NO. 82-263 INTHE SUPREME COURT OF THE STATE OFDWNTANA 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, Judgepresidin?. Counsel of Record: For Appellant: CarolA. Flitchell, Missoula, Montana Garlington, Lohn & Robinson, Pliissoula, Montana For Respondent. David E. Bauer, Great Falls, Fontana

-- Submittedon briefs: December 9, 1982 Decided

## - June 2

## , 1983 Filed:Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Claimant, Larry A. Sorenson, appeals from two post-judgment orders inWorkers' 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 thematter. After the Workers1Compensation 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 costswere $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 fora 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 discretionarypowers in setting fees,denied themotion fora hearing. We vacate the order and hold that an evidentiary hearing is required. In entering the order setting attorney fees the court simplyheld that "thiscourt,consideringthe time spent, the result achieved,and the complexity of the case, finds that a reasonable sum to be paid is 

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# ." After this order was entered claimant's attorney filed a petition for a hearing, and alleged, among other things, that counsel for opposing sideshad reached agreementon 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 inContinental 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 discretionarywith the Workers' Compensation judge, and the matter of allowing a hearing considering attorney fees is alsodiscretionary." We did notmean, however, that the discretion of theWorkers' 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, thiswas an abuse of discretion. In Wight v. Hughes Livestock Company (Decided May 16, 1983) Mont. P.2d 40 St.Rep. 696 we -I 

### - modified our holding in Continental on the attorney fee questionand the requirementof holding ahearing. Under our guidelines set forth in Continental, we recognized the occasional necessity for an evidentiary hearing. Although ourholding inContinental isnot 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: