                                    NO.      92-115
            IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                          1992


LON GREGORY,
            Claimant,      Respondent       and Cross Appellant,
     -vs-
MICHAEL BAILEY & SONS LOGGING,
            Employer,
     and
STATE COMPENSATIONMUTUAL INSURANCE FUND,
            Defendant      and Appellant.



APPEAL FROM:      The Workers' Compensation Court,
                  The Honorable Timothy W. Reardon,                 Judge presiding.


COUNSEL OF RECORD:
            For Appellant        and Employer:
                  Laurence       Hubbard,     Attorney     at Law, Helena,      Montana
            For Respondent        and Cross Appellant:
                  Robert     K. Ogg, Grenfell          & Ogg, Missoula,       Montana


                                      Submitted       on Briefs:     August    20, 1992
                                                         Decided:    November 12, 1992



                             1
                                          Clerk
Justice        Fred 3. Weber delivered                            the Opinion                of the Court.

          This is an appeal                   from a decision                   by the Workers'            Compensation
Court      awarding            claimant            compensation                 based upon his                entire        work
history      with        the employer.                     We affirm.
          The issue           on appeal            is whether            the Workers'               Compensation           Court
erred       in     unreasonably                    calculating                  claimant's            compensation             by
considering             his     entire            work history                 with     the    employer         instead        of
only      the immediate                preceding            four        pay periods.
          Claimant,             Lon         Gregory          (Gregory)                was     hired      as     a        backhoe
operator         and laborer                by Michael           Bailey         and Sons Logging               (Bailey)        in
July      1989.           Bailey            is     in      the      logging            business         which       involves
seasonal         work.          The crew of approximately                               40 employees            usually        do
not     work       in     the        spring         and      fall         of      the       year.        Most       of     these
employees          return           after        layoff.           Employees            are paid        by the month.
          Gregory        worked             from July            1989 until             mid-February            1990,       when
seasonal         weather            conditions            prevented            work.        He returned         to work on
June 1,          1990.         It     is uncontested                    that      Gregory           was injured           during
the     course          of his        employment             on August                10,     1990.      On August            29,
1991,      Gregory            filed         a petition              for        hearing         before     the       Workers'
Compensation                  Court          alleging             that          State         Compensation                Mutual
Insurance         Fund (State                Fund) improperly                   calculated            his "wages" under
§ 39-71-123,             MCA (1989).                    A hearing          was held           on November 4, 1991.
While      responsibility                   for     the     injury         was uncontested,                   the Workers'
Compensation             Court         had to calculate                    the average               weekly     salary        for
the purpose             of determining                   compensation.


                                                                    2
           On January                      13,      1992,           the         Workers'                   Compensation                           Court             issued

its      Findings               of        Fact,       Conclusions                         of Law,               and Judgment.                            The court

determined              that              Gregory's               average                 weekly           wage for                    purposes                of     § 39-

71-123,              MCA             (1989),            was          $312.00                    per           week,               with            a      resulting

temporary              total               disability                rate             of         $208.10               per             week.            The           court

calculated               the              compensation                   by using                  all          weekly                 earnings                 for      the

entire          length               of     time        in     which             Gregory                 worked              for         Bailey.

           The        State               Fund      appeals                this            determination.                                    Gregory                cross-

appealed             with            the      State          Fund          responding                      to       the           cross-appeal.

           State            Fund             argues               that            the            Workers'                    Compensation                             Court

misapplied                  5        39-71-123(3),                       MCA,             and         that            it          is         appropriate                     to

adjust          a claimant's                       wage determination                                 to        account                 for       the      seasonal

nature          of his            employment                 where              the        job      is        not          inherently                   full          time.
Further,              State               Fund      argues           that          a term                of      employment                       does          not      end
when a break                    in        employment              with           the        same employer                              occurs           because              of

weather          conditions                       or for          other           reasons                of      forced                 idleness.                     State
Fund,          therefore,                    contends               that          the            actual               wages             earned             over          the
entire          span        of            employment                should                include             off          time.

           Gregory              argues             also       that         the Workers                     ' Compensation                             Court           erred

in       its         calculations.                            Gregory                     contends                  that               for        purposes                    of
determining                 compensation                      benefits,                     the       court                should             have        relied              on

the      hourly          calculations                        of      subsection                       (a)        of         5 39-71-123(3),                            MCA.

Subsection                  (a)           directs            that          if      the           "term           of         employment"                         for      the

same employer                        is    less       than          four         pay periods,                         a full             time          employee's

wages          are     computed                   by multiplying                          the      hourly                  rate         times           the         number
of    weekly            hours               for     which            the         employee                  was hired                         to    work.               Such


                                                                                      3
calculation,         argues       Gregory,         would        mean that      during         those      weeks
within     the preceding          four     pay periods           in which he did not work for
Bailey     because of the weather,                  the court       should       have used the $400
weekly     figure     to compute his              benefits.
         This    case    revolves          around         the     use   and      interpretation                of
several     statutes.          Section       39-71-701,           MCA, states:
          (1) . . . a worker          is eligible   for temporary      total
         disability  benefits    when the worker suffers      a total    loss
         of wages as a result        of an injury   and until   the worker
         reaches maximum healing        . . .
          (3) Weekly compensation        benefits  for injury     producing
         temporary total    disability     shall be 66 2/3% of the wages
         received at time of injury         . . .
Section     39-71-123,         MCA, states:
         (1) "Wages" means the gross remuneration        paid in money,
         or in a substitute   for money, for services rendered by an
         employee . . .
          (3) For compensation benefit   purposes, the average actual
         earnings for the four pay periods immediately           preceding
         the injury   are the employee's wages, except if:
          (a) the term of employment for the same employer is less
         than four pay periods,    in which case the employee's wages
         are the hourly rate times the number of hours in a week
         for which the employee was hired to work: or
          (b) for good cause shown by the claimant,      the use of the
         four    pay periods     does not     accurately    reflect      the
         claimant's   employment history   with the employer, in which
         case the insurer    may use additional     pay periods.
         The Workers'        Compensation           Court       determined       that        pursuant         to 3
39-71-123(3)(b),             MCA, sufficient              cause     existed          for     the      court     to
consider        additional        pay periods          beyond the         four       mentioned          in the
main body of subsection                  three.       We agree.
         The Workers'        Compensation           Court concluded           that         using Gregory's
suggested        interpretation            and formula            would      provide          him with          an
average     monthly      amount of money higher                    than the total             sum of money
earned in any of the four                 preceding         months before            his     injury      except
                                                      4
one.            The court                 found          this      to      be unfair.                    Likewise,                     the      Workers'

Compensation                       Court            determined                   that           use          of          the          State           Fund's

calculations                      failed            to     accurately                  take       into            account              the      seasonal

nature            of     the       logging               business             by including                    off         time.              Therefore,

for        the         sake        of      total           fairness,                   the      court             considered                  Gregory's

entire            employment                history             with      Bailey              which      constituted                     59 weeks             of

employment.                    Of those                  59 weeks,             Gregory           worked              31.          The court                used

the       total          number            of     work          hours         (967)           stipulated                  to      by the           parties

and then               divided             this          number          by the              actual          number             of     weeks         worked

(31) *           This        comes to               31.2        hours      per         week which                 the          court         multiplied

by $10 per                hour,          Gregory's                regular              hourly         wage,          to        equal         the      sum of

$312.00.                      This          sum was              then         multiplied                 by         66         2/3      percent              for
compensation                      of     $208.10            per        week.            The court                 determined                  that         this

calculation                    gave          consideration                       to          periods              when           Gregory             worked

little,            offset              by periods               when he worked                        a disproportionately                                 high

number            of     hours.
            We review                   a Workers'               Compensation                    Court's                 conclusions                  of     law

as to whether                     the       conclusions                  are        correct.             Steer,                Inc.      v.     Dept.         of

Revenue                (1990),           245 Mont.               470,         803 P.2d                601.          Further,                 "[a]~         long

as the            rate       of        disability               fairly          and reasonabl[y]                           approximates                     the

wages           earned             at      the       time         of      injury,              this          Court             will      uphold             the

method            used         by        the        Workers'              Compensation                       Court              to      determine                  a

claimant's                usual            hours          of employment."                         Stuber            v.     Moodie             Implement

(19891,                236        Mont.           189,          192,          769        P.2d          1205,             1207.                Here,         the

Workers'                Compensation                     Court         took         into        account             the         seasonal              nature

of        the      logging               business               while          still           basing              its         calculations                   on


                                                                                5
"actual"                  hours                  worked               within                    the            employee's                            total                actual                   work

history.                        We           have              consistently                                 stated                     that               when               calculating

compensation,                          a court                 should                consider                       the          seasonal                      nature              of        a job.

Infelt              v.         Horen                 (1959),                      136              Mont.             217,                346              P.2d            556.                     Yet,

precedent                    also           exists              for          not         including                         periods                   of          forced             idleness

when        computing                       the          average                  weekly                  pay.             Sandahl                   v.          James             A.        Slack,

Inc.         (1987),                 225          Mont.               208,           732            P.2d            831.

             The         record              reveals                  that           Gregory                     worked                 at     a sporadic,                          seasonal

job        during              31       out          of        a total                   of          59        weeks             in          which             he       was         employed

by         Bailey.                          The           record                    establishes                                 that            during                       his             entire

employment                     with              Bailey,                   Gregory                   worked                only               a total                   of         967         hours

during            these              31 weeks.                        In      its         calculations,                                  the             court          excluded                      the

18       weeks            of         forced               idleness                      because                     of         weather.                          The           court               then

divided                the          total            number                  of         actual                 hours                by        the             actual               number                 of

weeks            worked.                         Such          calculation                                fairly                approximates                              the            average

weekly             salary               of        Gregory.

             Because                 the          court           had          to        consider                        the        seasonal                     nature                 of     a job

and        not           consider                  periods                    of         forced                    idleness,                        it         was           required                     to

look        to       subsection                          (b)     of          § 39-71-123,                            MCA,              when              considering                         a fair

method            of         calculations                        under               this                set        of         facts.                    Gregory's                      argument

pertaining                      to          subsection                        (a)             is         inappropriate                                   under            this               set          of

circumstances                               as      reliance                       on          it         fails                to        consider                       any             seasonal

aspect             of        his        employment.

             We conclude                          that          where               sporadic,                       seasonal                    work              is      at       issue,                 it

is       reasonable                         when          calculating                                "usual"                    salary                   to       calculate                        on          a

larger                 scale                than               four               pay               periods;                        therefore,                          reliance                          on


                                                                                                     6
subsection         (b)     of     § 39-71-123,                 MCA, is       appropriate.               Fairness
demands that        sporadic,         seasonal          employment           be determined              in such a
way as to         "accurately             reflect      the       claimant's          employment          history
with    the     employer"         as subsection                (b)   dictates.            See, Stuber,          236
Mont.      at    192.          Further,         it    is       inappropriate              when determining
compensation         for       a sporadic,           seasonal         job,    to     rely       on subsection
(a) of § 39-71-123,               MCA, as such calculations                        will      be unreasonable
and unfair.
        We hold          the     Workers'            Compensation            Court        did     not     err      in
calculating        compensation              by using           claimant's          entire      work     history
with    the employer            instead       of only the immediate                   preceding         four    pay
periods.




We Concur:




                                                           7
                                     November12, 1992

                                CERTIFICATEOF SERVICE

I herebycertify that the following order was sentby United Statesmail, prepaid,to the following
named:


LAURENCE HUBBARD, LegalCounsel
StateCompensationMutual InsuranceFund
5 SouthLast ChanceGulch
Helena,MT 59604-4759

ROBERTK. OGG
Grenfell& Ogg
412 West Alder
Missoula,MT 59802



                                                  ED SMITH
                                                  CLERK OF THE SUPREMECOURT
