NO. 95-089 IN THESUPREME

COURTOFTHESTATEOFMONTANA 1995

DAVIDROBERTSON,

Petitioner andAppellant,
v. AEROPOWER-VAC,INC., EmplOyeX, and STATECOMPENSATION MUTUAL INSURANCEFUND,

Respondents andRespondents.

APPEALFROM: Workers' Compensation Court, State of Montana,

TheHonorable Mike McCarter, Judge presiding.

COUNSELOFRECORD:

For Appellant: Rex Palmer; Attorneys, Inc., Missoula, Montana
For Respondents: Daniel J. Whyte, Legal Counsel, State Compensation Insurance Fund, Helena, Montana

Filed: Submitted on Briefs: June 15, 1995 Decided: July 25, 1995Justice Karla M. Gray delivered the Opinion of the Court.

David Robertson appeals from the decision and order of the Workers' Compensation Court which established his temporary total disability rate at $203.67 and denied his entitlement to attorney fees and apenalty. Weaffirm. The issues on appeal are: Did the Workers' &eting 5 39-71-123(3) Compensation Court err in inter-

, MCA(1991), and applying it to the facts of this case? 2. Did the Workers' Compensation Court err in failing to award attorney fees and impose apenalty? The underlying facts in this case are undisputed. David Robertson (Robertson) washired byAero Power-Vat, Inc. (Aero) for
acleaning project to beperformed at Stone Container in Missoula, Montana. Aero was insured by the State Compensation Mutual Insurance Fund (State Fund) under Plan III of the Workers' Compensation Act. The terms, conditions and wages regarding Robertson's employment were contained in acontract (Contract) executed byboth Robertson andAero. TheContract specified that work shifts would be 12hours andthat per hour paywould be $6.50 for straight time up to 40 hours aweek and time-and-one-half for hours worked in
excess of 40hours in anywork week. The duration of the project
wasnot specified. At the time Robertson washired, however, Aero stated orally that the cleaning project "could last 5to 6 days" and that, subject to satisfactory performance, Robertson was expected to work the entire project.
2Robertson was injured in the course and scope of his

employment with Aero on June 9, 1993. The State Fund accepted liability for the injury and paid him temporary total disability benefits based on a40-hour work week at $6.50 per hour. Robertson petitioned the Workers' Compensation Court for a determination that his bi-weekly benefit rate should be calculated
on the basis of a 72-hour work week; the rate was based on his contention that hewashired to work six 12-hour shifts. Healso requested attorney fees and apenalty, contending that the State Fundwasunreasonable in refusing to recognize the number of hours for which he was hired when calculating his benefit rate. The State Fundresponded that Robertson hadnot been hired to work more than 40 hours per week and denied that its actions had been unreasonable. TheWorkers' Compensation Court concluded that Robertson was entitled to temporary total disability benefits based on a47-hour work week. Basedonits finding that the State Fund's position was not unreasonable, the court also concluded that Robertson was not entitled to attorney fees or apenalty. Robertson appeals. 1. Did the Workers' Compensation Court err in interpreting 539-71-123(3), MCA(19911, andin applying it to the facts of this case? Interpreting 5 39-71-123(3), MCA (1991), the Workers' Compensation Court concluded that Robertson's temporary total disability rate should bebased ona47-hour work week. Robertson contends that the court erred because the statute, properly interpreted and applied, entitles himto abenefit rate based ona
372-hour work week. Wereview the Workers' Compensation Court's

conclusions of law to determine whether they are correct. David v. State Compensation Mut. Ins. Fund (1994), 267Mont. 435, 438, 884 P.2d 778, 780. Aninjured employee's wages for workers' compensation benefit purposes ordinarily are calculated on the basis of "the average actual earnings for the four pay periods immediately preceding the injury

. . . .I( Section 39-71-123(3), MCA (1991). When an employee's term of employment for the sameemployer is less than four pay periods, however, the employee's wages "are the hourly rate times the number of hours in aweekfor which the employee was hired to workK.1 " Section 39-71-123(3) (a), MCA(1991). It is undisputed that subsection (3)(a) of §39-71-123, MCA (1991), applies here, since Robertson's term of employment with Aero was less than four pay periods. Robertson's hourly rate also is undisputed. Thus, under the statute, the only question before the Workers' Compensation Court was the number of hours in aweek for which Robertson washired to work. Robertson asserts that it is undisputed that hewas hired to work five to six 12-hour shifts. The Contract states that shifts will be 12hours in length. This identification of the length of work shifts, together with Robertson's assertion that hewas told that the project would last five to six days and that he was expected to work the entirety of the project, forms the basis for his claimed entitlement to temporary total disability benefits based on a 72-hour work week.
4Therecord, however, doesnot support Robertson's contentions.

As noted above, the Contract does not state the duration of the cleaning project at Stone Container. Moreover, the agreed facts submitted to the Workers' Compensation Court reflect that Robertson

was told at the time of hire that the "project could last 5to 6 days." (Emphasis added.) Further, in an interview with the State Fund's investigator, Aero's president stated that Robertson was told whenhired that the shifts would be "up to 12hours" andthat the job "might last" five to six days. Therecord also establishes that, in fact, the project lasted only four days. Noemployee worked for more than four days onthe project andnoemployee whoworked onthe project from beginning to endworked more than 47 hours Onthe basis of this record, the Workers' Compensation Court properly determined that Robertson was hired for the duration of the project, rather than for a guaranteed number of shifts or hours, andthat the five to six dayperiod mentioned at the time of the hire was the "outside estimate" of that duration. The court also properly determined that Robertson washired to work 47hours during the week of the project. Thus, we conclude that the Workers' Compensation Court did not err in interpreting 5 39-71-
123 (3) (a), MCA (1991), and in applying it to the facts of this
case.2. Did the Workers' Compensation Court err in failing to award attorney fees and impose apenalty? Section 39-71-612(l), MCA (1991), authorizes an award of attorney fees where the amount of compensation is disputed andthe 5amount granted by the Workers' Compensation Court is greater than

the amount paid. However, such anaward "mayonly bemadeif it is determined that the actions of the insurer were unreasonable." Section 39-71-612(2), MCA(1991). The20%penalty authorized by § 39-71-2907, MCA(1991), also is available only in the event the insurer's refusal to pay is unreasonable. Here, the Workers' Compensation Court awarded Robertson temporary total disability benefits in an amount greater than the State Fundwaspaying, based onits determination that his benefits should becalculated ona47-hour work weekrather than the 40-hour week the State Fund utilized. Thus, the threshold factor upon which attorney fees can be awarded under §39-71-612, MCA(1991), is met here. Thecourt found, however, that the State Fundhadnot been unreasonable and, therefore, denied both attorney fees and a penalty. Robertson challenges the court's determination that the State Fundwas not unreasonable. Reasonableness is aquestion of fact. Stordalen v. Ricci's FoodFarm (1993), 261Mont. 256, 258, 862P.2d 393, 394. Wereview the Workers' Compensation Court's findings of fact to determine whether they are supported by substantial evidence. Stordalen, 862 P.2d at 394. At the outset, it is clear from our discussion of the first issue that Robertson's claimed entitlement to benefits based on a 72-hour work week was properly rejected by the Workers' Compensation Court. Thus, the State Fund's denial of that claimed entitlement could not have been unreasonable.
6Moreover, with regard to the State Fund's use of a 40-hour

work week in calculating Robertson's benefits, the record reflects that a number of the employees whoworked on the Stone Container project worked less than 40hours over the duration of the project. Indeed, the record establishes that employees whoworked on the project averaged fewer than 40 hours and only three of those employees worked more than 40hours over the project's duration. Weconclude that substantial evidence supports the Workers' Compensation Court's finding that the State Fund's position wasnot unreasonable. Therefore, weconclude that the court did not err in failing to award attorney fees and impose apenalty. AFFIRMED.

Weconcur:

Justices