                               No. 86-317
               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                   1987




YICHAEL SANDAHL (Deceased),
STEPHANIE SANDAHL,
                Claimant and Appellant,


JAMES A. SLACK, TNC., Employer,
         and
GLACIER GENERAL INSURANCE COMPANY,
                Defendant and Respondent.




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

COUNSEL OF RECORD:

         For Appellant:
                Michael C. Prezeau; Trieweiler Law Firm, Whitefish,
                Montana

         For Respondent:
                P. Mars Scott; Mulroney, Delaney   &   Scott, Missoula,
                Montana




                                  Submitted on Briefs: Oct. 23, 1986
                                    Decided:   January 29, 1987


    VAN 2 9 : 7 3
Filed:
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.


        This   is an   appeal   from a    judgment of the Workers'
Compensat.ion Court awarding Stephanie Sandahl survi~rorship
benefits of $211.77 per week.          We reverse and remand.
        The only issue on appeal is whether periods of forced
idleness should be excluded when calculating the compensation
rate for beneficiaries of a deceased fulltime employee.
        Michael Sandahl was killed on November 1, 1984 when his
log truck overturned on an icy highway west of Kalispell.           He
was 33 years old at the time of his death and is survived by
his wife Stephanie and two children.
        Sandahl began his employment with James A. Slack, Inc.
on January 2, 1984 as a driver of a log truck and like the
other drivers employed by Slack, was paid a percentage of the
amount he grossed with his truck.          There was no salary or set
hours of employment and no written contract existed between
Slack and its employees.           Drivers worked a five day work
week but the average work day exceeded eight hours.           However,
there were times the drivers could not work due to equipment
failures or spring break-up.           The log truck drivers earned
between $30-$70 per load, depending on the distance the logs
were hauled.
        The insurer accepted liability for Sandahl's death and
began paying benefits to Stephanie at the rate of $200.36 per
week.          Stephanie   filed   a    petition   in   the   Workers'
Compensation Court requesting that her benefit rate be raised
to the maximum $286 per week.              The Workers' Compensation
Court held that her benefits should be increased but only by
$11.41 per week to 5211.77.        She appeals.
     Section 39-71-721, MCA, provides     for the payment of
death benefits to the beneficiaries of a worker killed in the
course of his employment as follows:
     39-71-721. Compensation for injury causing death.
      (1) If an injured employee dies and the injury was
     the proximate cause of such death, then the
     beneficiary of the deceased, as the case may be, is
     entitled to the same compensation as though the
     death occurred immediately following the injury,
     but the period during which the death benefit is
     paid shall. be reduced by the period during or for
     which compensation was paid for the injury.
     (2) To beneficiaries as defined in subsections
     (2) (a) through    (2) (b) of   39-71-116, weekly
     compensation benefits for injury causing death are
     computed at 66-2/3% of the decedent's wages.    The
     maximum weekly compensation benefits may not exceed
     the state's average weekly wage.       The minimum
     weekly compensation for death is 50% of the state's
     average weekly wage, hut in no event may it exceed
     the decedent's actual waqes at the time of his
     death . ..
     Wages is defined in S 39-71-116(20), MCA, 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. Sick leave benefits accrued by
     employees of public corporations, as defined by
     subsection (1.6) of this section, are considered
     wages.
     In this case, the difficulty stems from determining what
the "usual hours of employment in a week" would be.        The
insurer averaged the deceased's salary     from the time he
started working for Slack ($1.2,743.48) over the entire time
of his employment (42.4 weeks).   The insurer included in that
time those weeks when the deceased did not work because of
equipment failure and spring break-up, but did not include
the week James A. Slack, Inc. closed down for hunting season.
The insurer calculated the decedent's benef it.s as follows:
It paid Stephanie $ 2 0 0 . 3 6 per week in benefits.
     The   Workers'   Compensation    Court    concluded    that    the
decedent's benefit rate should be based on the preceding four
pay periods or 8 weeks.     The Workers' Compensation Court also
discounted the week      for hunting    season.       The decedent ' s
earnings were:



                                            Part-time--Beginning
                                             of spring break-up
                                            Sprinq break-up
                                                      11




                                              1 day-work began Ma.y
                                              31




                                              Truck broke down 1
                                              week
                                              Loader broke clown 1
                                              week
                                              1 week off for
                                              hunting season-
                                              loader broke down
     Thus the preceding 4 pay periods included three weeks
during which the decedent did not work.            Two of those weeks
of unemployment were due to equipment failures, one week was
hunting season.    The Workers' Compensation Court included the
weeks during which decedent did not work because of equipment
failures, but excluded the week of hunting season.           Thus the
Workers'   Compensation Court     figured the benefit        rate    as
follows:
     On appeal, Stephanie contends that the periods of forced
idleness should not he included in the calculation.              She
contends it is unfair to penalize her husband for the time he
could not work due to equipment failures, especially when he
was not penalized for the week off due to hunting season.
     We have addressed the issue of how to calculate wages on
several prior occasions, however, one case in particular is
applicable to the situation at hand.           In Infelt v. Horen
(1959), 136 Mont. 217, 346 P. 2d 556, we dealt with a logger
who was injured when a log rolled over him.             The employer
claimed that at the time of the injury the c1,aimant was
making $41.17 per week.    The claimant testified that. he was
not making much money when the injury occlxrred because the
snow was too deep to work.        He testified that he normally
made ,$I00 per week.   We held that,       ". . .   enforced idleness
because of weather conditions should not. be considered in
computing the average weekly wage.    I'     136 Mont. at 222, 346
P.2d at 558.   We also stated that is was unfair to measure
claimant's wages at the time he was injured by the amount he
received when the snow was so deep he could not work.            Id.
Likewise, in this case, the prior four pay periods happen t - o
include two weeks during which the decedent could not work
due to equipment failures.      To include the periods of forced
idleness in the calculations unfairly penalizes the decedent..
When the enforced idleness j.s properly excluded, the correct
calculations are as foil-ows:
Because the ma.ximum statutory rate in effect at the time of

decedent's death was $286 per week pursuant to S 39-71-721,

MCA, Stephanie is limited to that amount.
       Reversed and remanded for findings consistent with this

O p j nion.



We Concur:




        Chief Justice
Mr. Justice L . C. Gulbrandson dissents as follows.

         In my view, the majority has ignored the statutory
requirement of determining the averaqe gross earnings, and,
by reversing the Workers1 Compensation Court, seemingly has
adopted an "earning capacity" test.
         It is obvious that in the Montana logging industry, it
is not unusual for a truck driver to be paid a percentage of
the gross income produced by the vehicle involved.           Here, the
employer operated a fleet of five trucks, with five drivers.
Each driver operated the same truck when logs were available
to be hauled to the various mills.          Trucks were not rotated
among the various drivers, and each driver was responsible
for the general cleanliness of the truck assigned to him.
Each driver knew that his income was dependant upon the
number and length of the hauls delivered to the mill.             During
the "spring breakup," it is customary for the Montana Highway
Department and the U.S.          Forest Service to impose weight
restrictions on the use of roads.           The restrictions may be
total for a period of months, or truck traffic may be allowed
during the morning hours until the roads start to thaw out.
In the latter event, a trucker may get in one haul, whereas
he would ordinarily be able to complete two or possibly three
hauls.     Each driver knows that the road restrictions are
imposed every year and the drivers for James A. Slack, Inc.
knew that no work would be available for them during the
restricted    period.      The    drivers   were   allowed   to     seek
employment     elsewhere    or     to    apply     for   unemployment
compensation.      In   fact, the       record   discloses   that   the
decedent Sandahl did drive truck for another employer, for
wages, for a portion of the time used in the computations
here.    Here, each driver knew that he would have no income
during a period of equipment shutdown.              Tn extremely cold
weather, logging equipment and machinery (owned and operated
by other than the employer here) may not be operable, in
which event there would be no logs available for hgulina.
        Here    the   insurer   originally   used   the   entire    work
history of the decedent with the James A. Slack Company in
computing benefits in the amount of $200.36 weekly.                  The
Workersr Compensation Judge determined the proper period, to
account for seasonal fluctuations, was the preceding four pay
periods totaling eight weeks and four days, with a deduction
of one week for hunting season, resulting in a weekly benefit


        In     my   opinion,    the   Workers'   Compensation      J11.dae
correctly concluded as follows:
               In the vast majority of cases, this
               mathematical calculation is based on the
               four pay periods preceding the injury as
               reported in the Claim for Compensation
               and the Employers First Report and there
               is no dispute.
               In Mahlum v. Broeder, 147 Mont. 386, 412
               P. 2d 572 (1966), the Supreme Court set
               the standard for defining wages when it
               was stated:
               ". . . What is a reasonable        period of
               time,   of   course,  depends        on  the
               circumstances of each case.       The period
               must be sufficiently long to       take into
               account seasonal fluctuations     for hours,
               wage rates, vacations, and        any other
               factors which may materially      affect the
               average daily wage."
               This    was  reaffirmed    in   Walter v.
               National Automobile and Casualty Co.,
                     Mont.       , 592 P.2d 497 (1979)
               which interpreted 93-423 R.C.M.,    1947,
               the predecessor to S 39-71--116(20), MCA,
               supra.
               The Court attempted to balance the
               legislature's directive which states that
             the Act must be liberally construed in
             favor of the cl-aimant, 5 39-71-104, MCA,
             and the directives which impose various
             limits on benefits, § 39-71-721, MCA,
             5 39-71-116 (20), MCA. The Supreme Court
             set the standard requiring . . . a
             reasonable period of time, which must be
             sufficiently long, to take into account
             seasonal fluctuations and any other
             factors which may materially affect the
             average daily wage.     It - - state
                                        did not
             that the time periods affected should be
             thrown out of the calculation altogether,
             but rather [that] an averaging of time
             was the appropriate method. Accordingly,
             disputes over rates will vary from case
             to case.       This allows the needed
             flexibility to     deal with    different
             circumstances.    (Emphasis in original.)
         I would affirm the order of the Workers' Compensation
Judge.
Mr. Chief Justice J. A. Turnage, concurs with the dissent of
Mr. Justice L. C. Gulbrandson:
      The Workers' Compensation Court is required to follow
S 39-71-116(2), MCA, in determining the employee's applicable
wages based on his average gross earnings.        There is no basis
in the statute for a determination of wages in this case
based upon an "earning capacity" test.         The practical result
of the majority opinion clearly is based on "earning capaci-
ty," a test not authorized by statute.
      On occasion criticism has been levelled at the court
system     for   perceived   excesses   in   workers'   compensation
matters.
      Whatever problems may exist should be put in proper
context.     In 1915 the Workers' Compensation Act was enacted,
and since that time, the legislature has amended it so many
times the amendments are almost uncountable.        A casual review
of the present statutes presents a picture of little, if any,
coordination and much by way of confusing and conflicting
provisions.      The court system can only interpret and apply
the law as given it by the legislature.          For the courts to
assure justice in this background of statutory morass is
nearly an insurmountable task.
      Unless some major effort is made to provide a statutory
scheme that will assure speedy and effective justice to the
unfortunate injured workers, 1 fear that the competing inter-
ests of the employer, insurer and injured worker will sink
only further into the low-lying boggy ground of our present
statutory scheme, with the interest of the injured worker
deserving just and fair compensation often overshadowed by
litigation that will follow every claim as a shadow follows
its substance.
