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Wallace v. State Compensation Insurance Fund12/7/1999
rsue real estate sales or earn commissions. Under Weaver and Ware, at the time he associated himself with Bison Realty and announced he was engaged in real estate sales, he "returned to work." The fact that claimant worked as an independent contractor does not distinguish his case from Weaver and Ware, which specifically considered the application of section 39-71-609, MCA, where the claimant returns to work as an independent contractor. Thus, the 14-day notice requirement of section 39-71-609, MCA (1981), and the Coles requirements were inapplicable.
Claimant's argument that earnings as an independent contractor do not constitute "wages" from employment is specious. If correct it would mean that a worker injured in an industrial accident could earn as much as, or even 100 times more than, he or she was earning at the time of the injury and still be entitled to total disability benefits so long as post-injury earnings are attributable to work as an independent contractor. Section 39-71- 609, MCA, does not refer to wages or employment, only to a "return to work."
Claimant's reliance upon statutory definitions of employment and wages is misplaced. While section 39-71-118(1)(a), MCA (1981), defines employment as excluding independent contractors, the section is concerned with insurance coverage requirements, as evidenced by the further exclusion of household and domestic service. The section has nothing to do with whether a worker returning to work in an independent contractor capacity is entitled to continued temporary total disability benefits. Moreover, the argument ignores other provisions of the Workers' Compensation Act which consider independent contractors as both employers and employees. Subsection (2) of section 39- 71-118, MCA (1981), expressly refers to partnerships and sole proprietorships as employers and their members as employees, providing in relevant part:
If the employer is a partnership or sole proprietorship, such employer may elect to include as an employee within the provisions of this chapter any member of such partnership or the owner of the sole proprietorship devoting full time to the partnership or proprietorship business.
Under these provisions, sole proprietors performing work for others as independent contractors are in essence their own employees.
Claimant's argument that commissions cannot be considered wages, is similarly misguided. Again, section 39-71-609, MCA, refers to a "return to work", not to wages. Moreover, the definition of wages at the time of his injury was a broad one, encompassing "average gross earnings received by the employee at the time of the injury for the usual hours of employment in a week." § 39-71-116(20), MCA (1981). The definition is obviously pertinent to determination of wages for the purpose of determining benefits and does not exclude consideration of earnings from work as an independent contractor in determining whether a claimant has returned to work. The specific inclusion of commissions in a 1987 law adopting a new section regarding wages, § 39-71-123, MCA, does not change the law in effect in 1981 and does not exclude consideration of commissions for purposes of determining whether a claimant has returned to work.
The cases relied upon by claimant with regard to wages are similarly inapplicable. Claimant cites decisions holding that post-injury income in the form of capital profits does not affect a claimant's entitlement to total disability benefits. In Tehle v. Alpine Plumbing, 254 Mont. 25, 835 P.2d 1 (1992), the injured worker's family continued his plumbing business after his disabling injury . According to the Court:
This case hinges upon the distin
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