Topics in Worker s Compensation

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Marjorie Mitchell
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1 Topics in Worker s Compensation Presented by: Thomas J. Christenson, Esq. Shareholder,, Quinlivan Hughes, P.A. Litigation Committee Co-Chairperson Chairperson Tom has litigated matters in the state, federal and administrative courts of MN, ND and WI for 29 years. Compiled and Written by: Sarah R. Jewell, Worker s Compensation/Litigation Support Law Clerk,, Quinlivan Hughes, P.A.

Litigation Committee Co-Chairperson Chairperson Tom has litigated matters in the state, federal

2 Overview Rehabilitation & Retraining Coordination of Benefits Poole Factors Defenses, Termination of Rehab Plan No Time Limits Forever! Recent Cases Q & A

3 Eligibility Qualified Employee Minn. Rule (22) defines Qualified Employee : An employee who, because of the effects of a work-related related injury or disease, whether or not combined with the effects of a prior injury or disability: Is permanently precluded or is likely to be permanently precluded d from engaging in the employee s usual and customary occupation or from engaging in the job the individual held at the time of injury; Cannot reasonably be expected to return to suitable gainful employment with the date-of of-injury employer; and Can reasonably be expected to return to suitable gainful employment ent through the provision of rehabilitation services considering the treating physician s opinion of the employee s work ability.

disability: Is permanently precluded or is likely to be permanently precluded d from engaging in the employee s usual and customary occupation or from engaging in the job the individual

4 Temporary Total Disability MMI must be reached and served for all compensable conditions and injuries presently contributing to the employee s disability, in order to discontinue an employee s temp total disability benefits. Schewe v. Tom Thumb,, 46 W.C.D. 693, aff d 485 N.W.2d 570 (Minn. 1992).

employee s disability, in order to discontinue an employee s temp total

5 Retraining Standards The MN Supreme Court held that retraining is necessary if it will materially assist the employee in restoring an impaired earning capacity. Nordby v. Arctic Enter., Inc., 232 N.W.2d 773, 775 (Minn. 1975). An award of retraining benefits is not automatic, but must be supported by competent evidence.nordby Nordby,, 232 N.W.2d at 776.

Arctic Enter., Inc., 232 N.W.2d 773, 775 (Minn. 1975).

6 Changes to Minnesota s Workers Compensation Statute Regarding Retraining Effective October 1, 2008, the statute was amended to extend the period of time in which retraining may be requested from 156 weeks to 208 weeks. This means employees have more time (52 weeks aka, 1 additional year) in which to submit retraining requests.

in which retraining may be requested from 156 weeks to 208 weeks.

7 Poole (Retraining) Factors* 1. The reasonableness of retraining compared to the employee s return to work with the employer or through job placement activities. 2. The likelihood of the employee succeeding in a formal course of study given the employee s abilities and interests. 3. The likelihood that retraining will result in a reasonably attainable employment. 4. The likelihood that retraining will produce an economic status as close as possible to that which the employee would have enjoyed without the disability. *Poole v. Farmstead Foods,, 42 W.C.D. 970, 978 (1989)

The likelihood of the employee succeeding in a formal course of study given the employee s abilities and interests. 3.

8 Rehabilitation Did You Know? Bulau v. Douglas Truck Lines,, 45 W.C.D. 322 (1991) The Worker s Comp Court of Appeals held that an employee who had retired from his job as an over-the the-road truck driver; and was collecting a teamster s pension and social security retirement benefits was NOT precluded from rehab assistance where he was unable to return to his former occupation. The WCCA noted that rehab services could reasonably be expected to benefit the employee even though the compensation judge concluded the employee did not prove he intended to return to full-time employment.

9 Coordination of Benefits When an employee is receiving both temporary total disability benefits and social security disability, the employer pays the full worker s compensation benefit, and social security reduces its benefits payable so that the total paid to the employee and her dependents do not exceed 80% of the ACE. (average current earnings) Social Security Retirement benefits will NOT be reduced for Worker s Comp benefits paid.

its benefits payable so that the total paid to the employee and her dependents do not exceed 80% of the ACE.

10 Time Limits? There are NO time limits on eligibility for rehabilitation assistance. An employee who returns to suitable, gainful employment after a work-related related injury can later be eligible for rehab assistance if, because of the effects of the injury or disability, the employee is again precluded from engaging in his or her usual and customary occupation and can reasonably be expected to benefit from rehab services which could significantly reduce or eliminate the decrease in employability. Wessling v. Briggs Transportation,, 38 W.C.D. 304, 305 (1985).

because of the effects of the injury or disability, the employee is again precluded from engaging in his or her usual and customary

11 Re-Establishing Rehab An employee may re-establish establish entitlement to rehab benefits following termination from post- injury employment with the employer, where employment with the employer is no longer available. The WCCA held that an employee s termination for cause did not permanently bar her from receiving rehab benefits when she requested such benefits and agreed to cooperate with renewed placement efforts. See Wolf v. G&K Services,, 43 W.C.D. 371 (1990).

The WCCA held that an employee s termination for cause did not permanently bar her from receiving rehab benefits when

12 Termination of a Rehab Plan Before Completion Under the rehab rules, the insurer or employee may, at any time, request the closure of rehab services if good cause is established. Good Cause includes, but is not limited to: 1. A new or continuing physical limitation that significantly interferes with the implementation of the plan; 2. The employee s performance indicates that the employee is unlikely to successfully complete the plan; 3. The employee is not participating effectively in the implementation of the plan; or 4. The employee is not likely to benefit from further rehab services.

A new or continuing physical limitation that significantly interferes with the implementation of the plan; 2.

13 Failure to Cooperate An employee who does not make a good faith effort to participate and cooperate in a rehab plan risks discontinuance or forfeiture of all benefits under the Worker s Compensation Act. See Minn. Stat (13) (2006).

risks discontinuance or forfeiture of all benefits under

14 What is a good faith effort? The Worker s Compensation Court of Appeals has repeatedly held that when an employee is being provided with rehab assistance, the issue is not so much whether there is a diligent job search as whether the employee has made a good faith effort to cooperate with the rehab plan. See Schreiner v. Alexander Const. Co.,, 48 W.C.D. 469 (1993).

being provided with rehab assistance, the issue is not so much whether there is a diligent

15 Recent Cases 2009 & 2010 Minnesota Worker s Compensation Court of Appeals Cases A reflection on the state of the economy?

16 Case: Gebrekidan v.lsg Sky Chefs (2010) PAR, Inc. provided QRC/rehab services to an employee who sustained a work injury. After the employer/insurer s IME report stated the employee no longer needed rehab services, the employer filed a request to terminate services. Employee continued to obtain services from PAR & owed $5,000+ by the time the case settled. PAR was not named a party to the settlement. Decision: PAR got paid on grounds that PAR was an intervenor and it s request for a Parker/Lindberg hearing should have been granted.

services. Employee continued to obtain services from PAR & owed $5,000+ by the time the case settled.

17 CASE: Brownell v.taconite Mining (2010) Employee s request for rehabilitation consultation was denied where the employee failed to show that his work injuries are substantial contributing factors in any need to limit his activities due to his low back condition. The injury occurred in 2002, and not until 2009 (a month after the employee s retirement) did any medical provider recommend restrictions on the employee.

failed to show that his work injuries are substantial contributing factors in any need to limit his

18 CASE: Clegg v. Winona Health Services (2009) Employee claimed she never received notice from employer that any claim for retraining must be filed prior to receipt of 156 weeks of wage replacement benefits. Evidence showed that procedures in claims adjusters office were subject to human error, compensation judge allowed employee to file retraining request after receiving 182 weeks of benefits.

claim for retraining must be filed prior to receipt of 156 weeks of wage replacement benefits.

19 Case: Hopkins v. Road Equipment Parts Ctr. [Rehab-Cooperation] (2009) Where the employee s rehab plan called for a return to work with the employer, full duty, pending medical clearance, the employee cooperated with rehabilitation assistance, and there was no evidence that an outside job search was required to be part of the plan, the employee was entitled to receive temporary total benefits for 3 months.

employer, full duty, pending medical clearance, the employee cooperated with rehabilitation

20 Case: Kimball v. St. Mary s Duluth Clinic [Retraining investigation request denied] (2009) Where the employee returned to work for the same employer after his injury, in the same job classification, where his pre-injury and post-injury job was a union position with fringe benefits, and where the employee was earning more at the time of the hearing than he was earning on the date of injury, substantial evidence supported the compensation judge s denial of the employee s request for investigation of re-training training.

after his injury, in the same job classification, where his pre-injury and post-injury job was a union position with fringe

21 Case: Al-Hameed v. Bailey Const. [Rehab-Discontinuance] (2009) Employer sought to terminate rehab benefits being provided by PAR, Inc. The compensation judge stated, A significant amount of money has been paid to PAR with marginal results For the amount of money that has been spent, the employee should be close to permanently returning to the labor market. Compensation judge noted, the obligation to pay for rehabilitation services may have to be revisited in a short time period. WCCA held that the employee cooperated with the rehab plan, [and] even while services have been less than optimal, there is no basis for terminating rehab assistance. WCCA decision hinted that perhaps the employer should have sought to amend the plan or change the QRC.

22 Case: Benner v. Essential Nursing Services (2003) Older case, but still good law Joint employers are equally subject to MN worker s compensation law. Where one of two joint employers is uninsured, primary liability for the payment of benefits to the employee rests with the insured joint employer. Affirmed, 656 N.W.2d 225 (Minn. 2003)

23 Questions?

Retraining and Permanent Total Disability Under the Minnesota Workers' Compensation Act

Retraining and Permanent Total Disability Under the Minnesota Workers' Compensation Act Copyright 2002 Thomas L. Cummings JARDINE, LOGAN & O BRIEN P.L.L.P 8519 Eagle Point Boulevard, Suite 100 Lake Elmo,