                                    No. 8 5 - 5 8 2
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         1986




JACK L. WILKERSON,
              Claimant and. R.espondent,


B   &   J USED FURNITURE,
                  Employer and Appellant,
           and
ROCKWOOD COMPANY,
              Defendant and Appellant.


ROBERT L. JANES,
              Claimant and Respondent,


B   &   J USED FURNITURE,
                  Employer   &   Appellant,
           and
ROCKWOOD COMPANY,
              Defendant and Appellant.




APPEAL FROM:      The Workers' Compensation Court, The Honorable
                  Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
           For Appellant:
                  Anderson, Brown, Gerbase, Cebull         &   Jones; Steven J.
                  Harman, Billings, Montana
           For Respondent:
                  Towe, Ball, Enright       &   Mackey; Gregory R. Todd,
                  Billings, Montana



                                         Submitted on Briefs: Feb. 26, 1986
                                            Decided: May 6, 1986

Filed:       MAY 6 - 1986
Mr. Justice Fred J. Weber delivered the Opinion of the Court.


     The employer and insurer appeal the decision of the
Workers1 Compensation Court which determined the amount of
temporary total disability payments due to employees Jack
Wilkerson and Robert Janes.   We affirm.
     The sole issue on appeal is whether the Workers' Compen-
sation Court erred in setting the rate of claimants' weekly
disability payments.
     The claimants established a partnership to buy a-nd sell
used furniture in Billings in October 1984.   Neither of them
had been in the used furniture business previously.       Before
opening their business, they purchased workers' compensation
insurance through Rockwood Company.
     On their fourth day of business, both claimants were
injured while unloading a stove from their pickup truck.    The
insurer accepted liability and set the rates for temporary
total disability benefits at $153.43 per week, calculated on
the basis of annual wages of $12,000 for each claimant.
     The claimants requested that the Workers' Compensation
Court increase their benefits.    By stipulation of the par-
ties, the case was submitted to the court on the depositions
of the claimants and the insurance agent, and the exhibits
attached to those depositions.   The only evidence of the rate
at which compensation should be set was the business' appli-
cation for workers1 compensation insurance and the testimony
of claimants and the insurance agent as to the application's
intended meaning.   The Workers' Compensation Court increased
claimants' weekly compensation rate to $191.89 each, based on
an estimated annual income for each claimant of $15,000, or
half the expected annual payroll      shown on the insurance
application.
        It is undisputed that after the claimants were injured
they were entitled to temporary total disability benefits
under    §    39-71-701, MCA, consisting of "66 2/3% of the wages
received at the time of the injury."
         "Wages" means the average gross earnings
         received by the employee at the time of
         the injury for the usual hours of employ-
         ment in a week, and overtime is not to be
         considered.  Sick leave benefits accrued
         by employees of public corporations, as
         defined by subsection (16) of this sec-
         tion, are considered wages.

Section 39-71.-116(20), MCA.       No evidence of the claimants'
actual earnings from the business was presented, presumably
due to its newness.        Nor was any evidence presented to show
what used furniture dealers in the Billings area earned on a
weekly basis.        There was testimony that prior to opening
their furniture business, Mr. Wilkerson derived an irregular
income primarily from gambling, and Mr. Janes had worked most
recently for $4.00 an hour as a laborer.
     The only documentary evidence before the court was the
business' application for workers' compensation insurance.
It showed. that the business was expected to employ three
persons and have a total annual payroll of $30,000.          The
claimants testified that they had intended their insurance to
provide for estimated annual salaries of $30,000 for each of
them, based on what they understood a laborer would make.
They also testified that the business employed only them-
selves, that they had no immediate plans to hire a third
employee, and that they had not been aware of the figures
shown on the application.      The insurance agent testified that
he and the claimants discussed the figures on the applica-
tion.        He also testified that the premium was initially set
based on a $30,000 estimated annual payrol.1 for the business,
consisting of $12,000 apiece for claimants and $6,000 for a
   future part-time employee.       He testified that the policy
   premium would have been audited annually and, if necessary,
   adjusted.
          The brevity of the claimants' employment as used furni-
   ture businessmen is of no relevence in computing their rights
   to workers' compensation.      2 Larson, Workmen's Compensation
   Law,   $   60.21 (a) at 10-580 (1985).   The entire objective of
   computation of average weekly wages is to arrive at as fair
   an estimate as possible of claimant's future earning capaci-
   ty. 2 Larson, Workmen's Compensation Law, S        60 at 10-538
   (1985).     Our standard of review is whether substantial evi-
   dence exists to support the findings and conclusions of the
   Workers' Compensation Court. Ridenour v. Equity Supply Co.
   (Mont. 1983), 665 P.2d 783, 788, 40 St.Rep. 1012, 1018.       In
   the absence of better evidence, the hiorkers' Compensation
   Court based its computation of the claimants' weekly compen-
   sation rate on the estimated payroll for the business divided
   by the actual number of employees.         We conclude that the
   court arrived at a fair estimate of claimants' future earning
   capacity, from the evidence presented in this unique case.
   There is substantial support in the record for the court's
   conclusion.     We affirm.




We Concur:
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