                                                  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
