State News

Josephine Holt (“Employee”) slipped and fell on an icy sidewalk, breaking her hip. She was a painter employed by the University of Minnesota (“Employer”) and after finishing her shift and “punching out”, she began walking the four blocks to her car. She had parked in an Employer owned ramp because it was one of the cheaper places to park. She had not been instructed on where to park. It was snowing and sleeting that day and despite the Employee’s attempt to walk carefully, when she began to cross the street across from the parking ramp, she slipped on the sidewalk’s curb ramp and fell. Per a City ordinance, it is the responsibility of the Employer to maintain the relevant sidewalk and keep it clear of snow and ice.

The matter went to hearing before a compensation judge. The issues disputed at hearing were whether the injury arose out of and in the course on the employment. The compensation judge held the injury did not arise out of the employment because the hazard the Employee faced (an icy sidewalk) was no different than that faced by the general public. The decision was appealed.

The WCCA reversed, holding the injury did arise out of the employment because the Employee was on the Employer’s premises when she was injured and was “walking a short distance on the most direct route to a parking ramp owned and operated by her employer.” The WCCA noted that the Employee was on the premises because of her employment and not because she was a member of the general public. The Employer appealed. arguing the WCCA had misapplied Dykhoff’s distinct “arising out of” and “in the course of” tests.

The Minnesota Supreme Court affirmed the WCCA’s decision, finding the injury compensable. The Court noted that there were no relevant facts in dispute, and therefore reviewed the case de novo. The Court analyzed the facts under the two-part test established in Dykhoff, reiterating that both the “in the course of” and “arising out of” tests must be applied separately and both must be satisfied for an injury to be compensable.

In order for the “arising out of” part test to be satisfied, there must be some casual connection, A causal connection can be established by showing an increased risk. The Court held the WCCA correctly concluded there was a causal connection between the injury and the employment because the Employee was exposed to the hazard of the icy sidewalk because of her employment. The Court stated, “…the test is not whether the general public was also exposed to the risk, but whether the employee was exposed to the risk because of employment.” When an employee is exposed to a hazard on the employer’s premises that creates an increased risk, the “arising out of” prong of the test is satisfied.

An employee is “in the course of” employment both when he or she is providing service to the employer and for a reasonable period of time beyond working hours when engaging in activities incidental to the employment. In this case, the Employee was walking four blocks directly from the building she was working in to where her car was parked. This walk was incidental to her employment and within a reasonable time after she completed her shift. When the incident occurred, she was traveling between Employer premises – the building she was working in and the parking ramp. Traveling between two Employer premises puts an Employee “in the course of’ employment. Additionally, she was walking on Employer maintained sidewalks.

There was a vigorous dissent from Justice Anderson who opined that neither the “arising out of” or “in the course of” tests were satisfied. Justice Anderson reasoned that there was no causal connection between the injury and the employment because the Employee was not exposed to any greater risk than the public and could just as easily have fallen at that same spot in pursuit of personal activities. She was not “in the course of” her employment because she had punched out, was not performing work duties and was walking on a public sidewalk to a parking location of her choosing.

Full Decision: http://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme%20Court/Standard%20Opinions/OPA160349-062817.pdf 

Summary prepared by Emily Johnson, associate attorney

In this case, Kubis (“Employee”) sustained an injury at work while rushing up a staircase at Community Memorial Hospital (“Employer”). The matter proceeded to a Hearing. The issue before the compensation judge was whether her injury arose out of and in the course of her employment. During the Hearing, the Employee testified that she needed to go up to the second floor to complete a report and clock out. In conflicting pieces of testimony, she stated that she rushed up the stairs because she was “afraid of the overtime” and “wanted to report off to the next crew.” In the weeks leading up to her fall on the staircase, there was some discussion by her Employer regarding limiting “unnecessary overtime” for all employees. However, this Employee had been authorized to work overtime to complete her documentation in the past. Additionally, she had worked overtime in 10 of the 13 pay periods preceding her fall. There was nothing hazardous about the staircase itself according to an expert report submitted by the Employer and Insurer. The compensation judge dismissed the Employee’s claim and found that she failed to establish that her injury was caused by an increased risk that arose out of her employment. Most importantly, the compensation judge found that her “claim that she was rushing up the stairs because she felt pressured to do so because of the hospital’s policy encouraging employee’s [sic] to log out on a timely basis at the end of their shifts is not credible.”

The matter was appealed to the WCCA, and it reversed the compensation judge’s decision. The WCCA reasoned that the Employee’s split motivation of prompt report to the oncoming shift established an increased risk that arose out of her employment. The case was appealed to the Minnesota Supreme Court.

The Minnesota Supreme Court reversed the WCCA’s decision and reinstated the ruling by the compensation judge. The Court held that the WCCA failed to adhere to the appropriate standard of review, which is found in Hengemuhle. The WCCA cannot substitute its view of the evidence as long as the compensation judge’s findings are supported by substantial evidence. Ultimately, the Court held that the WCCA substituted its own credibility determination of the Employee in this matter and decided that the compensation judge was incorrect. This is improper under the Hengemuhle standard of review.

Notably, this case was a 4-3 decision. The Minnesota Supreme Court did not analyze the increased risk test, as the case was solely decided by the standard of review issue described above. However, the dissent notes that Minnesota should consider adopting the “positional-risk test” instead of the increased risk test. This may be an interesting development in the future should the Minnesota Supreme Court decide to hear this issue.

The full decision can be found here: http://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme%20Court/Standard%20Opinions/OPA160361-062817.pdf 

Summary prepared by Parker Olson, associate attorney.

This is an employment law case which involves the workers’ compensation anti-retaliation statue, Minn. Stat. 176.82. The underlying facts of this case concern an employee who came to the United States on a tourist visa, but continued to live in the United States without documentation after the visa expired. He bought a social security number to apply for jobs, and this social security number was provided to the employer when he was hired in 2005. The employee alleged his managers were aware that he was no legally authorized to work in the United States.

He was injured in 2013 while operating a sandblaster. He missed work and incurred medical expenses. A claim petition was filed, and the workers’ compensation claim had settled. In any event, in his deposition, he testified he was not legally authorized to work in the United States. After his deposition, he was asked about his legal status by his employer, and he was told he could not work for the employer any longer due to his legal status. He was then presented with a letter – which he signed – indicating that he had voluntarily told his employer that his social security documentation was not legitimate and that he was not authorized to work in the United States, and thus, he was sent home on unpaid leave. He could return to work once he provided legitimate paperwork evidencing he could legally work in the United States.

Procedurally, the employee sued the employer under Minn. Stat. 176.82 for retaliatory discharge. The district court granted summary judgment to the employer concluding there was no issue raised of material fact about whether the employee was discharged due seeking workers’ compensation benefits. The Court of Appeal reversed, and the Supreme Court affirmed.

Minn. Stat. 176.82 only applies in cases of discharge, threatened discharge, and intentional obstruction of benefits. Thus, there was a question on whether the employee’s “leave” constituted discharge. The Court held that the actual intent of the employer was key in determining whether discharge occurred, and where the employee is placed on “temporary” leave, but the intent is for the leave to not end, then said “leave” amounts to discharge. If the motivation was retaliatory, then it implies there was intent for the leave to be permanent. This was determined to be an issue of factual dispute, which was to be resolved by a factfinder.

In addition, the Court held there was an issue of genuine material fact regarding whether the employee was discharged for seeking workers’ compensation benefits, another element of Minn. Stat. 176.82. The Court noted that the employee asserted the employer knew about his immigration status for years prior to the workers’ compensation injury.

Finally, the Court held the Immigration Reform and Control Act (IRCA) did not preempt an undocumented worker’s claim under 176.82. The Court indicated employer could have complied with IRCA and 176.82, if the employee had been discharged due to immigration status.

Impact: This is a procedural employment law opinion; however, the impact on workers’ compensation is that an employee can bring a 176.82 retaliatory discharge claim even if the employee is placed on “leave” when it is the employer’s intent is for the employee not to return to work. In addition, complying with IRCA will not be a defense to a 176.82 claim when the discharge is retaliatory for bringing a workers’ compensation claim. Simply put, where an employer knows that the employee is undocumented prior to the workers’ compensation claim, and discharges the employee after the workers’ compensation claim on the basis of the employee being undocumented, they expose themselves to a 176.82 claim.

The full decision can be found here: http://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme%20Court/Standard%20Opinions/OPA151183-062817.pdf 

Summary prepared by Elizabeth Cox, associate attorney.

In every state, two investigative forms have an enormous impact on helping employers save money and win cases in workers’ compensation: first, a detailed Employee Accident Form filled out entirely by the injured employee and signed by the employee, and second, a detailed Supervisor’s Report Form.   This practitioner has tailored both forms for the use of firm clients.  I have written extensively in the past about the enormous value of an effective Employee Accident Form, and this blog will explore why a Supervisor’s Report Form also helps win cases and reduces workers’ compensation costs.  Clients who use both forms have enhanced their chances of prevailing geometrically.

Many employers traditionally have a combined one-page form for the supervisor to fill out one section and for the employee to fill out another section.  Sometimes the supervisor writes what the employee tells him or her, and then the employee only signs the form.  This is not effective in court because the employee can reject what the supervisor wrote as inaccurate.  It is always better for the employee to complete the Employee Report in his or her own handwriting.   It is also hard to tell if the supervisor is writing what he or she thinks or what he or she was told.  The abbreviated Supervisor’s Form will ask “How did the accident happen?” and the supervisor may write:  “Employee slipped on ice.”   Much later it may become clear to defense counsel that the supervisor really did not think this accident ever happened.  He wrote just what the employee told him, but the form had no place for the supervisor to raise doubts.  So cases get accepted, bills get paid, and surgery ensues when all of this should have been denied.  In short, these abbreviated forms are like an appetizer to an entrée.  You get much more out of two separate and detailed forms filled out as close as possible to the time of the incident.

So what makes an effective Supervisor’s Report Form?  To ask it another way, what information should an employer strive to obtain in a supervisor’s form that will help prepare the defense of a workers’ compensation claim and often help win the claim? In this practitioner’s view, these are the essential elements in a powerful Supervisor’s Report Form:

§  Information that would determine if there is a notice defense or late reporting issue;

§  Detailed information on the time, date and mechanism of injury;

§  A list of witnesses to the incident, if any;

§  Detailed information on what others saw or were told by the employee about the incident or accident;

§  Specific information about the employee’s job duties generally and on the date of the incident;

§  Information on second jobs or other physical activities engaged in by the employee in the years prior to the incident or accident;

§  Information on motor vehicle accidents, home injuries or sports injuries that the employee was involved in during the past few years;

§  Information on whether the employee was offered or declined medical attention.

All of this information – and more — can be easily captured within two pages, and this approach can be used in any state.  But in states like New Jersey, where there are no depositions or interrogatories permitted in traumatic claims, a comprehensive Supervisor’s Report Form is imperative! This form and the Employee Accident Form will often be the only useful discovery that employer will ever get in many cases.  For employers with a high volume of comp claims, using these two forms will consistently lead to success because patterns develop, and supervisors become more adept at understanding the workers’ compensation process.  The carrier, TPA, self-insured employer and defense counsel will be able to make intelligent decisions on whether to deny the claim or accept it, and if denied, how to win the case and not pay for unrelated surgery, lost time and permanency benefits.

There are no reliable statistics on how many comp claims involve some kind of legal issue as opposed to clearly witnessed accidents where there really are no issues other than the extent of permanency. This practitioner believes that perhaps fifty percent to two thirds of claims are unwitnessed or are questionable because the injured employee was known by the employer to have the health condition prior to the accident, or the mechanism of injury simply makes no sense. These are the kinds of claims that bedevil employers and can wreck budgets and explode reserves.  Most employers know their employees pretty well and have an instinctive sense when there is something wrong with a claim.  Defense attorneys get litigation files well after the claim occurs, and they pore over the supervisor’s report form, only to conclude that there just is far too little information on the form to win the case.  Memories fade quickly, and any claims professional or defense lawyer knows how hard it is to resurrect the facts of a claim with a supervisor or witness in a discussion that occurs 12 or 24 months later.

The solution is simple:  require a few extra minutes to obtain a more detailed series of questions right up front.  Some of the 22 questions on this practitioner’s two-page form require simple yes or no answers, such as “Did you personally observe the incident involving this employee?” and “To your knowledge, was this accident witnessed or unwitnessed?”   Some of the questions require a few sentences of description: for example, “If you did not witness the incident but others told you about it, describe exactly what they told you, who spoke with you, and what that individual said.”

How much does this cost to implement? The answer is it costs nothing.  This is what it requires: an extra two or three minutes to complete over the traditional one page form.  In exchange for an investment of two or three more minutes, employers get a useful form that paints a clear picture of whether the claim should be denied, whether there are strong defenses, and who the witnesses will be to help the employer win the case.  It doesn’t matter what state the employer is in, as this approach is universal.  There is no training required for supervisors because this kind of supervisor’s form must be self-explanatory and simple.

Clients of Capehart who are interested in reviewing this practitioner’s Employee Accident Form or the Supervisor’s Incident Report Form should contact the undersigned.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

Thanks to our wonderful clients who continue to refer more and more of their interesting cases to us, we are growing. This month we welcome attorney Amanda Schwertner to our firm.

Amanda is a native of Big Lake, Texas and attended Texas Tech University where she was a student trainer for the football team. She has two dogs named Willie Nelson and Dolly Parton.

Please go to our website to check out herbiography and, when you have a free minute, give her a call to say hello.

One of our favorite adjusters, who works at a large workers’ compensation carrier, related this conversation she had this month with a claimant:

          Adjuster:             Why didn’t you return to work?

          Claimant:            I had a problem inside myself at the Courthouse.

          Adjuster:             A problem inside yourself at the Courthouse?
                                       Were you in jail?

          Claimant:           Yes, ma’am. I was in jail . . . but it wasn’t my fault.

The adjuster adds that, while taking the claimant’s statement, she heard a loud noise and asked the claimant what it was. He said “it was the toilet . . . I had to pee.”

Do you have a funny industry story to tell? Send it to us for our July newsletter. If we publish it we’ll reward you with a gift card to KFC or another healthy-lifestyle restaurant of your choice.

The TDI-DWC has announced that the 2017 Texas Workers’ Compensation Educational Conference will be held in Georgetown on September 11 – 12 and in Dallas on October 12 – 13. The agenda and registration link are on the TDI-DWCwebsite.

We’ll be at the Georgetown conference and hope to see you there.

When a workers’ compensation carrier issues a policy that waives its right to subrogation the carrier also waives its right to reimbursement from any recovery by a claimant. That is the conclusion of the El Paso court of appeals in its recent decision inWausau Underwriters Insurance Co. v. Wedel.

In that case, James Wedel drove a truck for Cactus Transport, Inc. which regularly picked up asphalt from a terminal owned by Western Refining Company. Western required Cactus to subscribe to a policy of workers’ compensation insurance with a waiver of subrogation rights favorable to Western. Wausau issued the policy to Cactus with a waiver of subrogation endorsement.

Wedel fell and suffered brain and spinal cord injuries while attempting to load asphalt at Western’s facility in El Paso. Wausau paid approximately $1,548,822 in compensation benefits to Wedel, and Wedel then sued Western alleging third-party negligence. Wausau intervened and asserted its comp lien against any recovery by Wedel.

Wausau argued that its waiver of subrogation endorsement waived subrogation only as to the tort-feasor (Western) and did not waive the right to reimbursement from Wedel. In other words, Wausau asserted that its statutory rights of subrogation and reimbursement are distinct and independent rights and it could waive one without waiving the other.

The court of appeals disagreed. It held that by waiving its right of subrogation Wausau waived its right of reimbursement as well.--David L. Swanson, Stone Loughlin & Swanson, LLP

The Texas Legislature last month provided a new source of funding for a prosecutorial unit dedicated to rooting out workers’ compensation insurance fraud, and that new funding will radically change the unit’s operation. The prosecutorial unit is part of the Travis County district attorney’s office in Austin.

In the past, the prosecutorial unit had been funded through a controversial arrangement between the DA and Texas Mutual Insurance Company. Under that agreement, Texas Mutual made the fraud referrals, provided the investigators, and paid bills incurred by the DA for the prosecution of Texas Mutual’s cases. That arrangement came under sharp criticism last year and, in response, the Legislature appropriated money to fund the unit.

The money will come from a maintenance tax collected from workers’ compensation insurers. As a result of the new funding source, the DA will prosecute cases from any insurer. And Texas Mutual will no longer make fraud referrals or furnish investigators. Instead, the TDI-DWC will conduct the initial investigation and, if it believes a case warrants prosecution, it will refer the case to the DA.--David L. Swanson, Stone Loughlin & Swanson, LLP

Hot on the heels of the disturbing findings of the Workers’ Compensation Research and Evaluation Group, the TDI-DWC may be doing something about them. The DWC announced this month that it is accepting comments on an informal draft of amendments to Rule 134.500 (concerning definitions) and Rules 134.530 and 134.540 (concerning requirements for use of the pharmacy closed formulary).

The proposed amendments would change the definition of "closed formulary" to exclude any prescription drug created through compounding and require preauthorization for all prescription drugs created through compounding for claims subject to, and not subject to, certified networks.

The comment period closes July 7.--David L. Swanson, Stone Loughlin & Swanson, LLP