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Wallace v. State Compensation Insurance Fund12/7/1999
aimant's undisputed facts 18.)
9. Any income claimant realized as a realtor derived from commissions. His relationship with real estate brokers has always been as an independent contractor. (Claimant's undisputed facts 9.)
10. From 1987 through 1996, claimant's average income from real estate commissions was $4,480 per year. In six of these ten years, claimant's income from real estate was less than $4,000 per year. In only one of these years was claimant's income from real estate commissions in excess of $10,000. (Claimant's undisputed facts 10.)
11. In 1989, claimant attempted to teach shop in the Great Falls Public School system, but discontinued after approximately one week due to his injuries. He earned $615. (Claimant's undisputed facts 13.)
Although the State Fund does not agree with claimant's characterization of his pre- injury work as agricultural, there appears to be no dispute as to his actual employment history. Claimant testified he worked for a seismograph crew after high school, then worked for the United States Department of Agriculture (USDA) for approximately twenty- six years. (Wallace Dep. at 7, 10.) He began with the USDA as a clerk and field supervisor, then moved into "office manager trainee; [and then] office manager, which eventually they changed the name to account executive director." (Id. at 8.) As an account executive director, claimant supervised other employees (as many as fifteen to seventeen at times) and operated the office. (Id. at 9.) Claimant retired from that position and draws a federal pension. (Id. at 9-10.)
After retiring from the USDA, claimant went to work for Professional Farm Systems, where he worked at the time of his injury in 1982. (Id. at 11.) His work "involved a number of things, but the majority of it was selling grain handling equipment and storage." (Id. at 10.) Claimant testified that sometimes prospective customers were provided to him, and sometimes he sought them out. (Id. at 12.) Claimant was paid "wages plus commission." (Id. at 11.)
At various points after his injury , claimant performed some work other than in real estate . The parties apparently agree claimant worked for a time in a candle-making business operated by his family and did "spot jobs" for the USDA. The insurer, however, disputes the length of time claimant worked in the candle business and the amounts he earned from the USDA. (Claimant's alleged undisputed facts 11, 12; RESPONSE TO PETITIONER'S MOTION FOR SUMMARY JUDGMENT at 2.) At minimum, however, claimant concedes that he was employed by the USDA for the following number of weeks:
1991 14 weeks
1992 22 weeks
1993 13 weeks
1994 13 weeks
1995 10 weeks
1996 15 weeks
1997 8 weeks
(MOTION FOR SUMMARY JUDGMENT at 8.)
Summary Judgment Standard
Summary judgment may be granted where the uncontroverted, material facts require judgment as a matter of law. ARM 24.5.329; Schelske v. Creative Nail Design, Inc., 280 Mont. 476, 482, 933 P.2d 799, 802 (1997).
Discussion
Claimant was injured in 1982, hence his entitlement to benefits is governed by the 1981 version of the Workers' Compensation Act. Buckman v. Montana Deaconess Hospital, 226 Mont. 318, 321, 720 P.2d 380, 382 (1986). Section 39-71-701, MCA (1981), sets out the criteria for temporary total disability benefits, providing in relevant part:
39-71-701. Compensation for injuries producing temporary total disability. (1) Weekly compensation benefits for injury producing total temporary disability shall be 66 2/3%
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