No. 81-414 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

CONRAD GEE, 

Claimant and Respondent, 

-vsCARTWHEEL RESTAURANT, Employer, 

and 

STATE COMPENSATION INSURANCE FUND, 

Defendant and Appellant. 

Appeal from: Workers' Compensation Court, The William E. 

Hunt, Judge presiding. 

Counsel of Record: 

For Appellant: 

William Bailey Dunn, Helena, Montana 

For Respondent: 

Albert A. Frost; Page Wellcome, Bozeman, Montana 

Submitted on Briefs: December 3, 1981 

Decided: March 25, 1982 

Filed: 

MAR 2 5 19@ 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

The State Compensation Insurance Fund appeals from 

the workers' Compensation Court's determination that a 

claimant's wage base for temporary total disability benefits 

should include gratuitous pay from a prior job that he had 

resigned from. 

On July 19, 1980, the claimant injured his right arm in 

the course of his part-time employment as a dishwasher at 

the Cartwheel Restaurant in Bozeman, Montana. The State 

Compensation Insurance Fund accepted liability for the 

injury and paid temporary total disability benefits based 

upon the claimant's wages at the Cartwheel Restaurant. The 

claimant then petitioned the Workers' Compensation Court to 

order that he be paid benefits based upon his wages at the 

Cartwheel Restaurant, as well as the Montana State University 

Book Store, where he had been employed full-time since 

October 23, 1969, but had resigned on June 30, 1980. During 

July and August, 1980, however, he continued to receive his 

usual monthly salary and benefits from the Book Store because 

he had been a long-term employee. 

The Workers' Compensation Court determined from the 

parties' stipulated facts that the claimant continued to be 

a Book Store "employee" within the meaning of the Workers' 

Compensation Act through August 31, 1980, and that his wage 

base for the computation of temporary total disability 

benefits should include his earnings from the Book Store. The 

State Compensation Insurance Fund appeals that determination, 

contending that the claimant's earnings from the Book Store 

should not be included because a loss of those wages is a 

condition precedent to an award of temporary total disability 
benefits under the Workers' compensation Act. 

We hold that the gratuitous wages received from the 

Book Store should not be included in the computation of the 

claimant's temporary total disability benefits. 

The legislature has defined a temporary total disability 

as one ". . . that results in total loss of wages and exists 

until the injured worker is as far restored as the permanent 

character of the injuries will permit." Section 39-71- 

1619 , A. Weekly compensation benefits for an injury 

which produces total temporary disability shall be 66 2/3 percent 

of the wages received at the time of the injury. Section 

39-71-701(1), MCA. The legislature has defined wages as the 

average gross earnings received by the employee at the time 

of the injury -- for his usual weekly hours of - employment. 

Section 39-71-116(20), MCA. 

The stipulated facts establish that although the claimant 

was receiving his normal monthly wages from the Book Store 

for July and August 1980, he was no longer actually employed 

there, and did not lose those gratuitous wages upon becoming 

disabled. The claimant, however, argues that the Book 

Store's payment of his usual monthly wages should be considered 

presumptive of an employer/employee relationship which 

entitles him to compensation benefits based upon those wages 

also. 

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 - Law 5 60.31(a); 

Catteyson v. Falls Mobile Home Center (1979), - Plont . - I 
599 P.2d 341, 36 St.Rep. 1443; Walter v. Public Auction 

Yards (1979), Mont . , 592 P.2d 497, 36 St.Rep. 553. 

However, there can be no computation of a workers' compensation 

award based on concurrent employment unless there was such 

employment. Beckinsale v. Charles H. Greenthal, Inc. (1967), 

277 N.Y.S.2d 426, 27 App.Div.2d 129. Applying even the 

most liberal statutory construction favoring the claimant, 

to conclude that his average gross earnings should include 

wages from this job at which he is no longer employed does 

not fairly or reasonably represent wages lost from his usual 

weekly hours of employment. The amount of compensation must 

bear some reasonable relation to the loss sustained on 

account of disability. 

We have, in the past, allowed the aggregation of earnings 

from separate, concurrent employments in the determination 

of permanent disability benefits. See Catteyson v. Falls 

Mobile Home Center, supra; Walter v. Public Auction Yards, 

supra; Walker v. H. F. Johnson, Inc. (1978), - Mon t . - I 

591 P.2d 181, 35 St.Rep. 1667. However, any aggregation of 

earnings must be done pursuant to the applicable statutory 

definitions. In providing compensation for a temporary 

total disability (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 disability (section 39-71-116(12), MCA) and 

permanent total disability (section 39-71-116 (13) , MCA) . 

In essence, the Workers' Compensation Court has determined that the claimant is entitled to temporary total 

disability benefits based upon lost wages for two concurrent 

jobs, while the evidence in no way establishes that the 

claimant was actually concurrently employed at the Book 
Store or had suffered a loss of Book Store wages. To hold 

that the claimant should receive benefits based upon more 

weekly hours than he has actually ever worked does not 

represent compensation based upon his usual weekly hours of - 

employment. This case is reversed and remanded for proceedings 

consistent with this opinion. 

We Concur: 

Chief Justice