State News : Minnesota

On August 12, 2020, the Minnesota Supreme Court affirmed the Decision of the Minnesota Worker’s Compensation Court of Appeals dismissing the Petition for Payment of Medical Expenses filed by a medical provider, Keith Johnson, D.C.

The chiropractor was properly placed on notice of right to intervene pursuant to Minn. Stat. § 176.361 and chose not to file a Motion to Intervene, which would have made the provider a party to the claim. The Employee ultimately settled his claim with the Employer and Insurer and those providers which had intervened were included in the settlement. The Award extinguished the right of the chiropractor to recover payments pursuant to the statute and Minn. Rule 1420.1850.

Eight months after the Award was filed, the chiropractor filed a Petition for Payment of Medical Expenses. The Employee and the Employer and Insurer filed Motions to Dismiss and the compensation judge dismissed the Petition with prejudice, concluding that the chiropractor did not have standing to file such a Petition because there was no outstanding claim by the Employee. The chiropractor appealed to the Workers’ Compensation Court of Appeals, arguing: 1) the Award was unenforceable and invalid as his rights were extinguished on the basis he chose not to intervene; 2) the rule and statute relied upon by the compensation judge and Office of Administrative Hearings exceeded the express or implied authority granted by the legislature; and 3) he was entitled to full payment per case law as he was excluded from settlement negotiations.

The WCCA affirmed the Order dismissing the Petition, finding that the medical provider chose not to be a party to the case and avail himself of the remedies provided by statute when he chose not to intervene. Because he was not a party to the case, he had no authority or standing to bring a claim under Minn. Stat. § 176.291 or assert the Award collaterally. Due to the lack of standing, the WCCA did not address other arguments by the chiropractor.

The chiropractor appealed the WCCA’s decision to the Minnesota Supreme Court. Michael Johnson represented the Employer and Insurer at oral argument before the Supreme Court en banc on June 2, 2020.

The Minnesota Supreme Court affirmed the WCCA decision in its entirety, finding that a health care provider who voluntarily declines to intervene in a pending workers’ compensation proceeding after receiving timely and adequate notice of the right to intervene cannot initiate a collateral attack on the compensation award under Minn. Stat. 176.271, .291, or Minn. R. 1420.1850, subp. 3B.

The case affirms that under Minn. Stat. § 176.361, Subd. 2(a) and Minn. Rule 1420.1850, a potential intervenor who is properly provided notice of right to intervene and does not file a Motion to Intervene within 60 days of notice shall have their right to recover extinguished.

CWK attorneys Natalie K. Lund and Michael R. Johnson handled the case on behalf of the Employer and Insurer. Please contact either of them with any questions. Natalie can be reached at (952) 525-6951. Mike can be reached at (952) 525-6950

http://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme%20Court/Standard%20Opinions/OPA200053-081220.pdf

Minnesota's Cousineau, Waldhauser, & Kieselbach honored by Best Law Firms and Best Lawyers in America

Minnesota's Cousineau, Waldhauser, & Kieselbach P.A. is proud to announce that several of our attorneys have been included in the 2020 edition ofMinnesota Super Lawyers. The selection of distinguished Minnesota attorneys is presented annually. Attorneys Jim Waldhauser, Thomas Kieselbach, and Jennifer Fitzgerald have been listed in 2020 Minnesota Super Lawyers. Attorneys Whitney Teel and Elizabeth Cox were listed as 2020 Minnesota Rising Stars. 

We are proud to have recognition for these talented attorneys!

Below is an update to Operations at the Office of Administrative Hearings:

Until further notice, in-person hearings continue to be limited to critical, priority matters that cannot effectively be held by a remote method (e.g. telephone). Judges are making decisions on a case-by-case basis in consultation with the parties. This policy will be in effect for the indefinite and foreseeable future.

Virtual proceedings

In the last OAH update, it was announced that they were adding a web-based platform for video proceedings to replace some telephone proceedings. On May 20, 2020, it was announced that Microsoft Teams is the platform that OAH will use for virtual proceedings. Judges and staff have engaged in mock hearings using Microsoft Teams and provided feedback around the technology itself and business processes.

OAH will start with highly predictable, lower-risk proceedings that are already being held by telephone. We will slowly and deliberatively incorporate more judges and more complicated proceedings as we all become accustomed to this new experience. Judges will continue to make decisions on a case-by-case basis and in consultation with parties. Starting in June, judges will contact parties to suggest converting select proceedings to Teams. Parties should not contact the assigned judge.

OAH chose Microsoft Teams for the following reasons:

• OAH already has the software, meaning quicker implementation is possible;
• There’s no additional cost to the state and no cost to participants;
• It has Microsoft’s O365 Government Community Cloud security certification;
• Each meeting has a waiting room, meaning that people can only join if the judge approves them;
• Participants can share their screen to help present exhibits;
• Participants do not need to create an account;
• Participants can connect from computers, mobile devices, or tablets.
  

What are the next steps at CWK Law?

With virtual Hearings on the horizon, we are working to become proficient in using Microsoft Teams. This will be important to the effective presentation of cases, especially when it comes to seamlessly presenting exhibits and arguments. We will also need to prepare our witnesses to use this software as well. Our plan is to participate in training sessions, demos, and possibly mock hearings. Below are links provided by OAH for sessions and instructions to utilize as training.

https://microsoftteams.eventbuilder.com/MaximizingTeamsMeetings

https://support.microsoft.com/en-us/office/meetings-in-teams-e0b0ae21-53ee-4462-a50d-ca9b9e217b67

https://support.office.com/en-us/article/join-a-teams-meeting-078e9868-f1aa-4414-8bb9-ee88e9236ee4

By: Parker T. Olson

(952) 525-6930

For case summaries from decisions at the Minnesota Workers' Compensation Court of Appeals current through March 2020, please click the link below.

https://cwk-law.com/wcca-case-summaries-through-march-2020/

The Office of Administrative Hearings and Minnesota Department of Labor and Industry are continuing to update the method of handling appearances for the foreseeable future due to COVID-19. CWK will monitor and keep you updated as important announcements are made. Below is a summary of how these appearances are being handled for the time being.

At the Office of Administrative Hearings, all in-person Hearings are being left to the parties’ and judge’s discretion. However, judges are typically only allowing in-person Hearings if the case involves a “priority situation.” Each will be handled on a case-by-case basis with some Hearings will be held by telephone or being continued. All parties are still required to abide by timelines for exhibits, including e-Filing at least one day in advance. Larger Hearing rooms are being used to accommodate social distancing guidelines for Hearings that have been deemed a “priority situation.”

All other appearances at OAH will be held by telephone only for the foreseeable future. This includes Mediations, Asbestos Conferences, Settlement Conferences, Minn. Stat. 176.239 Conferences, Minn. Stat. 176.106 Conferences, Pretrial Conferences, Motion Hearings, and Attorney Fee Hearings.

At this time, all appearances at the Minnesota Department of Labor and Industry, including Medical Conferences, Rehabilitation Conferences, and Mediations are also being held by phone only. The parties are still expected to abide by deadlines for submitting exhibits.

Different guidelines have been implemented by the Minnesota Judicial Branch for district court proceedings. Please feel free to contact a CWK attorney with any questions regarding any court proceedings.

On Tuesday, April 7, 2020, the Minnesota Legislature passed a bill, which now provides certain employees the benefit of a presumed occupational disease under Minnesota workers’ compensation if they contract COVID-19. Specifically, employees working in first responder or healthcare occupations will be presumed eligible for workers’ compensation benefits if they either test positive for COVID-19 or are diagnosed by a licensed physician, physician’s assistance, or APRN without a test. In the situations where a test has not been done, a copy of the written documentation of the diagnosis shall be provided to the Employer and Insurer. The following occupations fall into this presumption:

• Firefighter
• Paramedic
• Nurses or Healthcare Worker
• Correctional Officer/Security Counselor at Minnesota Correctional Facilities
• Emergency Medical Technician
• Healthcare provider, nurse, or assistant employed with home care or long-term setting
• Workers required to provide child care to first responders and health care workers
  

In summary, if an employee shows that he or she works within one of these occupations and either tests positive for or is diagnosed with COVID-19, the burden of proof will shift to the employer and insurer to rebut the presumption. Employers and insurers will still be able to show that the employment was not a direct cause of the disease, however it will be much more difficult to prevail on a denial of liability when one of these types of employees contract COVID-19.

To note, the date of injury in these situations shall be the date the employee is no longer able to work due to a diagnosis of COVID-19 or due to the symptoms later diagnosed as COVID-19, whichever occurs first.

For all other employees not included in the list above, claims can still be pursued under an occupational disease or personal injury theory. Under these types of claims, the employees will not entitled to the presumption described above, and will be held to the burden of proof.

This law goes into effect immediately.

Please feel free to contact a CWK attorney with any questions on this new bill, and be sure to note any ongoing claims involving an employee in one of these types of occupations.

https://www.house.leg.state.mn.us/dflpdf/a7308a83-b58d-4578-93b1-1ac3f8475906.pdf

Infectious diseases such as COVID-19 can be compensable in Minnesota as either a personal injury or occupational disease in certain situations. CWK attorneyWhitney Teel did a deep dive into the issue during the H1N1 outbreak in 2009, and the caselaw is applicable to the current COVID-19 outbreak.

The quick answer is that it is possible for COVID-19 to be a compensable workers’ compensation injury in Minnesota, but as always, the burden of proof is on the Employee. With infectious diseases, such as polio, influenza, tuberculosis, or COVID-19, proving point of contraction is critical.  Employers are encouraged to let their workers’ compensation insurer know if an employee tests positive for COVID-19. 

To read Whitney's research article on this topic, click the link below:

 https://cwk-law.com/wp-content/uploads/2020/03/COVID-19-Research.pdf

On January 2, 2020, the Minnesota Supreme Court issued its decision in Ewing v. Print Craft, Inc., A19-0534 (Minn. 2020) and held that the Employer and Insurer in the case were not liable for rehabilitation services provided after the date in which Employee’s work-related injury had resolved, as opposed to the argued cutoff date in which the Employer and Insurer filed their Rehabilitation Request seeking termination of said services. The summary of the case is below. 

Employee sprained his left ankle in December 2015 while working for the Employer. After seeing several specialists, doctors at Mayo Clinic concluded that Employee’s injury had resolved no later than April 20, 2016. Employee first met with QRC Ann Brown on the same date (April 20, 2016) to determine if he was eligible for rehabilitation services. QRC Brown concluded that Employee was eligible, and rehabilitation services commenced thereafter. Employee continued receiving medical treatment for his ankle through 2016, however Employee then also began reporting headaches, memory loss, and tinnitus. QRC Brown arranged a neurological consultation to rule out a concussion, which was denied by the Employer and Insurer based on the denial of primary liability for any head injury. In the meantime, Employee underwent an independent medical examination with Dr. Joel Gedan on November 7, 2016, who concluded that Employee’s ankle injury had resolved and that he sustained no other injury. Employer and Insurer successful discontinued Employee’s wage loss benefits based on this IME Report. Employer and Insurer then filed a Rehabilitation Request on April 6, 2017 requesting a termination of the rehabilitation plan. At the Hearing, the compensation judge held that Employee’s injury was temporary and had fully resolved no later than April 20, 2016 (based on the opinions of the IME and doctors at Mayo Clinic), and that no rehabilitation services were warranted after this date. 

QRC Brown appealed to the WCCA and asserted that she was entitled to payment for services rendered between September 2016 and April 2018. The WCCA reversed the compensation judge, and held that it was an error as a matter of law to assign the cutoff date of April 20, 2016 for rehabilitation services, and instead held that the cutoff date was April 6, 2017, when the Rehabilitation Request was filed. Employer and Insurer appealed to the Minnesota Supreme Court. 

The Minnesota Supreme Court held that Employers and Insurers are only liable for reasonable and necessary rehabilitation services provided to a qualified Employee. Because of this, a QRC bears the risk of an adverse determination as to primary liability and the related risk of non-payment where there is a dispute over Employee’s eligibility for services.Based on these principles, the Employee’s injury in the present case resolved on April 20, 2016, and therefore, Employer and Insurer were not liable for rehabilitation services thereafter, as opposed to the date of April 6, 2017 when the Rehabilitation Request to terminate services was filed. The original decision of the compensation judge was reinstated. 

One takeaway from this case is that disputed/denied rehabilitation services can be cut off retroactively, based on when the Employee’s injury fully resolved. QRCs that provide rehabilitation services on these denied claims do so at their own risk, with the possibility of non-payment for said services. The full Ewing decision is found here:

http://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme%20Court/Holiday%20Opinions/OPA190534-010220.pdf

Summary by: Parker T. Olson