Mont. Top Court Revises WCC Benefits Down for Concurrent Employee

Butte, MT (WorkersCompensation.com) -- It’s becoming increasingly common for people to hold down more than one job, which can raise some compensation questions if a worker injured doing one job isn’t able to work the other job anymore. 

Such was at issue in Barnhart v. Montana State Fund, 2022 MT 250 (Mont. 12/27/22), in which the Montana Supreme Court had to determine what an injured worker’s wage-loss benefit was given her concurrent employment status. 

A worker for a day treatment program, who also held a part-time job at Dairy Queen, experienced a back injury while on the job with the program. 

Over the next year and a half, the worker was sometimes able to work and sometimes not. Eventually, her doctor determined that she was at maximum medical improvement and assessed her with a Class 2, 10 percent whole person impairment rating. 

At the time of the worker’s injury, the aggregate weekly wage of her concurrent employments was $869.31, which resulted in a permanent partial disability benefit of rate $384. State Fund advised the worker that it would pay her impairment award at the PPD benefit rate of $384, representing her aggregate wages, but it would only pay her PPD indemnity benefits at the rate of $187.94, which represented only the worker’s Dairy Queen wages. 

The worker petitioned the Workers’ Compensation Court, seeking a recalculation of indemnity benefits at the rate of $384 per week. The WCC ruled in the worker’s favor, and State Fund appealed to the Montana Supreme Court. 

In considering the appeal, the court explained that, under Montana law, the PPD indemnity benefit rate is derived from the aggregate of actual wages of all employments from which the employee is disabled by the injury incurred. 

Thus, in the court’s view, the WCC’s interpretation led to the worker’s PPD indemnity benefits award exceeding her actual wage loss. 

“As set forth in the parties’ stipulated facts, at the time of her injury, [the worker] worked an average of 15.2 hours per week at Dairy Queen, for which she earned $18.55 per hour, for an average weekly wage of $281.91,” the court explained. “Following the WCC’s interpretation, [the worker] would receive $384.00 per week in PPD indemnity benefits -- $102.09 more than her actual Dairy Queen wage loss --and she would receive this amount in addition to her wages from [the program], which the parties agree she remains qualified to earn post-MMI.” 

As a result, the court reversed the WCC ruling and concluded that State Fund correctly calculated the worker’s PPD indemnity rate based upon her average weekly wage of $281.91 from her Dairy Queen job as these were her actual wages lost as a result of her work-related disability. 

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