39-71-118, MCA

MONTANA SUPREME COURT DECISIONS

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.

[1999] Dyess v. Meagher County [4/10/03] 2003 MT 78 A person enrolled in an Emergency Medical Technician training course, which includes participation in at least 10 hours of work-based learning activities on an ambulance, but involves no contract of employment or anticipated employment, no wages, and no actual services performed, is not an "employee" or "worker" within section 39-71-118(1)(g), MCA.
[1997] Fliehler v. Uninsured Employers' Fund, 2002 MT 125. Company that installs kitchens for restaurants nationwide is an employer required to maintain workers compensation insurance under the Montana Workers Compensation Act even though day-to-day control of employee's duties took place outside Montana. While company performed no recent jobs in Montana, its principal place of business was in Montana, which was the state where the crew was hired, from which they left to perform jobs, and where they returned to live between jobs. Where there was no singular point of control in the sense that all of the employee's duties were controlled from Montana, or that all of his duties were controlled at non-Montana job sites, the WCC was correct in comparing all of the employer's activities at its various locations and concluding that the primary, principal and ultimate control over the work took place in Montana.
[1997] Schimmel v. UEF, 2001 MT 280 WCC erred in concluding long-haul trucking company was not required to insure truck driver in Montana. Under section 39-71-118(1)(a), MCA (1997), an "employee" is "each person in this state, including a contractor other than an independent contractor, who is in the service of an employer, as defined in 39-71-117, under any appointment or contract of hire, express or implied, oral or written." This provision is determinative of the employee status of claimant, who resided in Montana. WCC erred in looking to section 39-71-118(10)(a), MCA, which defines an "employee or worker in this state" as "a resident of Montana who is employed by an employer and whose employment duties are primarily carried out or controlled within this state." That provision defines only the phrase "employee or worker in this state," a phrase used in section 39-71-118(8), MCA (1997), not the term "employee."
[1995] Connery v. Liberty Northwest Insurance Corp., 280 Mont. 115, 929 P.2d 222 (1996). WCC correctly interpreted section 39-71-118(2)(a), MCA (1995) to include two-part analysis: first, whether activity leading to accident was recreational; second, whether injured person was relieved of and not performing duties of employment at the time of the accident. WCC did not err in using a course and scope analysis to decide second issue. Where ski instructor was engaged in warm-up run specifically recommended by employer in training manual, from which both employee and employer benefitted, and would finish her run at the place where she would begin a pre-assigned lesson, she was in course and scope of employment and injury was compensable.
 
WORKERS' COMPENSATION COURT DECISIONS

Erhard v. Liberty Northwest Ins. Corp. [08/01/12] 2012 MTWCC 26 An employment relationship is a contract between an employer and an employee, and whether an employment relationship exists is a question of contract law.  An agreement may contain conditions precedent which the parties must meet before the employment relationship begins.  Here, Petitioner was required to complete all necessary paperwork, sign a job application, and have the physical ability to perform the duties of the job.  Because Petitioner had not satisfied the conditions precedent at the time of his accident and injury, no employment agreement existed and he was therefore not injured in the course and scope of his employment.  

Hopkins v. Uninsured Employers' Fund [05/04/10] 2010 MTWCC 9 Volunteers are generally not considered employees under the WCA, and therefore not entitled to workers’ compensation coverage.  A “volunteer” means a person who performs services on behalf of an employer but who does not receive wages.  Where the alleged employer testified he gave Petitioner money on multiple occasions, “out of my heart” coincidentally while Petitioner was performing “favors” the Court concluded that Petitioner was not a volunteer.
[2001] Haarer v. Liberty Northwest Ins. Corp. [4/11/03] 2003 MTWCC 28 A ski lift operator at an exclusive ski club who is permitted to ski on a break, is paid while skiing, and is required to wear his uniform and answer questions of and render assistance to members while skiing, was in the course and scope of employment while skiing on his break. The recreational activity exception therefore did not apply and an accident occurring while he was skiing was a covered industrial accident.
  [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] Bustell v. Ins. Co. Of PA [5/15/02] 2002 MTWCC 26 Employment is defined as a "contract for hire," 39-71-118(1), MCA (1999), therefore the existence of an employment relationship is governed by contract law.

[1995] Chapel v. MACO [12/14/01] 2001 MTWCC 63 Ambulance volunteers are not firefighters and are not entitled to imputation of wages under section 39-71-118(7), MCA (1995), for purposes of calculating temporary total disability benefits.
[1995] Chapel v. MACO [12/14/01] 2001 MTWCC 63 Volunteer firefighters not employed by rural fire districts are not entitled to imputation of wages under section 39-71-118(7), MCA (1995), for purposes of calculating temporary total disability benefits.
[1997] Geiger v. UEF [8/22/01] 2001 MTWCC 46 Where claimant was operating his own independent trucking business, he was not "in the service of an employer" within the meaning of section 39-71-118, MCA (1997). Thus, he was not entitled to benefits, and UEF correctly denied his claim. [Affirmed in Geiger v. UEF/Deckert 2002 MT 332.]
[1997] Fliehler v. UEF [6/01/01] 2001 MTWCC 29 Where the employer operates from Montana, employs Montana workers, directs his workers to out-of-state jobs from Montana, transports those workers from Montana to job sites in other states, transports the workers back to Montana after most jobs, pays the workers in Montana by checks drawn on a Montana bank, the employer is a Montana employer and his employees are Montana employees subject to Montana jurisdiction and laws. [Affirmed in Fliehler v. Uninsured Employers' Fund, 2002 MT 125. ]
[1997] Schimmel v. UEF [6/28/00] 2000 MTWCC 41 Under 39-71-118, MCA (1997), a worker is an employee for whom an employer must carry WC insurance only if he is a resident of Montana whose employment duties are primarily carried out or controlled within this state. Where the alleged employer had offices in and controlled its business from Washington, and most of claimant's long-haul truck driving occurred outside Montana, claimant was not a "worker in this state" and Montana WC coverage was not required. [Note: The Montana Supreme Court reversed the WCC on this point. See Schimmel v. UEF, 2001 MT 280.]
[1997] Thoreson v. UEF [6/28/00] 2000 MTWCC 40 Under 39-71-118, MCA (1997), a worker is an employee for whom and employer must carry WC insurance only if he is a resident of Montana whose employment duties are primarily carried out or controlled within this state. Where the alleged employer has offices in and controlled its business from Washington, and most of claimant's long-haul trucking driving occurred outside Montana, claimant was not a "worker in this state" and Montana WC coverage was not required.
[1993] Sandoval v.UEF and Jacklin [10/21/98] 1998 MTWCC 76 Where it is undisputed claimant was a resident of Montana when injured, section 39-71-118(7)(a), MCA (1993) sets forth the standard for determining whether Montana workers' compensation law is applicable. That section provides that an "employee or worker in this state" means "a resident of Montana. . . whose employment duties are primarily carried out or controlled within this state." The Court interprets "primarily" to mean "first in importance" or "leading," not 50% or more. Thus, subsection 7(a) covers traveling employees whose employment duties carried out in Montana exceed the duties they carry out in any other individual jurisdiction. If only two states are involved, then the Montana duties must equal or exceed 50%. If there are three or more states, then the percentage of time worked in Montana must be greater than the percentage of time worked in each of the other states individually.
[1993] Sandoval v.UEF and Jacklin [10/21/98] 1998 MTWCC 76 Cross motions for summary judgment filed raising the question whether claimant, a mule and horse trainer, was covered by the Montana Workers' Compensation Act when injured at a mule race in Nevada. UEF and the employer argue Montana lacks jurisdiction over the accident because the employer is not a Montana resident, he does not operate a business in Montana, and claimant's work was performed primarily outside of Montana. Where it is undisputed claimant was a resident of Montana, the Court looks to section 39-71-118(7)(a), MCA (1993), which provides that an "employee or worker in this state" means "a resident of Montana . . . whose employment duties are primarily carried out or controlled within this state." Although it appears uncontroverted that races did not occur in Montana during the applicable term of employment, summary judgment denied where the Court does not have sufficient evidence to rule out the possibility that claimant would have done substantial work in Montana that season had he not been injured. [Note: summary judgment was granted to the UEF and employer in Sandoval v. Uninsured Employers' Fund and Donald W. Jacklin [5/6/99] 1999 MTWCC 33.]
[1993] Sandoval v.UEF and Jacklin [10/21/98] 1998 MTWCC 76 In order to determine whether claimant's duties were primarily carried out in Montana, the Court must decide whether to consider all the employments claimant had with this employer, or to consider the employment under the parties' written agreement for training and racing mules for the 1995 season, the season in which claimant was injured. Because subsection (7) contemplates present employment, and where the parties had entered into a series of written and oral agreements for specific terms of work, the Court will look only to the time period covered by the most recent written agreement.
[1995] Deigert v. Liberty Northwest Ins. Corp. [10/16/98] 1998 MTWCC 74 Skiing is a recreational activity within section 39-71-118, MCA (1995). However, to resolve the question whether a ski instructor skiing while not instructing is covered by the WCA, the Court must determine whether he was acting within the course and scope of employment when skiing. To do so, the Court applies the four-factor test set out in Courser v. Darby School Dist. No. 1, 214 Mont. 13, 16-17, 692 P.2d 417, 419 (1984), looking to (1) whether the activity was undertaken at the employer's request; (2) whether the employer, either directly or indirectly, compelled employee's attendance at the activity; (3) whether the employer controlled or participated in the activity; (4) whether both employer and employee mutually benefitted from the activity. The presence or absence of each factor may or may not be determinative and the significance of each factor must be considered in the totality of all attendant circumstances. Here, the WCC finds claimant was not in the course and scope of employment where he was not teaching a lesson, had not been asked by the employer to perform warm-up runs, the employer received only insubstantial benefit from the claimant's skiing in his "official" resort parka, and claimant was not in fact warming up to teach a lesson, but was skiing a hard run for his own enjoyment. The WCC distinguished Connery v. Liberty Northwest Ins. Corp., 280 Mont. 115, 929 P.2d 222 (1996), where the ski resort employer had encouraged ski instructors to take warm-up runs and the employee had been injured during such a run.
[1995] Zarn v. Liberty Mutual Fire Ins. Co. [10/9/98] 1998 MTWCC 70 The "recreational activity" exception from the definition of employee within section 39-71-118, MCA (1995) does not apply to a ten to fifteen minute conversation between two employees where the conversation included some subjects relating to work for Glacier Park, the injured employee had already started work, and the fall actually occurred as the employee left to commence work. The words "recreational activity" do not in their usual and ordinary sense encompass conversation. Moreover, the legislative history of the exception indicates the exception began as a limitation applicable to ski resorts (employees skiing as recreational activity) and, although the exception was expanded to include all employments, the focus of legislative concern were "recreational activities" such as skiing, golfing, hunting and dude ranching.
[1989] Major v. State Fund [11/15/96] 1996 MTWCC 70 Where sole proprietor who elected coverage declared monthly earnings at $900 for policy purposes, insurer properly refused to base wage supplement benefits on loss of post-injury earnings rather than declared wages. Section 39-71-118(2), MCA (1989), provides that "all weekly compensation benefits must be based on elected wages. . . ." Section 39-71-703(1)(b)(i), MCA (1989), which governs wage supplement benefits, states that a worker must be "compensated in weekly benefits." Under the plain language of the statutes, all weekly benefits, including wage supplement benefits, must be based on the amount elected.
[1995] Connery v. Liberty Northwest Insurance Corp. [7/22/96] 1996 MTWCC 54 (WCC No. 9602-7507) Section 39-71-118(2)(a), MCA (1995) requires a two-part analysis: first, whether activity leading to accident was recreational; second, whether injured person was relieved of and not performing duties of employment at the time of the accident. Where ski instructor was engaged in warm-up run specifically recommended by employer in training manual, from which both employee and employer benefitted, and would finish her run at the place where she would begin a pre-assigned lesson, she was in course and scope of employment and injury was compensable. [Note: WCC affirmed in Colleen Connery v. Liberty Northwest Insurance Corp., 280 Mont. 115, 929 P.2d 222 (1996).]
Simpson v. Lewis and Clark County [02/16/95] 1995 MTWCC 14 Section 39-71-118(f), MCA (1991), which limits workers' compensation benefits available to an individual performing community service work under court order, does not violate constitutional provisions requiring equal protection, full legal redress, or substantive due process, nor does it inflict cruel and unusual punishment. The legislature's decision to provide a more limited benefits package to workers injured while performing court-ordered community service was rationally calculated to encourage public agencies and non-profit organizations to participate in community service programs while still affording some protection to the workers (medical benefits and impairment award).