The standard workers' compensation and employers liability policy (Part One statutory benefits, Part Two employers liability, payroll-based premium and experience rating) is covered in the national Workers' Compensation guide. This guide covers Montana's Workers' Compensation Act, Title 39, chapter 71 of the Montana Code Annotated. In that act, "department" means the Department of Labor and Industry, which administers workers' compensation (39-71-116). The Commissioner of Securities and Insurance regulates the insurers that write it.

Three ways to insure: Plans 1, 2 and 3

Montana is not a monopolistic state. Every employer with employees must elect one of three compensation plans (39-71-401(1)):

The Montana State Fund facts:

• It's a nonprofit, independent public corporation.
• It must insure any Montana employer that asks. It may refuse only an employer with an unsatisfied default to the Fund.
• It must be neither more nor less than self-supporting, with rates set at least annually (39-71-2311).

Who is covered

The act applies to all employers and all employees except listed exemptions (39-71-401). Exempt workers aren't covered unless coverage is elected. They include:

• household or domestic employment
• casual employment, meaning work not in the usual course of the employer's business
• real estate, securities and insurance salespeople paid solely by commission
• sole proprietors, and corporate officers who own 10% or more of the stock or meet other listed conditions

A sole proprietor who works for others must elect coverage unless they hold an independent contractor exemption certificate (39-71-401(3), 39-71-417).

Other employer duties:

• Posting. Every employer must post a sign telling employees about its current coverage. Purposely failing to post costs $50 per citation (39-71-401(6)).
• Uninsured contractors. A business that hires an uninsured contractor for work that's a regular part of its business is liable for the benefits of the contractor's employees. Its insurer may recover from the contractor (39-71-405).

Exclusive remedy and uninsured employers

• For an insured employer, the act is the employee's exclusive remedy against the employer (39-71-411).
• An uninsured employer is one that hasn't complied with 39-71-401 (39-71-501). Its injured workers can collect from the uninsured employers' fund. Medical benefits from the fund are capped at $100,000 per claim (39-71-503).

Notice and claim deadlines (39-71-601, 39-71-603)

• Notice of the accident is due within 30 days. The actual knowledge of the employer, a managing agent or the superintendent in charge counts as notice. A covered sole proprietor, partner, LLC member or corporate officer must also notify the insurer within 30 days.
• A signed written claim must be presented within 12 months of the accident. The insurer may waive the deadline for up to 24 more months for:
  • lack of knowledge of the disability,
  • a latent injury, or
  • equitable estoppel.
• Occupational disease claims are due within 1 year from when the worker knew or should have known the condition was work-related. An occupational disease comes from events on more than one day or work shift. An injury comes from a single shift.

Benefits

• Medical benefits start from the date of injury (39-71-736).
• Waiting period:
  • No wage-loss benefit for the first 32 hours or 4 days of lost wages, whichever is less.
  • If total disability lasts 21 days or longer, benefits are paid back to the first day.
  • A day of sick leave counts as one day toward the waiting period.
• Temporary total disability (TTD) (39-71-701):
  • 66 2/3% of wages at the time of injury.
  • Capped at the state's average weekly wage, with no cost-of-living adjustment.
  • Must be supported by a preponderance of objective medical findings.
  • Reduced by about half of any Social Security disability benefit for the same injury.
  • Knowingly taking wages and TTD together without the insurer's written consent is theft.
• Death benefits (39-71-721, 39-71-725):
  • 66 2/3% of wages, capped at the state's average weekly wage, with a minimum of 50% of it (but never more than actual wages).
  • A surviving spouse is paid for 500 weeks or until remarriage.
  • With no beneficiary, the surviving parents get a $3,000 lump sum.
  • Burial expenses are paid up to $10,000.

Common exam traps

• Montana offers a choice: self-insure (Plan 1), private insurer (Plan 2) or State Fund (Plan 3). Don't confuse it with the monopolistic states (North Dakota, Ohio, Washington, Wyoming).
• The State Fund must take any employer except one in default.
• Notice of an accident: 30 days. Written claim: 12 months.
• The waiting period is the lesser of 32 hours or 4 days, paid back if disability lasts 21 days.
• Commission-only insurance producers are exempt unless coverage is elected.