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