NO. 95-089 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

DAVID ROBERTSON, 

Petitioner and Appellant, 

v. 

AERO POWER-VAC, INC., EmplOyeX, 

and 

STATE COMPENSATION MUTUAL 

INSURANCE FUND, 

Respondents and Respondents. 

APPEAL FROM: Workers' Compensation Court, State of Montana, 

The Honorable Mike McCarter, Judge presiding. 

COUNSEL OF RECORD: 

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, 1995 
Justice 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 a penalty. We affirm. 

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 a penalty? 

The underlying facts in this case are undisputed. David 

Robertson (Robertson) was hired by Aero Power-Vat, Inc. (Aero) for 

a cleaning project to be performed 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 a contract (Contract) executed by both 

Robertson and Aero. The Contract specified that work shifts would 

be 12 hours and that per hour pay would be $6.50 for straight time 

up to 40 hours a week and time-and-one-half for hours worked in 

excess of 40 hours in any work week. The duration of the project 

was not specified. At the time Robertson was hired, however, Aero 

stated orally that the cleaning project "could last 5 to 6 days" 

and that, subject to satisfactory performance, Robertson was 

expected to work the entire project. 

2 
Robertson 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 a 40-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 he was hired to work six 12-hour shifts. He also 

requested attorney fees and a penalty, contending that the State 

Fund was unreasonable in refusing to recognize the number of hours 

for which he was hired when calculating his benefit rate. The 

State Fund responded that Robertson had not been hired to work more 

than 40 hours per week and denied that its actions had been 

unreasonable. 

The Workers' Compensation Court concluded that Robertson was 

entitled to temporary total disability benefits based on a 47-hour 

work week. Based on its finding that the State Fund's position was 

not unreasonable, the court also concluded that Robertson was not 

entitled to attorney fees or a penalty. Robertson appeals. 

1. Did the Workers' Compensation Court err in interpreting 5 39-71-123(3), MCA (19911, and in 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 be based on a 47-hour work week. Robertson 

contends that the court erred because the statute, properly 

interpreted and applied, entitles him to a benefit rate based on a 

3 
72-hour work week. We review the Workers' Compensation Court's 

conclusions of law to determine whether they are correct. David v. 

State Compensation Mut. Ins. Fund (1994), 267 Mont. 435, 438, 884 

P.2d 778, 780. 

An injured 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 same employer is less than 

four pay periods, however, the employee's wages "are the hourly 

rate times the number of hours in a week for 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 a week 

for which Robertson was hired to work. 

Robertson asserts that it is undisputed that he was hired to 

work five to six 12-hour shifts. The Contract states that shifts 

will be 12 hours in length. This identification of the length of 

work shifts, together with Robertson's assertion that he was 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. 

4 
The record, however, does not 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 5 to 6 

days." (Emphasis added.) Further, in an interview with the State 

Fund's investigator, Aero's president stated that Robertson was 

told when hired that the shifts would be "up to 12 hours" and that 

the job "might last" five to six days. 

The record also establishes that, in fact, the project lasted 

only four days. No employee worked for more than four days on the 

project and no employee who worked on the project from beginning to 

end worked more than 47 hours 

On the 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, and that the five to six day period mentioned at the time of 

the hire was the "outside estimate" of that duration. The court 

also properly determined that Robertson was hired to work 47 hours 

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 a penalty? 

Section 39-71-612(l), MCA (1991), authorizes an award of 

attorney fees where the amount of compensation is disputed and the 

5 
amount granted by the Workers' Compensation Court is greater than 

the amount paid. However, such an award "may only be made if it is 

determined that the actions of the insurer were unreasonable." 

Section 39-71-612(2), MCA (1991). The 20% 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 Fund was paying, based on its determination that his benefits 

should be calculated on a 47-hour work week rather 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. The court found, however, that the State Fund had not 

been unreasonable and, therefore, denied both attorney fees and a 

penalty. 

Robertson challenges the court's determination that the State 

Fund was not unreasonable. Reasonableness is a question of fact. 

Stordalen v. Ricci's Food Farm (1993), 261Mont. 256, 258, 862 P.2d 

393, 394. We review 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. 

6 
Moreover, 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 who worked on the Stone Container 

project worked less than 40 hours over the duration of the project. 

Indeed, the record establishes that employees who worked on the 

project averaged fewer than 40 hours and only three of those 

employees worked more than 40 hours over the project's duration. 

We conclude that substantial evidence supports the Workers' 

Compensation Court's finding that the State Fund's position was not 

unreasonable. Therefore, we conclude that the court did not err in 

failing to award attorney fees and impose a penalty. 

AFFIRMED. 

We concur: 

Justices