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MONTANA SELF INSURERS' ASSOCIATION

MSIA Legislative Update 2/17/2023 – Week 6

  • Lots of Legislative Activity
  • HB 178, SB 22, 165 & 260 All Pass Senate
  • SB 126, 267, LC 986 - MSF Bills Done? 
  • Introductions: 
  • HB 451 – Pierce Exclusive Remedy 
  • SB 310 – Added Cancers for Firefighter Presumptions 
  • SB 369 – Vax Reactions Including Derivative Injuries 
  • And more introductions


  • Legislative Update        


Bills that have been formally introduced have either a House Bill (HB) or Senate Bill (SB) number. Bills that have been requested and/or drafted but not yet introduced are assigned a Legislative Counsel (LC) number. Not all LC bills are introduced. 


The bills or draft language where there has been a change are reported first and are in numeric order, then those where there is no status change are reported. 


We have seen more language coming out this week than usual. The Senate as well has passed some legislation we care about and next week we will be involved in a number of bills during the hearing process. MSIA works on legislation prior to the hearing, with the goal that the sponsors, nor the committee are surprised by our positions. 


The legislature is suffering from the same shortage of employees other employers are suffering from and there are a limited number of drafters and editors for proposed bill language. That is causing some delays in seeing language, generally. As a result there is some feeling that bills will have to be introduced and may be passed with the idea that they would be amended somewhere else down the line before final passage. While that itself is not unusual, that sponsors may be willing to pass bills through committee or chambers with language they agree needs to be changed before the final passage is different. 


HB 178               K. Walsh           R-Twin Bridges              This bill clarifies that injuries which occur off the clock and as the result of social or recreational activity on the employer’s premises are not compensable. The bill defines that a social or recreational activity is one that includes exercise, pleasure, relaxation, or voluntary optional preparation related to the employment. For example, should a ski area or golf course employee injure themselves while skiing or golfing off the clock during a work day, they would not be covered by WC in that specific instance. The bill passed final reading in the Senate 42 – 6 on 2/13 and will be sent to the Governor. The bill is expected to be signed by the Governor. 


HB 277                Nicol                   R-Billings                       As drafted this bill would end the MSF payments to the State Auditor’s Office (SAO) to staff two FTE. In the 2015 session, as part of the agreement that the state fund would be regulated by the Commissioner of Securities and Insurance (SAO), that office estimated the need for two additional FTE to regulate MSF. As part of the agreement to pass SB 123 at that time, MSF was required to pay for those FTE, which has been done by intra-agency transfer since then. This bill would end those MSF payments and require the SAO office to pay for those positions through their funds. The bill was tabled (almost totally dead) in House Business & Labor Committee 10 – 9 on 2/16. MSIA did not take a position on this bill. 


HB 451               Gist                     R-Great Falls                  This bill would permit any worker who was required to be vaccinated as part of their employment, if the employer accepted any state or federal funds, to bring suit against their employer. The language specifically creates an exception to the workers’ compensation exclusive remedy law for this action. The language applies to any vaccine, not just COVID. The business caucus members, a group of business representatives put together by the Montana Chamber, understands the importance of this issue and is opposed to the proposal. MSIA will work with other business organizations to gather support to kill the bill. MSIA opposes this bill and will work to kill it. 


HB 490              Gist                     R-Great Falls                  As originally drafted this bill provided penalties for employers hiring people as independent contractors when they were not, and for construction only, instituted the California ABC test for IC determination. The ABC test is a very high standard and one which would have eliminated the current Montana ICEC standards. In speaking with Representative Gist, his concern was based on the potential for human trafficking and was willing to consider an amendment, which has been drafted by MSF to eliminate the ABC test language and to require higher penalties against employers for retaining employees and classifying them as IC’s. The bill is set for hearing in the House Business & Labor committee on 2/21. For more details on the ABC test, see the CA Supreme Court Dynamex decision in 2018, S222732.PDF (ca.gov). With the amendments, MSIA does not need to oppose this statutory change. Absent those amendments, MSIA opposes this bill.


HB 506 / LC 677              Nicol                   R-Billings         This bill would permit the state of Montana to choose WC coverage from Plan 1 (self insurance), Plan 2 (commercial coverage) or continue, as is statutorily required, with Plan 3 (MSF). Revise workers’ compensation laws to provide freedom of competition. The language does not include a proposal for a residual market mechanism as was speculated. There are details regarding allowing MSF to continue to provide coverage for themselves, should the state choose a Plan 2 carrier and to permit MSF to act as a third party administrator (TPA) should the state choose to become self insured. The bill is set for House Business & Labor Committee hearing on 2/23. MSIA will be monitoring this bill.


HB 590              Buttrey             R – Great Falls               This bill is a companion to SB 241, which was tabled in the Senate Public Health, Welfare & Safety Committee at the        


SB 241              Small                  R-Busby                          request of the sponsor – likely in deference to this House bill. The bill requires health care employers to report incidents. However, unlike SB 241, it does not require a workers’ compensation claim be made by the employer. MSIA is reviewing this language to determine a position. 


SB 22                  Morigeau          D-Missoula                    This bill is the clean-up of the attempt last session to require the Department of Labor to do more investigation regarding an independent contractor or employee designation rather than rely solely on the presence, or absence, of an ICEC. The bill has been amended so that someone who presents an Independent Contractor Exemption Certificate (ICEC) is presumed to be an independent contractor, unless the ICEC is forged or otherwise fraudulent, or the ICEC expired within 120 days while working with that contractor. The amended bill passed final reading in the Senate 48 – 0 on 2/16. The bill now goes to the House for consideration. MSIA supports the amended version of the bill.


SB 126               Hertz                  R-Polson                        This bill would have re-paid the Montana State Fund those monies taken during the 2017 Special Session to replenish the Fire Fighters funds and adds interest since that time. The bill was tabled (almost totally dead) 19 – 0 in the Senate Finance and Claims Committee on 2/7. MSIA monitored this bill and did not have a position. 


SB 165                Usher                 R-Billings                         This bill requires first and third party claimants against insurers to provide information and cooperate with an insurers’ claims adjudication process in a timely manner and provides insurers an affirmative defense if they do not. In addition, it amends the Unfair Trade Practices Act (UTPA) so that third party claimants would no longer have a common law bad faith action opportunity against insurers, as created in the BREWINGTON v EMPLOYERS FIRE INS C :: 1999 :: Montana Supreme Court Decision. Under the current law, first party claimants (your insured) have a private right of action against their insurer, should the company not deal in good faith in adjudicating the claim. Third party claimants, under this proposal, would specifically have the same rights, and be limited to those rights. The bill passed final reading in the Senate 34-14 along party lines on 2/16. The bill now goes to the House for consideration. MSIA supports this bill and testified in favor. 


SB 241               Small                  R-Busby                           This bill seems to be a companion to HB 590 (above) and was tabled in Senate Public Health, Welfare & Safety Committee on 2/3 at the request of the sponsor, likely in deference to the House bill. MSIA did not ultimately take a position on this bill, but would have opposed it, based on the mandatory WC claim reporting requirement which is not in the House version.


SB 260               D Salomon        R-Ronan                          This bill would change the Unfair Trade Practices Act (UTPA) in the insurance law so that the independent cause of action section of the UTPA claims practices clause does not apply to a captive insurance company (but does apply to captive risk retention groups). Currently the language of 33-18-242 (8) specifically includes self-insurance as being covered under the law. However, self-insurance is not defined in the insurance code. A Supreme Court decision, Dannels v BNSF (Dannels v. BNSF :: 2021 :: Montana Supreme Court Decision) specifically addressed the application of the unfair claims practices application and the private right of action to both captives and self-insurers (see Justice Sandifur’s consent). MSIA will support this bill as we have created legislative intent through the sponsors’ testimony that captive insurance is a form of self-insurance and the UTPA would not apply to either. Together with SB 165, above, the UTPA will be strengthened to limit actions against self-insurers that are permitted under current law. The bill passed final reading in the Senate 46 – 4 on 2/14. The bill now goes to the House for consideration. MSIA supports this bill.   


SB 267               Hertz                  R-Polson                         This bill seems to be the compromise language for those who cannot support what are expected to be the LC 985 Proposals (see below). This language would provide MSF the same exemptions from the IT law that the Department of Justice, Secretary of State, the University System and the Office of Public Instruction have. The language also provides the state fund the same state procurement process exemption for purchases under $250,000 that the state lottery system currently has. MSIA does not have a position on this language at this time.  MSF reports that this bill will not see further action. (See also LC 985 below).


SB 310                Small                  R-Busby                           This bill is LC 84, requested by Senator Ryan Lynch (D-Butte) and would add ovarian and testicular cancers to the list of presumptive illnesses covered for firefighters. In speaking with the sponsor, he expects significant opposition to the bill and understands there is no acceptable compromise. The bill is set for hearing in the Senate Business, Labor & Economic Affairs, which is chaired by the sponsor, on 2/21. MSIA opposes this bill. 

              

SB 369                Trebas               R – Great Falls                This bill would specifically identify in workers’ compensation statute that an injury or accident covered under the law would include a serious adverse event experienced by an employee after receiving a vaccine mandated by the employer. It then defines “serious adverse event” to include, among other things normally covered by the current law, “a congenital anomaly or a birth defect.” That language seems to imply a derivative exposure of a workers’ compensation issue and is a significant change to our law. MSIA feels this language is un-necessary as these events are covered under the current law, and opposes the congenital anomaly or birth defect aspect of the bill. The bill is set for hearing in the Senate Public Health, Welfare and Safety Committee on 2/22. MSIA opposes the bill. 


LC 985                Hertz                  R-Polson                          There is no language associated with this bill yet. However, MSF is drafting language which would allow it to become a policyholder owned not-for-profit mutual insurance company which retained the responsibility for the market of last resort. MSF has reported there will be no further action on this potential language (See also SB 126 and SB 267). MSIA monitored this issue. 


LC 1762              A. Olsen             D – Missoula                 This bill has not yet been introduced. This language would require an annual update to the housing amounts used for remuneration inclusion, if housing is provided as part of wages. MSIA is reviewing the language to determine a position.


LC 2522              Oblander           R – Billings                      This bill has not yet been introduced. The title relates to the designation of treating physician within the workers’ compensation system. It is unclear why Representative Oblander might have requested this title. MSIA opposes any changes to the current law. 


LC 3180              Harvey               D – Butte                        This bill has not yet been introduced. The language would repeal the sunset provision of the 2019 law that has the state reimburse employers for increased workers’ compensation cost for being involved in certain work-based learning programs. MSIA is reviewing the language to determine a position.  

      


The following bills have not seen action this week. 


HB 313               Etchart             R-Billings                          This bill would permit Physician Assistants (PA’s) to have an independent practice. Under current law, PA’s must work under a supervising physician. The bill was heard in House Business & Labor Committee on Friday 2/3. Proponents included the MT Association of Physician Assistants, the Health Policy Advisor to Governor Gianforte, Blue Cross/Blue Shield, the MT Association of Nurse Anesthetists and individual PA’s. Opponents included the MT Medical Association (MMA), the MT Nurses Association and individual physicians and a medical student. While this bill does not have a direct impact on WC, it is not a big leap to assume that PA’s will want treating physician status under the WC law. These actions are happening around the country and we would be surprised not to see at least a proposal here. MMA provided an amendatory proposal based on current UT law, which would allow PA’s to have independent practice, after an addition 10,000 hours (5 years) of practice experience. MSIA has not taken a position on this bill at this time. 


LC3179               Harvey               D-Butte                         This bill draft was the subject of an MSIA email on January 18 to membership. This bill has not yet been introduced. The current language proposes to increase indemnity benefits from 66.66% of weekly wage to 100% (subject to state average weekly wage maximum). NCCI has produced a pricing memo (attached) identifying that this change to the law would result in an increase of between 11.8% and 15.3% when it went into effect. The Department of Insurance and the Department of Labor are aware of the NCCI memo. MSIA has also communicated with business interests about this language. MSIA will work to make sure this bill in either the current (or potential language)to provide as much in wage loss benefits as take home pay will not get beyond a hearing in committee, should it be introduced. MSIA will oppose this kind of change to the law and will work with others to defeat it. 

             

LC 679                Nicol                   R-Billings                        Revise workers' compensation laws related to illegal aliens. There is no language to this bill title as yet.


LC 1724              A. Olsen            D-Missoula                   Provide worker right to choose physician in workers' compensation case. There is no language associated with this bill yet. Representative Olsen has either sponsored or supported this kind of proposal in the past and it is a Democratic leadership supported proposal. MSIA will oppose changing the current law regarding choice of physician. 


LC 1728              A. Olsen             D-Missoula                   Establishes presumption in workers' compensation for COVID-19. There is no language associated with this bill as yet. Representative Olsen has either sponsored or supported this kind of proposal in the past and it is a Democratic leadership supported proposal. MSIA will oppose changing the current law regarding presumptions for injuries or illnesses.


  • MSF Annual Medical Conference – 4/26-28

Managing Recovery & Return to Work is the theme of Montana State Fund’s 21st annual medical conference. This year the event will be held at the Lodge at Whitefish Lake, April 26-28, 2023, in Whitefish, MT. 

The MSF Annual Medical Conference has been one of the more in depth medical conferences for Montana WC professionals. It was designed to help us understand and connect with the Montana medical community and provide an opportunity for them to connect with us. 

With the expansion from one day to two, MSF has taken advantage of bringing in more prominent speakers. This year I am familiar with some and know they will provide insight and interesting presentations. Bill Zachry, formerly with Safeway and Board Chair for the CA State Insurance Fund, Dr. Marcos Iglesias, VP and Chief Medical Director for Travelers and Tyrone Spears, City of Los Angeles Division Director, heading up their self insured workers’ compensation program are all excellent speakers and bring insight into our work that sets them apart. 

Conference Topics

  • Claims: A Medical Perspective – R. David Bauer, MD, Orthopedic Independent Medical Examinations
  • Medical Technology in Workers’ Compensation – Bill Zachry
  • Preventing Delayed Recovery by Addressing Psychosocial Barriers – Dr. Marcos Iglesias
  • A Comprehensive Approach to Pain Medicine – Aaron Cross, DO Helena Orthopedic Clinic
  • Successes and Challenges with Return to Work – Tyrone Spears
  • Medical Expert Testimony – Imperatives, Principles and Methodologies – Donald Sinclair, Attorney, Steptoe & Johnson, PLLC 
  • A Perspective from the Workers’ Compensation Court – MT WC Court Judge David Sandler
  • Tears and Lies My Radiologist Told Me – R. David Bauer
  • The Story You Don’t Hear About: How Caregivers Changed My Life for the Better – Cody Byrns, Founder Cody Byrns Foundation for Burn Survivors

Register for Conference and Book Hotel Accommodations.


See you next week!