Denend v. Glacier General Assurance

No. 85-72
I N T H E SUPREME COURT O F T H E S T A T E O F MONTANA
1985
JAMES HOWARD DENEND,
C l a i m a n t and R e s p o n d . e n t ,
BRADFORD R O O F I N G AND I N S U L A T I O N ,
Employer,
and
G L A C I E R GENERAL ASSURANCE COMPANY,
D e f e n d a n t and A p p e l l a n t .
A P P E A L FROM: The Workers' Compensation Court, The Honorable
T i m o t h y R e a r d o n , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
Garlington, Lohn & Robinson; B r a d l e y Luck, Missoula,
Montana
For R e s p o n d e n t :
K e n H. G r e n f e l l , Missoula, Montana
S u b m i t t e d on B r i e f s : Aug. 29, 1985
Decided: D e c e m b e r 5 , 1985
Filed:
DEC -- I.:,;
> . .
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Bradford Roofing and Insulation (Bradford), the
employer, and Glacier General Assurance Company, the
defendant, appeal the Workers' Compensation Court's award of
temporary total disability benefits to James Denend
(claimant). The issue is whether substantial evidence
supports the lower court's ruling that claimant's benefits
should be based on a forty hour work week. We affirm.
In September 1983, Tony Ludwig, a Bradford foreman,
contacted the State Job Service office in Missoula, Montana,
seeking to hire workers. Ludwig testified that he told the
Job Service that the job would be part-time seasonal work.
Regarding the work hours an applicant could expect, he stated
that they work when the work was available. He stated that
he did not tell the Job Service that the job would be forty
hours a week. The Job Service filled out a job order
relative to Bradford's request for workers. The job order
v a introduced into evidence and states that the job would
ls
entail forty hours a week and would last two to three months.
Ludwig testified that his usual hours of work per week
in the roofing business would be less than forty hours and
would fluctuate significantly depending on the weather,
scheduling, supplies and other variables. Ludwig hired
claimant to work for Bradford on a large roofing project in
Missoula. Ludwig stated that he told claimant that claimant
would work when work was available and that he did not tell
claimant that claimant would work forty hours a week. On
cross examination, JJudwig admitted that a normal work week
would be Monday through Friday, 7 : 4 5 a.m. to 4 : 3 0 p.m., with
a half hour lunch break.
Dane Bradford, the superintendent and vice-president of
Bradford Roofing and Insulation, testified by deposition. He
testified that the company's employees normally work less
than forty hours a week. He stated that temporary employees
such as claimant, work, and are told that they will work,
only on an "as needed" basis. He stated that there were no
representations made to temporary employees that they would
work forty hours a week. Dane Bradford further stated that
claimant could not expect to work forty hours a week
consistently. On cross-examination however, he agreed that
if the weather were good and everything was going smoothly on
a big project, the workers would work from 8 : 0 0 a.m. to 4 : 3 0
p.m. and would work forty hours a week.
Claimant testified that on his first day of work he
found out that he would have to join a union and that he
would work forty hours a week until the job was completed.
He repeatedly stated that his understanding was that he would
generally work forty hours each week. Claimant joined a
union as required by his new job. The union was a party to a
collective bargaining agreement with a number of roofing
contractors, one of which was Bradford. This agreement
defines a regular work day as eight hours and a regular week
as five consecutive days.
Claimant described his employment as full-time. He
began work on a Thursday and worked thirteen hours total that
day and the next. The next week, his first full week of
work, claimant worked thirty-eight hours. He worked forty
hours his second full week, thirty-two hours the next week,
and twenty-eight and one half hours the following week. He
testified that the week he worked twenty-eight and one half
hours the weather was bad, with rain, mist and clouds.
Claimant stated that, because of the weather, Bradford packed
up some of its equipment and moved it to Billings. He did
not work at all for Bradford for the next four weeks,
although he was at all times ready, willing and able to do
so. Then, in mid-November 1983, claimant worked for Bradford
twenty-three hours in one week and twenty-eight and one half
hours the following week. After that, he worked only a few
hours a week, if at all, doing odd jobs for Bradford for the
next two months. In January 1984, claimant was injured while
working for Bradford. Bradford and its insurer do not now
dispute that the injury is compensable and that claimant is
entitled to Workers' Compensation benefits.
Following claimant's injury, Sandy Diehm, Bradford's
office manager, prepared the Employer's First Report on the
injury. She routinely prepared these reports for Bradford.
The report on claimant's injury states that claimant is a
full-time employee, weather permitting. The report also
states that, weather permitting, claimant worked eight hours
a day and forty days a week. Diehm apparently meant to state
in the report that claimant worked forty hours per week. She
testified by way of deposition that claimant was a full-time
employee.
The Workers1 Compensation Court found that claimant was
hired by Bradford on a full-time basis and that claimant's
usual hours of employment were forty hours a week. The court
based its award of temporary total disability benefits upon a
forty hour work week. Bradford and its insurer appeal.
Appellants argue that claimant's temporary total
disability benefits should be based on a work week (the base
work week) of well below forty hours a week. Appellants
argue that the base work week should be computed by averaging
the hours per week that claimant worked for Bradford. The
result is a base work week of 11.7 hours per week.
Appellants charge that the lower court's finding of a base
work week of forty hours is completely erroneous.
The standard of review is clear.
"Our function in reviewing a decision of
the Workers' Compensation Court is to
determine whether there is substa.ntia1
evidence to support the findings and
conclusions of that Court. We cannot
substitute our judgment for that of the
trial court as to the weight of the
evidence on questions of fact. Where
there is substantial evidence to support
the findings of the Workers' Compensation
Court, this Court cannot overturn the
decision."
Byrd v. Ramsey Engineering (Mont. 1985), 701 P.2d 1385, 1386,
42 St.Rep. 991, 992; quoting Steffes v. 93 Leasing Company
(1978), 177 Mont. 83, 86, 580 P.2d 450, 452; citing ~ o n dv.
St. Regis Paper Co. (1977), 174 Mont. 417, 571 P.2d 372-
In the instant case, there was evidence that claimant's
usual hours of employment for Bradford were forty hours a
week. This evidence consists of claimant's testimony, the
Job Service job order, the Employer's First Report of injury,
the collective bargaining agreement definitions of regular
work day and regular week, and the admissions of Tony Ludwig
and Dane Bradford. There was conflicting evidence tending to
establish that an employee such as claimant would generally
average less than forty fours a week. However, it is the
province of the lower court to weigh and balance the
evidence. Here, there is substantial evidence to support the
lower court's finding of a base work week of forty hours.
Therefore, we affirm that decision.
Appellants argue not only that we should use an
averaging formula to establish claimant's base work week, but
that we are required to do so under 5 39-71-701 and
§ 39-71-116 (20), MCA.
Under § 39-71-701, MCA, a temporarily totally disabled
employee receives Workers' Compensation benefits which are
". . . 66 2/3% of the wages received at the time of the
injury." 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 . . . " From this definition of wages, appellants cite
and emphasize the words "average gross earnings received."
These words, appellants argue, require that a court average
the hours an employee has worked. We find that appellants'
emphasis is misplaced. The phrase appellants emphasize is
modified by the words "usual hours of employment in a week."
The lower court here found that claimant's usual hours of
employment were forty hours a week. This finding was ba.sed
on substantial evidence.
Finally, we decline appellants ' invitation to overturn
this Court's ruling in Hutchison v. General Host Corporation
(1978), 178 Mont. 81, 582 P.2d 1203. The Hutchison Court
declined to use either of two averaging formulas to fix the
employee's base work week. One formula advanced in Hutchison
is similar to the formula advanced in the instant case. What
this Court stated in Hutchison bears repeating.
. . . neither of the averaging methods
offered by Liberty Mutual is required for
determining the weekly compensation.
Section 92-701 [the predecessor to the
present S 39-71-701, MCA] is not a wage
loss statute; rather it is designed to
provide a form of insurance to a person
who is on temporary total disability.
Hutchison, 178 Mont. at 87, 582 P.2d at 1207. That
proposition is still accurate as applied to our present
statute, 5 39-71-701, MCA.
Appellants, in their reply brief on appeal, advanced a
constitutional argument which had not been mentioned in
either appellants' opening brief or in respondent's brief.
Respond-ent/claimant made a motion to this Court to
strike appellants' reply brief, in its entirety, as not
complying with Rule 23 (5)(c) of the Montana Rules of
Appellate Civil Procedure. That rule states:
Reply brief. The appellant may file a
brief in reply to the brief of the
respondent. The reply brief must be
confined to new matter raised in the
brief of the respondent. No further
briefs may be filed except with leave of
court.
Rule 23 (5) (c), M.R.App.Civ.P. On September 12, 1985, this
Court filed an order denying respondent's motion to strike
stating that this Court would not consider any portion of the
reply brief which is not in conformance with Rule 23 (5)(c),
Therefore, this opinion does not consider the
constitutional argument appellants first advanced in their
reply brief.
Affirmed.
. -
Justice "
1
We concur:
A