                                                   No.    87-182

                    LN THE SUPREME COURT O F T H E S T A T E O F MONTANA
                                                         1987




ALAN M I L E N D E R ,

                         C l a i m a n t and R e s p o n d e n t ,
           -vs-

J O H N C A R P E N T E R , d / b / a ROCKY MOUNTAIF?
RODEO, E m p l o y e r ,
           and
S T A T E COMPENSATION I N S U P A N C E F U N D ,

                         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 Timothy
                         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 :

                         Browning,        Kaleczyc,         Ferry      & Hoven;       O l i v e r Goe, Helena,
                         Montana

           For R e s p o n d e n t :

                         E d w a r d A.   C u m n ~ i n g s , b!issoula,     Montana




                                                         S u b m i t t e d on B r i e f s :   Oct.   1, 1987

                                                            Decided:         D e c e m b e r 31,   1987


Filed:




                                                         Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.


     State Compensation Insurance Fund appeals an order from
the Workers' Compensation Court awarding claimant $7,146.09
for temporary total benefits, 20 percent penalty on that
amount and attorney fees.
     We affirm the decision of the Workers' Compensation
Court.
     The issues presented for our review are as follows:
     1. Did the Workers' Compensation Court err in awarding
temporary total disability benefits from the date of
claimant's injury, when he continued to receive an amount
equal to his preinjury salary although not actually working?
     2. If entitled to such benefits, is the correct amount
properly based on combined temporary total benefits from both
of claimant's employments or solely on his employment with
the insured?
     3. Did the Workers' Compensation Court err in awarding
a penalty pursuant to S. 39-71-2907, MCA?
     4. Did the Workers' Compensation Court err in holding
that claimant was entitled to attorney fees pursuant to 5
39-71-611, MCA?
     The uncontested facts are as follows:
     Claimant, Alan Milender, was severely injured August 10,
1985, in Superior, Montana, when gored by a bull. Both of
Milender's legs sustained compound fractures, one of which
later developed a bone infection. At the time of the injury,
claimant was working in a temporary part-time capacity for
John Carpenter d/b/a Rocky Mountain Rodeo. His job consisted
of tending rodeo stock for approximately two hours a day for
two days.
     Since 1975, until he was injured, claimant was employed
full-time for Sletten Construction Company working as a
working construction foreman.    At the time of his injury,
claimant was earning $600 per week computed at a rate of $15
per hour for a 40 hour work week.      Claimant received this
amount regardless of actual hours worked.
     Milender received weekly Workers' Compensation temporary
total benefits of $28.33 from August 11, 1985, through
October 15, 1986, based on his employment with Rocky Mountain
Rodeo. From the date of his injury until February 15, 1986,
Sletten Construction Company continued to pay claimant $600
per week with usual state and federal tax withholdings. The
$600 per week was discontinued on February 15, 1986, because
it became evident that claimant would not be able to return
to work in the foreseeable future.
     On April 23, 1986, Milender submitted a letter to the
State Fund requesting benefits of $293 per week. This would
be the amount owed if his Sletten Construction wages were
also used in the basis for computing temporary total
benefits.   State Fund denied his request for an increase on
June 18, 1986.    On June 26, 1986, claimant was threatened
with forclosure on his home. On October 15, 1986, State Fund
agreed to pay $293 per week retroactively from February 15,
1986 and agreed that for the purpose of computing benefits,
wages from Sletten Construction would be included in the
basis amount.
     A hearing was held to determine whether claimant was
entitled to $293 per week from August 11, 1985, the date of
injury, not just from February 15, 1986, the date Sletten
discontinued paying Milender $600 per week.
     The hearing examiner concluded, and the Workers '
Compensation judge adopted the judgment that claimant should
have received full benefits from August 11, 1986, as well as
an award of attorney fees and a 20 percent penalty against
conclusions on conflicting evidence, this Court will not set
them aside unless clearly erroneous. It is not our function
to determine whether there is substantial credible evidence
to support contrary findings.      Currey v. 10 Minute Lube
 (Mont. 1987), 736 P.2d 113, 115, 44 St.Rep. 790, 792. We
will not disturb this decision.
      Sletten's president testified further that although he
considered Milender an employee as long as he was being paid,
the payments were in no way intended to be in lieu of
Workers' Compensation benefits. In this case, Sletten is not
even responsible for Milender's benefits. On occasion, when
injured     Sletten   employees   were    receiving   Workers'
Compensation benefits, Sletten continued to pay an amount
equal to their wages as a gesture of good will and good.
business practice.
      To adopt the argument of the State Fund in this case
would be to grant a benefit to the State Fund at Milender's
expense.    Sletten did not intend to benefit State Fund by
paying Milender $600 per week for six months.        Sletten's
payments were gratuitous and are not a valid reason for
reducing Milender's benefits to $28.33 per week during the
six month period.
      We hold that the Workers' Compensation Court did not err
by concluding that payments made by Sletten to Milender from
August 11, 1985, through February 15, 1986, were not "wages."

     Is the amount of benefits correctly computed fron a
basis of just Milender's employment with Rocky Mountain
Rodeo, or from a combination of both employments?
     Milender's employment with Sletten Construction was
terminated due to injuries sustained while working for Rocky
Mountain Rodeo. He was unable to perform duties associated
with his position as working foreman.          As previously
State Fund on the amount owed from August 11, 1985, through
February 15, 1986. From this judgment, State Fund appeals.

     Is Milender entitled to temporary total benefits from
the date of his injury even though he continued to receive
$600 per week from an employer who is not a party to this
lawsuit?
     The parties agree that Milender's wages from two
employments, the one at Sletten Construction, and the other
for Rocky Mountain Rodeo, should be combined for the purpose
of computing the basis of Milender's benefit rate.       The
injury suffered while tending rodeo stock made it impossible
for Milender to work at either job.
     The general rule is that earnings from concurrent
     employments may be combined if the employments are
     sufficiently similar so that a disabling injury at
     one employment would necessarily disable the
     employee in respect to the other employment.
Harmon v. State Comp. Insurance Fund (Mont. 1986) , 716 P. 2d
605, 607, 43 St.Rep. 514, 516.
     State Fund has agreed to make payments for the time
period   after Sletten Construction discontinued giving
Milender $600 per week. At issue is a period of six months,
between August 11, 1985, and February 15, 1986, when Milender
was not able to work due to his injuries. State Fund denies
liability for those six months, claiming that Milender does
not fall under the definition of temporary total disability
during that time.
     Section 39-71-116 (19), MCA (1985), defining tempera-ry
total disability as:
     ...   a condition resulting from an injury as
     defined in this chapter that results in total loss
     of wages and exists until the injured worker is as
     far restored as the permanent character of the
     injuries will permit . . .
"Wages" are defined in S 39-71-116 (20), MCA (1985), as " [tlhe
average gross earnings received by the employee at the time
of the injury for the usual hours of employment in a
week . . ."   (Emphasis added.)
     In Gee v. Cartwheel Restaurant (1982), 197 Mont. 335,
642 P.2d 1070, this Court held that wages which were received
by an employee from one employer while he continued to
receive his usual monthly salary from a concurrent employer
were "gratuitous wages." Benefits for disabilities are based
on the usual hours of employment of the worker. See Lave v.
School Dist. No. 2 (Mont. 1986), 713 P.2d 546, 43 St.Rep.
165.
     Likewise, this Court in Gee emphasized that §
39-71-116 (20), MCA (1985), only covered amounts received for
usual weekly employment. When no work was performed, amounts
received were considered to be gratuitous.
     From August 11, 1985, through February 15, 1986, Sletten
Construction paid Milender $600 per week for no work done
because they hoped that he would return to work for them when
he recovered.    Sletten's president testified that Milender
was considered a key employee. It was worth $600 per week to
the company to have him as an employee when well.       On one
occasion, Sletten asked Milender to check on a job site near
his home. Milender testified that he drove by the job site
two times, without getting out of his vehicle, and responded
back to Sletten as to the status of the construction project.
"Usual hours of employment" does not mean strict adherence to
actual work for every hour compensated. Denend v. Bradford
Roofing (Mont. 1985), 710 P.2d 61, 42 St.Rep. 1778.         The
Workers' Compensation Court did not conclude that Milender's
quick drive by a job site two times in a six month period
constituted actual performance of his          "usual weekly
employment."    When the lower court bases its findings and
discussed, it is entirely appropriate for purposes of
benefits calculation to combine the wages of concurrent
employments when both are affected by an injury.
     We hold that the Workers' Compensation Court did not err
in calculating Milender's benefits from August 11, 1985, at a
rate of $293 per week.
                            111.
     Was a 20 percent penalty on the amount owed between
August 11, 1985, and February 15, 1986, properly awarded?
     A penalty pursuant to 5 39-71-2907, MCA, is properly
awarded when an insurer unreasonably delays or refuses to pay
benefits owed.   Withholding or a delay of payment must be
unreasonable.    Unreasonableness is a question of fact.
Paulsen v. Bozeman Deaconess Foundation Hospital (Mont.
1984), 673 P.2d 1281, 1283, 41 St.Rep. 62, 64. On appeal, a
finding of unreasonableness will not be overturned if
supported by substantial evidence.    Coles v. Seven Eleven
Stores (Mont. 1985), 704 P.2d 1048, 1052, 42 St.Rep. 1238,
1242.
      It is not this Court's job on review to determine
whether there was substantial credible evidence to support an
opposing position.   The State Fund refused to pay ~ilender
any amount above $28.33 per week from August 11, 1985,
through October 15, 1986. In October, State Fund agreed to
pay    Milender the   correct amount of      $293 per week
retroactively only from February 15, 1986, not from the date
of his injury. This substantially supports the imposition of
a penalty.
     Me affirm the Workers' Compensation Court on the issue
of a 20 percent penalty.
                             IV.
     Is claimant entitled to attorney fees?
     Section 39-71-611, MCA, states:
     In the event an insurer denies liability for a
     claim for compensation or terminates compensation
     benefits   and   the  claim   is   later  adjudged
     compensable by the workers ' compensation judge or
     on appeal, the insurer shall pay reasonable costs
     and attorneys' fees as established by the workers'
     compensation judge.
     State Fund denied liability for Milender's claim for
benefits for the time period between August 11, 1985, and
February 15, 1986. The Workers' Compensation Court and this
Court have both "adjudged" that claim compensable.
     We affirm the award of reasonable attorney fees.
     Affirmed on all issues.




We Concur:
Mr. Justice L. C. Gulbrandson dissenting.

      I respectfully dissent to the affirmance of the award
of temporary total benefits for the period from the date of
injury to the date of termination of claimant's employment
with Sletten Construction Company, February 15, 1986.
Because I believe that award to be in error I also disagree
with the affirmance of a twenty percent penalty and attorney
fees.
      The majority has misinterpreted this Court's holding in
Gee v. Cartwheel Restaurant, supra, by quoting "this Court
held that wages which were received by an employee from one
employer while he continued to receive his usual monthly
salary from a concurrent employer were 'gratuitous wages. I "
In that case, this Court reversed the increased award of
temporary total benefits and stated:
           Applying even the most liberal statutory
           construction favoring the claimant, to
           conclude that his average gross earnings
           should include wages from this job at
           which he is no longer employed does not
           fairly or reasonably represent wages lost
           from   his   usual    weekly   hours   of
           employment.   The amount of compensation
           must bear some reasonable relation to the
           loss sustained on account of disability.


          In essence, the Workers' Compensation
          Court has determined that the claimant is
          entitled to temporary total disability
          benefits based upon lost wages for two
          concurrent jobs, while the evidence in no
          way establishes that the claimant was
          actually concurrently employed at the
          Book Store or had suffered a loss of Book
          Store wages.   To hold that the claimant
          should receive benefits based upon more
          weekly hours tha-n he has actually ever
           worked does not represent compensation
           based     upon    his  usual     weekly
           hours of employment.     (Emphasis   in
           original.)
Gee, 642 P.2d at 1071, 1072. Claimant Gee was found by this
Court to be employed by one employer at the time of his
injury, and the claimant here obviously had two employers at
the time of his injury.
      In my view the issue is whether the employer-employee
relationship between Sletten Construction Company and the
claimant continued until February 15, 1986 and if it did, did
the claimant suffer a total loss of wages to be entitled to
benefits based upon two employments under      39-71-116(19),
MCA (1985).
      In this case, the critical evidence regarding the
payment of $600 per week by Sletten Construction Company from
the date of injury to February 15, 1986, is contained in the
depositions of the claimant and Robert Robertson, president
of Sletten Construction Company, and this Court is entitled
to judge the weight to be given such record testimony.
      The evidence in this case is undisputed that Sletten
Construction Company had a corporate policy of paying
disabled supervisory personnel, such as the claimant, full
wages until such time as it was determined that the disabled
supervisor would be unable to return to work within a
reasonable period of time.        The claimant had been a
supervisor with Sletten since 1978 and, at the time of the
injury on his concurrent two-day job, was paid $600 per week
whether he worked no hours a week or sixty hours a week. The
testimony is undisputed that Sletten Construction Company
paid the claimant his full $600 per week salary, less
withholding for federal and state income tax and for Social
Security purposes until February 15, 1986 at which time the
corporate president made the decision to terminate claimant
as an employee.   Sletten Construction Company further paid
workers1 compensation premiums based upon the salary paid to
claimant until February 15, 1986. The claimant attended the
company Christmas party in 1985, and readily inspected a
bridge construction site on several occasions prior to
February 15, 1986, at the request of his employer without
claiming additional reimbursement.
      In my opinion, for the majority to hold, in effect,
that the $600 weekly salary benefits were gratuitous and that
the claimant suffered a total loss of wages from Sletten
Construction Company from August 10, 1985 until February 15,
1986 is unrealistic and ignores normal corporate business
practices and specifically the corporate practice of Sletten
Construction Company.    See, Larson, Workmen's Compensation
Law, S 57.42:
           An occasional court will say that such a
           payment is to be deemed a gratuity, but
           this, in the absence of special facts
           indicating   a   charitable motive,    is
           unrealistic.    In fact, in the case of
           corporate employers, it is doubtful that
           the management has the right to give away
           the corporationls money as gratuities
           even if it wanted to.     As a matter of
           corporation law, it would have to be
           assumed that the payment was made in
           discharge of a legal obligation, if any
           such actual or potential obligation could
           be found that would reasonably account
           for the expenditure.
      The effect of the majority decision is to award the
claimant temporary total disability benefits which, combined
with the salary received from Sletten Construction Company,
result in a post-injury monthly income of $3,572, far in
excess of his reqular salary of $2,400. This result in my
judgment, does not comply with the - requirement that "the
                                    Gee
amount of compensation must bear some reasonable relation to
the loss sustained on account of disability."
      I would reverse upon the basis that the award tends to
make the Workers' Compensation system unworkable, and is not
in accord with $$ 39-71-116(19), MCA (1985) and the previous
holdings of this Court.
