that Mike is now in a better financial position
than he was prior to his injury, however, that does not establish
grounds on which to deny him coverage under a valid insurance
contract.
State Fund attempts to support its position by stating that
the income received from the business is currently being derived
partly from the Tehles' initial investment and their reputation for
good work. Consequently, Mike is still receiving wages from the
business. Again, we cannot agree. Section 39-71-123, MCA (1987),
defines wages as:
[Tlhe 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 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.
Although the statute does not contain an all-inclusive list of
what constitutes wages in Montana, we do not find any similarity
with the terms listed therein. Certainly, we do not find that
income from profits are contained in the definition of "wages.'
Previously, we addressed the problem of whether the ability to
acquire income was equal to the ability to work. In Chatfield v.
Industrial Accident Board (1962),
140 Mont. 516,
374 P.2d 226, we
answered in the negative. We said:
Finally, it would seem that the board correlates ability
to acquire income with ability to work. Any income which
the claimant has received from the ranch is a result of
his capital investment and not from the sweat of his
brow. The fact that claimant was able to "boss" his own
ranch does not indicate an ability to compete on the
labor market for a similar position elsewhere.
Chatfield, 140 Mont. at 520, 374 P.2d at 228. Chatfield is
analogous to the case at bar in that both claimants obtained income
from a business they previously operated. The point of both the
Chatfield case and the case at bar is not that the individual is
able, through alternative business arrangements, to make a profit
from their business, but that they can no longer perform the
activities which State Fund insured.
After a review of the record in the case at bar, we find that
the Workers1 Compensation Court possessed the requisite evidence
and testimony to support its findings and conclusions. The
Workers' Compensation Court supported its findings of fact with
substantial credible evidence and it made correct conclusions of
law. Therefore, we will not overturn the Workers Compensation
Court's ruling. Accordingly, Mike is entitled to temporary total
benefits from November 14, 1989, until there is a change in his
medical status that would require compensation or denial thereof
according to relevant Montana statutes.
We concur:
+ Chief Justice