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McManus v. Uninsured Employers' Fund

Court of Workers Compensation of Montana

September 22, 2004

EDWARD F. McMANUS Petitioner
v.
UNINSURED EMPLOYERS' FUND Respondent DARYLE WAGNER and SCHAFER'S WILD GAME PROCESSING, INCORPORATED Respondents/Alleged Employer.

          Submitted: August 30, 2004

          ORDER DISMISSING UNINSURED EMPLOYERS' FUND

          MIKE MCCARTER, JUDGE

         Summary: The claimant petitioned the Court for damages on account of his employer's failure to reemploy him after he had been released to return to work following a workers' compensation injury. The Court served the Uninsured Employers' Fund (UEF) with the petition since the petition also alleged that the employer was uninsured. In its response, the UEF requested that it be dismissed since the claim is against the employer.

         Held: A claim for retaliatory discharge or for failure to give the claimant a preference for a job opening is against the employer, and does not state a claim for relief against either the employer's insurer or the UEF (in the event the employer is uninsured). The UEF is therefore dismissed from the action.

         Topics:

Employment: Retaliatory Discharge. Section 39-71-317, MCA (1999-2003), makes it unlawful for an employer to discharge an employee for pursuing a workers' compensation claim, however, any action for violating the prohibition must be brought in district court.
Employment: Rehire Preference. An employer must give an injured worker a two-year rehiring preference for any job opening occurring within two years of the worker's industrial accident if the worker is qualified for and able to perform the job. An employer is liable for damages for any failure to give the worker a preference as required and the Workers' Compensation Court has jurisdiction over such action. § 39-71-317, MCA (1999-2003).
Jurisdiction: Retaliatory Discharge. Section 39-71-317, MCA (1999-2003), makes it unlawful for an employer to discharge an employee for pursuing a workers' compensation claim, however, any action for violating the prohibition must be brought in district court.
Jurisdiction: Rehire Preference. An employer must give an injured worker a two-year rehiring preference for any job opening occurring within two years of the worker's industrial accident if the worker is qualified for and able to perform the job. An employer is liable for damages for any failure to give the worker a preference as required and the Workers' Compensation Court has jurisdiction over such action. § 39-71-317, MCA (1999-2003).
Jurisdiction: Rehire Preference. Any action for an employer's failure to honor the two-year rehiring preference specified in section 39-71-317(2), MCA (1999-2003), is against the employer and not against the employer's insurer or the Uninsured Employers' Fund if the employer was uninsured.
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: Section 39-71-317, MCA (1999-2003). Section 39-71-317, MCA (1999-2003), makes it unlawful for an employer to discharge an employee for pursuing a workers' compensation claim, however, any action for violating the prohibition must be brought in district court.
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: Section 39-71-317, MCA (1999-2003). An employer must give an injured worker a two-year rehiring preference for any job opening occurring within two years of the worker's industrial accident if the worker is qualified for and able to perform the job. An employer is liable for damages for any failure to give the worker a preference as required and the Workers' Compensation Court has jurisdiction over such action. § 39-71-317, MCA (1999-2003).
Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: Section 39-71-317, MCA (1999-2003). Any action for an employer's failure to honor the two-year rehiring preference specified in section 39-71-317(2), MCA (1999-2003), is against the employer and not against the employer's insurer or the Uninsured Employers' Fund if the employer was uninsured.

         ¶1 The petitioner in this case alleges he was injured on October 13, 2003, while working for Schafer's Wild Game Processing, Incorporated (Schafer's). He alleges that Schafer's refused to allow him to return to work after he was released by his physician and seeks damages on account of that refusal. He named Schafer's as a respondent in the case, ...


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