                                              NO.   82-263

                           I N T E SUPREME C U T O T E STATE O F D N A A
                                H           O R   F H             WTN


                                                    1983




LARRY A.      SOWNSON,

                                            Claimant and A p p e l l a n t ,




DRILCON, I N C . , Employer, and
EMPLOYERS CASUALTY CODIPANY,

                                            Defendant and Respondent.




Appeal from:          Workers' Compensation Court
                      Honorable Tim Reardon, Judge p r e s i d i n ? .

Counsel of Record:

         For A p p e l l a n t :

               C a r o l A. F l i t c h e l l , Missoula, Montana
               G a r l i n g t o n , Lohn & Robinson, Pliissoula, Montana

         For Respondent.

               David E . Bauer, G r e a t F a l l s , Fontana

                                                                --

                                          Submitted on b r i e f s : December 9 , 1982

                                                           Decided   -   June 2 , 198 3

Filed:
     Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
      Claimant,     Larry     A.     Sorenson,           appeals       from   two
post-judgment orders in Workers' 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 the matter.          After the Workers1 Compensation
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 costs were $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 for a 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
discretionary powers in setting fees, denied the motion for a
hearing.   We vacate the order and hold that an evidentiary
hearing is required.
      In entering the order setting attorney fees the court
simply held that "this court, considering the time spent, the
result achieved, and the complexity of the case, finds that a
reasonable sum to be paid is          . . .    "     After this order was
entered claimant's attorney filed a petition for a hearing,
and alleged, among other things, that counsel for opposing
sides had reached agreement on 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 in Continental 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
     discretionary with the Workers' Compensation judge,
     and the matter of allowing a hearing considering
     attorney fees is also discretionary."
We did not mean, however, that the discretion of the Workers'
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, this was an abuse of discretion.
     In Wight v. Hughes Livestock Company (Decided May 16,
1983)           Mont.    -I       - P.2d           40 St.Rep.    696 we
modified   our holding           in Continental on the attorney        fee
question and the requirement of holding a hearing.           Under our
guidelines       set    forth    in   Continental, we   recognized     the
occasional necessity for an evidentiary hearing.                Although
our holding in Continental is not 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:
