October 2019 WCCA Decisions

Erickson v. Qwest Corp., No. WC19-6276 (W.C.C.A. October 24, 2019)

ISSUES: Medical Treatment and Expenses; Expert Medical Opinion

In this case, Employee had a history of low back and neck pain prior to his employment with employer as a result of a car accident in the 1980s. In August of 2000, Employee was hired by the employer and began working primarily as an outdoor maintenance technician. In December 2004, Employee began to complain of left foot pain and was diagnosed with neuroma. On January 31, 2005, Employee’s left foot neuroma was successfully removed, and he returned to work. Employee returned two months later and again complained of foot pain. He continued to treat for 10 years and was prescribed increasing doses of narcotics. A court appointed physician stated that Employee’s current narcotic use in 2018 was eight times the recommended dose according to federal guidelines.

 

Employee eventually filed a claim and ultimately alleged a Gillette-type injury to his left foot. Employee underwent several independent medical examinations, which opined that the pain either predated his employment or was aggravated by his high dosage of narcotic use. The compensation judge found Employee’s neuroma resolved during an office visit following his surgery in 2005. On appeal, Employee argued that the opinions relied upon by the compensation judge lacked foundation, however he offered no objection at the hearing and thus it was unable to be revived on appeal. In addition, the Workers’ Compensation Court of Appeals found that the compensation judge’s inferences made about the evidence were reasonable and based on substantial evidence in the record. The decision was affirmed.

 

 

Mucker v. Metro Transit, No. WC19-6286 (W.C.C.A. October 24, 2019)

ISSUE: Causation – Substantial Evidence

This case was handled by our own Attorney Thomas Coleman of Cousineau, Waldhauser, & Kieselbach, P.A. In the case, Employee was involved in a work-related motor vehicle accident in 2004 resulting in multi-level degenerative changes and severe spinal stenosis. He underwent a cervical decompression, discectomy and fusion at the C4-5 level in September of 2004 and was deemed to have reached maximum medical improvement in August of 2005. He was given a 12.5% PPD rating. However throughout 2006 and 2007, Employee continued to complain of increasing discomfort in his cervical spine. Then in 2013 and 2017, Employee sustained additional work-related injuries, and was ultimately released without restrictions on both occasions. Employee continued to receive ongoing treatment for his spine. In 2013, he underwent an MRI, which revealed that the stenosis appeared worse than previous scans, at which point steroid injections were recommended. Employee underwent an anterior cervical decompression and fusion in August of 2018. His surgeon opined it was possible that the 2013 injury accelerated the Employee’s symptoms, but conceded that it was equally likely to be a result of natural degeneration. The independent medical examiner from the Employee’s 2004 injury opined that the Employee was suffering solely from natural degeneration.

 

Employee eventually a Claim Petition in May of 2018 seeking medical, wage loss, and rehabilitation benefits resulting from the 2013 and 2017 work-related injuries. The compensation judge found that the 2018 decompression and fusion surgery were not related to the 2013 or 2017 work injuries. The main issue on appeal is whether the two injuries were substantial contributing factors to the Employee’s current condition and need for medical treatment. The WCCA found that the compensation judge, as the trier of fact, could reasonably reject the surgeon’s hypothesis that the 2013 injury contributed to the Employee’s condition and instead accept the 2004 independent medical examiner’s updated opinion which stated that Employee’s current condition was a result of natural degeneration. As a result, the case was affirmed and Employee’s claims were denied.

 

 

Brandia v. Keystone Automotive, No. WC19-6268 (W.C.C.A. October 25, 2019)

ISSUE: Medical Treatment & Expense – Reasonable and Necessary

In this case, Employee sustained an admitted work injury at which point she began treating with MAPS to address her chronic regional pain syndrome (CRPS). She received a spinal cord stimulator. Employer and Insurer denied payment for the procedure and Employee filed a Medical Request seeking payment for medical expenses, at which point MAPS intervened. The case proceeded to a Hearing, and the compensation judge ruled that Employee did not have CRPS and denied the payment on that basis.

 

Following this decision, but prior to the appeal, the Minnesota Supreme Court issued its decision in Johnson v. Darchuks Fabrication, Inc., 926 N.W.2d 414, 79 W.C.D. 291 (Minn. 2019), which reversed the general rule that treatment parameters do not apply in cases in which an employer and insurer admit primary liability but deny payment for medical treatment. Id. at 420-421, 79 W.C.D. at 301-302. The Minnesota Supreme Court determined that the treatment parameters will generally apply to a given injury once primary liability is established. Id. At 422, 79 W.C.D. at 304-305.

 

In the Brandia case, primary liability had been admitted, but there was no finding of whether the medical treatment was reasonable and necessary. Since the injury was admitted, the case therefore calls under the Johnson decision, and a finding of whether the medical treatment is reasonable and necessary is required under the treatment parameters. The WCCA therefore remanded the case to the compensation judge to make such a finding.

State of Minnesota Moves to Adopt Treatment Parameters for Posttraumatic Stress Disorder (PTSD)

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.

 

As with all treatment parameters, these rules only apply when there is not a primary liability dispute. If primary liability is denied, the Employer and Insurer cannot use the treatment parameters as either a sword or a shield regarding the Employee’s treatment.

 

The proposed treatment parameters are rather straightforward. The Employee must undergo an initial evaluation by a qualified mental health provider. Said evaluation must take account of various factors, including family history, functional status, potential comorbidities or contraindications, etc. The provider must then establish a treatment plan, including the proposed frequency of treatment, the goals of treatment, and a proposed timeline for treatment. Importantly, the treatment plan must specifically address the Employee’s return to work, including any restrictions necessary for return to work.

 

The proposed rules also require that the provider use a peer-review validated tool when making assessments regarding the Employee’s PTSD, the symptoms related to the same, and the severity thereof. Several examples are provided.

 

The proposed rules specifically establish the following modalities as appropriate for treatment of PTSD, whether singularly or concurrently:

 

  1. Cognitive behavioral therapy (CBT);
  2. Cognitive processing therapy (CPT);
  3. Cognitive therapy (CT);
  4. Prolonged exposure therapy (PE);
  5. Brief electric psychotherapy (BEP);
  6. Eye-movement desensitization and reprocessing (EMDR); and
  7. Narrative exposure therapy (NET).

 

The proposed rules further indicate that the Employee may be provided “any other treatment modality recommended by the treating mental health care provider that is an evidence-based, trauma-focused psychotherapy treatment modality, subject to [prior notification].”

 

Under the proposed rules, all treatment must be rendered by a mental health care provider with specific up-to-date training on the treatment of PTSD. The provider must, at least once every two weeks, do the following: reassess the severity of the Employee’s symptoms, adjust the treatment plan as necessary, and complete and submit to the Employee a report of work ability.

 

The proposed rules also address the duration of treatment. Generally, said treatment is limited to a period of 16 weeks. However, treatment may be extended additional periods, each 16 weeks long, under certain circumstances, including:

  • if treatment was interrupted;
  • if treatment is working (i.e., the Employee’s symptoms are decreasing, functional status is increasing, and this pattern is expected to continue with further treatment);
  • the Employee has returned to work and experienced an exacerbation of PTSD symptoms as a result thereof, such that additional treatment is necessary; or
  • upon the order of the commissioner or a compensation judge in “rare case with exceptional circumstances.”

 

Under the proposed rules, the provider must provide prior notification to the payer (i.e., the Insurer) of each additional 16-week period of treatment. Prior notification must specify what modalities are to be used during the next period and the proposed duration of treatment. Prior notification must be provided, either orally or in writing, to the payer at least 7 working days prior to the planned commencement of the new treatment period. The payer then has to respond within 7 working days. The payer can either approve the treatment, deny the treatment, schedule an independent medical examination, or request additional information. If the payer does not respond in one of these ways within 7 working days, it is deemed to have authorized the proposed treatment.

 

The proposed rules also place restrictions on the Employee’s ability to change providers. These are akin to the rules generally governing change of providers.

 

The use of medications for the treatment of PTSD are also addressed in the proposed rules. Of note, the proposed rules require a provider to first consider psychotherapy treatment before prescribing medication (i.e., if the Employee is not receiving psychotherapy treatment, the provider must consider whether it would benefit the Employee before prescribing any medication). The proposed rules indicate that the following medications are indicated for the initial treatment of PTSD:

 

  1. Selective serotonin reuptake inhibitors (SSRIs);
  2. Selective norepinephrine reuptake inhibitors (SNRIs); and
  3. Antihypertensive medication.

 

If the above-listed medications are contraindicated, produce undesirable side effects, or fails to decrease the severity of the Employee’s PTSD symptoms, the proposed rules indicate that the following medications are indicated:

 

  1. Serotonin antagonist and reuptake inhibitors (SARIs); and
  2. Other medications prescribed by or in consultation with a psychiatrist or a psychiatric mental health advanced practice registered nurse (PMH-APRN).

 

Any medications prescribed for the treatment of PTSD must be prescribed at the lowest clinically effective does, for the shortest duration needed, and limited to one period of three months and refills of no more than six months. The use of generic medications is indicated.

 

Under the proposed rules, the use of benzodiazepines is not appropriate for treatment of PTSD.

 

With regard to enforcement, under the proposed rules, any Employee treating for PTSD when the rules go into effect, as well as the Employee’s provider(s), must be provided written notice of the rules before the payer can issue any denial on the basis of the rules. No denials can be issued on the basis of the rules until 90 days after notice of the rules is provided by the payer.

 

Please contact Michael R. Johnson with any questions regarding the proposed rules or any other questions you may have regarding PTSD claims.

 

The proposed rules (i.e., treatment parameters) can be found here:

https://www.dli.mn.gov/sites/default/files/pdf/5221_6700_rules_draft.pdf

September 2019 WCCA Decisions

Wilson v. Holiday Stationstore, No. WC19-6269 (W.C.C.A. Sep. 4, 2019)

Employee injured her right knee with non-displaced fracture of the right patella. Her treating doctor provided a health care provider report in March 2015 stating she reached MMI without PPD. Almost a year later, she demonstrated no welling, full extension, and flexion of 145 degrees. X-rays suggested complete healing of the right knee. She followed up and showed full right knee extension, but a meniscus tear was suspected. MRI of the right knee showed a meniscus tear.

 

She was later referred to a chiropractor for evaluation and was given a 12% PPD rating and a Weber rating. She was seen by Dr. Paskoff who agreed with her treating doctor and assigned 0% PPD rating. She was evaluated by Dr. Prochaska who assigned her a 12% PPD rating. Dr. Prochaska later submitted a follow up letter retracting a 2% Weber rating.

 

The compensation judge found the employee was entitled to a Weber rating of 2% and an additional 12% PPD.

 

Employer and Insurer appealed the award of PPD and objected to admission of Dr. Stember and Dr. Prochaska’s reports on lack of foundation, that they were duplicative, and violated Minn. Stat. §176.155. WCCA upheld the admissibility of the reports as it was within the discretion of the compensation judge.

 

Employer and Insurer argued the compensation judge erred as a matter of law in awarding the 2% Weber rating and the 12% PPD rating was not supported by substantial evidence. Because the rules clearly set out a rating for the fracture, the compensation judge erred in awarding benefits for Weber rating. The Weber rating is not intended for use where a particular body part is rated in the schedules but Employee’s objective findings do not satisfy the requirements of the schedule. Substantial evidence supported the judge’s finding for 12% PPD.

 

Also on appeal was the issue of intervenors and medical mileage. Substantial evidence supported the award of the intervenors, aside from an award to CDI, as there was no evidence that CDI intervened. Mileage was also awarded with the associated intervention interests.

 

 

Jensen v. Donnelly Custom Manufacturing, No. WC19-6266 (W.C.C.A. Sep. 10, 2019)

Employee was injured after a trip and fall. The claim was admitted for right hand sprain and forehead contusion. She later filed a claim petition seeking benefits related to injuries to her head, both hands, wrists, arms, and consequential CRPS.

 

A compensation judge found she sustained a minor forehead contusion and right hand sprain/strain injury. The judge found that she had not proven that she sustained a left upper extremity injury or CRPS. Neither party appealed that decision.

 

She sought additional treatment for CRPS and was given a 44.25% PPD rating. She filed a new claim petition for PTD benefits.

 

A compensation judge denied Employee’s claims, finding that her right hand injury resolved, did not sustain a low back injury, and that the issue of CRPS was decided in the previous decision.

 

Employee appealed a denial of a consequential injury of complex regional pain syndrome and claim for permanent total disability benefits. Employer and Insurer argued that her claim was barred by res judicata and collateral estoppel.

 

WCCA held that res judicata does not bar the employee from claiming benefits for a time period after the first decision. Collateral estoppel may apply. The compensation judge did not consider whether the employee’s condition had changed or worsened, or whether new material facts had emerged since the prior hearing. The matter was remanded for determination of whether the employee’s condition has changed or worsened, or whether new material facts had emerged.

 

 

Rhyner v. Mattress Giant Holding Corp., No. WC18-6241 (W.C.C.A Sep. 20, 2019)

Employee injured her low back and sought benefits, including surgery, chiropractic care, and SI joint injections. A compensation judge found that she sustained a L5-S1 disc herniation and approved the recommended treatment. That decision was not appealed.

 

Employee underwent surgery but continued to be symptomatic. She sought SI joint injections, which were denied. Employer and Insurer asserted that the findings and order established the nature and extent of the injury was limited to the L5-S1 disc herniation and not L4-5, the SI joints or low back generally. They claimed res judicata barred the claim for treatment of the SI joints.

 

A compensation judge found that res judicata did not apply and ordered payment of the SI joint injections.

 

Employer and Insurer appealed the approval of SI joint injections based on res judicata, and that they are not reasonable and necessary.

 

WCCA disagreed with the Employer and Insurer that res judicata applied after careful review of the prior order. The judge awarded not only the recommended L5-S1 surgery, but also all medical treatment to low back regardless of vertebral level, including chiropractic care and SI joint injections. Substantial evidence supported the compensation judge’s determination that the SI joint injections were reasonable and necessary.

 

Also at issue was payment to intervenors. Because intervenors were not properly served notice of the appeal, this issue was not addressed.

June 2019 WCCA Decisions

June 2019 WCCA Decisions

 

John Devos v. Rhino Contracting, No. WC18-6240 (W.C.C.A. June 12, 2019)

 

Jurisdiction. Minn. Stat. § 176.041, subd. 5(b).

 

The Employee lived in Minnesota for most of his life. On April 7, 2011, while in Grand Forks, North Dakota, he applied for and was offered a seasonal job as a laborer for the Employer. The Employer was a North Dakota Business. During the 2011 season, the Employee worked for the Employer in both North Dakota and Minnesota. He worked more than 240 hours in Minnesota. He was laid off at the end of the season (December) and thereafter applied for North Dakota unemployment benefits. He hoped to return to the Employer for the 2012 season and did not look for work from December 2011 to March 2012.

 

In March of 2012, he was called by an owner of the Employer and asked to return for the 2012 season. He did not complete an application or undergo another interview. In 2012, the Employee worked mostly in North Dakota, and less than 240 hours in Minnesota. In September 2012, he suffered a work-related injury to his femoral artery. During his recovery, he received workers’ compensation benefits through North Dakota’s Workforce Safety and Insurance (ND WSI). He did not return to work with the Employer.

 

When ND WSI discontinued benefits in 2014, the Employee sought benefits under the Minnesota Workers’ Compensation Act, naming the Special Compensation Fund as Insurer. The Fund argued the Employee was not entitled to benefits under Minn. Stat. § 176.041, subd. 5b. because he was hired in North Dakota by a North Dakota Employer and his alleged injury arose only out of temporary work in Minnesota.

 

Minn. Stat. § 176.041 Subd. 5b. reads: “… compensation benefits for an employee hired in North Dakota by a North Dakota employer, arising out of that employee’s temporary work in Minnesota, shall not be payable under this chapter. North Dakota workers’ compensation law provides the exclusive remedy available to the injured worker. For purposes of this subdivision, temporary work means work in Minnesota for a period of time not to exceed 15 consecutive calendar days or a maximum of 240 total hours worked by that employee in a calendar year.”

 

The compensation judge dismissed the claim petition finding that the Employee’s exclusive remedy was under the workers’ compensation system in North Dakota pursuant to Minn. Stat. § 176.041, subd. 5(b). The Employee appealed.

 

Upon review, the W.C.C.A affirmed the dismissal. They agreed with the compensation judges’ determination that whether the Employee’s work in Minnesota was temporary was based on the hours he worked in the calendar year in which the injury occurred, and that under the statute, his work in Minnesota was temporary.

 

Summary by: Emily Johnson

 

 

 

 

Thomas Reel v. Loftness Specialized Farm Equipment, No. WC19-6257 (W.C.C.A. June 12, 2019)

 

Vacation of Award

 

The Employee petitioned the W.C.C.A to vacate a 2006 award on stipulation. He alleged a substantial change in his medical condition that was not anticipated and could not have been reasonably anticipated by the parties at the time of the award.

 

The Employee worked as a welder, operating and lifting heavy equipment. He had disc herniations, degenerative disc disease and stenosis at multiple levels of the cervical spine. He eventually had a fusion procedure which resulted in complications with the hardware. He subsequently underwent a revision fusion surgery. He was placed at maximum medical improvement by his surgeon in 2005 and given permanent “moderate” workability and a 23% permanency rating. The Employee continued to treat for ongoing symptoms in the neck and bilateral arms.

 

The 2006 Stipulation included the Employee’s allegation that he was permanently and totally disabled and payment to the Employee of $101,800.00. Medical benefits were left open.

 

Following the issuance of Award, the Employee treated for ongoing chronic neck pain with radiculopathy down the right arm. He required additional surgeries including removal of hardware from the cervical spine.

 

The W.C.C.A. note that while the Employee had substantial additional medical treatment since his 2006 settlement, and this treatment is causally related to his work injury, he failed to show any significant change in diagnosis, change in ability to work, additional PPD, or that the settlement did not contemplate his continued inability to resume employment. He had already received substantial TTD, TPD, and PPD before later receiving over $100,000.00 in his 2006 settlement. Moreover, the Employee left his medical benefits, the one benefit that certainly could have been reasonably anticipated to be needed into the future, open and has had the advantage of those benefits.

 

The W.C.C.A affirmed the compensation judge’s determination that evidence failed to support the employee’s claim of a substantial and unanticipated change in his medical condition.

 

Summary by: Emily Johnson

 

 

 

  

Mary Farrell v. St. Paul Café, No. WC19-6249 (W.C.C.A. June 4, 2019)

 

Rehabilitation

 

The Employee appealed from a compensation judge’s findings and order granting the Employer and Insurer’s request to change case managers. The Employee suffered an admitted work-related injury which resulted in her permanent and total disability. In 2016, a compensation judge signed an award on stipulation approving a settlement whereby the employee was declared PTD. A prior Stipulation for Settlement had closed out vocational rehabilitation and retraining.

 

However, the Employer and Insurer subsequently voluntarily began providing disability case management services. When the Employer and Insurer became dissatisfied with the services, they filed a rehabilitation request seeking to terminate the case manager. The compensation judge found that there was no workers’ compensation statute nor rule governing changes to voluntarily provided disability case management services and granted the Employer and Insurer’s request to change case managers.

 

The W.C.C.A. agreed that disability case management services, being non-statutory benefits, are outside the jurisdiction of workers’ compensation courts. Thus, because neither the Office of Administrative Hearings nor the W.C.C.A. have jurisdiction to rule on changes to disability case management services. Employers and Insurers providing such services may make changes to these services without filing either a medical or rehabilitation request or otherwise seeking approval from a workers’ compensation judge. Filing a rehabilitation request was unnecessary.

 

The W.C.C.A. vacated the findings and order of the compensation judge and dismissed the Employer and Insurer’s rehabilitation request.

 

Summary by: Emily Johnson

July 2019 WCCA Decisions

July 2019 WCCA Decisions

 

The WCCA refuses to consider employer and insurer’s Motion to Compel in a case where the employee had not sought or received workers’ compensation benefits, and primary liability was denied. On July 31, 2019, the WCCA issued its decision in Hawley v. City of Blaine, No. WC19-6274. In the case, the employee sustained an injury and a First Report of Injury was filed. The employer and insurer denied primary liability through the filing of a NOPLD. No pleadings were filed by the employee. Four months later, the employer and insurer filed a motion to compel the employee’s attendance at an independent psychological examination. Employee refused to comply and the matter came before a compensation judge.

 

At the Hearing, the employee argued that the judge did not have subject matter jurisdiction to compel attendance at an independent psychological examination because employee had not filed a claim. Ultimately, the compensation judge found that there was no subject matter jurisdiction to even consider the Motion to Compel because employee had not filed a claim and primary liability had been denied.

 

The case was appealed and the WCCA affirmed the decision. Ultimately, the decision came down to the fact that employee had not brought a claim and had never received benefits for the injury, and primary liability was denied. Because of this, the compensation judge did not have subject matter jurisdiction to consider the motion to compel employee to attend an independent psychological examination.

 

Summary by Parker T. Olson

 

 

 

The WCCA vacated the compensation judge’s findings when it was found that the judge improperly expanded the scope of the issues at Hearing. On July 30, 2019, the WCCA issued its decision in Dexter v. Hubbard Cnty., No. WC19-6261. In the case, the employee fell on both knees and claimed a torn meniscus. He already had a history of arthritis, and a total knee replacement was recommended. The employer and insurer admitted liability, but disputed the nature and extent of the injury. Dr. Wyard issued an IME opinion that the total knee arthroplasty was not necessary and that the claimed injury was not a substantial contributing factor to the need for surgery. The employee underwent the surgery and was ultimately provided a 16.1512% PPD rating by the treating surgeon. The employer and insurer disputed the PPD rating among other issues, and the case proceeded to Hearing.

 

At Hearing, the compensation judge awarded 16% PPD, not the 16.1512% claimed. He also ordered reimbursement to intervenor Essentia Health, even though Essentia had filed documents stating that it no longer had an intervention interest. Upon request, the compensation judge issued an Amended Findings and Order and added an additional 2% PPD due to the meniscectomy under Minn. R. 5223.0170, subp. 5.B.(2), and did not amend the Order otherwise. The matter was appealed.

 

On appeal, the WCCA found that the compensation judge erred by expanding the issues raised at trial. It was clear that the 2% meniscectomy rating was never claimed by the employee. Furthermore, the order for payment to Essentia was not supported by substantial evidence, and therefore was also vacated. Ultimately, the WCCA found that a compensation judge is limited solely to the resolution of issues raised at trial,

 

Summary by Parker T. Olson

Minnesota Supreme Court Decision

Minnesota Supreme Court denies former Minnesota Vikings player’s claim for brain injuries based on statute of limitations. On July 31, 2019, the Minnesota Supreme Court issued its decision in Noga v. MN Vikings Football Club, A18-1685. In the case, Noga brought a claim for neurocognitive disorder, formerly known as dementia. Noga played defensive lineman, and was known for his head-first style of playing. In 2001, he filed a claim for benefits regarding his various orthopedic injuries. In a medical report completed by Dr. Fruean in February 2004, Noga’s orthopedic issues and neurological issues, including “blackout episodes from concussions from football injuries” and “headaches episodes, from football injuries” were noted. Noga’s 2001 orthopedic claim was settled, and the Award on Stipulation was filed in March 2004.

 

In 2015, Noga filed a Claim Petition for workers’ compensation benefits relating to his head trauma and brain injuries. Liability was denied. At the Hearing, the compensation judge found that Noga sustained a Gillette injury of “head trauma, brain injury, and/or dementia” that culminated on or about December 1, 1992 and that the injury was a substantial contributing factor to Noga’s permanent and total disability.

 

On appeal, the WCCA remanded several issues to the compensation judge, who again decided that Noga sustained a Gillette injury to the head which culminated on December 1, 1992, and that Noga should have known the nature, seriousness, and probable compensable nature of his injury in 2004. Because of this finding, it was clear that more than six years had passed from the date he knew of the injury to the date the Claim Petition was filed in 2015. Nevertheless, the judge concluded that the statute of limitations was satisfied under Minn. Stat. 176.151 because the Vikings provided Noga with medical care for his head injuries, which constituted a “proceeding” to toll the statute of limitations.

 

The matter went up to the Minnesota Supreme Court, which reversed the WCCA, holding that the Minnesota Vikings’ providing medical treatment for Noga’s head injuries did not constitute a proceeding, so therefore the claim was barred under the statute of limitations. Employees have six years after a date of injury to bring a workers’ compensation claim if no First Report of Injury is filed. One exception is if the injury is admitted, or a “proceeding” occurs to toll the statute of limitations. In this case, the Supreme Court found that providing medical care did not meet the criteria of a proceeding, and therefore Noga’s claim was barred under the statute of limitations.

 

The full opinion can be found here: https://mn.gov/law-library-stat/archive/supct/2019/OPA181685-073119.pdf

 

 

Summary by Parker T. Olson

2019 Legislative Changes

The Minnesota Legislature approved statutory changes to implement a modernized technology system, which will replace the aging system which has been in place since 1992.  These changes are promised to bring a simplified and expediated interaction with the workers’ compensation system.  The effective date is August 2020.  These changes also clarify when first reports of injury and subsequent reports must be filed with the commissioner, adding that a first report of injury must be filed when a dispute is initiated, when a vocational rehabilitation form is filed and when permanent partial disability is ascertainable.

 

Minn. Stat. § 176.312 is amended to extend the time from 10 to 20 days for a party to petition for reassignment of a compensation judge.  This change went into effect July 1, 2019.

 

Also, there are new SAWW, TTD maximum rates effective for October 2019: the statewide average weekly wage (SAWW) effective October 1, 2019, is $1,112.00, the maximum temporary total disability rate (TTD) will change to $1,134.24 and the minimum permanent total disability benefit rate (PTD) will be changed to $723.00.

Minnesota Supreme Court reinstates trial judge’s determination denying employee’s claim for post-traumatic stress disorder (PTSD).

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

New Minnesota Supreme Court Decision: Oseland v. Crow Wing Cnty., No. A18-1550 (Supreme Court – May 29, 2019)

Issue: INTEREST, PENALITIES, COSTS & DISBURSEMENTS

 

Oseland v. Crow Wing Cnty., No. A18-1550 (Supreme Court – May 29, 2019)

 

Issue: The primary issue was determining the date that interest begins to accrue for an underpayment of permanent total disability benefits (“PTD”).

 

Holding: Interest accrued on the date that each underpayment is made at a variable interest rate in effect at that time.

 

Facts: In this case, the employee sustained an admitted injury, and the employer/insurer began paying benefits. The employee was eventually found to be permanently and totally disabled, and began receiving PTD benefits. Then, Employee began receiving retirement benefits from Public Employee’s Retirement Association, and the employer/insurer began deducting the amount of said benefits from PTD. This action was supported by case law precedent at that time. This benefit rate (PTD rate less retirement benefit) continued until employee passed away in 2013.

 

In 2014, the Supreme Court decided Ekdahl v. Independent School District #213, 851 N.W. 2d 874 (Minn. 2014), and Hartwig v. Traverse Care Center, 852 N.W. 2d 251 (Minn. 2014). Both cases held that the Workers’ Compensation Act does not allow insurers to reduce the amount of PTD benefits paid by the amount of public employee retirement benefits employees receive.

 

Thereafter, employee’s heirs filed a Claim Petition seeking underpaid benefits and interest. The employer and insurer denied that any interest was owed due to the change in precedent. At Hearing, the compensation judge found that the heirs were entitled to interest at a variable rate starting from the date of the initial underpayment of PTD benefits. On appeal, the WCCA overturned this and found that no interest was owed because there was no accrual of interest until the obligation to pay is both “fixed and ascertainable.” The case was appealed to the Minnesota Supreme Court.

 

Minnesota Supreme Court Analysis: The question of whether interest accrued on the underpaid benefits hinges on when those benefits were “due” under Minn. Stat. § 176.221, subd. 7. This Court agreed with the compensation judge that the benefits deducted were “due” when each reduced benefit payment was made. The employer and insurer argued that the underpaid benefits did not become “due” until Ekdahl and Hartwig were decided. The Court held that employee’s offset benefits were due under Minn. Stat. § 176.221, subd. 7, on the date of each underpayment, and therefore, bear interest from those dates. In determining the rate of interest accrued, the court found that the right to a particular interest rate does not vest until there has been an underpayment, thus, the applicable interest rate should be the rate in effect on the date of the underpayment. The Court denied penalties and costs.

 

Click HERE for a printable version.

 

Summary by: Parker T. Olson and Michelle I. Kelly

WCCA Case Summaries April 2019

WCCA case summaries for April 2019, made possible by Michelle Kelly, CWK Law Student.  Click HERE for the full case summaries.

  • Issue: Vacation of Award – Substantial Change in Condition – Wolters v. Curry Sanitation, Inc., No. WC18-6207 (April 2, 2019)
  • Issue: Causation – Substantial Evidence – Klein v. Minn. Association of Townships, No. WC19-6243 (April 15, 2019)