No. 85-469 INTHE SUPREME COURT OF THE STATE OF MONTANA 1986

DAVID M. HARMON, Claimantand Appellant,
-vsVERN D. HARMON, Employer, and STATE COMPENSATION INSURF-NCE FUND, Defendant and Respondent.

APPEAL FROM: The Workers' Compensation Court, Honorable Timothy Reardon, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Lynaugh, Fitzgerald & Hingle; Michael G. Eiselein, Billings, Montana

For Respond.ent: Crowley Law Firm; T. G. Spear, Billi-ngs, Montana

Submittedon Briefs: Jan. 9, 1986 Decided: March 25, 1986

Filed: 

### MAR2

## 51986:

8 

# w fq/LQ ClerkMr. Justice John C. Sheehy delivered the Opini-on of the Court.
AppelI-ant,David J. Harmon, appeals from the order of the Workers' Compensation Court adopting the findings of fact, conclusionsof law and judgment of the hearing examiner which established Harmon's temporary total disability rate as $57.54 per week. Harmon was injured on December 6, 1984, while employed by his father, Vern Harmon, as a ranch hand in Lavina, Nontana. Harmonwas injuredwhen a bull ran over the top of him while he was doctoring it. Harmon's fatherwas enrolled under Plan 111 of the Workers' CompensationAct. Harmon was temporarily totally disabled as a result of his injuries. At the time of his injury, Harmon received $375.00 per month as a salary fromhis father. At the same time,Harmon
was also running his own farm. Harmon's work on his own place involved the labor of operating a farm as well as coordinating tax return information and record keeping, supply, maintenance, purchase and sale activity, and other such management activiti-es. State Fund conceded that in working his own farm, Harmon engaged in activities sufficiently similar to those of his employment for his father so that his disabling injury at his father's employment would necessarily disable him from doing some of the work thathe did onhis ownplace. State Fund determined that Harmon's temporary total disability rate at $57.54 per week,based only upon Harmon's $375.00 per month salary pzid to him by his father for work
as a part-time ranch and farm hand. Harmon, however, maintained that his earnings from his separatebut identicalself-employment on his own family farm and ranch should have been combined with his earnings derived from the employment in which he was injured to properly determine his temporary totaldisability rate. On February 8, 1985,Harmon fil-edapetition for hearing with the Montana Workers' Compensation Court. The relief Harmon soughtwas an increase in his compensationratesbased upon his "average gross income" as a self-employed rancher/farmer. By agreement of the parties, the case was submitted to the hearing examiner upon proposed findings and conclusions, briefs, and Harmon's deposition. The hearing examiner's decision was issued to and adopted by the Workers' CompensationCourt onAugust 14, 1985. The Workers' Compensation Court concluded that State Fund correctlydetermined Harmon's temporary total disability rate at $57.54 per week. The court det.ermined that Harmon had failed to prove that he had any additionalwages,beyond his monthly salary from the employment at which he was injured which could be aggregated to increase his compensationrate. The court stated.: Claimant's evidence regardin.g his farm has not established a basis for a determination by this Court that he had. any additional wages from his self-employment that increaseshis temporary total rate under MCA 5 39-71-116(20) and the Montana Supreme Court cases interpreting that section. Harmon raises only one issue on appeal: whether the PJorkers' Compensation Court erred in failing to allow Harmon to aggregate his wages as a self-employed farmer, together with the wages he earned as a ranch hand, for the purpose of determining his weekly temporary total disability benefit 

### rate.The general rule is that earnings from concurrent employments may be combined if the employments are sufficiently similar so that a disabling injury at one employment would necessarily disable the employee in respect to the other employment. 2 Larson Workmen's Compensation Ilaw,Section 60.31 (a); Gee 

### v. State Comp. Ins. (1982)

## , 197 

### - Mont. 335, 337, 642 P.2d 1070, 1071; Catteyson v. Falls IflobileHome Center, Inc. (1979),183 Mont. 284, 288, 599 ~.2d 341, 343. Any aggregationof earnings,however,must be done pursuant to the applicable statutory definitions. In 

### - Gee, we stated: In providing compensation for a temporary total d.isability (section 39-71-116(19), MCA)

## , the legislature chose to restrict the compensation to that based upon loss of wages, rather than for a loss of earnings or earning capability as is provided in the statutory definitions of permanent partial disabil-ity(section 39-71-116!12), MCA) and permanent total. disability (section 39-71-116(13) )

# . Gee, 1.97Mont. at 338, 642 P.2d at 1072. 

### - "Wages" is a term of art. It refers to the "average gross earnings" received by the employee at the time of injury for the usual hours of employment in a week, and overtime is not to be considered. Section 39-71-116(20), MCA. Harmon's entitlement for weekly compensation benefits is to be computed as "66 2/3% of the wages received at the time of the injury." Section 33-71-701(1), MCA. There is no controversy that Harmon would have been entitled to an aggregation of wages if he had proved tha.t therehad been any loss ofwa.gesother than those he received from his father. Harmon contends that the court should have computed his temporary total disability benefit ra-teby use of his gross income figures fromhis projected 1985 income of approximately $35,000.00 or by use of a method of averaginghis gross income during the years preceding his injuries. In the alternative, Harmon contends that use of an approximation of reasonable value of the worth of his labors, based upon the costof living and paying for that labor should have been used. Based on the record,these theorieswould have changed Harmon's temporary total disability benefit rate to $286.00
or $248.00 per week, respectively. Harmon, in essence, is asking this Court to treat the gross income fromhis farmas "wages." There canbe no doubt but that the term "wages"asdefined by S 39-71-116(20), MCA, ispredicated upon an employment relationship which generates income from the employer to the employee. The record here is clear that no such relationship existed in Harmon's position
as a sel-£-employedfarmer. Harmon never paid himself awage. As we stated in 

### - Gee, supra, in providing compensation for a temporary totaldisability,the legislature chose to restrict the compensation to that based on loss ofwages, rather than loss of earnings. Clearly, Harmon suffered a loss of earnings on his farm from his disability. This loss of earnings, however, is noncompensable for purposes of his temporary totaldisability. We affirm. 

## / Justice 

## 1

We Concur: