Lund and Johnson prevail at Minnesota Supreme Court in High Interest Case

Koehnen v. Flagship Marine Co. and Auto-Owners Insurance and Keith Johnson, D.C.

A20-0053 (August 12, 2020)

 

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.

 

Today, 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.

 

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

Summaries of Recent WCCA Cases

Leuthard v. Indep. Sch. Dist. 912 – Milaca, WC19-6290 (May 26, 2020)

Issue: Departure from Treatment Parameters

 

Employee appealed the compensation judge’s findings regarding the reasonableness and necessity of medical treatment related to her cervical spine symptoms. While the compensation judge ruled that treatment did improve the Employee’s ability to perform daily activities, they did not find that the rare case exception applies.

 

By way of background, the Employee in this case sustained a Gillette type injury in 2004 to her cervical spine. Severe stenosis was noted at C5-C6 and C6-C7. After physical therapy failed, the Employee received a medial branch block in 2008, which was also a failure. However, the subsequent fact injections were effective for one week after treatment. The Employee received sporadic facet injections from 2008 to 2013, when she began receiving facet injections every 3 months. An IME Report issued on September 25, 2017 failed to review medical records before 2013, including a medial branch block done in 2008. The IME Report concluded that the facet injections were not necessary, reasonable, or indicated treatment from a medical standpoint. The compensation judge found the Employee’s testimony on the effectiveness of facet injections credible, but also found that they exceeded the treatment parameters and did not show enough progressive improvement to support a departure from the treatment parameters. The court did not consider whether the treatment qualified under the rare case exception.

 

On appeal, the Workers’ Compensation Court of Appeals agreed that the Employee’s treatment did not meet the criteria required for a department from the treatment parameters. However, the W.C.C.A. also found that an analysis under the “rare case exception” was warranted. Given that the 2017 IME failed to account for the 2008 medial branch block, the only record that acknowledges the Employee’s complete medical history subsequent to the date of injury is that of her treating doctor who performed the 2008 medial branch block and facet injections. Further, the Employee’s testified credibly that the facet injections relieved her pain, if only temporarily. The apparent contradiction in the compensation judge’s findings between the Employee’s credible testimony that facet injections helped relieve her pain and the finding that said treatment was not reasonable were not reconciled. The rare case exception must be examined even if the Employee’s situation does not warrant a departure from the treatment parameters.

 

Summary by: Steven Halloran

 

 

 

Borucki Vukelich v. Rise, Inc., No. WC19-6320 (June 12, 2020 WCCA)

Issue: Is an employee’s attorney entitled to Edquist fees from the claim of an intervenor?

 

Holding: An intervenor who is awarded reimbursement as a result of its own efforts and risk to establish primary liability at a Parker/Lindberg hearing need not pay an Edquist fee to the employee’s attorney.

 

In this case, the compensation judge ordered that the intervenor, State Farm Insurance, be reimbursed for no-fault benefits it paid to the employee following injuries sustained as a result of a work-related injury. Employee’s attorney then petitioned the court for an Edquist fee payable from the intervenor’s reimbursement. Rather than proceed to hearing, the employee entered into a Stipulation for Settlement, resolving all claims on a full, final, and complete basis, including a close-out of future medical benefits. Claims of intervenors were settled as well, except for State Farm. State Farm believed the settlement offer was inadequate and chose to proceed to a Parker/Lindberg hearing.

 

At the Parker/Lindberg hearing, State Farm’s attorney established that the employee’s injuries were work related. The Employee’s attorney was present, but did not participate in the hearing. The compensation judge determined that although State Farm had not been excluded from the settlement, the employee’s injury was work related, and State Farm was entitled to full reimbursement of the benefits it paid to the employee. The employer and insurer then settled with State Farm to resolve its intervention claim.

 

The employee’s attorney filed for attorney fees seeking a $7,000.00 Edquist fee, that being 20 percent of the reimbursement awarded to State Farm. State Farm objected to the fee claim and a hearing was held. The compensation judge awarded the claimed Edquist fee, concluding that the employee had a right to be represented at the Parker/Lindberg hearing, and that Edquist fees were based upon recovery and not an attorney’s effort. State Farm appealed.

 

Reimbursement awarded to an intervenor may be reduced by a 20 percent fee payable to the employee’s attorney.  Minn. Stat. § 176.081, subd. 1(a); Edquist v. Browning-Ferris, 380 N.W.2d 787, 38 W.C.D. 411 (Minn. 1986). State Farm argued that there should be no Edquist fee because it was represented by its own attorney and because the awarded reimbursement was a result of its own efforts and not the employee’s attorney. The WCCA has considered effort to be a relevant factor in cases involving separate representation. Here, the intervenor’s attorney, not employee’s attorney, put forth the effort and took the financial risk to establish primary liability and assert its right for reimbursement. Therefore, no Edquist fee is payable and the WCCA reversed the compensation judge’s award.

 

Summary by: Andrew J. Carballo

 

 

 

Johnson v. Darchuks Fabrication, Inc., No. WC19-6325 (June 18, 2020 WCCA)

 

Issue: When does the rare case exception to the treatment parameters apply?

 

Holding: Substantial evidence supported the compensation judge’s award of payment for medication where the employee suffered from long-term intractable pain, showed no evidence of abusing that medication, was carefully monitored by the treating physician, and experienced a reduction in pain from the medication.

 

In this case, the employee suffered a work-related injury in 2002 that resulted in an intractable pain condition which was treated by prescription of Oxycontin, Percocet, and methadone. In 2009, Employee’s treatment regimen was assessed by an IME on behalf of the employer and insurer.  He considered the employee’s treatment to be reasonable, necessary, and causally related to the employee’s work injury and CRPS condition. In 2016, employee underwent another IME on behalf of the employer and insurer. This IME opined that the employee was not experiencing CRPS and that his current opioid medication was not prescribed properly under the treatment parameters, and that the other prescriptions were neither reasonable nor necessary to treat the employee’s chronic pain condition. Based on this report, the employer and insurer sent a letter to the employee’s treating physician, requesting compliance with Minn. R. 5221.6110, the treatment parameter governing opioid medications. The employee filed a Medical Request seeking payment for various medications. The compensation judge found that the employee’s CRPS condition had not resolved, that the medications at issue were reasonable and necessary to cure and relieve the employee of the effects of the work injury, and that the treatment parameters were not applicable. The employer and insurer appealed to the WCCA the refusal to apply the treatment parameters to the employee’s claim. The WCCA affirmed and the employer and insurer appealed to the Minnesota Supreme Court. The Supreme Court reversed the decision and remanded the case to the compensation judge for application of the treatment parameters. The compensation judge heard argument and found that the employee had not complied with the applicable treatment parameter, determined that a departure from that parameter had not been demonstrated, and concluded that the rare case exception applied. The judge awarded payment for the requested medications.  The employer and insurer appealed.

 

The employer and insurer contend that the compensation judge made an error of law and that the claimed medication did not comply with the treatment parameters or qualify for a departure from the parameters, under the rare case exception. Analyzing a medical claim under the treatment parameters requires the correct parameter be applied to the requested treatment, the standards for departure from the parameter be assessed, and if the standards for departure are not met, the application of the rare case exception is then decided. The rare case exception applies in cases when the requested medical treatment is needed for proper treatment even though the treatment did not strictly comply with the treatment parameters. The standard to meet is substantial evidence in support.

 

Here, there is no dispute the employee suffers from intractable pain and the only other treatment option was amputation of the affected limb. The compensation judge noted that the use of opioids reduced the employee’s pain by half and allowed the employee to engage in activities of daily living, while being without the medication resulted in unbearable pain, stress, and anxiety. The compensation judge also found that although the treatment parameters were not strictly followed, the requested opioid treatment was needed for proper treatment of employee’s symptoms. The WCCA found there was substantial evidence in the record supporting the application of the rare case exception.  The decision of the compensation judge was affirmed. It is possible that this case will again go to the Minnesota Supreme Court.

 

Summary by: Andrew J. Carballo

 

 

 

Ansello v. Wis. Cent., Ltd., No. WC20-6333 (June 19, 2020 WCCA)

 

Issue: What are considered reasonable attorney fees using the Irwin factors?

 

Holding: The compensation judge did not abuse his discretion in determining the amount of additional attorney fees awarded where he applied the Irwin factors and awarded an amount within a reasonable range given the record.

 

In this case, the employee’s attorney appealed the amount of attorney fees awarded by the compensation judge. The contingent fee is presumed to be adequate payment to the attorney for all benefits obtained. However, the attorney may petition a compensation judge for additional fees if the attorney believes the amount under the formula is not adequate payment. To be paid these excess fees, the attorney must explain why additional fees should be awarded.

 

Here, employee sustained an admitted low back injury and indemnity and medical expense payments were made under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (LHWCA), including payment for two low back surgeries in 2006 and 2009. In 2014, employee aggravated his low back at work. He then underwent previously scheduled low back fusion surgery. Wage loss benefits were paid under LHWCA but medical expenses (third back surgery) were not based on the assertion they were not reasonable or necessary. Employee filed a medical request under the Minnesota Workers’ Compensation Act (MWCA) seeking payment of medical expenses. The request was denied, the employee appealed and was successful at the WCCA and later at the Minnesota Supreme Court. The employee had the same attorney for the LHWCA and the MWCA claims.

 

In this case, the employee’s attorney requested additional fees for representation of the employee in his MWCA claim.  In determining an award for additional fees, the compensation judge must consider the factors set out in Irwin, including “the amount involved, the time and expense necessary to prepare for trial, the responsibility assumed by counsel, the experience of counsel, the difficulties of the issues, the nature of the proof involved, and the results obtained.” Typically, the WCCA has held that double recovery of workers’ compensation benefits is to be avoided. In this instance, the LHWCA and MWCA systems. However, the compensation judge awarded additional fees with regard to additional time spent litigating activities related to the jurisdictional challenge in the case and not the actual benefits sought.

 

Given the facts and circumstances of this case, the WCCA could not conclude the compensation judge abused his discretion, and they affirmed the issuance of additional Irwin fees to employee’s attorney.

 

Summary by: Andrew J. Carballo

MN DOLI’s CAMPUS Portal Goes Live this Month

Work Comp Campus, the Department of Labor and Industry’s (DLI’s) new workers’ compensation claims portal, is being rolled out this month. The purpose of the new system is to improve support and provide instant access to claim information. It will streamline many filing and reviewing issues with the MN Department of Labor and Industry. You will also be able to access Campus on computers, tablets and smartphones, meeting the expectations of today’s Minnesotans, who want quick, easy access to their workers’ compensation claim information.

 

If you have not already, we recommend registering for a training for Campus at the link below. There are also video tutorials and other helpful information on the DOLI website. Please do not hesitate to contact us with any questions regarding Campus.

 

https://www.dli.mn.gov/business/workers-compensation/work-comp-campus-training

Update to Operations at the Office of Administrative Hearings – Virtual Hearings

Below is an update to Operations at the Office of Administrative Hearings (effective May 20, 2020).

 

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?

 

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

 

Questions?

 

Please contact us at CWK with questions on virtual Hearings.

WCCA Case Summaries through March 2020

Robert Maxfield v. Stremel Mfg. and Sentry Ins. Group, No. WC19-6282 (W.C.C.A. Dec. 6, 2019)

ISSUE: Permanent total disability – substantial evidence.

 

Employee appealed the compensation judge’s finding that he was not permanently totally disabled. The Employee sustained an admitted work-related low back injury in 1991. Various benefits were paid to and on behalf of the Employee.

 

In July of 2017, the Employee filed a claim petition seeking permanent total disability benefits. At the request of the Employer and Insurer, he underwent an independent vocational exam. The independent vocational expert found that he had self-limited his return to work efforts, that job placement efforts had been ineffective and that he was physically capable of full-time, light duty work. The expert opined there were thousand of jobs within the employee’s geographical area that he was qualified for.

 

The compensation judge found the Employee had failed to prove he was permanently and totally disabled and denied his claim. Specifically, the judge found the employee conducted little or no job search and that his job search was self-limited. The judge adopted the opinion of the independent medical examiner.

 

The W.C.C.A. affirmed, holding substantial evidence supported the compensation judge’s findings.

 

Summary By: Emily Johnson

 

 

 

Mark Gerdes v. Mammoth/Nortek and Nat’l Union Ins. Co./Gallagher Bassett Services, Inc., No. WC19-6289 (W.C.C.A. Dec. 19, 2019)

ISSUE: Vacation of Award – substantial change in condition.

 

The Employee filed a Petition to vacate a 1998 Award. He argued there was a substantial change in his cervical spine condition that was not anticipated and could not have been reasonably anticipated by the parties. He pointed to the fact that he had extensive additional medical treatment for an admitted injury, had a change in his diagnosis and had a change in his ability to work since the time of the Award.

 

Employer and Insurer pointed to the fact that he did not have any additional permanency ratings since the Award and had not shown that the worsening of his condition was not and could not have been reasonably anticipated.

 

Generally, when evaluating a petition to vacate based upon an alleged substantial change in medical condition, the court considers various factors: 1) a change in diagnosis; 2) a change in the employee’s ability to work; 3) additional permanent partial disability; 4) the necessity of more costly and extensive medical care than initially anticipated; 5) a causal relationship between the injury covered by the settlement and the employee’s current worsened condition; and 6) the contemplation of the parties at the time of the settlement.

 

With respect to the Employee’s argument that he had a change in diagnoses, the compensation judge found this factor weighed in the employee’s favor. He went from having cervical spine disease from C4-7 to C2 through T1. The change in ability to work also weighed towards the employee’s position, as he had gone from active retraining and self-employment to receiving social security disability benefits. Employer and Insurer conceded the Employee had undergone more costly and extensive medical procedures and they had paid for it due to the causal relationship.

 

On the other hand, there was no additional permanency rating and the court found from the overall terms of the stipulation that the parties had anticipated the value of future wage loss and/or PPD benefits. The court also held the worsening of the adjacent cervical spine was or could have been reasonably anticipated by the parties.

 

Given the Employee’s failure to demonstrate that the worsening of his cervical condition was not and could not have been reasonably anticipated the court held he had not shown good cause to vacate the award. The W.C.C.A. affirmed.

 

Summary By: Emily Johnson

 

 

 

Myron Williams v. Farmers Union Indus. and SFM Risk Sols., No. WC19-6308 (W.C.C.A. Dec. 23, 2019)

ISSUE: Causation – Substantial evidence

 

The Employee appealed the compensation judge’s decision that he did not suffer a psychological injury arising from a physical injury. The Employee had an admitted injury where a scraper blade struck him in the chin, requiring three stitches. In the course of his treatment, he reported being anxious about returning to work because he feared being hurt again. He was referred for a physiological consult.

 

The Employer and Insurer’s independent medical doctor found the Employee had sustained only a laceration/contusion injury that was resolved and had no consequential psychological injury.

 

Then, the employee suffered another work injury when a co-worker accidentally spilled grease on him, causing second-degree burns. The Employee was released to return to work after the burns healed but did not return. He sought mental health treatment as was restricted from working because one of his treating providers concluded his symptoms were consistent with PTSD and severe depression. Another treating provider later opined these diagnoses were directly related to the work injuries.

 

The Employee had another independent medical exam at the request of the Employer and Insurer. The doctor concluded he had not developed any psychiatric conditions as the result of his physical injuries. The doctor also conducted a PTSD analysis under the DSM-5 criteria and found the Employee did not meet the criteria for a PTSD diagnosis.

 

A formal hearing was eventually held on the Employer and Insurer’s Petition to Discontinue Benefits. The Compensation judge found the opinions of the IME doctors to be more persuasive and held the Employee had not developed any psychological impairment as the result of his physical injuries and that he no longer had restrictions.

 

The W.C.C.A. reviewed the case under the Hengemuhle standard (whether the compensation judge’s decision was based on substantial evidence.) The W.C.C.A. held that the compensation judge’s decision was based on substantial evidence and was therefore affirmed.

 

Summary By: Emily Johnson

 

 

 

Scott Koehnen v. Flagship Marine Co. and Auto Owners Ins. Co., No. WC19-6287 (W.C.C.A. Dec. 27, 2019)

ISSUE: Intervenors – Standing.

 

A health care provider appealed an order dismissing their petition seeking payment of bills for treatment rendered to the Employee for a work-related injury. The provider had been placed on notice of its right to intervene and had not done so. The intervention rights of the provider were extinguished in an award on stipulation. This case was handled by CWK Attorneys Natalie Lund and Michael Johnson.

 

The provider acknowledged receipt of an intervention notice, but chose not to intervene, instead relying on the Employee’s attorney’s assurances that the bill would be satisfied. The parties eventually settled with multiple intervenors included in the settlement. An award was issued, extinguishing the provider’s interest on a statutory basis. Months later, the provider filed a Petition for Payment of Medical Expenses, which was dismissed by a compensation judge.

 

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the W.C.C.A. considers anew. The provider argued the Award was unenforceable because it extinguished its rights on the basis that the provider chose not to intervene in the claim. The provider also argued it was effectively excluded from settlement negotiations.

 

The W.C.C.A. found that the language of Minn. Stat. 176.361 is clear that where a motion to intervene is not timely filed, the potential intervenor’s interest “shall” be extinguished and the entity “may not collect”. Thus, the provider was properly extinguished and the compensation judge properly dismissed the provider’s Petition for payment.

 

Summary By: Emily L. Johnson

 

 

 

Luis Sagastume v. Viking Acoustical Corp. and and Amtrust Group, No. WC19-6302 (W.C.C.A. Dec. 30 2019)

ISSUE: Causation – Gillette injury; Notice of injury – substantial evidence.

 

The Employer and Insurer appealed the compensation judge’s determination that the Employee had sustained a Gillette injury to the left shoulder. Employer and Insurer argued the Employee had not proved a Gillette injury and/or that there wasn’t proper Notice of said injury.

 

To establish a Gillette injury, an employee must “prove a causal connection between his or her ordinary work and ensuing disability.” This primarily depends on medical evidence, but ultimately, it is the responsibility of the compensation judge to weigh all the evidence and make a determination regarding causation. The Employer and Insurer argued that the Employee’s testimony regarding his job duties was not credible in light of testimony from the Employer, and that the Employee’s medical opinions lacked adequate foundation as they relied on same. Pointing to the rule that the assessment of credibility is the unique function of the trier of fact, the W.C.C.A. found that with the testimony provided and medical opinions adopted, the compensation judge had adequate support for the finding of a Gillette injury.

 

With respect to the notice issue, there was conflicting testimony from the Employee and Employer as to when, how and if the Employee gave notice of an injury. In finding the Employee’s testimony credible, the compensation judge ruled there was timely notice. Again, the compensation judge is the uniquely qualified to assess credibility. The W.C.C.A. therefore affirmed the compensation judge’s reliance on the Employee’s testimony in resolving the conflicting evidence regarding notice.

 

Summary By: Emily L. Johnson

 

 

 

Michael Otto v. Heartland Motor Co., No. WC19-6304 (WCCA Jan. 15, 2020)

ISSUES: Temporary total disability; Withdrawal of Labor Market; Job Offer Refusal; Job Search

 

In this matter, the Employee underwent a C5-7 fusion following an admitted injury to his neck and left shoulder. He had been working as an auto mechanic for the Employer. He was given permanent work restrictions following the surgery. He had also started to experience a “gagging condition” due to the surgery, but was not given restrictions for that. He applied for and received SSDI due to this condition. After consulting with the Employee and QRC, Employer offered a job to the Employee as a diagnostic technician and tailored the job duties to fit with the permanent restrictions. However, the technician job only paid $600 per week, and Employee’s Average Weekly Wage was $1,601.40. Because of this, the QRC opined that the job was not suitable or consistent with the rehabilitation plan. Employee rejected the job. Employer and Insurer filed a Petition to Discontinue. The compensation judge denied the Petition finding that Employee did not withdraw from the labor market, did not refuse a suitable job offer, and had conducted a diligent job search.

 

On appeal, the WCCA affirmed the decision and analyzed each issue separately. The WCCA found that Employee did not withdraw from the labor market because even though Employee had been receiving SSDI, the application did not prevent him from finding employment in the future. As to the job offer, the WCCA agreed that a job offer with a $1,000 weekly difference did not constitute suitable, gainful employment. Lastly, the WCCA found that consistent with the rehabilitation plan, Employee had applied for the suitable employment options and there is no evidence that Employee should have applied for other job opportunities.

 

Summary by: Parker T. Olson

 

 

 

Debra Karsky v. Tri City Coop Oil Ass’n and Ram Mut. Inc. Co, No. WC19-6310 (WCCA Jan. 28, 2020)

ISSUES; Causation, Substantial Evidence

 

In this case, Employee had been working as a café manager when she slipped and fell on a wet floor causing a right elbow and mild head injury. She went for treatment and no restrictions were provided because Employee could modify her work duties as needed. It was noted that she may have possible allusion fractures in the right elbow. Two weeks later, Employee returned for medical treatment and was noted as “full and pain-free and good strength.” She continued to treat and was eventually diagnosed with right shoulder bursitis and underwent an injection. Notably, Employee had a history of right upper extremity problems, including right epicondylitis and possible early mild carpal tunnel syndrome. She was also previously recommended for a right shoulder surgery before the work injury, but declined the option. Employee eventually underwent a right shoulder arthroscopic surgery following the work injury, and the procedure was noted to be work-related by Employee’s treating physician. Dr. Cederberg performed an IME, and noted that Employee sustained an avulsion fracture injury related to the work incident, which had fully resolved without need for ongoing treatment or disability. Employee’s claim was denied at Hearing.

 

Employee appealed. The WCCA affirmed the decision finding that the compensation judge’s decision was supported by substantial evidence in the form of relying on a well-founded medical opinion from Dr. Cederberg. The choice of experts is a decision for the compensation judge, and should not be disturbed as long as the medical opinion has adequate foundation.

 

Summary by: Parker T. Olson

 

 

 

Perpich v. Delta Airlines, Inc., No. WC19-6317 (WCCA March 4, 2020):

ISSUES: Evidence – Expert Testimony; Causation – Substantial Evidence.

 

In this case, Employee sustained injuries to her knee and low back in 2014 while working as a flight attendant when the plane had a sudden drop in altitude. The claim was denied on the basis of the IME Report of Dr. Edward Szalapski, who opined that Employee’s knee injury was was the result of aging rather than the work incident and that the low back claim was also not related to the incident. The compensation judge found that Employee had sustained a permanent left knee injury, but that the preponderance of the evidence failed to show that Employee sustained an injury to her low back on the date of injury.

 

Employee appealed the compensation judge’s determination that the preponderance of the evidence failed to demonstrate she sustained a low back injury as a result of the work incident. Employee argued that Dr. Szalapski, who opined the low back condition was result of a degenerative process, was not medically competent to render such an opinion. Specifically, Employee noted that Dr. Szalapski had not performed a low back surgery in over 20 years and that therefore he lacked foundation and expertise to render an opinion regarding Employee’s low back. However, the WCCA disagreed and noted that Dr. Szalapski as a board-certified orthopedic surgeon was qualified to render an opinion regarding causation for Employee’s low back claim. The ruling is that where a doctor has sufficient expertise and foundation to render an opinion, the competency of the witness goes to the weight of the opinion, and not its admissibility. The compensation was entitled to rely upon the opinion of Dr. Szalapski. The WCCA affirmed it accordingly.

 

Summary by: Bryan M. Wachter

 

 

 

Gibson v. City of St. Paul, No. WC19-6316 (WCCA March 17, 2020):

ISSUES: Evidence; Causation

 

In this case, Employee sustained a neck, left shoulder, and low back injury when he fell on ice while carrying poles for the Employer. Notably, Employee had also sustained a prior work injury to his neck and left shoulder after lifting a 200-lb. deer while working for the South Carolina state highway Department. An IME was completed by Dr. Paul Wicklund, who diagnosed Employee with multilevel degenerative disc disease and that the back and neck injuries were temporary and fully resolved. Dr. Wicklund also opined that Employee did not sustain a shoulder injury. At the Hearing, the compensation judge adopted the opinions of Dr. Wicklund and denied Employee’s claims.

 

Employee appealed pro se and disputed the finding that his low back injury was temporary and that he had not sustained a work-related shoulder injury. Employee did not object to the opinion of Dr. Wicklund at the time of the hearing on the basis of foundation, and therefore waived the objection. Ultimately, the WCCA found that substantial evidence supports the judge’s findings on the basis of a choice of experts and that Dr. Wicklund’s report is well-founded. The WCCA affirmed the decision accordingly.

 

Summary by: Bryan M. Wachter

Summary of Current Operations at the Office of Administrative Hearings and Minnesota Department of Labor and Industry Due to COVID-19

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.

What workers’ compensation insurers should know about compensability of infectious diseases such as COVID-19

Infectious diseases such as COVID-19 can be compensable as either a personal injury or occupational disease in certain situations.  CWK attorney Whitney 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 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.

 

Read Whitney’s entire article on infectious diseases and workers’ compensation claims HERE

 

If you have additional questions you can contact Whitney Teel HERE

Minnesota Supreme Court Decision: Ewing v. Print Craft, 01/02/2020

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.

 

Summary by: Parker T. Olson

LUND AND JOHNSON PREVAIL AT WCCA IN HIGH INTEREST CASE

Koehnen v. Flagship Marine Co. and Auto-Owners Insurance and Keith Johnson, D.C.

WC19-6287 (W.C.C.A. Dec. 27, 2019)

 

On December 27, 2019, the Minnesota Workers’ Compensation Court of Appeals affirmed the Order of the compensation judge 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 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.

 

The Petitioner’s Bar wrote an amicus brief in support of the Employer and Insurer on this case.  We expect counsel for Johnson Chiropractic to appeal to the Minnesota Supreme Court with his constitutional argument, in particular.  Both sides of the Bar will likely contribute amicus briefs in the Supreme Court matter.

 

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.  You can also see the decision document HERE.