                                 NO.    92-050

            IN THE SUPREME COURT OF THE STATE OF MONTANA




MICHAEL H. TEHLE,

     -vs-
                Claimant and Respondent,                  .   .   .    .   ,...f:<l:.
                                                                                            i




ALPINE PLUMBING,
                Employer,
     and
STATE COMPENSATION MUTUAL INSURANCE FUND,                                               T

                Defendant and Appellant.



APPEAL FROM:    The Workers' Compensation Court,
                The Honorable Timothy Reardon, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                Charles G. Adams, Legal Counsel, State Compensation
                Mutual Insurance Fund, Helena, Montana
            For Respondent:
                Patrick R. Sheehy, Halverson, Sheehy           &      Plath, P.C.,
                Billings, Montana



                                        Submitted on Briefs:          June 4, 1992
                                                   ~ecided: July 9, 1992
Filed:                       r   'a



                       I
                                       Clerk
Justice John Conway Harrison delivered the Opinion of the Court.

     State Compensation Mutual Insurance Fund (State Fund) appeals
from an order and judgment of the Montana Workersr Compensation
Court.    The court held that Michael Tehle (Mike) suffered a total
loss of wages due to work-related injuries, despite the fact that
his plumbing business actually increased gross income receipts.
The court determined that Mike was entitled to temporary total
disability benefits.    We affirm.
     We review the following dispositive issue:
     Whether the Workers1 Compensation Court erred in determining
that Mike suffered a total loss of wages.
     Sometime in 1985, Mike and his wife Cheryl, opened a plumbing
business, Alpine Plumbing and Heating, in Billings, Montana.   Mike
performed all the physical plumbing work himself, while Cheryl
handled all the financial aspects of the business including
clerical and scheduling duties. In approximately October of 1986,
Mike obtained Workers' Compensation insurance coverage from State
Fund.      The policy covered Mike as an individual owner doing
plumbing work.
        On July 30, 1987, Mike suffered severe injuries when a ditch
in which he was installing sewer lines collapsed upon him.     Mike
was buried in dirt almost to the top of his head.    While Mike was
rescued by his son and a backhoe operator who dug him out of the
collapsed ditch, he was crushed by the weight of the dirt.     As a
result of the severe compression, Mike suffered a basal skull
fracture and was treated with steroids which later produced various
complications.   He received damage to cranial nerves in his face
which resulted in his inability to close his right eyelid for a
period of two months.     He also sustained a hearing loss and
suffered a fractured left clavicle, fractured ribs, a dislocated
arm, a fractured jaw and related dental problems. Throughout this
period State Fund paid Mike temporary total disability benefits.
During the period of Mike's convalescence, his son, father and wife
continued to operate Alpine Plumbing and Heating.
     After returning to work on March 25, 1988, Mike began to have
problems with his hips which resulted from the use of steroids to
treat his other injuries.    These complications resulted in the
complete replacement of Mike's      left hip   joint and   a   core
decompression of his right hip.     In approximately September of
1988, Mike and Cheryl were forced to hire employee plumbers to keep
the business in operation due to Mike's physical limitations. When
not in severe pain and recovering from his injuries and surgeries,
Mike contributed minimally to the operation of the plumbing
business. He sometimes answered the phone and gave recommendations
and directions to his employee plumbers.
     Cheryl's    involvement in the business increased and she
continued to schedule the plumbing jobs for the recently hired
employees and complete all necessary paper work.     Mike has not
performed any plumbing activities since approximately November
1989.   On December 10, 1990, the State Fund discontinued Mike's
Workers' Compensation benefits due to the fact that Alpine Plumbing
and Heating remained profitable and actually increased its income
since Mike's injuries. Mike challenged the discontinuance of his
benefits and the Workers1 Compensation Court reinstated Mike's
temporary total disability benefits.   State Fund appeals and we
affirm.
     Two recent cases of this Court have set forth the appropriate
standard of review in Workersq Compensation cases.    The Workers'
Compensation Court's conclusions of law will be upheld if the
interpretation of the law is correct. Grenz v. Fire and Casualty
of Connecticut (1991), 250 Mont. 373, 378, 820 P.2d 742, 745;
citing Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 474-
475, 803 P.2d 601, 603, The Workers1 Compensation Court's findings

of fact will be upheld if supported by substantial credible
evidence. Nelson v. Semitool, Inc. (Mont. 1992), 829 P.2d 1, 3, 49
St.Rep. 253, 254.

     This case hinges upon the distinction between two important
concepts: ttwagesrt "income from prof its.tt Mike asserts that due
                 and
to his injuries he sustained a total loss of wages.       While he
performs minor duties for the business, he is not involved in any
of the physical plumbing activities in which he previously engaged.
Further, he has not taken a salary draw from the business since his
injuries.   Consequently, he has earned no wages and is therefore
entitled to continued temporary total disability benefits under
5 39-71-701, MCA (1987).

     State Fund contends that the profits and subsequent income to
Mike from Alpine Plumbing and Heating has increased since Mike's
injuries, therefore, Mike has not suffered a total loss of wages as
required by the statutes. We disagree.
    Section 39-71-118(2), MCA (1987), provides:
         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  ...  For premium ratemaking and
    for the determination of weekly wage for weekly
    compensation benefits, the insurance carrier shall assume
    a salary or wage of such electing employee to be not less
    than $900 a month and not more than 1 5 times the average
    weekly wage as defined in this chapter.
     Pursuant to the aforementioned statute, Mike elected coverage
and complied with the requirements of the statute.     State Fund
processed his application and promised coverage that insured Mike
against injury that affected his wages.
     We acknowledge that the concepts of wages and income from
profits are often used interchangeably but they are not the same,
and it is error to use them synonymously.    In the case at bar,
State Fund made such an error.
     A review of the record indicates that the success of Alpine
Plumbing and Heating and its subsequent increase in profitability
was not attributed to the ongoing efforts of Mike in his capacity
as a plumber.   In fact, the record illustrates the determination
and tenacity of Mike's wife Cheryl and the rest of his family as
they faced and survived the circumstances that befell them. During
Mike's initial infirmity period, Mike's son and father carried out
the physical aspects of the business while Cheryl continued to
schedule plumbing jobs and prepare all necessary paperwork.     When
Mike was further unable to work due to his hip surgeries, Cheryl
and Mike decided to hire employee plumbers to carry on their
business.    This business decision apparently enabled Alpine
Plumbing and Heating to not only remain operational, but increase
in popularity and success, resulting in increased profits.   It is
clear that these increased profits have not come as a result of
Mike's involvement in the business post-injury. Therefore, we will
not allow State Fund to escape responsibility under the valid
contract of insurance which they negotiated with Mike.   This Court
does not dispute that Mike is now in a better financial position
than he was prior to his injury, however, that does not establish
grounds on which to deny him coverage under a valid insurance
contract.
     State Fund attempts to support its position by stating that
the income received from the business is currently being derived
partly from the Tehles' initial investment and their reputation for
good work.   Consequently, Mike is still receiving wages from the
business. Again, we cannot agree. Section 39-71-123, MCA (1987),
defines wages as:
     [Tlhe gross remuneration paid in money, or in a
     substitute for money, for services rendered by an
     employee. Wages include but are not limited to:
          (a) commissions, bonuses, and remuneration at the
     regular hourly rate for overtime work, holidays,
     vacations, and sickness periods;
          (b) board, lodging, rent, or housing if it
     constitutes a part of the employee's remuneration and is
     based on its actual value; and
           (c) payments made to an employee on any basis other
     than time worked, including but not limited to piecework,
     an incentive plan, or profit-sharing arrangement.
       Although the statute does not contain an all-inclusive list of
what constitutes wages in Montana, we do not find any similarity
with the terms listed therein.      Certainly, we do not find that
income from profits are contained in the definition of "wages.'
       Previously, we addressed the problem of whether the ability to
acquire income was equal to the ability to work.     In Chatfield v.
Industrial Accident Board (1962), 140 Mont. 516, 374 P.2d 226, we
answered in the negative.    We said:
       Finally, it would seem that the board correlates ability
       to acquire income with ability to work. Any income which
       the claimant has received from the ranch is a result of
       his capital investment and not from the sweat of his
       brow. The fact that claimant was able to "boss" his own
       ranch does not indicate an ability to compete on the
       labor market for a similar position elsewhere.
Chatfield, 140 Mont. at 520, 374 P.2d at 228.           Chatfield is
analogous to the case at bar in that both claimants obtained income
from a business they previously operated.     The point of both the
Chatfield case and the case at bar is not that the individual is
able, through alternative business arrangements, to make a profit
from their business, but that they can no longer perform the
activities which State Fund insured.
       After a review of the record in the case at bar, we find that
the Workers1 Compensation Court possessed the requisite evidence
and testimony to support its findings and conclusions.            The
Workers' Compensation Court supported its findings of fact with
substantial credible evidence and it made correct conclusions of
law.     Therefore, we will not overturn the Workers Compensation
Court's ruling.    Accordingly, Mike is entitled to temporary total
    benefits from November 14, 1989, until there is a change in his
    medical status that would require compensation or denial thereof
    according to relevant Montana statutes.




    We concur:


+          Chief Justice
