39-71-120, MCA

Kinney v. UEF [03/05/07] 2007 MTWCC 10 As an artist who sells his work directly to individuals and by placing pieces on consignment, Petitioner is clearly engaged in an independently established trade, occupation, profession, or business, thereby meeting the requirements of § 39-71-120(1)(b), MCA.

[2003] Feather v. UEF [03/28/05] 2005 MTWCC 15 A person working for another is presumed to be an employee. The presumption, however, may be rebutted by evidence demonstrating that the hiring party does not exercise or have a right of control over the work involved and the party hired is engaged in an independently established trade, occupation, profession, or business. § 39-71-120, MCA (2003).

[1995] Thoreson v. UEF [6/28/00] 2000 MTWCC 40 Under 39-71-120, MCA (1995), worker is employee for purposes of the Workers' Compensation Act unless all three statutory criteria are met, including existence of exemption granted under 39-71-401(3). Where worker had not obtained exemption, one criteria is absent and employee status proven for purposes of the workers' compensation act. Court also finds AB test not met where evidence indicates employer retained right to control work of roofer/claimant. Affirmed in nonciteable decision Thoreson v. UEF, 2002 MT 6
[1995] Art v. ICCU ex. rel. Patricia Mason [6/23/00] 2000 MTWCC 37 Under 39-71-120, MCA (1995), worker is employee for purposes of the Workers' Compensation Act unless all three statutory criteria are met, including existence of exemption granted under 39-71-401(3). Where worker had not obtained exemption, inquiry is over and employee status proven for purposes of the workers' compensation act. For purposes of unemployment insurance law (39-51-201(14), MCA (1995), the IC exemption is not required, but the AB test for determining IC status was not met where claimant was not engaged in an occupation, trade or business, but worked only for employer at issue.
[1997] Grywusiewicz v. State Fund [9/24/98] 1998 MTWCC 67 Car salesman who was also performing carpentry work to remodel a new building for the employer was not an independent contractor. He did not meet the requirement of section 39-71-120, MCA (1997) that he be engaged in an independent trade, occupation or business. Moreover, at the time of the accident, his remodeling carpentry work was interlaced with his work as a salesman and was subject to the employer's direction and control.
[1995] Z Works, Inc. v. Barnaby and UEF [3/3/98] 1998 MTWCC 19 Summary judgment granted to UEF establishing liability of uninsured employer where undisputed affidavit proves painter/bookkeeper had not been granted an independent contractor exemption under section 39-71-120, MCA (1995). While the requirement of an exemption may be a trap for employers unschooled in the technicalities of the 1995 legislation, which added the exemption requirement, the Court must apply the law as written. Even assuming claimant told the employer not to purchase workers' compensation insurance, the advice of a bookkeeper or accountant, or even an attorney, cannot relieve the employer from its statutory obligation.
[1995] Bouldin v. UEF/Larry Hurt or Roger Lucas Construction [10/22/97] 1997 MTWCC 58 (WCC No. 9704-7742) Under section 39-71-401(3), MCA (1995), the independent contractor exemption (based on an application approved by the Department) is conclusive and precludes petitioner from obtaining benefits. Where the parties stipulated an IC exemption was in effect governing the work of a carpenter, and that the parties hiring the petitioner checked on the existence of the exemption and relied on the exemption, the WCC rejects petitioner's argument that the Court must separately determine the existence of criteria set out in section 39-71-120, MCA (1995). While section 39-71-120, MCA (1995) lays out the substantive criteria for making the independent contractor determination, section 39-71-401(3), MCA, provides that the Department of Labor is the forum for making that determination and once the determination is made, i.e., the exemption is issued, that determination is conclusive.

[1991] Thayer v. UEF [12/08/94] 1994 MTWCC 110 Although employer sought to minimize his control over salvage operation workers, the Court was convinced the employer retained the right of control over workers, making them employees for purposes of the Workers’ Compensation Act. The decedent’s designation as an independent contractor by the employer is not conclusive as to his status, nor is the fact that he owned an independent scrap business. Though this satisfied the independently established trade criterion of part (b) of section 39-71-120(1), MCA (1991) for independent contractor status, part (a) was not satisfied where the employer retained control over decedent’s work, paid him by the hour and then piece-meal, and furnished necessary equipment.