Legal Updates

NEW Minnesota Supreme Court Decision: EVIDENCE – EXPERT FOUNDATION – Eddie Hudson v. Trillium Staffing and XL Insurance, with Claims Administered by CorVel Corporation, A16-2017 (Minn. June 7, 2017)

EVIDENCE – EXPERT FOUNDATION – Eddie Hudson v. Trillium Staffing and XL Insurance, with Claims Administered by CorVel Corporation, A16-2017 (Minn. June 7, 2017)

In this case, Hudson (“Employee”) suffered an injury in the course of employment with Trillium Staffing (“Employer”) to his neck and low back. He also treated for a traumatic brain injury and psychological injuries. The parties participated in mediation, which resulted in a full, final, and complete settlement for all of the Employee’s injuries, with the sole exception of future reasonable medical expenses for his low back and neck injuries. A Stipulation for Settlement was executed, and approved by a compensation judge. An Award was issued.

 

Following the settlement, the Employee began treating with Dr. Savina Ghelfi, a psychiatrist. Dr. Ghelfi diagnosed the Employee with severe major depression, generalized anxiety disorder, and post-traumatic stress disorder. She also assigned a 75% Permanent Partial Disability (“PPD”) rating to the Employee for the traumatic brain injury. Based on her report, the Employee filed a Petition to Vacate the Award pursuant to Minn. Stat. § 176.461 (2016). The WCCA agreed with the Employee and found that his medical condition had substantially changed and accordingly vacated the Award. The Employer and Insurer appealed to the Minnesota Supreme Court.

 

The Minnesota Supreme Court reversed the WCCA’s decision and found that it had “abused its discretion” in vacating the Award. To set aside an Award based on a substantially changed medical condition, an employee needs to prove (1) a substantial change in medical condition, (2) that the change was not clearly anticipated; and (3) that the change could not reasonably have been anticipated. The MN Supreme Court held that Dr. Ghelfi’s report failed to meet the first prong of this test, because it lacked factual foundation. The report itself was descriptively flawed because it never indicated what facts formed the basis of the opinion that the Employee’s brain injury warranted a 75% PPD rating, nor did it explain how said rating was calculated. Additionally, the record reflected evidence manifestly contrary to Dr. Ghelfi’s conclusion that the Employee required supervision during all activities.

 

The key takeaway from this case is that when relying on expert opinions, the parties must be certain that the expert report contains adequate explanation and factual background. It is very important to be certain to include adequate foundation when drafting an instructional letter to an Independent Medical Examiner. By failing to identify the facts on which an expert relied, his or her entire report may be disregarded on the grounds of inadequate foundation, as was the case here. Likewise, the foundation of the expert’s report is key to evaluating any appeal from an adverse finding by a Compensation Judge.

 

The case is Hudson v. Trillium Staffing, A16-2017 and can be found HERE

MN Judicial Branch Supreme Court — UPDATE: REHABILIATION PLAN GOALS – Gilbertson v. Williams Dingmann, LLC, A16-0895 (Minn. May 3, 2017)

REHABILIATION PLAN GOALS – Gilbertson v. Williams Dingmann, LLC, A16-0895 (Minn. May 3, 2017)

In this case, Gilbertson (Employee) suffered a low back injury while working for Williams Dingmann (Employer). The Employer accepted liability and paid benefits, including medical expenses. The Employee subsequently ended her employment on October 13, 2001 and met with a Qualified Rehabilitation Consultant (QRC) to work toward her vocational goals. The QRC completed a Rehabilitation Plan and listed that the employee’s goal was to “[return to work with a] different employer.” The plan was agreed upon by the Employer’s insurer, the Employee, and the QRC.

 

On June 18, 2012, the Employer offered a job to the Employee to return to work there. The job was at the same compensation and work schedule as the Employee’s previous job with the Employer. The Employee ultimately declined the job offer. On July 3, 2012, the Employer filed a Notice of Intention to Discontinue Benefits and asserted that the Employee had refused a suitable job offer. The compensation judge agreed with the Employer and terminated the Employee’s benefits. The Employee appealed this ruling to the WCCA and prevailed. The WCCA concluded that the job offer was not consistent with the Rehabilitation Plan because it was not a job offer from a different employer. The case was appealed to the Minnesota Supreme Court.

 

The Minnesota Supreme Court affirmed the decision by the WCCA and held that the offer to return to work with the same employer was not “consistent with” the parties agreed-upon Rehabilitation Plan to return the Employee to work with a different employer. The Court applied a plain meaning analysis to Minn. Stat. § 176.101, subd. 1(i) (2016) and found that the statute was not ambiguous. The Employer argued that the compensation judge should look at the totality of the circumstances when making the determination to terminate benefits based on a refused job offer, and not be strictly limited by the specific language in the Rehabilitation Plan. The Employer also argued that reading a Rehabilitation Plan so narrowly ignores the legislative objective of rehabilitation, in that it is intended to restore injured workers to former employment. The Minnesota Supreme Court disagreed and held that the Employer had the opportunity to object to the terms of the Rehabilitation Plan, but since it did not, it was bound by the terms of that agreement. The message from the Minnesota Supreme Court appears to be that employers and insurers must be certain that they wish to be bound by the terms contained within a rehabilitation plan prior to agreeing to them.

 

The case is Gilbertson v. Williams Dingmann, LLC, A16-0895 and can be found HERE

EVIDENCE/EXPERTS – GIANOTTI V. I.S.D. 152

Recently, the Minnesota Supreme Court reversed a decision by the WCCA and held that a

psychological examiner had adequate foundation to provide an expert opinion regarding a

concussion and post-concussion syndrome. In the case, an employee injured her head in the

scope of employment, and filed a medical request seeking coverage for various treatments.

Following the hearing, the compensation judge denied the employee’s medical request and

found that she had not sustained a concussion or post-concussive syndrome. The compensation

judge relied heavily on the opinion of a psychological examiner in ruling in favor of the

employer and insurer.

 

The employee filed an appeal to the WCCA, which reversed the compensation judge’s decision.

The WCCA found that the psychological examiner lacked foundation and was not competent as

an expert. The issue of competence was never raised on appeal. The WCCA brought it up sua

sponte (“on their own”), and ruled in favor of the employee after second-guessing the decision

of the compensation judge.

 

The case was then appealed to the Minnesota Supreme Court, which reversed the WCCA’s

decision. The Court found that the WCCA erred when it ruled on the issue of the psychological

examiner’s competence. Pursuant to Minn. Stat. 176.421, Subd. 6, the WCCA is “limited to

issues raised by the parties in the notice of appeal” and therefore should never have raised the

competence issue sua sponte. Furthermore, the Court indicated that it was frankly perplexed at

the WCCA’s opinion that the psychological examiner did not have adequate foundation. The

Court made it clear that the WCCA should not have second-guessed the compensation judge,

and ultimately ruled in favor of the employer and insurer.

The case is Gianotti v. I.S.D. 152, A16-0629 and can be found HERE

 

This article was prepared by Parker T. Olson and edited by Michael R. Johnson.

INTERVENORS—Sumner v. Jim Lupient Infiniti, 865 N.W. 2nd 706 (Minn. 2015)

The employee commenced a cause of action against the employer. Two intervenors filed Petitions to Intervene in the preceding’s but failed to attend the hearing before compensation judge.

The Supreme Court held that Minn. Stat. §176.361 subd. 4, unequivocally requires and intervenors attendance at court preceding’s unless a stipulation has been signed and filed or the intervenor’s right to reimbursement has otherwise been established. Further, failure to appear at court preceding’s shall result in a denial of the intervenor’s claim.

The court noted that for purposes of statute, attend and appear are synonymous.

ARISING OUT OF AND IN THE COURSE OF— Kubis v. Community Memorial Hospital Association (W.C.C.A. 02/05/16)

Employee was a registered nurse.  At the time of the injury, the employee was in report giving the oncoming shift nurse’s information regarding patients.

There was a code called which the employee rushed to.  It turned out to be a “mock code,” which required the employee’s response as if in an emergency situation. 

After the code was over, the employee chose to take the stairs to her work station, rather than the elevator.  She “rushed up” the stairs to return to the nursing station as soon as possible to complete report when she fell injuring her shoulder.

There is no evidence that there was debris or moisture on the steps.  The lighting was adequate. Primary liability was denied based upon a lack of increased risk per Dykhoff. 

At Hearing, the compensation judge found the employee was not a credible witness when she stated she felt pressured to rush up the stairs because of hospital policy regarding overtime.  The judge found that that there was no arising out of and denied the claim.

The W.C.C.A. reversed the findings of the compensation judge and found the injury compensable.

The W.C.C.A. noted that there was no contention of defective stairs.  The issue was whether the employee’s employment increased her risk of injury.  There was a finding that the employee was “rushing up the stairs” because she felt pressure to do so because of hospital policy discouraging overtime.  The W.C.C.A. professed to defer to the compensation judge’s credibility determination.  However, they noted the employee claimed that she was fatigued due to her work schedule and had heavy legs and secondly that she felt she was rushed to complete her job and was injured as a result.

The court noted that when fatigue arises from the employee’s work activities resulting in injury, fatigue meets the criteria of increased risk to satisfy the arising out of standard.  Likewise, hurrying or rushing on the job is found to be “arising out of” if it results in injury to the employee. The evidence was uncontroverted that the employee was suffering from fatigue and hurrying.

This case has been appealed to the Minnesota Supreme Court.

ARISING OUT OF AND IN THE COURSE OF— Hohlt v. University of Minnesota (W.C.C.A. 02/03/16)

The employee worked as a painter for the University of Minnesota.  On the date of injury, she parked at the Oak Street Ramp, a facility owned and operated by the University of Minnesota.  The ramp was available to University employees and the public.  The ramp was located less than three blocks from the building where the employee was working.  At the end of work, the employee punched out and was walking to the parking lot at the Oak Street Ramp.  Her entire route was on U of M campus premises. 

The weather was bad and had been snowing and sleeting that day.  The employee slipped and fell at an intersection with an incline suffering work injuries.  Primary liability was denied for the injury per Dykhoff.

The Workers’ Compensation Court of Appeals reversed the compensation judge’s finding that the injury did not arise out of her employment with the employer.  The court distinguished the Dykhoff case in that there was no incline, the floor was not wet, and there was no debris on the floor in Dykhoff. 

The W.C.C.A. noted that arising out of means that there must be some causal connection between the injury and the employment.  The employment must:

1. Expose the employee to a hazard which originates on the premises as a part of the working environment; or

2. Particularly expose the employee to an external hazard whereby the employee is subjected to a greater risk than had he been pursuing ordinary personal affairs (special hazard). 

The W.C.C.A. held that the special risk or special hazard doctrine applies only in those cases in which the employee is injured off the employer’s premises.

If the employee suffers a work injury on the work premises, the employee need only establish an increased risk of injury from the employment.  In other words, there is an increased risk of injury on the employee’s premises because the employee is an employee and the injury follows from that risk.  The court held it is irrelevant if members of the general public might encounter the same risk because they were not brought to that risk by the job. 

The court cited Foley v. Honeywell which held that an injury on the employee’s premises arises out of the employment if it occurs as a result of an increased risk of injury while the employee is going from one part of the premises of the employer to another, even if it occurs on a public street.

This case has been appealed to the Minnesota Supreme Court.

ARISING OUT OF AND IN THE COURSE OF—Shire v. Rosemount Inc., 875 N.W. 2nd 289 (Minn. 2016)

This case involves an interpretation of Minn. Stat. §176.021 which contains an exclusion from workers’ compensation coverage for employee’s who participate in a “voluntary recreational program”.

In this case, the employee attended an annual employee recognition event, which was deemed to be voluntary by the employer. However, if the employee elected not to attend this event, he/she would not receive any pay and he would have to use vacation time.

The employee was injured at the event while participating in laser tag event.

The court found that the employee had sustained a compensable work injury. The court held that the employee sponsored event was not voluntary as the employee’s options were limited to:

1. Attending the program and getting paid; or

2. Not attending the program and forfeiting pay or benefits.

A recreational program sponsored by the employer is not “voluntary” when the employee risks forfeiting pay or benefits if he/she elects not to attend the program.

The court further held that even though the employee “voluntarily” participated in the laser tag, the injury was still compensable. The court distinguished a term “program” which is a collection of activities versus an individual activity within the program.