The first significant case I was fortunate enough to handle came into the tiny office I had on Dickerson Street. I had no idea that this phone call would lead to a windy three year journey that would end at the Montana Supreme Court.
I received a telephone call from a 20 year old woman named Geneva. Geneva was one of seven children who had been raised by her father, Kelly. Kelly was a roofer who was the primary caregiver for six children with one out of the house (Geneva).
Geneva explained that her father had fallen off of a roof, landed on his head and had been life-flown to Billings where he was being treated for a traumatic brain injury. The subdural hematoma had been drained by the doctors at Billings Clinic and Kelly was about to head home.
Kelly owned a roofing company for years. The business had not done as well as he had hoped and he decided to work for another roofer, Russ. However, Russ did not want to pay for Kelly’s workers compensation insurance. The insurance rate for roofers in the state of Montana was 53%. That means that for every $10 an employee of a roofing company is paid, the rate for workers compensation purchased through the Montana State Fund was $5.30.
The high cost of workers compensation insurance gave Russ, and many other contractors, an idea: How about we have our employees become “independent contractors” and we avoid paying for worker’s compensation insurance? In order to work for Russ, Kelly would have to get an independent contractors certificate. This “bargain” that Kelly entered into with Russ would be the basis for a long and windy road that would eventually lead its way to the Montana Supreme Court.
When Kelly came into my office, he only knew one thing: He needed help. Kelly’s work as a roofer was over and he needed to find a way to take care of his family. Kelly submitted a claim to the Montana State Fund, it was denied. We completed mediation with the Department of Labor and Industry, again the claim was denied. With the help of a colleague, Jim Hunt, we took Kelly’s case to the Workers Compensation Court, again his claim was denied.
The entire time his case was making its way through the Court system, Kelly was unable to work. The brain injury he received left him unable to support his family. Three holiday seasons went by without any way for Kelly to support his family.
After three years of rejection, Kelly Wild finally had his day at the Montana Supreme Court. The Montana Supreme Court determined that the “bargain” that Kelly and Russ had entered was illegal. Russ was Kelly’s employer and Kelly was entitled to enrollment in the Montana’s Workers Compensation program. With its decision in Wild v. Fregein, the Montana Supreme Court required that workers like Kelly be characterized as employees when they are treated as employees. As Justice Nelson explained in his opinion, “if it walks like a duck and quacks like a duck, it is a duck.” Similarly, if the person is an employee, that person cannot be made out as an independent contractor.
Between the settlement with the Montana State Fund and his social security disability benefits, Kelly and his family have been able to stay together and currently live in Belgrade.