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.

Minnesota Legislature Passes Bill: Occupational Disease Presumed for First Responders and Healthcare Employees who Contract COVID-19

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

 

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

 

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

 

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

 

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

 

This law goes into effect immediately.

 

Please feel free to contact a CWK attorney with any questions on this new bill, and be sure to note any ongoing claims involving an employee in one of these types of occupations. You can read the full version of the law here: https://content.govdelivery.com/attachments/MNHOUSEGOP/2020/04/06/file_attachments/1419792/COVID%20Workers%20Comp%20Draft–final%20%285APR2020%29%20%281%29.pdf

 

Summary by Parker T. Olson

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

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.