Senate Bill No. 251
Introduced By stang, benedict, mahlum, toews, ellis, kitzenberg, m. taylor
A Bill for an Act entitled: An Act clarifying Workers' Compensation Act coverage requirements for a student who is enrolled in an elementary, secondary, or postsecondary educational institution and who participates as a volunteer or for wages in work-based learning activities; defining "business partner" and "work-based learning activities"; amending sections 39-71-116 and 39-71-118, MCA; and providing an effective date and an applicability date.
Be it enacted by the Legislature of the State of Montana:
Section 1. Section 39-71-116, MCA, is amended to read:
"39-71-116. Definitions. Unless the context otherwise requires, words and phrases used in this chapter have the following meanings:
(1) "Actual wage loss" means that the wages that a worker earns or is qualified to earn after the worker reaches maximum healing are less than the actual wages the worker received at the time of the injury.
(2) "Administer and pay" includes all actions by the state fund under the Workers' Compensation Act and the Occupational Disease Act of Montana necessary to:
(a) investigation, review, and settlement of claims;
(b) payment of benefits;
(c) setting of reserves;
(d) furnishing of services and facilities; and
(e) use of actuarial, audit, accounting, vocational rehabilitation, and legal services.
(3) "Aid or sustenance" means
any a public or private subsidy made to provide a means of support, maintenance, or
subsistence for the recipient.
(4) "Average weekly wage" means the mean weekly earnings of all employees under covered employment, as defined and
established annually by the department. It is established at the nearest whole dollar number and must be adopted by the
prior to before July 1 of each year.
(5) "Beneficiary" means:
(a) a surviving spouse living with or legally entitled to be supported by the deceased at the time of injury;
(b) an unmarried child under 18 years of age;
(c) an unmarried child under 22 years of age who is a full-time student in an accredited school or is enrolled in an accredited apprenticeship program;
(d) an invalid child over 18 years of age who is dependent upon the decedent for support at the time of injury;
(e) a parent who is dependent upon the decedent for support at the time of the injury if a beneficiary, as defined in subsections (5)(a) through (5)(d), does not exist; and
(f) a brother or sister under 18 years of age if dependent upon the decedent for support at the time of the injury but only until the age of 18 years and only when a beneficiary, as defined in subsections (5)(a) through (5)(e), does not exist.
(6) "Business partner" means the community, governmental entity, or business organization that provides the premises for work-based learning activities for students.
(6)(7) "Casual employment" means employment not in the usual course of the trade, business, profession, or occupation of
the employer. (7)(8) "Child" includes a posthumous child, a dependent stepchild, and a child legally adopted prior to the injury. (8)(9) "Construction industry" means the major group of general contractors and operative builders, heavy construction
(other than building construction) contractors, and special trade contractors, listed in major groups 15 through 17 in the
1987 Standard Industrial Classification Manual. The term does not include office workers, design professionals,
salespersons, estimators, or any other related employment that is not directly involved on a regular basis in the provision of
physical labor at a construction or renovation site. (9)(10) "Days" means calendar days, unless otherwise specified. (10)(11) "Department" means the department of labor and industry. (11)(12) "Fiscal year" means the period of time between July 1 and the succeeding June 30. (12)(13) "Household or domestic employment" means employment of persons other than members of the household for the
purpose of tending to the aid and comfort of the employer or members of the employer's family, including but not limited
to housecleaning and yard work, but does not include employment beyond the scope of normal household or domestic
duties, such as home health care or domiciliary care. (13)(14) "Insurer" means an employer bound by compensation plan No. 1, an insurance company transacting business
under compensation plan No. 2, or the state fund under compensation plan No. 3. (14)(15) "Invalid" means one who is physically or mentally incapacitated. (15)(16) "Limited liability company" is as defined in 35-8-102. (16)(17) "Maintenance care" means treatment designed to provide the optimum state of health while minimizing recurrence
of the clinical status. (17)(18) "Medical stability", "maximum healing", or "maximum medical healing" means a point in the healing process
when further material improvement would not be reasonably expected from primary medical treatment. (18)(19) "Objective medical findings" means medical evidence, including range of motion, atrophy, muscle strength,
muscle spasm, or other diagnostic evidence, substantiated by clinical findings. (19)(20) "Order" means any decision, rule, direction, requirement, or standard of the department or any other determination
arrived at or decision made by the department. (20)(21) "Palliative care" means treatment designed to reduce or ease symptoms without curing the underlying cause of the
symptoms. (21)(22) "Payroll", "annual payroll", or "annual payroll for the preceding year" means the average annual payroll of the
employer for the preceding calendar year or, if the employer has not operated a sufficient or any length of time during the
calendar year, 12 times the average monthly payroll for the current year. However, an estimate may be made by the
department for any employer starting in business if average payrolls are not available. This estimate must be adjusted by
additional payment by the employer or refund by the department, as the case may actually be, on December 31 of the
current year. An employer's payroll must be computed by calculating all wages, as defined in 39-71-123, that are paid by an
employer. (22)(23) "Permanent partial disability" means a physical condition in which a worker, after reaching maximum medical
(a) has a permanent impairment established by objective medical findings;
(b) is able to return to work in some capacity but the permanent impairment impairs the worker's ability to work; and
(c) has an actual wage loss as a result of the injury.
(23)(24) "Permanent total disability" means a physical condition resulting from injury as defined in this chapter, after a
worker reaches maximum medical healing, in which a worker does not have a reasonable prospect of physically performing
regular employment. Regular employment means work on a recurring basis performed for remuneration in a trade,
business, profession, or other occupation in this state. Lack of immediate job openings is not a factor to be considered in
determining if a worker is permanently totally disabled. (24)(25) The "plant of the employer" includes the place of business of a third person while the employer has access to or
control over the place of business for the purpose of carrying on the employer's usual trade, business, or occupation. (25)(26) "Primary medical services" means treatment prescribed by a treating physician, for conditions resulting from the
injury, necessary for achieving medical stability. (26)(27) "Public corporation" means the state or any county, municipal corporation, school district, city, city under a
commission form of government or special charter, town, or village. (27)(28) "Reasonably safe place to work" means that the place of employment has been made as free from danger to the life
or safety of the employee as the nature of the employment will reasonably permit. (28)(29) "Reasonably safe tools and appliances" are tools and appliances that are adapted to and that are reasonably safe for
use for the particular purpose for which they are furnished. (29)(30) (a) "Secondary medical services" means those medical services or appliances that are considered not medically
necessary for medical stability. The services and appliances include but are not limited to spas or hot tubs, work hardening,
physical restoration programs and other restoration programs designed to address disability and not impairment, or
equipment offered by individuals, clinics, groups, hospitals, or rehabilitation facilities.
(b) (i) As used in this subsection
(29) (30), "disability" means a condition in which a worker's ability to engage in gainful
employment is diminished as a result of physical restrictions resulting from an injury. The restrictions may be combined
with factors, such as the worker's age, education, work history, and other factors that affect the worker's ability to engage in
(ii) Disability does not mean a purely medical condition.
(30)(31) "Sole proprietor" means the person who has the exclusive legal right or title to or ownership of a business
enterprise. (31)(32) "Temporary partial disability" means a physical condition resulting from an injury, as defined in 39-71-119, in
which a worker, prior to maximum healing:
(a) is temporarily unable to return to the position held at the time of injury because of a medically determined physical restriction;
(b) returns to work in a modified or alternative employment; and
(c) suffers a partial wage loss.
(32)(33) "Temporary service contractor" means a person, firm, association, partnership, limited liability company, or
corporation conducting business that hires its own employees and assigns them to clients to fill a work assignment with a
finite ending date to support or supplement the client's workforce in situations resulting from employee absences, skill
shortages, seasonal workloads, and special assignments and projects. (33)(34) "Temporary total disability" means a physical condition resulting from an injury, as defined in this chapter, that
results in total loss of wages and exists until the injured worker reaches maximum medical healing. (34)(35) "Temporary worker" means a worker whose services are furnished to another on a part-time or temporary basis to
fill a work assignment with a finite ending date to support or supplement a workforce in situations resulting from employee
absences, skill shortages, seasonal workloads, and special assignments and projects. (35)(36) "Treating physician" means a person who is primarily responsible for the treatment of a worker's compensable
injury and is:
(a) a physician licensed by the state of Montana under Title 37, chapter 3, and has admitting privileges to practice in one or more hospitals, if any, in the area where the physician is located;
(b) a chiropractor licensed by the state of Montana under Title 37, chapter 12;
(c) a physician assistant-certified licensed by the state of Montana under Title 37, chapter 20, if there is not a physician, as
defined in subsection
(35)(a) (36)(a), in the area where the physician assistant-certified is located;
(d) an osteopath licensed by the state of Montana under Title 37, chapter 5; or
(e) a dentist licensed by the state of Montana under Title 37, chapter 4.
(37) "Work-based learning activities" means job training and work experience conducted on the premises of a business partner as a component of school-based learning activities authorized by an elementary, secondary, or postsecondary educational institution.
(36)(38) "Year", unless otherwise specified, means calendar year."
Section 2. Section 39-71-118, MCA, is amended to read:
"39-71-118. Employee, worker, volunteer, and volunteer firefighter defined. (1) The term "employee" or "worker" means:
(a) 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. Casual employees, as defined by 39-71-116, are included as employees if they are not otherwise covered by workers' compensation and if an employer has elected to be bound by the provisions of the compensation law for these casual employments, as provided in 39-71-401(2). Household or domestic employment is excluded.
(b) any juvenile performing work under authorization of a district court judge in a delinquency prevention or rehabilitation program;
(c) a person receiving on-the-job vocational rehabilitation training or other on-the-job training under a state or federal vocational training program, whether or not under an appointment or contract of hire with an employer, as defined in this chapter, and, except as provided in subsection (9), whether or not receiving payment from a third party. However, this subsection does not apply to students enrolled in vocational training programs, as outlined in this subsection, while they are on the premises of a public school or community college.
(d) an aircrew member or other person employed as a volunteer under 67-2-105;
(e) a person, other than a juvenile as defined in subsection (1)(b), performing community service for a nonprofit organization or association or for a federal, state, or local government entity under a court order, or an order from a hearings officer as a result of a probation or parole violation, whether or not under appointment or contract of hire with an employer, as defined in this chapter, and whether or not receiving payment from a third party. For a person covered by the definition in this subsection (1)(e):
(i) compensation benefits must be limited to medical expenses pursuant to 39-71-704 and an impairment award pursuant to
39-71-703 that is based upon the minimum wage established under Title 39, chapter 3, part 4, for a full-time employee at
the time of the injury;
(ii) premiums must be paid by the employer, as defined in 39-71-117(3), and must be based upon the minimum wage established under Title 39, chapter 3, part 4, for the number of hours of community service required under the order from the court or hearings officer.
(f) an inmate working in a federally certified prison industries program authorized under 53-1-301;
(g) a person who is an enrolled member of a volunteer fire department as described in 7-33-4109 or a person who provides ambulance services under Title 7, chapter 34, part 1.
(2) The terms defined in subsection (1) do not include a person who is:
(a) participating in recreational activity and who at the time is relieved of and is not performing prescribed duties, regardless of whether the person is using, by discount or otherwise, a pass, ticket, permit, device, or other emolument of employment;
(b) performing voluntary service at a recreational facility and who receives no compensation for those services other than meals, lodging, or the use of the recreational facilities; or
(c) performing services as a volunteer, except for a person who is otherwise entitled to coverage under the laws of this state. As used in this subsection (2)(c), "volunteer" means a person who performs services on behalf of an employer, as defined in 39-71-117, but who does not receive wages as defined in 39-71-123.
(3) With the approval of the insurer, an employer may elect to include as an employee under the provisions of this chapter any volunteer as defined in subsection (2)(c).
(4) (a) The term "volunteer firefighter" means a firefighter who is an enrolled and active member of a fire company organized and funded by a county, a rural fire district, or a fire service area.
(b) The term "volunteer hours" means all the time spent by a volunteer firefighter in the service of an employer, including but not limited to training time, response time, and time spent at the employer's premises.
(5) (a) If the employer is a partnership, sole proprietor, or a member-managed limited liability company, the employer may elect to include as an employee within the provisions of this chapter any member of the partnership, the owner of the sole proprietorship, or any member of the limited liability company devoting full time to the partnership, proprietorship, or limited liability company business.
(b) In the event of an election, the employer shall serve upon the employer's insurer written notice naming the partners, sole proprietor, or members to be covered and stating the level of compensation coverage desired by electing the amount of wages to be reported, subject to the limitations in subsection (5)(d). A partner, sole proprietor, or member is not considered an employee within this chapter until notice has been given.
(c) A change in elected wages must be in writing and is effective at the start of the next quarter following notification.
(d) All weekly compensation benefits must be based on the amount of elected wages, subject to the minimum and maximum limitations of this subsection. For premium ratemaking and for the determination of weekly wage for weekly compensation benefits, the electing employer may elect not less than $900 a month and not more than 1 1/2 times the average weekly wage, as defined in this chapter.
(6) (a) If the employer is a quasi-public or a private corporation or a manager-managed limited liability company, the employer may elect to include as an employee within the provisions of this chapter any corporate officer or manager exempted under 39-71-401(2).
(b) In the event of an election, the employer shall serve upon the employer's insurer written notice naming the corporate officer or manager to be covered and stating the level of compensation coverage desired by electing the amount of wages to be reported, subject to the limitations in subsection (5)(d). A corporate officer or manager is not considered an employee within this chapter until notice has been given.
(c) A change in elected wages must be in writing and is effective at the start of the next quarter following notification.
(d) All weekly compensation benefits must be based on the amount of elected wages, subject to the minimum and maximum limitations of this subsection. For premium ratemaking and for the determination of the weekly wage for weekly compensation benefits, the electing employer may elect not less than $200 a week and not more than 1 1/2 times the average weekly wage, as defined in this chapter.
(7) (a) The trustees of a rural fire district, a county governing body providing rural fire protection, or the county commissioners or trustees for a fire service area may elect to include as an employee within the provisions of this chapter any volunteer firefighter. A volunteer firefighter who receives workers' compensation coverage under this section may not receive disability benefits under Title 19, chapter 17.
(b) In the event of an election, the employer shall report payroll for all volunteer firefighters for premium and weekly benefit purposes based on the number of volunteer hours of each firefighter times the average weekly wage divided by 40 hours, subject to a maximum of 1 1/2 times the average weekly wage.
(8) Except as provided in chapter 8 of this title, an employee or worker in this state whose services are furnished by a person, association, contractor, firm, limited liability company, or corporation, other than a temporary service contractor, to an employer, as defined in 39-71-117, is presumed to be under the control and employment of the employer. This presumption may be rebutted as provided in 39-71-117(3).
(9) A student currently enrolled in an elementary, secondary, or postsecondary educational institution who is participating in work-based learning activities and who is paid wages by the educational institution or business partner is the employee of the entity that pays the student's wages for all purposes under this chapter. A student who is not paid wages by the business partner or the educational institution is a volunteer and is subject to the provisions of this chapter.
(9)(10) For purposes of this section, an "employee or worker in this state" means:
(a) a resident of Montana who is employed by an employer and whose employment duties are primarily carried out or controlled within this state;
(b) a nonresident of Montana whose principal employment duties are conducted within this state on a regular basis for an employer;
(c) a nonresident employee of an employer from another state engaged in the construction industry, as defined in 39-71-116, within this state; or
(d) a nonresident of Montana who does not meet the requirements of subsection (9)(b) and whose employer elects coverage with an insurer that allows an election for an employer whose:
(i) nonresident employees are hired in Montana;
(ii) nonresident employees' wages are paid in Montana;
(iii) nonresident employees are supervised in Montana; and
(iv) business records are maintained in Montana.
(10)(11) An insurer may require coverage for all nonresident employees of a Montana employer who do not meet the
requirements of subsection (9)(b) (10)(b) or (9)(d) (10)(d) as a condition of approving the election under subsection (9)(d)
Section 3. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
Section 4. Effective date -- applicability. [This act] is effective July 1, 1997, and applies to injuries occurring on or after [the effective date of this act].