NO. 80-134 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

WAYNE THORNTON, Plaintiff andAppellant,

THE COMMISSIONER OF THE DEPARTMENT OF LABOR AND INDUSTRY, STATE OF MONTANA, Defendants and Respondents.

Appeal from: DistrictCourt of theFifthJudicialDistrict, Inand fortheCounty of Jefferson, Montana Honorable Frank Blair, Judgepresiding. Counsel of Record: ForAppellant: PatrickF. Flahertyargued, Boulder, Montana FroRespondents: Marra, Wenz, Iwen and Johnson, Great Falls, Montana 

### James Gardner argued, Dept. of Labor, Helena,

Montana

Submitted: November 21, 1980 Decided:

## DEC2qf$j@($j

### Mr. JusticeGene B. DalydeliveredtheOpinionof theCourt. On August 10, 1978, appellant filed 

### a wage claim with theCommissioner of theDepartment of Labor and Industry. A contested case hearing 

### was held in 

### Great Falls on November 14, 1978. The hearings officer ruled in favor of respondents. On March 11, 1979, appellant petitioned the 

### District Court of the Fifth Judicial 

### District, in and for the County of Jefferson, for judicial review of the final agency decision. The 

### District Court dismissed appellant's petitionforjudicial review. Appellant appeals. Appellant

### was employed 

### as a truckdriverby respondents John and Simone Furgeri on or about July 17, 1978. He terminated his employment on August 4, 1978, due to nonpayment of wages. Appellant

### was hired for $.13 per

### mile plus $3.00 per hour for unloading and loading. Appellant claimed he drove 7,250 

### miles ($942.50), worked 62 hours ($186.00), and accumulated $86.39 in expenses, totaling $1,214.89 due. On November 14, 1978, an administrative hearing 

### was held. The hearings examiner determined there 

### were no expenses due and that appellant 

### was therefore entitled to $1,128.50 ($942.50 plus 186.00). The examiner also found that respondents had paid appellant $500.00 on September 5 and $281.75 on October 13, 1978, in back wages. The examiner subtracted $781.75 from $1,128.50 and found appellant 

### was entitled to $346.75. Pursuant to section 39-3-206, MCA, the examiner assessed a penalty on this portion of thewages duewhich resulted ina net amount due appellant of $693.50. [Due to an arithmetical error the hearings examiner found $492.50 due appellant; however,using the same formula, the error was corrected at the hearing on the petition forjudicial review.] The examiner alsodenied appellant's prayer for attorneyfees. On appeal the District Court affirmed the examiner's order and denied appellant'spetitionforreview. There are two issues presented to this Court for review: 

### 1. Did the District Court err in affirming the decision of the hearings examiner to assess a statutory penalty tothebalance due atthe time of thehearing rather than the amount due atthe initiationof theproceedings? 2. Did the District Court err in affirming the decision of the hearings examiner refusing toaward attorney feestoappellant atthe administrative hearing level? Appellant contends that section 39-3-206, MCA, imposes

amandatorypenalty on an employer who failstopay wages to

an employee when the wages become due. By imposing a penalty on $346.75, which was due at the 

### time of the hearing, rather than on $1,128.50, which was due at the initiationof theproceedings, thehearings examiner and the District Court made a clear error of law in direct contraventionof the statute. Appellant further contends that section 39-3-214, MCA, provides a mandatory award of attorney fees and costs for employees who successfully prove a claim for unpaid wages. The hearings examiner and the District Court erred in failingtoaward attorney feesand costs ateither stage of theproceedings. Respondents' position 

### is that this case involves the construction of two statutoryprovisions--section 39-3-206,

### MCA (thepenalty statute), and section 39-3-211, MCA (the statute giving the commissioner discretion to settle or adjust claims upon assignment). In an attempt to promote settlements and avoid lengthy litigation, the commissioner, pursuant to his section 39-3-211, MCA, authority, compromised the penalty because the employer partially paid thewages due appellantprior to the administrative hearing. Respondents contend there exists a rebuttablepresumption in favor of the action of an administrative agency. In the absence of a showing of manifest error by the party challenging the agency action, the agency order is deemed valid and enforceable. Appellant failed tomeet hisburden of proof; therefore, the District Court's order affirming the agency's decision should be affirmed. Concerning the second issue, respondents contend that, pursuant to section 39-3-214, MCA, an award of attorney fees is provided for only when it is necessary to institute "a suit at law" for the recovery of wages. An administrative hearing is not a suit at law. Therefore, neither the commissioner of theDepartmentof Labor and Industrynor the District Court has the authority to award attorney fees for representation in an administrative hearing. The District Court has statutory authority to award attorney fees on a wage claim only for the legalwork performed at theDistrict Court level. When reviewing an administrative order, there exists a rebuttable presumption in favor of the decision of the agency, and the burden of proof is on the party attacking it to show that it is erroneous. Partollv. Anaconda Copper Min. Co. (1949),122Mont. 305, 311, 203 P.2d 974;Kerns v.Anaconda Copper Min. Co. (1930), 87 Mont. 546, 289 P. 563. This Court may not substitute 

### its judgment for that of the trial court or agency as to the weight of the evidence on questions of fact. Section 2-4-704 (2), MCA; Robins v. Anaconda Aluminum Co. (1978), 175 Mont. 514, 575 P.2d 67. We may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are clearly erroneous in view of the reliable, probative and substantial evidence of the whole record. Section 2-4-704(2)(e), MCA. In Brurud v. Judge Moving and Storage Company, Inc. (1977), 172 Mont. 249, 563 P.2d 558,

we determined that a finding 

### is "clearly erroneous" when, although there 

### is evidence to support 

### it, a review of the entire record leaves the court with the definite and firm conviction that a mistake has been committed. See also United Statesv. United States Gypsum Co. (1948), 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766. We find no such prejudice here, and the decisions of the administrativeagency and DistrictCourt areaffirmed. The role of judges in construing statutes

### is stated in section 1-2-101, MCA. This Court interpreted that role in 

### amm mil! v. Young (1975), 168 Mont. 81, 540 P.2d 971, which held that the court may not omit what has been inserted in legislation nor inject what has been omitted. The duty of the court is simply to construe the law as it finds it. Dunphy v. Anaconda Co. (1968), 151Mont. 76, 438 P.2d 660. With this mandate in mind, we must now construe the two statuteswhich are the subjectof thislitigation. Section 39-3-206, MCA, provides:

### "Any employer, as such employer is defined in thispart, who failstopay any of hisemployees as provided in this part or violates any other provision of this part shall be guilty of a misdemeanor. A 

### penalty shall also be assessed against and paid by suchemployer and become due such employee asfollows: a sum equivalenttothe fixed amount of 5%

### of the wages due and unpaid shall be assessed for each day, except Sundays and legal holidays, upon which such failure continues after the day upon which such wages were due, except that such failure shall not be deemed to continue more than 20 days after the date suchwages weredue." Section 39-3-211, MCA, 

### provides: "Whenever thecommissioner determines thatone or more employees have claims for unpaid wages, he shall, upon the written request of the employee, take an assignmentof theclaimin trustfor such employee and may maintain any proceeding appropriate to enforce the claim, including liquidated damages pursuant to this part. With the writtenconsentof theassiqnor, thecommis- sionermay settle

### or aaustally claimassigned 

### -- ----- 

### pursuantto thissection." (Emphasisadded.) Thewage claim submitted and signedby appellant provided: 

### "I hereby authorize the Labor Commissioner to approve a proposed compromise adjustment or settlement of the claim. In pursuance thereof, I 

### authorize the Labor Commissioner to transfer, sellor assign this claim or any judgment thereon." Pursuant to the authority vested in the commissioner by section 39-3-211, MCA, 

### he compromised the penalty on the $500.00 and $281.75 paid on September 5 

### and October 13, 1978, respectively. In the last two fiscal years, the Labor Standards Division processed an average of over 900 wage claims per year. Therefore, in an attempt topromote settlements and avoid lengthy litigation, the commissioner compromised the penalty on wages which were paid prior tohearing. Such a decision is 

### within the commissioner's discretion and facilitates the purpose of theWage Payment Act which is 

### tocollect unpaid wages of employees. However, in each case, the ultimate liability should first be determined and, thereafter, a compromise may be worked out from thatamount. Sections 39-1-102 and 39-3-209, MCA. Appellant was entitled to $1,128.50; he was paid $781.75. Therefore, $346.75 remains due for unpaid wages. Respondents owe appellant an additional $346.75 in penalty pursuant to section 39-3-206, MCA, bringing the net amount due appellant $795.50. Appellant has received a portion of wages due and 

### is entitled to unpaid wages plus a penalty imposed thereon. No substantial rights of appellant have been prejudiced and the administrative order 

### is affirmed. Appellant asked for an award of attorneyfees. It

### isa well-settled principle thatattorneyfees areallowableonly when provided for by contractor statute. Section39-3-214, MCA, provides: "Court costs and attorneys' fees. (1)Whenever it shall become necessary for the employee to enterormaintain a suitatlaw for the recovery or collection of wages due as provided for by this part, a resulting judgment 

### must include a reasonable attorney's fee in favor of the successful party, to be taxed as part of the costs in the case. (2) Any judqment for the plaintiff in a proceeding pursuant to this act must include 

### all costs reasonably incurred in connection with the proceeding, including attorneys' fees." (Emphasisadded.) Section 39-3-212, MCA, provides: "A determination by the Commissioner of Labor and Industry made after a hearing may be enforced by application by the Commissioner to a district court for an order orjudgment enforcing the determination if the time provided to initiate judicial reviewby theemployer passed."

The particular language of the statute indicatesthat

an administrative hearing 

### is not a "suit at law." A "determination" made by the commissioner asa result of thehearing 

### is not a "judgment." In Massa v. Dept. of Social & Rehabilitation Services (1977), 172 Mont. 60, 560 P.2d 895, the appellateprocedures used closelyparallelthoseused in the case atbar. In that case thisCourt awarded attorney fees only for services rendered on appeal. In the absence of statutory authority we 

### must affirm the holding of the District Court and the Department of Labor and Industry denying appellant attorne 3

Affirmed.

We concur:

Chief Justice