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Wallace v. State Compensation Insurance Fund12/7/1999
that the Coles requirements do not apply where a worker has returned to work.
In Larson v. CIGNA Ins. Co., 276 Mont. 283, 915 P.2d 863 (1996), the Montana Supreme Court distinguished cases in which the claimant had returned to work. "When a claimant returns to work, he or she is no longer experiencing a loss in wages and, therefore, the insurer can rightfully terminate temporary total disability benefits without proceeding with an investigation under ยง 39-71-609 . . . the Coles criteria do not apply in this case." Id. 276 Mont. at 294, 915 P.2d at 870 (emphasis added).
In Weaver v. Buttrey Food and Drug, 255 Mont. 90, 841 P.2d 476 (1992), claimant asserted she had not been "gainfully employed" since the termination of her temporary disability benefits, even though she earned income from work in a tavern she and her husband owned. Claimant had argued that " he is paid no money as a direct wage for her work at the tavern...and receives no benefits." 255 Mont. at 97, 841 P.2d at 481. The Court rejected the argument, noting as follows:
This Court, however, has adopted the "economic gain" standard for determining eligibility for total disability benefits. Anderson v. Hammer (1992), 826 P.2d 931, 936, 49 St. Rep. 165, 168. Under the Workers' Compensation Act, "wages" simply means gross earnings, or "anything of value received as consideration for work...constituting real economic gain to the employee." Scyphers v. H & H Lumber (1989), 237 Mont. 424, 426, 774 P.2d 393, 394.
Id.
In Ware v. State Compensation Insurance Fund, WCC No. 9508-7361 (1996), this Court followed Weaver, finding the claimant ineligible for total disability benefits during a period of self-employment. Claimant had been injured while working as a carpenter and had returned to work in a modified capacity. He then moved to Missouri to be closer to his children, which he had planned to do prior to his injury . In Missouri he performed a series of jobs involving construction, electrical work, patching fences, and various other odd jobs. Contending he did not reach maximum medical improvement until he had surgery, claimant sought retroactive temporary total disability benefits for the period prior to surgery which was performed after his Missouri jobs. His request for benefits encompassed periods during which he was working, albeit while self-employed. Citing Weaver, this Court concluded claimant was not entitled to temporary total disability benefits during a period of self-employment:
Weaver teaches that an injured worker capable of continuing to perform work within his or her normal labor market is ineligible for temporary total disability benefits whether or not the worker continues to work as a true employee or undertakes self-employment. Weaver also shows that a worker's normal labor market may include jobs he or she in fact performs subsequent to injury .
Ware at 11 (emphasis in original).
The Ware decision further noted that in Weaver the claimant was determined to be ineligible for total disability benefits "even though part of the time for which she sought benefits she was only working part-time." Id.
In this case, the claimant concedes he was working as "an independent contractor under a broker at Bison Realty in Great Falls" prior to the termination of temporary total disability benefits. (Claimant's undisputed fact 8). He contends, however, this was not "return to work" under section 39-71-609, MCA, because he was an independent contractor and received income in the form of commissions. This argument is without merit.
Claimant has presented no evidence that he was physically unable to actively pu
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