Marjamaa v. Mont. State Fund

• Decision Date: 02 July 2021
• Docket Number: WCC No. 2020-5333
• Citation: 2021 MTWCC 11
• Parties: KELLY MARJAMAA Petitioner v. MONTANA STATE FUND Respondent/Insurer.
• Court: Montana Workers Compensation Court

2021 MTWCC 11

KELLY MARJAMAA Petitioner v. MONTANA STATE FUND Respondent/Insurer.

WCC No. 2020-5333

WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA

Submitted: June 23, 2021

July 2, 2021

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT

Summary: Petitioner contends that Respondent did not correctly calculate her wages and her TTD benefit rate because it did not consider the hours that she worked but did not get paid. Alternatively, Petitioner argues that she actually received wages because she considers half of the amount that she accepted to settle her wage claim and her sexual harassment claim against her former employer to be for backpay.

Held: Petitioner did not present sufficient evidence for this Court to recalculate her wages under § 39-71-123(3)(a), MCA, and her TTD benefit rate under § 39-71-701(3), MCA. Because a claimant's wage is to be calculated based on "actual earnings," this Court cannot increase her wages and TTD benefit rate on the basis of hours she worked but did not get paid. Moreover, Petitioner presented only an approximation of the wages she earned in the first three of the four pay periods preceding her injury, which is insufficient evidence because § 39-71-123(3)(a), MCA, states that a claimant's wage is to be calculated based on "actual earnings." Finally, the amount of backpay awarded to a claimant in a wage claim is "wages" under the definition in § 39-71-123(1)(b), MCA, and this Court would use the amount of backpay a claimant received in a wage claim to calculate wages under § 39-71-123(3)(a), MCA, under established law. However, Petitioner did not receive backpay from her settlement with her former employer because the settlement agreement expressly provides that the settlement amount was for her "alleged emotional distress damages."

¶ 1 The trial in this matter was held on June 9, 2021, in Missoula, Montana. Petitioner Kelly Marjamaa was present and was represented by Thomas C. Bulman. Respondent Montana State Fund (State Fund) was represented by Charles G. Adams. Ashley Makowski, claims adjuster, was present on behalf of State Fund.

¶ 2 Exhibits: This Court admitted Exhibits 1 through 10 and 12 through 17.

¶ 3 Witnesses and Depositions: This Court admitted the deposition of Kelly Marjamma into evidence. Makowski, Marjamaa, Matthew Marjamaa, and Ciara Marjamaa were sworn and testified at trial.

¶ 4 Issues Presented: This Court restates the issues in the Pretrial Order as follows:

Issue One: Is Marjamaa entitled to recalculation of her average weekly wage and her temporary total disability (TTD) benefit rate?

Issue Two: Is Marjamaa entitled to a penalty under § 39-71-2907, MCA, and her attorney fees or costs under §§ 39-71-611 or -612, MCA?

FINDINGS OF FACT

¶ 5 This Court finds the following facts by a preponderance of the evidence.

¶ 6 Marjamaa started working as a ranch hand for Luthje Ranch, LLC (Luthje Ranch), on May 20, 2019.

¶ 7 Timothy Luthje ran the ranch. He initially agreed that Luthje Ranch would pay Marjamaa $11 per hour. Luthje Ranch paid its employees semi-monthly.

¶ 8 Marjamaa and her husband, Matthew Marjamaa, rented a house from Luthje.

¶ 9 Marjamaa's working hours varied. She recorded her hours worked in a notebook. Before payday, Marjamaa tore her record of hours that she had worked out of her notebook and gave it to Luthje. On payday, Luthje Ranch's accountant initiated a direct deposit into Marjamaa's account.

¶ 10 In a recorded statement that Marjamaa's attorney gave to State Fund, Marjamaa stated that Luthje Ranch paid her "right around $400" per pay period for the first three pay periods in which she worked, which were the May 16 - 31, 2019; June 1 - 15, 2019; and June 16 - 30, 2019, pay periods.

¶ 11 Marjamaa did not think that Luthje Ranch was paying her for all of the hours that she worked. However, she did not complain because she was afraid that Luthje would fire her and evict her and her husband and she did not think they could find another rental that would allow them to have their pets.

¶ 12 On July 25, 2019, Marjamaa suffered an injury to her right foot while working for Luthje Ranch. However, she continued working.

¶ 13 Luthje agreed to give Marjamaa a raise to $12 per hour, starting with the pay period beginning August 1, 2019.

¶ 14 Marjamaa quit working for Luthje Ranch on October 18, 2019.

¶ 15 On February 21, 2020, Marjamaa filed an injury claim against State Fund. In the First Report of Injury or Occupational Disease, Marjamaa estimated that in the four pay periods before her injury, she received $400, $400, $468, and $430, respectively.

¶ 16 State Fund accepted liability for Marjamaa's injury.

¶ 17 State Fund contacted Luthje Ranch and requested Marjamaa's payroll records. Luthje Ranch provided Marjamaa's paystubs from July 1, 2019, to October 15, 2019. The following chart summarizes the paystubs:

 Pay Period HoursWorked Rate of Pay Wages Paid  July 1 - 15, 2019  28  $11  $308  July 16 - 31, 2019  73  $11  $803  August 1 - 15, 2019  37.5  $12  $450  August 16 - 31, 2019  40.5  $12  $486  September 1 - 15, 2019  38  $12  $456  September 16 - 30, 2019  37  $12  $444  October 1 - 15, 2019  0  Not specified  $0 TOTAL WAGES PAID   $2947.00 

¶ 18 Luthje Ranch issued a W-2 to Marjamaa for 2019, stating that it paid her $2,947.00 in wages. Marjamaa and her husband filed tax returns for 2019. Marjamaa did not report any other wages from Luthje Ranch to the IRS or to the Montana Department of Revenue.

¶ 19 State Fund calculated Marjamaa's average weekly wage based solely on the payroll record for the July 1 - 15, 2019, pay period, the pay period immediately precedingher injury. State Fund calculated Marjamaa's average weekly wage to be $143.72, and her TTD benefit rate to be $95.81.

¶ 20 On March 12, 2020, Marjamaa filed a claim against Luthje Ranch under the Wage Protection Act.¹ She alleged, "During the course of her employment with the Defendant, the Plaintiff was required to work in excess of 40 hours per week. However, the Defendant failed to pay the Plaintiff all wages due and owing to the Plaintiff, including both regular and overtime wages, in violation of Montana wage laws." She prayed for judgment in the amount of her unpaid wages, for a penalty under § 39-3-206, MCA, and for her attorney fees and costs under § 39-3-214, MCA.

¶ 21 Marjamma also brought a sexual harassment claim against Luthje Ranch.²

¶ 22 In July 2020, Marjamma settled her wage claim and her sexual harassment claim against Luthje Ranch. The settlement agreement states, in relevant part:

1. a. Respondent agrees to pay Charging Party the sum of Fifty-Five Thousand and No/100 Dollars ($55,000.00) allocated as follows: Forty Thousand and No/100 Dollars ($40,000.00) payable to Kelly Marjamaa as alleged emotional distress damages; and Fifteen Thousand and No/100 Dollars ($15,000.00) payable to Tipp, Coburn & Associates, P.C., for Charging Party's legal fees and expenses.

. . .

2. This Agreement does not constitute an admission by Respondent of any violation of law and Respondent enters into this Agreement solely to resolve the matter without further proceedings.

3. Charging Party agrees that this Agreement serves as a withdrawal of Case Nos. HRB 0200215 and agrees not to initiate any new complaint under the Montana Human Rights Act or any federal discrimination laws based upon the facts underlying the present complaint subject to the performance by Respondents of the terms of this Agreement.

4. Charging Party also agrees that she will have her counsel dismiss with prejudice Cause No. DV-32-2020-0000333-WC filed in the Montana Fourth Judicial District Court, Missoula County.³

¶ 23 Marjamaa does not have any records of the hours that she worked for Luthje Ranch. She estimates that she worked 60 hours per week on average during her term of employment.

CONCLUSIONS OF LAW

¶ 24 This case is governed by the 2017 version of the Montana Workers' Compensation Act since that was the law in effect at the time of Marjamaa's industrial accident.⁴

Issue One: Is Marjamaa entitled to recalculation of her average weekly wage and her TTD benefit rate?

¶ 25 Section 39-71-123(3), MCA, sets forth the law to calculate a claimant's wages. It states, in relevant part:

(a) . . . [F]or compensation benefit purposes, the average actual earnings for the four pay periods immediately preceding the injury are the employee's wages, except that if the term of employment for the same employer is less than four pay periods, the employee's wages are the hourly rate times the number of hours in a week for which the employee was hired to work.

¶ 26 Section 39-71-701(3), provides that a claimant's TTD benefit rate is "66?% of the wages received at the time of the injury," with the maximum rate set at Montana's "average weekly wage at the time of injury."

¶ 27 Section 39-71-105(1), MCA, instructs that wage-loss benefits "should bear a reasonable relationship to actual wages lost as a result of a work-related injury or disease."

¶ 28 Marjamaa contends that State Fund did not correctly calculate her wages under § 39-71-123(3)(a), MCA, because it did not include the hours that she worked for Luthje Ranch without pay. She argues that equity demands that this Court find that her wages were $720 per week, based on her testimony that she worked 60 hours per week on average and that Luthje agreed to pay her $12 an hour. Using these figures, Marjamaa asserts that her TTD benefit rate under § 39-71-701(3), MCA, is $480.02. Alternatively, Marjamaa argues that she received backpay because she considers half of the money that she received in her settlement with Luthje Ranch to be for her wage claim.

¶ 29 State Fund asserts that the plain language of the Workers' Compensation Act precludes this Court from calculating Marjamaa's wages based on the hours that she claims to have worked for Luthje Ranch without pay. State Fund points to the plain language of § 39-71-123(3)(a), MCA, which states that the employee's wages are to becalculated on "actual earnings." State Fund...