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Kapphan v. State Compensation Insurance Fund2/17/2000
o be made in cases where the worker's hours of employment are restricted as a result of the injury or the claimant is working overtime when injured. This Court addressed the former issue in S.L.H. v. State Compensation Ins. Fund, 1999 MTWCC 6. That case involved a claimant who was working less than 40 hours a week and was further restricted in her weekly hours of employment by her injury. This case is dissimilar in that claimant is not restricted from working full time. Indeed, despite his testimony that he does not have the stamina to work overtime, he is not medically restricted from working overtime. Moreover, I did not find his testimony convincing. On a pure hourly wage comparison, he now earns more per hour than preinjury. Under these circumstances, given the lack of guidance provided by the statute, it was not unreasonable for the State Fund to take the position that there was no wage loss.
JUDGMENT
1. Pursuant to section 39-71-703, MCA, claimant is entitled to wage loss benefits of 10% and loss of laboring capacity of 5%.
2. Claimant is not entitled to attorney fees or a penalty. He is entitled to his costs in an amount to be determined under this Court's rules.
3. This JUDGMENT is certified as final for purposes of appeal pursuant to ARM 24.5.348.
4. Any party to this dispute may have 20 days in which to request a rehearing from this DECISION AND JUDGMENT.
DATED in Helena, Montana, this 17 th day of February, 2000.
c: Mr. Richard J. Martin
Ms. Carrie L. Garber Date Submitted: October 18, 1999
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