DA 07 - 0133 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 311 AUGUSTINA STURCHIO, Petitioner and Appellee, v. WAUSAU UNDERWRITERS INSURANCE CO., Respondent, Insurer and Appellant.

APPEAL FROM: The Workers’ Co mpensation Court, Cause No. WCC 2006 - 1583,

Honorable James Jeremiah Shea, Presiding Judge COUNSEL OF RECORD:

For Appellant: Larry W . Jones, Law Offices of Larry W . Jones, Missoula, Montana For Appellee : J. Kim Schulke, Linnell, Newhall, Mart in & Schulke, PC, Great Falls, Montana Submitted on Briefs: November 14, 2007 Decided: December 4, 2007 Filed:

__________________________________________ Clerk December 4 20072

Justice W. William Leaphart delivered the Opinion of theCourt. ¶1 Wausau Underwriters Insurance Company (Wausau) appeals from the judgment of the Workers’ Compensation Court (WCC). We affirm. ¶2 We restate the issue as follows: ¶3 Did the WCC err when it interpreted § 39 - 71 - 123, MCA (2003), to allow the use of multiple methods to c alculate Sturchio’s average actual wage from concurrent employments? BACKGROUND ¶4 On June 11, 2005, Augustina Sturchio (S turchio) suffered a back injurywhile working as an on - call certified nursing assistant (CNA) for Priorcare at LibertyC ounty Nursing Home in Chester, Montana. W ausau accepted the claim and began paying medical and wage - loss benefits. At the time of her injury, Sturchio was concurrently employed with five employers: Priorcare, as an on - callCNA; Prairie Travelers, as anon call CNA; Toole County Ambulance, a s an on - call EMT; Marias Medical Center, a s an on - call CNA; and Saints Nursing , as a traveling CNA. Sturchio’s employers differed in their methods of paying compensationwith some paying weekly and others paying sporadicallybased on the as - needed work she performed for them. ¶5 Sturchio filed a claim with the WCC alleging , among other things, that she was entitled to higher compensation benefits because Wausau incorrectly calculated her average actualw age from concurrent em ployments when it determined her wage - loss benefit. Wausau responded that Sturchio was not entitled to additional benefit s. After3

conducting discovery, the parties submitted the case to the WCC on a statement of agreed facts. ¶6 The parties agreed th at Sturchio was employed by five concurrent employers when she was injured and that § 39 - 71 - 123, MCA (2003), governed the calculation me thod sto determine Sturchio’s average actual wage ; they disagreed , however, a s to the proper method of calculating her average actualw age . S turchio argued that each of the concurrent em

ployment s should be considered individually and that the average actual wage should be determined pursuant to the statutory method best suited toe ach employment’s particular circumstances. W ausau responded that the statute authorizes specific methods of calculating wages and that, while more than one of the methods may be appropriate, only one method shouldb e use d fo r all concurrent employments

—the injured worker cannot “pick and choose” which method to use depending on each individual em

ployment. The WCCrejected Wausau’s single - calculation method and held that Sturchioc orrectly interpreted § 39 - 71 - 123, MCA (2 00 3) . The WCC then calculated Sturchio’s average actual w age using this inter pretation. W ausau appeals the WCC’s interpretation of § 39 - 71 - 123, MCA (2003). STANDARD OF REVIEW ¶7 W e review for correctness the WCC’s conclusions of law . Simms v. State Compensation I

ns. Fund, 2005 MT 175, ¶ 11, 327 Mont. 511, ¶ 11, 116 P.3d 773, ¶ 11 . We apply the Workers’ Compensation Act (the Act) effective at the time an em ployee suffers an injury. Wilson v. Liberty Mut. Fire Ins. , 273 Mont. 313, 316, 903 P.2d 785,4

787 (1995). The 2003 version of the Act governed when Sturchiow as injured on Jun e 11, 2005 . DISCUSSION ¶8 Did th e WCC err when it interpreted § 39 - 71 - 123, MCA (2003), toallowt he use of multiple methods toc alculate Sturchio’s average actualwage fr om concurrent employments? ¶9 Wausau asserts that the WCC abandoned the rules of st atutory construction and failed to defer to the L egislature when it interpreted § 39 - 71 - 123, MCA (2003), as allowing Sturchio to determine her average actual wage pursuant to both subsection s (3)(a) and (3)(b). Wausau maintains that Sturchio could calculate her wages under either subsection, but she could notuse both . ¶10 The WCC’s interpretation of § 39 - 71 - 123, MCA (2003), presents a conclusiono f law which we review for correctness. State v. Price , 2002 MT 150, ¶ 15, 310 Mont. 320, ¶ 15, 50 P.3d 530, ¶ 15. When interpreting statutes, we seek to implement the Le gislature’s objectives. Boettcher v. MontanaGuar. Fund, 2007 MT 69, ¶ 19, 336 Mont. 393, ¶ 19, 154 P.3d 629, ¶ 19. The statute’s plain language controls our interpretation if we can discern the le gislative intent from the plain meaning of the statute’s words. Boettcher, ¶ 19. Further, we refuse to insert “what has been omitted or to omit what has been inserted.” Section 1 - 2 - 101, MCA. ¶11 Section 39 - 71 - 123, MCA (2003), sets forth the methods for calculating an injured employee ’ swages :5

(3)(a) Except as provided in subsection (3)(b), for compensation benefit purposes, the average actual earnings for the four pay periods immediately preceding the injury are the em ployee’ s wages, except that if the term of employment for the same em ployer is less than four pay periods, the employee ’ s wages are the hourly rate times the number of hours in a week for which the employee was hired to work. (b) For good cause shown, if the use of the last four pay periods doe s not accurately reflect the claimant ’ s employment history with the employer, the wage may be calculated by dividing the total earnings for an additional period of time, not to exceed 1 year prior to the date of injury, by the number of weeks in that perio d, including periods of idlenesso r seasonal fluctuations. (4)(a) For the purpose of calculating com pensation benefits for an employee working concurrent employments, the average actual wages must be calculated as provided in subsection (3). As used in this subsection, “concurrent em

ployment”means em

ployment in which the em ployee was actually employed at the time of the injury and would have continued to be employed without a break in the term of employment if not for the injury. ¶12 Wausau argues that the WCC effectively amended subsection (4 )( a) to read : “the average actual wages must be calculated as provided in subsection (3) (a) or (b) or both.” (Emphasis added by Wausau.) Wausau reasonsthat , because § 39 - 71 - 123(4)(a), MCA (2003), refers to subsection( 3) to calculate the wage - loss benefit for concurrent employments, wages for concurrent em ployments mu st be calculated one of two ways — either pursuant to subsection (3)(a) or subsection (3)(b), but not bothsubsections . Wausau further argues that § 39 - 71 - 105, MCA (2003), the Le gislature’s public policy declaration requiring that wage - loss benefits “bear a reasonable relationship to actual wages lost[,]” cannot be used to expand the calculation methods. W ausau relies on King v. State Compensation I

ns. Fun d, wherein we refused tou se the public policy provision6

tovary the specific provisions of § 39 - 71 - 123, MCA . 282 Mont. 335, 33 9 , 938 P.2d 607, 609 - 10(1997). We disagreewith Wausau’s interpretation of § 39 - 71 - 123, MCA (2003) . ¶13 Section3 9 - 71 - 123 , M CA (20 03), focuses on determining an injured em ployee’s proper wages. The statute defines “wages” as “all remuneration paid for services performed by an employee for an em ployer . . . .” S ection 39 - 71 - 123(1), MCA (2003). Subsection (1) describes the em ployer as a singularentityand subsection (3) instructs that the “average actual earnings for the four pay periods immediately preceding the injury ” constitute the employee’s wages, unless that calculation fails to accurately reflect the injured em

ployee’s em

plo yment history. The statute provides alternate calculation methods for situations in which the four-pay - period method inadequately approximates an employee’s average actual earnings. Section 39 - 71 - 123(3), MCA (2003). Thus, § 39 - 71 - 123(1) and (3), MCA (20 03) , detail the appropriatec alculationmethods to determine an injured employee’s average actual earnings with asingle employer. ¶14 As with injured workers employed by a single employer, § 39 - 71 - 123(4)(c), MCA (2003), provides thatemployees working for multiple employers also receive a wage - loss benefit based on their average actual wages . The only calculation difference between injured em

ployees with single em

ployment and those with concurrent employments is that the latter are entitled to benefits bas ed on “the aggregate of average actual wages of all em ployments[.]”S ection 39 - 71 - 123(4)(c), MCA (2003). Rather than restate the calculation methods, the statute simply instructs that the methods applicable to single employment also apply to concurrent e mployment: “[f]or the purposes of calculating compensation benefits for an em ployee working concurrent employments, the average7

actual wages must be calculated as provided in subsection (3).” Section 39 - 71 - 123(4)(a), MCA (2003). ¶15 Though we agree that only one of the methods described in subsection (3) can ultimately apply to individual em ployments, the statutory language fails to support Wausau’s position that an employee’s concurrent employments must be grouped together and considered as a single employment to determine the employee’s actual average wage. We refuse to “insert what has been omitted” from the statute, and thus, we reject Wausau’s interpretation of the statute. S ection 1 - 2 - 101, MCA . A reasonable reading of § 39 - 71 - 123, MCA (2003), in its entirety, supports the WCC’s interpretation that the calculation methods contained in subsection (3) should apply to eachindividual employment comprising the concurrent em ployments in the same manner they apply to individualemploymentsthat are singular . ¶16 Moreover, the Le gislature’s express public policy supports the WCC’s interpretation and precludes the interpretation offered by Wausau. Montana law instructs that wage - loss benefits “should bear a reasonable relationship to actual wages lost as a result of work- related injury or disease.” S ection 39 - 71 - 105(1), MCA (2003). A s the WCC recognized, determining Sturchio’s average actual wage for her individual employments would require using different statutory me thods: the average actual wage for some of Sturchio’s em ployments properly would be determined under subsection (3)(a) and others under subsection (3)(b). The WCC rejected Wausau’s argument for a single - calculation method, stating,8

This would require injured workers with concurrent em ployments to sacrifice the reasonable relationship between their wage - loss benefits and their actual w ages lost for the sake of using a single calculation method, when the express language of § 39 - 71 - 123, MCA [(2003)], recognizes the validity of using different c alculation methods for different em ployment situations. We agree with the WCC; the only interpretation that honors th e plain language of § 39 - 71 - 123, MCA (2003), and furthers the legislative policy that wage - loss benefits “bear a reasonable relationship to actual wages lost” is th e interpretation the WCC employed

— applying subsection (3) to each concurrent employment and then using the resulting figures to calculate the em ployee’sa ggregate average actual wage . S ection 39 - 71 - 105(1), MCA (2003). ¶17 Additionally , Wausau finds no support from our holding in King . The injured workerin King

requested that this Court create an exception to the § 39 - 71 - 123, MCA, calculation methods because a three - pay -period calculation would have entitled her to greater benefits than the four-pay -period calculation detailed in the statute. 282 Mont. at 338, 938 P.2d at 609. King argued that her proposed calculation method would bear a more reasonable relationship to her actual earnings in furtherance of the public policy expresse d in § 39 - 71 - 105(1), MCA. King’s proposed cal culation method , however, was inconsistent with the plain language of § 39 - 71 - 123, MCA, and we stated that public policy could not be used to ignore the Le gislature’s express statutory language. King, 282 Mont . at 339, 938 P.2d at 609 - 10. ¶18 Inthe present case, a statutory interpretation that allow s flexiblec om pensation calculations for concurrent employments is consistent with the plain language of § 39 - 71 -9

123, MCA (2003). Moreover, the public policy underlying the Ac t supports the WCC’s interpretation. Though, in King, we refused to allow the public policy provision sof § 39 - 71 - 105, MCA, to displace the express language of § 39 - 71 - 123, MCA, the Le gislature specifically directs that § 39 - 71 - 105, MCA (2003), be used to interpret the Act. W age loss benefits are designed to assist injured workers at a reasonable cost to em ployers and the benefit should “bear a reasonable relationship to the actual wages lost as a result of a work- related injury or disease.” S e ction 39 - 71 - 105, MCA (2003). Adopting Wausau’s interpretation of § 39 - 71 - 123(3) and (4) , MCA (2003), w ould negate the Le gislature’s expressintent that the wage - loss benefit reasonably relate to the actual wages lost. ¶19 The WCC’s interpretation of § 39 - 7 1 - 123, MCA (2003), honors the statute’s plain language and furthers the principles set forth in § 39 - 71 - 105, MCA (2003). We affirm. /S/ W. WILLIAM LEAPHART We concur: /S/ JAMES C. NELSON /S/ PATRICIA COTTER /S/ JIM RICE /S/ BRIAN MORRIS