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Flink v. American Alternative Insurance Co.8/15/2000
APPEAL FROM: District Court of the Judicial District, The Honorable Mike McCarter, Judge presiding.
Submitted on Briefs: March 23, 2000
1 Annette Flink appeals from the Findings of Fact, Conclusions of Law and Judgment of the Workers' Compensation Court awarding her a 20 percent penalty on retroactive benefits, denying her request for attorney fees, and holding that the insurer properly calculated her weekly wage using a 40-hour work week. We reverse. There is one dispositive issue on appeal: Whether the Workers' Compensation Court erred in concluding that Flink's average weekly wage was properly calculated?
BACKGROUND
2 Flink was hired by Missoula Textile Services as a garment sorter and started work on May 19, 1998. On her first day of work, she suffered an injury to her left wrist. Flink worked approximately one and one-half hours the next day, May 20, 1998. She also worked for Missoula Textile Services between May 26 and June 11, 1998.
3 In September 1998 Flink hired counsel to assist her with her claim for workers' compensation benefits arising from her wrist injury. On September 23, 1998, Flink's counsel wrote American Alternative Insurance Co. (American), insurer for Missoula Textile Services, requesting that it initiate temporary total disability benefits retroactive to her last day of work. In response, American's claim adjuster began collecting medical and employment information on the claimant. In November 1998 Flink's treating orthopedic surgeon recommended surgery to treat her condition. American commenced paying temporary total disability benefits on December 14, 1998, retroactive to November 21, 1998, the day after Flink's treating orthopedic surgeon recommended surgery. On January 25, 1999, American paid Flink additional retroactive temporary total disability benefits for the period of July 14, 1998, to November 20, 1998. Two days later, it conceded liability for additional temporary total and temporary partial disability benefits for the period of June 12 through July 13, 1998.
4 On January 20, 1999, Flink filed a Petition for Hearing, claiming a dispute arose between the parties concerning the amount of benefits she was due. Pursuant to a pretrial order issued April 12, 1999, there were three issues to be determined by the court: (1) the number of hours Flink was hired to work; (2) whether American should be penalized for unreasonable delay; and (3) whether Flink was entitled to attorney fees and costs. The Workers' Compensation Court held a hearing on May 7, 1999. The court issued its Findings of Fact, Conclusions of Law and Judgment on May 25, 1999. The court concluded that Flink's wage was properly calculated using a 40-hour work week, granted Flink a 20 percent penalty for unreasonable delay on the retroactive benefits paid by American after she filed her petition, denied Flink's request for attorney fees, and awarded Flink's request for costs. Flink appeals.
STANDARD OF REVIEW
5 We review findings of fact of the Workers' Compensation Court to determine whether they are supported by substantial credible evidence. See Matthews v. State Compensation Ins. Fund, 1999 MT 225, 5, 296 Mont. 76, 5, 985 P.2d 741, 5. We review the Workers' Compensation Court's conclusions of law to determine whether they are correct. Matthews, 5.
DISCUSSION
6 Whether the Workers' Compensation Court erred in concluding that Flink's average weekly wage was properly calculated?
7 The Workers' Compensation Court specifically found that it was more probable than not that Flink would have worked some overtime. The court then concluded that the amount of overtime she w
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