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Robertson v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

January 23, 1995

DAVID ROBERTSON Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent

          DECISION AND ORDER

          Mike McCarter JUDGE

         Summary: Claimant was hired for temporary clean-up work under contract stating that shifts would last twelve hours for up to five or six days. In fact, no employee worked more than 47 hours on the project and some worked less.

         Held: When an employee's term of employment for the same employer is less than four pay periods, the employee's wages for purposes of workers' compensation benefits "are the hourly rate times the number of hours in a week for which the employee was hired to work." Although contract for temporary job stated that project could last 5 to 6 days, and shifts were 12 hours in length, claimant was told he would work for the duration of the project. Where no employee working on the project in fact worked more than 47 hours, claimant's request for weekly wage based on 72 hours per week was rejected, with Court determining his benefits should be calculated on the basis of a 47-hour work week. Claim for attorneys fees denied.

         Topics:

Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-123, MCA (1991). When an employee's term of employment for the same employer is less than four pay periods, the employee's wages for purposesof workers' compensation benefits "are the hourly rate times the number of hours in a week for which the employee was hired to work." Although contract for temporary job stated that project could last 5 to 6 days, and shifts were 12 hours in length, claimant was told he would work for the duration of the project. Where no employee working on the project in fact worked more than 47 hours, claimant's request for weekly wage based on 72 hours per week was rejected, with Court determining his benefits should be calculated on the basis of a 47-hour work week. Affirmed in Robertson v. Aero-Power Vac, Inc. and Montana State Fund, 272 Mont. 85 (No. 95-089).
Constitutions, Statutes, Regulations and Rules: Montana Code Annotated: section 39-71-612, MCA (1991). Where insurer's position on average weekly wage had support in the record, claimant, whose own position did not entirely prevail, was not entitled to attorneys fees on a theory of unreasonable insurer conduct. Affirmed in Robertson v. Aero-Power Vac, Inc. and Montana State Fund, 272 Mont. 85 (No. 95-089).
Attorneys Fees: Cases Denied. Where insurer's position on average weekly wage had support in the record, claimant, whose own position did not entirely prevail, was not entitled to attorneys fees on a theory of unreasonable insurer conduct. Affirmed in Robertson v. Aero-Power Vac, Inc. and Montana State Fund, 272 Mont. 85 (No. 95-089).
Wages: Average Weekly Wage. When an employee's term of employment for the same employer is less than four pay periods, the employee's wages for purposes of workers' compensation benefits "are the hourly rate times the number of hours in a week for which the employee was hired to work." Although contract for temporary job stated that project could last 5 to 6 days, and shifts were 12 hours in length, claimant was told he would work for the duration of the project. Where no employee working on the project in fact worked more than 47 hours, claimant's request for weekly wage based on 72 hours per week was rejected, with Court determining his benefits should be calculated on the basis of a 47-hour work week. Affirmed in Robertson v. Aero-Power Vac, Inc. and Montana State Fund, 272 Mont. 85 (No. 95-089).
Wages: Overtime. When an employee's term of employment for the same employer is less than four pay periods, the employee's wages for purposes of workers' compensation benefits "are the hourly rate times the number of hours in a week for which the employee was hired to work." Although contract for temporary job stated that project could last 5 to 6 days, and shifts were 12 hours in length, claimant was told he would work for the duration of the project. Where no employee working on the project in fact worked more than 47 hours, claimant's request for weekly wage based on 72 hours per week was rejected, with Court determining his benefits should be calculated on the basis of a 47-hour work week. Affirmed in Robertson v. Aero-Power Vac, Inc. and Montana State Fund, 272 Mont. 85 (No. 95-089).

         This case is presented on an agreed statement of facts and agreed exhibits. The Court will therefore render its decision in narrative form.

         Nature of the Dispute

         David Robertson (claimant), suffered an industrial accident on June 9, 1993. The respondent, State Compensation Insurance Fund (State Fund), accepted liability for the claim. The State Fund has since paid temporary total disability benefits of $173.33 per week based upon a $6.50 an hour wage and a forty (40) hour work week. Claimant contends that his disability benefits should be based on a seventy-two (72) hour work week. He also requests attorney fees and a penalty.

         Exhibits

         Subject to relevancy objections, the parties stipulated to the authenticity and ...


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