                                            NO.     95-089
               IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                                  1995


DAVID ROBERTSON,
               Petitioner    and Appellant,
          v.
AERO POWER-VAC, INC.,           EmplOyeX,


         and
STATE COMPENSATIONMUTUAL
INSURANCE FUND,
               Respondents      and Respondents.



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


COUNSEL OF RECORD:
               For Appellant:
                      Rex Palmer;           Attorneys,        Inc.,     Missoula,    Montana

               For Respondents:
                      Daniel J. Whyte, Legal Counsel, State                          Compensation
                      Insurance Fund, Helena, Montana


                                                  Submitted      on Briefs:         June 15, 1995
                                                                      Decided:      July   25, 1995
Filed:
Justice        Karla      M. Gray delivered                    the Opinion          of the Court.

         David     Robertson             appeals          from      the    decision             and order           of     the
Workers'         Compensation              Court     which         established            his        temporary          total
disability         rate       at $203.67           and denied             his    entitlement                  to attorney
fees     and a penalty.               We affirm.
         The issues           on appeal         are:
              Did the Workers'   Compensation Court err in                                                    inter-
         &eting   5 39-71-123(3) , MCA (1991), and applying                                                     it to
         the facts of this case?
         2. Did the Workers'                   Compensation Court err                       in failing             to
         award attorney fees                   and impose a penalty?
         The underlying                facts         in    this       case       are      undisputed.                   David
Robertson         (Robertson)              was hired        by Aero Power-Vat,                        Inc.     (Aero)      for
a cleaning        project         to be performed                   at Stone Container                       in Missoula,
Montana.              Aero      was        insured        by       the     State          Compensation              Mutual
Insurance         Fund          (State        Fund)        under          Plan      III         of       the     Workers'
Compensation           Act.
         The      terms,         conditions               and        wages         regarding                  Robertson's
employment were contained                      in a contract               (Contract)             executed         by both
Robertson         and Aero.           The Contract                 specified       that         work shifts             would
be 12 hours           and that        per hour pay would be $6.50                               for     straight         time

up to 40 hours                a week and time-and-one-half                                for     hours         worked          in
excess       of 40 hours          in any work week.                       The duration                 of the project
was not specified.                 At the          time     Robertson            was hired,             however,         Aero
stated       orally       that     the cleaning                project          "could          last     5 to 6 days"
and      that,        subject         to     satisfactory                 performance,                 Robertson           was
expected         to work the entire                  project.

                                                               2
        Robertson               was        injured          in        the     course           and       scope         of         his
employment          with         Aero on June 9,                      1993.          The State           Fund accepted
liability          for     the        injury        and paid             him temporary            total        disability
benefits         based on a 40-hour                     work week at $6.50                      per hour.
        Robertson               petitioned            the      Workers'          Compensation                 Court         for     a
determination              that       his bi-weekly               benefit        rate         should      be calculated
on the         basis       of     a 72-hour            work week;              the     rate      was based on his
contention          that         he was hired               to work six              12-hour       shifts.             He also
requested          attorney            fees        and a penalty,               contending             that      the        State
Fund was unreasonable                       in refusing               to recognize             the number of hours
for     which      he was hired                    when calculating                   his      benefit         rate.              The
State       Fund responded                 that     Robertson            had not been hired                   to work more
than        40 hours            per     week and denied                       that      its      actions          had        been
unreasonable.
        The Workers'                  Compensation               Court      concluded           that     Robertson                was
entitled         to temporary               total       disability            benefits          based on a 47-hour
work week.             Based on its               finding         that      the State          Fund's      position               was
not unreasonable,                     the court         also       concluded           that      Robertson             was not
entitled         to attorney               fees      or a penalty.                   Robertson         appeals.
        1. Did the Workers'      Compensation                                    Court err in inter-
        preting  5 39-71-123(3),  MCA (19911,                                    and in applying it to
        the facts of this case?
            Interpreting               5       39-71-123(3),                MCA        (1991),           the       Workers'
Compensation               Court           concluded             that       Robertson's              temporary              total
disability          rate        should         be based on a 47-hour                        work week.           Robertson

contends          that          the        court       erred          because          the      statute,           properly
interpreted            and applied,                 entitles          him to a benefit                 rate     based on a

                                                                  3
72-hour          work week.                 We review                 the Workers'                  Compensation              Court's
conclusions                of law to determine                       whether           they     are correct.                  David v.
State         Compensation                Mut.     Ins.            Fund (1994),               267 Mont.           435,     438,      884
P.2d 778,              780.
         An injured                employee's            wages for workers'                         compensation              benefit
purposes              ordinarily            are     calculated                  on the         basis       of      "the       average
actual        earnings             for     the four           pay periods               immediately               preceding          the
injury           .     .     .    .I(      Section             39-71-123(3),                   MCA (1991).                    When an
employee's                 term     of employment                   for       the     same employer                is     less      than
four     pay periods,                    however,             the     employee's               wages "are               the      hourly
rate     times          the number of hours in a week for                                      which the employee was
hired         to workK.1 "                Section            39-71-123(3)              (a),     MCA (1991).
         It      is        undisputed            that        subsection                (3) (a) of          § 39-71-123,              MCA
(1991),              applies        here,        since             Robertson's               term     of    employment             with
Aero was less                    than four        pay periods.                       Robertson's           hourly         rate      also
is undisputed.                     Thus,     under            the statute,               the only           question             before
the Workers'                 Compensation                Court        was the number of hours                             in a week
for     which          Robertson           was hired                to work.
         Robertson                asserts         that        it     is undisputed                  that    he was hired                  to
work five              to six           12-hour      shifts.                  The Contract            states        that         shifts
will     be 12 hours                    in length.                 This       identification               of the length                  of
work shifts,                 together         with           Robertson's               assertion           that     he was told
that      the          project           would      last            five        to     six     days        and that            he was
expected              to work the entirety                          of the project,                  forms        the basis          for
his      claimed             entitlement                to     temporary               total        disability             benefits
based on a 72-hour                        work week.

                                                                          4
             The record,           however,       does not support                Robertson's                contentions.
As noted              above,       the   Contract          does not            state       the       duration              of     the
cleaning              project       at Stone        Container.              Moreover,               the agreed                 facts
submitted              to the Workers'            Compensation             Court reflect               that         Robertson
was     told          at the      time    of hire         that       the       "project            could         last      5 to 6
days."          (Emphasis           added.)        Further,            in an interview                 with         the State
Fund's          investigator,             Aero's          president            stated         that      Robertson                 was
told     when hired               that   the shifts           would be "up to 12 hours"                                 and that
the job             "might       last"    five     to six        days.
             The record           also   establishes             that,      in fact,           the project                 lasted
only         four      days.       No employee worked for                      more than             four        days on the
project          and no employee who worked on the project                                         from beginning                  to
end worked more than 47 hours
             On the basis            of this       record,           the Workers'             Compensation                     Court
properly              determined         that     Robertson            was hired             for     the         duration          of
the     project,               rather     than      for       a guaranteed                number            of     shifts          or
hours,         and that          the five        to six day period                    mentioned         at       the      time     of
the hire              was the        "outside       estimate"            of that          duration.                 The court
also properly                  determined        that      Robertson            was hired            to work 47 hours
during          the       week of         the     project.               Thus,          we conclude                     that      the
Workers'              Compensation          Court       did      not     err     in     interpreting                    5 39-71-
123    (3)     (a),      MCA (1991),             and in       applying           it     to     the      facts            of      this
case.
             2. Did the Workers'                  Compensation Court err                       in failing                 to
             award attorney fees                  and impose a penalty?
             Section           39-71-612(l),            MCA (1991),               authorizes                 an award               of
attorney              fees      where the amount of compensation                              is disputed                 and the
                                                                 5
amount granted               by the Workers'                   Compensation             Court        is greater               than
the amount paid.                  However,         such an award "may only                         be made if            it      is
determined           that      the        actions        of     the         insurer        were       unreasonable."
Section         39-71-612(2),             MCA (1991).                The 20% penalty                 authorized               by §
39-71-2907,           MCA (1991),                also     is        available          only     in     the      event          the
insurer's          refusal        to pay is unreasonable.
         Here,       the       Workers'             Compensation                Court         awarded           Robertson
temporary          total      disability            benefits            in an amount greater                      than         the
State      Fund was paying,                based on its               determination             that      his benefits
should      be calculated            on a 47-hour               work week rather                   than the 40-hour
week the          State       Fund utilized.                    Thus,         the      threshold           factor         upon
which      attorney          fees    can be awarded under                        § 39-71-612,              MCA (1991),
is met here.               The court        found,        however,            that     the State          Fund had not
been unreasonable                 and,      therefore,               denied      both      attorney            fees      and a
penalty.
        Robertson           challenges            the court's               determination              that     the State
Fund was not unreasonable.                              Reasonableness                is   a question             of fact.
Stordalen         v. Ricci's         Food Farm (1993),                      261Mont.          256, 258, 862 P.2d
393, 394.          We review         the Workers'                   Compensation           Court's            findings           of
fact       to     determine          whether             they         are      supported             by      substantial
evidence.           Stordalen,             862 P.2d at 394.
        At the outset,               it     is     clear        from our discussion                       of    the      first
issue      that     Robertson's             claimed        entitlement                to benefits              based on a
72-hour           work       week         was       properly                rejected          by       the       Workers'
Compensation             Court.       Thus,         the State           Fund's         denial        of that        claimed
entitlement           could       not have been unreasonable.

                                                                6
          Moreover,      with         regard     to the         State     Fund's      use of      a 40-hour
work week in calculating                   Robertson's           benefits,         the record      reflects
that      a number of the employees                      who worked on the             Stone Container
project      worked less          than 40 hours over the duration                        of the project.
Indeed,       the     record      establishes            that     employees         who worked         on the
project       averaged          fewer      than        40 hours          and only      three      of     those
employees       worked more than 40 hours                       over the project's             duration.
          We conclude          that     substantial         evidence          supports      the Workers'
Compensation          Court's         finding     that    the State          Fund's    position        was not
unreasonable.           Therefore,             we conclude        that     the court      did not err         in
failing      to award attorney                  fees    and impose a penalty.
          AFFIRMED.




We concur:




                Justices
