What should you do if you’re hurt at work—but your injury didn’t happen all at once?

In this episode of Off The Record, attorneys Paul Adam and Colin Gerstner discuss occupational disease claims, repetitive-use injuries, workers’ compensation deadlines, and what employees need to know when employers or insurance companies refuse to cooperate.

They explain the difference between acute workplace injuries and long-term occupational disease claims, including how MRI dates can become the official “injury date” for workers’ comp purposes. They also discuss employer retaliation, wrongful termination, discrimination claims, and the steps injured employees can take to protect themselves legally.

In This Episode, We Cover:

⚖️ The difference between acute injuries and occupational disease claims
🏥 How repetitive-use injuries and chronic pain qualify for workers’ compensation
📅 Why reporting deadlines matter after a workplace injury
🧾 How MRI results can establish your workers’ comp injury date
📄 What to do if your employer refuses to file your claim
🏛 How to file directly with the Department of Labor
🚫 Can your employer fire you for filing workers’ comp?
⚠️ Wrongful termination and disability discrimination explained
💼 Why injured workers have a duty to mitigate damages and seek employment
🤝 How contingency fee injury law works
🎣 Plus: summer plans, Alaska fishing trips, rafting adventures, and golf talk

If you’ve been hurt at work or want to better understand your legal rights as an employee, this episode provides practical insight into Montana workers’ compensation law and workplace injury claims.

📍 Connect with Gerstner Adam Law

🌐 Website → gerstneradamlaw.com
📍 Montana Injury & Workers’ Compensation Attorneys

Paul Adam 0:07 Welcome back to Off The Record a Gerstner Adam Law Podcast. My name is Paul Adam

Colin Gerstner 0:12 Colin Gerstner

Paul Adam 0:14 Boy, last podcast we had Judge Amy Eddy, she was excellent.

Colin Gerstner 0:19 Great

Paul Adam 0:19 Man, that was a ton of fun. If you haven’t watched episode four, go back and watch that one. She was a great guest, great content.

Colin Gerstner 0:28 I venture to say, not only the best podcast that we’ve made, maybe ever in the history of podcast, is a good one,

Paul Adam 0:36 Undoubtedly. I mean that that that has set the bar high for guests, and certainly, yeah, the content that might be helpful to listeners too. But today, you’ve just got Colin and I it’s going to be good.

Colin Gerstner 0:51 Yeah, I think. So we’re back, just Paul and I yakking about the law, and today I like to talk about unforeseen issues that may come up when you’re hurt at work, issues you know, reporting to your boss, getting medical treatment and things to look out for. So, we see a lot of injuries here, me in the personal injury context, mostly, and you do a lot of workers comp, and sometimes it’s obvious, right? Could be a traumatic event, car crash or some significant injury where you’re taking the hospital and your boss clearly knows at that moment that you’ve been hurt

Paul Adam 1:26 Right

Colin Gerstner 1:27 on the clock. But I want to talk about some stuff that may be not obvious that we see sometimes here.

Paul Adam 1:33 Yeah, and I these are most of our calls. I think are issues that you know folks aren’t calling us and saying, Hey, what are my rights when it comes to my wage loss benefits with work comp or, you know, like, hey, you know, should my should the workers comp insurer be paying for this type of medical service? I mean, those are the benefits and the rights that are that, you know, we deal with every day, but it’s, it’s issues that are much more uncommon.

Colin Gerstner 2:05 For sure, it could be a firefighter tweaking your back step into your truck. You could have repetitive use injury, you know, manual job and, you know, you’ve hurt your shoulders to just kind of power through right because you’re tough. Eventually it reaches, you know, a tipping point, or you need medical care for this injury that’s kind of accumulated on the job. So what should you do in that situation?

Paul Adam 2:29 Yeah, and so, Colin, you’re kind of talking about and what we call an occupational disease. And you know, when you think of a disease, you know, it’s not what comes to mind. In work comp, there’s two types of claims. You’re either going to have an acute injury with a date of injury that you know exactly when it happened, because that’s when you fell, or that’s when you, you know, lifted something and hurt yourself, or you’re going to have an occupational disease where this might be persistent pain or growing pain over a prolonged period of time, maybe several months, maybe several years, and it gets to the point where it’s just like, Man, I gotta go see somebody or I, I need to mention this to my employer that like, Yeah, I used to be able to stock shelves and lift this pallet or lift this box up to the top rack, and I can’t do that anymore my you know, maybe it’s my back or my shoulders. And so those are the tough ones, because you don’t have a specific date, but you don’t need one. It’s an occupational disease, is what it is.

Colin Gerstner 3:41 There’s gotta be some sort of deadline, though, right? So, what are some important dates when you, when you realize you have an occupational disease?

Paul Adam 3:48 Yeah, and this is, this is probably, oh, this is a commonly disputed issue in these types of claims. Is the issue of notice, and it’s, you know, the law will say it’s, it’s when you knew, or when you should have known, that your condition was related to your work, okay, and so most of the time, it’s easy that, if you have A you know, let’s say your back has been progressively hurting more and more over a period of time. You go see a doctor. They’re like, boy, I don’t know what it is, you know, you’re just getting old. And then he’s like, but you know, you need an MRI, and so you get that objective medical evidence, and lo and behold, it shows up, you know, a massively herniated disc in your lower back. And they’re like, oh, that didn’t happen from, you know, just getting old and degeneration like that happened because you were on. Ongoing, you know, your ongoing work in a heavy-duty occupation.

Colin Gerstner 5:04 So how do you get a worker’s comp claim going at that point?

Paul Adam 5:07 Yep. And so you use that date, for example, the MRI date. Or, you know, when the results were discussed with you. You use that date as your date of injury, and you report it to your employer, you know, you have 30 days, really, from that date that you knew, or should have known, that it was related to work. And so you do need a specific date of injury, but that’s the difference there, and it’s not the date of an acute moment in time.

Colin Gerstner 5:43 Then you let your boss know. Or who do you tell at your employer about this injury?

Paul Adam 5:49 Yeah, so most of the time it’s your, you know, your direct supervisor, who is probably the best it can be. It could be the HR department at a larger employer, someone in a supervisory role, or, as I’ve seen before, you may know who the work comp insurer is. And so the statute also allows you to notify the work comp insurer in place of the employer.

Colin Gerstner 6:22 So we’ve been around the block a few times, and we know that sometimes an employer isn’t happy to hear that there’s a comp claim. So what if you are hurt? You find out you had this MRI, I know you have an occupational disease, go to your boss and say, hey, hey, man, I need to get a compliment going, I’m hurt. And he says, No. What do you do then?

Paul Adam 6:45 Yeah, usually they won’t tell you directly, no. They’ll usually say, Yeah, sure, I’ll do that. And then it never happens. Or, I don’t really think you were hurt at work. I think that’s something else.

Colin Gerstner 7:00 No, that’s seen the most, right? They’re like, No, there’s no way, right? You’re old, or I’ve seen you, you know, battle your back the whole time you’ve been here, and they’ll debate with you whether you’re actually hurt on the job.

Paul Adam 7:12 Yeah. And you know, there are also great employers out there that understand the system and understand they have insurance for exactly this. But there are also employers that are thinking, oh my gosh, this claim is going to increase my premiums on my work comp insurance. And so there is somewhat an incentive for employers to, you know, not have claims on their policy. And so that’s usually the rub. That’s usually why you might have an employer who’s hesitant to be helpful in filing that claim.

Colin Gerstner 7:50 Sure. So what do you do in that situation?

Paul Adam 7:52 So the system allows you to bypass the employer altogether to get that claim filed, and it’s set up for exactly this reason. And so there’s a form out there called the first report of injury. And this is a form on the Department of Labor website, the Employment Relations Division. It’s got a link. It has instructions on how to fill it out. It’s a one-page document, and you fill that out, sign it. You do not need the employer’s signature. In fact, you don’t need the employer’s permission, and then you can send that directly to the Department of Labor to initiate the claim.

Colin Gerstner 8:31 So we’re also not naive to believe that the employer will be happy to know you’ve filed the first report of injury directly with the comp court and insurer. What protections do you have if you get canned, right? The boss is upset and has just fired you.

Paul Adam 8:48 Yeah. And I mean, it does, it can it can build to that if you file the complete or if you file the claim and the employer doesn’t like it, they may find a reason to try and get rid of you, and they may use something else as a pretext for that termination. But we see this fairly often, where someone is terminated from their job and thinks it’s because of the comp claim. So that does that opens up just more avenues of recovery, because you do have protections. You know, the first, I guess, would be filing, filing a workers’ compensation claim, or being hurt at work. You do become part of a protected class for discrimination. And so the Human Rights Bureau up in Helena investigates these discrimination claims, and your disability is the protected class that you would fall under. And so they do their investigation, and they could find the employer, you know, has discriminated against you because of of that comp claim.

Colin Gerstner 10:03 Yeah, the MHRB. It’s an it’s an interesting process, and so we’ve done it before. We don’t typically handle employment cases, but we have, and we do in context like this, where you’ve been fired because you’ve been hurt on the job, right? An employer decides you’re not worth it anymore and fires you. Unfortunately, I wouldn’t say it happens often, but it happens. And so, yeah, you file your charge of discrimination is what’s called before the Human Rights Bureau, the appointed investigator, they look into it, and he issues either a cause or no cause finding, yep, and there’s a whole administrative process from there, but you do, you have remedy there if you prove that you were fired because you’ve been hurt.

Paul Adam 10:46 Yeah, and you know, one of the best parts about it, I think, is they have a staff that investigates those claims, and so it’s not, it’s not on you to gather the evidence where it’s not on the law firm to gather the evidence. You know, they have an investigator that does the interviews, comes up with their findings, and then you can do with those findings what you want. Maybe that leads to a maybe that leads to a lawsuit of wrongful termination as well. And so, you know, Colin, I, you know, we have taken some wrongful termination cases. We’ve litigated those. We’ve settled those. Yeah, I guess. What’s your thoughts? I’d like to ask you your thoughts on handling wrongful termination cases at a personal injury and work comp firm.

Colin Gerstner 11:42 Yeah, so it’s first off, we want to get you back to work if you need to. And so we always tell clients, you know, go look for employment, right? And so you do under the law of a duty is what we call a duty to mitigate your damages. It’s not obligation to find other work. But even beyond the legal obligation, just on a personal level, we want you out there working. We find that people do better when they you know, they try to get back in the routine get better. So we always tell you, you know, hit the job market. Dust off that resume and look for a new job that they can do, hopefully the same skill set. And if things work out, well, you won’t have a wage loss, right? Hopefully you can find a comparable job that you enjoy, gets paid the same. But if not, then, yeah, we will pursue that claim. You can file this, maybe in the weeds a little bit, but basically parallel actions. We can file disability discrimination claims or fire exert work, then also a wrongful discharge claim. You know, under Montana law, we’re a cause state, we’re not an at will state. And so once you’re past your probationary period, which is an issue, but if you’re past your probationary period, either set by your work or set by law, your employer needs cause to fire you, right? They can’t fire you, just willy nilly, yeah. And so that’s always the fight is whether the employer had good cause to terminate your employment,

Paul Adam 13:11 Yeah, and you know, I would say, you know, we, we’ve just unloaded a ton of different avenues from the same set of facts here. And but this is, this is kind of what you get at a firm like ours, because, you know, you can pursue all of these different avenues. We handle them, but it still doesn’t cost you anything. And what I mean by that is, these are all contingency fee cases, right?

Colin Gerstner 13:41 Sure. No, it can be daunting, right? You have an attorney for different cases. Could be against the work calm employer, against your former employer itself. And it’s, it’s scary. And then oftentimes people are wondering, like, oh, man, what’s this going to cost, right? And is it, can I bear the risk of, you know, striking on these cases, and then have, you know, an attorney’s bill on top of that. And the good thing is that we take these on a contingency fee, and so you only owe us if and when we recover on your behalf.

Paul Adam 14:12 Yeah, and it’s not, you know, it shouldn’t be overwhelming for a prospective client to know what types of claims they want to pursue. You know, I want clients to call us and be comfortable just presenting a set of facts and saying, What are my options? You know, that’s the best. Don’t come in thinking, well, you can come in thinking you want us a certain Avenue, but this is what we’re trained on. This is what our experience has led us to. Is, is, you know, we’re going to present all available options, all available courses of action, and then have a discussion with you on which courses we should take. You know, what are our best chances of success? Because there’s some there’s some folks. That they just do not want to go after the employer, or there’s some folks that only want to go after the employer, and so, you know, I think that’s unique to us, is that we’re happy to meet you where you’re at, and you know, we’re gonna, take our direction from what the client wants.

Colin Gerstner 15:20 Sure, they always want, you know, clients to, you know, talk to us about their issues, right? So you could find other remedies for them. And also, you know, life can be messy, and so they could be having issues beyond, you know, their injury case that they may need counsel for. We want to get them set up with a good attorney. If it’s something else in our wheelhouse, we’ll refer it out, and rather than them go to, you know, a good attorney that they can trust. Then, you know, search around the dark for attorney represent them on whatever issue they’re facing, or just not facing that issue altogether.

Paul Adam 15:54 Yeah, you know, probably some of our best cases are, you know, maybe even some of our most contentious issues have come from, you know, these peripheral paths from just the personal injury or just the worst work comp and so, yeah, don’t shy away from giving us a call because you think you have one certain type of issue if it relates to an injury and it’s somebody else’s fault, we want to know about it.

Colin Gerstner 16:27 Yeah, it’s kind of funny. We have a client who called in about a current injury issue, and then, as you were talking to him, you learned about this other injury that happened three years ago. And that’s not why you called, but you’re able to help them out on that claim as well.

Paul Adam 16:45 Yeah, I, you know, I’m thinking of another one. We got an online inquiry. An older gentleman had filled out the online, you know, text box about needing some tax advice, and this was for, this was for, do I need to withhold taxes on paying for this home health care worker? And that was the most pressing issue to him. But this stemmed from a comp claim, which a catastrophic comp claim, that he had more rights and benefits that he was entitled to that he was completely unaware of, and we got that straightened out. And, I mean, in that case, I got him a life-changing result.

Colin Gerstner 17:38 Yeah, terrific result.

Paul Adam 17:39 Yeah. And so that’s what I mean. You think you’ve got a certain set of facts that lead to a certain direction. And yeah, it doesn’t always go the path that you think it will. This really stems from just the recent conversations that you and I have had, the recent phone calls that have come in, and it just needs to be emphasized that, yeah, we do a lot more than just work, comp, and pi, but it all stems from an injury. And so that’s, that’s our expertise, is injury first and then finding the paths and the avenues of recovery that you can take from there.

Colin Gerstner 18:24 And I also want to emphasize that, I’d say it’s uncommon to be fired for doing a comp claim. I mean, most of our clients aren’t fired, right?

Paul Adam 18:34 No

Colin Gerstner 18:34 I don’t want to scare anybody from finding a comp claim. Let’s talk about wrongful discharge. I mean, most time, first off, it’s right under the law, right? And so they reasonably cannot hold it against you, for you to enforce your legal rights. And most, most of them get it right. I mean, how often do you say somebody’s fired because of their work?

Paul Adam 18:56 And I’ll be honest, it’s from an unsophisticated employer that hasn’t been through the process and hasn’t been advised on it, and so you might find it from small employers or fly-by-night operations, new employers that don’t understand the process. And maybe that’s it. Maybe it’s just you know that, that they don’t understand it. Might not be intentionally trying to hurt you or to well be a burden to the process. It might just be they don’t know any better.

Colin Gerstner 19:30 But what happens if it does reach out to cause us or anybody else any injury that is good at handling his claims.

Paul Adam 19:38 Yeah, and it does. It. It. This stuff keeps us busy. We love it. I will say, you know, we’re coming off of, you know, I mean our busiest stretch of time at the practice is really probably the colder months of the year, and for a number of reasons, it. That’s because everyone’s at their desk working, sure, during those times.

Colin Gerstner 20:03 Right now, it’s getting nice out. I think it’s like 80 degrees outside. I’m wearing shorts and sandals. I know you can’t see but yeah, trust me, I am. It’s beautiful, and we work hard here, but sometimes we’re able to shake free from the desk. And Paul, would you like to share with the good people at home what you’ve been doing, you’re not here working. You picked up a project.

Paul Adam 20:26 Yeah, I know where you’re heading with this. I know you’re kind of leading me into it. I’m happy to talk about it. I do. I have a, you know, some might, some might call it an obsession at this point. I think that’s a fair way to put it, I’m not going to shy away from that. But no, my, my quest to try to get as far away into the back country as quick as possible, that’s just always kind of my, my goal in the summer at some point. And so this year, it’s led to trying to do this by inflatable raft with outboard motor. I am. I’m not a boat owner. I’ve where I’ve never I am now, but I have never been before, so it’s a completely new learning experience say the least.

Colin Gerstner 21:16 Yeah, and it’s all run smoothly. You got a boat. It’s been figured out super quickly.

Paul Adam 21:22 No Colin, no Colin, you really set me up here. No, it has not been smooth. Has been it has been fun. It’s been a great challenge. But I knew nothing about board motors or fuel lines or, you know, even inflatable rafts. And so, no, I have. I have been stranded in the middle of Cooney Reservoir recently, I will say, because I didn’t have my fuel lines, my quick disconnects attached properly, but just an opportunity to test out the the oars. And so no, but no, that’s, that’s my big plans for the summer. Is being able to use this craft to get into the back country, on rivers, on lakes that most people, yeah, aren’t going to.

Colin Gerstner 22:17 Love it.

Paul Adam 22:18 Yeah. What about you? What are your plans here for the summer?

Colin Gerstner 22:21 Yeah. So, you know, typical stuff, chase around kids to different sports. I try to get away camping and fishing when I can get away to the mountains. But what I’m really looking forward to the summer is I’m going to Alaska for a week.

Paul Adam 22:34 Yeah, you are.

Colin Gerstner 22:36 Aiming to catch some big fish, so that’ll be fun.

Paul Adam 22:39 yeah, fly fishing, spin cast, you off the coast?

Colin Gerstner 22:42 All the above. And so we’ll be fly fishing in the river for salmon. We’ll be out out in the ocean, Halbert, salmon, rockfish, all that stuff, and flying into a mountain lake. So can’t wait.

Paul Adam 22:57 That’s gonna be awesome. And Colin, I mean, your other when you can, I know that you do like to get around, get away for a quick round of golf. Which as do I, I would say, I think we talk about golf a lot more than we actually play golf. I think that’s fair.

Colin Gerstner 23:20 Definitely, yeah, and play golf is a loose term for me. At least, I just, mostly just aimingly whacking at a golf ball. Yeah, I don’t know, pay proper respect to the sport of golf, but I like to get out on the links, you know, smack around a little bit.

Paul Adam 23:35 Yeah, and we do have, we do have some Gerstner Adam Law promotional golf balls of a popular brand. We do not skimp. I will say when it comes to the Gerstner Adam Law swag golf balls.

Colin Gerstner 23:50 So Titleist, you know, we’re advertising for you too here. So you know, if you want to sponsor the pod, just reach out.

Paul Adam 23:58 Sure. But if you have made it this far into the podcast and you’re still listening, a code will pop up on the screen. Look for it, and then go to our website, and you will find a giveaway section on the website. Enter the code, and we will ship you a sleeve of the 2026, Gerstner Adam Law, golf ball, and so just a thank you to making it this far into the podcast. We appreciate you. Appreciate, yeah, the loyal listeners, the new listeners, and if you play golf, great if you don’t play golf, it can be a gift for someone who does.

Colin Gerstner 24:40 One more question for you.

Paul Adam 24:42 Okay

Colin Gerstner 24:42 So we talked about fighting insurance companies a lot, and it’s metaphorical, right? We’re battling through our words and on behalf we I have never struck an adjuster. That’s That’s my guarantee. I’ve never used physical force to advance a claim. But, let’s say you were to fight an adjuster, physically? Would you rather fight one giant adjuster or 100 toddler size adjusters?

Paul Adam 25:11 Oh, God, that is a great question. 100 toddler-sized insurance adjusters? Which insurance company?

Colin Gerstner 25:24 Let’s go Allstate.

Paul Adam 25:25 Allstate. Oh, I’ll fight 100 Allstate toddlers. No problem. Yeah, giant. All State toddler. Yeah, no, I’ll go 100.

Colin Gerstner 25:37 Okay, that’s what I would do.

Paul Adam 25:39 Now, thanks for the burning question, calling that I did not see that coming. That is not something

Colin Gerstner 25:44 Been on my heart.

Paul Adam 25:45 that we prepared for. No, that’s, yeah, that’s great.

Colin Gerstner 25:49 Thank you.

Paul Adam 25:51 Thanks all. Appreciate you listening this far. We’ll see you next time.