No. 84-549 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

SHIRLEY RUSSO COLES, 

Claimant and Respondent, 

SEVEN ELEVEN STORES, 

Employer, 

and 

AMERICAPJ MOTORISTS INSURAPJCE 

COMPANY, 

Defendant and Appellant. 

APPEAL FROM: Workers' Compensation Court, The Honorable Timothy 

Reardon, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Keller, Reynolds, Drake, Sternhagen & Johnson; Paul 

T. Keller, Helena, Montana 

For Respondent : 

Charles Smith, Helena, Montana 

-- - 

Submitted on Briefs: May 23, 1985 

Decided: Au~"s~ 20, 1985 

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

Court. 

The insurer, American Motorists Insurance Company, 

appeals a decision of the Workers' Compensation Court 

ordering it to pay the claimant, Shirley Russo Coles, 

permanent total disability benefits rather than permanent 

partial disability benefits; setting the rate of compensation 

at $123.39 per week; and awarding costs, attorneys' fees and 

a 20% penalty to the claimant. We affirm. 

On October 10, 1981, while working as a clerk in a 

convenience store, the claimant fell from a ladder, struck 

her mid and lower back on a sink and then hit the floor on 

her back and left side of her head. Following an examination 

at the hospital emergency room, she was released to go home. 

She attempted to return to work the next week, but after 

about one day she had to leave because her neck was stiff and 

sore and she had developed a severe headache. 

The Workers' Compensation Court found that the claimant 

had fibromyositis, a significant soft tissue injury. Relying 

primarily on the treating physician's statements, the judge 

also found that the claimant's condition was as far restored 

as her injuries would permit on April 10, 1983. He found 

that she had a 15% whole person impairment. From her medical 

condition and the presence of non-medical elements of 

disability such as her lack of specialized training and 

limited work experience, the court concluded the claimant was 

temporarily totally disabled until April 10, 1983 and, "until 

vocationally retrained, is permanently totally disabled as a 

result of her industrial accident. " (Emphasis in original. ) 

The insurer calculated the claimant's rate of 

disability payments based on a forty-hour work week. When 
she began work in August 1981, her scheduled hours of 

employment were 2:00 to 10:30 p.m., seven days a week, with 

additional hours as needed to fill in for absent employees. 

She worked the following hours after being hired: 

straight time hours 

1 week 57.75 

2 weeks 80.00 

2 weeks 72.00 

2 weeks 80.00 

f ina 1 week 29.00 

overtime hours 

The court below determined that her overtime hours were part 

of her usual hours and should be included in the calculation 

of disability benefits. 

The insurer terminated the claimant's temporary total 

disability payments on about October 9, 1982. Thereafter, it 

paid 25 weeks of permanent partial disability based on a 

physician's report estimating her medical impairment rating 

at 5%. The report did not refer to her ability to return to 

work. The insurer refused to pay any further benefits 

despite repeated requests by the claimant. On May 21, 1984, 

the same day an order was issued setting a hearing date on 

the claimant's petition for an emergency hearing, the insured 

paid part of the back payments due. Just prior to the 

hearing date, it paid the remaining back payments to 

claimant. The Workers' Compensation Court found the 

insurer's termination of benefits and its refusal to pay 

permanent total disability benefits unreasonable. 

The claimant's petition came to trial before the 

Workers' Compensation Court on September 12, 1984. On 
November 20, 1984 the court entered its findings of fact, 

conclusions of law and judgment ordering the insurer to pay 

the claimant temporary total disability benefits from October 

11, 1982 until April 9, 1983 and permanent total disability 

benefits from April 10, 1983 until further ordered; ordering 

the payment of compensation benefits at $123.39 per week; 

ordering the insurer to pay the claimant a 20% increase in 

the rate as a penalty; awarding the claimant costs and 

attorneys' fees; and ordering the Division of Workers' 

Compensation to determine if vocational rehabilitation was 

possible for the claimant. 

The insurer raises the following issues on appeal: 

(1) Did the Workers' Compensation Court err by finding 

the claimant permanently totally disabled rather than 

permanently partially disabled? 

(2) Did the Workers' Compensation Court err by 

including overtime hours when calculating the rate of 

compensation? 

(3) Did the Workers' Compensation Court err by awarding 

a penalty to the claimant? 

When reviewing a decision of the Workers' Compensation 

Court, the standard is "whether there is substantial evidence 

to support the findings and conclusions of that court. We 

cannot substitute our judgment for that of the trial court as 

to weight of the evidence on questions of fact. Where there 

is substantial evidence to support the Workers' Compensation 

Court, this Court cannot overturn the decision. " (Citations 

omitted.) Hume v. St. Regis Paper Company (1980), 187 Mont. 

53, 59, 608 P.2d 1063, 1066. 

Section 39-71-116(13), MCA defines permanent total 

disability as: 
"a condition resulting from injury as 

defined in this chapter that results in 

the loss of actual earnings or earning 

capability that exists after the injured 

worker is as far restored as the 

permanent character of the injuries will 

permit and which results in the worker 

having no reasonable prospect of finding 

regular employment of any kind in the 

normal labor market. Disability shall be 

supported by a preponderance of medical 

evidence." 

In the case at bar, the testimony and reports of the treating 

physicians supported the court's findings on the claimant's 

disability. The insurer's medical report, although stating a 

different conclusion, contained no medical findings that 

contradicted those of the treating physicians. The 

disability was supported by a preponderance of medical 

evidence. 

Disability has non-medical as we11 as medical 

components. In Metzger v. Chemetron Corp. (Mont. 19841, 687 

P.2d 1033, 1035, 41 St.Rep. 1788, 1790-1791, we held that: 

"To establish the existence of no 

reasonable prospect of employment in the 

normal labor market, a claimant must 

introduce substantial credible evidence 

of (1) what jobs constitute his normal 

labor market, and (2) a complete 

inability to perform the employment and 

duties associated with those jobs because 

of his work-related injury." (Citations 

omitted. ) 

Once a claimant presents evidence showing there is no 

reasonable prospect of employment, "the burden of proof 

shifts to the employer to show that suitable work is 

available." Metzger, 687 P.2d at 1036. The claimant had 

little job experience and no specialized training. Her 

physician, who was in a position to have the most complete 

picture of her physical condition, testified that she should 

not return to the type of work in which she had experience. 

This evidence sufficiently showed that the claimant had no 
reasonable job prospects in the labor market. The employer 

failed to carry the subsequent burden of proof when it did 

not introduce any evidence to establish suitable work was 

available. We hold that the Workers' Compensation Court's 

decision finding the claimant permanently and totally 

disabled is supported by substantial evidence, particularly 

in light of the court's referral of the claimant for a 

vocational rehabilitation evaluation pursuant to section 

39-71-1001 et. seq., 14CA. 

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, 

and overtime is not to be considered . . . " The insurer 

argues, in the second issue, that section 39-71-116 (20) , MCA 

should be strictly construed so that the claimant's regular 

overtime hours are not considered when computing her rate of 

compensation. The claimant argues that the words "usual 

hours of employment" and "overtime" as used in this statute 

are conflicting when a person's usual hours includes overtime 

hours. The court below acknowledged the conflict and 

concluded that the statute was ambiguous because its 

reference to overtime does not indicate whether this means 

overtime earnings are not to be considered, overtime hours 

are not to be considered, or both. We agree that the statute 

is ambiguous under these circumstances. 

When construing a statute, every provision must be 

given meaning or effect if possible. State v. District Court 

of the First Judicial Dist. in and for Lewis and Clark County 

(1926), 77 Mont. 290, 250 P. 973. Further, the Court is 

under a duty to construe the Workers' Compensation Act 

liberally, section 39-71-104, MCA, and resolve ambiguity in 
favor of the injured worker. Gaffney v. Industrial Accident 

Board (1955), 129 Mont. 394, 287 P.2d 256. The 

interpretation that gives effect to all the provisions and 

also resolves the ambiguity in favor of the injured worker is 

one which includes overtime hours that are part of a 

claimant's usual hours of employment at the straight pay rate 

in the benefit calculation. Thus, overtime will generally be 

excluded in determining the usual hours of employment. 

However, if the work record shows that the employer hired the 

claimant expecting overtime work and the claimant actually 

worked overtime on a consistent and regular basis, as in the 

case at bar, then that overtime becomes part of the usual 

hours of employment. The overtime will not he included at 

the premium rate, but as extra hours at regular pay. 

We construe section 39-71-116(20), MCA to mean overtime 

premium earnings are not considered in calculating wages and 

that the phrase "usual hours of employment" excludes overtime 

hours from the calculation unless the overtime is 

consistently and regularly part of the claimant's work 

record, as in the case at bar. 

The final issue concerns the penalty assessed for the 

unreasonable conduct of the insurer. Section 39-71.-2907, MCA 

provides : 

"When payment of compensation has been 

unreasonably delayed or refused by an 

insurer, either prior or subsequent to 

the issuance of an order by the workers' 

compensation judge granting a claimant 

compensation benefits, the full amount of 

the compensation benefits due a claimant, 

between the time compensation benefits 

were delayed or refused and the date of 

the order granting a claimant 

compensation benefits, may be increased 

by the workers' compensation judge by 

20%. The question of unreasonable delay 

or refusal shall be determined by the 

workers' compensation judge, and such a 
finding constitutes good cause to 

rescind, alter, or amend any order, 

decision, or award previously made in the 

cause for the purpose of making the 

increase provided herein." 

Whether the insurer's conduct was unreasonable is a factual 

question and on appeal, a finding of unreasonableness will 

not be overturned if supported by substantial evidence. 

Wight v. Hughes Livestock Co., Inc. (Mont. 1981), 634 P.2d 

1189, 38 St.Rep. 1632. A review of the record shows 

sufficient evidence was presented to support this finding. 

We therefore will not overturn the Workers' Compensation 

Court's judgment awarding claimant the 20% penalty for the 

insurer's unreasonable actions. 

The decision of the Workers' Compensation Court is 

affirmed. 

We concur: