39-71-317, MCA

McLaughlin v. Northwestern Corp. [03/14/11] 2011 MTWCC 9 Where a case is settled on a disputed liability basis and the injury’s existence is in contention, whether an injury occurred for purposes of § 39-71-317, MCA, is a disputed fact, precluding dismissal or summary judgment.
Burns v. Flathead County [07/11/08] 2008 MTWCC 37 Where Petitioner’s professional career was spent working as a heavy equipment mechanic since 1981, and his ability to operate heavy equipment for the limited purposes of diagnosing and repairing mechanical problems does not necessarily translate into a vocational ability consistent with the specialized operation of this equipment in bridge construction, and where Petitioner possessed limited knowledge and experience working with concrete as required by the bridge equipment operator position, the Court concludes he is not entitled to a hiring preference for this position pursuant to § 39-71-317(2), MCA.
Sizemore v. Copper King [02/01/08] 2008 MTWCC 8 An employee’s rehiring preference lies with her employer at the time the injury occurred, and not with a subsequent employer who purchased the business after the date of injury.
[1999] Lanz v. Liberty Northwest Ins. Corp. [08/03/05] 2005 MTWCC 44 The two-year limitations period for actions based on liability created by statute, § 27-2-211(1)(c), MCA (1999), applies to actions under the employment preference provision of the Workers’ Compensation Act, § 39-71-317, MCA (1999).
[1999] Lanz v. Liberty Northwest Ins. Corp. [04/29/05] 2005 MTWCC 22 The re-employment preferences, section 39-71-317, MCA (1999), do not apply to occupational diseases.
[1999] Lanz v. Liberty Northwest Ins. Corp [04/12/05] 2005 MTWCC 18 The limitations period in section 39-71-318, MCA (1999), applies only to proceedings over which the Department of Labor and Industry has original jurisdiction, not to proceedings over which the Workers’ Compensation Court has jurisdiction, and has no application to an employment preference under section 39-71-317, MCA (1999), since disputes involving the preference must be brought in the Workers’ Compensation Court, § 39-71-317(3), MCA (1999).
[1999] Lanz v. Liberty Northwest Ins. Corp [04/12/05] 2005 MTWCC 18 Sections 39-71-601 and 39-72-403, MCA (1999), which provide time limitations for the filing of workers’ compensation and occupational disease claims, respectively, apply only to claims for workers’ compensation and occupational disease benefits and not to disputes involving the employment preference provided in section 39-71-317(2), MCA (1999).
[2003] McManus v. UEF [9/22/04] 2004 MTWCC 64 An employer must give an injured worker a two-year rehiring preference for any job opening occurring within two years of the worker's industrial accident if the worker is qualified for and able to perform the job. An employer is liable for damages for any failure to give the worker a preference as required and the Workers' Compensation Court has jurisdiction over such action. 39-71-317, MCA (1999-2003).
[2003] McManus v. UEF [9/22/04] 2004 MTWCC 64 Section 39-71-317, MCA (1999-2003), makes it unlawful for an employer to discharge an employee for pursuing a workers' compensation claim, however, any action for violating the prohibition must be brought in district court.

[2003] McManus v. UEF [9/22/04] 2004 MTWCC 64 Any action for an employer's failure to honor the two-year rehiring preference specified in section 39-71-317(2), MCA (1999-2003), is against the employer and not against the employer's insurer or the Uninsured Employers' Fund if the employer was uninsured.

[1999] Brandon v. Montana State Fund [7/10/02] 2002 MTWCC 36 Statute creating a rehiring preference for injured employees creates a cause of action against an employer failing to follow the statute but it does not create a cause of action against the employer's insurer. An insurer is not a proper party to such action.

[1999] Seger v. Magnum Oil, Inc. [10/29/99] 1999 MTWCC 67 Self-insured employer's motion to dismiss injured worker's claim for denial of reemployment preference under section 39-71-317, MCA (1999) denied. Although employer argued WCC lacked jurisdiction, section 39-71-317, MCA (1999) gives the WCC "exclusive jurisdiction to administer or resolve a dispute concerning the reemployment preference." Even though claimant's injury occurred prior to passage of the 1999 statute, the WCC has jurisdiction where precedent indicates legislatures may change the forum for resolution of pending disputes without enacting a "retroactive" law. Although the WCC was initially concerned the change in jurisdiction may impact an accrued substantive right to jury trial, further consideration indicates the reemployment preference is a creation of statute to which no right to jury trial attached.