No. 85-72 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

JAMES HOWARD DENEND, 

Claimant and Respond.ent, 

BRADFORD ROOFING AND INSULATION, 

Employer, 

and 

GLACIER GENERAL ASSURANCE COMPANY, 

Defendant and Appellant. 

APPEAL FROM: The Workers' Compensation Court, The Honorable 

Timothy Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Garlington, Lohn & Robinson; Bradley Luck, Missoula, 

Montana 

For Respondent: 

Ken H. Grenfell, Missoula, Montana 

Submitted on Briefs: Aug. 29, 1985 

Decided: December 5, 1985 

DEC -- I. . . ;,:> Filed: 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Bradford Roofing and Insulation (Bradford) , the 

employer, and Glacier General Assurance Company, the 

defendant, appeal the Workers' Compensation Court's award of 

temporary total disability benefits to James Denend 

(claimant). The issue is whether substantial evidence 

supports the lower court's ruling that claimant's benefits 

should be based on a forty hour work week. We affirm. 

In September 1983, Tony Ludwig, a Bradford foreman, 

contacted the State Job Service office in Missoula, Montana, 

seeking to hire workers. Ludwig testified that he told the 

Job Service that the job would be part-time seasonal work. 

Regarding the work hours an applicant could expect, he stated 

that they work when the work was available. He stated that 

he did not tell the Job Service that the job would be forty 

hours a week. The Job Service filled out a job order 

relative to Bradford's request for workers. The job order 

vlas introduced into evidence and states that the job would 

entail forty hours a week and would last two to three months. 

Ludwig testified that his usual hours of work per week 

in the roofing business would be less than forty hours and 

would fluctuate significantly depending on the weather, 

scheduling, supplies and other variables. Ludwig hired 

claimant to work for Bradford on a large roofing project in 

Missoula. Ludwig stated that he told claimant that claimant 

would work when work was available and that he did not tell 

claimant that claimant would work forty hours a week. On 

cross examination, JJudwig admitted that a normal work week 

would be Monday through Friday, 7:45 a.m. to 4:30 p.m., with 

a half hour lunch break. 
Dane Bradford, the superintendent and vice-president of 

Bradford Roofing and Insulation, testified by deposition. He 

testified that the company's employees normally work less 

than forty hours a week. He stated that temporary employees 

such as claimant, work, and are told that they will work, 

only on an "as needed" basis. He stated that there were no 

representations made to temporary employees that they would 

work forty hours a week. Dane Bradford further stated that 

claimant could not expect to work forty hours a week 

consistently. On cross-examination however, he agreed that 

if the weather were good and everything was going smoothly on 

a big project, the workers would work from 8:00 a.m. to 4:30 

p.m. and would work forty hours a week. 

Claimant testified that on his first day of work he 

found out that he would have to join a union and that he 

would work forty hours a week until the job was completed. 

He repeatedly stated that his understanding was that he would 

generally work forty hours each week. Claimant joined a 

union as required by his new job. The union was a party to a 

collective bargaining agreement with a number of roofing 

contractors, one of which was Bradford. This agreement 

defines a regular work day as eight hours and a regular week 

as five consecutive days. 

Claimant described his employment as full-time. He 

began work on a Thursday and worked thirteen hours total that 

day and the next. The next week, his first full week of 

work, claimant worked thirty-eight hours. He worked forty 

hours his second full week, thirty-two hours the next week, 

and twenty-eight and one half hours the following week. He 

testified that the week he worked twenty-eight and one half 

hours the weather was bad, with rain, mist and clouds. 
Claimant stated that, because of the weather, Bradford packed 

up some of its equipment and moved it to Billings. He did 

not work at all for Bradford for the next four weeks, 

although he was at all times ready, willing and able to do 

so. Then, in mid-November 1983, claimant worked for Bradford 

twenty-three hours in one week and twenty-eight and one half 

hours the following week. After that, he worked only a few 

hours a week, if at all, doing odd jobs for Bradford for the 

next two months. In January 1984, claimant was injured while 

working for Bradford. Bradford and its insurer do not now 

dispute that the injury is compensable and that claimant is 

entitled to Workers' Compensation benefits. 

Following claimant's injury, Sandy Diehm, Bradford's 

office manager, prepared the Employer's First Report on the 

injury. She routinely prepared these reports for Bradford. 

The report on claimant's injury states that claimant is a 

full-time employee, weather permitting. The report also 

states that, weather permitting, claimant worked eight hours 

a day and forty days a week. Diehm apparently meant to state 

in the report that claimant worked forty hours per week. She 

testified by way of deposition that claimant was a full-time 

employee. 

The Workers1 Compensation Court found that claimant was 

hired by Bradford on a full-time basis and that claimant's 

usual hours of employment were forty hours a week. The court 

based its award of temporary total disability benefits upon a 

forty hour work week. Bradford and its insurer appeal. 

Appellants argue that claimant's temporary total 

disability benefits should be based on a work week (the base 

work week) of well below forty hours a week. Appellants 

argue that the base work week should be computed by averaging 
the hours per week that claimant worked for Bradford. The 

result is a base work week of 11.7 hours per week. 

Appellants charge that the lower court's finding of a base 

work week of forty hours is completely erroneous. 

The standard of review is clear. 

"Our function in reviewing a decision of 

the Workers' Compensation Court is to 

determine whether there is substa.ntia1 

evidence to support the findings and 

conclusions of that Court. We cannot 

substitute our judgment for that of the 

trial court as to the weight of the 

evidence on questions of fact. Where 

there is substantial evidence to support 

the findings of the Workers' Compensation 

Court, this Court cannot overturn the 

decision." 

Byrd v. Ramsey Engineering (Mont. 1985), 701 P.2d 1385, 1386, 

42 St.Rep. 991, 992; quoting Steffes v. 93 Leasing Company 

(1978), 177 Mont. 83, 86, 580 P.2d 450, 452; citing ~ond v. 

St. Regis Paper Co. (1977), 174 Mont. 417, 571 P.2d 372- 

In the instant case, there was evidence that claimant's 

usual hours of employment for Bradford were forty hours a 

week. This evidence consists of claimant's testimony, the 

Job Service job order, the Employer's First Report of injury, 

the collective bargaining agreement definitions of regular 

work day and regular week, and the admissions of Tony Ludwig 

and Dane Bradford. There was conflicting evidence tending to 

establish that an employee such as claimant would generally 

average less than forty fours a week. However, it is the 

province of the lower court to weigh and balance the 

evidence. Here, there is substantial evidence to support the 

lower court's finding of a base work week of forty hours. 

Therefore, we affirm that decision. 

Appellants argue not only that we should use an 

averaging formula to establish claimant's base work week, but 
that we are required to do so under 5 39-71-701 and 

§ 39-71-116 (20), MCA. 

Under § 39-71-701, MCA, a temporarily totally disabled 

employee receives Workers' Compensation benefits which are 

". . . 66 2/3% of the wages received at the time of the 

injury." Section 39-71-116 (20), MCA, defines wages as "the 

average gross earnings received by the employee at the time 

of the injury for the usual hours of employment in a 

week . . . " From this definition of wages, appellants cite 

and emphasize the words "average gross earnings received." 

These words, appellants argue, require that a court average 

the hours an employee has worked. We find that appellants' 

emphasis is misplaced. The phrase appellants emphasize is 

modified by the words "usual hours of employment in a week." 

The lower court here found that claimant's usual hours of 

employment were forty hours a week. This finding was ba.sed 

on substantial evidence. 

Finally, we decline appellants ' invitation to overturn 

this Court's ruling in Hutchison v. General Host Corporation 

(1978), 178 Mont. 81, 582 P.2d 1203. The Hutchison Court 

declined to use either of two averaging formulas to fix the 

employee's base work week. One formula advanced in Hutchison 

is similar to the formula advanced in the instant case. What 

this Court stated in Hutchison bears repeating. 

. . . neither of the averaging methods 

offered by Liberty Mutual is required for 

determining the weekly compensation. 

Section 92-701 [the predecessor to the 

present S 39-71-701, MCA] is not a wage 

loss statute; rather it is designed to 

provide a form of insurance to a person 

who is on temporary total disability. 

Hutchison, 178 Mont. at 87, 582 P.2d at 1207. That 

proposition is still accurate as applied to our present 

statute, 5 39-71-701, MCA. 
Appellants, in their reply brief on appeal, advanced a 

constitutional argument which had not been mentioned in 

either appellants' opening brief or in respondent's brief. 

Respond-ent/claimant made a motion to this Court to 

strike appellants' reply brief, in its entirety, as not 

complying with Rule 23 (5) (c) of the Montana Rules of 

Appellate Civil Procedure. That rule states: 

Reply brief. The appellant may file a 

brief in reply to the brief of the 

respondent. The reply brief must be 

confined to new matter raised in the 

brief of the respondent. No further 

briefs may be filed except with leave of 

court. 

Rule 23 (5) (c) , M.R.App.Civ.P. On September 12, 1985, this 

Court filed an order denying respondent's motion to strike 

stating that this Court would not consider any portion of the 

reply brief which is not in conformance with Rule 23 (5) (c) , 

Therefore, this opinion does not consider the 

constitutional argument appellants first advanced in their 

reply brief. 

Affirmed. 

. - 

Justice " 1 

We concur: 

A