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Sandru v. Rochdale Insurance Co.6/7/2004
DECISION AND SUMMARY JUDGMENT
This case involves undocumented tip income which the petitioner (claimant) asserts should be included in computing his workers' compensation benefits. The respondent moves for summary judgment regarding the claim.
The Petition
The petition alleges that when computing the claimant's benefits the respondent insurer, Rochdale Insurance Company (Rochdale), failed to include $300 a week in tips he received and reported to his employer. Other than a claim for attorney fees and penalty, that is the sole claim laid out by the petition. While the claimant's brief in opposition to the motion raises other issues involving computation of his benefits, those claims are not pled and will not be considered.
Facts
The claimant worked as a bartender for Hellgate Elks Lodge 38 (Elks Lodge) in Missoula, Montana, from April 1, 2003 to June 21, 2003. (First Report of Injury attached to Brief in Support of Respondent's Motion for Summary Judgment.)
On June 21, 2003, the claimant injured his Achilles tendon at work when a catering cart hit him in the right leg and ankle. (Petition for Hearing and Request for Emergency Trial, 1.)
At the time of the claimant's injury, his employer was insured by Rochdale. (Id. at 2.)
Rochdale has accepted liability for the claimant's injury. (Sandy Scholl Letter of July 8, 2003, attached to Brief in Support of Respondent's Motion for Summary Judgment.)
At the time of the claimant's injury he was earning $6.50 to $7.50 per hour in wages plus tips. (Chris' Affidavit of Uncontroverted Facts.) Rochdale calculated the claimant's benefits based on his last four pay periods.
As of the date of the claimant's injury, Elks Lodge had recorded $98.06 in tips for claimant for the year. (Payroll Check dated 07/03/03 attached to Brief in Support of Respondent's Motion for Summary Judgment and see Chris' Affidavit of Uncontroverted Facts, 8.)
The claimant asserts that he earned $300 a week on average in tips during his employment with Elks Lodge. However, it is undisputed that he did not keep track of his actual tips or report his actual tips to Elks Lodge. His deposition testimony was as follows:
Q: (By Mr. Jennings) . . . Did you ever keep a - did you ever keep a record of your tips?
A: When?
Q: When you received them at any point during your employment at Hellgate Elks Lodge did you -
A: No.
(Sandru 12/10/03 Dep. at 27 attached to Brief in Support of Respondent's Motion for Summary Judgment.)
Q: Okay. That's fine, Chris. So you did not keep a log or any type of record of your tips?
A: No, I didn't, because it wasn't required.
Q: Okay. And you understand this policy is not requiring you to keep a log or record?
A: It's stated on payroll policy. It says it is a good idea for each employee to keep a personal diary of tips actually brought home at the end of each shift. I guess if you want to go into the termination idea we can.
Q: Well, did you consider it not to be a good idea?
A: No.
Q: Okay. But you didn't keep a log or any type of record?
A: Correct.
Q: And to your knowledge did the Elks Lodge keep any type of record of your tips?
A: Not to my knowledge.
Q: Okay. Can you provide any type of documentation that you reported your tips, any letter written, anything at all?
A: There should be a letter in this packet.
Q: Okay. Well, I'm talking about effor
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