                            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                1989




FRANK STURER,
                             Claimant and Respondent,
           -17s   -
MOODIE IMPLEMENT,
              Employer,
       and
JOHN DEERE INSURANCE COMPANY,
                             Defendant Insurer and Appell-ant.



APPEAL FROM:                  The Workers' Compensation Court, The Honorable
                              Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
           For Appellant:
                              Jardine, Stephenson, Rlewett & Weaver; K. Dale
                              Schwanke, Great Falls, Montana
           For Respondent :
                      +       Torger S. Oaas, Lewistown, Montana
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                  n :L-                         Submitted on Briefs:   Dec. 16, 1988
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                       I.                         Decided:   February 17, 1989
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                                                Clerk
Mr. Justice William E. Hunt, Sr. , delivered the Opinion of
the Court.


     John Deere Insurance Company (insurer) appeals from a
judgment of the Workers' Compensation Court awarding claimant
Frank Stuber temporary total disability benefits.     Insurer
contests the rate of disability payments awarded to Stuber.
We affirm the Workers' Compensation Court and remand for a
determination of costs and attorney's fees incurred by Stuber
in this appeal.
     The question presented for review is as follows:
     1) When a full-time employee who works overtime hours
that fluctuate on a seasonal basis is injured during the
season of peak overtime, can a fair and reasonable
approximation of the employee's usual wages be arrived at by
crediting the employee with the average number of overtime
hours worked during the four pay periods precedinq the
accident causing the injury?
     Claimant Stuber was employed by Moodie Implement, a farm
implement dealer.   In addition to his regular 40-hour week,
Stuber was expected to work overtime hours as needed.      PJo
contract existed with regard to the amount of overtime, and
at no time was Stuber guaranteed that overtime would be
available. The amount of overtime varied from week-to-week.
Generally, a suhstantial number of extra hours were required
between the months of April and September. The work slowed
during the late fall and winter.
     During the busy season, on August 6, 1983, Stuber
injured his lower back in an industrial accident. He
continued to work after the accident until, approximately two
and one-half months later, the severity of the injury forced
him to quit.
     On March 1, 1984, Moodie Implement's insurer, John Deere
Insurance Company, commenced paying       Stuber disability
benefits at a rate of $190.45 per week. Insurer arrived at
this figure by averaging the amount of overtime Stuber worked
during his last three pay periods, those that occurred
subsequent to the accident.    Insurer thus calculated that
Stuber's usual weekly wage included an averaqe of 7.9 hours
of overtime.
     Stuber petitioned the Workers' Compensation Court for a
ruling that the insurer had underpaid his disability
benefits.   The parties submitted the case to the court on
stipulated facts. The court concluded that the insurer had
underpaid the disability benefits, finding that the overtime
hours should have been averaged over the four pay periods
preceding the accident.   Using overtime figures from these
pay periods, the court determined that Stuber's usual w e l :
                                                       ek:
wage included 14.7 hours of overtime, entitling Stuber to a
disability payment of $237.04 per week.    The court awarded
Stuber attorney's fees and costs of $1,860.34 but denied his
request for a 20% penalty against insurer for unreasonable
delay in paying benefits.
      At   the  time  of   Stuber's   iniury, the Workers'
Compensation Act, S §    39-71-101 through 39-71-2909, MCA
 (1983), did not set out a formula for computing wages. The
act simply defined 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, and overtime is not to
be considered." Section 39-71-116(20), MCA (1983). In Coles
v. Seven Eleven Stores (Mont. 1985), 704 P.2d 1048, 1052, 42
St.Rep. 1238, 1242, we held that overtime hours that are
consistently and regularly part of the claimant's work record
constitute "usual hours of employment."        Neither party
disputes the contention that Stuber's overtime is includable
in the computation of his average gross earnings.     Rather,
the dispute centers over the proper number of pay periods the
Workers' Compensation Court must consider when calculating
the usual overtime hours of an employee whose overtime
fluctuates with the seasons.
     Insurer argues that the Workers' Compensation Court
erred by considering only those overtime hours accumulated by
Stuber in the four pay periods preceding the accident.
Insurer maintains that because those four pay periods
occurred during the season of peak overtime, they are not of
sufficient length to take into account the seasonal
variations in Stuber's overtime hours. In order to reach a
fair and reasonable approximation of his usual weekly wages,
insurer contends, Stuber's total number of overtime hours
must be averaged over his total number of weeks of employment
with Moodie Implement.
      Insurer relies on Infelt v. Horen (1959), 136 Mont. 217,
 346 P.2d 556, to support its position. Infelt, however, can
be distinguished from the present case.      Infelt involved a
determination of partial disability under the predecessor to
S 39-71-703, MCA (1983).      The instant case, on the other
hand, involves the computation of temporary total disability
benefits under 5 39-71.-701, MCA (1983). We have previously
 stated that the issue of earning capacity involved in a
determination of partial dj-sability is not the same as the
issue of compensation involved in a total disability case.
Hutchison v. General Host Corp. (1978), 178 Mont. 81, 89, 582
P.2d 1203, 1207.
      The   statute   governing   compensation   for   injuries
producing temporary total disability provides that " [wleekly
compensation benefits for injury producing total temporary
disability shall be 66 2/3% of the wages received - - -
                                                    at the time
-- - injury."
of the              (Emphasis added. )  Section 39-71-701, MCA
 (1983).    Likewise, the statute defining wages mandates a
calculation of wages "at the time of the injury." Section
39-71-116 (20), MCA (1983).      Neither statute requires an
averaging of earnings over an employee's entire employment
history, as the insurer urges us to do in this case. As long
as the rate of disability fairly and reasonably 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.
      In the present case, the Workers' Compensation Court
determined Stuber's usual number of overtime hours by
averaging his overtime over the four pay periods preceding
the accident.     We note that the legislature adopted this
method    of   computation when    it amended the Workers'
Compensation Act in 1987. New 5 39-71-123(3), MCA, provides
that an employee's wages shall be averaged over the four pav
periods preceding the injury unless the claimant, and only
the claimant, can show that the use of the four pay periods
does not accurately reflect his employment history.        We
recognize that the 1987 amendments are not dispositive of the
present issue because they were enacted subsequent to the
injury in question. We find it helpful, however, to refer to
these amendments for guidance as to the definition of fair
and reasonable compensation.         As the legislature has
specifically approved the method of calculation used by the
Workers' Compensation Court in this case, we cannot sav that
it is an unreasonable or unfair method by which to determine
an employee's average weekly wage.
      Stuber injured his back on August 6, 1983. He continued
his employment with Moodie Implement until approximately
October 24, 1983, when he could no lonqer work due to the
severity of his injury.     Insurer arques that the Workers'
Compensation Court erred by failing to include in it9
computation of average overtime hours the pay periods worked
by Stuber subsequent to his accident.
      As noted previously, disability benefits are based on
the wages received by the claimant "at the time of the
injury."    Section 39-71-701, MCA (1983). Injury is defined
as "a tangible happening of a traumatic nature from an
unexpected cause or unusual strain resulting in either
external or internal physical harm and such physical
condition as a result therefrom . . " .    Section 39-71-119,
MCA (1983). Insurer maintains that the statutory definition
of injury is broad enough to encompass both the date of the
accident and the date of the resulting disablement. Insurer
points out that other jurisdictions have held that it is more
appropriate to compute wages as of the time of the
disablement, rather than the time of the accident. We note,
however, that in both of the cases referred to by the
insurer, Pepsi Cola Bottling Co. v. Long (Miss. 1978), 362
So. 2d 182, and Ranger v. New Hampshire Youth Development
Center (N.H. 1977), 377 A.2d 132, the disablement occurred
years after the accident. In the instant case, by contrast,
the lapse of time between the accident and the disablement is
a mere two and one-half months. In these circumstances, when
the disablement occurs shortly after the accident, the
appropriate time from which to figure usual wages is the pay
period preceding the date on which the accident occurred.
      Stuber requests his attorney's fees and costs incurred
in this appeal. Section 39-71-612, MCA (1983), provides that
a claimant may recover his costs and attorney's fees when
controversy arises over the amount of compensation due and
the Workersv Compensation Court awards the claimant an amount
greater than that paid by the insurer. The purpose of this
provi-sion is to avoid diminishing a claimant's disability
award by forcing him to pay attorney's fees incurred in
successfully pursuing his claim.    Holton v. F. H. Stoltze
Land & Lumber Co. (1981), 195 Mont. 263, 270, 637 P.2d 10,
14. Likewise, an award of attorney's fees to a claimant who
successfully defends the rate of compensation on appeal is
necessary to preserve intact his disability benefit.       We
therefore remand to the Workers' Compensation Court for a
determination of reasonable costs and a t t o r n e ~ ' ~fees
incurred by Stuber in this appeal.
     We affirm the Workers' Compensation Court's award of
disability benefits and remand for a determination of
costs and attorney's fees associated with this appeal.
                                    1



We Concur:       Y
