                                               No.    85-469

                  I N THE SUPREME COURT OF THE STATE O F MONTANA

                                                     1986




DAVID M.     HARMON,

                     C l a i m a n t and A p p e l l a n t ,

           -vs-

VERN D .    HARMON, E m p l o y e r ,

           and

STATE COMPENSATION INSURF-NCE FUND,

                     D e f e n d a n t and R e s p o n d e n t .




APPEAL FROM:         The Workers' C o m p e n s a t i o n C o u r t , H o n o r a b l e        Timothy
                     R e a r d o n , J u d g e presiding.


COUNSEL OF RECORD:


           For Appellant:

                     Lynaugh, F i t z g e r a l d & Hingle;              Michael G .        Eiselein,
                     B i l l i n g s , Montana


           F o r Respond.ent:

                     C r o w l e y Law F i r m ;     T.    G.   Spear, Billi-ngs, Montana




                                                     S u b m i t t e d on B r i e f s :   Jan. 9 , 1 9 8 6
                                                          Decided:      M a r c h 25,     1986



Filed:      MAR 2 5 1986:



                                        w            fq/ L
                                                     Clerk
                                                                            8
                                                                                  Q
Mr. Justice John C.             Sheehy delivered the Opini-on of the
Court.


      AppelI-ant, David J. Harmon, appeals from the order of
the Workers' Compensation Court adopting the findings of
fact, conclusions of law and judgment of the hearing examiner
which established Harmon's temporary total disability rate as
$ 5 7 . 5 4 per week.

      Harmon was injured on December 6, 1984, while employed
by   his    father, Vern Harmon, as a ranch hand in Lavina,
Nontana.      Harmon was injured when a bull ran over the top of
him while he was doctoring it.             Harmon's father was enrolled
under Plan 111 of the Workers' Compensation Act.                     Harmon was
temporarily totally disabled as a result of his injuries.
      At the time of his injury, Harmon received $ 3 7 5 . 0 0 per
month as a salary from his father.               At the same time, Harmon

was also running his own farm.                  Harmon's work on his own
place involved the labor of operating a farm as well as
coordinating       tax    return    information and        record      keeping,
supply, maintenance, purchase and sale activity, and other
such management activiti-es.              State Fund conceded that in
working      his    own     farm,      Harmon    engaged      in     activities
sufficiently similar to those of his employment for his
father      so   that     his    disabling      injury   at    his     father's
employment would necessarily disable him from doing some of
the work that he did on his own place.
         State Fund      determined that Harmon's temporary total
disability rate at $ 5 7 . 5 4 per week, based only upon Harmon's
$375.00     per month salary pzid to him by his father for work
as   a     part-time     ranch   and    farm    hand.      Harmon, however,
maintained that his earnings from his separate but identical
self-employment on his own family farm and ranch should have
been combined with his earnings derived from the employment
in which he was injured to properly determine his temporary
total disability rate.
        On February 8, 1985, Harmon fil-ed a petition for hearing
with the Montana Workers' Compensation Court.                      The relief
Harmon sought was an increase in his compensation rates based
upon     his    "average        gross     income"     as    a   self-employed
rancher/farmer.
        By agreement of the parties, the case was submitted to
the hearing examiner upon proposed findings and conclusions,
briefs, and Harmon's deposition.                    The hearing examiner's
decision       was     issued     to    and   adopted      by   the   Workers'
Compensation Court on August 14, 1985.
       The Workers' Compensation Court concluded that State
Fund correctly determined Harmon's temporary total disability
rate at $57.54 per week.                The court det.ermined that Harmon
had failed to prove that he had any additional wages, beyond
his monthly          salary    from the employment at which he was
injured     which       could      be     aggregated       to   increase   his
compensation rate.            The court stated.:
       Claimant's evidence regardin.g his farm has not
       established a basis for a determination by this
       Court that he had. any additional wages from his
       self-employment that increases his temporary total
       rate under MCA 5 39-71-116 (20) and the Montana
       Supreme Court cases interpreting that section.
       Harmon raises only one issue on appeal:                   whether the
PJorkers' Compensation Court erred in failing to allow Harmon
to aggregate his wages as a self-employed farmer, together
with the wages he earned as a ranch hand, for the purpose of
determining his weekly temporary total disability benefit
rate.
        The   general   rule      is   that   earnings     from   concurrent
employments      may    be     combined       if   the   employments      are
sufficiently     similar     so    that   a    disabling    injury   at   one
employment would necessarily disable the employee in respect
to the other employment.               2 Larson Workmen's Compensation

- Section 60.31 (a); Gee v. State Comp. Ins. (1982), 197
Ilaw,
Mont.    335, 337, 642 P.2d            1070, 1071; Catteyson v.        Falls
Iflobile Home Center, Inc. (1979), 183 Mont. 284, 288, 599 ~ . 2 d
341, 343.     Any aggregation of earnings, however, must be done
pursuant to the applicable statutory definitions.                 In - we
                                                                     Gee,
stated:
        In providing compensation for a temporary total
        d.isability (section 39-71-116 (19), MCA) , the
        legislature chose to restrict the compensation to
        that based upon loss of wages, rather than for a
        loss of earnings or earning capability as is
        provided in the statutory definitions of permanent
        partial disabil-ity (section 39-71-116 !12), MCA) and
        permanent       total.     disability        (section
        39-71-116 (13)) .
- 1.97 Mont. at 338, 642 P.2d at 1072.
Gee,
        "Wages" is a term of art.             It refers to the "average
gross earnings" received by              the employee at the time of
injury for the usual hours of employment in a week, and
overtime is not to be considered.                  Section 39-71-116(20),
MCA.     Harmon's entitlement for weekly compensation benefits

is to be computed as "66 2/3% of the wages received at the
time of the injury."         Section 33-71-701(1), MCA.
        There is no controversy that Harmon would have been
entitled to an aggregation of wages if he had proved tha.t
there had been any loss of wa.ges other than those he received
from his father.        Harmon contends that the court should have
computed his temporary total disability benefit ra-te by use
of his gross income figures from his projected 1985 income of
approximately $35,000.00 or by use of a method of averaging
his gross income during the years preceding his injuries.      In
the alternative, Harmon contends that use of an approximation
of reasonable value of the worth of his labors, based upon
the cost of living and paying for that labor should have been
used.    Based on the record, these theories would have changed
Harmon's temporary total disability benefit rate to $286.00
or $248.00 per week, respectively.
        Harmon, in essence, is asking this Court to treat the
gross income from his farm as "wages."     There can be no doubt
but that the term "wages" as defined by S 39-71-116(20), MCA,
is predicated upon an employment relationship which generates
income from the employer to the employee.    The record here is
clear that no such relationship existed in Harmon's position
as a sel-£-employed farmer.   Harmon never paid himself a wage.
As we stated in - supra, in providing compensation for a
                Gee,
temporary total disability, the legislature chose to restrict
the compensation to that based on loss of wages, rather than
loss of     earnings.   Clearly, Harmon    suffered a   loss of
earnings on his farm from his disability.         This loss of
earnings, however, is noncompensable for purposes of his
temporary total disability.
     We affirm.


                                       /     Justice       1

We Concur:
