September 2021 Update

  • IC’s – New MT Rule Proposal Hearing and New CA Decision on Rideshare Drivers
  • NCCI Legislative Trends Report Published
  • MT Governor’s Conference
  • MSIA Business & Annual Meeting Sponsored by Browning Kaleczyc Berry & Hoven and Definiti Comp Solutions
  • MSIA Annual Member Survey
  • ERD Announces Meeting on 6th Edition of AMA Guides Updates – September 22 at 1:00p
  • Independent Contractors – New MT Rule Proposal Hearing and New CA Decision on Rideshare Drivers

SB 367 changed Montana law to prevent the Department of Labor from assigning a worker employee status versus an independent contractor unless there was an Independent Contractor Exemption Certificate (ICEC) for that worker. Under a new rule proposed to implement the law, the Department must apply the AB test, with certain exceptions, in making the determination. New rule language, attached, has been proposed and is subject to a hearing set for October 8. The hearing will be held by Zoom,, Meeting ID: 829 3565 1559, Passcode: 473585; or by telephone, +1 406 444 9999 or +1 646 558 8656, Meeting ID: 829 3565 1559, Passcode: 473585.

The new proposed language is attached. MSIA monitored the legislation and has not taken a position on the proposed change.

California voters last November passed Proposition 22, which defined rideshare drivers as independent contractors as opposed to employees. It only impacted the employment/independent contractor status for gig workers who are rideshare drivers. Other gig workers were not included. As you might imagine, the rideshare companies, Uber, Lyft, and others pushed to create the initiative and have it pass. The idea was to put the issue of rideshare drivers status as employees versus independent contractors to bed, which had been back and forth in the courts and regulators.

In a new decision, the Alameda Superior Court of California ruled the proposition itself was unconstitutional based on a technical issue regarding an initiative creating statutory law versus a constitutional change in the state. As a result, at least for now, rideshare drivers in California are employees (again). The issue for the Montana system, and all other state systems, is that app-based gig workers as employees or independent contractors has to be addressed. While not necessarily an issue yet in Montana, it is an issue across the country and bears watching for potential impact in our system. One of the questions is who is a gig worker? While we normally think of rideshare drivers, depending on the definition applied, it can include musicians, home repair, accountants, health care workers and consultants, among others. As a result the issue and the way it is addressed can have significant impact on different businesses and employment. MSIA will continue to monitor the issue.

  • NCCI Legislative Trends Report Published

NCCI has published their most recent Legislative Trends report, II_Regulatory-Legislative-Trends2021.pdf ( Every year NCCI complies the results from their legislative and regulatory tracking of issues and publishes a reasonably comprehensive report on what has happened, at least for the first half of the calendar year. Some highlights (with some Montana comment):

  • Nine states passed new laws regarding presumptions for at least first responders for COVID-19 coverage. MSIA identified 18 states which last year had enacted presumptions either through statutory changes or by Executive Order. Montana is not included in either group of states. MSIA worked with the legislature to defeat two proposals, one to guarantee COVID benefit coverage to any employed nurse and one to provide presumptions to first responders, medical and other essential workers.
  • Mental-mental injury coverage remains a hot topic. This year seven states added to their existing laws and two states for the first time permitted mental injuries for at least some of their workers to be included in their comp systems. Montana remains one of 14 states that does not recognize mental injuries without a physical injury as a compensable injury within the system.
  • Add four more states to the recreational marijuana bandwagon as a result of 2021 legislative actions. Montana passed such an initiative by popular vote last year with the new law set to be effective January 1, 2022. Marijuana remains an illegal drug at the federal level but the states seem to be changing the laws regardless of federal status. In comp, Montana law does not provide for payment of medical marijuana. And, with the passage of HB 655 during the last session, the new law provides that absent a medical marijuana card, failure or refusal to take a drug test after an accident, creates a presumption that non-prescribed drugs were the major contributing cause of the accident, therefore negating benefits.

  • Governor’s Conference – West Yellowstone 9/29 – 10/1

Time’s running out, but you can still register for the Governor’s Conference on Workers’ Compensation to be held in West Yellowstone September 29 – October 1 2021 Governor's Conference ( As of this writing, the Conference is still scheduled as a live event. Speakers include Jennifer Wolf, Executive Director of the IAIABC – the national workers’ compensation regulators association, Dr. Greg Vanichkachron, now with the Mayo Clinic and formerly a practitioner in the Flathead, MT WC Court Judge David Sander, Claire Muselman, speaking about her humanistic approach to claims management, Dr. Maggie Cook-Shimanek and MSF General Counsel Kevin Braun, along with notable other Montana and national speakers.

  • MSIA Business & Annual Meeting Sponsored by Browning Kaleczyc Berry & Hoven and Definiti Comp Solutions

One of the notable national speakers at the Governor’s Conference is Bob Wilson, President and CEO of, who will be speaking to the MSIA Annual Meeting starting at 9:00a on Wednesday, September 29. Bob will share his unique perspective on comp issues from across the country to us as the MSIA featured speaker. The meeting is sponsored this year by Browning Kaleczyc Berry & Hoven and breakfast is sponsored by Definiti Comp Solutions.

The MSIA Business meeting, for members only, starts at 8:30 and we will open the doors to start the Annual Meeting at 9:00a. At the Business meeting, we will review the results of the Annual Member Survey, our annual budget, the financials, membership, bylaw changes and approve minutes of last year’s Annual Meeting. A meeting agenda and material will be sent to members prior to the meeting.

If you cannot make the Business meeting – it is very important that you provide your proxy for quorum purposes. Your proxy is not going to be used for policy decisions, only for purposes of obtaining a quorum. You can use the form below, to email me your proxy.

  • MSIA Annual Member Survey

Also attached is our Annual Members Survey. All responses will be kept in the strictest confidence and no information will be generated to indicate which member may have provided their thoughts. Thank you in advance for sharing your ideas and concerns regarding the Montana workers’ compensation system.

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I, _______________________________(your name), representing ___________________________________ (MSIA Member) hereby provide my PROXY for quorum purposes only to the MSIA Board of Directors to conduct the Business Meeting scheduled for September 29, 2021. 

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  • ERD Announces Meeting on 6th Edition of AMA Guides Updates – September 22 at 1:00p

Montana workers’ compensation law (MCA 39-71-711) requires the use of the 6th Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides) for the impairment ratings used within our system. Montana is far from alone in relying on the AMA Guides for impairment ratings – some 40 states reference at least one edition of the AMA Guides as the basis for impairment ratings used in their systems. Last month, the AMA announced updates to the 6th Edition of the AMA Guides (AMA Guides Sixth 2021) effective July 1 to address mostly mental and behavioral conditions. This is the first update to the AMA Guides since their initial release in 2008. 

Based on the July 9 AMA Press Release associated with the announcement (AMA announces update to guidance for permanent impairment ratings | American Medical Association (, “The new content was proposed by the American Psychiatric Association and the American Psychological Association to align AMA Guides Sixth 2021 with terminology and methodology changes to the “Diagnostic and Statistical Manual of Mental Disorders” (DSM)—the authoritative guide to the diagnosis of mental disorders for health care professionals around the world.” The updated content eliminates the use of the Global Assessment of Functioning (GAF) rating scale, “due to questionable psychometrics and lack of conceptual clarity.” Further, “New psychological tests and batteries have been published since the AMA Guides Sixth Edition was released in 2008. Updates available in AMA Guides Sixth 2021 keep pace with the changes that occurred over time to the standard practice of neuropsychological assessment and utilities newer batteries that have been developed and are more commonly employed in standard neuropsychological practice.” To generate more accurate impairment ratings, a combination for the Brief Psychiatric Rating Scale and Psychiatric Impairment Rating Scale will be used. Prior to the change, all three, including the GAF results were used. This update adopts the current Diagnostics and Statistics Manual of Mental Disorders version five (DSM-V) approach, which was updated and eliminated the use of the GAF in 2013.

The AMA Guides Sixth 2021, as does the DSM-V, eliminates the word “malingering” while discussing complexities in patient motivations and recovery. 

What does it all mean? I cannot tell you that I know yet. The Montana law does not reference the AMA Guides Sixth 2021. It is possible to adopt the change, legislative action will be required. 

The Montana Department of Labor, Employment Relations Division (ERD) is hosting a virtual meeting on September 22, with Dave Sosnow from the AMA to discuss the changes and will provide stakeholder Q & A time. The meeting will be from 1:00p – 2:30. Click here to join the meeting (on September 22). Or you can call in at 312-319-1510 (for audio only) Phone Conference ID: 348 514 318#. There may be changes, in part, depending on how many people are interested in attending. MSIA will keep you informed as information is available.