Frequently Asked Questions About Workers’ Compensation

Workers whose injuries are so serious that they require 24-hour care may receive that care from a family member.  Profoundly injured workers tend to be much happier and healthier when they live at home rather than in an assisted living facility.  However, there is a big toll on the family that takes on the care of a profoundly injured person. 

A family member who takes on 24-hour a day care of a claimant can be compensated for 8 of the 24 hours of care.  This eight hours of compensation is paid 365 days per year, and there is no compensation for overtime.  The Department of Labor and Industry (DLI) provides a maximum amount of compensation that an individual providing domiciliary care may receive.  The amount varies depending upon the part of Montana where the care is provided.  Section 39-71-1107, MCA, does not provide for respite care for the home care provider.  This means that if the family member would like a break from taking care of this person, he or she is required to pay for that assistance or find someone else willing to help.  

Domiciliary care claims can run into the hundreds of thousands of dollars.  Because so much money is at stake, insurance companies are willing to hire private investigators and subject the claimant to multiple independent medical evaluations throughout the process.  If a claimant may require domiciliary care, that claimant will almost certainly be subjected to surveillance by a private investigator.  This is particularly true of claimants who suffer a traumatic brain injury because they may look completely fine, are often able to keep a daily routine, and can occasionally leave the house.  

Insurance carriers, including the Montana State Fund will not suggest domiciliary care benefits even when it is apparent that they are needed.  You must take it upon yourself to ask whether your injured family member can qualify for these benefits.  If your family member is injured badly enough to require 24-hour per day care, you will most definitely need the help of an attorney to guide you through this very difficult process.  Please call our office if you or your family member have suffered a brain injury or other serious problem that requires help to complete daily activities.  

Workers’ Compensation, like many governmental programs, has a long list of acronyms.  Below is a list of some of the most commonly used acronyms in the Workers’ Compensation system along with a brief informal definition of the term.  The official definitions of these terms are located in the Workers’ Compensation Act.  The Definitions section for the Workers’ Compensation Act is located in Section 39-71-116, MCA.

AWW: Average Weekly Wage, is determined by using the average of the four previous pay periods of the injured employee.  The AWW is used to determine the Temporary Total Disability Rate as well as the Permanent Partial Disability rate.

COLA: Cost of Living Adjustment, is an inflationary based increase in benefits to workers who are entitled to Permanent Total Disability benefits. 

DLI: Department of Labor and Industry, is a department of Montana that has jurisdiction over the workers’ compensation system.  In addition to the workers’ compensation system, the DLI has a number of other programs that focus on Montana’s workers.

ERD: Employment Relations Division, the ERD is a division of the Montana Department of Labor and Industry.  If a claimant has a dispute with the insurance carrier, the ERD assigns a mediator to hear both sides of the dispute and issue findings.  In addition, the ERD is responsible for processing the FROI described below and confirming whether an employer has workers’ compensation insurance coverage.

FROI: First Report of Injury, the FROI is the form employers submit to the insurer following a claim for benefits.  The FROI must be signed by the injured worker (if possible) and its contents must be carefully reviewed by the claimant and any dispute noted prior to filing the FROI.

MMI: Maximum Medical Improvement, is the point at which additional medical treatment would not materially improve the injured worker’s medical condition.  

MSA: Medicare Set-Aside, under federal law, Medicare is allowed to require reimbursement from workers’ compensation providers for payment of medical bills made by Medicare that have occurred and will likely occur in the future.  An MSA is required whenever a workers’ compensation claimant is eligible (or will soon be eligible) for Medicare benefits related to the industrial injury.  The MSA must be reviewed and approved by CMS (another federal government agency) before a settlement can be approved.

OD: Occupational Disease, is a physical condition that develops over more than a single work shift.  An OD claim has a different statute of limitation than an injury claim.

PPD: Permanent Partial Disability, is covered under Section 39-703, MCA, and occurs when a claimant, although able to return to work, realizes a wage loss as a result of an industrial injury or occupational disease.  The claimant must also have a physical impairment rating before being eligible for PPD benefits.

PTD: Permanent Total Disability, occurs after a claimant reaches MMI and is unable to return to any gainful employment.  PTD designation allows a claimant to receive medical treatment for more than 60 months after the date of injury and allows the claimant to be eligible for Cost of Living Adjustments.

SOL: Statute of Limitations, the time in which a claimant is required to file a claim.  A claimant who suffers from an industrial injury must report the injury to his employer within 30 days of the injury.  A claimant who suffers from an occupational disease has one year to provide written notice to the employer, insurance carrier, or the DLI.  In any event, written notice must be provided to the employer, the insurance carrier or the DLI within one year unless extenuating circumstances allow for a maximum of 24 months in any case.

SSDI: Social Security Disability Insurance, is a federal program that allows qualifying individuals to receive cash benefits if the individual is unable to return to gainful employment.  SSDI is important in the workers’ compensation setting in Montana because insurance carriers in Montana are allowed to reduce the benefits they pay for TTD or PTD benefits if a claimant receives SSDI benefits.  

TPD: Temporary Partial Disability, is used to supplement pay for workers who, although they returned to work, are not earning as much as they earned (AWW) at the time of injury.

TTD: Temporary Total Disability, occurs when a claimant, as the direct result of an industrial injury or occupational disease is temporarily unable to return to the position held at the time of injury.  TTD designation continues until the claimant reaches MMI and it is determined that the claimant cannot return to any type of work.  

UEF: Uninsured Employers Fund, is part of the DLI set up to provide workers’ compensation benefits for injured workers whose employers did not have workers’ compensation insurance coverage.  The UEF is entitled to reimbursement from uninsured employers and also entitled to receipt of a penalty from that employer.

You never imagined you would be in this situation. You were injured at work and want answers.  This book is a resource in an area of law few attorneys practice. I have practiced law for more than 20 years.  I can say without hesitation that workers’ compensation law is the most misunderstood area in which I have worked. I hope you use our Comprehensive Guide to Workers Compensation Law in Montana as a reference source that helps you better understand where your claim is headed. It answers common questions I have been asked over the past 20 years. The different sections reflect the various statutes that apply to each question.

It is important to understand that workers’ compensation law in Montana is governed by statute and changes almost every legislative session. The law in place at the time a claimant is injured applies throughout his or her case. The law at the time our book was written will change, and it is important to find out if any changes impact your case.  Please also understand that, as the law changes, it typically becomes less and less claimant-friendly. The Montana legislature regularly treats this program (and the workers who benefit from this program) like an inconvenience. Each session, new methods are dreamed up to cut benefits in an attempt to reduce workers’ compensation premiums. At this point, you do not need a lecture on how badly workers’ compensation has been gutted.  If you have a free hour or two, I can go on and on about how rotten this system is and the shameful treatment injured workers receive from state legislators.  But you need information that can help you right now.

The official statement of the purpose behind workers’ compensation in Montana is a reflection of the attitude of legislators toward the workers’ compensation system and can change.  If you look back through the system’s evolution in Montana, you find a level of disdain, disrespect, and contempt that seems to grow worse each legislative session. What does this mean to you as a claimant?

First, you will be treated as an opportunist and a criminal.  If you are off work for more than one year, regardless of the severity of your injuries, you will be followed by a private investigator.  You will be blamed for your injuries.  Multiple jury research programs I conducted show that members of your community blame you for your injuries.  When asked if it is appropriate for the State Fund to follow a claimant without good reason, the resounding attitude amongst community members interviewed was that all claimants should be followed.  There is an overriding attitude throughout the workers’ compensation system that a significant number of claims (one in four according to training materials at the Montana State Fund) are fraudulent.  

Second, many employers and co-workers will treat you as an outcast. For many of the same misunderstandings applied to claimants above, people who were your friends before you were injured may be less willing to speak with you afterward.  Your employer is often scared that his or her workers’ compensation insurance premiums will skyrocket.  The Montana State Fund and other insurance carriers do not calm these anxieties. They tend to fan the flame.

Finally, at some point, the insurance carrier may attempt to cut off benefits for no good reason. The insurance carrier will try to show that you did not report the injury or you made up the injury. Or, the insurance carrier may hire an “independent” medical examiner (a physician, if you want to call him or her that) whose opinion is bought and paid for by the insurer.  For this reason, it is critical that you attend every single appointment, stay organized, and completely understand the benefits you have a right to receive.  

Workers’ compensation law is governed by statute. The length of time an injured worker has to report his or her injury depends on the type of injury sustained. A claimant who suffers an industrial injury must notify his employer within 30 days. If a worker is injured in a single shift, the injury is characterized as an industrial injury. If the injury occurs over more than a single shift, the worker’s injury is considered an occupational disease.  The reporting period for an industrial injury is 30 days while the reporting period for an occupational disease is one year.  I discuss the distinction between an Industrial Injury and an occupational disease in more detail below.

Industrial Injury

Montana law distinguishes between an industrial injury and an occupational disease.  An industrial injury is an incident that occurs during a single work shift. The deadline for reporting an industrial injury is  30 days.

A claimant’s “failure” to report an injury is one of the most common challenges to an otherwise valid workers’ compensation claim.  While a worker is only required to report the injury to a supervisor, the reporting of an injury serves as a perfect challenge to the factual basis of a claim.  The purpose behind the 30-day notice was to allow the employer an opportunity to rectify or fix the dangerous condition that caused the injury.  Instead, it has been used by the insurance carrier to pit the employer against the employee. To complicate matters further, workers are reluctant to report injuries to their supervisor. If there is any question about whether an injury occurred, it is vital that the employee reports and documents the injury. Lack of documentation in the reporting of an injury opens the door for the employer to challenge an otherwise valid claim.  

The best way to think of the difference between an industrial injury and an occupational disease is to understand that injuries from a fall come from an industrial injury while a condition such as carpal tunnel syndrome is usually an occupational disease.  

Occupational Disease

An occupational disease is a harm, damage, or death arising out of or contracted in the course and scope of employment caused by events occurring on more than a single day or shift.  Put simply, if your injuries occurred over more than a single shift, you suffered an occupational disease.  As such, the 30-day reporting requirement does not apply. 

A claimant must notify the employer of a workplace injury within 30 days of the incident.  Under 39-71-601, MCA, a claimant must file a written claim with the Department of Labor and Industry, the employer, or the insurer within 12 months of the incident.  This time limit is extended to 24 months if the claimant can establish lack of knowledge of disability, latent injury, or equitable estoppel.  Under no circumstances can a claim be filed more than 24 months after the discovery of a workplace injury.  

Although a year may seem like a significant amount of time, it goes by quickly.  Reporting the occupational disease or condition to an employer as soon as an employee is aware of the condition is critical.  To make matters more confusing, an insurance carrier will challenge the onset date and attempt to move the onset date back as far as possible.  Even though a worker is able to continue his or her employment following the onset date, worsening of the condition may eventually result in a claimant becoming disabled and unable to continue working.  As with an industrial injury, a claimant, although not legally required to do so, must not only report but also document the occupational disease and the date of reporting the occupational disease to his or her employer.  

Under Section 39-71-401, MCA, all employers and employees are covered under Montana’s Workers’ Compensation Act. However, Section 39-71-401, MCA includes exceptions to this general rule. The exceptions expanded over the years and include an exemption of any worker carrying an “independent” contractor exemption certificate.  

Section 39-71-118, MCA, defines an employee or worker as: 

each person in this state, including a contractor other than an independent contractor who is in the service of an employer, as defined by 39-71-117, under any appointment or contract of hire, expressed or implied,  oral or written.  The terms include aliens and minors, whether lawfully or unlawfully employed, and all of the elected and appointed paid public officers and officers and members of boards of directors of quasi-public or private corporations, except those officers identified in 39-71-401(2), while rendering actual service for the corporations for pay.

Although this definition may seem broad, the exceptions set out under Section 39-71-401 cover no fewer than twenty-six types of employment that are not covered.  The exceptions have been even further broadened by the Montana state legislature.  The Montana legislature decided to allow individuals to opt out of the workers’ compensation system by obtaining an independent contractor exemption certificate.  Possession of a valid independent contractor’s exemption certificate issued by the Montana Department of Labor and Industry creates a presumption that the holder is an independent contractor and not an employee.  For all intents and purposes, this allows anyone in the construction trades to opt out of the workers’ compensation system.

Work in the United States and Montana has changed significantly over the past 100 years.  Automation and the relocation of industrial work overseas caused changes in our workforce.  Although Montana has one of the highest rates of on the job deaths, the number of serious injuries occurring on the job decreased dramatically from the time of the great bargain between employers and employees.  There is a legitimate question as to whether Montana needs the workers’ compensation system at all.  Plummeting benefits cause the entire community to bear the burden of injured workers.  A lack of accountability for employers and employees makes the no-fault system seem outdated, and the end of the quid pro quo allowing employees to sue employers for unsafe work sites may be the best thing Montana can do.  

If you are injured at your job in Montana, you may be entitled to workers’ compensation benefits to pay your medical bills and your wages while you are off work recovering from your injuries. Montana’s workers’ compensation is a no-fault system, which means that you could be entitled to benefits regardless of who caused your accident or occupational illness. However, you need to take certain steps to protect your rights to these benefits.

Steps You Should Take Following a Workplace Accident in Montana

You need to take steps soon after your accident to fulfill your duties under Montana’s workers’ compensation laws and to strengthen your claim if there a dispute with your employer’s insurance company—which frequently happens. Here are crucial first steps that you should take:

• Seek immediate medical care. If you know that you suffered an injury, you should seek immediate medical care to protect your health. Even if you do not believe that you were injured, you should be examined by a doctor promptly because some symptoms of injuries can take days or longer to develop.
• Report your injuries. You are required to report your workplace injuries to your supervisor within 30 days. While you can report it orally, it is best to do so in a written notice or email. You should provide as many details as possible. Keep a copy of the notice for your records. The sooner that you notify your supervisor of your accident and injuries, the stronger your workers’ compensation claim will be.
• File your claim. In order to receive workers’ compensation benefits, you must complete a First Report of Injury (FROI) and file it with your workers’ compensation insurance company or the Department of Labor and Industry. It must be written, signed, and filed within one year of an injury or illness. The insurer must decide whether to accept or deny your claim within 30 days of receipt of it.
• Retain an experienced attorney. To ensure that you comply with Montana’s workers’ compensation laws and receive the benefits that you deserve, you should retain an experienced workers’ compensation attorney as soon as possible. He can advise you of your rights and negotiate your settlement with your employer’s worker’s compensation insurance company.

Did you suffer serious injuries or occupational illness at your job? Attorney Lucas Foust at the Foust Law Office is here to answer your questions about your rights and guide you through the process of filing your claim. To get started, fill out our online form to schedule your free, no-obligation consultation. 

Workers Compensation benefits are limited to those benefits laid out under the statute. Montana law does not allow for compensation for pain and suffering and emotional distress. Over the past 30 years, workers compensation benefits have been dramatically reduced.

Yes, you may be eligible for vocational benefits under Section 39-71-1003, MCA. Under Montana law, an injured worker may be eligible for up to 104 weeks of TTD benefits as well as payment of in-state tuition at one of the state’s universities or vocational programs.

In addition, the workers compensation insurance carrier may be required to pay for books and moving expenses. An injured worker must make this request within 78 weeks after reaching Maximum Medical Improvement.

If your employer does not have Workers Compensation insurance, you are entitled to receive workers compensation benefits through the Uninsured Employer’s Fund (UEF).

You are entitled to the same benefits as other workers whose employers have Workers Compensation insurance. However, because your employer broke the law and did not provide you with mandatory coverage, you may bring a separate civil lawsuit, separate from your claim with the UEF.

Yes, you are still eligible for Workers Compensation benefits, even if you are here in this country illegally. Our office has represented a number of undocumented workers who were eligible for workers' compensation benefits.