No. 85-582 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

JACK L. WILKERSON, 

Claimant and. R.espondent, 

B & J USED FURNITURE, 

Employer and Appellant, 

and 

ROCKWOOD COMPANY, 

Defendant and Appellant. 

ROBERT L. JANES, 

Claimant and Respondent, 

B & J USED FURNITURE, 

Employer & Appellant, 

and 

ROCKWOOD COMPANY, 

Defendant and Appellant. 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Anderson, Brown, Gerbase, Cebull & Jones; Steven J. 

Harman, Billings, Montana 

For Respondent: 

Towe, Ball, Enright & Mackey; Gregory R. Todd, 

Billings, Montana 

Submitted on Briefs: Feb. 26, 1986 

Decided: May 6, 1986 

Filed: MAY 6 - 1986 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The employer and insurer appeal the decision of the 

Workers1 Compensation Court which determined the amount of 

temporary total disability payments due to employees Jack 

Wilkerson and Robert Janes. We affirm. 

The sole issue on appeal is whether the Workers' Compensation Court erred in setting the rate of claimants' weekly 

disability payments. 

The claimants established a partnership to buy a-nd sell 

used furniture in Billings in October 1984. Neither of them 

had been in the used furniture business previously. Before 

opening their business, they purchased workers' compensation 

insurance through Rockwood Company. 

On their fourth day of business, both claimants were 

injured while unloading a stove from their pickup truck. The 

insurer accepted liability and set the rates for temporary 

total disability benefits at $153.43 per week, calculated on 

the basis of annual wages of $12,000 for each claimant. 

The claimants requested that the Workers' Compensation 

Court increase their benefits. By stipulation of the parties, the case was submitted to the court on the depositions 

of the claimants and the insurance agent, and the exhibits 

attached to those depositions. The only evidence of the rate 

at which compensation should be set was the business' application for workers1 compensation insurance and the testimony 

of claimants and the insurance agent as to the application's 

intended meaning. The Workers' Compensation Court increased 

claimants' weekly compensation rate to $191.89 each, based on 

an estimated annual income for each claimant of $15,000, or 

half the expected annual payroll shown on the insurance 

application. 
It is undisputed that after the claimants were injured 

they were entitled to temporary total disability benefits 

under § 39-71-701, MCA, consisting of "66 2/3% of the wages 

received at the time of the injury." 

"Wages" means the average gross earnings 

received by the employee at the time of 

the injury for the usual hours of employment in a week, and overtime is not to be 

considered. Sick leave benefits accrued 

by employees of public corporations, as 

defined by subsection (16) of this section, are considered wages. 

Section 39-71.-116(20), MCA. No evidence of the claimants' 

actual earnings from the business was presented, presumably 

due to its newness. Nor was any evidence presented to show 

what used furniture dealers in the Billings area earned on a 

weekly basis. There was testimony that prior to opening 

their furniture business, Mr. Wilkerson derived an irregular 

income primarily from gambling, and Mr. Janes had worked most 

recently for $4.00 an hour as a laborer. 

The only documentary evidence before the court was the 

business' application for workers' compensation insurance. 

It showed. that the business was expected to employ three 

persons and have a total annual payroll of $30,000. The 

claimants testified that they had intended their insurance to 

provide for estimated annual salaries of $30,000 for each of 

them, based on what they understood a laborer would make. 

They also testified that the business employed only themselves, that they had no immediate plans to hire a third 

employee, and that they had not been aware of the figures 

shown on the application. The insurance agent testified that 

he and the claimants discussed the figures on the application. He also testified that the premium was initially set 

based on a $30,000 estimated annual payrol.1 for the business, 

consisting of $12,000 apiece for claimants and $6,000 for a 
future part-time employee. He testified that the policy 

premium would have been audited annually and, if necessary, 

adjusted. 

The brevity of the claimants' employment as used furniture businessmen is of no relevence in computing their rights 

to workers' compensation. 2 Larson, Workmen's Compensation 

Law, $ 60.21 (a) at 10-580 (1985). The entire objective of 

computation of average weekly wages is to arrive at as fair 

an estimate as possible of claimant's future earning capacity. 2 Larson, Workmen's Compensation Law, S 60 at 10-538 

(1985). Our standard of review is whether substantial evidence exists to support the findings and conclusions of the 

Workers' Compensation Court. Ridenour v. Equity Supply Co. 

(Mont. 1983), 665 P.2d 783, 788, 40 St.Rep. 1012, 1018. In 

the absence of better evidence, the hiorkers' Compensation 

Court based its computation of the claimants' weekly compensation rate on the estimated payroll for the business divided 

by the actual number of employees. We conclude that the 

court arrived at a fair estimate of claimants' future earning 

capacity, from the evidence presented in this unique case. 

There is substantial support in the record for the court's 

conclusion. We affirm. 

We Concur: A