What should you do after a car accident? Should you represent yourself in an injury claim? And what’s the current status of corner crossing in Montana?

In this special community Q&A episode of Off the Record, attorneys Paul Adam and Colin Gerstner answer questions submitted by listeners covering a wide range of legal topics—from workers’ compensation and personal injury claims to public land access and constitutional rights.

The attorneys explain how employers should handle workplace injuries, why reporting accidents properly matters, and why having legal representation often leads to better outcomes for injured people. They also discuss what information drivers should provide after an accident, the legal gray area surrounding Montana’s corner crossing debate, and resources available for people who cannot afford legal counsel.

In This Episode:

⚖️ What employers should know about workers’ compensation coverage
👷 How employees should report workplace injuries
🚗 What to do immediately after a car accident
📋 Why police reports are so important for injury claims
💼 Common myths about representing yourself in court
🦌 The current legal status of corner crossing in Montana
🇺🇸 A discussion on First Amendment rights
🤝 Legal resources available for those who can’t afford an attorney
🎣 Audience questions, Montana stories, and a few laughs along the way

Have a legal question you’d like answered in a future episode? Leave a comment or reach out to Gerstner Adam Law—they may cover it in an upcoming Q&A.

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 0:13 And Colin, what have we got going today?

Colin Gerstner 0:15 Yeah. So this morning, you know, I went fishing for ideas for the podcast. So I threw it out on our Facebook page and shared it on my personal page, just asking for, you know, what was on people’s minds, right? And so, what questions they want answered, what topics they want discussed, and so we took all of them, and we’re gonna briefly touch on them today.

Paul Adam 0:39 Yeah, no, great. This is a good response, so thanks in advance to all those who commented and had questions. What is first up?

Colin Gerstner 0:49 The first one is from our really good friend Morgan Dido Kirkwood. Really thoughtful question. She asked, “I’ll read the whole thing, and we’ll break it up. She asked, “What you wish employers understood about their workers’ comp coverage, what information could or should employers make sure their employees know and have access to proactively? Also, biggest myths about representing yourself and expected outcomes, and if I’m in an accident, what should I make sure I know or tell law enforcement at the time of the incident? So why don’t you take the first half, Paul, and I’ll do the second half. So first question is: What employ? What do you wish employers understood about their workers’ comp coverage?

Paul Adam 1:32 Yeah, no, this is interesting. I mean, kind of looking at this through the lens of an employer, and so I, you know, I think a lot of employers. I guess first of all, let me say this: there are three different plans of work comp coverage out there. Either you’re going to go through the Montana State Fund, which is kind of this quasi-governmental entity, or you’re going to get, you know, private insurance. You know, there’s a handful that are popular in Montana. Maybe Travelers Insurance, The Hartford, Liberty Mutual. A lot of those are also have a third-party agency that’s going to adjust those claims. And then the third plan is the self-insured plan, and so you see that with some big employers: Stillwater Mine is self-insured

Colin Gerstner 2:31 the Walmarts, Costcos of the world.

Paul Adam 2:32 Yeah, you know, your really big employers. A lot of times they’re self-insured or part of a captive group. You know, where there might be tiers of self-insurance there, so they’re not paying, you know, dollar for dollar out of pocket.

Colin Gerstner 2:47 But yeah, most local businesses are probably state fund or some private insurance company that they pay premiums to.

Paul Adam 2:55 Yes, and so every employer has to have work comp coverage, even the high-risk employers, you know, your, you know, your, your, a lot of the blue-collar jobs, your, you know, contractors that are running heavy equipment, working at heights, those riskier jobs, those premiums can be expensive, but it’s the law. You have to have it. If no one else wants to insure you, the Montana State Fund will, and so there’s no reason that you shouldn’t have it. And so, if you’re a new employer, know that it’s not an option. You know what happens if you don’t get it. You know you see this occasionally, but there is the uninsured employers fund, and so

Colin Gerstner 3:46 That never turns out well for the employer. We’ve had a handful of those cases, and it doesn’t go well for the employer.

Paul Adam 3:53 No, and it doesn’t go well because ultimately the employer is it will be on the hook, and so the state does have a fund so that that injured worker will get benefits that they’re entitled to, but then the UEF comes right back on that employer, and they don’t stop, and they will get their money from you. You can’t run, you can’t hide, and they will get reimbursed. So it’s always better off to not dodge coverage. I guess that would be my first point. You know, I’ve had some interesting conversations recently, actually. So I’m glad we got this question. I had a great conversation with a big employer. Actually, I think it was yesterday with a self-insured organization, and he, you know, he’s the CEO of this organization. We were talking about a workers’ compensation issue, and he was an incredibly smart guy, but he thought that he. Knew how this particular claim was being adjusted. He thought he knew what benefits the injured worker was entitled to, that they were getting them, and he was wrong. And so, I think it’s important for employers to realize, like it or not, you’re only getting half the story. If you are communicating only with your adjuster, whether that’s, you know, directly with the insurer or through a TPA, you are getting half the story, and so just be wary of that. You know that adjuster is squarely on the employer side of things, but I will say the right side is to be on the side of the law, right? And so I often explain my job is, you know, I know what the law is, and let’s make sure everybody follows the rules. I think a good employer would do the same.

Colin Gerstner 6:08 Yeah, I think most employers, you know, you get somebody to earn the job. They care for them, right? And so they want them to get better, get the medical care they need, be reimbursed for their wage loss, and you know, if you’re an employer and you hear about a fight between, you know, your employee and the work comp carrier, first off, it’s not a fight against you unless you’re one of these self-funded employers. It’s with the insurance company, and I guess don’t take it personally. And as Paul said, you may not be getting the full story. The employer might be getting hosed. An employee might be getting hosed, it might be a legit bone they’re picking at the comp insurer. So, like Paul said, you know, you might be knocking the full truth by the adjuster.

Paul Adam 6:52 Yeah, you know, the second part of that question here: what information could or should employers make sure their employees know and have easy access to proactively? What comes to mind, I guess, with that question is, you know, that moment in time right after somebody gets hurt on the job, and what do you do? And I think a lot of employers are worried about that moment and doing the right thing, but they’re also worried about their costs. They’re also worried about their work comp premiums, and so there is. I think there is a temptation to maybe try and sweep it under the rug, or maybe try and downplay it, or encourage that injured worker to maybe go through your private health insurance, or maybe try to pay those lost wages, you know, out of your pocket, or keep paying them as a W-2 employee. But here, the workers’ comp system is in place for a reason. Employers pay a premium for that insurance, and I’ve seen it so many times where an employer will go down that route, and it is just not sustainable. And that employee ends up needing their statutory benefits of work comp, and they have to hire an attorney for it, and then that relationship is just completely soured, and it doesn’t have to be like that. And so, what I would like to see early and often from an employer is just without exception, encouragement to and help to get the claim filed, assistance with that paperwork, and just get that employee on the right track quickly. Because the faster they’re on that track, the faster they’re going to heal up, and the faster they’re going to be able to come back to work. And so, don’t mess around with trying to delay or sweep it under the rug.

Colin Gerstner 9:03 Next part that Morgan suggested we address were biggest myths about representing yourself and what outcomes you could expect. There’s a saying in our line of work that anybody who represents himself has a fool for a client. It’s not a not a good idea. But what I hear most often from people, they ask, and I appreciate the question. It’s, can I handle this myself, and then I can avoid, you know, paying your fee. We’ve talked about this before. We take these cases on contingency fees, so it’s a share of the recovery, and I understand the notion, right? I’ll save on that fee and just keep it all myself. But you know, studies have shown you can look this up on the web. But even factoring the contingency fee, you’re far more likely to put more money in your pocket, have a bigger recovery ultimately than if you had just gone it your own. And that’s just all the knowledge we have, knowing how the law works, and also, you know, the hammer in that ultimately, if you can’t settle, you might be forced to file a lawsuit. Insurance companies know that and know that we, you know, litigate cases, and we can do so effectively. Generally, self-represented people cannot, right? So you lack the leverage of filing a lawsuit if you can’t ultimately settle.

Paul Adam 10:24 You know, in a work comp case, we don’t bill our time. We’re not going to charge anybody, or you won’t ever receive an invoice. The fees are capped at 20% in work comp, and what’s great is that these are all statistics. The settlement statistics are posted online, and this is public information on the Department of Labor website. The settlements for unrepresented injured workers versus represented injured workers, and the difference is staggering.

Colin Gerstner 10:55 Last part of that terrific question is: if I’m in an accident, what should I make sure I know or tell law enforcement at the time of the incident? So first off, call 911, call the police, get them out there, and they will investigate. So they’ll gather the necessary information. They’ll get the insurance information from the other driver. They’ll investigate the crash and do a report. Now I’m going to say next. My good friends that do criminal defense law, I’m sure, will disagree with me. But be truthful with law enforcement and talk to them. Tell them what happened and be honest with them. You know, if you’re suspected of a crime, a defense attorney might tell you something else. But generally, just I always tell my clients this: always be truthful, tell the truth.

Paul Adam 11:44 You know, and that brings up, you know, I think an interesting scenario for some people because maybe some of these accidents that are maybe more minor, you know, you’ve got fender benders, maybe everyone’s busy, everyone’s trying to get to work, or you’re on your way to something, I think there’s a temptation to just trade insurance. You know, here, here’s take a picture of my insurance card, take a picture of your insurance card, we’ll be in touch, and you go your separate ways if both cars are drivable. Do you have any examples where that’s come back to bite somebody?

Colin Gerstner 12:17 Yeah, yeah, yeah. So I have a case going on right now where a client got rear-ended, and she suffered injuries, and she knew she did, but didn’t think it was significant. Did exactly what you suggested. They got out. The other driver felt terrible, right? Admitted fault. It’s like, oh my gosh, I’m so sorry. Here’s my car. Got the information. They drove off, and then later that day, paying out orders, went to the hospital, and had significant injuries. But we never had that kind of investigation into it, and that’s given the insurance companies trying to make hay out of like the lack of information at the time of the crash. Yeah. So no, I know it’s a pain in the neck. You don’t want to sit around any longer than you have to, I get it, but call the police, and you’re required to turn the law if there’s any injury. So, call the police, let them do their work, and be honest.

Paul Adam 13:11 Yeah, I’ve also, you know, there’s been a handful of cases where a helpful witness statement has been critical to establish liability, and so this goes for folks that also see an accident. You know, you might be in a hurry to get somewhere, but boy, if you are the only witness on the scene, and you know, stick around. You know, give your statement. That could really change somebody’s life for the better in the end.

Colin Gerstner 13:43 Next question comes from my good friend Jeremiah, who suggested that we discuss corner crossing in Montana. Because first off, Jeremiah, tune in from Iowa, so I guess you could say the pod has gone global. It’s crossing state lines.

Paul Adam 14:00 Sure

Colin Gerstner 14:00 Same thing as going global.

Paul Adam 14:01 Sure. Yeah.

Colin Gerstner 14:03 And second off, Jeremiah, you trying to get me in trouble, man? What are you doing with this? This is a topic that is near and dear to my heart as an outdoorsman. It’s a hot topic in basically the hunting world primarily, and it’s also a gray area right now.

Paul Adam 14:20 What is corner crossing? I mean, I think there’s a lot of listeners that are like Corner, like what jaywalking? You talking about going diagonal across the intersection? What are you talking about?

Colin Gerstner 14:29 I’m gonna try to draw a picture here. I don’t know if it’ll translate, and Ben can absolutely cut it if this doesn’t work. But if you look at, like, property ownership, especially like in rural areas, right? There are a bunch of squares, and we call them sections. And so at times these squares will meet, you know, in a four-corner area, and two sections of private will be kiddie corner. Two sections of public. So, for example, if you can see this. Imagine so right here. These are four sections, and the shaded area. Let’s say this is private land, and the blank area is public. And so the issue is whether a hunter coming here on public land. We all agree he can do this. Can he then cross over this corner to access this section of public land, right? And many, many people disagree on it, and it’s been in headlines recently. It’s been kind of a topic for quite a while whether you can do this, but there’s a case out of Wyoming that squarely presented this. I’m going to try to be brief here because I’m I could talk about this for a whole podcast episode. Name of the case is called Iron Bar Holdings versus Cape. In that case, some hunters corner crossed over a situation just like that. They actually brought a ladder to the corner. They’d done this before, and they popped it over where the fences intersected and climbed over. And so they didn’t physically touch any of the private property, they definitely did. They had to have necessarily crossed over the airspace, right? But no, they didn’t actually step foot on the ground. The ranch was near the aptly named Elk Mountain. Shout out to the Hannah Elk Mountain High School Miners. Go Miners! They refereed many basketball games there, as an aside, has nothing to do with the case. You probably cut that part, Pen. Anyway, the landowner in that case, his theory is that it is a trespass, a trespass under Wyoming law, state law, because they cross over the private airspace over his property. Went is in federal court. Went to the 10th Circuit Court of Appeals, which held that under a federal law called the Unlawful Inclosures Act of 1885, it prevents private landowners from using state law trespass claims to block the public from reaching federal lands, and so the 10th Circuit said it’s okay to cross-corner. The 10th Circuit it encompasses Wyoming, Colorado, Utah, New Mexico, Kansas, and Oklahoma, and it’s only binding within that jurisdiction. That makes sense. The federal courts are divided into circuits, and it’s called a petition for a writ of certiorari to the U.S. Supreme Court, which then would have effect over the whole country, and the Supreme Court declined to take it up. So that’s the status of the law right now in the 10th Circuit. The question Montanans are facing is what that means for us. We’re within the Ninth Circuit Court of Appeals. I personally do not foresee the Ninth Circuit deciding it differently. I think they would reach the same decision that the 10th Circuit did. I won’t get into all of it. It’s murky. I will say, I was reading an article that Lieutenant Governor Chris and Juris made a statement or somehow said something that she thinks that Corner Crossing is illegal in Montana. We love to keep wanting to call her Professor Juris because she was our property professor. Right, she’s terrific. Loved her in law school, and no disrespect to her -personally, but I disagree, and you know, Lieutenant Governor Juris, if you’re listening, why don’t you come on the podcast and we can discuss?

Paul Adam 18:28 Ooh, I like that.

Colin Gerstner 18:30 But anyway, I guess the short answer is, in Montana, it’s gray. Nobody knows.

Paul Adam 18:38 Yeah, no, property rights, access. I mean, boy, that is the big issue in Montana. We do have some, you know, we are lucky in a lot of ways. I think. I mean, we’ve got, you know, this isn’t on our outline, Colin, but we compare ourselves to Wyoming a lot. You have family a family ranch in Wyoming. You hunt some in Wyoming, and we both fish rivers in Wyoming and lakes in Wyoming. And so, you know, we’re often talking about, you know, access through stream beds and high water marks. And I mean, there’s a lot. There’s a lot there. It’s a fun topic to talk about. It is always contentious because it’s it involves access to some of the most beautiful and remote places. You know, I think in the lower 40-eight. But I would say Montanans are fortunate in a lot of ways with our rights to access. But yeah, that’s a super great question from Jeremiah Larson. We really appreciate you. We have one more, one more question from a let’s see. Oh, a big fan, a big fan of the firm, Sean. O’Brien, he has asked us to discuss First Amendment rights.

Colin Gerstner 20:06 Yeah, not exactly sure what Sean wanted to discuss, but the First Amendment has some rights. Yep, as I hope everybody knows, it’s the First Amendment to the U.S. Constitution we’re talking about here. They’re called the five fundamental freedoms. It’s freedom, free exercise of religion, freedom of speech, press, assembly, and the right to petition the government.

Paul Adam 20:30 There you go, Sean.

Colin Gerstner 20:31 There you go. I’ve answered it. Whatever question you had, I’m sure that got it. And there was one more I should have mentioned on my personal page. Carol, a friend and neighbor, asks that we address that the justice system is only for those with financial resources to hire attorneys. It’s interesting. I guess in our line of work, that’s not true in injury context, and we’ve talked about this before. We take these on a contingency fee, and so you’ll never write us a check from your own account that makes sense. Our fee is only a recovery winner if we bring it in, but it is an issue in other contexts. You know, I think most areas of law aren’t on a contingency fee, so you have to hire an attorney who typically charges by the hour, and that’s an issue for sure. And so there are very good resources out there. There’s Montana Legal Services; they do the Lord’s work, representing people in all sorts of contexts who otherwise couldn’t afford to hire an attorney. But yeah, it’s an issue, though.

Paul Adam 21:34 Yeah, no, and I will say, you know, I formerly worked for the county attorney’s office, and I was in Yellowstone County Justice Court a lot, doing criminal work. But in front of Judge Carter and Judge Walker, I was also in front of Judge Hernandez, and it is a, it should not be a scary place for a pro se plaintiff to come in there in a small claims court context and go through that process unrepresented. I mean, I have seen Judge Carter bend over backwards to help pro se plaintiffs that are representing themselves that have no legal training whatsoever, you know, filling out the boilerplate forms, and so I guess I would encourage our listeners if you have a like a small claims court case where it’s a minor issue, if you’ve called 100 law offices and no one will represent you, or if you just don’t have the resources, take a stab at it. I mean, if it’s a small claims court issue, get yourself in front of Judge Carter or Judge Walker, and yeah, try and go at it yourself because it is. I’ve just been really impressed with that system and their ability to, yeah, just help the common folks around.

Colin Gerstner 23:03 Sure. I we did. It was not a question I got today, but I gotta. I’m gonna ask if you care to expound. So if you don’t yet, make sure you like our Facebook page. We have some content out there with some reels, and there’s a reel out there where you are swinging a golf club in the office, and somebody we don’t know before this. He’s in California, a golf pro, I think. I cyberstalked him, looked at his Facebook profile. That’s all I did. Appears to be a golf pro, and he was very critical of your grips, and in response, you get, yeah, kind of aggressive. You criticizes mustache.

Paul Adam 23:46 I mean, I felt like it was an unkind response.

Colin Gerstner 23:49 Yeah

Paul Adam 23:49 He had a he had a great mustache, but yeah, you know he yeah the prompt was something about what’s one thing you would change about I don’t know what we were talking about, and his con his comment was completely off topic, and he said the only thing I changed was those golf grips, and I’ll tell you what I was self-conscious about my golf grips ever since. If that listener is happening to tune into this podcast. I have since changed my golf course. It does not help my golf game, but you, yeah, you did it in the source spot.

Colin Gerstner 24:32 Yep, you’re living rent-free.

Paul Adam 24:34 Yeah, because so thanks again to those of you who commented, asked the questions. We really appreciate it. We will probably do things like this again, and so you know, make sure to like the Facebook page, subscribe to the channel, and if you have any questions, you don’t need to wait for us to ask. You can always comment. We’re going to start, you know, accumulating those questions and have those on another podcast and a later episode. So we appreciate you. Thanks for listening.

Colin Gerstner 25:10 Bye