State News : Minnesota

Minnesota’s Health Commissioner recently authorized a significant expansion of medical cannabis usage in the state of Minnesota to include those with “chronic pain.” Currently, the most common qualifying condition to be eligible for medical cannabis is a diagnosis of “intractable pain.” Minn. Stat. 152.125 defines intractable pain as pain that “cannot be removed or otherwise treated” and that “no relief or cure of the cause of the pain is possible, or none has been found after reasonable efforts.” The narrow nature of this definition limits the number of patients who can become qualified for medical cannabis under this category.

On the other hand, chronic pain is a much broader category than intractable pain, which is more generally defined as intolerable pain that cannot be addressed with other remedies or medications. Chronic pain includes many more conditions that may be caused by work injuries than “intractable pain” does. The change will take effect in August 2020.

Minnesota is currently one of 33 states that has legalized medical cannabis. Patients are still required to become certified by medical providers to receive cannabis from one of two licensed manufacturers – Leafline Labs or Minnesota Medical Solutions. The Minnesota Legislature voted to increase the number of storefronts to 16 – with new locations of both manufacturers planned throughout the state of Minnesota. Medical cannabis in Minnesota is currently permissible in inhaled and pill forms. However, it will also soon become available in water-soluble powders and sprinkles as well as in dissolvable lozenges and mints.

To note, this expansion will also include those suffering from age-related macular degeneration for eyesight. However, the expansion still does not authorize medical cannabis usage for those with anxiety, insomnia, or a traumatic brain injury – as there is a lack of scientific evidence to support these. The full Minnesota Department of Health Press Release is found below.

https://www.health.state.mn.us/news/pressrel/2019/cannabis120219.html

Pursuant to Minn. Stat. 176.238, a Notice of Intention to Discontinue Benefits (NOID) can be filed for a number of reasons; most commonly an employee’s return to work. However, there are numerous other reasons to file a NOID. Remember, when an employee returns to work, compensation may be discontinued the day he/she returns to work and the NOID can be filed within 14 days the Employer and Insurer receive notice of such. However, if the reason for the discontinuance is other than an employee’s return to work, the liability of the employer and insurer to make payments of compensation continues until the copy of the NOID and attachments have been filed with the division.

Some common examples of reasons to file a NOID other than an employee’s return to work are listed on our website. You can find the full article athttps://cwk-law.com/wp-content/uploads/2019/11/Practice-Pointer-Reasons-to-file-NOID.pdf

 Practice Pointers are provided by CWK Attorney Parker Olson.

The State of Minnesota Department of Labor & Industry has proposed expedited rules governing the treatment of posttraumatic stress disorder (PTSD), known formally as treatment parameters. This action was compelled by the legislative amendments in Minn. Stat. §176.83, Subd. 5(b)(8). The proposed treatment parameters were published in the State Register on November 12, 2019 and are currently open for public comment. The period for public comment ends December 12, 2019. 

The entire summary can be found here: https://cwk-law.com/state-of-minnesota-moves-to-adopt-treatment-parameters-for-posttraumatic-stress-disorder-ptsd/ 

This summary has been provided by CWK Attorney Michael Johnson. 

Natalie Lund and Elizabeth Cox recently attended the national workers’ comp and disability conference and expo in Las Vegas. This is the largest industry conference and trade show in the nation. While in Las Vegas, Lund and Cox represented CWK at functions sponsored by the premier defense network, the National Workers’ Compensation Defense Network (NWCDN).

The NWCDN will be holding a regional conference in Charlotte, NC on May 29, 2020 with a cocktail reception on May 28,2020. The conference will be held at the Charlotte Marriott City Center, 100 West Trade Street, Charlotte, NC. For more information contact Sheri Mead, NWCDN Executive Director, Sheri@meadandco.com. or CWK’s Tom Kieselbach, NWCDN President,Thomas.Kieselbach@cwk-law.com.

The NWCDN will hold its annual national conference in Philadelphia on October 30, 2020 with the cocktail reception on September 30, 2020. Mark this on your calendar.

 We are pleased to announce that Andrew Carballo and Steven Halloran have joined the firm as associates. Carballo and Halloran will be practicing in the area of Workers’ Compensation defense. Both were judicial law clerks prior to joining the firm and graduated from the University of St. Thomas School of Law. They will be excellent additions to the firm. 

Whitney Teel authored a chapter in “Workers’ Compensation Emerging Issues” 2019 Edition (WCEIA). Whitney analyzed the 2019 trends in Minnesota Workers’ Compensation.

WCEIA is for sale at lexisnexis.com/WCEIA.com or 1-800-223-1940. This is an excellent treatise and an essential tool for risk managers and insurance professionals. The focus is on national and local issues involving Workers’ Compensation.

LexisNexis partners with the National Workers’ Compensation Defense Network (NWCDN) in the creation and publication of this book. NWCDN is a national consortium of firms dedicated to protecting the interests of employers and insurers in Workers’ Compensation cases. CWK is the Minnesota representative for NWCDN. LexisNexis is a premier publisher of textbooks and treatises for lawyers and judges. 

Effective November 1, 2019 Parker Olson has been named a Shareholder at Cousineau, Waldhauser, & Kieselbach P.A.

Parker joined the firm in February of 2016.  During the past 3.5 years, Parker has made significant contributions to the firm and we are happy to recognize him for his efforts.

On September 27, 2019, Tom Kieselbach of Cousineau, Waldhauser & Kieselbach, P.A. (CWK) of Minnesota, was elected President of  NWCDN, the premier national network of defense counsel. Tom will be serving a one year term.

NWCDN consists of lawyers from 45 states and Canada. Only one law firm per state is invited for admission. CWK has been a proud member of this organization for years. NWCDN’s goal is to further the interests of insurance, risk and business professionals. We provide clarity on trends and developments locally and nationally. Annually NWCDN sponsors a cutting conference for clients and industry specialists. In 2019 the national conference was in Chicago. In 2020 NWCDN will be in Charlotte and Philadelphia. 

NWCDN also partners with LexisNexis in connection with the publication, “Workers Compensation Emerging Issues Analysis” (WCEIA). WCEIA tracks workers compensation trends and developments nationwide. We anticipate that the book will be available for purchase within the next few weeks. 

We congratulate Tom on taking the leadership role at the NWCDN. This is a singular honor for the firm. 

On July 17, 2019, the Minnesota Supreme Court issued its decision in Smith v. Carver County, A19-0199 (Minn. 2019).  Smith claimed he sustained PTSD from numerous traumatic incidents he experienced while working as a deputy sheriff. Carver County denied liability.  PTSD is a compensable workers’ compensation condition in Minnesota if it meets the specific criteria set forth Minn. Stat. § 176.011.  For an employee to recover workers’ compensation benefits for PTSD, the employee must prove a psychiatrist or psychologist has diagnosed him or her with PTSD and the professional based the employee’s diagnosis on the latest version of the DSM (Diagnostic and Statistical Manual of Mental Disorders by the American Psychiatric Association).

At trial, Smith presented medical evidence of his PTSD diagnosis via report and deposition transcript of a psychiatrist (Dr. Keller).  The County countered with an expert report and deposition transcript of their own, Dr. Arbisi (psychologist), who opined Smith did not have PTSD but did diagnose Smith with somatic symptom disorder and adjustment disorder (not compensable diagnoses).

The judge adopted the opinion of Dr. Arbisi, finding it persuasive and noting Dr. Keller was unpersuasive.  The WCCA reversed, holding that the trial judge must confirm the expert’s reports are in line with the precise wording of the DSM.  Effectively, the WCCA’s decision would require judges to “lay each expert’s report on the desk next to the DSM-5 and assess whether the medical professional’s opinion confirmed with the precise wording of the DSM-5 as the compensation judge interprets those words.”

The Minnesota Supreme Court disagreed with the WCCA, noting nothing in the PTSD statute “even remotely suggests that such an exercise is required.”  Because Dr. Arbisi’s opinion had adequate factual foundation, the trial judge’s choice of experts is to be affirmed.  Smith’s claim for PTSD related workers’ compensation benefits was denied.

https://mn.gov/law-library-stat/archive/supct/2019/OPA190199-071919.pdf

Summary prepared by Parker T. Olson