NO. 82-263 

IN THE SUPREME COURT OF THE STATE OF DWNTANA 

1983 

LARRY A. SOWNSON, 

Claimant and Appellant, 

DRILCON, INC., Employer, and 

EMPLOYERS CASUALTY CODIPANY, 

Defendant and Respondent. 

Appeal from: Workers' Compensation Court 

Honorable Tim Reardon, Judge presidin?. 

Counsel of Record: 

For Appellant: 

Carol A. Flitchell, Missoula, Montana 

Garlington, Lohn & Robinson, Pliissoula, Montana 

For Respondent. 

David E. Bauer, Great Falls, Fontana 

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Submitted on briefs: December 9, 1982 

Decided - June 2 , 19 8 3 

Filed: 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Claimant, Larry A. Sorenson, appeals from two 

post-judgment orders in Workers' Compensation Court involving 

the amount of the attorney fee awarded and the costs incurred 

in pursuing his successful claim for compensation and denial 

of a hearing on the matter. After the Workers1 Compensation 

Court awarded compensation to claimant, claimant's attorney 

filed a detailed affidavit setting forth a claim of attorney 

fees in the amount of $11,372 arrived at on the basis of a 

$60 per hour charge. The claimed costs were $3,491.52. The 

Workers1 Compensation Court, without holding a hearing, 

awarded an attorney fee of $5,750 and set the recoverable 

costs at $2,951.53. Upon entry of this order claimant's 

attorney petitioned the court for a hearing on the setting of 

an attorney fee and costs. Among other things, the petition 

alleged that with the exception of $1,340.50, counsel for the 

employer and insurance company had agreed to the 

reasonableness of the attorney fee and the costs. With no 

explanation given, the Court, referring only to its 

discretionary powers in setting fees, denied the motion for a 

hearing. We vacate the order and hold that an evidentiary 

hearing is required. 

In entering the order setting attorney fees the court 

simply held that "this court, considering the time spent, the 

result achieved, and the complexity of the case, finds that a 

reasonable sum to be paid is . . . " After this order was 

entered claimant's attorney filed a petition for a hearing, 

and alleged, among other things, that counsel for opposing 

sides had reached agreement on the amount of the attorney fee 

and recoverable costs. Counsel for the employer and 
insurance company wrote a letter to the court denying any 

agreement. 

In refusing to hold a hearing or reconsider the order 

setting attorney fees and costs, the court relied on our 

language in Continental Ins. Co. v. Horton (1980), Mont. 

, 613 P.2d 1011, 1013, 37 St.Rep. 1244, 1246, where we 

stated that: 

"The method used to fix attorney fees is 

discretionary with the Workers' Compensation judge, 

and the matter of allowing a hearing considering 

attorney fees is also discretionary." 

We did not mean, however, that the discretion of the Workers' 

Compensation Court was unbounded. Here the court awarded a 

fee of $5,750 without ever stating why it disregarded the 

claim of the attorney to a fee of $11,372, based on an hourly 

charge of $60. The order reducing costs recovered was also 

not explained. The error of the court is compounded here 

because a factual dispute exists as to whether opposing 

counsel had agreed to the amount of the attorney fee and the 

amount of costs. This factual dispute was never resolved 

before the court entered its order denying the motion for a 

hearing. Clearly, this was an abuse of discretion. 

In Wight v. Hughes Livestock Company (Decided May 16, 

1983) Mont. -I - P.2d 40 St.Rep. 696 we 

modified our holding in Continental on the attorney fee 

question and the requirement of holding a hearing. Under our 

guidelines set forth in Continental, we recognized the 

occasional necessity for an evidentiary hearing. Although 

our holding in Continental is not directly applicable to this 

factual situation, the fact remains that the issues involved 

here can be resolved only by an evidentiary hearing. Under 

Wight whatever fee is awarded must be paid entirely by the 

insurance carrier. 
The orders of the Workers' Compensation Court are 

vacated and. the cause remanded for an evidentiary hearing. r, 

We concur: