Key Finding Regarding Subsistence Pay puts Injured Worker in Course and Scope

Posted by Dean Blackaby | Feb 07, 2015 | 0 Comments

Olson v. Montana State Fund 2015 MTWCC 2

The Montana Workers' Compensation Court made key factual findings regarding the nature and character of subsistence pay bringing a case squarely in line with Montana Supreme Court precedent and concluded that Deelynn Olson was in the course and scope of his employment while injured on his way to work on August 10, 2012.

Olson was injured during a motor vehicle accident on August 10, 2012 while traveling to work but not "on the clock" as an employee of Colstrip Electric Inc. (CEI).  Olson was injured at 6:30 a.m. while traveling to start his work day which began at job staging area at 7 a.m.  As part of a collective bargaining agreement, Olson received $61.50 per day in "subsistence pay" "in lieu of any travel allowance...."

The Court analyzed the language of agreement in the context of section 39-71-407(4)(a) and (b), respectively.  The sections impact the general "coming and going" rule significantly and can provide exceptions to the general rule against liability.  The Court found Montana Supreme Court decisions McMillen and Gordon analogous and rejected an attempt by MSF to re-characterize the payments through employer testimony as well declining to reinterpret the language contrary to the Gordon court.

From an administrative perspective, it is noteworthy that this decision is from a matter submitted during Judge Shea's tenure.  Based on the Court's website, this appears to be the last matter from the Shea era.


Submitted:  December 10, 2013

Decided:     February 3, 2015

Attorney for Olson:     Laurie Wallace

Attorney for MSF:       Kevin Braun

About the Author

Dean Blackaby

Attorney representing individuals hurt at work; mediation of workers' compensation disputes; settlement consultant focusing on Medicare Secondary Payer compliance and Medicare set-asides.


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