Is Montana Work Comp Exclusivity Law in Trouble?

Is the Montana Supreme Court ready to again act as a superlegislature in the near future over the issue of worker's compensation exclusivity? A case decided last week might shed some light on the future direction of the Court.

The case is Brady v. PPL Montana, where a worker was severely burned while trying to repair a faulty coal dust collector at the Colstrip plant. He received third and second degree burns from this accident. After getting worker's compensation indemnity and medical benefits, the injured worker filed suit against PPL Montana for allegedly disregarding the facts surrounding the accident that created a high probability of injury to the employee.

Montana law clearly states that injured employees may sue their employer outside of the work comp system under very limited circumstances. In 39-41-719(1), MCA, the legislature made its intentions clear when it comes to workplace injury lawsuits outside the system:

"(1) If an employee is intentionally injured by an intentional and deliberate act of the employee's employer or by the intentional and deliberate act of a fellow employee while performing the duties of employment, the employee or in case of death the employees heirs or personal representatives, in addition to the right to receive compensation under the Workers Compensation Act, have a cause of action for damages against the person whose intentional and deliberate act caused the intentional injury."

In other words, an employer must have acted in a way beyond just negligence or even gross negligence. The act must have been intentional where the employer intended actual harm.

The worker's compensation system was set up to help injured employees with wage loss benefits and medical treatment for work related accidents caused by the negligence of the employee or employer. The question of fault, be it the employer's or the employee's, is irrelevant in work comp in most cases. The responsibility for paying for work comp rests soley on the employer. In this particular case of Brady v. PPL Montana, the employee is looking to collect damages over and above the work comp system. Before that happens, though, the Montana Supreme Court has to overturn the statute and allow the employee to sue his employer for something that was not intentional.

This case is not actually before the Montana Supreme Court. It's being appealed in the 9th Circuit after the Federal District Court granted summary judgment to PPL Montana. The Montana Supreme Court was looking at the issue of constitutionality because the 9th Circuit asked the Court to determine if the statute conflicts with Montana's 1972 constitution. In the end, the MT Supremes ended up punting on the issue altogether in a 4-3 decision where they refused to decide one way or the other.

The majority and dissenting opinions offer some interesting peeks into how some of the justices feel about the statute. While four signed the majority opinion sending the case back to the 9th Circuit, Justice Jim Nelson took the extra step of writing a concurring opinion where he stated:

"I entertain grave reservations about the constitutionality of § 39-71-413, MCA, for various reasons, not the least of which is whether it can withstand scrutiny under Article II, Sections 16 and 17 of the Montana Constitution—respectively, Montana’s fundamental guarantees of access to the courts and to due process of law."

Justice Patricia Cotter also signed this concurring opinion, which puts two justices in the group that would overturn the statute. Three justices dissented, but Justice John Warner's dissent (also signed by Justice Jim Rice) is the most revealing. He states:

"Article II, Section 16 of the Montana Constitution states that there is an exception to the right to full legal redress for an injury that is covered by the Workmen’s Compensation Laws. The legislature has provided the scope of such an exception in § 39-71-413, MCA... and I would conclude that the statute passes constitutional muster."

So two have come right out and said they would overturn the statute (Nelson, Cotter) and two have stated they would uphold the statute (Warner, Rice). The other three (Morris, Leaphart, Gray) didn't make their intentions as clear.

Although this particular case involves a larger employer in Montana, the majority of work comp cases come from accidents in small businesses. These small businesses make up 97% of the businesses in the state according to the SBA. Any opinion overturning work comp laws relating to exclusivity would be devastating to the Montana small business community.

Hat tip to AB.