Robertson v. Aero Power-Vac Inc.

NO. 95-089
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1995
DAVID ROBERTSON,
Petitioner and Appellant,
v.
AERO POWER-VAC, INC., EmplOyeX,
and
STATE COMPENSATIONMUTUAL
INSURANCE FUND,
Respondents and Respondents.
APPEAL FROM: Workers' Compensation Court, State of Montana,
The Honorable Mike McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Rex Palmer; Attorneys, Inc., Missoula, Montana
For Respondents:
Daniel J. Whyte, Legal Counsel, State Compensation
Insurance Fund, Helena, Montana
Submitted on Briefs: June 15, 1995
Decided: July 25, 1995
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
David Robertson appeals from the decision and order of the
Workers' Compensation Court which established his temporary total
disability rate at $203.67 and denied his entitlement to attorney
fees and a penalty. We affirm.
The issues on appeal are:
Did the Workers' Compensation Court err in inter-
&eting 5 39-71-123(3) , MCA (1991), and applying it to
the facts of this case?
2. Did the Workers' Compensation Court err in failing to
award attorney fees and impose a penalty?
The underlying facts in this case are undisputed. David
Robertson (Robertson) was hired by Aero Power-Vat, Inc. (Aero) for
a cleaning project to be performed at Stone Container in Missoula,
Montana. Aero was insured by the State Compensation Mutual
Insurance Fund (State Fund) under Plan III of the Workers'
Compensation Act.
The terms, conditions and wages regarding Robertson's
employment were contained in a contract (Contract) executed by both
Robertson and Aero. The Contract specified that work shifts would
be 12 hours and that per hour pay would be $6.50 for straight time
up to 40 hours a week and time-and-one-half for hours worked in
excess of 40 hours in any work week. The duration of the project
was not specified. At the time Robertson was hired, however, Aero
stated orally that the cleaning project "could last 5 to 6 days"
and that, subject to satisfactory performance, Robertson was
expected to work the entire project.
2
Robertson was injured in the course and scope of his
employment with Aero on June 9, 1993. The State Fund accepted
liability for the injury and paid him temporary total disability
benefits based on a 40-hour work week at $6.50 per hour.
Robertson petitioned the Workers' Compensation Court for a
determination that his bi-weekly benefit rate should be calculated
on the basis of a 72-hour work week; the rate was based on his
contention that he was hired to work six 12-hour shifts. He also
requested attorney fees and a penalty, contending that the State
Fund was unreasonable in refusing to recognize the number of hours
for which he was hired when calculating his benefit rate. The
State Fund responded that Robertson had not been hired to work more
than 40 hours per week and denied that its actions had been
unreasonable.
The Workers' Compensation Court concluded that Robertson was
entitled to temporary total disability benefits based on a 47-hour
work week. Based on its finding that the State Fund's position was
not unreasonable, the court also concluded that Robertson was not
entitled to attorney fees or a penalty. Robertson appeals.
1. Did the Workers' Compensation Court err in inter-
preting 5 39-71-123(3), MCA (19911, and in applying it to
the facts of this case?
Interpreting 5 39-71-123(3), MCA (1991), the Workers'
Compensation Court concluded that Robertson's temporary total
disability rate should be based on a 47-hour work week. Robertson
contends that the court erred because the statute, properly
interpreted and applied, entitles him to a benefit rate based on a
3
72-hour work week. We review the Workers' Compensation Court's
conclusions of law to determine whether they are correct. David v.
State Compensation Mut. Ins. Fund (1994), 267 Mont. 435, 438, 884
P.2d 778, 780.
An injured employee's wages for workers' compensation benefit
purposes ordinarily are calculated on the basis of "the average
actual earnings for the four pay periods immediately preceding the
injury . . . .I( Section 39-71-123(3), MCA (1991). When an
employee's term of employment for the same employer is less than
four pay periods, however, the employee's wages "are the hourly
rate times the number of hours in a week for which the employee was
hired to workK.1 " Section 39-71-123(3) (a), MCA (1991).
It is undisputed that subsection (3) (a) of § 39-71-123, MCA
(1991), applies here, since Robertson's term of employment with
Aero was less than four pay periods. Robertson's hourly rate also
is undisputed. Thus, under the statute, the only question before
the Workers' Compensation Court was the number of hours in a week
for which Robertson was hired to work.
Robertson asserts that it is undisputed that he was hired to
work five to six 12-hour shifts. The Contract states that shifts
will be 12 hours in length. This identification of the length of
work shifts, together with Robertson's assertion that he was told
that the project would last five to six days and that he was
expected to work the entirety of the project, forms the basis for
his claimed entitlement to temporary total disability benefits
based on a 72-hour work week.
4
The record, however, does not support Robertson's contentions.
As noted above, the Contract does not state the duration of the
cleaning project at Stone Container. Moreover, the agreed facts
submitted to the Workers' Compensation Court reflect that Robertson
was told at the time of hire that the "project could last 5 to 6
days." (Emphasis added.) Further, in an interview with the State
Fund's investigator, Aero's president stated that Robertson was
told when hired that the shifts would be "up to 12 hours" and that
the job "might last" five to six days.
The record also establishes that, in fact, the project lasted
only four days. No employee worked for more than four days on the
project and no employee who worked on the project from beginning to
end worked more than 47 hours
On the basis of this record, the Workers' Compensation Court
properly determined that Robertson was hired for the duration of
the project, rather than for a guaranteed number of shifts or
hours, and that the five to six day period mentioned at the time of
the hire was the "outside estimate" of that duration. The court
also properly determined that Robertson was hired to work 47 hours
during the week of the project. Thus, we conclude that the
Workers' Compensation Court did not err in interpreting 5 39-71-
123 (3) (a), MCA (1991), and in applying it to the facts of this
case.
2. Did the Workers' Compensation Court err in failing to
award attorney fees and impose a penalty?
Section 39-71-612(l), MCA (1991), authorizes an award of
attorney fees where the amount of compensation is disputed and the
5
amount granted by the Workers' Compensation Court is greater than
the amount paid. However, such an award "may only be made if it is
determined that the actions of the insurer were unreasonable."
Section 39-71-612(2), MCA (1991). The 20% penalty authorized by §
39-71-2907, MCA (1991), also is available only in the event the
insurer's refusal to pay is unreasonable.
Here, the Workers' Compensation Court awarded Robertson
temporary total disability benefits in an amount greater than the
State Fund was paying, based on its determination that his benefits
should be calculated on a 47-hour work week rather than the 40-hour
week the State Fund utilized. Thus, the threshold factor upon
which attorney fees can be awarded under § 39-71-612, MCA (1991),
is met here. The court found, however, that the State Fund had not
been unreasonable and, therefore, denied both attorney fees and a
penalty.
Robertson challenges the court's determination that the State
Fund was not unreasonable. Reasonableness is a question of fact.
Stordalen v. Ricci's Food Farm (1993), 261Mont. 256, 258, 862 P.2d
393, 394. We review the Workers' Compensation Court's findings of
fact to determine whether they are supported by substantial
evidence. Stordalen, 862 P.2d at 394.
At the outset, it is clear from our discussion of the first
issue that Robertson's claimed entitlement to benefits based on a
72-hour work week was properly rejected by the Workers'
Compensation Court. Thus, the State Fund's denial of that claimed
entitlement could not have been unreasonable.
6
Moreover, with regard to the State Fund's use of a 40-hour
work week in calculating Robertson's benefits, the record reflects
that a number of the employees who worked on the Stone Container
project worked less than 40 hours over the duration of the project.
Indeed, the record establishes that employees who worked on the
project averaged fewer than 40 hours and only three of those
employees worked more than 40 hours over the project's duration.
We conclude that substantial evidence supports the Workers'
Compensation Court's finding that the State Fund's position was not
unreasonable. Therefore, we conclude that the court did not err in
failing to award attorney fees and impose a penalty.
AFFIRMED.
We concur:
Justices