The presumption was originally allowed to sunset on December 31, 2021, but the legislature reenacted the presumption at the beginning of the 2022 legislative session with a sunset clause of 11:59 p.m. on January 13, 2023.  Unlike 2022, there appears to be no desire on the part of the 2023 legislature to extend the COVID-19 presumption.

Bottom Line

The end of the COVID-19 presumption does not foreclose future claims for work related COVID-19 personal injuries. With the lights being turned off on the COVID-19 presumption for workers’ compensation compensability for covered employment groups, all employees now have the burden of proving all elements necessary to collect workers’ compensation benefits relating to alleged workplace COVID-19 exposure. Employees must prove that the illness arose out of and in the course of employment. Felhaber will continue to monitor the situation and update you as developments warrant.

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These cases involved employees that sustained work related injuries in which medical marijuana was recommended to treat chronic pain that resulted from these injuries. The employers and insurers agreed that the medical marijuana was a reasonable treatment but denied the claims on the basis that marijuana was an illegal substance under federal law. In both cases, Workers’ Compensation Judges ordered that medical marijuana was reasonable and necessary medical treatment and therefore, payable under Minnesota Workers’ Compensation Law.  The case was appealed to the Workers’ Compensation Court of Appeals where the WCCA affirmed the award of reimbursement for medical marijuana costs but did not address whether an employer and insurer could be ordered to reimburse an employee for medical marijuana in violation of federal criminal law because it was outside the jurisdiction of the WCCA.

The case was appealed to the Minnesota Supreme Court which found that federal law pre-empted state laws that allow its use, stating that state laws cannot be used to compel employers and insurers to engage in conduct that would violate federal criminal law.  The Court was not persuaded by the argument that payment should be ordered under state law since the likelihood of federal criminal prosecution was unlikely in these scenarios. The Court went on to state that for medical marijuana to be payable as treatment for work injuries, an act of Congress would be required to change Federal Law.

Bottom Line

In declining to take up these cases, SCOTUS accepted the recommendation from the Justice Department to reject these cases, arguing that broader marijuana policy choices were better left up to Congress or the executive branch. Accordingly, the law in Minnesota is that employers and insurers are not required to reimburse employees for the cost of medical marijuana under the workers’ compensation statute even if it is reasonable and necessary to treat the effects of the work injury.

The post Minnesota Supreme Court Ruling on Medical Marijuana Stands as the US Supreme Court Declines to Take Up the Issue appeared first on Felhaber Larson.

Bottom Line

The law extends the presumption that certain healthcare workers and first responders who test positive for COVID-19 caught the virus due to workplace exposure and are thus entitled to workers’ compensation benefits.  The law became effective on February 4, 2022, and is not retroactive to January 1, 2022. Therefore, workers in the covered work groups who test positive for COVID-19 while the presumption was not in effect have the burden of proving their exposure occurred in the course of employment.  During the debate on the floor of the legislature, the possibility of expanding the presumption to teachers was discussed but not acted upon.  We will keep you informed of any additional changes to the workers’ compensation act that may come out of the legislature.

The post The Minnesota Legislature Brings Back the COVID-19 Presumption appeared first on Felhaber Larson.

Bottom Line

While the sun going down on the COVID-19 presumption effectively ends presumed workers’ compensation COVID-19 injuries for covered occupations when the calendar turns to 2022, it does not foreclose future claims for work related COVID-19 personal injuries.  Without the presumption, all employees will have the burden of proving all elements necessary to collect workers’ compensation benefits for contracting the COVID-19 illness, specifically that the illness arose out of and in the course of employment.  Also, given the drastic increase in cases and hospitalizations, the legislature may take up the issue of renewing the COVID-19 presumption for certain healthcare workers’ and first responders when it reconvenes at the end of January.  Felhaber will continue to monitor this situation and update you as developments warrant.

The post Letting The Sun Go Down On The COVID-19 Presumption appeared first on Felhaber Larson.

Also, for injuries from and after October 1, 2021, the minimum compensation rate was raised from $130.00 per week to 20 percent of the maximum weekly compensation payable or the employee’s actual average weekly wage, whichever is less.  The minimum compensation rate has been $130.00 per week since 2000 and the minimum rate almost double to $233.38 or 20 percent of the current maximum compensation rate $1,166.88.  The legislation still provides that if the average weekly wage is lower than the minimum compensation, the employee’s average weekly wage will be the compensation rate.

Governor Walz signed this legislation into law on April 26, 2021.

Bottom Line

The legislation effectively ends the COVID-19 presumption for covered occupations as of December 31, 2021 but does not foreclose future claims for work related COVID-19 personal injury claims.  Without the presumption, all employees will have the burden of proving the elements necessary to collect workers’ compensation benefits for contracting the COVID-19 illness, specifically that it arose out of and in the course of employment.

The post Minnesota extends sunset for COVID-19 presumption and raises the minimum compensation rate appeared first on Felhaber Larson.

The details of workers’ compensation liability vary from state to state; however, the basic definition of a workplace injury is a personal injury that arises out of and in the course of employment.  The employee bears the burden of proving a work-related personal injury. If an employer mandates that its employees receive the COVID-19 vaccine as a condition of continued employment, it is likely to be considered a compensable injury if the employee suffers a severe reaction.  In other words, an employer who demands COVID-19 vaccinations of employees has in turn made that activity a requirement of employment and any adverse reactions resulting would likely be a compensable work injury.

The Minnesota Workers’ Compensation Act, in its definition of personal injury seems to leave no question as to the compensability of a mandatory vaccination under Minn. Stat. § 176.011, subd. 16:

“An injury or disease resulting from a vaccine in response to a declaration by the Secretary of the United States Department of Health and Human Services under the Public Health Service Act to address an actual or potential health risk related to the employee’s employment is an injury or disease arising out of and in the course of employment.”

Under this statutory framework, it would appear in the case of COVID-19, which has been declared a public health emergency, the mandatory administration of the COVID-19 vaccine as a requirement of employment would be a compensable work injury under the Minnesota Workers’ Compensation Act.  Even without such a specific definition, employers would have difficulty arguing that adverse reactions to the COVID-19 vaccination did not arise out of and in the course of employment if the employee had no choice but to be vaccinated as a requirement of employment.  An employer who requires its employees to receive a COVID-19 vaccination could be on the hook for medical treatment, lost time, and if the reaction results in long-term illness or death, the employer could be on the hook for ongoing wage loss, permanent partial disability, and potentially dependency benefits.  The employer could also have exposure for additional conditions that may develop as a result of adverse reactions to the vaccine.

What if the vaccine is not mandatory, but is only encouraged?

The outcome is less clear when the vaccination is encouraged and offered on a voluntary basis.  In some instances, this could be considered a work-related situation that arises out of and in the course and scope of employment.  Several factors that may be considered in determining whether an injury from encouraging employees to take the COVID-19 vaccine is work-related includes:

1. Whether the vaccination directly or indirectly benefited the employer;
2. Whether the offering of the vaccine was within the terms, conditions, or customs of the employment;
3. Whether the vaccination event was employer-sponsored;
4. Whether the offering of the vaccine was unreasonably reckless or created excessive risk; and,
5. Whether the offering of the vaccine occurred on the premises of the employer.

Minnesota has a provision in the Workers’ Compensation Act that may provide guidance to employers who encourage employees to vaccinate or to participate in voluntary, employer- sponsored health promotion programs where a vaccination is offered.  Minn. Stat. § 176.021, subd. 9 provides that “injuries incurred while participating in voluntary recreational programs sponsored by the employer, including health promotion programs, athletic events, parties, and picnics, do not arise out of and in the course of the employment even though the employer pays for all of the costs of the program.”  This exclusion does not apply if employees are ordered to participate in the program.  The Minnesota Workers’ Compensation Court of Appeals has held that the determinative factor is not whether an employee is encouraged to participate, but whether the employer required participation.  If an employer seeks refuge from workers’ compensation liability by simply encouraging employees to obtain the vaccination and/or provide it through its health wellness program, it must ensure that that the employee’s decision to vaccinate or to participate in an employer-sponsored vaccination event is entirely voluntary.  There cannot be any hint that employees are ordered to participate in such a program.

Bottom Line

Employers must balance their desire for a safe workplace by requiring vaccinations with the risk of requiring vaccinations and the potential workers’ compensation implications if an employee experiences a serious reaction from the vaccine.  At this time, it is difficult to quantify the exposure and cost of a workers’ compensation claim relative to exposure and communication of the disease as opposed to exposure and cost for adverse reactions to the vaccination.  A key ingredient in this balancing approach is the realization that any directive by employers to employees that they must vaccinate against COVID-19 will likely give rise to workers’ compensation liability in the event of an adverse reaction.  As with all issues relating to COVID-19, this is a fluid situation which could change if there is direct action by the legislature or the governor in determining whether adverse reactions become compensable workers’ compensation injuries.

The post Could an Adverse Reaction to a COVID-19 Vaccine be a Work Injury? appeared first on Felhaber Larson.

Chadd Smith was a deputy sheriff for the Carver County Sheriff’s Office.  After witnessing his share of homicides, suicides, grisly motor vehicle accidents, shootings, and assaults (sometimes involving people he knew), Smith resigned from his job in July 2016.

The PTSD Diagnosis

Shortly thereafter Smith was evaluated by a licensed psychologist who diagnosed him with PTSD, following the criteria set forth in the latest (fifth) edition of the “Diagnostic and Statistical Manual of Mental Disorders” (“DSM-5”).  Smith then filed a claim for workers compensation benefits but the claim was denied after the independent medical examination (IME) requested by the County and its insurer concluded that Smith did not suffer from PTSD.  The IME provider utilized various testing mechanisms to conclude that Smith did not meet the DSM-5 definition of PTSD.

In response to the denial, Smith initiated a legal claim seeking benefits but the workers’ compensation judge ruled against him, finding the independent medical examiner’s opinion more persuasive than that of Smith’s treating physician.

Smith appealed to the Workers’ Compensation Court of Appeals (WCCA), who reversed.  The WCCA explained that the Minnesota Workers’ Compensation statute sets forth two very specific requirements for a PTSD claim: (1) the diagnosis must be made by a licensed psychologist or psychiatrist; and (2) the diagnosis must be consistent with PTSD “as described in the most recently published edition of the diagnostic and statistical manual of mental disorders by the American Psychiatric Association.”  The WCCA interpreted this to mean that the doctor’s diagnosis must specifically address the eight articulated factors in the DSM-5, and that the compensation judge must then independently evaluate whether the doctor correctly applied those factors.  The compensation judge can rely on an expert opinion that differs from that of the treating care provider but only if the expert also specifically follows the DSM-5’s enumerated criteria.

In this instance, since the independent medical exam did not specifically conform to the eight diagnostic criteria in the DSM-5, the compensation judge should not have relied upon it to counter the conclusions of Smith’s actual health care provider.  They therefore reversed the compensation judge’s decision and ruled in Smith’s favor.

The DSM-5 is a Guideline, Not a Checklist

It was now the County’s turn to appeal and they did so to the Minnesota Supreme Court, who reversed the WCCA and ruled in favor of the County.  In so doing, they explained that the DSM-5 criteria are a guide for trained health care professionals to use in applying their medical training and judgement to a complex mental health assessment. The criteria were not intended to permit judges to apply legalistic analysis to what should be a medical issue.

Indeed, the statutory requirement that PTSD be diagnosed by a medical professional indicates that the legislature did not want lawyers, judges and juries to substitute their judgements for that of competent medical practitioners.  Instead, the decision maker in the legal proceeding should stick to the determination of whether the medical practitioner had a legitimate basis for the diagnosis and, in the case of competing opinions, whether one diagnosis is more persuasive than the other.

Therefore, since the IME did follow the DSM-5 but simply used different evaluative tools to do it was proper for the compensation judge to rely on IME report despite the absence of a point-by-point assessment of the DSM’s eight PTSD factors.

Bottom Line

This decision returns decisions on PTSD to where they belong – in the hands of the medical professional rather than a workers’ compensation judge.  The judge should merely perform the traditional task of reviewing or analyzing experts’ reports to evaluate their credibility, factual foundation and persuasiveness.

The post Court Says PTSD Diagnosis Need Not Go Strictly By The Book appeared first on Felhaber Larson.

Alapati (Al) Noga played seven seasons in the National Football League (NFL), five of them (1988 through 1992) with the Minnesota Vikings. When his NFL career was over, he played in the new Arena Football League until 1999.

Orthopedic Claims are Just a Warm-Up

As a Viking, Noga sustained a number of orthopedic injuries as well as head injuries and periodic headaches.  Noga testified that team trainers and doctors treated his symptom by dispensing Advil and Tylenol, and that he tried to play through the headaches and wooziness because he felt he needed to do this to remain in the league.

 The Vikings’ training records did not contain entries of any treatment for headaches, nor did they reflect that the Vikings’ staff provided Advil or Tylenol to Noga.  Instead, they referenced only his orthopedic injuries and one occasion when he did not report for conditioning because he had a headache.

Noga filed a claim in 2001 for workers’ compensation benefits for his various orthopedic injuries while playing for the Vikings.  A medical examination report from February, 2004, stated that Noga sustained ten separate orthopedic issues and two neurological issues which included blackout episodes from concussions and headache episodes. Noga and the Vikings settled this claim a month later and included the medical report in the settlement documents.

Dementia Claim Kicks Off

 In 2011, after a neuropsychological evaluation, Noga was diagnosed with dementia due to general intellectual functioning which showed a general decline with extremely low verbal memory and problem solving/organization. The evaluation report did not identify the specific cause, although multiple head trauma was indicated as an important factor.  Other factors included under-reported substance abuse, untreated sleep apnea, and psychiatric/personality factors.

In 2014, another neuropsychologist examined Noga and reported that his cognitive deficits represented moderate brain impairment resulting from an assortment of factors including ADHD, having English as a second language, untreated sleep apnea, chronic physical pain, cannabis use, previous methamphetamine and alcohol abuse, psychological disturbance, and a multitude of concussions/mild brain injuries which occurred while playing football.  The report noted that Noga’s history of concussions was not the sole cause of his brain impairment but they were significant contributing factors.

Noga filed a workers’ compensation claim in January 2015 claiming a Gillette injury (an injury not attributable to one specific event but rather to repetitive movements over time) in the form of head trauma, brain injury and/or dementia that culminated on his final day playing for the Minnesota Vikings in 1992.  The Vikings denied that Noga sustained a Gillette injury and also contended that the claims were barred by two provisions of the Minnesota Workers’ Compensation Act: (1) the requirement under Minn. Stat. § 176.141 to provide the employer with notice of the injury within 180 days; and (2) the obligation under Minn. Stat. § 176.151 to file a claim for compensation within 3 years after the employer has made written report of the injury to the commissioner, but not to exceed six years from the date of the accident.

Player’s Claims March Downfield

A workers’ compensation judge initially found that Noga had sustained a Gillette injury in the form of head trauma resulting in dementia and that his claims were not barred by failure to provide notice or the statute of limitations. The Vikings appealed to the Workers’ Compensation Court of Appeals affirmed that Noga had sustained a Gillette injury but vacated the decision relating to the notice and statute of limitations issues.  The case was remanded back to the workers compensation judge.

Following the remand, the workers’ compensation judge found that the Vikings received proper notice of the Gillette injury in 2004 when the neuropsychological report on Noga was received (and was later attached to the settlement documents for the claim). In addition, the judge noted a line of court decisions determining that an employer’s act in assuming responsibility for providing medical care to the employee will toll (suspend) the running of the statute of limitations.  The judge concluded that dispensing Advil or Tylenol to Noga constituted sufficient medical care in this instance to suspend the statute of limitations.

The Vikings appealed again to the Workers’ Compensation Court of Appeals which affirmed the compensation judge’s decision, prompting the team to take the case to the Minnesota Supreme Court.

 The Minnesota Supreme Court explained that there were three issues to resolve:

1. Did Noga suffer a compensable Gillette injury?
2. Did Noga provide the team with sufficient notice of the injury as required under the statute?
3. Did Noga file his legal claim within the law’s statute of limitations?

Vikings Prevail on a Goal Line Stand

The Supreme Court addressed the statute of limitations issue first and sided with the Vikings in ruling that Noga had not filed his claim in a timely manner.  This ruling rendered the other two issues moot and the Court therefore deemed it unnecessary to resolve them.

In deciding that Noga missed the statute of limitations, the Court explained that the claim arose in February, 2004, when he received the medical examination report that led to the settlement.  At that point, Noga had sufficient information of the nature of his injury/disease, its seriousness and probable compensability.  Therefore, unless there was a basis for suspending the statute of limitations, Noga had six years thereafter (until February 2010) to file his claim and his failure to do so required that the claim be dismissed.

In dismissing the case, the Supreme Court rejected the contention that the act of providing Advil or Tylenol to Noga meant that the Vikings were assuming responsibility for his care. To make such a finding, the Court would have to be convinced that the employer demonstrated a conscious sense of obligation to accept responsibility for a work-related injury that was compensable under the workers compensation statute.  Merely giving out some over-the-counter medication did not rise to that level of intent

Additionally, the Court found that the Vikings actually could not have assumed liability for Noga’s eventual Gillette injury because there was nothing to show that the Vikings knew or should have known that Noga was at an increased risk of developing a compensable Gillette injury in the form of dementia when they provided Tylenol and Advil for headaches and wooziness. The Court noted that during the period in which Noga played for the Vikings, medical awareness of the connection between head injuries sustained while playing football and the potential long-term neurological effects of those events had not yet developed.  Therefore, the Court noted that it could not attribute to the Vikings an acceptance of responsibility for a later-diagnosed dementia which would toll the statute of limitations.

Bottom Line 

An employee must show that the employer took some action that reveals an intent to accept responsibility for a work-related injury such as paying for and providing workers’ compensation benefits initially to an employee.

Also, for future workers’ compensation cases involving brain conditions alleged to have resulted from trauma while working, the duty of the employee to pursue a claim begins to run when the individual knew or should have known the condition was caused, aggravated or accelerated by work activities.

The post Minnesota Vikings Score a Win on Player’s Dementia-Related Workers’ Comp Claim appeared first on Felhaber Larson.

Though it may come as a bit of surprise, Workers Compensation has emerged as a place where all kinds of robots have or will soon make an impact.

Processing Claims

For example, digital worker robots have already improved processes and reduced potential flashpoints for adjusters on the workers compensation frontlines.  As those in workers compensation know, certain events tend to give rise to disputes that cause injured workers to seek outside representation. Service of MMI or request to attend an IME will always generate the possibility of disagreement. But late benefit and medical payments caused by clerical error or misfiling are every adjuster’s headache—especially because they often come with an assessment of attorney’s fees for the other side when bills don’t get paid on time.

But across the industry, worker comp insurers have begun to adopt RPA-based solutions to improve troublesome or tedious processes. For example, Texas Mutual, a worker’s compensation insurer in Texas, has found a solution that uses RPA and other technologies to solve those kinds of problems when it comes to processing of medical claims forms.  The solution allows for more “touchless” claim processing and has pre-established workflows for many of the common kinds of exceptions that do occur. As a result, Texas Mutual has seen a significant decrease in problems caused by late payments or easily addressable mistakes.

And adjusters don’t need to worry that RPA and process automation solutions threaten their jobs. Instead,  Risk and Insurance Magazine reports that these technologies will let adjusters overburdened by bureaucratic procedures free up time to talk to injured worker, exercise creativity, and generate solutions for the challenges holding up a worker’s recovery. Letting robots handles mundane tasks could also make the adjusters’ job more enjoyable and reverse the high rate of adjuster attrition plaguing insurance organizations.

Preventing Claims

Robots of the more traditional type will continue to have an expanding role in work comp as well.  In fact, workforce robots will help reduce injuries and maybe even those who have been hurt back to work more quickly. So-called collaborative robots can handle the portion of a task whose ergonomics create a risk of injury. Some estimates suggest that use of these kind of robots could reduce up to 35% of lost work days due to workplace injuries. Similarly, Health and Safety Magazine reports that robotic exoskeletons—think Ripley in the movie Alien—have already helped early adopters in  labor-intensive fields such as aerospace, automotive manufacturing, construction, warehousing, and oil and gas work towards lessening repetitive task injuries. Moving forward, exoskeleton innovations using robotic technologies that work in tandem with a user to amplify, reinforce or restore human performance may be a way to get those with injuries back to work more quickly.

Still, the increased use of robotics is not without problems in the workers compensation arena. As more robots are used on the factory floor, adjusters will likely see an increase of injuries caused by those robots whether through unintentional operation during repair, emerging best practice standards and plain old human error—something the plaintiffs bar is also starting to notice.

Bottom Line

Workers compensation will serve as the proving ground for many of these technologies—and 2019 will likely be a year when many of those tests take place. So stay tuned to see what lessons work comp learns by, about, and from robots in the coming year.

The post Will 2019 Be Work Comp’s “Year of the Robot”? appeared first on Felhaber Larson.

PTSD Presumed to be Occupational Disease for Certain Occupations

In cases involving claims for post-traumatic stress disorder (PTSD) in certain occupations, the diagnosis of PTSD is presumed to be an occupational disease that is the result of the nature of the employment.  This provision is effective for injuries on or after January 1, 2019.

⇒ Occupations include a worker employed on active duty as a licensed police officer; firefighter; paramedic; emergency medical technician; licensed nurse employed to provide emergency medical services outside of a medical facility; public safety dispatcher; officers employed by the state or a political subdivision at a corrections, detention, or secure treatment facility; sheriff or full-time deputy sheriff; or member of the Minnesota State Patrol.

⇒ The presumption is rebuttable by the employer or insurer by presenting “substantial factors.” However, substantial factors are not defined by the statute.  Any substantial factors used to rebut this presumption and are known to the employer or insurer at the time of denial of liability must be communicated to the employee on the denial of liability.

⇒ PTSD as a result of disciplinary action, work evaluation, job transfer, layoff, demotion, promotion, termination, retirement, or similar action taken in good faith by the employer is not considered to be an occupational disease.

Benefit Changes for injuries occurring on or after October 1, 2018

The legislature also upped the ante for employers who are on the hook for Temporary Partial Disability (TPD) and Permanent Partial Disability (PPD) benefits:

⇒ The 225-week cap on Temporary Partial Disability (TPD) benefits increases to 275 weeks.

⇒The dollar values in the compensation schedule for Permanent Partial Disability (PPD) benefits increases by 5%.

The rebuttable presumption of retirement at 67 regarding payment of Permanent Total Disability (PTD) has been repealed and PTD is now payable until age 72. If an employee is injured after age 67, the employee will receive PTD benefits for five year.

Bottom Line

The new legislative changes for resumed PTSD  for occupations named in the statute essential puts the burden on the employer/insurer to disprove the diagnosis of PTSD.  In addition, the employer/insurer will be required to disclose the substantial reasons for a denial therefore extensive initial investigation will be necessary to defend claims of PTSD in certain occupations.

The new legislation changes the structure and time limits for various benefits, therefore employer/insurers need to be aware of increases in potential exposure for workers compensation benefits.

The post Minnesota Enhances Work Comp Coverage for PTSD and Increases Certain Benefits for Everyone appeared first on Felhaber Larson.

Case Comes to a Head

School Bus Monitor Ellen Gianotti claimed she suffered a significant head injury and severe emotional distress after the bus driver unexpectedly hit the brakes one day, causing her to fall and strike her head.  Although CT scans and X-rays that day did not demonstrate a brain injury, Gianotti quickly started complaining of headaches, confusion and trouble finding words.

She then underwent neuropsychological assessments and was diagnosed with a concussive injury.  She was referred for psychological intervention for emotional distress and then began treatment with a therapist for anxiety, depression and panic attacks that she alleged were related to her head injury.  The workers compensation insurer initially admitted liability and workers’ compensation benefits were paid.

A No-Brainer for the Judge

Gianotti submitted to an independent psychological evaluation at the employer’s request.  The independent psychological examiner reviewed medical records which showed that Gianotti had taken anti-depressant and anti-anxiety medication for at least seven years before the incident.  It was also noted that she had never fully disclosed this condition to the doctors treating her for the bus injury.

Further psychological testing showed that Gianotti’s self-reported psychiatric symptoms including extreme suffering, memory, and cognitive problems were not credible.  The independent psychological examiner concluded that Gianotti did not suffer a concussion, post-concussive syndrome, or a psychological injury.

Based on the report of the independent psychological evaluation, the workers’ compensation insurer sought to stop paying workers’ compensation benefits. The Workers’ Compensation Judge reviewing this request accepted the opinion of the independent psychological examiner and found that Gianotti had not suffered a concussion and/or post-concussive syndrome.  He therefore denied her claim for treatment for emotional and/or psychological conditions and permitted the insurer could discontinue paying wage loss benefits.

The case was appealed to the Workers’ Compensation Court of Appeals (WCCA) which reversed the Compensation Judge’s findings that Gianotti did not suffer a concussion or post-concussive syndrome and vacated the denial of coverage for the emotional and psychological conditions.  The WCCA reasoned that the independent medical examiner was not competent as an expert; he lacked factual foundation for his opinion because he did not review a video from the bus on the date of the injury; and all other evidence indicated that the Gianotti did in fact suffer from post-concussive syndrome.

Supreme Court Caps Appeals Court’s Authority

The WCCA decision was then appealed to the Minnesota Supreme Court, who reversed again, finding that the WCCA acted improperly.  For one thing, the WCCA should never have ruled on the competence of the independent psychological examiner because that issue was not raised on appeal.

Additionally, the Supreme Court found that the WCCA acted improperly in deciding that the independent psychological examiner did not have adequate foundation for his opinion.  They noted that the independent examiner reviewed Gianotti’s pre-injury and post-injury medical history, conducted a battery of tests and interviewed Gianotti herself.  This gave the examiner a good foundation for his conclusions such that the WCCA had no good reason to discredit the opinion simply because he did not review the bus camera video from the date of the injury.

Indeed, the Supreme Court found it noteworthy that despite claiming that the video should have been reviewed, the WCCA never explained why the video would have discredited the independent medical opinion or why the treating doctors were more credible even though they too never reviewed the video either.

As a result, the Supreme Court concluded that the Judge had sufficient evidence to find that the examiner’s opinion was well-founded, and that the WCCA should have supported the Judge’s decision in this regard even if they might have come to a different conclusion.  In short, the WCCA’s job was simply to see if the judge had an adequate basis for his ruling, not to decide if the ruling was ultimately correct or not.

Finally, the Supreme Court found that the WCCA should not have reversed the Compensation Judge’s findings that Gianotti did not suffer a concussion and post-concussive syndrome.  The Court admonished the WCCA that it did not have the authority to substitute their view of the evidence for that of the Compensation Judge.  Again, their job was to determine if the Judge’s findings were supported by evidence that a reasonable mind might accept as adequate.  In this instance, the judge relied on the testimony of an acknowledged medical expert.  A court full of judges had no business second guessing that opinion.

Bottom Line

While this might seem like a technical issue only, our Workers Compensation Department finds this case quite significant since it limits the WCCA’s ability to overturn a well-presented case.

This is why it is so critical to plan your case carefully and present the facts properly at the initial adjudication. The WCCA can only look to whether the compensation judge’s decision is supported by the evidence, and may not simply conclude that the decision was wrong.

The post Workers Comp Appeals Court is Told: Don’t Diagnose the Claimant, Decide the Case appeared first on Felhaber Larson.

Rosemount, Inc. held a special employee recognition event consisting of dinner, bowling and laser tag. Those who attended were paid for three hours at their usual hourly rate and could choose whether to participate in the active events or simply socialize with their co-workers.  Employees who elected not to attend forfeited three hours of pay or vacation credit.

Employer Targets Voluntary Event Defense

One of the active participants, Ali Shire, suffered an injured ankle during the laser tag competition. He filed a workers compensation claim due to his temporary total inability to perform his job, but the company denied the claim.  They contended that the injury was sustained in a voluntary recreational program, and such injuries are excluded from coverage under the following provision of the Minnesota’s workers compensation statute:

Injuries incurred while participating in voluntary recreational programs sponsored by the employer, including health promotion programs, athletic events, parties, and picnics, do not arise out of and in the course of the employment even though the employer pays some or all of the cost of the program. This exclusion does not apply in the event that the injured employee was ordered or assigned by the employer to participate in the program.

Specifically, Rosemount argued that Shire was not required to attend the event so his participation was voluntary and therefore not covered by the workers comp law.  Moreover, even if attendance at the event was not considered voluntary, his decision to play laser tag was certainly his own free choice since all employees were told that they could sit out the specific activities if they wished.

Decision Leaves Employee Beaming 

The Workers Compensation Court of Appeals disagreed, as did the Minnesota Supreme Court.  The Supreme Court ruled that attendance at the event was not voluntary since the only way that employees could avoid the loss of pay or limited time-off benefits was to attend the gathering.  Such implicit coercion simply does not equate with a voluntary choice on the part of the employee.

The court also rejected the argument that playing laser tag was “voluntary activity.” The law applies to injuries suffered during a “voluntary program”, and does not require an “activity-by-activity” analysis.  Applying what they deemed to be the “rules of grammar,” the court concluded that the word “voluntary” modifies the noun “program“, which is defined as a list or schedule of activities to be followed.

As such, the focus is on whether the overall program was voluntary and not merely the individual events on the program’s schedule.  Since the court already ruled that participation in the overall event was not voluntary, any injury suffered while enjoying any part of that event was covered under the workers compensation statute.

Bottom Line

The post Employer Zapped For Work Comp After Laser Tag Injury appeared first on Felhaber Larson.