                             No.    96-365
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1996


ALEXANDRA ENGLER HAMMER,
          Petitioner and Appellant,
     v.




          Employer and Respondent.




APPEAL FROM:   Workers' Compensation Court, State of Montana
               The Honorable Mike McCarter, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               David W. Lauridsen, Laurie Wallace; Bothe &
               Lauridsen, Columbia Falls, Montana
          For Respondents:
               Kevin M. Braun, Chief Legal Counsel, Department
               of Labor & Industry, Helena, Montana
               Richard DeJana,     Attorney at Law, Kalispell,
               Montana



                             Submitted on Briefs:       October 24, 1996
                                             Decided:   December 27, 1996
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.

     Alexandra Engler Hammer (Hammer), appeals from the decision of
the Workers' Compensation Court, denying her request for benefits
from the Uninsured Employers' Fund (UEF).              We affirm.
     We restate the issue as follows:
     Was   Hammer's   employment   exempted   from               workers'
     compensation coverage under § 39-71-401, MCA?
                                        BACKGROUND
     At age 11, Hammer's parents died and she went to live with her
mother's    brother,    Earl Gorin (Earl), and his wife, Mary Alexine

(Mary).      After Mary and Earl divorced, Hammer continued to live
with Mary.         In 1989, when Hammer was 15 years old, Mary married
Robert     Helms    (Helms),     the owner and sole proprietor of Mostly
Montana     Construction       (MMC).    Although Helms did not adopt Hammer,
he treated her as a member of the family and supplied her with all
necessities.
     In 1992, Hammer turned 18 years old, dropped out of school,
and moved in with her boyfriend.                 Later that year, Hammer was
arrested and jailed for writing bad checks.              While in jail, Hammer
contacted Helms and asked him if she could live with him.               Hammer
was released on her own recognizance based on her agreement to
abide by a list of conditions.               The list of conditions included:
     1.      She [Hammer] shall live with Bob Helms at
             [Helms' Address], Kalispell, Montana.
     2.      She shall follow the rules set for her by Bob
             Helms as a condition of residing in his home
             including:
     a.       Curfew.
                                             2
       b.       Household duties.
                Who can be brought into his home.
       ii:      Who [Hammer] associates with.
                                             Dated Sept. 25, 1992
                                             /S/ [Hammer]
       In addition to establishing the above rules, Helms spoke with
Hammer about the necessity of finding a job in order for her to
make restitution on her bad checks.          Helms also contacted the state
Job Service and arranged an appointment for Hammer to meet with an
adviser.        In the meantime, Helms insisted that Hammer go to work
with him and pick up debris around various construction job sites
so she could "earn her keep."                Helms explained that in past
dealings with Hammer and his own children, he had used the phrase
"earn your keep" to indicate that he would not be paying them.
       Hammer had worked for Helms on two previous occasions.         On the
first occasion, Hammer was paid a lump sum amount to complete a
painting project.          On the second occasion, Hammer worked to pay off
a debt she owed as a result of Helms having purchased a dress for
her.         Both times,   the terms of the agreement between Helms and
Hammer were predetermined and the arrangement was temporary.
       Hammer testified that after she was released to live with
Helms, she thought she would be paid between $4.00 and $5.00 per
hour for work she performed for him.              However,   she conceded no
discussion of an hourly rate occurred.            During her second day of
work for Helms, Hammer fell while she was caulking the eaves of a
house.        Hammer suffered serious injuries to her back including a C-
7 burst fracture, Tll-12 burst fractures, and an L-4 burst fracture


                                         3
with 90%      canal    compromise.      Following her release      from the
hospital, Hammer stayed at Helms'            house while she recovered.
        While recovering from her injuries, Hammer was contacted by
James    A.   Haynes   (Haynes),     an attorney for the Western Montana
Mental Health Center (MHC). Mary was employed with MHC and claimed
Hammer as a dependent daughter on her health insurance policy,              The
MHC had become involved in the case because Hammer had filed an
insurance claim for $44,000 with MHC's insurance company.                 After
reviewing the case with Hammer, Haynes told her that he thought she
was     an employee of MMC and therefore qualified for workers'
compensation     benefits.    Haynes notified the Department of Labor &
Industry of the accident,          of the fact that MMC was an uninsured
employer, and asked the Department of Labor & Industry to look into
the matter.
        In response to Haynes'     inquiry, the UEF sent separate letters
to Helms and Hammer requesting that they return the enclosed forms.
Fearing that he may be subject to a fine, Helms contacted his
attorney who drafted letters for both Helms and Hammer explaining
that Hammer was not an employee at the time of her accident.              Helms
informed Hammer that if she did not sign the letters he would be
assessed a fine.        Hammer eventually signed the letter.        Based in
part on Hammer's letter,           the UEF denied Hammer's request for
benefits on the grounds that she was not an employee.
        Following the UEF's denial of Hammer's claim, Haynes wrote the
UEF asking that it reconsider its decision.             Since Hammer had not
filed a written claim within the requisite 12 months, the UEF did

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not look into the matter.        Hammer then retained counsel who
instituted waiver proceedings before the Department of Labor &
Industry, Employment Relations Division, Dispute Resolution Bureau.
In those proceedings,    Hammer requested an extension of time in
which to file the claim alleging that Helms' coercion of Hammer
should     estop him and the UEF from asserting a          statute of
limitations   defense.   This request was denied and the matter was
appealed to a hearings officer.        On appeal, the hearings officer
found that Helms' misrepresentation to Hammer that she was not an
employee was the cause of her failure to timely file a claim and
thus an extension of time was warranted.        This decision was not
appealed    and Hammer filed a claim for workers'         compensation
benefits.
     Following a hearing on the merits of the case, the Workers'
Compensation Court held that although Hammer was an employee, the
fact that she did not have a reasonable expectation that payment
would exceed room and board exempted her employment from workers'
compensation coverage under § 39-71-402(2) (h), MCA. Hammer appeals
the decision of the Workers' Compensation Court.


                              DISCUSSION
     Was   Hammer's   employment   exempted   from       workers'
     compensation coverage under § 39-71-401, MCA?
     This Court employs two standards of review for Workers'
Compensation Court decisions:     We review the findings of fact to
determine if they are supported by substantial, credible evidence,
and we review conclusions of law to determine if they are correct.
                                   5
Turjan v. Valley View Estates (1995), 272 Mont. 386, 390, 901 P.2d

76,    79.
        In the instant case, Hammer contends that she, like any other
employee, had a reasonable expectation of payment.                            Helms, on the
other hand, maintains that Hammer's expectations of compensation
were not reasonable and compensation for her work extended no
further than room and board.                     In its findings of fact, the Workers'
Compensation Court found Helms' testimony to be more consistent and
more credible than Hammer's.                        The Workers'       Compensation   Court
specifically noted that Hammer testified at a Department of Labor
hearing,       in her affidavit,            in her deposition, and at trial; each
time         her     story        differed.              The   court    contrasted    these
inconsistencies            with    Helms'     consistent testimony that he merely
brought Hammer to work to "keep an eye on her" and so she could
"earn her keep."
        When conflicting testimony exists, it is within the province
of the trial court to determine the credibility of witnesses as
well as            the    sufficiency       of     the    evidence.      Taylor v.    State
Compensation Insurance Fund (1996), 275 Mont. 432, 437, 913 P.2d
1242, 1246 (citing Wilson v. Liberty Mut. Fire Ins. Co. (1995), 273
Mont.    313, 317, 903 P.2d 785, 787-88).                      In this case, as in Tavlor,
the Workers'              Compensation Court was                 faced with     conflicting
testimony.           In such cases, our standard is not whether the evidence
supports findings different than those made by the Workers'
Compensation             Court,    but whether substantial credible evidence
supports the court's findings.                      Tavlor, 913 P.2d at 1246.         In the

                                                    6
instant     case,   we find that the Workers'         Compensation    Court's
determination that Hammer did not have a reasonable expectation of
being paid is supported by credible evidence.
       Section 39-71-401(2) (h), MCA, provides:
             (2) Unless the employer elects coverage for these
       employments under this chapter and an insurer allows an
       election, the Workers' Compensation Act does not apply to
       any of the following employments:
             ihj employment of a person performing services in
       return for aid or sustenance only, except employment of
       a volunteer under 67-2-105[.1
In arguing that she does not fit under this exception, Hammer cites
to Carlson      v. Cain (1983),    204 Mont. 311, 664 P.2d 913. In
Carlson,     Debra Carlson's (Carlson)       fiance had entered into a
contract with the Billings Gazette to deliver newspapers                 from
Billings, Montana, to Fairview, Montana, and all drop points in
between.       While living with her fiance,          Carlson began making
deliveries     three or four times         a week to assist him in his
contractual obligations to the Gazette.         Carlson,   664 P.2d at 914.
When Carlson was unable to make the deliveries, her fiance had to
hire someone else, whom he paid $15 to $30.            Carlson, 664 P.2d at
915.      While delivering newspapers for her fiance, Carlson was
severely injured in an auto accident.
       In    Carlson,   this   Court   upheld   the     following    Workers'
Compensation Court findings: that Carlson         was an employee of her
fiance; that Carlson's employment was not excluded under statutory
exceptions; and that there was sufficient evidence to sustain the
Workers' Compensation Court's finding that Carlson's fiance was an
employee of the newspaper despite language in the contract and the
                                       7
fact that the newspaper disclaimed having control.                         Carlson,     6 6 4

P.2d at 918-20.
       1n Carlson, this Court explained that employment status can be
established by the existence of a contract for hire, and that such
an    employment      contract may be "express or implied,                        oral or
written."      Carlson,      664 P.2d at 916 (quoting §                   39-71-118,   MCA).
This Court explained that Carlson was not just doing housework and
cooking in exchange for room and board,                     rather she was working
virtually      full    time    outside       the     home     and    her      reasonable
expectations exceeded room and board.                 Carlson,      664   P.2d at 919.
In Carlson,     this Court held that an implicit agreement existed
between Carlson and her fiance because Carlson furnished valuable
driving services to her fiance and reasonably expected payment
beyond those benefits which were just a part of her living
arrangement.
       In the instant case,       Hammer argues that she, like Carlson,
furnished valuable services to her employer and had a reasonable
expectation she would be paid.           However, the         Workers' Compensation
Court found that Hammer's expectations were limited to her
obligation to offset room and board for herself.                           The Workers'
Compensation Court points to the consistent testimony of Helms that
Hammer was merely "earning her keep" and thus any expectation of
compensation    was    not    reasonable.          In contrast,      Carlson and her
fiance had an implicit agreement that she would receive some
benefit for her services above and beyond room and board. Carlson,
664   P.2d at 919.

                                         8
     At the time of her accident, Hammer was merely "earning her
keep" for the room and board she received from Helms.                Hammer's
work with Helms was a temporary arrangement which was to continue
only until she was able to find a paying job through the Job
Service.     In contrast to previous work arrangements, Helms and
Hammer had not specifically agreed to anything other than room and
board.     Indeed,   Helms had made Hammer aware that she would be
"earning her keep."        The Workers'     Compensation   Court's    factual
findings are supported by substantial credible evidence and they
indicate that Hammer did not have a reasonable expectation of
monetary   compensation.    Rather,   she was performing services at the
job site in return for aid and sustenance.          We hold that Hammer's
employment falls under the exception             set forth in §        39-71-
401(2) (h), MCA, exempting her from coverage.
     Accordingly, we        affirm    the    decision of     the     Workers'
Compensation   Court.




We concu




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