Perea v. AmTr. Ins. Co.

1

2024 MTWCC 2

JORDAN PEREA Petitioner v. AMTRUST INS. Co. Respondent/Insurer.

WCC No. 2023-6389, 2023-00010

Court of Workers Compensation of Montana

January 29, 2024

Submitted: November 17, 2023

ORDER DENYING PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT AND DENYING PETITIONER'S MOTION FOR SUMMARY JUDGMENT ON ADDITIONAL ISSUES, AND ESTABLISHING APPLICABLE COMPENSATION RATES

LEE BRUNER, JUDGE

Summary: The parties cross-move for summary judgment, asserting that their methods of calculating Petitioner's wage-loss benefit rates are correct. Petitioner also moves for summary judgment on the grounds that Insurer's incorrect calculation and recalculation of his wage-loss benefits throughout the adjustment of his claim was unreasonable entitling him to attorney fees and a penalty, and that § 39-71-712(2), MCA, unconstitutionally violates his entitlements to equal protection and substantive due process. The parties submitted a Joint Statement of Facts, and requested a determination based on those facts.

Held: The Court finds that both parties' methods of calculating Petitioner's wage-loss benefit rates are incorrect. Petitioner's wages from his simultaneous employment are not aggregated for purposes of calculating his M\N\I at the time of injury because his simultaneous employment is not "concurrent employment" under § 39-71 -123(4)(a), MCA. Likewise, Petitioner's wages from the same employer post-injury are not considered in calculating his TPD benefits because continued employment is not either "modified employment" or "alternative employment" under § 39-71-712(1), MCA. Petitioner is not entitled to attorney fees or a penalty; because the calculation of wageloss benefits for a person who works at two simultaneous jobs but, post-injury, can continue working at only one, is an issue of first impression in Montana, Insurer's attempts to arrive at the correct calculation of benefits were not unreasonable. Petitioner does not have standing to assert his equal protection challenge based on modified work or his substantive due process challenge. Petitioner's equal protection challenge based on the 40-hour cap fails under the facts of this case.

¶ 1 Petitioner Jordan Perea and Insurer AmTrust Ins. Co. (AmTrust) cross-moved for summary judgment, asserting that their methods of calculating Mr. Perea's wage-loss benefit rates were correct.

¶ 2 Mr. Perea also moved for summary judgment on the additional grounds that AmTrust's incorrect calculation and recalculation of his wage-loss benefits throughout the adjustment of his claim was unreasonable, entitling him to fees and penalties, and that § 39-71-712(2), MCA unconstitutionally violates his entitlements to equal protection and substantive due process.

¶ 3 Following their initial briefing, the Court requested that the parties file a joint statement of facts and supplemental briefs on specific questions.

¶ 4 Upon review of the parties' submissions, the Court observed that some of their positions had changed and that they alternatively requested that the Court decide the case based on the Joint Statement of Facts.

¶ 5 As explained below:

¶ 5a The parties' Cross-Motions for Summary Judgment on the correctness of their methods of calculating Mr. Perea's wage-loss benefit rates are denied.

¶ 5b Mr. Perea's Motion for Summary Judgment on the additional grounds of his entitlement to fees and penalties and the constitutionality of § 39-71-712(2), MCA, is denied.

¶ 5c The Court decides this case on the parties' Joint Statement of Facts.

FACTS

¶ 6 The key events are set forth in the below chronology, with other facts referenced as needed in the analysis.

¶ 7 At the time of Mr. Perea's injury, he was working at two jobs. These were Truss Works and Life in Bloom.

¶ 8 At Truss Works, where he had worked for more than 8 weeks, Mr. Perea earned $21.50 per hour - plus a $1 per hour "differential" for being a "Foreman/Lead" except on holidays - and worked an average of 45.25 hours per week.

¶ 9 At Life in Bloom, where Mr. Perea had worked for just a couple of days, he was hired at the wage of $16.00 per hour for up to a 20-hour work week. In actuality, Mr. Perea worked an average of 14.74 hours per week over the course of his tenure there.

¶ 10 Mr. Perea was injured on November 11, 2022, while he was in the course and scope of his employment with Truss Works.

¶ 11 Due to his injury, the last day Mr. Perea was able to work at Truss Works was Friday, November 25, 2022.

¶ 12 Mr. Perea's injury had no impact on his employment with Life in Bloom, which he continued without interruption.

¶ 13 Mr. Perea's last day working at Life in Bloom was January 20, 2023. He left for reasons unrelated to his injury.

¶ 14 On December 3, 2022, Mr. Perea started working at The Block, earning $14.00 per hour.

¶ 15 Due to his need for injury-related surgery, Mr. Perea's last day working at The Block was March 4, 2023.

¶ 16 On March 5, 2023, Petitioner had the surgery and was completely taken off work through April 30, 2023.

¶ 17 Mr. Perea returned to work at Truss Works on May 1, 2023, earning $21.50 per hour.

¶ 18 Mr. Perea did not return to work at The Block following surgery.

¶ 19 AmTrust paid Mr. Perea temporary total disability (TTD) benefits based on his wages at Truss Works from November 28, 2022, until December 16, 2022.

¶ 20 In January 2023, AmTrust learned for the first time that Mr. Perea had continued working at Life in Bloom after his injury and was still doing so, and that he had begun a new job at The Block, as well.

¶ 21 In light of this information, AmTrust indicated that "TTD was paid by mistake," explaining:

The benefits should be paid as TPD because wages cannot be earned while the injured worker is receiving TTD without the written approval of the carrier. The carrier is not authorizing Mr. Perea to earn wages while collecting TTD.

Accordingly, AmTrust recalculated Mr. Perea's benefits as temporary partial disability (TPD) benefits from November 28, 2022, until December 14, 2022.

¶ 22 Mr. Perea objected to AmTrust's recalculation of his benefits.

¶ 23 AmTrust recalculated those benefits several more times for various reasons but continued to maintain that Mr. Perea was limited to TPD benefits.

¶ 24 Throughout February 2023, the parties exchanged multiple e-mails disputing one another's methods of calculation.

¶ 25 In March 2023, counsel for AmTrust requested that counsel for Mr. Perea give him a call so that they could discuss the issue; counsel for Mr. Perea did not respond.

¶ 26 In April 2023, counsel for AmTrust began paying back TPD benefits for the period November 28, 2022, to March 4, 2023, and back TTD benefits for the period March 5, 2023, to April 15, 2023, in accordance with Mr. Perea's proposed calculations, "under a reservation of rights."

¶ 27 The following list of key dates is provided for the convenience of the reader: • November 25, 2022 - last day at Truss Works • December 3, 2022 - first day at The Block • January 20, 2023 - last day at Life in Bloom • March 4, 2023 - last day at The Block • March 5, 2023 - surgery • May 1, 2023 - first day back at Truss Works post-surgery

LAW AND ANALYSIS

¶ 28 This case is governed by the 2021 version of the Montana Workers' Compensation Act since that was the law in effect at the time of Mr. Perea's industrial accident.^[1]

¶ 29 To prevail on a motion for summary judgment, the moving party must meet its initial burden of showing the "absence of a genuine issue of material fact and entitlement to judgment as a matter of law."^[2] "[If] the moving party meets its initial burden to show the absence of a genuine issue of fact and entitlement to judgment, the burden shifts to the party opposing summary judgment either to show a triable issue of fact or to show why the undisputed facts do not entitle the moving party to judgment."^[3]

¶ 30 The parties' cross-motions raise three main questions.

A. What is the correct method of calculating Mr. Perea's wage-loss benefit rates?

¶ 31 The Court has determined there are three distinct time periods to which this question applies.

¶ 32 The following summary of law applied to facts is provided for the convenience of the reader:

• November 28, 2022 - December 2, 2022 (Period #1) Status TTD, § 39-71-701, MCA Not able to work at Truss Works. Life in Bloom not considered.

• December 3, 2022 - March 4, 2023 (Period #2) Status TPD, § 39-71-712, MCA Not able to work at Truss Works. Working at The Block. Life in Bloom not considered/Not working at Life in Bloom.

• March 5, 2023 - April 30, 2023 (Period #3) Status TTD, § 39-71-701, MCA Not working anywhere.

i. November 28, 2022, through December 2, 2022^[4]

¶ 33 Determining how to compensate Mr. Perea during this time period involves a question of first impression, i.e., how is compensation determined when a petitioner is working two simultaneous jobs at the time of injury, is then temporarily totally disabled from the first job, but the injury has no impact on the second job? The parties agree that Petitioner was disabled during this period; the question is whether he was temporarily partially disabled or temporarily totally disabled. The answer depends on the specific wording of the statutes.

¶ 34 A worker is eligible for TTD benefits under § 39-71 -701 (1), MCA:

(a) when the worker suffers a total loss of wages as a result of an injury and until the worker reaches maximum healing; or (b) until the worker has been released to return to the employment in which the worker was engaged at the time of the injury or to employment with similar physical requirements.^[5]

¶ 35 A worker qualifies for TPD benefits under § 39-71-712(1), MCA:

[l]f prior to maximum healing an injured worker has a

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