file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-438%20Opinion.htm

No. 99-438 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2000 MT 224

301 Mont. 223 

7 P. 3d 416

ANNETTE FLINK, 

Petitioner and Appellant,

v.

AMERICAN ALTERNATIVE INSURANCE CO.,

Respondent and Insurer for

MISSOULA TEXTILE SERVICES, Employer,

Defendants and Respondents.

APPEAL FROM: District Court of the Judicial District, 

The Honorable Mike McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Rex Palmer, Attorneys, Inc., P.C., Missoula, Montana

For Respondent:

William Dean Blackaby, The Blackaby Law Firm, P.C., 

Helena, Montana

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-438%20Opinion.htm (1 of 6)3/29/2007 4:32:21 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-438%20Opinion.htm

Submitted on Briefs: March 23, 2000 

Decided: August 15, 2000

Filed:

__________________________________________

Clerk

Justice Jim Regnier delivered the opinion of the Court.

¶1 Annette Flink appeals from the Findings of Fact, Conclusions of Law and Judgment of 

the Workers' Compensation Court awarding her a 20 percent penalty on retroactive 

benefits, denying her request for attorney fees, and holding that the insurer properly 

calculated her weekly wage using a 40-hour work week. We reverse. There is one 

dispositive issue on appeal: Whether the Workers' Compensation Court erred in 

concluding that Flink's average weekly wage was properly calculated?

BACKGROUND

¶2 Flink was hired by Missoula Textile Services as a garment sorter and started work on 

May 19, 1998. On her first day of work, she suffered an injury to her left wrist. Flink 

worked approximately one and one-half hours the next day, May 20, 1998. She also 

worked for Missoula Textile Services between May 26 and June 11, 1998.

¶3 In September 1998 Flink hired counsel to assist her with her claim for workers' 

compensation benefits arising from her wrist injury. On September 23, 1998, Flink's 

counsel wrote American Alternative Insurance Co. (American), insurer for Missoula 

Textile Services, requesting that it initiate temporary total disability benefits retroactive to 

her last day of work. In response, American's claim adjuster began collecting medical and 

employment information on the claimant. In November 1998 Flink's treating orthopedic 

surgeon recommended surgery to treat her condition. American commenced paying 

temporary total disability benefits on December 14, 1998, retroactive to November 21, 

1998, the day after Flink's treating orthopedic surgeon recommended surgery. On January 

25, 1999, American paid Flink additional retroactive temporary total disability benefits for 

the period of July 14, 1998, to November 20, 1998. Two days later, it conceded liability 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-438%20Opinion.htm (2 of 6)3/29/2007 4:32:21 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-438%20Opinion.htm

for additional temporary total and temporary partial disability benefits for the period of 

June 12 through July 13, 1998.

¶4 On January 20, 1999, Flink filed a Petition for Hearing, claiming a dispute arose 

between the parties concerning the amount of benefits she was due. Pursuant to a pretrial 

order issued April 12, 1999, there were three issues to be determined by the court: (1) the 

number of hours Flink was hired to work; (2) whether American should be penalized for 

unreasonable delay; and (3) whether Flink was entitled to attorney fees and costs. The 

Workers' Compensation Court held a hearing on May 7, 1999. The court issued its 

Findings of Fact, Conclusions of Law and Judgment on May 25, 1999. The court 

concluded that Flink's wage was properly calculated using a 40-hour work week, granted 

Flink a 20 percent penalty for unreasonable delay on the retroactive benefits paid by 

American after she filed her petition, denied Flink's request for attorney fees, and awarded 

Flink's request for costs. Flink appeals.

STANDARD OF REVIEW

¶5 We review findings of fact of the Workers' Compensation Court to determine whether 

they are supported by substantial credible evidence. See Matthews v. State Compensation 

Ins. Fund, 1999 MT 225, ¶ 5, 296 Mont. 76, ¶ 5, 985 P.2d 741, ¶ 5. We review the 

Workers' Compensation Court's conclusions of law to determine whether they are correct. 

Matthews, ¶ 5.

DISCUSSION

¶6 Whether the Workers' Compensation Court erred in concluding that Flink's average 

weekly wage was properly calculated?

¶7 The Workers' Compensation Court specifically found that it was more probable than 

not that Flink would have worked some overtime. The court then concluded that the 

amount of overtime she would have worked was speculative and based her compensation 

rate on a 40-hour week. The court stated that pursuant to Robertson v. Aero Power-Vac, 

Inc. (1995), 272 Mont. 85, 899 P.2d 1078, prospective overtime could not be used in 

calculating disability benefits unless an employer guaranteed the overtime or hired an 

employee to work a scheduled number of overtime hours. On this basis, the court 

concluded that Flink's wages were properly computed utilizing a 40-hour work week.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-438%20Opinion.htm (3 of 6)3/29/2007 4:32:21 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-438%20Opinion.htm

¶8 Flink asserts that an award of overtime wages does not depend on whether overtime 

was specifically scheduled or guaranteed. Flink contends that her rate computation should 

include overtime wages because she established that she would have worked overtime and 

she presented evidence of similarly situated employees who worked overtime. American 

counters that absent a clear indication that Flink was hired to work in excess of 40 hours 

per week, the trial court properly declined to speculate on prospective overtime. American 

also asserts that Flink failed to offer evidence sufficient for the trial court to accurately 

calculate overtime.

¶9 Flink's injury occurred while the 1997 version of the Workers' Compensation Act was 

in effect. Therefore, the 1997 version of the Act applies to her claims. See Madill v. State 

Compensation Ins. Fund (1997), 280 Mont. 450, 458, 930 P.2d 665, 670. An injured 

employee's wages for purposes of calculating workers' compensation benefits are 

determined pursuant to § 39-71-123, MCA. See Robertson, 272 Mont. at 87, 899 P.2d at 

1080. Section 39-71-123(3)(a), MCA (1997), provides, in relevant part:

[I]f the term of employment . . . 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.

¶10 The issue presented to the Workers' Compensation Court was the number of hours in a 

week for which Flink was hired to work. The court erroneously concluded that even 

though Flink proved she was hired to work overtime, pursuant to Robertson overtime 

could not be used in calculating wages unless an employer guarantees overtime or hires an 

employee to work a scheduled number of overtime hours. In Robertson, we did not

conclude that overtime could only be used in calculating "the number of hours in a week 

for which the employee is hired to work" under § 39-71-123(3)(a), MCA, if it was 

"scheduled" or "guaranteed." 

¶11 The issue in Robertson was the sufficiency of the evidence with regard to overtime-i.

e., whether the Workers' Compensation Court's finding that Robertson was hired for 47 

hours of work was clearly erroneous. On appeal, Robertson insisted that he was hired to 

work 5 to 6, 12-hour shifts and that therefore he was entitled to temporary total disability 

benefits based on a 72-hour work week. We affirmed the Workers' Compensation Court's 

determination that Robertson's benefits would be based on a 47-hour work week because 

he was not guaranteed a 72-hour week and because no employee who worked on the 

project worked for more than 47 hours. Robertson, 272 Mont. at 88, 899 P.2d at 1080. 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-438%20Opinion.htm (4 of 6)3/29/2007 4:32:21 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-438%20Opinion.htm

¶12 Robertson does not stand for the proposition that overtime hours cannot be included in 

the hours per week for which an employee was hired to work unless those hours were 

guaranteed or scheduled. In fact, Robertson received a benefit based on a 47-hour work 

week despite the fact that he was neither guaranteed overtime nor scheduled a specific 

number of overtime hours.(1) Robertson was hired to work at a job that "could last five to 

six days" at shifts that could last "up to 12 hours." Robertson, 272 Mont. at 88, 899 P.2d at 

1080 (emphasis added). The Worker's Compensation Court relied on an erroneous 

interpretation of Robertson in reaching its determination that Flink's benefits should be 

based on a 40-hour work week.

¶13 The Worker's Compensation Court's determination that Flink was hired to work only 

40 hours a week is also not supported by substantial credible evidence. The court's 

findings with regard to the number of hours Flink was hired to work are inconsistent. The 

court found that Flink was hired on a 40-hour per week basis, but also found that had Flink 

continued her employment at Missoula Textile she would have worked overtime. If Flink 

proved that she would have worked overtime, then her rate should not have been 

computed on a 40-hour per week basis. 

¶14 Moreover, the court also concluded that the number of overtime hours Missoula 

Textile hired Flink to work was "simply speculative." In every dispute concerning a 

prospective wage claim where the evidence clearly establishes that the employee would 

more likely than not work overtime, but the employer did not specifically guarantee or 

schedule overtime, the number of overtime hours the employee was "hired to work" is 

going to be speculative, at least in the sense that it will have to be based on circumstantial 

rather than direct evidence of the actual hours the employee worked. However, this does 

not preclude the consideration of overtime in calculating the claimant's rate under § 39-71-

123(3)(a), MCA (1997). The Workers' Compensation Court demonstrated its facility to 

confront this issue in Robertson. 

¶15 Lastly, we note that the record contains sufficient circumstantial evidence from which 

the Workers' Compensation Court could make a determination of the number of overtime 

hours Flink was hired to work. Dawn Steadele, the person who replaced Flink, had worked 

21 hours of overtime in the last 31 weeks. Steadele did not request overtime. Rebekah 

Pierce, who requested overtime, testified that she performed similar, but expanded duties 

and averaged over 50 hours a week.

¶16 We reverse the Workers' Compensation Court's finding that Flink's disability benefits 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-438%20Opinion.htm (5 of 6)3/29/2007 4:32:21 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-438%20Opinion.htm

were properly calculated based on a 40-hour work week and remand for a redetermination 

of the number of hours she was hired to work. On remand the Workers' Compensation 

Court must necessarily address the further issues of attorney fees and penalty under §§ 39-

71-2907 and -612, MCA (1997).

/S/ JIM REGNIER 

We Concur:

/S/ JIM REGNIER 

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER 

/S/ W. WILLIAM LEAPHART

1. Interestingly, as in the instant case, the insurer in Robertson calculated the employee's rate based on a 

40-hour week. However, unlike the instant case, the Workers' Compensation Court awarded the 

employee benefits on a 47-hour week even though the employee was not guaranteed or scheduled 

overtime. 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-438%20Opinion.htm (6 of 6)3/29/2007 4:32:21 PM