Minnesota Workers Compensation Update

Transcription

1 March 2014 Volume 100 Minnesota Workers Compensation Update In This Issue Compensability: What Did Dykhoff Change?... 1 Minnesota Case Law Update Decisions of the Minnesota Supreme Court... 3 Decisions of the Minnesota Court of Appeals... 4 Decisions of the Minnesota Workers Compensation Court of Appeals... 4 Changing Times. Unchanging Values. 40 Years Strong. Compensability: What Did Dykhoff Change? By James S. Pikala Workers Compensation Practice Group James S. Pikala, Partner Richard C. Nelson, Partner Raymond J. Benning, Partner Christine L. Tuft, Partner Joseph M. Nemo III, Partner Susan K. H. Conley, Partner Susan E. Larson, Partner Charles B. Harris, Sr. Attorney Noelle L. Schubert, Associate Jennifer S. Homer, Associate Anna J. Kim, Associate Molly N. Tyroler, Associate Gregory B. Lawrence, Associate Kristen A. Nelson, Paralegal Renae J. Eckberg, Paralegal Melissa F. Mandyck, Paralegal Sara A. Hayek, Paralegal Brenda M. Stacken, Paralegal Lynne M. Holm, Paralegal Krista L. Carpenter, Paralegal Laura M. Stewart, Paralegal Beth A. Rosenberg, Paralegal Pass It On Please share this update with others. The Minnesota Supreme Court s decision in the case of Dykhoff v. Xcel Energy, Case No. A , Filed December 26, 2013, has generated significant comment and discussion. Many of those who have commented on the decision have concluded that the Supreme Court changed the law. Others have suggested that the Minnesota Legislature should be called into action to amend the statute so that, in some fashion, the effect of the Court s ruling can be muted or eliminated. It is submitted that the Supreme Court did not change the law. In fact, the Supreme Court, in some respects, simply restated the law as it has existed for 100 years. The Supreme Court felt it necessary to instruct the Minnesota Workers Compensation Court of Appeals that its analysis of the law was incorrect and that it needed to be guided in the right direction. From the outset, the Minnesota Workers Compensation Act required that an employee show that an injury arises out of and in the course of employment in order to be compensable. See Minn. Stat. Ch. 84A, Sec (1913). In addition, from the earliest times in which the Minnesota Supreme Court analyzed the statute, it concluded that there are two separate elements that are required by the statute. The in the course of element referred to the time, place, and circumstances under which the accident took place. The arising out of element required that there was some causal connection between the conditions created by the employer and the resulting injury. See Novack v. Montgomery Ward & Co., 158 Minn. 495, 198 N.W. 290 (1924). Over the course of the succeeding years, the Minnesota Supreme Court reiterated the fact that the statute had two elements that were to be continued on next page... About Our Attorneys Our group of workers compensation law attorneys has extensive experience representing employers, insurers, third-party administrators, and self-insured employers in all phases of workers compensation litigation. Contact us today to discuss your workers compensation needs. 500 Young Quinlan Building 81 South Ninth Street Minneapolis, MN Phone Fax Second Street Suite 300 Hudson, WI Phone Fax Good Litigators Good People Good Counsel

2 analyzed and satisfied separately. Furthermore, the Court continued its interpretation that the arising out of element required a showing of some causal connection in the form of an increased risk created by the work condition. See Nelson v. City of St. Paul, 249 Minn. 53, 81 N.W.2d 272 (1957). This interpretation by the Court, up until the Dykhoff decision, was most recently stated in the case of Gibberd v. Control Data Corporation, 424 N.W.2d 776 (Minn. 1988). In that case, the Court stated that the very words arising out of connoted a causal connection, whereas in the course of refers to the time, place and circumstances of the incident causing the injury. Id. at 780. In the late 1990 s, the Minnesota Workers Compensation Court of Appeals (WCCA) began to combine the two elements and focus on a concept of work-connectedness, which led the WCCA to establish a balancing test when analyzing the two concepts. For example, in Duchene v. Aqua City Irrigation, 58 W.C.D. 223 (WCCA 1998), the WCCA concluded that the employee had sustained a compensable injury when he simply stood up from a sitting position. The WCCA, in effect, applied a positional risk analysis, which in sum, held that if the injury occurred at work, it was compensable. This analysis was furthered in the case of Bohlin v. St. Louis County, 61 W.C.D. 69 (WCCA 2000). The WCCA created a balancing test by which it ruled that if one of the elements of the statute was weak and the other was strong, the injury would be compensable. The WCCA seemed to rely on the result and language in a case from the Minnesota Court of Appeals in United Fire & Casualty Company v. Maw, 510 N.W.2d 241 (Minn. Ct. App. 1994). In that case, the court relied on the Arthur Workers Compensation Update 2 Larson Treatise for the proposition that a certain level of work connection must be established for an injury to be compensable. The court, in United Fire concluded, based upon Larson, that the two elements are not applied independently; they are elements of a single test of work connection. Id. at 245. The WCCA s analysis of compensability reached its culmination in its decision in Dykhoff v. Xcel Energy, File No. WC (WCCA Nov. 30, 2012). The WCCA reversed a decision by Compensation Judge Brenden and concluded that the proper analysis of compensability requires the balancing of both the arising out of and in the course of elements to determine whether on the facts of each case, there is sufficient work connection. The WCCA found that the in the course of element was strong enough to outweigh the deficiencies in the arising out of element and reversed the denial of the claim and awarded benefits. In doing so, the WCCA not only cited to its prior decision in Bohlin, but also cited to United Fire and Casualty Company v. Maw, supra. The Minnesota Supreme Court reversed the decision of the WCCA. The Court specifically rejected the Bohlin test that had been created by the WCCA, since it failed to give effect to all parts of Minn. Stat , Subd. 1. The Court reiterated its prior statements that the plain language of the statute requires the employee to demonstrate that the injury arises out of and in the course of the employment. The workconnection test, as used by the WCCA, in the Supreme Court s judgment, would allow a court to consider the statutory elements as alternatives - that is, to balance the two factors against each other in a fashion that could relieve the employee of the burden of proof of one element if there is strong evidence of the other element. The Court concluded that because the work-connection test renders either the arising out of or the in the course of elements superfluous and a portion of the statute ineffective, we reject the Bohlin test. The Supreme Court also stated that in order to satisfy the arising out of element, there must be some showing of increased risk created by the conditions of employment. The Court implied that there must be some sort of special hazard to which the employee was exposed that led to the injury. The condition need not be obviously hazardous, but there must be some sort of risk of injury that was increased over what an employee would face in his or her everyday life. In a footnote, the Supreme Court indicated that an employee must show that the employment was the predominant factor in peculiarly exposing the employee - in a different manner and in a greater degree than if the employee had been pursuing his or her ordinary affairs - to a hazard. In rejecting the analysis of the WCCA, that the two elements of the statute - arising out of and in the course of - were elements of a single work connection, the Court seemed to be restating earlier pronouncements, which in its judgment, were founded in the statute. It would appear, therefore, that it was the WCCA that changed the law when it began to create the balancing test and conclude that the two required elements of the statute were part of the same idea of work connection. The Supreme Court has made it clear that an employee must establish both elements in order to prove compensability. When attempting to establish that an injury arose out of employment, the employee must establish that the injury resulted from some increased risk created by the conditions of employment. If the employee either fails to show that there was an increased risk, or fails to show that the injury was the result of an increased risk, the injury should be viewed as not compensable.

3 3 Case Law Update Decisions of the Minnesota Supreme Court Arising Out Of Dykhoff v. Xcel Energy, Case No. A , Filed December 26, For a discussion of this case, please refer to the article above. Psychological Injury Schuette v. City of Hutchinson, Case No. A , Filed March 5, The employee worked as a police officer for the City of Hutchinson and responded to an incident involving a 12-year-old girl who fell from a pick-up truck and hit her head on the pavement. After trying to resuscitate the girl, the employee learned that he knew the girl and her family. The employee drove the ambulance to the hospital, and the girl was airlifted to another hospital, where she was pronounced dead. The employee testified that, while at the hospital, he felt sick and experienced dry heaves. He further testified that after the incident, he experienced a variety of symptoms including difficulty sleeping, nightmares, anxiety, panic, mood swings, and headaches. He did not seek treatment until three years after the incident, and was diagnosed with chronic anxiety, post-traumatic stress disorder, and depression. In November 2008, he fell out of a loft bed and injured his shoulder and back. He claimed that these injuries were the result of his PTSD, which caused him to get out of bed and run while sleeping. The compensation judge and the WCCA held that the PTSD condition represented a mental disability that is not compensable under the Minnesota Workers Compensation Act. The WCCA relied on Lockwood v. ISD No. 877, 312 N.W.2d 924 (Minn. 1981), which held that a mental injury caused by job-related stress without physical trauma is not compensable under Minnesota s Workers Compensation Act. The Supreme Court (Justice Lillehaug J. Anderson taking no part) affirmed. The Court held that the compensation judge s determination that the claimant did not sustain a physical brain injury was supported by substantial evidence and that the compensation judge was free to choose among conflicting medical experts opinions. See Ruether v. State, 455 N.W.2d 475, 478 (Minn. 1990). The compensation judge adopted the opinions of the employer s experts, and the Court concluded those experts were qualified medical professionals well versed in the study of PTSD whose opinions were based on professional experience and a thorough examination of the scientific literature. On the basis of stare decisis, the Supreme Court also rejected the employee s request that it overrule the Lockwood decision. The Court noted that the Lockwood and Johnson cases expressly left it to the Legislature to make the policy determination as to whether to expand the Workers Compensation Act to include a mental-mental injury. The Court noted that only recently did the Legislature act on this issue, and only prospectively. Finally, the Supreme Court held that the Lockwood decision did not violate the employee s equal protection rights. Mark Your Calendar! 2014 Workers Compensation Seminars Thursday, June 12, 2014 McNamara Alumni Center, University of Minnesota Minneapolis, Minnesota Thursday, June 19, 2014 Crowne Plaza, Wauwatosa, Wisconsin More information will be available soon!

4 4 Decisions of the Minnesota Court of Appeals Common Enterprise LeDoux v. M.A. Mortenson Company 835 N.W.2d 20 (Mn. Ct. App. 2013). The employee was injured while working for a subcontractor, Northland Concrete & Masonry Company, when he fell through an unmarked hole in a roof of a commercial building being built under the direction of the general contractor, M.A. Mortenson Company. The employee received workers compensation benefits from Northland and subsequently sued Mortenson, alleging that his fall resulted from its negligent failure to warn him about the hole. The district court granted a summary judgment motion brought by Mortenson under Minn. Stat , subds. 1-4, determining the common-enterprise doctrine barred the employee from obtaining damages from Mortenson after he elected workers compensation benefits through Northland. The Minnesota Court of Appeals (Judges Bjorkman, Ross, Kirk) reversed and remanded, finding that features of a basic oversight-type relationship between a general contractor and one of its subcontractors does not create the kind of common enterprise under Minn. Stat , subds. 1-4, that bars a negligence action against the general contractor by a subcontractor s employee who received workers compensation benefits for injuries sustained on the construction site. While it is true that recipients of workers compensation benefits may not obtain damages from a third party when the worker s employer and the third party are engaged in furtherance of a common enterprise, in this case, the parties were not engaged in a common activity, other than the general sense that they were trying to complete the building of a structure. Decisions of the Minnesota Workers Compensation Court of Appeals Aggravation Small v. St. Louis Park Plaza Healthcare Center, File No. WC , Served and Filed January 2, The employee claimed an injury to her right knee as a result of assisting a patient who had fallen out of a wheelchair. She reported a tearing sensation and felt discomfort. The insurer initially accepted liability for the injury and paid medical and indemnity benefits in excess of one million dollars, including multiple surgeries, wound treatment, psychological treatment, and permanent partial disability benefits. Eventually, the insurer obtained an IME by Dr. D Amato, who opined that the employee s original injury was temporary in nature and nothing more than a strain. He further stated that the surgeries that were performed were not related to the work injury, but rather to the employee s preexisting degenerative condition and previous right knee injuries. The parties attempted to settle the matter on different occasions, including entering into two prior stipulations for settlement. The employer and insurer never waived any of their defenses, including primary liability. Ultimately, the matter was litigated on multiple issues including the nature and extent of the right knee injury, a consequential left knee injury, and consequential psychological issues. Compensation Judge Johnson found in favor of the employer and insurer and held that the effects of the work injury were temporary in nature, relying on Dr. D Amato s opinion. She denied any and all ongoing entitlement to benefits or medical treatment. On appeal the employee argued that the prior stipulations for settlement in 2002 and 2003 accepted primary liability for a permanent injury, and therefore, there could not be any dispute that the employee sustained a permanent injury. The WCCA (Judges Hall, Cervantes and Stofferahn) disagreed. It affirmed the compensation judge s determination and reiterated the well-known principle that an employer and insurer may deny liability on a case where benefits have

5 5 been paid as long as the employee is not prejudiced (citing Zontelli v. Smead Mfg. Co., 343 N.W.2d 639 (Minn. 1984); Hoch v. Duluth Clinic, slip op. (WCCA August 3, 2007); Minn. Stat ). The WCCA found that the employer/insurer s payment of benefits did not amount to an admission of liability for a permanent injury. Arising Out Of Weismann v. Tierney Brothers Construction, File No. WC , Served and Filed October 18, The employee was working in Johnston, IA and was headed back east on the interstate toward Grinnell, where he, the employer, and other employees were staying. The employer and several employees stayed in Iowa for several days to a week during their work activities before returning to Minnesota. The employer paid for all food and lodging during these trips, and the employee and the employer often shared a hotel room. On the date of injury, during the trip back to Grinnell, the employee and employer came upon the scene of an accident, in which vehicles were on fire. The employer was driving and the employee was the only passenger. The employee asked the employer to stop the car. The employer indicated that they should keep going, but the employee again yelled for the employer to stop the car. The employer stopped the car and they both ran toward the accident. The employee saw a woman in a pinned vehicle screaming for help. He assisted the woman, who was badly burned, out of the car. The employee claimed entitlement to benefits as a result of a pulmonary injury and also post-traumatic stress disorder (PTSD) allegedly resulting from his rescue of the trapped motorist. The employer and insurer denied liability, alleging in part that the employee had not been acting in the course and scope of his employment when the alleged injuries occurred. The employer and insurer argued that the employee deviated from the boundaries of his employment when he rescued the motorist from the burning car. Compensation Judge Behounek determined the employee s injury arose out of his employment and awarded benefits. The WCCA (Judges Wilson, Milun and Cervantes) affirmed. There are only three Minnesota Supreme Court cases dealing directly with workers compensation coverage for injuries occurring during rescues by employee-bystanders, and the law regarding coverage for such rescues is complicated at best. In the present case, the WCCA indicated that the employee was a traveling employee, already in a category of expanded workers compensation coverage. The duties of his employment placed him on the road on a regular basis, and it was reasonably foreseeable that workers in jobs involving substantial driving would come upon accidents. When they do so, it is similarly foreseeable that they may be moved to render aid. The employee was not required to leave the road to render assistance, but by his actions, the employer had implicitly directed the employee to help at the accident scene. The compensation judge s conclusion that the employee s injuries arose out of and in the course of his employment was affirmed. Attorney Fees David v. Bartel Enterprises, File No. WC , Served and Filed October 23, The employee filed a medical request for payment of his surgery and hospitalization. The employer and insurer disputed certain expenses related to the hospitalization, and in their medical response, provided that they were engaged in settlement discussions with the providers. Thereafter, the parties entered into a partial stipulation for settlement in which outstanding medical expenses were resolved via settlement. The employee s attorney filed a statement of attorney fees and costs, including contingent Roraff fees of $36,800 based upon recovery of medical expenses of $233,000, and payment of partial reimbursement of fees to the employee according to Minn. Stat , subd. 7. The employer and insurer objected to the statement of attorney s fees and asserted the claimed fee exceeded the maximum fees allowed by Minn. Stat The employer and insurer argued Irwin invalidated the 25/20 formula in Minn. Stat , subd. 1. Compensation Judge LeClair-Sommer determined that the employee s attorney provided 13.1 hours of legal services and noted that there were no narrative reports, depositions, or independent medical examinations required, and in particular, since the treatment providers and insurer settled the medical treatment expenses and the employee s attorney was not involved in the negotiations, a contingency fee of $13,000, based upon medical treatment expenses under Minn. Stat , subd. 1, is adequate. The compensation judge further held that an award of fees greater than $13,000 was not warranted. The employer and insurer appealed. The WCCA (Judges Hall, Stofferahn and Cervantes) affirmed, and held the employee s attorney was entitled to attorney fees pursuant to the 25/20 formula in Minn. Stat , subd. 1(a), without application of the Irwin factors and cited Cahow v. Brookdale Motors, 61 W.C.D. 427 (WCCA 2001) (holding that the Irwin factors may not be applied to reduce the otherwise available statutory fee), and Shamp v. Daybreak Foods, No. WC (WCCA June 25, 2004) (holding the employee s attorney is entitled to

6 6 attorney fees that are calculated using the 25/20 formula as applied to the ascertainable value of the disputed treatment, without regard to the Irwin analysis). The WCCA specifically held that Irwin did not invalidate the remaining mandates and procedures of Minn. Stat The compensation judge strictly applied the 25/20 formula to the total amount of medical bills involved, and she determined that the employee s attorney was not entitled to excess fees beyond the $13,000 as provided by the statutory cap. The WCCA declined to apply the Irwin factors to each contingent fee case, and deferred to the legislature to address the attorney fee formula and the payment procedures. This case is on appeal to the Minnesota Supreme Court. Causal Connection Larson, Betty v. Five County Mental Health Center, File No. WC , Served and Filed July 23, On December 30, 2008, the employee slipped and fell near her car, which was parked in the employer s lot, injuring her back. She had previously been diagnosed with degenerative disc disease of the cervical spine, and had left her previous job due to problems relating to this condition. Liability for the fall was admitted, but the employer contended that the employee was not injured as a result of the fall. The employee did not immediately seek medical treatment for the fall, and did not first treat for low back pain until August 20, The first reference to the employee s fall in her medical provider s records was not until September 16, The employee s doctor took her off work beginning on September 16, 2009; the employee did not work at all after that date. In March 2011, the employee s treating provider recommended significant restrictions, that the employee was incapable of even low stress jobs, and that her prognosis for recovery was poor. In May 2011, the employee was diagnosed with chronic pain syndrome and depression, and the treating provider opined that these diagnoses were directly and causally related to the December 2008 fall. The employee was rated as having a 7 percent permanent partial disability rating as a result of a lumbar sprain, and a 25 percent impairment due to her resulting psychological condition. Compensation Judge Hagen held that the employee had sustained a permanent lumbar back injury which resulted in chronic pain syndrome, and that the employee then developed a consequential mental injury in the form of depression. He determined that the employee was permanently and totally disabled, and that the work injury and the consequential injury were substantial contributing causes to the PTD. The WCCA (Judges Wilson, Milun and Hall) affirmed. The WCCA held that the compensation judge s choice of which expert opinion to rely on was not unreasonable, and that the findings of the expert opinion relied on provides substantial evidence to support the finding of PTD. The WCCA further rejected the employer s argument that there could be no consequential psychological injury when the employee s initial injury was not severe enough to seek medical treatment, and where no work time was missed. Bowman v. A & M Moving & Storage Company, File No. WC , Served and Filed August 14, The employee sustained an admitted work-related injury to his low back, and various benefits were provided including medications (Ambien, Celebrex, Oxycodone, Robaxin, and Vicodin). The employee underwent bilateral L4-5 foraminotomy/ discectomy and he requested a second procedure due to ongoing pain. An independent medical examination was obtained and provided that a discogram was not needed. The parties agreed to a pain clinic assessment. At the pain clinic, the employee reported a history of alcohol abuse and chemical dependency. The evaluator recommended pain management but noted that the employee was at risk for misuse of his prescribed medication. Still, prescriptions for Celebrex, Robaxin, and Oxycodone were renewed. A supplemental independent medical examination was obtained and indicated that surgery was not advised and narcotic medication should be reduced. The employer and insurer denied the request for additional surgery. Compensation Judge Cannon appointed a neutral physician. Prior to the hearing, the employee was found dead in his apartment. His death certificate listed the cause of death as Oxycodone toxicity and the manner of death as accident. The Medical Examiner s office ruled out natural causes, homicide, and suicide as the manner of death. The personal representative petitioned for dependency benefits. The employer and insurer denied the petition and asserted that the deceased employee s death was not causally related to his work injury. The deceased employee s physician testified that the employee did not appear to be med-seeking. Another medical expert testified that he could not determine the reason for the deceased employee s high level of Oxycodone. Judge Cannon found that the deceased employee s death was causally related to the work injury, and awarded payment to the deceased employee s estate. The WCCA (Judges Milun, Stofferahn and Hall) affirmed and held the judge s assessment of the medical evidence on a causal

7 7 relationship between the employee s pain medication for his work injury and his death by Oxycodone toxicity constituted sufficient evidence to support the findings that the employee s death was more likely than not due to the accidental overdose of Oxycodone. This decision was summarily affirmed by the Minnesota Supreme Court on January 13, Credit Stevens v. S.T. Services, File No. WC , Served and Filed September 9, For a summary of this case, please refer to the Permanent Total Disability category. Death Bowman v. A & M Moving & Storage Company, File No. WC , Served and Filed August 14, For a summary of this case, please refer to the Causal Connection category. Intoxication Bitterman v. Safe Way Bus Co., Inc., File No. WC , Served and Filed October 31, The employee sustained a work injury and it was subsequently discovered that his blood alcohol level was 0.29 at the time of the injury. Compensation Judge Marshall determined that the preponderance of the evidence showed that the employee suffered a temporary injury as the result of his work activities but that the preponderance of the evidence failed to show that the employee s intoxication was a proximate cause of that injury. The employer and insurer argued that substantial evidence does not support a finding of an injury arising out of the employment. Minn. Stat indicates that if an injury was intentionally selfinflicted or the intoxication of the employee is the proximate cause of the injury, then the employer is not liable for compensation. The WCCA (Judges Hall, Milun and Cervantes) acknowledged there was evidence presented to support the employer and insurer s position that the employee may have been intoxicated at the time of his injury. However, it is not enough for the intoxication to be a contributory cause of the injury; intoxication must be the proximate cause. Proximate cause is a high legal standard that is difficult to prove. Because substantial evidence supported the compensation judge s conclusion that the employee s intoxication was not the proximate cause of the employee s temporary injury, the WCCA affirmed. Jurisdiction Hartwig v. Traverse Care Center, File No. WC , Served and Filed December 23, For further information on this case, please refer to the Permanent Total Disability category. Medical Issues Ounasser v. Golden Living Center Rochester West, File No. WC , Served and Filed September 4, The employee sustained a right shoulder and neck injury on October 20, She was diagnosed with a cervical strain and was put on light duty. She underwent 13 sessions of physical therapy from December 2009 through February 2010, approximately an eight-week period. She was prescribed an additional four weeks of physical therapy. In March 2010, she was prescribed additional physical therapy. The employer and insurer did not approve treatment. The employee was also treated with a facet injection in later March, and a repeat corticosteroid injection was recommended. This was also not approved by the employer and insurer. The employee filed a medical request for approval of injections and physical therapy. The employer and insurer denied the employee s requests as not reasonable, necessary, or causally related to the work injury. The compensation judge determined the employee had not healed from her work injury and was entitled to treatment provided through the date of the hearing, as well as ongoing treatment, and that the treatment was causally related to the work injury. The WCCA vacated the judge s finding regarding ongoing medical care and affirmed the remainder of the judge s decision. The employee continued to allege neck pain and was recommended chiropractic treatment, massage therapy and acupuncture. She filed a medical request for the treatment recommended and did not request a departure from the treatment parameters in that request. The employer and insurer denied the treatment was reasonable or necessary and asserted it was contrary to the treatment parameters (Minn. R , subp. 3B(1)(f)). The employee continued treatment and underwent 21 sessions of conservative treatment from May through September While additional facet joint injections were also performed, they increased the employee s pain. Physical therapy did not improve the employee s symptoms. Compensation Judge Hagen found that the employee s work injury was a substantial contributing factor to her ongoing symptoms, that treatment was reasonable and necessary, that treatment reduced subjective reports of pain and improved functionality in activities of daily living, and that the employee had

8 8 met the standard for a departure from the treatment parameters. The WCCA (Judges Milun, Wilson and Cervantes) affirmed. The WCCA found substantial evidence in the record to support the compensation judge s finding that the disputed chiropractic care and therapeutic massage were necessary and reasonable to cure and relieve the employee from the effects of the work injury. The employer and insurer argued that the employee suffered from chronic pain syndrome, a condition for which the treatment parameters prohibit passive care. Additionally, the employer and insurer argued on appeal that the judge improperly expanded the issues to include a departure from the treatment parameters, since a departure was not raised by the employee at the medical conference or at the hearing. Further, the judge did not apply the correct parameters for chronic pain conditions. The WCCA held that the judge did not err by addressing and awarding the treatment. Notice Linder (Everth) v. Regis Corporation, File No. WC , Served and Filed August 29, The employee sustained an injury to her lumbar spine on December 7, 2006, while moving a storage bin filled with checks. She reported the injury to her supervisor, but did not fill out a First Report of Injury, not wanting to make a workers compensation claim for fear that she would lose her job if she did so. She treated shortly after, but no work ability recommendations were made. She took a week off from work, and testified that when she returned she told her supervisor that her back still hurt from when she was moving the bin. She did not treat again until February 25, 2007, and then continued to treat at various times thereafter. After an initial physical therapy appointment in March 2007, the employee formally reported the injury to the employer s claim manager. She underwent surgery to remove a herniated disc on June 21, 2007, with an ultimate diagnosis of a herniated disc L5-S1 on the left side. She underwent an independent medical evaluation on August 6, 2009, and the IME doctor opined that there had been no work injury, partially due to the lack of any history of injury being noted in the contemporaneous medical records. The employer and insurer challenged the employee s claim of a compensable injury, and further alleged that the employee did not give proper statutory notice of an injury. Compensation Judge Ertl held that the employer had proper notice by the employee telling her supervisor about the alleged injury, seeking medical treatment shortly thereafter, and by the fact that the employee received help with lifting and other work activities following the date of injury. The WCCA (Judges Hall, Milun and Cervantes) affirmed the finding that the employer had actual knowledge of the alleged injury as required by Minn. Stat , reiterating the holding of Denais v. Minn. Mining & Mfg., 69 W.C.D. 206 (WCCA 2009) that actual knowledge is information on which to base inquiry if the employer so desirers or, at a minimum, information such as a reasonable person would naturally act upon in the ordinary course of human affairs. Here, the WCCA agreed with the compensation judge that the combination of the employee telling a supervisor about the injury shortly after it occurred, discussing it again following her return to work, and seeking help with her job duties following the injury combined to provide the employer with actual notice of the injury, regardless of the fact that no formal report was made at that time. Permanent Total Disability Larson v. Five County Mental Health Center, File No. WC , Served and Filed July 23, For further information on this case, please refer to the Causal Connection category. Stevens v. S.T. Services, File No. WC , Served and Filed September 9, The employee sustained two work-related injuries while employed by the employer. The parties entered into a settlement agreement that provided that the employee had been permanently and totally disabled from gainful employment since the date of injury. The employee was to continue to receive PTD benefits on an ongoing basis. Several years later, the employer and insurer filed a petition to discontinue PTD benefits on the grounds the employee was capable of gainful employment after obtaining evidence establishing he had earned substantial wages while working in Alaska the previous three years while receiving PTD benefits. The case was heard en banc. The majority (Judges Wilson, Stofferahn and Cervantes) affirmed Compensation Judge Marshall s determination that the employee was not permanently and totally disabled and the judge s denial of the employer and insurer s claim for reimbursement for benefits allegedly received by the employee in bad faith. The compensation judge concluded that the employee was not PTD while he was employed in Alaska and that he had not established that he was PTD as a substantial result of his work injury thereafter. The employee contended that his job was specifically tailored to accommodate the restrictions resulting from his

9 9 work injury and that the employer and insurer did not meet their burden to show that he was capable of sustained gainful employment or that he could qualify for any other work. The majority determined that the compensation judge could reasonably conclude that the employee s work established an evidentiary basis for discontinuance of PTD benefits. Whether or not the work was tailored to meet his restrictions, the work paid quite well, and the employee performed it for nearly three years. The job qualified as sustained gainful employment for the duration of the employee s employment. The compensation judge also concluded that the employee was not PTD during his recent employment and that the employer and insurer had mistakenly paid the employee benefits during this period. However, the employer and insurer were not entitled to reimbursement of the benefits paid, in that the employee did not receive those benefits in bad faith. The employee testified that he informed the workers compensation insurance investigator about his employment annually, and the employer and insurer offered no evidence to the contrary. The majority concluded the judge s decision on bad faith was reasonable and it affirmed. This case is on appeal to the Supreme Court and will be argued on March 10, Judge Hall wrote a dissenting opinion, which Judge Milun joined, indicating that he was not persuaded that the previous determination by the court conferred jurisdiction to act where the plain language of the statute denied the court jurisdiction. He indicated the court should not be in the business of fashioning remedies for what it or the parties believe was an omission by the legislature, and that doing so usurps the authority of the legislature and upsets the balance of negotiations among members of the Workers Compensation Advisory Council, which makes recommendations for statutory changes. Judge Hall would vacate and dismiss. Hartwig v. Traverse Care Center, File No. WC , Served and Filed December 23, The employee had sustained multiple admitted injuries arising out of and in the course of her employment with the employer, and was permanently and totally disabled under the applicable statute and rules. She began receiving Public Employees Retirement Association (PERA) retirement benefits on August 1, The employer and insurer alleged that they were entitled to offset the PERA benefits against the ongoing permanent total disability benefits. The employee argued that the PERA benefit payments were from her own previous contributions into a retirement account, and that reducing her PTD benefits because of these contributions was a violation of her right to equal protection and a violation of her constitutional rights. Compensation Judge Hagen held that the employer and insurer were entitled to an offset under Minn. Stat , subd. 4 and Minn. R , subp. 4. The WCCA (Judges Hall, Milun, and Cervantes) affirmed that the employer and insurer could reduce the amount of their payments by the amount being received by the employee from her PERA benefits. The WCCA agreed with the employee that Minn. R , subp. 4 had no force and effect in this matter, as it was put into place to specify the procedure used for claims under Minn. Stat , which was repealed in The WCCA agreed with the decision of the compensation judge that it did not have jurisdiction to address the employee s constitutional argument, and further held that the WCCA also did not have that jurisdiction. The WCCA held that the PERA benefits were governmental retirement pension benefits, and such an offset was allowed under Minn. Stat , subd. 4. Ekdahl v. Independent School District #213, File No. WC , Served and Filed December 24, The employee sought wage loss benefits. He had retired from teaching and applied for a Teachers Retirement Act (TRA) accelerated retirement annuity. Compensation Judge Johnson found that the employee was permanently and totally disabled, which was not appealed. The compensation judge further held that the self-insured employer may not reduce the employee s PTD benefits by the amount of the TRA retirement benefits paid to the employee, pursuant to Minn. Stat , subd. 4. The WCCA (Judges, Cervantes, Milun and Hall) reversed and held that the selfinsured employer is entitled to reduce the employee s PTD benefits by the amount of TRA benefits based on Minn. Stat , subd. 4, which indicates that after a total of $25,000 of PTD has been paid, the amount of weekly compensation benefits being paid by the employer shall be reduced by the amount of any disability benefits being paid by any government disability program, including old age and survivor insurance benefits. The word any in front of the reference to old age and survivor insurance benefits was meant by the legislature to include all government old age (retirement) benefits in the offset.

10 10 Psychological Injury Larson v. Five County Mental Health Center, File No. WC , Served and Filed July 23, For further information on this case, please refer to the Causal Connection category. Settlement Wiehoff v. Independent School District Number 15, File No. WC , Served and Filed January 17, The employee sustained an admitted injury to her cervical spine in In 2011 the parties entered into a full, final and complete settlement, leaving open only future medical claims. Subsequently, the parties proceeded to hearing before Compensation Judge Brenden on the employee s request for approval of cervical fusion surgery. This surgery was awarded in As of 2013 the employee had not proceeded with surgery and was not certain whether she would proceed with the surgery. In 2012 the employee changed attorneys and became represented by Vince Petersen. The parties subsequently negotiated a settlement to close out all medical treatment, past, present and future, in exchange for $110,000. The stipulation was submitted to Compensation Judge Brenden, who denied approval of the stipulation. The judge indicated that she had concerns about the fairness and reasonableness of the stipulation, and that she considered it highly unlikely that the employee would use the money for medical treatment. The judge noted that this settlement agreement, if approved, would unfairly shift the medical costs to a private insurer or government agency. The employee appealed the denial of approval of the stipulation. The WCCA (Judges Hall, Stofferahn and Cervantes) affirmed the disapproval of the stipulation. The WCCA noted that Minn. Stat , subd. 2 provides that settlements, when both parties are represented, are presumed to be reasonable, fair, and in conformity with the Workers Compensation Act, except where they seek to close out, on a full, final and complete basis, an employee s right to future medical or rehabilitation benefits. In cases containing a close-out of medical or rehabilitation benefits, the stipulation must be approved by the commissioner or a compensation judge, and the compensation judge has discretion in approving or disapproving a proposed settlement. The WCCA determined that there is no requirement of a formal hearing on disapproval of a stipulation, and that the judge had sufficient information available to support her determination. This included the outcome of the 2011 hearing where it was concluded that the employee had a work injury serious enough to warrant a fusion surgery. The WCCA also concluded that consideration of cost shifting is a valid consideration for a compensation judge especially in the case of medical costs where emergency treatment would not be denied by a hospital. The WCCA concluded that the circumstances disclosed in this matter supported the judge s disapproval of the stipulation. Superseding Intervening Cause Couette v. Parsons Electric, LLC, File No. WC , Served and Filed September 20, The employee sustained a significant injury to his left ankle on January 23, The employer and insurer admitted liability for the left ankle injury, and the employee underwent surgery on January 30, Following this surgery, the employee was told that he had to wait six weeks before being able to walk on the ankle again. On February 10, 2012, the employee was told to continue non weight-bearing on his left ankle through March 12, He began weight-bearing sometime around that date, but continued to have pain with weightbearing and difficulty performing weight-bearing tasks. A revision surgery was recommended on March 30, Work restrictions, including working from a seated or stationary position, were continued. The employer and insurer conducted surveillance during the course of the case. Initial surveillance from April 10 and 11, 2012, showed the employee engaged in substantial landscaping activities in violation of his restrictions. On April 25, 2012, the employee underwent a revision procedure to the left ankle, due to failed syndesmotic fixation after the initial surgery. Again, the employee was to remain non weight-bearing on his left ankle for a period of six weeks, until June 11, Additional surveillance on June 5, 2012, showed the employee walking around his yard without crutches and weight-bearing on his left ankle. On June 8, 2012, the employee s treating physician allowed the employee to begin weight-bearing, but to continue with the previously provided restrictions, including performing only sedentary activities. Surveillance from June 12, 2012, showed the employee ambulating for a significant amount of time throughout the day, performing numerous activities which were outside of the sedentary restrictions. A third surgical procedure was recommended on or about July 23, 2012, including a left ankle fusion. At the request of the employer and insurer, Dr. Paul Wicklund issued

11 11 an independent medical evaluation report. Dr. Wicklund agreed that the recommended ankle fusion was necessary, but determined that the need for the surgery was due to superseding, intervening events following the initial work injury, specifically the employee s lack of adherence to provided restrictions. Compensation Judge LeClair-Sommer denied the employee s claim for the third surgical procedure, finding that the evidence showed that the employee had failed to comply with the activity restrictions of his treating provider on numerous occasions, and that his conduct represented unreasonable and negligent behavior. The WCCA (Judges Hall, Stofferahn and Milun) affirmed. The WCCA reaffirmed that the determination of whether something is a superseding, intervening cause of disability or need for medical treatment is a question of fact for the compensation judge under Rohr v. Knutson Construction Co., 305 Minn. 26, 232 N.W.2d 233, 28 W.C.D. 23 (1975). Here, the WCCA determined that the compensation judge s determination that the employee s activities were not reasonable in light of the employee s condition was supported by the evidence. See past newsletters online at: Click on the Resources section of the Workers Compensation Practice Area Arthur Chapman s Workers Compensation Update is published by the attorneys in the Workers Compensation Practice Group to keep our clients informed on the ever-changing complexities of workers compensation law in Minnesota. The experience of our workers compensation attorneys allows them to handle all claims with an unsurpassed level of efficiency and effectiveness. Contact any one of our workers compensation attorneys today to discuss your workers compensation claims needs. Disclaimer 500 Young Quinlan Building 81 South Ninth Street Minneapolis, MN Phone Fax This publication is intended as a report of legal developments in the workers compensation area. It is not intended as legal advice. Readers of this publication are encouraged to contact Arthur, Chapman, Kettering, Smetak & Pikala, P.A. with any questions or comments.