No. 87-182 

LN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

ALAN MILENDER, 

Claimant and Respondent, 

-vsJOHN CARPENTER, d/b/a ROCKY MOUNTAIF? 

RODEO, Employer, 

and 

STATE COMPENSATION INSUPANCE FUND, 

Defendant and Appellant. 

APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy 

Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Browning, Kaleczyc, Ferry & Hoven; Oliver Goe, Helena, 

Montana 

For Respondent: 

Edward A. Cumn~ings, b!issoula, Montana 

Submitted on Briefs: Oct. 1, 1987 

Decided: December 31, 1987 

Filed: 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

State Compensation Insurance Fund appeals an order from 

the Workers' Compensation Court awarding claimant $7,146.09 

for temporary total benefits, 20 percent penalty on that 

amount and attorney fees. 

We affirm the decision of the Workers' Compensation 

Court. 

The issues presented for our review are as follows: 

1. Did the Workers' Compensation Court err in awarding 

temporary total disability benefits from the date of 

claimant's injury, when he continued to receive an amount 

equal to his preinjury salary although not actually working? 

2. If entitled to such benefits, is the correct amount 

properly based on combined temporary total benefits from both 

of claimant's employments or solely on his employment with 

the insured? 

3. Did the Workers' Compensation Court err in awarding 

a penalty pursuant to S. 39-71-2907, MCA? 

4. Did the Workers' Compensation Court err in holding 

that claimant was entitled to attorney fees pursuant to 5 

39-71-611, MCA? 

The uncontested facts are as follows: 

Claimant, Alan Milender, was severely injured August 10, 

1985, in Superior, Montana, when gored by a bull. Both of 

Milender's legs sustained compound fractures, one of which 

later developed a bone infection. At the time of the injury, 

claimant was working in a temporary part-time capacity for 

John Carpenter d/b/a Rocky Mountain Rodeo. His job consisted 

of tending rodeo stock for approximately two hours a day for 

two days. 
Since 1975, until he was injured, claimant was employed 

full-time for Sletten Construction Company working as a 

working construction foreman. At the time of his injury, 

claimant was earning $600 per week computed at a rate of $15 

per hour for a 40 hour work week. Claimant received this 

amount regardless of actual hours worked. 

Milender received weekly Workers' Compensation temporary 

total benefits of $28.33 from August 11, 1985, through 

October 15, 1986, based on his employment with Rocky Mountain 

Rodeo. From the date of his injury until February 15, 1986, 

Sletten Construction Company continued to pay claimant $600 

per week with usual state and federal tax withholdings. The 

$600 per week was discontinued on February 15, 1986, because 

it became evident that claimant would not be able to return 

to work in the foreseeable future. 

On April 23, 1986, Milender submitted a letter to the 

State Fund requesting benefits of $293 per week. This would 

be the amount owed if his Sletten Construction wages were 

also used in the basis for computing temporary total 

benefits. State Fund denied his request for an increase on 

June 18, 1986. On June 26, 1986, claimant was threatened 

with forclosure on his home. On October 15, 1986, State Fund 

agreed to pay $293 per week retroactively from February 15, 

1986 and agreed that for the purpose of computing benefits, 

wages from Sletten Construction would be included in the 

basis amount. 

A hearing was held to determine whether claimant was 

entitled to $293 per week from August 11, 1985, the date of 

injury, not just from February 15, 1986, the date Sletten 

discontinued paying Milender $600 per week. 

The hearing examiner concluded, and the Workers ' 

Compensation judge adopted the judgment that claimant should 

have received full benefits from August 11, 1986, as well as 

an award of attorney fees and a 20 percent penalty against 
conclusions on conflicting evidence, this Court will not set 

them aside unless clearly erroneous. It is not our function 

to determine whether there is substantial credible evidence 

to support contrary findings. Currey v. 10 Minute Lube 

(Mont. 1987), 736 P.2d 113, 115, 44 St.Rep. 790, 792. We 

will not disturb this decision. 

Sletten's president testified further that although he 

considered Milender an employee as long as he was being paid, 

the payments were in no way intended to be in lieu of 

Workers' Compensation benefits. In this case, Sletten is not 

even responsible for Milender's benefits. On occasion, when 

injured Sletten employees were receiving Workers' 

Compensation benefits, Sletten continued to pay an amount 

equal to their wages as a gesture of good will and good. 

business practice. 

To adopt the argument of the State Fund in this case 

would be to grant a benefit to the State Fund at Milender's 

expense. Sletten did not intend to benefit State Fund by 

paying Milender $600 per week for six months. Sletten's 

payments were gratuitous and are not a valid reason for 

reducing Milender's benefits to $28.33 per week during the 

six month period. 

We hold that the Workers' Compensation Court did not err 

by concluding that payments made by Sletten to Milender from 

August 11, 1985, through February 15, 1986, were not "wages." 

Is the amount of benefits correctly computed fron a 

basis of just Milender's employment with Rocky Mountain 

Rodeo, or from a combination of both employments? 

Milender's employment with Sletten Construction was 

terminated due to injuries sustained while working for Rocky 

Mountain Rodeo. He was unable to perform duties associated 

with his position as working foreman. As previously 
State Fund on the amount owed from August 11, 1985, through 

February 15, 1986. From this judgment, State Fund appeals. 

Is Milender entitled to temporary total benefits from 

the date of his injury even though he continued to receive 

$600 per week from an employer who is not a party to this 

lawsuit? 

The parties agree that Milender's wages from two 

employments, the one at Sletten Construction, and the other 

for Rocky Mountain Rodeo, should be combined for the purpose 

of computing the basis of Milender's benefit rate. The 

injury suffered while tending rodeo stock made it impossible 

for Milender to work at either job. 

The general rule is that earnings from concurrent 

employments may be combined if the employments are 

sufficiently similar so that a disabling injury at 

one employment would necessarily disable the 

employee in respect to the other employment. 

Harmon v. State Comp. Insurance Fund (Mont. 1986) , 716 P. 2d 

605, 607, 43 St.Rep. 514, 516. 

State Fund has agreed to make payments for the time 

period after Sletten Construction discontinued giving 

Milender $600 per week. At issue is a period of six months, 

between August 11, 1985, and February 15, 1986, when Milender 

was not able to work due to his injuries. State Fund denies 

liability for those six months, claiming that Milender does 

not fall under the definition of temporary total disability 

during that time. 

Section 39-71-116 (19), MCA (1985), defining tempera-ry 

total disability as: 

. . . a condition resulting from an injury as 

defined in this chapter that results in total loss 

of wages and exists until the injured worker is as 

far restored as the permanent character of the 

injuries will permit . . . 
"Wages" are defined in S 39-71-116 (20), MCA (1985), as " [tlhe 

average gross earnings received by the employee at the time 

of the injury for the usual hours of employment in a 

week . . ." (Emphasis added.) 

In Gee v. Cartwheel Restaurant (1982), 197 Mont. 335, 

642 P.2d 1070, this Court held that wages which were received 

by an employee from one employer while he continued to 

receive his usual monthly salary from a concurrent employer 

were "gratuitous wages." Benefits for disabilities are based 

on the usual hours of employment of the worker. See Lave v. 

School Dist. No. 2 (Mont. 1986), 713 P.2d 546, 43 St.Rep. 

165. 

Likewise, this Court in Gee emphasized that § 

39-71-116 (20), MCA (1985) , only covered amounts received for 

usual weekly employment. When no work was performed, amounts 

received were considered to be gratuitous. 

From August 11, 1985, through February 15, 1986, Sletten 

Construction paid Milender $600 per week for no work done 

because they hoped that he would return to work for them when 

he recovered. Sletten's president testified that Milender 

was considered a key employee. It was worth $600 per week to 

the company to have him as an employee when well. On one 

occasion, Sletten asked Milender to check on a job site near 

his home. Milender testified that he drove by the job site 

two times, without getting out of his vehicle, and responded 

back to Sletten as to the status of the construction project. 

"Usual hours of employment" does not mean strict adherence to 

actual work for every hour compensated. Denend v. Bradford 

Roofing (Mont. 1985), 710 P.2d 61, 42 St.Rep. 1778. The 

Workers' Compensation Court did not conclude that Milender's 

quick drive by a job site two times in a six month period 

constituted actual performance of his "usual weekly 

employment." When the lower court bases its findings and 
discussed, it is entirely appropriate for purposes of 

benefits calculation to combine the wages of concurrent 

employments when both are affected by an injury. 

We hold that the Workers' Compensation Court did not err 

in calculating Milender's benefits from August 11, 1985, at a 

rate of $293 per week. 

111. 

Was a 20 percent penalty on the amount owed between 

August 11, 1985, and February 15, 1986, properly awarded? 

A penalty pursuant to 5 39-71-2907, MCA, is properly 

awarded when an insurer unreasonably delays or refuses to pay 

benefits owed. Withholding or a delay of payment must be 

unreasonable. Unreasonableness is a question of fact. 

Paulsen v. Bozeman Deaconess Foundation Hospital (Mont. 

1984), 673 P.2d 1281, 1283, 41 St.Rep. 62, 64. On appeal, a 

finding of unreasonableness will not be overturned if 

supported by substantial evidence. Coles v. Seven Eleven 

Stores (Mont. 1985), 704 P.2d 1048, 1052, 42 St.Rep. 1238, 

1242. 

It is not this Court's job on review to determine 

whether there was substantial credible evidence to support an 

opposing position. The State Fund refused to pay ~ilender 

any amount above $28.33 per week from August 11, 1985, 

through October 15, 1986. In October, State Fund agreed to 

pay Milender the correct amount of $293 per week 

retroactively only from February 15, 1986, not from the date 

of his injury. This substantially supports the imposition of 

a penalty. 

Me affirm the Workers' Compensation Court on the issue 

of a 20 percent penalty. 

IV. 

Is claimant entitled to attorney fees? 

Section 39-71-611, MCA, states: 
In the event an insurer denies liability for a 

claim for compensation or terminates compensation 

benefits and the claim is later adjudged 

compensable by the workers ' compensation judge or 

on appeal, the insurer shall pay reasonable costs 

and attorneys' fees as established by the workers' 

compensation judge. 

State Fund denied liability for Milender's claim for 

benefits for the time period between August 11, 1985, and 

February 15, 1986. The Workers' Compensation Court and this 

Court have both "adjudged" that claim compensable. 

We affirm the award of reasonable attorney fees. 

Affirmed on all issues. 

We Concur: 
Mr. Justice L. C. Gulbrandson dissenting. 

I respectfully dissent to the affirmance of the award 

of temporary total benefits for the period from the date of 

injury to the date of termination of claimant's employment 

with Sletten Construction Company, February 15, 1986. 

Because I believe that award to be in error I also disagree 

with the affirmance of a twenty percent penalty and attorney 

fees. 

The majority has misinterpreted this Court's holding in 

Gee v. Cartwheel Restaurant, supra, by quoting "this Court 

held that wages which were received by an employee from one 

employer while he continued to receive his usual monthly 

salary from a concurrent employer were 'gratuitous wages. I" 

In that case, this Court reversed the increased award of 

temporary total benefits and stated: 

Applying even the most liberal statutory 

construction favoring the claimant, to 

conclude that his average gross earnings 

should include wages from this job at 

which he is no longer employed does not 

fairly or reasonably represent wages lost 

from his usual weekly hours of 

employment. The amount of compensation 

must bear some reasonable relation to the 

loss sustained on account of disability. 

In essence, the Workers' Compensation 

Court has determined that the claimant is 

entitled to temporary total disability 

benefits based upon lost wages for two 

concurrent jobs, while the evidence in no 

way establishes that the claimant was 

actually concurrently employed at the 

Book Store or had suffered a loss of Book 

Store wages. To hold that the claimant 

should receive benefits based upon more 

weekly hours tha-n he has actually ever 
worked does not represent compensation 

based upon his usual weekly 

hours of employment. (Emphasis in 

original.) 

Gee, 642 P.2d at 1071, 1072. Claimant Gee was found by this 

Court to be employed by one employer at the time of his 

injury, and the claimant here obviously had two employers at 

the time of his injury. 

In my view the issue is whether the employer-employee 

relationship between Sletten Construction Company and the 

claimant continued until February 15, 1986 and if it did, did 

the claimant suffer a total loss of wages to be entitled to 

benefits based upon two employments under 39-71-116(19), 

MCA (1985). 

In this case, the critical evidence regarding the 

payment of $600 per week by Sletten Construction Company from 

the date of injury to February 15, 1986, is contained in the 

depositions of the claimant and Robert Robertson, president 

of Sletten Construction Company, and this Court is entitled 

to judge the weight to be given such record testimony. 

The evidence in this case is undisputed that Sletten 

Construction Company had a corporate policy of paying 

disabled supervisory personnel, such as the claimant, full 

wages until such time as it was determined that the disabled 

supervisor would be unable to return to work within a 

reasonable period of time. The claimant had been a 

supervisor with Sletten since 1978 and, at the time of the 

injury on his concurrent two-day job, was paid $600 per week 

whether he worked no hours a week or sixty hours a week. The 

testimony is undisputed that Sletten Construction Company 

paid the claimant his full $600 per week salary, less 

withholding for federal and state income tax and for Social 

Security purposes until February 15, 1986 at which time the 
corporate president made the decision to terminate claimant 

as an employee. Sletten Construction Company further paid 

workers1 compensation premiums based upon the salary paid to 

claimant until February 15, 1986. The claimant attended the 

company Christmas party in 1985, and readily inspected a 

bridge construction site on several occasions prior to 

February 15, 1986, at the request of his employer without 

claiming additional reimbursement. 

In my opinion, for the majority to hold, in effect, 

that the $600 weekly salary benefits were gratuitous and that 

the claimant suffered a total loss of wages from Sletten 

Construction Company from August 10, 1985 until February 15, 

1986 is unrealistic and ignores normal corporate business 

practices and specifically the corporate practice of Sletten 

Construction Company. See, Larson, Workmen's Compensation 

Law, S 57.42: 

An occasional court will say that such a 

payment is to be deemed a gratuity, but 

this, in the absence of special facts 

indicating a charitable motive, is 

unrealistic. In fact, in the case of 

corporate employers, it is doubtful that 

the management has the right to give away 

the corporationls money as gratuities 

even if it wanted to. As a matter of 

corporation law, it would have to be 

assumed that the payment was made in 

discharge of a legal obligation, if any 

such actual or potential obligation could 

be found that would reasonably account 

for the expenditure. 

The effect of the majority decision is to award the 

claimant temporary total disability benefits which, combined 

with the salary received from Sletten Construction Company, 

result in a post-injury monthly income of $3,572, far in 

excess of his reqular salary of $2,400. This result in my 
judgment, does not comply with the - Gee requirement that "the 

amount of compensation must bear some reasonable relation to 

the loss sustained on account of disability." 

I would reverse upon the basis that the award tends to 

make the Workers' Compensation system unworkable, and is not 

in accord with $$ 39-71-116(19), MCA (1985) and the previous 

holdings of this Court.