No. 85-469 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

DAVID M. HARMON, 

Claimant and Appellant, 

-vsVERN D. HARMON, Employer, 

and 

STATE COMPENSATION INSURF-NCE FUND, 

Defendant and Respondent. 

APPEAL FROM: The Workers' Compensation Court, Honorable Timothy 

Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lynaugh, Fitzgerald & Hingle; Michael G. Eiselein, 

Billings, Montana 

For Respond.ent : 

Crowley Law Firm; T. G. Spear, Billi-ngs, Montana 

Submitted on Briefs: Jan. 9, 1986 

Decided: March 25, 1986 

Filed: MAR 2 5 1986: 

w 8 fq/ LQ 

Clerk 
Mr. 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, conclusions of 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. Harmon was injured when a bull ran over the top of 

him while he was doctoring it. Harmon's father was enrolled 

under Plan 111 of the Workers' Compensation Act. 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 from his 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 that he did on his own place. 

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 separate but identical 
self-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 

total disability rate. 

On February 8, 1985, Harmon fil-ed a petition for hearing 

with the Montana Workers' Compensation Court. The relief 

Harmon sought was an increase in his compensation rates based 

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' 

Compensation Court on August 14, 1985. 

The Workers' Compensation Court concluded that State 

Fund correctly determined 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 additional wages, beyond 

his monthly salary from the employment at which he was 

injured which could be aggregated to increase his 

compensation rate. 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 increases his 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 

Iflobile Home Center, Inc. (1979), 183 Mont. 284, 288, 599 ~.2d 

341, 343. Any aggregation of 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, 1.97 Mont. 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 

there had been any loss of wa.ges other than those he received 

from his father. Harmon contends that the court should have 

computed his temporary total disability benefit ra-te by use 

of his gross income figures from his projected 1985 income of 

approximately $35,000.00 or by use of a method of averaging 
his 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 cost of living and paying for that labor should have been 

used. Based on the record, these theories would 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 from his farm as "wages." There can be no doubt 

but that the term "wages" as defined by S 39-71-116(20), MCA, 

is predicated 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-£-employed farmer. Harmon never paid himself a wage. 

As we stated in - Gee, supra, in providing compensation for a 

temporary total disability, the legislature chose to restrict 

the compensation to that based on loss of wages, 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 total disability. 

We affirm. 

/ Justice 1 

We Concur: