                              NO.    94-129

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1994
CURT DAVID,
           Petitioner and Appellant,
     -v-
STATE COMPENSATION MUTUAL INSURANCE FUND,
           Respondent and Insurer for,
MIKE MCCOY,
           Employer.




APPEAL FROM:      Workers' Compensation Court
                  State of Montana
                  The Honorable Michael McCarter, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                  Patrick R. Sheehy,        Halverson,   Sheehy   & Plath,
                  Billings, Montana
           For Respondent:
                  Dan Whyte, Legal Counsel, State Compensation Mutual
                  Insurance Fund, Helena, Montana


                               Submitted on Briefs: September 1, 1994
                                                Decided: November 14, 1994
Filed:



                                    Cle&k
Justice       Fred     J.        Weber           delivered       the        Opinion       of        the       Court.


        This     is     an       appeal           from    a     Workers' Compensation                        Court         decision

in     favor     of        the         State           Fund's     method          of     calculating               benefits          for

claimant         David.           We        affirm.

        We     consider           the        following           issues          on     appeal:

        I.       Did         the       Workers'           Compensation                Court        err        in        determining

the     temporary          total           disability           rate       to     be     paid       to       claimant          David?

        II.      Did         the           Workers'             Compensation               Court             properly            deny

attorney        fees?

        III.     Did         the           Workers'        Compensation                 Court          properly            deny       an

award     of     a     20%       penalty           pursuant          to     5    39-71-2907,             MCA       (1991)?

        Claimant           Curt        David           (David)           was     hired        by       Mike        McCoy       to     do

ranch     work       for     a     period          of     one     day          with    compensation            of       $50.00       for

that     day's        work.            At        the     time    of        this       employment,             David      was        also

self-employed           as        a         massage        therapist             for     the        YMCA           in    Billings,

Montana,         and       anticipated                 future        work        on     the        rodeo       circuit          as    a

rodeo        clown.         David           testified           that       he     had     oral         contracts           to       work

twelve       rodeos        as      a        rodeo        clown       throughout          the       season.

         During        the       one         day        David        worked        for    Mike           McCoy,         his     horse

bucked,        forcing          him         to    slam        into       his     saddle       and       breaking           a    fusion

rod     that     had       been        inserted          in     his       spine       during       a        1986    surgery.         In

1986,     David       was        thrown           from    his     horse,          fracturing            several          parts        of

his     spine.         The       injuries              required          the     insertion          of       fusion        rods       in

the     spine        for     support.              These        rods       we.re       never        removed.

         David        filed            a     workers'            compensation                 claim.                State           Fund

calculated           DavidUs                compensation             by         interpreting            §      39-71-123,            MCA

                                                                     2
(1991), to mean that a person who is hired to work only one day has
an     average       weekly         wage        equalling             that       one        day's        wages.           Here,       the

State     Fund       found         that     David          had        earned          $50     and        that       his       benefits

would     amount          to       two-thirds           of       that,           or     $33.33           per       week.            David

received           temporary           total           disability                 benefits               for       a     period        of

eighteen       weeks       and        four       days.

        As     a     result           of        this        calculation,                 David            appealed             to     the

Workers'         Compensation                   Court.             The          Workers'            Compensation                    Court

entered       its        Findings          of     Fact,         Conclusions              of        Law       and        Judgment       on

March     18,        1994,         concluding                that,          based           upon         5     39-71-123,             MCA

(1991),        the       State        Fund        properly            determined              David's          temporary            total

disability         wage        rate       for        his        employment            with         Mike       McCoy.

        From        these          findings            and        conclusions,               David           appeals          to     this

Court.

                                                                  I


        Did        the     Workers'             Compensation               Court         err        in         determining            the

temporary        total         disability            rate        to        be     paid        to     claimant            David?

        David        argues         that        the        State       Fund           should        have        calculated            his

benefits      on     a    total       of        what       he    would          have     earned          had       he    worked       for

Mike    McCoy       for        a   week,        or     $250.           This       is        because          he        was     employed

full    time       in     other       jobs       and       the     award          of     $33.33          per       week       does    not

represent           an     accurate              picture              of        his    wages.                However,               David

contends       that       his       argument           does       not        mean       that        he       feels        the       State

Fund     should         have       aggregated          his        actual          wages        from          all       his    jobs.

        The     State          Fund    argues          that       the           Workers'       Compensation                  Court    was



                                                                  3
correct in interpreting the entire statute instead of only one
subsection of 5 39-71-123, MCA (1991).             The State Fund argues that
the statute clearly dictates that when a sole proprietor has not
provided workers' compensation coverage for his business, he cannot
include money made from the business in the total from which award
benefits   are   calculated.    The State Fund contends that because
David had his own massage business he was a sole proprietor.
Further,   David's alleged contracts with the rodeos were not in
force yet and could not be included in the award either.
     At    issue    'here is     the       Worker's     Compensation       Court's
interpretation of 5 39-71-123, MCA (1991).                A conclusion of law
made by a Workers'     Compensation        Court   is   reviewed   to    determine
whether the conclusion is correct.            Gibson v. State       Compensation
Mut. Ins. Fund (1992), 255 Mont. 393, 842 P.2d 338.
     The court concluded that the State Fund had calculated David's
award correctly.     That award came to $33.33 based upon the figure
of $50 that he made while working for Mike McCoy.                  David argues
that only § 39-71-123(3)(a), MCA (1991),                applies.        State   Fund
argues that the entire statute must be used to determine the
benefit rate for David,        including the limitations placed on an
award by subsection 4(c) of the statute.
     The pertinent statute in its entirety reads:
     Wages defined. (1) "Wages" means the 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

                                       4
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.
 (2) Wages do not include:
 (a) employee expense reimbursements or allowances for
meals, lodging, travel, subsistence, and other expenses,
as set forth in department rules:
 (b)    special  rewards  for   individual   invention or
discovery:
 (c) tips and other gratuities received by the employee in
excess of those documented to the employer for tax
purposes;
 Cd) contributions made by the employer to a group
insurance or pension plan; or
 (e) vacation or sick leave benefits accrued but not paid.
 (3) For comoensation benefit purposes, the averaqe actual
earninqs for the four nay periods immediately nrecedinq
the iniurv are the employee's waqes, except if:
 (a) the term of employment for the same emplover is less
than four pay periods, in which case the employee's waqes
are the hourly rate times the number of hours in a week
for which the employee was hired to work; or
 (b) for good cause shown by the claimant, the use of the
four pay periods does not accurately reflect the
claimant's employment history with the employer, in which
case the insurer may use additional pay periods.
 (4) (a)    For the purpose of calculating compensation
benefits for an employee working concurrent employments,
the average actual wages must be calculated as provided
in subsection (3).
 (b) The compensation benefits for a covered volunteer
must be based on the average actual wages in his regular
employment, except self-employment as a sole proprietor
or partner who elected not to be covered, from which he
is disabled by the injury incurred.
 (c) The compensation benefits for an employee workinq at
two or more concurrent remunerated employments must be
based on the aqqreqate of average actual wages of all
emplovments, except self-employment as a sole proprietor
or partner who elected not to be covered, from which the
emnlovee is disabled by the injury incurred.
 (5) The compensation benefits and the payroll, for
premium purposes, for a volunteer firefighter covered
pursuant to 39-71-118(4) must be based upon a wage of not
less than $900 a month and not more than 1 and l/2 times
the average weekly wage as defined in this chapter.

                            5
Section 39-71-123, MCA (1991); relevant parts of this statute have
been highlighted.
      The    Workers"    Compensation Court relied on both          g 39-71-
123(3)(a) and § 39-71-123(4)(c), MCA.           According to the court,
David worked less than four pay periods for McCoy; therefore, the
court found that the State Fund was correct in using the exact
number of hours worked and the exact pay received as stated in
subsections 3(a) and 4(a).       This amounted to eight hours at $6.25
or $50.00.      The court also looked at the fact that David had other
employment.      The other employments, however, were not employer-
employee    situations.
      David was self-employed as a massage therapist: he was not an
l'employee.'V    Thus, the court found him to be a sole proprietor who
had elected not to be covered by workers' compensation              insurance
and pursuant to subsection 4(c) he could, therefore, not include
any of the money made from this work.           The court further denied
inclusions of potential amounts provided by future contracts for
work as a rodeo clown.          The .court determined that the future
contracts were also obtained by David in a capacity as sole
proprietor.
      The Workers' Compensation Court was correct in considering 5
39-71-123, MCA (1991) in its entirety; a statute must be read as a
whole.      Dover Ranch v.   YellOWStOne   COUnty   (1980),   187 Mont. 276,
609 P.2d 711.           While David chooses only subsection 3,           that
subsection cannot be interpreted in isolation.            The entire statute


                                      6
provides more than the rote "four-previous-pay-periods"             formula   for
which     David    argues.     The statute anticipates a situation like
David's by stating that if the work was not equal to four-pay-
periods for the same employer, then the "actual" hours worked and
the     "actual" pay obtained must be used.              This is the exact
calculation used by the State Fund and the Workers' Compensation
Court.
        David was hired for one day of work.         He did not work for
McCoy before this one day nor did he work for him after.                    David
argues that the State Fund should have projected his weekly salary
to $250 which is what he would have earned had he worked for McCoy
for a week.         However,    this total does not resemble at all the
"actual average wages" received from McCoy.         Section 39-71-123(3),
MCA (1991).        The "actual" wages were only $50.
        Yet, David cites us to Love11 v. State Compensation Insurance

(1993) 0 260 Mont. 279, 860 P.2d 95, for the proposition that his
method of calculation is appropriate.            David    claims    that Love11
permits him to project his one day's wages to that of what a full
week would have been.          David believes that because he was employed
full-time,        albeit at other work,     he is entitled to make this
projection.
        Love11 does not support David'         reasoning.          The   Workers'
Compensation Court in Love11 determined that g 39-71-123(3)(a),                MCA


(1987),     precluded aggregation of wages from other sources when
determining an employee's award benefit.          On appeal, we concluded


                                        7
that this was not a correct interpretation of the law.                      We then
considered the correct interpretation of "wages" and the changes
made to the workers' compensation law in 1987.
     We concluded that the 1987 changes did not affect the long-
standing     rule    permitting    aggregation of      concurrent        employment.
However, we         were   cognizant    that      because of       the     Workers'
Compensation Court's stance on non-aggregation, the court had not
considered whether Love11 met the definition of "employee" with
regard to other work he may have been performing or whether other
income     constituted     wages    from       concurrent    employment.           We,
therefore,     remanded the        action back to the court                for    this
determination.
     Here, the Workers' Compensation Court did make a determination
that David was not an "employee" but was a "sole proprietor" who
had made no workers'        compensation        provisions   for   his    business.
Such a designation means that the benefit calculations must be made
without consideration of any money earned from the business.
     David had the burden of proving he was an "employee" in order
that his other full-time employment could be considered for his
benefit    award.      Our statutes provide very long and detailed
definitions of what constitutes an "employee" and an "employer."
Sections 39-71-117 and 39-71-118, MCA (1991).                An employee is not
a "sole proprietor."        Section 39-71-118(3)(d), MCA (1991).                 Thus,
"persons who are truly independent in their operations according to
the standards established for determining that issue should not be


                                           8
held to be employees." St. John's Lutheran v. State Comp. Ins.
Fund (1992), 252 Mont. 516, 523, 830 P.2d 1271, 1276.
       Whether a person is an "employee" is important because both
subsections    3(a)    and 4(a)   calculate the award benefits         for
"employees."     However,   subsection 4(c) contains an exclusion for
sole    proprietors.     Subsection   4(c)     states that when a sole
proprietor elects not to provide workers' compensation coverage he
cannot include money derived from his business for the purpose of
determining his benefit.
       David admits the YMCA merely supplied him with a room in the
YMCA facility.    The record indicates that the YMCA did not control
his business as a massage therapist.         The record clearly shows that
within his role as massage therapist, he was "free from control."
David independently established his business and ran it himself; he
was not an employee.        Therefore, we conclude that the State Fund
had to consider the statutory limitations put on sole proprietors
by subsection 4(c) of 5 39-71-123, MCA (1991).          Because David has
not supplied evidence that he paid workers' compensation premiums,
the exclusions in 4(c) require that any money David received from
his massage business must not be counted toward his award benefit.
       Without "employee" status for David's alleged full-time work,
the State Fund and the Workers' Compensation Court had to rely on
the specific calculations called for in subsection 3(a) and 4(a),
plus the exclusions found in 4(c).           These calculations call for
inclusion of "actual"       hours worked per week for "actual" wages


                                      9
received.     This total is then multiplied by 66 and 2/3% to get the
benefit amount for temporary total disability.        Section 39-71-701,
MCA (1991).    State Fund calculated David's benefits accordingly as
did the Workers' Compensation Court.
        We hold that the Workers' Compensation Court did not err in
determining the temporary total disability rate to be paid to
claimant David.
                                    II
        Did the Workers'   Compensation   Court   properly   deny   attorney
fees?
        The statute governing payment of attorney's fees states:
        [if] the case is brought before the workers' compensation
        judge for adjudication of the controversy, and the award
        granted by the judge is greater than the amount paid or
        offered by the insurer, a reasonable attorney's fee and
        costs . . . may be awarded by the judge in addition to
        the amount of compensation.
Section 39-71-612(l), MCA (1991).
        Here, the Workers' Compensation Court agreed with the award
calculated by the State Fund.      Therefore, because the award by the

court was the same, attorney fees would be inappropriately awarded
to David.
        We hold that the Workers' Compensation Court properly denied
attorney fees.
                                   III.
        Did the Workers' Compensation Court properly deny an award of
a 20% penalty pursuant to § 39-71-2907, MCA (1991)?
        The workers' compensation judge may increase by 20% the

                                    10
     full amount of benefits due a claimant during the period
     of delay or :refusal to pay . . .
Section 39-71-2907(l),    MCA (1991).
     The insurer here did not deny the full amount of benefits, but
calculated   the   benefits   correctly.   Therefore,   there exists no
basis for a 20% penalty.
     The Workers' Compensation Court properly denied an award of a
20% penalty pursuant to 5 39-71-2907, MCA (1991).
     Affirmed.



We Concur:




                                     11
                                    November 14, 1994

                              CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:


Patrick R. Sheehy
HALVERSON, SHEEHY & PLATH, P.C.
P.O. Box 1817
Billings, MT 59103-181’7

Dan Whyte, Legal Counsel
State Compensation Mutual Insurance Fund
P.O. Box 4759
Helena, MT 59604-4759


                                                 ED SMITH
                                                 CLERK OF THE, SUPREME COURT
                                                 STATE OF MONTANA

                                                 BY:    :’
                                                 Deputy
