"`Wages' mean the average daily wages received by the employee at the time of the injury for the usual hours of employment in a day, and overtime is not to be considered." We considered the term "average daily wage" in Mahlum v. Broeder (1966), 147 Mont. 386, 412 P.2d 572, where we stated: ". . . [T]hat the first step in the formula for compensation is to determine the average daily wage.
ยถ118 From original enactment in 1915, the Act has been a delicate public policy compromise, with the essential quid pro quo purposes and effects of (1) depriving workers of otherwise available tort remedies (which previously afforded them opportunity for full compensation), in return for some lesser form of guaranteed no-fault compensation for work-related injury, and (2) depriving employers of advantageous common law defenses in tort, in return for limited and predictable liability for employee injuries. See ยงยง 39-71-105(1), -124, and -411, MCA (2011); Royal Ins. Co. v. Roadarmel , 2000 MT 259, ยถ 29, 301 Mont. 508, 11 P.3d 105 ; Henry v. State Comp. Ins. Fund , 1999 MT 126, ยถ 12, 294 Mont. 449, 982 P.2d 456 ; Sitzman v. Shumaker , 221 Mont. 304, 307, 718 P.2d 657, 659 (1986) ; Madison v. Pierce , 156 Mont. 209, 213-14, 478 P.2d 860, 863 (1970) ; Mahlum v. Broeder , 147 Mont. 386, 392-95, 412 P.2d 572, 575-77 (1966) ; State ex rel. Morgan v. Indus. Accident Bd. of Mont. , 130 Mont. 272, 278-79, 300 P.2d 954, 958 (1956) ; Chisholm v. Vocational Sch. for Girls , 103 Mont. 503, 512-13, 64 P.2d 838, 844 (1936) ; Shea v.North-Butte Mining Co. , 55 Mont. 522, 528-29, 179 P. 499, 501 (1919) ; Lewis & Clark County v. Industrial Accident Bd. , 52 Mont. 6, 9-13, 155 P. 268, 270-71 (1916).
Second, Mr. Syme's failure to comply with Section 39-71-401, MCA, does not constitute negligence per se. Workers' compensation statutes were enacted as social insurance rather than to provide for damages in tort-connected liability cases. Mahlum v. Broeder (1966), 147 Mont. 386, 394, 412 P.2d 572, 576. Mr. Syme's failure to comply with Section 39-71-401 is not the proximate cause of Ms. Hunnewell's injuries because: "To constitute negligence per se, a statutory violation must also be the proximate cause of the injuries sustained." Kudrna v. Comet Corp. (1977), 175 Mont. 29, 39, 572 P.2d 183, 189.
"In the vast majority of cases, this mathematical calculation is based on the four pay periods preceding the injury as reported in the Claim for Compensation and the Employers First Report and there is no dispute. "In Mahlum v. Broeder, 147 Mont. 386, 412 P.2d 572 (1966), the Supreme Court set the standard for defining wages when it was stated: "`. . . What is a reasonable period of time, of course, depends on the circumstances of each case.
The principle of enterprise liability was recognized by this Court long before enactment of the co-employee statutory protection. Madison v. Pierce (1970), 156 Mont. 209, 478 P.2d 860; Mahlum v. Broeder (1966), 147 Mont. 386, 412 P.2d 572; State ex rel Morgan v. Indus. Accident Bd. (1956), 130 Mont. 272, 300 P.2d 954. Co-employee protection is a natural extension of enterprise liability and relieves the employee of justifiable apprehension about the possibility of a suit against him. Co-employee immunity is essential to the integrity of the Act. Our previous decision required only that the District Court focus on Selensky's status at the time of the alleged negligence.
Wight states: "It should be beyond cavil, therefore, that the fundamental basis of workers' compensation laws is to accommodate the public interest in placing economic loss caused by employment accidents not upon the public, but upon the industry in which the accident occurred, Williams v. Industrial Accident Board (1939), 109 Mont. 235, 97 P.2d 1115; and that the principal aim of workers' compensation coverage is to provide social insurance which protects the injured workman against disability from a work-connected injury, again placing the cost of the injury on the industry employing him. Mahlum v. Broeder (1966), 147 Mont. 386, 412 P.2d 572." Obviously, the purpose of workers' compensation is to protect the worker against economic loss.
Betor v. National Biscuit Company (1929), 85 Mont. 481, 280 P. 641; Kerns v. Anaconda Copper Mining Company (1930), 87 Mont. 546, 289 P. 563. It should be beyond cavil therefore that the fundamental basis of worker's compensation laws is to accommodate the public interest in placing economic loss caused by employment accidents not upon the public, but upon the industry in which the accident occurred, Williams v. Industrial Accident Board (1939), 109 Mont. 235, 97 P.2d 1115; and that the principal aim of workers' compensation coverage is to provide social insurance which protects the injured workman against disability from a work-connected injury, again placing the cost of the injury on the industry employing him. Mehlum v. Broeder (1966), 147 Mont. 386, 412 P.2d 572. If therefore, the social purpose of Workers' Compensation Acts is to provide for the injured worker a fund which replaces his lost earnings or his lost earning capacity, the reasonable cost of effectuating such social purpose where litigation is necessary ought also be the burden of the industry.
The underlying purpose and objective of workers' compensation legislation is to insure the injured worker that he will be compensated for disabilities caused by industrial accidents which, when added to his remaining earning ability, will enable him to function without being a burden to others. See Mahlum v. Broeder (1966), 147 Mont. 386, 412 P.2d 572; 1 Larson, the Law of Workmen's Compensation, ยง 2.50 at 11 (1978). In accordance with this objective and to assure its maximum benefit for the injured worker, the Montana legislature has specifically provided that payment of a workers' compensation award shall be exempt from all forms of seizures. If this exemption is to now be liberally construed in favor of the worker, as mandated by section 39-71-104, MCA, it must be given effect as written, and the exemption must be deemed complete.
We deem it generally accepted that one of the prima reasons for workmen's compensation law is to protect the injured employee, or his dependents in case of death, from becoming public charges dependent upon charity rather than on remuneration from the industry responsible for the loss, and to spread the loss more evenly throughout industry. See J. J. Murphy Son, Inc. v. Gibb, 137 So.2d 553; Thuillez v. Yellow Transit Freight Lines, 358 P.2d 676; Kotarske v. Aetna Cas. Sur. Co., 244 F. Supp. 547; Crilly v. Ballou, 91 N.W.2d 493; Hubbard v. Midland Contractors, Inc., 131 N.W.2d 209; Smith v. Home Bldg. Contractors, Inc., 363 S.W.2d 11; Mahlum v. Broeder 412 P.2d 572; Ricciardi v. Damar Products Co., 211 A.2d 347; Stellmah v. Hunterdon Coop. G.L.F. Service, Inc., 219 A.2d 616; Cates v. Hunt Const. Co., 148 S.E.2d 604; Newell v. Taylor, 321 P.2d 294; Jussila v. Dept. of Labor and Industries, 370 P.2d 582. With this broad purpose in mind we now examine our statutory provision pertaining to the children involved in the case at bar.
"* * * of the difference between the wages received at the time of the injury and the wages that such injured employee is able to earn thereafter * * *". (Emphasis added) Olson relies on cases decided by this Court applying section 92-703, in which the terms "loss of earning capacity" and "loss of ability to earn in the open market" were used: Shaffer v. Midland Empire Packing Co., 127 Mont. 211, 259 P.2d 340; Mahlum v. Broeder, 147 Mont. 386, 412 P.2d 572. He also cites section 92-838, R.C.M. 1947, which states: "Whenever this act or any part or section thereof is interpreted by a court, it shall be liberally construed by such court."