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Schimmel v. Montana Uninsured Employers Fund

Court of Workers Compensation of Montana

December 19, 2001

ARTHUR SCHIMMEL, Petitioner and Appellant,
v.
MONTANA UNINSURED EMPLOYERS FUND, Respondent, JASPER EXPRESS, INC., Employer.

          Submitted on Briefs: January 18, 2001

          APPEAL FROM: Montana Workers' Compensation Court The Honorable Mike McCarter, Judge presiding.

         COUNSEL OF RECORD:

          For Appellant: Norman H. Grosfield, Attorney at Law, Helena, Montana

          For Respondent: Kevin Braun, Uninsured Employers Fund, ERD, Helena, Montana

          For Employer: Dean K. Knapton, Attorney at Law, Kalispell, Montana

          Jim Regnier, Justice.

         ¶1 Arthur Schimmel appeals from the Findings of Fact, Conclusions of Law and Judgment issued by the Workers' Compensation Court dismissing his petition for workers' compensation benefits. The following issue is dispositive of Schimmel's appeal: whether the Workers' Compensation Court erred when it determined that Schimmel's employer, Jasper Express, Inc., was not required to provide Schimmel with workers' compensation coverage. We reverse and remand for proceedings consistent with this opinion.

         BACKGROUND

         ¶2 Arthur Schimmel was injured on November 18, 1998, while loading posts onto a trailer in Missoula County, Montana. At the time of the accident, Schimmel was employed by Jasper Express as a long-haul truck driver and resided in Trout Creek, Montana. Jasper Express operates a long-haul trucking business and is incorporated and maintains its place of business in the State of Washington.

         ¶3 Jasper Express did not have Schimmel covered under a Montana workers' compensation insurance plan. Schimmel filed a claim for benefits with the Uninsured Employers' Fund ("Fund") which denied his claim. Schimmel then filed a petition for benefits against Jasper Express and the Fund in the Workers' Compensation Court seeking a determination that Jasper Express should have provided him with workers' compensation insurance coverage. Jasper Express moved to dismiss, arguing, among other things, that Schimmel was not an employee pursuant to the Act because his employment duties were neither primarily carried out in Montana nor controlled within Montana. The Workers' Compensation Court denied Jasper Express's motion to dismiss. The court observed that the evidence did not "establish whether claimant spent more time in any state other than Montana, only that he drove less that 50% of his total miles in Montana."

         ¶4 Trial was held on April 10, 2000. On June 28, 2000, the Workers' Compensation Court issued its Findings of Fact, Conclusions of Law and Judgment. The court concluded that Jasper Express was not required to maintain workers' compensation insurance coverage for Schimmel because Schimmel was not an "employee" as defined by the Act. Correspondingly, the court also held that the Uninsured Employers Fund was not liable for Schimmel's claim. Schimmel appeals.

         STANDARD OF REVIEW

         ¶5 We review the Workers' Compensation Court's findings of fact to determine whether they are supported by substantial credible evidence. Matthews v. State Compensation Ins. Fund, 1999 MT 225, ¶ 5, 296 Mont. 76, ¶ 5, 985 P.2d 741, ΒΆ 5. We review the Workers' Compensation ...


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