39-71-117, MCA


Big Sky Colony, Inc. v. Dep't of Labor & Industry [12/31/12] 2012 MT 320 The decision of the legislature to include religious corporations who engage in commercial activities within the definition of “employer” fails to establish evidence of discrimination against religious organizations.  No reasonable observer would construe this inclusion as sending a message of disapproval of religion.

Big Sky Colony, Inc. v. Dep't of Labor & Industry [12/31/12] 2012 MT 320 The amendment to § 39-71-117(1)(d), MCA, brought about in HB 119, which clarified that religious corporations, organizations, or trusts which engage in commercial activities but do not pay “wages” to their members for labor on these commercial activities, still qualify as “employers” for purposes of the workers’ compensation system if they receive remuneration from nonmembers.  HB 119 does not lose its facial neutrality or shed its secular purpose due to the fact that it sought to include Hutterite colonies’ commercial activities within the scope of the workers’ compensation system.

Big Sky Colony, Inc. v. Dep't of Labor & Industry [12/31/12] 2012 MT 320 Although the Montana Supreme Court acknowledged that a Hutterite colony did not pay “wages” to its members as part of its communal living system, the court concluded that under statutory changes brought about in HB 119, the colony qualified as an employer under § 39-71-117(1)(d), MCA, for purposes of the workers’ compensation system since the colony engages in commercial activities.

Hopkins v. Uninsured Employers' Fund, 2011 MT 49 The Montana Supreme Court affirmed this Court’s conclusion that the appellant, who assigned the claimant tasks and regularly paid him, was an employer within the meaning of the applicable statutes.

[1993] Total Mechanical Heating & Air Condition, et al. v. ERD/UEF , 2002 MT 55. Under section 39-71-401, MCA, it is the responsibility of the statutory employer, and no one else, to provide workers' compensation insurance. Section 39-71-117(1)(a)-(c), MCA (1993), defining "employer," includes every reasonably imaginable private, public and voluntary entity that we typically consider an employer, whereas section 39-71-117(3)(a) and (b), MCA (1993), creates exceptions to the employer definition.
[1993] Total Mechanical Heating & Air Condition, et al. v. ERD/UEF, 2002 MT 55. In a proceeding involving the UEF's assessment of a penalty against an allegedly uninsured employer, the UEF shoulders the burden of proving whether an entity is a statutory "employer" and, if it is, whether the employer is uninsured for workers' compensation coverage. See Auto Parts v. Employement Relations Div., 2001 MT 72, 305 Mont. 40, 23 P.2d 193. In the case of "leased" employees, the definition of "employer" within section 39-71-117, MCA (1993) presumes that client companies are the statutory employers but allows that presumption to be rebutted pursuant to subsections 3(a) and (b) of the statute. To rebut the presumption and find an employee leasing company to be the "employer," there must be a showing that the employee leasing company met certain conditions, one of which is that the leasing company provided workers' compensation coverage to its clients from the inception of its Montana operation. Where the leasing company professes to be the employer, it had the burden to satisfactorily rebut the statutory presumption, which it failed to do where it did not produce credible evidence of workers' compensation insurance. By proving that the National Council of Compensation Insurance (NCII) and State DLI databases did not show insurance for the relevant entities, the UEF, under Auto Parts, supra, met its burden of proving that coverage was not established.
Glaude v. State Compensation Ins. Fund, 271 Mont. 136, 894 P.2d 940 (05/04/95) When reading this section along with section 39-71-117(4), MCA (1993), there is a set of facts under which claimant could recover benefits, requiring the lower court to deny respondent’s motion to dismiss for failure to state a claim on which relief could be granted. If the alleged employer is determined to be an interstate or intrastate common motor carrier and neither of the exceptions in section 39-71-117(4)(a) or (b), MCA (1993) apply, then the alleged employer may be claimant’s statutory employer. If that determination is made, then applying section 39-71-405(1), MCA, the insurance of the contractor above the alleged employer may cover claimant’s alleged injury.
Benton v. Uninsured Employers' Fund [08/14/08] 2008 MTWCC 41 Where Petitioner argues that a motor carrier’s use of an employee truck driver in this state effectively constitutes maintaining a place of business because the truck driver uses a truck, cell phone, computer, and log book to carry out his duties in this state, the Court concludes that the motor carrier business does not maintain a place a business and, therefore, was not an employer pursuant to § 39-71-117(4), MCA.
Sizemore v. Copper King [02/01/08] 2008 MTWCC 8 An “employer” is defined as the company or business entity by which one is employed, and not the physical location where an employee works. Therefore, any rehiring preference would lie with the time-of-injury employer and not with the business entity which subsequently purchased the physical location where the employee was injured.
[1999-2001] MP Livestock Trust/Perry Polzing Trucking [02/04/05] 2005 MTWCC 6 § 39-71-117(3), MCA (1999-2001). A Montana business which uses employees furnished by a professional employer organization (PEO) under a “professional employer arrangement,” § 39-8-102(8), MCA (1999-2001), is an “employer” for workers’ compensation purposes even though the PEO is primarily responsible for furnishing workers’ compensation insurance coverage. §§ 39-8-207(4)(c) and 39-71-117(3), MCA (1999-2001). However, a Montana business which uses employees furnished by a PEO under an “employee leasing arrangement,” § 39-8-102(5), MCA (1999-2001), is not an employer for workers’ compensation purposes. §§ 39-8-207(3) and 39-71-117(3), MCA (1999-2001).
[1999] Bustell v. Ins. Co. Of PA [5/15/02] 2002 MTWCC 26 Under the 1999 Montana Workers' Compensation Act, where an interstate trucking firm hires a Montana resident who operates out of Montana for interstate driving, including driving in Montana, and the driver is injured in another state, the Montana Workers' Compensation Act is applicable to the claim. 39-71-118(1) and -117(4), MCA (1999).
[1999] Roland v. Liberty [02/08/02] 2002 MTWCC 8 Under section 39-71-117(3), MCA (1999), where an insured employer loans its employees to another but retains control over its employees work while working for the other, its insurer is liable for work-related injuries occurring during the work.
[1997] Crawford v. Liberty [2/05/02] 2002 MTWCC 7 Settlement agreements are contracts. Kienas v. Peterson, 191 Mont. 325, 328, 624 P.2d 1, 2 (1980). As a general proposition, upon rescission of a contract, each party is required to restore everything of value received from the other. 28-2-1713, MCA.
[1997] Geiger v. UEF [8/22/01] 2001 MTWCC 46 Where claimant was operating his own independent trucking business and claimant was purchasing/leasing equipment from respondent, the claimant was not "in service under an appointment or contract of hire" even though parties previously had an employment relationship. (Affirmed in Geiger v. UEF/Deckert 2002 MT 332.)
[1997] Geiger v. UEF [8/22/01] 2001 MTWCC 46 Sections 39-71-117 and -118, MCA (1997), which define "employee" and "employer," indirectly establish who must provide workers' compensation coverage and what workers are covered under the Montana Workers' Compensation Act. Section 39-71-117(4), MCA (1997), provides that an interstate motor carrier doing business in this state "who uses drivers in this state is considered the employer" and is liable for workers' compensation insurance unless the driver is certified as an independent contractor. Although claimant was not certified as an independent contractor, the statute applies only to a carrier "who uses drivers in this state." Where claimant was operating his own independent trucking business, respondent did not "use" claimant in his interstate business and was not required to insure claimant. (Affirmed in Geiger v. UEF/Deckert 2002 MT 332.)
[1993] ERD/UEF v. Total Mechanical Heating [6/26/00] 2000 MTWCC 39 DOL Hearing Officer's determination that companies "leasing" employees were insured by putative policies arranged by "lessor" entity reversed where record does not contain substantial evidence of existence of policies nor that lessor retained control over employment as required by section 39-71-117 if "lessee" were to rely on "lessor's" WC policy. WCC Decision affirmed in Total Mechanical Heating & Air Condition, et al. v. ERD/UEF, 2002 MT 55.