State News : Minnesota

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Minnesota

Heacox Hartman

  Our Website

  651-222-2922

  651-222-2066

On Thursday, February 3, 2022, Governor Walz signed a bill into law that extended the workers’ compensation presumption for certain frontline professions through 2022. The prior law addressing this presumption expired on December 31, 2021. As of now, the new law is not retroactive to January 2022, but there may be legislation that addresses this question later this year.

This law extends the presumption that has been in place for much of the pandemic. By way of reminder, this presumption indicates that employees working in first responder or healthcare occupations will be presumed eligible for workers’ compensation benefits if they either test positive for COVID-19 or are diagnosed by a licensed physician, physician’s assistant, or APRN without a test. In situations where a test has not been done, a copy of written documentation of the diagnosis shall be provided to the Employer and Insurer. The following occupations fall into this presumption:

  • Firefighter

  • Paramedic

  • Nurses or Healthcare Workers

  • Correctional Officer/Security Counselor at Minnesota Correctional Facilities

  • Emergency Medical Technician

  • Healthcare provider, nurse, or assistant employed with home care or long-term setting

  • Workers required to provide childcare to first responders and health care workers under certain Executive Orders

In summary, if an employee shows that he or she works within one of these occupations and either tests positive for or is diagnosed with COVID-19, the burden of proof will shift to the Employer and Insurer to rebut the presumption. Employers and Insurers will still be able to show that the employment was not a direct cause of the disease, but it will be much more difficult to prevail on a denial of liability when one of these types of employees contract COVID-19. To note, the date of injury in these situations shall be the date the employee is no longer able to work due to a diagnosis of COVID-19 or due to the symptoms later diagnosed as COVID-19, whichever occurs first.

This Legislative Update was prepared by Parker Olson.

In October 2021, the Minnesota Supreme Court handed down a groundbreaking decision after its review of the Bierbach v. Digger's Polaris and Musta v. Mendota Heights Dental Center workers' compensation cases. Click Here for a full analysis of those cases. In summary, the Minnesota Supreme Court held that Minnesota Workers’ Compensation Courts, including the Workers’ Compensation Court of Appeals (WCCA), lack jurisdiction to decide whether federal law preempts Minnesota law requiring an employer or insurer to reimburse an employee for medical treatment in the form of medical cannabis. The Minnesota Supreme Court also held that the Minnesota Workers’ Compensation Act is preempted by the Federal Controlled Substance Act (CSA). As such, Minnesota Employers and Insurers are not required to reimburse employees for medical cannabis used to treat a work injury.

 

The Supreme Court of the United States is now reviewing the decision of the Minnesota Supreme Court to provide guidance to lower courts and states around the country regarding compensability of medical cannabis. Click the following links for the SCOTUS dockets in Musta v. Mendota Heights Dental and Bierbach v. Digger’s Polaris. In addition to legal briefs and arguments submitted by the parties, the U.S. Supreme Court has now invited the Biden Administration to submit a brief regarding the issues. This news certainly signals that this case could become a landmark decision.

Employers, Insurers, and courts in every state have been faced with very difficult questions as to the application of state cannabis laws that contradict the federal prohibition. Given this pending United States Supreme Court case, workers’ compensation professionals around the country will likely receive some guidance as to whether there is a legal requirement to reimburse employees for medical cannabis used to treat a work-related injury and whether the federal Controlled Substances Act preempts contradictory state laws.

For now, the state of the law in Minnesota remains unchanged, and Employers and Insurers are not required to reimburse employees for medical cannabis used to treat a work injury in Minnesota. We will continue to monitor the filings at the United States Supreme Court closely, so please feel free to reach out with any questions.

Summary by Parker T. Olson 

On Friday, February 4, 2022, Minnesota Governor Walz signed a bill into law that extended the workers’ compensation presumption for certain frontline professions through 2022. The prior law addressing this presumption expired on December 31, 2021. As of now, the new law is not retroactive to January 2022, but there may be legislation that addresses this later this year.

This law extends the presumption that has been in place for much of the pandemic. By way of reminder, this presumption indicates that employees working in first responder or healthcare occupations will be presumed eligible for workers’ compensation benefits if they either test positive for COVID-19 or are diagnosed by a licensed physician, physician’s assistant, or APRN without a test. In situations where a test has not been done, a copy of written documentation of the diagnosis shall be provided to the Employer and Insurer. The following occupations fall into this presumption:

·    Firefighter

·    Paramedic

·    Nurses or Healthcare Worker

·    Correctional Officer/Security Counselor at Minnesota Correctional Facilities

·    Emergency Medical Technician

·    Healthcare provider, nurse, or assistant employed with home care or long-term setting

·    Workers required to provide childcare to first responders and health care workers under certain Executive Orders

In summary, if an employee shows that he or she works within one of these occupations and either tests positive for or is diagnosed with COVID-19, the burden of proof will shift to the Employer and Insurer to rebut the presumption. Employers and Insurers will still be able to show that the employment was not a direct cause of the disease, but it will be much more difficult to prevail on a denial of liability when one of these types of employees contract COVID-19. To note, the date of injury in these situations shall be the date the employee is no longer able to work due to a diagnosis of COVID-19 or due to the symptoms later diagnosed as COVID-19, whichever occurs first.

Please contact CWK Attorney Parker Olson at (952) 525-6930 or parker.olson@cwk-law.com with any questions. 

 

Thomas Coleman recently secured a favorable decision at the Office of Administrative Hearings in a case involving multiple claimed work injuries.

The first injury was alleged to have resulted from an accident involving a motor vehicle and a train, wherein the employee claimed to have suffered significant and permanent injuries to the cervical spine, bilateral shoulders, and back. He subsequently underwent cervical fusion surgery. The second injury involved a claim for PTSD, which the employee allegedly sustained as a result of another accident.

The Compensation Judge at the Office of Administrative Hearings found that the first injury was a temporary aggravation, which resolved within six weeks, and he denied any claims after that time. This included a denial of significant amounts of indemnity benefits and medical benefits, including the cervical fusion surgery. With respect to the PTSD claim, the Compensation Judge denied primary liability for the claim in its entirety.

This was an outstanding result in a case involving significant exposure and a possible permanent total disability claim.

On December 14, 2021, the Minnesota Supreme Court Summarily Affirmed the Workers Compensation Court of Appeals’ (WCCA) denial of the employee’s Petition to Vacate in Leadens v. Diversified Distributors.

CWK represented the employer and insurer in this case, defending against the employee’s Petition to Vacate a full, final, and complete settlement (the Stipulation had been settled and drafted by a different firm in 1998). The employee appealed the matter to the Minnesota Supreme Court after the WCCA held the employee had not established "good cause" to vacate the 1998 Award on Stipulation. 

The WCCA found that that there was neither significant evidence of a substantial worsening of the employee’s condition nor was there a basis upon which to vacate the Award because the employee was unrepresented by counsel at the time of the original settlement. CWK’s Responsive Brief to the MN Supreme Court was prepared by Emily Johnson, in collaboration with Parker Olson and Mark Kleinschmidt (who handled the case at the WCCA). The Minnesota Supreme Court affirmed the WCCA’s ruling, denying the Petition to Vacate and thereby preventing the employee from reopening the case for additional compensation. 

Click here for the WCCA Decision.

Click here for the Minnesota Supreme Court's Summary Affirmance.

Summary by Emily Johnson.

CWK (Minnesota) has once again received a Tier 1 ranking on the Best Law Firms List from U.S. News and World Report. This list is chosen based on client and professional references, along with an attorney ballot system. Please click here to learn more.

We are proud of this honor and appreciate the recognition as a leader in our field!

CWK is excited to announce that Emily Johnson is our newest shareholder!

Emily does an excellent job representing employers and insurers in all stages of litigation, from initial consultations through final resolution. Emily is smart and creative, and her clients appreciate her responsiveness and calm demeanor. Recently, Emily has been very involved in the important case of Leadens v. Diversified Distrib. and Minn. Ins. Guar. Ass'n, and she wrote a brief to the Minnesota Supreme Court in that matter. The Supreme Court summarily affirmed a successful outcome for our clients.

Please join us in congratulating Emily Johnson on becoming a shareholder!

Cousineau, Waldhauser, & Kieselbach of Minnesota relaunched its website in 2021 and placed even more of a focus on providing helpful resources for adjusters. These resources  a variety of practice pointers, webinar replays, a COVID-19 litigation guide, and even a podcast. The website also contains reference guides covering all types of benefits, defenses, and helpful tips in managing claims. Below is a link to the practice pointer section on the website. Stay tuned for more pointers and updates in 2022 from CWK Law in Minnesota! CWK will continue to focus on servicing the needs of clients and providing helpful and timely resources on their website.

 Practice Pointers — Cousineau, Waldhauser & Kieselbach, P.A. (cwk-law.com)

Employers and Insurers in Minnesota are currently not legally required, under Minnesota Workers’ Compensation law, to reimburse employees for medical cannabis treatment based on the recent decision from the MN Supreme Court summarized below.

On October 13, 2021, the Minnesota Supreme Court issued two major decisions regarding medical cannabis. See Musta v. Mendota Heights Dental Center, A20-1551 (Minn. Oct. 13, 2021) and Bierbach v. Digger’s Polaris, A20-1525 (Minn. Oct. 13, 2021). The Court treated the two decisions as companion cases, and the majority of the analysis is contained in the Musta case.

The Minnesota Supreme Court made two major rulings regarding medical cannabis. First, it held that the Workers’ Compensation Courts, including the Workers’ Compensation Court of Appeals (WCCA), lack jurisdiction to decide whether federal law preempts Minnesota law requiring an employer or insurer to reimburse an employee for medical treatment in the form of medical cannabis. Second, the Minnesota Supreme Court held that the Minnesota Workers’ Compensation Act is preempted by the Federal Controlled Substance Act (CSA). As such, Employers/Insurers are not required to reimburse employees for medical cannabis used to treat a work injury.

As background, the employee in Musta worked as a dental hygienist when she suffered a work-related neck injury in February 2003. She received conservative care, underwent surgery in November 2003 and August 2006, and was ultimately prescribed medication to manage the continuing pain, including Vicodin and Fentanyl. In late 2009, the employee discontinued using narcotics to treat her pain because of the side effects. By April 2019, she began using medical cannabis in compliance with the THC Act (Minn. Stat. §§ 152.21–.37 (2020)) to treat her consistent pain. The employee then requested reimbursement for said medical cannabis from the employer, Mendota Heights Dental Center (Mendota Heights).

The employer opposed the request for reimbursement because cannabis possession is prohibited by federal law under the CSA. Cannabis is a Schedule I controlled substance, which is the most restrictive level, and cannot be lawfully prescribed under federal law. However, the Compensation Judge ruled that the employer must reimburse the employee for medical treatment, including medical cannabis. See Minn. Stat. § 176.135, subd. 1(a) (2020). The Compensation Judge declined to resolve the issue of preemption. On remand, the Compensation Judge found that the use of medical cannabis is legal under Minnesota law, and nothing in Minnesota workers’ compensation law would prohibit reimbursement for medical cannabis when used to treat a work-related injury. Therefore, the employer was required to reimburse the employee for medical cannabis expenses. The employer appealed.

The WCCA held that it lacked subject matter jurisdiction over the preemption issue and stated that it could not address whether the CSA preempts Minnesota Law as it relates to medical cannabis in workers’ compensation cases. The WCCA then affirmed the Compensation Judge’s decision, requiring the employer to reimburse the employee for medical cannabis expenses. The employer appealed the WCCA’s decision to the Minnesota Supreme Court.

The Minnesota Supreme Court held that: (1) the WCCA lacks jurisdiction to decide whether federal law preempts Minnesota law that requires an employer to provide medical treatment when the treatment sought is medical cannabis; and (2) because it is impossible to comply with both state and federal law, the Workers’ Compensation Court orders are preempted by the CSA. In a footnote, the Minnesota Supreme Court noted that its decision was limited to “a claim for reimbursement of medical expenses, incurred to treat a work-related injury, where the treatment for which the expense is incurred is the purchase and use of medical cannabis, with the reimbursement liability determined in a legal proceeding.” They expressed “no opinion on whether the CSA preempts any component of Minnesota’s medical cannabis program, nor does our preemption decision here extend to any other form of medical treatment."

Summary by Attorney Andrew Carballo

Cousineau, Waldhauser & Kieselbach is proud to announce that James Waldhauser, Thomas Kieselbach, Mark Kleinschmidt, Jennifer Fitzgerald, Whitney Teel, and Thomas Coleman have all been recognized on the Minnesota Best Lawyers List for 2021. Click here for the 2021 Best Lawyers in the Midwest Publication (see page 65 for the list).

In addition, we are proud to announce that James Waldhauser, Thomas Kieselbach, and Jennifer Fitzgerald have been selected as 2021 Super Lawyers, and Elizabeth Cox and Parker Olson have been selected as Rising Stars for 2021. Click here for the 2021 Super Lawyers Publication (see page 54 for the list).

Recognition by Best Lawyers is based entirely on peer review. Best Lawyers' methodology is designed to capture the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. Best Lawyers employs a system of peer review, feedback, and analysis for all attorneys nominated for this honor. See the Best Lawyers Website for more information.

Super Lawyers is a rating service for outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Peer nominations and evaluations are combined with third-party research, and selections are made on an annual, state-by-state basis. Designation as a Super Lawyer is awarded annually to only 5% of the licensed, active lawyers in Minnesota. Designation as a Rising Star is awarded annually to no more than 2.5% of licensed, active lawyers in the state. For more information, see the Super Lawyers website.

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