Summaries of WCCA Decisions from October 2017 thru January 2018 are posted in the Legal Updates section of our website. Click HERE for access to the decision updates provided by our attorneys; Parker Olson, Scott Ferriss, Bryan Wachter, and Megan Oliver . In our effort to provide you with key up to date information on Minnesota Workers’ Compensation law and cases, we hope that you will find this to be helpful.
Contact Tom Kieselbach with your feedback and requests.
Julie D. Halvorson v. B&F Fastener Supply, A16-0920 (Minn, September 20, 2017)
The Minnesota Supreme Court affirmed a decision by the Workers’ Compensation Court of Appeals (WCCA) and held that an employer may only terminate an employee’s rehabilitation benefits where “good cause” is shown.
The facts of the case were undisputed. Julie Halvorson (“Employee”) sustained a work-related injury to her right elbow and both knees working for B&F Fastener Supply. A compensation judge awarded workers’ compensation benefits including rehabilitation services, which B&F and their workers’ compensation insurance carrier paid. The Employee eventually found a part-time job with another employer, after which B&F filed a request with the Workers’ Compensation Division of the Department of Labor and Industry to terminate rehabilitation services. The request stated that the Employee was no longer a “qualified employee” entitled to rehabilitation benefits as she had found “suitable gainful employment.” The request was denied and a formal hearing before a compensation judge was requested. The compensation judge granted the request to terminate rehabilitation benefits, noting that the Employee was no longer a “qualified employee” due to her part-time employment.
The Employee appealed to the WCCA, who reversed, but declined to specifically determine whether Employee had “suitable gainful employment” or if she continued to be a “qualified employee.” Instead, the WCCA held that “every request to terminate rehabilitation services is subject to the ‘good cause’ standard in Minn. Stat § 176.102, subd. 8(a), and Minn. R. 5220.0510, subp.5.” Halvorson v. B&F Fastener Supply, No. WC15-5869, 2016 WL 321720 (Minn. WCCA May 9, 2016). Due to the fact that the compensation judge improperly relied on the definitions in Minn. R. 5220.0100, subps. 22, 34, and B&F electing not to have their request to terminate rehabilitation benefits evaluated using the “good cause” standard, the WCCA determined that B&F had wrongfully terminated the Employee’s rehabilitation benefits. The Employer and Insurer appealed to the Minnesota Supreme Court.
The Supreme Court affirmed the WCCA’s decision, holding that Minn. Stat. § 176.102, subd. 8(a) specifically requires “a showing of good cause” in addition to filing the request to suspend, terminate, or alter rehabilitation benefits. There are five enumerated reasons considered “good cause” in the statute: (1) physical injury that prevents the employee from pursuing the rehabilitation plan; (2) employee’s performance indicates the rehabilitation plan will not be completed successfully; (3) the employee does not cooperate with the rehabilitation plan; (4) the plan or its administration is substantially inadequate to achieve the objectives of the plan; (5) the employee is unlikely to benefit from additional rehabilitation. However, the Court also stated that these five reasons are not an exclusive list of ways to show “good cause”.
Going forward, this means that when an employer, insurer, employee, or the Commissioner of Labor and Industry request to suspend, terminate, or alter rehabilitation benefits, a showing of “good cause” must be included in the request.
The case is Julie D. Halvorson v. B&F Fastener Supply, A16-0920 which can be found Here.
The case review was completed by Scott G. Ferriss.
The Minnesota Supreme Court reversed a decision by the WCCA, and held that the WCCA erred when it found that an expert opinion lacked adequate foundation.
In this case, Debra Mattick (“Employee”) sustained a non-work-related injury to her right ankle in 2000. She underwent two surgeries, and eventually was able to engage in recreational activities including sand volleyball and biking. She was diagnosed with post-traumatic arthritis, and had periodic pain. She returned to work as a cake decorator at Hy-Vee in 2001, working 40-45 hours per week. In 2004, the Employee tripped over a pallet while working at Hy-Vee and twisted her right ankle. She filed a workers’ compensation claim seeking reimbursement for an ankle-fusion surgery. At the Hearing, the compensation judge denied the Employee’s claim for surgery and found that the injury was temporary and had fully resolved. The judge relied on the expert opinion of Dr. Fey and concluded that neither the Employee’s medical records nor the opinions of her treating physicians supported her claim.
The case was appealed to the WCCA, which reversed the compensation judge’s decision and concluded that Dr. Fey’s report lacked adequate factual foundation. The WCCA found that Dr. Fey’s report was suspect, including his discussion of the Employee’s arthritis condition and ankle sprain, and well as his failure to note a 10-year gap in the Employee’s symptoms. Due to this, they found the report to be lacking in adequate foundation.
The Minnesota Supreme Court reversed the WCCA’s decision and reinstated the findings of the compensation judge. The Supreme Court noted that an expert opinion lacks foundation when (1) the opinion does not include the facts and/or data upon which the expert relied in forming the opinion, (2) it does not explain the basis for the opinion, or (3) the facts assumed by the expert in rendering an opinion are not supported by the evidence. Hudson v. Trillium Staffing, 2017 WL 2458132 (Minn. June 7, 2017). The Supreme Court, however, analyzed Dr. Fey’s report based on these factors and found that the report clearly recounted and analyzed the specifics of the Employee’s injuries before opining on the potential aggravation of her arthritis in her ankle, and it was adequately supported by factual foundation. A few statements in the report taken out of context is not enough to discredit the entire report. In conclusion, the Supreme Court found that the WCCA erred, and that the compensation judge properly relied on Dr. Fey’s report.
As the takeaway, the Minnesota Supreme Court reiterated the WCCA’s appellate standard of review under Hengemuhle for the past three decades: the WCCA exceeds its scope of review when it rejects a Compensation Judge’s findings that are supported by substantial evidence and substitutes its own findings.
The case is Mattick v. Hy-Vee Foods Stores, A16-1802 and can be found HERE.
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
STANDARD OF REVIEW – Kristel Kubis v. Community Memorial Hospital Association, A16-0361 (Minn. June 28, 2017)
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
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.
The full decision can be found HERE
EVIDENCE – EXPERT FOUNDATION – Eddie Hudson v. Trillium Staffing and XL Insurance, with Claims Administered by CorVel Corporation, A16-2017 (Minn. June 7, 2017)
In this case, Hudson (“Employee”) suffered an injury in the course of employment with Trillium Staffing (“Employer”) to his neck and low back. He also treated for a traumatic brain injury and psychological injuries. The parties participated in mediation, which resulted in a full, final, and complete settlement for all of the Employee’s injuries, with the sole exception of future reasonable medical expenses for his low back and neck injuries. A Stipulation for Settlement was executed, and approved by a compensation judge. An Award was issued.
Following the settlement, the Employee began treating with Dr. Savina Ghelfi, a psychiatrist. Dr. Ghelfi diagnosed the Employee with severe major depression, generalized anxiety disorder, and post-traumatic stress disorder. She also assigned a 75% Permanent Partial Disability (“PPD”) rating to the Employee for the traumatic brain injury. Based on her report, the Employee filed a Petition to Vacate the Award pursuant to Minn. Stat. § 176.461 (2016). The WCCA agreed with the Employee and found that his medical condition had substantially changed and accordingly vacated the Award. The Employer and Insurer appealed to the Minnesota Supreme Court.
The Minnesota Supreme Court reversed the WCCA’s decision and found that it had “abused its discretion” in vacating the Award. To set aside an Award based on a substantially changed medical condition, an employee needs to prove (1) a substantial change in medical condition, (2) that the change was not clearly anticipated; and (3) that the change could not reasonably have been anticipated. The MN Supreme Court held that Dr. Ghelfi’s report failed to meet the first prong of this test, because it lacked factual foundation. The report itself was descriptively flawed because it never indicated what facts formed the basis of the opinion that the Employee’s brain injury warranted a 75% PPD rating, nor did it explain how said rating was calculated. Additionally, the record reflected evidence manifestly contrary to Dr. Ghelfi’s conclusion that the Employee required supervision during all activities.
The key takeaway from this case is that when relying on expert opinions, the parties must be certain that the expert report contains adequate explanation and factual background. It is very important to be certain to include adequate foundation when drafting an instructional letter to an Independent Medical Examiner. By failing to identify the facts on which an expert relied, his or her entire report may be disregarded on the grounds of inadequate foundation, as was the case here. Likewise, the foundation of the expert’s report is key to evaluating any appeal from an adverse finding by a Compensation Judge.
The case is Hudson v. Trillium Staffing, A16-2017 and can be found HERE
REHABILIATION PLAN GOALS – Gilbertson v. Williams Dingmann, LLC, A16-0895 (Minn. May 3, 2017)
In this case, Gilbertson (Employee) suffered a low back injury while working for Williams Dingmann (Employer). The Employer accepted liability and paid benefits, including medical expenses. The Employee subsequently ended her employment on October 13, 2001 and met with a Qualified Rehabilitation Consultant (QRC) to work toward her vocational goals. The QRC completed a Rehabilitation Plan and listed that the employee’s goal was to “[return to work with a] different employer.” The plan was agreed upon by the Employer’s insurer, the Employee, and the QRC.
On June 18, 2012, the Employer offered a job to the Employee to return to work there. The job was at the same compensation and work schedule as the Employee’s previous job with the Employer. The Employee ultimately declined the job offer. On July 3, 2012, the Employer filed a Notice of Intention to Discontinue Benefits and asserted that the Employee had refused a suitable job offer. The compensation judge agreed with the Employer and terminated the Employee’s benefits. The Employee appealed this ruling to the WCCA and prevailed. The WCCA concluded that the job offer was not consistent with the Rehabilitation Plan because it was not a job offer from a different employer. The case was appealed to the Minnesota Supreme Court.
The Minnesota Supreme Court affirmed the decision by the WCCA and held that the offer to return to work with the same employer was not “consistent with” the parties agreed-upon Rehabilitation Plan to return the Employee to work with a different employer. The Court applied a plain meaning analysis to Minn. Stat. § 176.101, subd. 1(i) (2016) and found that the statute was not ambiguous. The Employer argued that the compensation judge should look at the totality of the circumstances when making the determination to terminate benefits based on a refused job offer, and not be strictly limited by the specific language in the Rehabilitation Plan. The Employer also argued that reading a Rehabilitation Plan so narrowly ignores the legislative objective of rehabilitation, in that it is intended to restore injured workers to former employment. The Minnesota Supreme Court disagreed and held that the Employer had the opportunity to object to the terms of the Rehabilitation Plan, but since it did not, it was bound by the terms of that agreement. The message from the Minnesota Supreme Court appears to be that employers and insurers must be certain that they wish to be bound by the terms contained within a rehabilitation plan prior to agreeing to them.
The case is Gilbertson v. Williams Dingmann, LLC, A16-0895 and can be found HERE
Recently, the Minnesota Supreme Court reversed a decision by the WCCA and held that a
psychological examiner had adequate foundation to provide an expert opinion regarding a
concussion and post-concussion syndrome. In the case, an employee injured her head in the
scope of employment, and filed a medical request seeking coverage for various treatments.
Following the hearing, the compensation judge denied the employee’s medical request and
found that she had not sustained a concussion or post-concussive syndrome. The compensation
judge relied heavily on the opinion of a psychological examiner in ruling in favor of the
employer and insurer.
The employee filed an appeal to the WCCA, which reversed the compensation judge’s decision.
The WCCA found that the psychological examiner lacked foundation and was not competent as
an expert. The issue of competence was never raised on appeal. The WCCA brought it up sua
sponte (“on their own”), and ruled in favor of the employee after second-guessing the decision
of the compensation judge.
The case was then appealed to the Minnesota Supreme Court, which reversed the WCCA’s
decision. The Court found that the WCCA erred when it ruled on the issue of the psychological
examiner’s competence. Pursuant to Minn. Stat. 176.421, Subd. 6, the WCCA is “limited to
issues raised by the parties in the notice of appeal” and therefore should never have raised the
competence issue sua sponte. Furthermore, the Court indicated that it was frankly perplexed at
the WCCA’s opinion that the psychological examiner did not have adequate foundation. The
Court made it clear that the WCCA should not have second-guessed the compensation judge,
and ultimately ruled in favor of the employer and insurer.
The case is Gianotti v. I.S.D. 152, A16-0629 and can be found HERE
This article was prepared by Parker T. Olson and edited by Michael R. Johnson.
The employee commenced a cause of action against the employer. Two intervenors filed Petitions to Intervene in the preceding’s but failed to attend the hearing before compensation judge.
The Supreme Court held that Minn. Stat. §176.361 subd. 4, unequivocally requires and intervenors attendance at court preceding’s unless a stipulation has been signed and filed or the intervenor’s right to reimbursement has otherwise been established. Further, failure to appear at court preceding’s shall result in a denial of the intervenor’s claim.
The court noted that for purposes of statute, attend and appear are synonymous.
Employee was a registered nurse. At the time of the injury, the employee was in report giving the oncoming shift nurse’s information regarding patients.
There was a code called which the employee rushed to. It turned out to be a “mock code,” which required the employee’s response as if in an emergency situation.
After the code was over, the employee chose to take the stairs to her work station, rather than the elevator. She “rushed up” the stairs to return to the nursing station as soon as possible to complete report when she fell injuring her shoulder.
There is no evidence that there was debris or moisture on the steps. The lighting was adequate. Primary liability was denied based upon a lack of increased risk per Dykhoff.
At Hearing, the compensation judge found the employee was not a credible witness when she stated she felt pressured to rush up the stairs because of hospital policy regarding overtime. The judge found that that there was no arising out of and denied the claim.
The W.C.C.A. reversed the findings of the compensation judge and found the injury compensable.
The W.C.C.A. noted that there was no contention of defective stairs. The issue was whether the employee’s employment increased her risk of injury. There was a finding that the employee was “rushing up the stairs” because she felt pressure to do so because of hospital policy discouraging overtime. The W.C.C.A. professed to defer to the compensation judge’s credibility determination. However, they noted the employee claimed that she was fatigued due to her work schedule and had heavy legs and secondly that she felt she was rushed to complete her job and was injured as a result.
The court noted that when fatigue arises from the employee’s work activities resulting in injury, fatigue meets the criteria of increased risk to satisfy the arising out of standard. Likewise, hurrying or rushing on the job is found to be “arising out of” if it results in injury to the employee. The evidence was uncontroverted that the employee was suffering from fatigue and hurrying.
This case has been appealed to the Minnesota Supreme Court.
The employee worked as a painter for the University of Minnesota. On the date of injury, she parked at the Oak Street Ramp, a facility owned and operated by the University of Minnesota. The ramp was available to University employees and the public. The ramp was located less than three blocks from the building where the employee was working. At the end of work, the employee punched out and was walking to the parking lot at the Oak Street Ramp. Her entire route was on U of M campus premises.
The weather was bad and had been snowing and sleeting that day. The employee slipped and fell at an intersection with an incline suffering work injuries. Primary liability was denied for the injury per Dykhoff.
The Workers’ Compensation Court of Appeals reversed the compensation judge’s finding that the injury did not arise out of her employment with the employer. The court distinguished the Dykhoff case in that there was no incline, the floor was not wet, and there was no debris on the floor in Dykhoff.
The W.C.C.A. noted that arising out of means that there must be some causal connection between the injury and the employment. The employment must:
1. Expose the employee to a hazard which originates on the premises as a part of the working environment; or
2. Particularly expose the employee to an external hazard whereby the employee is subjected to a greater risk than had he been pursuing ordinary personal affairs (special hazard).
The W.C.C.A. held that the special risk or special hazard doctrine applies only in those cases in which the employee is injured off the employer’s premises.
If the employee suffers a work injury on the work premises, the employee need only establish an increased risk of injury from the employment. In other words, there is an increased risk of injury on the employee’s premises because the employee is an employee and the injury follows from that risk. The court held it is irrelevant if members of the general public might encounter the same risk because they were not brought to that risk by the job.
The court cited Foley v. Honeywell which held that an injury on the employee’s premises arises out of the employment if it occurs as a result of an increased risk of injury while the employee is going from one part of the premises of the employer to another, even if it occurs on a public street.
This case has been appealed to the Minnesota Supreme Court.
This case involves an interpretation of Minn. Stat. §176.021 which contains an exclusion from workers’ compensation coverage for employee’s who participate in a “voluntary recreational program”.
In this case, the employee attended an annual employee recognition event, which was deemed to be voluntary by the employer. However, if the employee elected not to attend this event, he/she would not receive any pay and he would have to use vacation time.
The employee was injured at the event while participating in laser tag event.
The court found that the employee had sustained a compensable work injury. The court held that the employee sponsored event was not voluntary as the employee’s options were limited to:
1. Attending the program and getting paid; or
2. Not attending the program and forfeiting pay or benefits.
A recreational program sponsored by the employer is not “voluntary” when the employee risks forfeiting pay or benefits if he/she elects not to attend the program.
The court further held that even though the employee “voluntarily” participated in the laser tag, the injury was still compensable. The court distinguished a term “program” which is a collection of activities versus an individual activity within the program.