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Ram Montana2/20/2004
RAM workers from December 1994 onward was exercised by Randy from Las Vegas. While RAM maintained mail-drops and offices in Montana, the assignment and direction of actual work was done by Randy. Thus, it is doubtful that the criteria of section 39-71-118(10)(a), MCA, is met.
As I discuss shortly, a different result is compelled by section 39-71-118(1)(a), MCA, when considered alone. I must therefore reconcile the Supreme Court's decisions in Schimmel and Fliehler.
One explanation for the discrepancy in decisions is that the Court in Fliehler may have intended to implicitly reverse its decision in Schimmel. While that is possible, I consider it unlikely. Had the Court intended to reverse Schimmel it is more likely it would have cited the case and expressly overruled it.
There is a second, more likely explanation for the inconsistent decisions. The explanation involves timing. Schimmel was decided on December 19, 2001. I decided Fliehler on June 1, 2001, 2001 MTWCC 29, and issued an Order Amending Findings of Fact on July 6, 2001, 2001 MTWCC 29A. At the time of my decision in Fliehler, I did not have the benefit of the Supreme Court's decision in Schimmel. Thus, I applied the identical analysis - based on section 39-71-118(10), MCA, as I had in my Schimmel decision, which the Supreme Court later reversed. I have reviewed the appellate briefs in Fliehler and determined that both briefs assumed section 39-71-118(10), MCA, applied. At the time the briefs were filed, the Supreme Court Schimmel had not issued. While it is troubling that the Supreme Court may have overlooked its Schimmel decision, I can only assume it similarly relied on the Fliehler briefs.
I am therefore convinced that I must follow Schimmel and apply section 39-71-118(1), MCA, without regard to section 39-71-118(10), MCA.
When I apply section 39-71-118(1)(a), MCA, I conclude and find that RAM workers residing in Montana were "workers" in this state within the meaning of the subsection. To some extent my conclusion involves a further interpretation of section 39-71-118(1), MCA, and specifically what is meant by "a person in this state . . . in the service of an employer." In Schimmel the claimant was injured in Montana. Arguably "a person in this state" means a person actually performing work in the state, at least Schimmel does not rule out that possibility. But the work in this case, at least for the Montana workers, began in Montana, where the workers were mustered and then traveled together in RAM company trucks to various jobs throughout the United States. The workers were paid for their travel and in many cases were provided with company transportation originating in Montana. Ultimately they returned to Montana. I therefore conclude that the Montana residents who worked for RAM were "person in this state . . . in the service of an employer."
My conclusion also involves the application of section 39-71-402(1), MCA. Section 39-71-402(1), MCA (1993-1997), provides as follows:
(1) If a worker employed in this state who is subject to the provisions of this chapter temporarily leaves the state incidental to that employment and receives an injury arising out of and in the course of employment, the provisions of this chapter apply to the worker as though the worker were injured within this state.
In McGaha v. Greyhound Lines, Inc., 226 Mont. 345, 735 P.2d 521 (1987), the Supreme Court applied the quoted section to a Greyhound bus driver who had been driving a route in Montana and who was then temporarily reassigned to a route in Idaho and Utah. The Court held he was covered by Montana Law even though working and injured in Idaho. RAM argue
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