No. 81-414 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

CONRAD GEE, Claimant and Respondent,
-vsCARTWHEEL RESTAURANT, Employer, and STATE COMPENSATION INSURANCEFUND, Defendant and Appellant.

Appeal from: Workers' Compensation Court, The William E. Hunt, Judge presiding.
Counsel of Record: ForAppellant: 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

## 25

## 19@Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
The State Compensation Insurance Fund appeals from theworkers' 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 CartwheelRestaurant 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 theMontana 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 receivehis usual monthly salary and benefits from the Book Store because he had been a long-term employee. TheWorkers' Compensation Court determined from the parties' stipulated facts that the claimant continued to be
a Book Store "employee"within themeaning of the Workers' Compensation Act through August 31, 1980, and that his wage base for the computation of temporary total disability benefits should includehis earnings from the Book Store. The State Compensation InsuranceFund 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 conditionprecedent to 

### an award of temporary total disabilitybenefits under the Workers' compensationAct. We hold that the gratuitouswages 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 thewages received at the time of the injury. Section 39-71-701(1), MCA. The legislature has definedwages as the average gross earnings receivedby 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 normalmonthly wages from the Book Store for July and August 1980,he was no longer actually employed there, and did not lose those gratuitouswages 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 relationshipwhich entitles him to compensation benefits based upon those wages also.The general rule is that earnings from concurrent employmentsmay be combined if the employments are sufficiently similar so that a disabling injury at one employmentwould necessarily disable the employee in respect to the other employment. 2 LarsonWorkmen's Compensation 

### - Law 5 60.31(a); Catteysonv. Falls Mobile Home Center (1979), -Plont

# . - I599 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 therewas such employment. Beckinsale v. Charles H. Greenthal, Inc. (1967), 277N.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 representwages 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. PublicAuction 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 (section39-71-116(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 (section39-71-116(12), MCA) and permanent total disability (section 39-71-116(13)

### ,MCA)

## . In essence, theWorkers' Compensation Court has determined that the claimant is entitled to temporary total disability benefits based upon lostwages for two concurrent jobs,while the evidence in no way establishes that the claimantwas actually concurrently employed at the BookStore or had suffered a loss of Book Storewages. To hold that the claimant should receivebenefits based upon more weekly hours than he has actually ever worked does not represent compensationbased upon his usual weekly hours of - employment. This case is reversed and remanded for proceedings consistent with this opinion.

We Concur:

Chief Justice