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                                                                No. 99-017

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2000 MT 349

                                                             303 Mont. 252

                                                               15 P. 3d 475



                                                     MIKEL DUNNINGTON,

                                                      Petitioner and Appellant,

                                                                      v.

                                    STATE COMPENSATION INSURANCE FUND,

                                            Respondent and Respondent/Insurer for

                                           CENTURY CONSTRUCTION CO. and

                                                          MOR-BERG, INC.,

                                                                Employer.

                        APPEAL FROM: Workers' Compensation Court, State of Montana

                                     The Honorable Mike McCarter, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                                   Torger Oaas, Attorney at Law, Lewistown, Montana

                                                            For Respondent:

                        Thomas E. Martello, Legal Counsel, State Compensation Insurance

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                                                        Fund, Helena, Montana


                                                Submitted on Briefs: May 25, 2000
                                                  Decided: December 21, 2000

                                                                    Filed:

                                    __________________________________________

                                                                     Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Mikel Dunnington (Dunnington) appeals from the findings of fact, conclusions of law
and judgment entered by the Workers' Compensation Court (WCC) determining that the
State Compensation Insurance Fund (State Fund) correctly calculated his disability
benefits. We affirm.

¶2 The issue on appeal is whether the WCC erred in concluding that Dunnington was not
concurrently employed at the time of his injury.

                                                          BACKGROUND

¶3 In the spring of 1994, Dunnington began working for Century Construction, Inc.
(Century) as a traffic controller on Century's highway construction projects. Century
generally paid Dunnington $9.00 per hour unless a particular construction project
mandated "Davis-Bacon wages," which were higher. Due to the seasonal nature of the
work, Dunnington's employment with Century ended in the late fall of 1994. In early
January of 1995, Dunnington began working for Mor-Berg, Inc. (Mor-Berg), where his
job duties included steam cleaning heavy equipment and janitorial work. His employment
with Mor-Berg was part-time, on an "as needed" basis, and he was paid $6.50 per hour. In
early spring of 1995, Dunnington went back to work for Century on its highway
construction projects and again was laid off in the late fall when the weather made the
construction work impossible. He returned to work for Mor-Berg in December of 1995.

¶4 On February 8, 1996, when working for Mor-Berg, Dunnington was injured while
steam cleaning a construction loader. Mor-Berg was insured by the State Fund, which

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accepted liability for the injury and paid Dunnington temporary total disability benefits,
permanent partial disability benefits and medical expenses. The amount of Dunnington's
disability benefits was determined based on his wages earned at Mor-Berg. Dunnington
subsequently filed a petition in the WCC alleging that the State Fund's determination of
his disability benefits based solely on his Mor-Berg wages was incorrect. He asserted that
his benefits should be calculated based on an aggregation of both his Mor-Berg and his
Century wages because the two companies were actually one entity or, alternatively,
because he was concurrently employed by both companies at the time of his injury.

¶5 After a hearing on Dunnington's petition, the WCC entered findings of fact and
conclusions of law. The court determined that Century and Mor-Berg were separate
entities and that Mor-Berg was Dunnington's only employer at the time of his injury. As a
result, the court concluded Dunnington's wages from the two employments could not be
aggregated and the State Fund correctly calculated Dunnington's disability benefits using
only his Mor-Berg wages. The WCC entered judgment dismissing the petition and
Dunnington appeals only that portion of the WCC's decision which concluded he was not
concurrently employed at the time of his injury.

                                                  STANDARD OF REVIEW

¶6 Our review of WCC decisions is twofold. We review the court's findings of fact to
determine whether they are supported by substantial credible evidence and we review its
conclusions of law to determine whether those conclusions are correct. Hale v. Royal
Logging, 1999 MT 302, ¶ 11, 297 Mont. 165, ¶ 11, 990 P.2d 1245, ¶ 11. Here,
Dunnington does not challenge any of the WCC's findings of fact and, consequently, our
review is confined to whether the court's legal conclusion that Dunnington was not
concurrently employed at the time of his injury is correct.

                                                             DISCUSSION

¶7 Did the WCC err in concluding that Dunnington was not concurrently employed at the
time of his injury?

¶8 The amount of disability benefits paid to a claimant as a result of a work-related injury
under the Workers' Compensation Act (the Act) is determined in relation to the wages the
claimant was earning at the time of the injury. See, e.g., §§ 39-71-701(3), 39-71-702(3)
and 39-71-703(6), MCA. Generally, wages are determined by calculating the claimant's
average actual earnings for the four pay periods immediately preceding the date of injury.

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Section 39-71-123(3)(a), MCA. It has long been the rule, however, that earnings from
concurrent employments may be combined when determining a claimant's wages under
the Act. See, e.g., Gee v. Cartwheel Restaurant (1982), 197 Mont. 335, 338, 642 P.2d
1070, 1071 (citations omitted). The Montana Legislature codified this rule in 1989 and
added it to the Act's definition of "wages." See 1989 Mont. Laws, Ch. 333, Sec. 12. The
Legislature did not statutorily define concurrent employment at that time. See § 39-71-123
(4), MCA (1989). In 1995, however, the Legislature again amended § 39-71-123(4),
MCA, to provide that

         "concurrent employment" means employment in which the employee was actually
         employed at the time of the injury and would have continued to be employed
         without a break in the term of employment if not for the injury.

Section 39-71-123(4)(a), MCA (1995). The 1995 statute was in effect at the time of
Dunnington's injury and, therefore, it governs the determination of whether Dunnington
was concurrently employed at the time of his injury. See Hale, ¶ 14.

¶9 In determining the amount of Dunnington's disability benefits, the State Fund
calculated his wages pursuant to § 39-71-123(3)(a), MCA, by averaging his earnings from
Mor-Berg over four pay periods. Dunnington asserted in the WCC that his earnings from
Mor-Berg alone did not accurately reflect his actual earnings and the court should apply
the § 39-71-123(3)(b), MCA, exception to the general wage calculation provision. He
argued that, because he was employed by both Mor-Berg and Century, the court should
determine his wages by aggregating his earnings from both companies as provided in § 39-
71-123(4), MCA.

¶10 The WCC found that, at the time of his injury, Dunnington was employed by Mor-
Berg, was not employed by Century because he had been laid off at the end of the
construction season and his further employment with Century in the next construction
season was not guaranteed. Based on these findings and the definition of "concurrent
employment" in § 39-71-123(4)(a), MCA (1995), the WCC concluded that Dunnington
was not concurrently employed at the time of his injury because he was not "actually
employed" by Century. Dunnington asserts that the WCC's conclusion that he was not
concurrently employed is erroneous.

¶11 Dunnington contends that the WCC misinterpreted the § 39-71-123(4)(a), MCA,
definition of concurrent employment by reading the phrase "actually employed" as

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precluding the aggregation of wages from seasonal employment when the claimant's
injury occurred in the off-season of that employment. He argues that the statutory
definition of concurrent employment should be interpreted in conformity with prior case
law holding that earnings from seasonal employment may be included in determining a
claimant's wages under the Act. In support of his argument, Dunnington cites Gee, Lovell
v. State Comp. Mut. Ins. Fund (1993), 260 Mont. 279, 860 P.2d 95, and Walter v. Public
Auction Yards (1979), 181 Mont. 109, 592 P.2d 497. We conclude, however, that these
cases are not applicable here.

¶12 While the cases on which Dunnington relies are factually distinguishable from the
present case, the most important distinguishing factor is that each of these cases was
decided under versions of § 39-71-123, MCA, in effect prior to the 1995 amendment
adding the definition of "concurrent employment" to the statute. See Gee, 197 Mont. at
337, 642 P.2d at 1071; Lovell, 260 Mont. at 285, 860 P.2d at 99; Walter, 181 Mont. at 113-
14, 592 P.2d at 499. Consequently, those decisions did not interpret the phrase "actually
employed" as used in § 39-71-123(4)(a), MCA (1995), and applicable here. It is well-
established that, when determining a claimant's entitlement to benefits under the Act, we
must apply the statutes in effect at the time the claimant was injured. Hale, ¶ 14. Thus,
cases addressing different versions of the statute--especially versions which lack the
specific language at issue here--are of no assistance.

¶13 In addressing whether the WCC correctly concluded Dunnington was not
"concurrently employed," we must look first to the statutory definition of the term as
provided by the Legislature in § 39-71-123(4)(a), MCA (1995). See, e.g., In re R.L.S.,
1999 MT 34, ¶ 8, 293 Mont. 288, ¶ 8, 977 P.2d 967, ¶ 8. In construing that definition, we
must pursue the intent of the Legislature and "we determine that intent by interpreting the
plain meaning of the language used by the Legislature." In re R.L.S., ¶ 8. "The statutory
language must be reasonably and logically interpreted and words given their usual and
ordinary meaning." In re R.L.S., ¶ 8.

¶14 As stated above, "concurrent employment" is defined, in pertinent part, as
"employment in which the employee was actually employed at the time of the injury . . . ."
Section 39-71-123(4)(a), MCA (1995). The point of contention in this case is the
interpretation of the phrase "actually employed." "Actual" is defined as "1. Existing and
not merely potential or possible . . . . 2. Being, existing, or acting at the present
moment . . . ." The American Heritage Dictionary 18 (3rd ed. 1992). Black's Law
Dictionary similarly defines "actual" as "existing presently in fact . . . ." Black's Law

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Dictionary 34 (6th ed. 1990). Thus, pursuant to the plain language of § 39-71-123(4)(a),
MCA (1995), a claimant is concurrently employed if, when he or she is injured at one job,
the claimant has a second job which, in fact, exists at that time.

¶15 Here, the WCC found that, at the time he was injured, Dunnington was employed only
by Mor-Berg, he was not employed by Century and his future employment with Century
was not guaranteed. The WCC's findings of fact--findings which Dunnington does not
challenge--make it clear that Dunnington's employment with Century did not in fact exist
at the time he was injured at Mor-Berg. As a result, Dunnington was not "actually
employed" by Century at the time he was injured and, under the plain language of § 39-71-
123(4)(a), MCA (1995), he was not "concurrently employed." We hold that the WCC
correctly concluded that Dunnington was not concurrently employed at the time of his
injury.

¶16 Affirmed.

                                                      /S/ KARLA M. GRAY

                                                               We concur:

                                                        /S/ J. A. TURNAGE

                                                /S/ TERRY N. TRIEWEILER

                                                     /S/ JAMES C. NELSON

                                               /S/ W. WILLIAM LEAPHART




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