State News : Minnesota

The Minnesota Supreme Court issued its ruling in Johnson v. Concrete Treatments, Inc. on May 29, 2024. The Court overruled the WCCA’s prior ruling that where potential intervenors’ interests had been extinguished and the employee’s attorney did not unequivocally establish representation of parties which had not intervened in the matter, the attorney could not make direct claims for their interests. Writing for a unanimous Court (minus Justice Hennesy, who had not yet joined the Court while this matter was being considered), Justice Procaccini held that “even if a medical provider itself is barred from bringing a claim for medical expenses because it sought to intervene after the statutory deadline, the employee’s right to assert a direct claim for those medical expenses endures.”

This essentially does away with the holding of  Duehn v. Connell Car Care, Inc. (WCCA 2017), where the WCCA concluded that the employee could not assert a claim for medical expenses owed to that medical provider because the employee’s attorney did not establish dual representation of the employee and the untimely intervenor at the hearing.

 Here is the decision in full:

 https://mn.gov/workcomp-stat/sup/Johnson%20Daniel%20-%20sup%20-%2024.html

 (Summary prepared by Attorney Lucas Cragg of Heacox Hartman)

April 2024 Case Law Update

Jurisdiction – Out-of-state Employment

Statutes Construed – Minnesota Statutes § 176.041, Subdivision 3

Where the employee was at his current residence in Minnesota when he was offered and accepted a seasonal job at a North Dakota jobsite, for purposes of Minn. Stat. § 176.041, subd. 3, the employee was hired in the state of Minnesota.

Jurisdiction – Out-of-state Employment

Statutes Construed – Minnesota Statutes § 176.041, Subdivision 3

Where an employee is hired in the state of Minnesota, by a Minnesota employer, and is injured while temporarily working outside the state of Minnesota, the compensation judge properly determined that the employee’s injury is compensable under the Minnesota Workers’ Compensation Act.

Affirmed.

Permanent Total Disability – Retirement

Statutes Construed – Minnesota Statutes § 176.101, Subdivision 4

The statutory presumption of retirement under Minn. Stat. § 176.101, subd. 4 (2016), controls for the employee’s date of injury as the 2018 amendment to the statute does not have retroactive effect.

Permanent Total Disability – Retirement

The record as a whole supported the compensation judge’s conclusion that the employee had failed to rebut the presumption that he had retired at age 67, and the judge did not err by noting the fact that the employee had not sought to supplement his income by returning to work or from other sources.

Practice and Procedure – Dismissal

The compensation judge did not abuse her discretion in dismissing the employee’s claim with prejudice upon determining that he failed to rebut the retirement presumption of Minn. Stat. § 176.101, subd. 4, as the decision was a final order resolving that issue.

Affirmed.

Andrew Thompson v. Minnesota Trial Courts – District 4 and State of Minnesota Department of Administration, Jan. 26, 2024

Arising Out of and in the Course Of

Although the employee was incidentally carrying a work laptop and other work-related materials while commuting to work when he slipped on an icy public sidewalk, substantial evidence supports the finding that the employee failed to meet the “arising out of and in the course of” employment requirements of Minn. Stat. § 176.021, subd. 1, where the compensation judge could reasonably find an absence of a sufficient causal connection between the employee’s injury and his employment under the “special hazard,” “street risk” or “special errand” exceptions.

Affirmed.

Minnesota Case Law Update—January 2024

Post-Traumatic Stress Disorder

Tea v. Ramsey County et al., No. WC22-6493 (W.C.C.A. July 28, 2023).

The employee was a licensed social worker working as an adult mental health case manager who learned that in February 2020, one of her clients murdered his girlfriend. The employee initially heard about the incident over the telephone and subsequently through work meetings and conversations where the details of the criminal act were discussed in depth. The employee also conducted her own independent research outside of work via the internet and other news outlets.

The employee filed a First Report of Injury alleging work-related secondary trauma stemming from the violent act committed by her client. She underwent a psychiatric evaluation and was diagnosed with PTSD based on the DSM-5.

The employer and insurer initially accepted primary liability and began administering the claim. They made arrangements for an independent psychological evaluation and their expert opined that the employee did not meet criteria for PTSD under DSM-5. The employer discontinued benefits based upon that opinion.

The employee underwent a third psychological evaluation with a plaintiff’s expert who agreed with the first doctor that the employee met the DSM-5 criteria for PTSD as a result of her repeated exposure to the details of the murder. He also diagnosed major depressive and anxiety disorder. He specifically opined that Criteria A4 was met when the employee initially learned of the murder and with subsequent repeated exposure to the details for the next several days.

At hearing, the compensation judge found the employee sustained work-related PTSD and major depressive disorder and awarded workers’ compensation benefits. The employer appealed.

On appeal, the employer argued that the adoption of the third doctor’s opinion was erroneous and not supported by the evidence. The Minnesota Workers’ Compensation Court of Appeals held that it could not consider arguments as to whether the expert physicians misapplied the DSM requirements to the facts of the case pursuant to the holding in Smith v. Carver County (2019). On that basis, the WCCA affirmed the compensation judge’s findings that the employee’s expert physicians rendered credible medical opinions.

The W.C.C.A vacated the findings that the employee had major depressive disorder. That condition was not pled as consequential to the PTSD claim and major depressive order standing alone is not compensable. So, the judge could not find that as a work-related, compensable condition.

Arising out of and in the Course and Scope (safe ingress/egress)

Chad Olson v. Total Specialty Contracting, Inc., et al., No. WC23-6510 (W.C.C.A. November 9, 2023)

The employee was working as a journeyman heat and frost insulator for an employer who was subcontracted to work on a construction project on the University of Minnesota campus. He was scheduled to meet with another subcontractor to discuss the job. The meeting was set to take place in an area enclosed by a chain link fence and gates because it was closed to the public. The employee was instructed to park nearby, walk across the street and between two buildings, following the fence until he reached the gate and then enter the gate and the building.

When he arrived for the meeting, the employee was already wearing his vest, work boots, pants, hard hat and safety glasses. He arrived for the meeting at 5:45 a.m. and followed the directions for entrance. The chain link fence encroached upon the cement walkway which was covered with wet, frosty leaves and the area was dimly lit. Within five to ten feet of the gate entrance, the employee slipped and fell, sustaining injuries to the back and ankle.  He could not explain the cause of his fall but testified that he assumed he slipped and fell due to the wet leaves.

The employer and insurer denied that the injury arose out of and in the course and scope of employment because the employee didn’t know what caused the injury and there was no evidence connecting the injury to the employment. The employer and insurer also took the position argued that the injury occurred outside the perimeter of the construction site and occurred 15 minutes prior to the meeting, so did not meet the time and place requirements of a compensable claim. Similar to the Dykhoff case, the asserted that it was an unexplained fall on a flat surface prior to the work day and outside the work premises and therefore, not compensable.

The compensation judge found the employee’s injury was compensable and arose out of and in the course and scope of employment because the location where he fell was “used as an extension of the job site” and the walkway was not well lit and was covered in wet leaves immediately adjacent to the fence surrounding the site.

On appeal, the Minnesota Workers’ Compensation Court of Appeals affirmed the compensation judge, explaining that while the employee was not certain what caused the fall, the court could not conclude that the injury was unexplained and that the set of circumstances (wet leaves covering the walkway, poor lighting, unfamiliarity with the area, limited entry and fence encroaching on the walkway while wearing PPE to attend a meeting necessary to begin his work for the employer) increased the employee’s exposure to injury and established a causal connection between the work injury and employment.

Injuries Caused by a Third Party

Profit v. HRT Holdings d/b/a Doubletree Suites and CNA Claim Plus, et. al., No. WC21-6438 (W.C.C.A. April 14, 2022).

The employee was in the course of his employment when he was attacked by an assailant who had checked into the hotel where the employee worked. The employee and the assailant were acquainted and the assailant believed the employee had poisoned his uncle. The compensation judge determined that the assailant assaulted the employee solely for personal reasons entirely unconnected to the employment and that therefore, the employee’s claims were barred by the intentional act defense set forth in Minn. Stat. § 176.011, subd. 16. In doing so, the compensation judge concluded there is no exception to the intentional act defense where the assailant’s motivation arises from mental illness.  On appeal, the denial of benefits was affirmed by the Workers’ Compensation Court of Appeals and the Minnesota Supreme Court.

Notice Requirements for Repetitive Use (Gillette) Claims

Schmidt v. Walmart, No. WC21-6437 (W.C.C.A. May 16, 2022)

The employee suffered from chronic left knee pain that required surgical intervention twelve years before her employment began with employer. She maintained that she was symptom-free and working without restriction leading up to the alleged work injury. She was hired by the employer in 2005 and worked full time in a variety of different roles until 2011. In September 2011, she reported constant aggravations of her knee at work although she didn’t seek medical treatment until May 2015.

When seen by a physician in 2015, she was diagnosed with left knee arthritis and recommended for a total knee arthroplasty. The physician opined that the condition was not due to the alleged work-related incident from September 2011.  A revision surgery was performed on January 16, 2019, but the employee found it difficult to work when she resumed her duties with the employer. She sought legal counsel in March 2019 a filed a claim for a  repetitive use (Gillette) injury to the left knee.

The medical expert for the employer and insurer opined that the condition was not work-related but instead, due to preexisting osteoarthritis. The treating doctor opined that the employee’s preexisting condition had been accelerated by her work for the employer.

At hearing, the workers’ compensation judge found that the employee suffered a Gillette injury on October 27, 2015, that she provided proper notice of the injury to the employer, and that she did not withdraw from the labor market. The employer and insurer appealed.

On appeal, the employer and insurer argued that the employee knew her work activities were causing left knee symptoms in September 2011, and that said date triggered the statutory obligation to give notice of injury to the employer. They also argued that by giving notice to the employer in March 2019, the claim was barred by the statute of limitations.

The court rejected that argument and felt that it was reasonable to conclude that the Gillette injury culminated around the time the employee’s work activities caused her to be disabled from work during surgery and recovery. Moreover, the court reasoned that notice was properly given in March 2019 because prior to retaining legal counsel, the employee was unaware that repetitive minute trauma culminating in an injury could be a compensable work-related injury. 

7

PART FOUR: CHANGES EFFECTIVE “THE DAY AFTER FINAL ENACTMENT”

“RELATIVE VALUE FEE SCHEDULE” DEFINED

Minn. Stat. § 176.011 was amended to include Subdivision 17b which provides the statutory definition of “relative value fee schedule” as “the medical fee schedule adopted by rule under section 176.136, subdivision 1a, using the Physician Fee Schedule tables adopted for the

federal Medicare program.”

Minnesota Case Law Update--PTSD

Juntunen v. Carlton County

SUPREME COURT – DECEMBER 21, 2022

No. A22-0090

WCCA No. WC21-6418

Douglas Juntenen worked as a police officer for Carlton County and was diagnosed with post-traumatic stress disorder (“PTSD”) on August 20, 2019. Pursuant to the applicable Minnesota statute, first responders diagnosed with PTSD are entitled to a rebuttable presumption that the condition is work-related.

The employer and insurer denied primary liability and made arrangements for an independent medical evaluation to address causation for the diagnosed PTSD.  The IME was completed on July 20, 2020, and stated that the employee was not suffering from PTSD at the time of the exam or any time in the 30 days prior.

The Compensation Judge ruled that the medical opinions expressed in the independent medical evaluation report  were more persuasive than the employee’s treating physician and found that the statutory presumption did not apply. The judge denied the Employee’s claim for workers’ compensation benefits.

The employee appealed, and the Minnesota Workers’ Compensation Court of Appeals (“WCCA”) reversed the decision of the Compensation Judge, holding that the presumption applied at the time the employee was diagnosed with PTSD.

On appeal, the Minnesota Supreme Court affirmed the decision of the WCCA holding that the statutory presumption applies as soon as a diagnosis of PTSD has been made. The Court held that the employer and insurer failed to rebut the presumption because their medical expert commented only on the diagnosis of PTSD for the three months prior to the evaluation and not during any other time frame. Therefore, the Court found that the opinion of the treating doctor regarding the diagnosis of PTSD was unopposed for any other time frame.

Chrz v. Mower County

SUPREME COURT-March 8, 2023

A22-0792

WCCA No. WC21-6418

Ryan Chrz worked as a sheriff’s deputy  for Mower County and was diagnosed with post-traumatic stress disorder (“PTSD”) on September 25, 2019.

On March 30, 2021, the employee’s treating psychologist found that his condition had improved such that he no longer met all of the DSM-5 criteria for a valid PTSD diagnosis. Instead of PTSD, she found that his work-related mental health condition after March 30, 2021, was “other specified trauma and stress related disorder.” She continued to support his claim for disability from working in law enforcement due to his work-related mental-health condition. The employee then filed a Claim Petition for ongoing workers’ compensation benefits.

 Following a full evidentiary hearing, the Compensation Judge awarded the employee ongoing workers’ compensation benefits.

The employer and insurer appealed, and the Minnesota Workers’ Compensation Court of Appeals (“WCCA”) reversed in part, holding that the employee was not entitled to any workers’ compensation benefits after March 30, 2021.

On appeal, the Minnesota Supreme Court affirmed the WCCA holding that, even if an employee remains disabled from a work-related mental health condition that was originally diagnosed as PTSD, the claim stops being compensable once the employee no longer meets the diagnostic criteria set forth by the current version of the DSM. On that basis, the Court held that Mr. Chrz did not have an ongoing compensable work injury and was not entitled to ongoing workers’ compensation benefits.

MINNESOTA STATUTORY UPDATE—COVID PRESUMPTION HAS ENDED

Effective January 14, 2023, Covid-19 is no longer presumed to be work related, regardless of occupation.

During the height of the Covid-19 pandemic, Minnesota statute held that for any employee working in one of the following occupations who contracted Covid-19, the condition as presumed to be work related:

·        firefighter

·        paramedic

·        nurse or health care worker

·        correctional officer, or security counselor employed by the state or a political subdivision in the following work environment: corrections, detention, or secure treatment facility

·        emergency medical technician

·        a health care provider, nurse, or assistive employee employed in a health care, home care, or long-term care setting, with direct Covid-19 patient care or ancillary work in Covid-19 patient units, and

·        workers required to provide childcare to first responders and health care workers.

In 2022, the Minnesota legislature extended the Covid-19 presumption with an applicable sunset provision effective 11:59 p.m. on January 13, 2023. As of January 14, 2023, the provision has now expired andCovid-19 is no longer a presumptive disease in any employee.

Minnesota Workers’ Compensation Case Law Update and

Annual Rate Changes

NEW RATES EFFECTIVE 10/01/2022

Maximum Compensation Rate:  Injuries which occur on or after 10/01/2022 will have a new maximum compensation rate of $1,312.74.

Minimum Compensation Rate:  Injuries which occur on or after 10/01/2022 will have a new minimum compensation rate of $262.55 or the average weekly wage, whichever is lower.

Statewide Average Weekly Wage: The SAWW as of 10/01/2022 will be $1,287.00, which yields a minimum compensation rate of $836.55 for employees who are permanently and totally disabled.

.645 Adjustment:  The annual adjustment to the compensation rate for the upcoming year will be 4.46%.

Supplementary Benefits Rate:  As of 10/01/2022, the supplementary benefits rate is $837.00.

A complete list of rate changes that take effect on 10/01/2022 can be found here:

https://www.dli.mn.gov/sites/default/files/pdf/annladj.pdf

MINNESOTA CASE LAW UPDATE: December 2021 to September 2022

OCCUPATIONAL DISEASE – WORKPLACE EXPOSURE AND MEDICAL BENEFITS OF SETTLEMENT – PIERRINGER RELEASE

Sershen vs. Met Council (Minn. May 11, 2022)

Factual Background:

 v Counsel appealed the Compensation Judge’s and the Worker's Compensation Court of Appeal's decisions holding that the employee sustained an occupational disease of hearing loss. Further, counsel argued that the Compensation Judge and the W.C.C.A. improperly found the Employer and Insurer liable for medical benefits and erred by failing to consider the liability of the prior employers who settled with the employee pursuant to a Pierringer release.

Holding:

 v The Minnesota Supreme Court affirmed in part, reversed in part, and remanded to the Compensation Judge.

v The Supreme Court held that the employee established a workplace exposure to a hazard causing an occupational disease and that, consistent with Minn. Stat. § 176.135, subdivision 5 (2020), it was not an error to order payment of medical benefits by the employer where the employee was last exposed.

v The Supreme Court also held that the compensation Judge erred by concluding that all issues, other than medical benefits, were moot by not determining whether the last exposure employer has a right to reimbursement against the last significant exposure employer under Minn. Stat. § 176.135, subdivision 5, and Minn. Stat. § 176.66, subdivision 10 (2020).

v The Supreme Court remanded the matter to the Compensation Judge for determining whether the council was entitled to reimbursement and how that reimbursement is to be made consistent with the Pierringer principles.

POST TRAUMATIC STRESS DISORDER – PERSONAL INJURY STATUTE CONSTRUED

CHRC vs. Mower County (W.C.C.A May 9, 2022)

Factual background:

 v The employee began working for Mower County as a deputy sheriff in 2007. He was then diagnosed with PTSD, moderate to severe alcohol use disorder, and major depression in April 2019.

v The employee was recommended various forms of treatment for his PTSD and addiction.

v The employee's condition worsened, and effective March 31, 2020, the employee received duty-related disability benefits from the County, which included monthly income and ongoing health insurance, and he retired from his position.

v He filed a Claim Petition in May 2020 alleging entitlement to various benefits including wage loss benefits beginning April 1, 2020. Dr. Arbisi examined the employee upon the employer's request, and he determined that the employee did not meet the criteria for PTSD under the DSM-V, and that the employee had an unspecified adjustment disorder and alcohol use disorder related to his pending criminal charges. He also later testified that the employee did not follow the standard treatment protocol for PTSD, and instead relied on medication.

v The employee's treating psychiatrist and Dr. Slavik concluded that the employee had chronic PTSD caused by his employment activities as a deputy sheriff which were not resolved.

v Following a hearing, the Judge concluded that the employee had sustained work-related PTSD on April 3, 2019, and awarded wage loss benefits from April 1, 2020 to the present and continuing, though noted the employee had reached MMI and service of MMI occurred on May 18, 2021. The Judge also awarded 20% PPD as determined in Dr. Slavik's report. The employer appealed.

Holdings:

 v In a 2-1 decision, the W.C.C.A reversed the award of PPD, vocational benefits, and medical expenses for treatment after March 30, 2021, and modified the award of TTD benefits to allow TTD only to March 30, 2021.

v The W.C.C.A determined the employee had sufficiently recovered from his PTSD diagnosis to the point where he no longer met the criteria for PTSD under the DSM-V. Because an employer's liability for workers compensation benefits under Chapter 176 ends when an employee is no longer disabled, and the employee was no longer disabled by PTSD as of March 30, 2021, he was not entitled to workers compensation benefits after that date.

v The dissent contended that the majority's opinion resulted from a “narrow interpretation" of the PTSD statute and that the holding was “problematic and unworkable."

TERMINATION OF EMPLOYMENT - VOLUNTARY TERMINATION

TEMPORARY TOTAL DISABILITY - JOB SEARCH

Berglund v. Wildrose Health Care, LLC (W.C.C.A. January 7, 2022)

Factual Background:

v The employee appealed the compensation Judge’s determination that she voluntarily resigned from her employment and the denial of her claim for reinstatement of benefits. The employee sustained an admitted injury with the employer for which benefits were paid. The employee was released to work on a part-time, light-duty basis and the employee returned to work. The employer and insurer filed a notice of intention to discontinue temporary total disability (TTD) benefits and indicated temporary partial disability (TPD) benefits would be paid.

  The employee was upset by the discontinuance and advised the employer she would not be working her scheduled shifts that weekend. She then did not show for a meeting to discuss her concerns with her supervisor. Her supervisor considered the employee’s failure to work her scheduled shifts and attend the scheduled meeting along with her statements that she was “done with Wildrose” to be a voluntary resignation and provided the employee with a letter accepting her resignation. At a hearing on an objection to discontinuance, the compensation Judge found the employee voluntarily resigned from her employment and had not made a diligent search for other employment.

Holding:

v The W.C.C.A. affirmed the compensation Judge’s decision, indicating that the findings appealed by the employee were factual determinations made by the compensation Judge after considering the evidence and arguments of the parties. The W.C.C.A. concluded that substantial evidence existed to support the compensation Judge’s factual determinations. The Court found no evidence on the record that the employee searched for another job. She did work with a QRC, but testified that she had little discussion with her QRC about returning to work. In addition, the last stated rehabilitation goal was returning the employee to work with the date-of-injury employer.

JURISDICTION - SUBJECT MATTER

MEDICAL TREATMENT & EXPENSE

Warhol v. Corexpo, Inc. (W.C.C.A. December 7, 2021

v The W.C.C.A. previously decided this case on April 28, 2021, and affirmed the award of benefits for medical marijuana. The Supreme Court reversed the W.C.C.A.’s decision as it regards to the award of benefits for medical marijuana based on its decision in Musta v. Mendota Heights Dental Ctr. 965 N.W.2d 312 (Minn. 2021) (holding that the Controlled Substances Act preempts requirements under Minnesota Workers’ Compensation that obligate and employer to reimburse an injured employee for medical treatment when that treatment is an award for medical cannabis).

Shareholder Adam Brown, who also serves as our Director of Professional Development, was invited to speak on a panel for the MSBA's New Lawyers Section on March 29. The program was called Preparing for the Interview Process from an Employer's Perspective.

The National Workers' Compensation Defense Network will hold its spring conference in Philadelphia on April 27 and 28. Please click here for more details about the event. If you are able to attend, please connect with Tom Kieselbach, who will be there in his capacity as Immediate Past President of the NWCDN.

Save the date for the 2022 NWCDN Annual Conference, which will be held in Nashville on August 3 and 4.

NWCDN is a national network of the top workers' compensation firms across the country and Canada. CWK is the sole member firm from Minnesota, and CWK has a strong presence in the organization, with Tom Kieselbach serving as Immediate Past President, Parker Olson serving as Midwest Regional Vice-Chair, and Adam Brown serving on the Inclusion and Diversity Committee.

Please click here for summaries of Minnesota workers' compensation cases from February 2022. Issues include Petitions to Vacate Stipulations because of changes in medical conditions, judicial discretion in cases involving choice of medical experts, and cases involving witness credibility.

February 2022 summaries by Eric Behr.

Shareholder Whitney Teel has been asked to speak at this year's Minnesota Workers' Compensation Symposium, which will take place on Thursday, May 12, 2022. Please click here for the Symposium's webpage and registration information.

Whitney will present at 11:10 a.m. during Breakout Session 2B. She will be addressing vocational rehabilitation benefits in a session entitled Vocational Rehabilitation Bootcamp - Managing Services and Expenses.

CWK will once again be an exhibitor at the Symposium, and we hope you will stop by our booth to say hello. Please make sure to sign up for Breakout Session 2B for a great presentation from Whitney!