39-71-407, MCA

MONTANA SUPREME COURT DECISIONS

Hopkins v. Uninsured Employers' Fund, 2011 MT 49 Although the claimant used marijuana on the day of his industrial accident, where the parties presented no evidence regarding the claimant’s level of impairment, the Montana Supreme Court held that this Court correctly concluded that the marijuana use was not the major contributing cause of the injuries the claimant suffered when he was mauled by a grizzly bear.

Liberty Northwest Ins. Corp. v. Montana State Fund/Re: Mitchell, Gary [11/12/09] 2009 MT 386 The Montana Supreme Court concluded that the last injurious exposure rule in Montana will be the “potentially causal” standard.  Under this approach, a claimant who has sustained an occupational disease and was arguably exposed to the hazard of an OD among two or more employers is not required to prove the degree to which working conditions with each given employer have actually caused the OD in order to attribute initial liability.  Instead, the claimant must present objective medical evidence demonstrating that he has an OD and that the working conditions during the employment at which the last injurious exposure was alleged to occur, were the type and kind of conditions which could have caused the OD.  This rule applies only in those situations where an OD is being diagnosed for the first time.
Heth v. Montana State Fund [05/05/09] 2009 MT 149 The plain language of § 39-71-407, MCA, does not require that an employer have knowledge of alcohol and/or drug use immediately prior to his or her employee’s accident. Where the employer had ongoing knowledge that his employee drank beer while working and driving the company trucks, the employer had discussed the beer consumption with the employee on more than one occasion, the employer had observed full and empty beer cans in the company trucks, the Workers’ Compensation Court correctly distinguished this case from a hypothetical situation where an employer caught an employee drinking on the job on an isolated occasion just prior to an accident. Not only did the employer have knowledge that his employee drank on the job, but the employer did not attempt to stop him, as required by the language of § 39-71-407(4), MCA. By merely counseling moderation and control, the employer acquiesced to the employee’s on-the-job alcohol consumption.

[1993] Paterson v. Montana Contractor Compensation Fund, 1999 MT 158 Substantial evidence supported WCC's determination that construction worker seeking TTD had reached maximum medical healing prior to non-work related aggravation of back condition, relieving the insurer of liability for compensation or medical benefits caused by the nonwork-related aggravation pursuant to section 39-71-407(5), MCA (1993). WCC relied on physician's testimony that MMI was reached if certain facts were established and Court's own finding that those facts existed, to wit: that claimant resumed work after the first injury and engaged in heavy labor for extended periods of time without exhibiting apparent back problems or complaining, that claimant was not fearful of losing employment through complaining, and that affordable medical care was available to claimant.

[1993] Paterson v. Montana Contractor Compensation Fund, 1999 MT 158 Where insurer had relied on section 39-71-407(5), MCA (1993) in trial in WCC and matter involved same insurer and subsequent non-work related injury, WCC did not misapply burden of proof by failing to shift the burden to the insurer. Cases involving subsequent insurers distinguished.
[1995] Heath v. Montana Municipal Insurance Authority, 1998 MT 111 Supreme Court affirmed WCC conclusion that police dispatcher was not in the course and scope of employment where she slipped and fell on public sidewalk on her way to work. Where it was undisputed that the employer did not furnish claimant transportation, nor reimburse her for costs of travel, nor require any specifics of her travel, and she was simply on her way to work, the claim was not compensable under section 39-71-407, MCA (1995), which the Supreme Court has previously held to encompass the historical "going and coming" rule as well as exceptions to the rule. The claim does not become compensable because claimant's employer, the City of Lewistown, maintained the sidewalk where the sidewalk was a public sidewalk and not used in connection with the actual place of work.

[1991] Carrillo v. Liberty Northwest Insurance, 278 Mont. 1, 922 P.2d 1189 (1996). The 1987 amendments to the statute codify exceptions to the general workers’ compensation rule that actions occurring when employees are going to or coming from work are not within the course and scope of employment. The statute does not control analysis of whether an employee on break remains within the course and scope of employment where she briefly leaves the employer’s premises as allowed by employer’s policies. 39-71-407(3), MCA (1991).

 
WORKERS' COMPENSATION COURT DECISIONS

Clapham v. Twin City [10/16/12] 2012 MTWCC 34 Where Petitioner’s treating physician opined that his work was the fourth in importance of five factors which contributed to his degenerative disk disease, the Court concluded that Petitioner’s work was not the “leading cause” as set forth in § 39-71-407(13), MCA.

Cornelius v. Lumbermen's Underwriting Alliance [08/07/12] 2012 MTWCC 29 While Respondent believes it should escape its duty to pay benefits under § 39-71-407(5), MCA, by suggesting it is possible that an argument might be made that Petitioner’s condition is not work-related and therefore neither insurer would be liable, Respondent cannot escape such a duty if it did not mount an effective defense as to why it did not pay Petitioner’s benefits and then seek indemnification from the other insurer.

Cornelius v. Lumbermen's Underwriting Alliance [04/27/12] 2012 MTWCC 13 Petitioner previously suffered an industrial injury, and later filed an occupational disease claim for an alleged permanent aggravation of her condition under a new employer.  Since Petitioner’s claim was either compensable under her previous industrial injury claim or her new occupational disease claim, the subsequent insurer had a duty to pay her benefits under § 39-71-407(5), MCA, and its failure to do so was unreasonable.

McLeish v. Rochdale Ins. Co. [07/18/11] 2011 MTWCC 18 Section 39-71-407(1), MCA, requires that an injury both arise out of and in the course of employment. Where Petitioner suffered an “undetermined medical event” which caused him to fall on a flat surface, his injury occurred in the course of his employment but did not arise out of his employment as his employment was not one of the contributing causes which placed him in harm’s way.
Charlson v. Montana State Fund [02/25/11] 2011 MTWCC 7 Under the “going and coming” rule, an employee traveling to or from a regular work place is not covered by the WCA.  An exception recognizes compensation benefits for injuries sustained during travel necessitated by performance of a special assignment incidental to regular employment.  Where Petitioner was traveling to a job site to begin a regular work shift, he does not fall within this exception.
Fleming v. Montana Schools Group Ins. Authority [06/04/10] 2010 MTWCC 13 Where Petitioner’s treating physician opined that she had not reached pre-exacerbation baseline from the industrial accident, two IME panel physicians opined that at the time of the panel it was impossible to determine whether Petitioner’s aggravation would be temporary or permanent, one of the IME physicians clarified in his deposition that if no surgical solution existed for Petitioner’s condition eleven months after her injury, Petitioner’s condition would most likely be permanent, and an IME physician’s opinion that Petitioner’s injury was a temporary aggravation was internally inconsistent, the Court concluded that Petitioner suffered a permanent aggravation of her preexisting low-back condition.
Fleming v. Montana Schools Group Ins. Authority [06/04/10] 2010 MTWCC 13 Where Petitioner’s physician noted decreased range of motion following her injury and increased her pain medication, Petitioner’s pain differed from the pain she experienced prior to the accident, and Petitioner’s symptoms correlated with her post-injury SPECT scan, the Court held that Petitioner established by objective medical findings that she sustained an injury.
Hopkins v. Uninsured Employers' Fund [05/04/10] 2010 MTWCC 9 Although Petitioner admitted smoking marijuana before arriving at work on the morning of the bear attack, the Court concluded that nonprescription drug use was not the major contributing cause of the incident. When it comes to attacking humans, bears are equal opportunity maulers, attacking without regard to race, creed, ethnicity, or marijuana usage.
Dewey v. Montana Contractor Compensation Fund [05/16/09] 2009 MTWCC 17 Although the objective medical evidence established that the claimant had bilateral carpal tunnel syndrome, the claimant failed to prove under § 39-71-407(9), MCA, that events occurring on more than a single day or work shift are the major contributing cause of his carpal tunnel syndrome where the only medical provider who found a causative link had incomplete and inaccurate information and no access to older medical records.
Liberty Mutual Ins. Corp. v. Montana State Fund/Re Claim of Mitchell [12/23/08] 2008 MTWCC 54 The plain meaning of § 39-71-407(9), MCA, contains no requirement that the “employment” which is the major contributing cause of a claimant’s occupational disease derive from a particular employer. The statute calls for a comparison between occupational and non-occupational factors as part of the determination as to whether the OD is considered to “arise out of employment or be contracted in the course and scope of employment.” If such a determination is made, then the analysis moves forward to § 39-71-407(10), MCA, to assign liability to the employer of last injurious exposure.
Liberty Mutual Ins. Corp. v. Montana State Fund/Re Claim of Mitchell [12/23/08] 2008 MTWCC 54 Where the claimant carried lumber, performed concrete work, repaired fences and performed security work from August through October 2005, and testified that his back condition worsened during this period of time, and where his physicians agreed that this employment contributed to some degree to his present low-back condition, the Court concludes that the claimant was last injuriously exposed to the hazard of his OD during this period of time.
Liberty Mutual Ins. Corp. v. Montana State Fund/Re Claim of Mitchell [12/23/08] 2008 MTWCC 54 Where a physician concluded that the accumulation of 30 years of heavy labor is responsible for a claimant’s current low-back condition, a different physician opines that the claimant’s ongoing employment from 2002 through October 2005 contributed to some degree to the development of the occupational disease, and the physicians’ opinions are supported by objective medical findings, the Court concludes that the major contributing cause of the OD is the claimant’s lifetime of heavy-labor employment.
Rau v. Montana State Fund [06/04/08] 2008 MTWCC 26 Petitioner experienced an orthostatic faint, which can occur some seconds after an individual has changed from a supine or sitting to standing position. Petitioner’s job duties included leaving her desk to assist customers. Petitioner’s performance of these duties precipitated the syncopal episode which in turn caused her head injury. The actions which caused her injury were within the course and scope of her employment and her injury is therefore compensable.
Heth v. Montana State Fund [04/25/08] 2008 MTWCC 19 Although the Court determined that alcohol was the major contributing cause of Petitioner’s industrial accident, under § 39-71-407(4), MCA, if the employer had knowledge of the employee’s use of alcohol and failed to attempt to stop the employee from using alcohol, the subsection barring recovery does not apply. Where the evidence presented was that Petitioner’s employer knew he consumed alcohol on the job, that he had urged Petitioner to moderate his on-the-job drinking and had directed him to place his empty cans in a sack rather than allow them to be loose in the vehicle, and where the last time Petitioner’s employer saw him on the night before the accident, Petitioner was getting into his work vehicle with a six-pack of beer, the Court concluded that Petitioner’s employer had knowledge of Petitioner’s use of alcohol and failed to attempt to stop him from using it. Therefore, Petitioner is not barred from recovery of benefits under § 39-71-407(4), MCA.
Heth v. Montana State Fund [04/25/08] 2008 MTWCC 19 In a vehicular accident case, the investigating officers and Respondent’s expert witnesses considered the other possible contributing causes of the accident and systematically eliminated them. The accident occurred in good weather in broad daylight on a well-maintained dry road, and other conceivable causes for the accident including mechanical failure, obstructions in the roadway, and fatigue were ruled out by the investigators. Petitioner’s BAC was measured at .0874 some time after the accident and which was computed by an expert witness to have been .10 or .11 at the time of the accident. While the facts of the case indicate that fatigue may have played some role in the accident, in light of the evidence presented, the Court concluded that alcohol was the major contributing cause.
Driggers v. Liberty Northwest Ins. Co. [12/31/07] 2007 MTWCC 60 Where Petitioner was injured while driving to work in a vehicle furnished by his employer and for which the employer paid for gas, oil, maintenance, and insurance, the Court held Petitioner was injured in the course and scope of his employment based on the two-part test set forth at § 39-71-407(3)(a)(I), MCA. Petitioner satisfies the first part of the test because he was injured while driving a vehicle furnished by his employer. Petitioner satisfies that second part of the test, that the travel was necessitated by and on behalf of the employer as an integral part or condition of his employment, based upon the well-established case law in Montana regarding the exceptions of the going and coming rule.
Foster v. Montana Schools Group [06/11/07] 2007 MTWC 18 Where Petitioner established that she sustained avascular necrosis of the subchondral area of the lateral femoral condyle, but failed to show how the AVN condition was causally related to her initial injury or subsequent arthroscopy with objective medical findings, Petitioner failed to meet her burden of proof pursuant to the 1995 amendments to § 39-71-407, MCA.
Johnson v. MHA Workers' Comp Trust [05/22/07] 2007 MTWCC 17 Where Petitioner’s claim is governed by the post-1995 version of § 39-71-407, MCA, her reliance on Moffett v. Bozeman Canning, 95 Mont. 347, 26 P.2d 973 (1933), Plainbull v. Transamerica Ins. Co., 264 Mont. 120, 870 P.2d 76 (1994), and Prillaman v. Community Medical Center, 264 Mont. 134, 870 P.2d 82 (1994), is largely misplaced. Unlike these pre-1995 cases, Petitioner has to establish with objective medical findings that an injury occurred.
Faulkner v. Hartford Underwriters Ins. Co. [04/24/07] 2007 MTWCC 15 Under the 2005 version of the Workers’ Compensation Act, the Court does not need to determine whether Petitioner’s occupational disease is related to the January 2000 injury or is a new distinct occupational disease unrelated to the 2000 injury. The Court only needs to determine whether the events that occurred during Petitioner’s employment at N.E.W. were the “major contributing cause” of his occupational disease in relation to other factors.

[1993] Leger v. Liberty Mutual Fire Ins. Co. [11/05/04] 2004 MTWCC 74 § 39-71-407(5). Where a claimant suffers a subsequent nonwork-related injury to the same body part and the injury materially and permanently aggravates the preexisting condition involving that body part, the insurer liable for a prior injury to that same part is relieved from further liability for disability and treatment involving the body part.

[1993] Leger v. Liberty Mutual Fire Ins. Co. [11/05/04] 2004 MTWCC 74 § 39-71-407(5). Where a nonwork-related incident satisfies the injury and accident definitions of section 39-71-119, MCA (1993), the incident constitutes a subsequent nonwork-related injury for purposes of section 39-71-407(5), MCA (1993)

[1995] Bain v. Liberty Mutual Fire Ins. [5/27/04] 2004 MTWCC 45 Section 39-71-407, MCA (1995-2003), provides for compensation for injuries “arising out of and in the course and scope of employment.” In Pinyerd v. State Compensation Ins. Fund, 271 Mont. 115, 119-120, 894 P.2d 932, 935 (1995), the Supreme Court parsed the requirement, holding as follows:

 “The language ‘in the course of employment,’ generally refers to the time, place and circumstances of an injury in relation to employment. . . . The phrase ‘arising out of’ is related to the concept of causation.”

[1999] Lockwood v. LIberty NW Ins. [3/2/04] 2004 MTWCC 21 Where the claimant reached MMI following a work-related patellar dislocation, and thereafter suffered a material, permanent aggravation of her patellar condition in a nonwork-related injury, the insurer for the work-related injury is relieved of further liability under section 39-71-407(5), MCA (1999).
[1995] Flikkema v. Mont. Contractor Comp. Fund [3/2/04] 2004 MTWCC 20 Where a claimant was on her lunch hour, made arrangements to meet and in fact met her daughters for lunch at a restaurant several miles away from her employer's office, she was not in the course and scope of employment even though she offered to and did pick up lunch for two co-employees, at least where her doing so was part of an informal arrangement among co-employees under which they picked up lunch for others if going out to eat, and they were not directed or pressured to do so by the employer, and where the employer received no additional benefit from an employee bringing back lunch for co-employees than it received when they brought their lunches.
[1999] Van Vleet v. Montana Assoc. of Counties Workers' Compensation Trust [2/19/04] 2004 MTWCC 8 Where a substantial cause of the claimant's injury or death is alcohol intoxication, a claim for benefits is barred by section 39-71-407(4), MCA (1999), unless the employer was aware that the claimant was using alcohol or drugs and failed to attempt to stop the use. Reversed on other grounds in Van Vleet v. Montana Association of Counties Workers' Compensation Trust, 2004 MT 367 (No. 04-206)
[2003] Bergum v. State Fund [1/14/04] 2004 MTWCC 3 A round-trip of three miles on a motorcycle is not covered under the Workers' Compensation Act where the transportation was not furnished by the employer, the employee was not compensated for the travel, and the travel was not authorized by the employer. § 39-71-407(3)(a), MCA (2003).
[1999] Bustell v. Ins. Co. Of PA [5/15/02] 2002 MTWCC 26 Where claimant, a truck driver, is employed by a trucking firm which contracts to haul loads for North American Van Lines (NAVL), that firm turns over a truck to her, and claimant drives the truck a few miles between NAVL's truck center and a medical laboratory in order to take a drug screening test required by NAVL, the claimant was in the course and scope of her employment during that travel. §§ 39-71-407(1) and (3), MCA (1999).
[1987] Borglum v. Hartford [3/12/02] 2002 MTWCC 16 Under legislation adopted in 1987, § 39-71-407(3)(a), MCA, travel to and from work is deemed in the course and scope of employment where the travel is required by the employer and the employer reimburses claimant for costs of travel. Since the section does not contain any requirement for a minimum amount of reimbursement or any requirement that the reimbursement be substantial or adequate, the section is satisfied by any reimbursement for the travel.
[1995] Thoreson v. UEF [6/28/00] 2000 MTWCC 40 Based on claimant's smoking the equivalent of three marijuana joints within a couple of hours of going on a roof to work, and his bizarre, reckless conduct of walking along the very edge of the roof like a tightrope walker, claimant was in fact intoxicated and the intoxication was a leading cause of his accident and injury. However, employer did have knowledge of claimant's drug use and failed to attempt to stop same, making claimant entitled to benefits. Affirmed in nonciteable decision 2002 MT 6.

[1993] Paterson v. Montana Contractor Compensation Fund [6/22/98] 1998 MTWCC 55 Where claimant reached MMI on a minor back injury prior to suffering a permanent aggravation of his back condition in a nonwork-related incident, section 39-71-407(5), MCA (1993) relieved the insurer of liability for compensation and medical benefits following the nonwork aggravation. [Note: WCC decision affirmed in Paterson v. Montana Contractor Compensation Fund, 1999 MT 158.]

[1995] Kuhrt v. State Fund [12/30/97] 1997 MTWCC 72 (WCC No. 9707-7788) Slip and fall of savings and loan teller when getting out of her pick-up on a public street, before starting work, was not in the course and scope of employment. Parties stipulated that claimant received no travel pay to commute to work, that parking was not available to claimant in any lot maintained by the employer, and that employer "suggested" she park on the street. Claimant was still traveling to work when she was injured. Under section 39-71-407, MCA (1995), for the travel to be compensable, either the employer must reimburse for travel costs or the travel must be required as part of the job duties. It is well settled in Montana that going to and from work, absent compensation for the travel, is not a part of the employee's job duties.
[1995] Heath v. Montana Municipal Insurance Authority [9/25/97] 1997 MTWCC 52 (WCC No. 9702-7700) Police dispatcher who fell on public sidewalk on her way to work was not within the course and scope of employment where she had not started work, was not yet being paid, and was not performing work-related duties. The fact that claimant worked for the City of Lewistown, which maintained the sidewalk, did not bring her within the course and scope of employment where she was still on a public sidewalk when she fell, not a sidewalk which was part of her specific employer's premises. (Note: affirmed in Angela Heath v. Montana Municipal Insurance Authority, 1998 MT 111, No. 97-669).
[1995] Kuykendall v. Liberty NW [3/17/97] 1997 MTWCC 12 Claimant injured in fight with co-worker at lumber mill was injured within course and scope of employment where there was a "reasonable connection between" the fight and "the conditions under which [claimant] pursued his employment." Pinyerd v. State Comp. Ins. Fund, 271 Mont. 115 (1995). "It is universally agreed that if the assault grew out of an argument over the performance of the work, the possession of tools or equipment used in the work, . . . the assault is compensable." Larson's Worker's Compensation Law, section 11.12 (b). Although claimant seriously escalated the confrontation by swinging a two-by-four, he was goaded into his anger by an employee who threw two-by-fours onto claimant's work table as an act of provocation.
[1995] Gubler v. Liberty Northwest Ins. Co. [1/6/97] 1997 MTWCC 1 (WCC No. 9607-7580) Craftsman injured while driving supervisor's truck to pick up supervisor for work was injured in course and scope of employment and met the requirements for compensable travel injury under section 39-71-407, MCA (1995). Given its use, the truck was in essence a company truck used in the course of business which had been furnished to claimant for use at that particular time. At the time of the accident, claimant was performing duties required of him by his supervisor.
[1993] Hamlin v. State Fund [12/29/95] 1995 MTWCC 113 Section 39-71-407(5), MCA (1993) relieves the insurer of liability for claimant’s knee condition following non-work related fall where he had reached MMI after knee surgery following industrial accident and the Court finds, as a matter of fact, that claimant did not suffer from instability of his knee following his first surgery and that his non-work related fall was not caused by a pre-existing work-related knee condition.
[1993] Cary v. Lumbermens Mutual Casualty Co. [7/7/95] 1995 MTWCC 56 The statute relieves an insurer from further liability for claimant’s condition only if claimant’s nonwork-related injury amounted to a permanent aggravation of her condition. If the aggravation is permanent, then future disability and treatment is “caused” by the nonwork-related injury within the meaning of the statute. If the nonwork related incident caused only a temporary flare-up of symptoms of her underlying condition, further treatment and any future disability is still caused by the work related injury for which the insurer remains liable.

Moore v. State Compensation Ins. Fund [04/17/95] 1995 MTWCC 29 Where insurer is unable to point to any specific injury occurring when claimant’s house cleaning aggravated her back condition, it has not proven a subsequent non work-related injury relieving it from liability for ongoing medical care under section 39-71-407, MCA (1991).

[1993] Mutchie v. Old Republic Insurance Co. [03/08/95] 1995 MTWCC 19 A diamond driller working at a mine was in the course and scope of employment while putting on overalls in the employer’s “dry” room, which houses showers, lockers, and fans for drying clothes, prior to entering the mine portal. While donning his overalls, claimant felt a popping sensation, followed by severe pain in his low back. Although injuries suffered during travel to and from an employer’s premises are typically excluded from coverage, injuries occurring on the employer’s premises during a reasonable interval before and after working hours may be covered. The course of employment also typically extends to activities connected with changing clothes before and afer work on the employer’s premises. See, Larson’s Workmen’s Compensation (1994) § 15 .