NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
The Minnesota Workers’ Compensation Court of Appeals (WCCA) decided Bosquez v. Super America and York Risk Services Group, No. WC20-6382 on May 26, 2021 and affirmed the denial of ongoing benefits.
The employee sustained a head injury on July 28, 2018. The employer and insurer eventually discontinued benefits, and the employee alleged that her injury resulted in ongoing vision and psychological changes.
At hearing, the employer and insurer offered testimony from two medical experts, Dr. Bushara, a neurologist, and Dr. Gratzer, a psychiatrist. These doctors evaluated the employee’s complex medical history prior to her work injury and compared her pre-existing conditions to her post-injury symptoms. Dr. Bushara concluded that the employee sustained a temporary head injury that resolved within six weeks or so without the need for ongoing benefits or treatment. Dr. Gratzer concluded that the employee’s injury did not substantially aggravate or accelerate her pre-existing psychological conditions. The employee presented conflicting medical evidence in support of her ongoing claims, including mental health and ophthalmology opinions.
The Compensation Judge carefully weighed the medical opinions and evidence before determining that any work injury had resolved by early December 2018. As such, the Compensation Judge denied ongoing benefits and claims related to any alleged conditions, including those related to mental health or vision.
On appeal, the employee argued that the Compensation Judge misunderstood the issues and that the Compensation Judge failed to consider whether the work injury aggravated her pre-existing conditions, especially when considering the factors outlined in McClellan v. Up North Plastics, slip op. (W.C.C.A. Oct. 18, 1994). The McClellan factors include: severity and extent of treatment of the pre-existing condition, severity of the incident and subsequent restrictions including disability and medical treatment resulting from that incident, the extent of the employee’s relevant work and leisurely activities, and medical opinions. The WCCA, however, has previously held that using the McClellan factors is not mandatory. Further, the WCCA determined that the Compensation Judge properly addressed the employee’s claims. The judge’s memorandum showed that he compared the employee’s pre-existing history and post-injury symptoms and weighed the experts’ medical opinions in detail. Therefore, the WCCA held that substantial evidence supported the Compensation Judge’s findings that the employee’s head injury resolved as of December 2018.
The employee also argued that the judge erred by ignoring an uncontested medical opinion regarding her vision changes. However, the WCCA followed precedent stating that although a medical opinion cannot be ignored, that medical opinion is not necessarily conclusive or binding. Here, the WCCA agreed that even though the employer and insurer did not present a specific vision expert, the Compensation Judge was entitled to credit Dr. Bushara’s well-founded opinion that the head injury had resolved by December 2018. As such, any claims for additional vision symptoms beyond that time could be denied.
Minn. Stat. § 176.101, Subd. 1(c) was recently amended to include a change to the minimum compensation rate structure/formula. Over the last several years, the minimum compensation rate has consistently been $130.00 or the Employee’s actual weekly wage, whichever is less.
However, starting with injuries occurring on or after October 1, 2021, the minimum compensation rate will be equal to one of the following, whichever is less:
20% of the maximum weekly compensation rate
OR
The Employee’s actual weekly wage
The maximum compensation rate for injuries on or after October 1, 2021 is $1,256.64. Therefore, for injuries on or after October 1, 2021, the minimum compensation rate will total $251.33 (instead of the previous $130.00).
The following bullet points outline the basic rate calculations.
If the AWW is less than $251.33
The Compensation Rate is the AWW
If the AWW is $251.33 to $377.00
The Compensation Rate is $251.33 (i.e., the Minimum Compensation Rate applies)
If the AWW is greater than $377.00
The Compensation Rate is 2/3 of the AWW
EXAMPLES
If an Employee's AWW is $200.00, the Compensation Rate would be $200.00
If an Employee's AWW is $300.00, the Compensation Rate would be $251.33
If an Employee's AWW is $400.00, the Compensation Rate would be $266.67 (which is 2/3 of $400.00)
For additional information, please see the resources page on our website for an updated Minnesota Workers' Compensation Reference Sheet, including compensation rates and other helpful benefit information. Thank you to Attorney Parker Olson for continuing to update that reference sheet.
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We are pleased to announce that Cousineau, Waldhauser & Kieselbach, P.A. (MN) has once again been ranked as a Tier One law firm by Best Law Firms of U.S. News and World Report. Best Lawyers and Best Law Firms collaborate with U.S. News and World Report to evaluate attorneys and law firms throughout the world. The attorneys and law firms are selected for inclusion by peers for their responsiveness, integrity, and expertise. We are honored by this distinction.
Hilpert v. Maid Pro and Auto Owners Insurance Group, No. WC20-6348 (Dec. 23, 2020)
Jennifer Fitzgerald andParker Olson of Cousineau, Waldhauser, and Kieselbach prevailed on appeal at the Minnesota Workers’ Compensation Court of Appeals (WCCA) on December 23, 2020, when the WCCA affirmed the Compensation Judge’s denial of a request for implantation of a spinal cord stimulator.
In this case, the Employee originally sustained an injury to her low back in July 2010. The parties entered into a settlement agreement in October 2011. That settlement closed out a number of medical treatments/benefits, including a two-level fusion surgery that had been recommended, along with any psychological treatment.
The Employee continued to treat for ongoing low back symptoms, primarily through a pain clinic. Ultimately, three different treating physicians recommended consideration of a fusion surgery, with the most recent opinion coming in September 2018.
In April 2019, one of the Employee’s physicians recommended a psychological consultation for possible implantation of a spinal cord stimulator. The Employee filed a medical request seeking approval of a psychological or psychiatric consultation to assess whether she would qualify for a spinal cord stimulator trial and potential permanent implantation of that device.
At hearing, the Employer and Insurer maintained that a spinal cord stimulator was not reasonable and necessary treatment based on multiple IME opinions and the argument that the Employee did not meet the qualification requirements of the medical treatment parameters for spinal cord stimulators. Minn. R. 5221.6200, subp. 6(C) states that spinal cord stimulators have very limited application, and those devices are indicated only if the treating health care provider has determined that a trial screening is indicated because an employee (1) has intractable pain, (2) is not a candidate for another surgical therapy, and (3) has no untreatable major psychological or psychiatric comorbidity that would prevent the patient benefiting from the treatment.
The Compensation Judge decided in favor of the Employer and Insurer. The Compensation Judge found that the Employee did not meet the requirements of Minn. R. 5221.6200, subp. 6(C), in part because the Employee was a candidate for the fusion surgery that had been recommended by multiple treating physicians.
On appeal, the Employee argued that the Compensation Judge erred in determining that she was a candidate for the surgical procedures. The Employee also argued that she was unlikely to undergo the surgery because she had closed out her claims for a fusion surgery in the 2011 settlement.
The WCCA, however, affirmed the Compensation Judge’s choice of expert opinion and the determination that the Employee was a candidate for the fusion surgery. The WCCA stated, “in recommending surgery for the employee, her treating physicians clearly found her suited to be chosen for it.” As such, the Employee met the definition of candidate “even if she is unlikely to choose to undergo the procedure.” The WCCA also noted that the question of whether a patient is a surgical candidate is a medical question that “does not depend on personal considerations, as opposed to medical ones, regardless of who pays for the surgery.”
Ultimately, this case reaffirms the very limited application of spinal cord stimulators, as outlined in Minn. R. 5221.6200, subp. 6(C), and it clarifies that the medical questions involved with these cases depend on analysis of the objective medical evidence presented and not the Employee’s personal or payment considerations.
If you have questions about this case or any of the issues involved, please feel free to reach out to Jen and Parker any time.
Thomas Kieselbach is celebrating 40 years with Cousineau. Tom’s contributions to our firm, and the legal profession as a whole, are vast. He is the current President of the National Workers’ Compensation Defense Network, leading a national organization of law firms committed to the representation of employers and insurers in workers’ compensation claims. He is a charter member of the College of Workers’ Compensation Lawyers, serves on the Larson’s National Workers’ Compensation Advisory Board, listed in Best Lawyers in America, Super Lawyers and “Top 40 Workers’ Compensation Attorneys.” Thank you, Tom for your continuing work and passion for this area of law!
Thomas Kieselbach is celebrating 40 years with Cousineau. Tom’s contributions to our firm, and the legal profession as a whole, are vast. He is the current President of the National Workers’ Compensation Defense Network, leading a national organization of law firms committed to the representation of employers and insurers in workers’ compensation claims. He is a charter member of the College of Workers’ Compensation Lawyers, serves on the Larson’s National Workers’ Compensation Advisory Board, listed in Best Lawyers in America, Super Lawyers and “Top 40 Workers’ Compensation Attorneys.” Thank you, Tom for your continuing work and passion for this area of law!
Mark Kleinschmidt is celebrating his 35th year with Cousineau. Mark’s calm, well-reasoned counsel is greatly appreciated by his colleagues and clients alike. As the current President of CWK, his leadership provides the platform for the firm’s continued success. Mark’s substantial litigation experience is a benefit to the employers and insurers he advises, and to the numerous attorneys he has, and continues, to mentor. Mark is a Fellow in the College of Workers’ Compensation Lawyers, listed in Best Lawyers in America, and frequent lecturer and author on workers’ compensation topics. Thank you, Mark, for your years of service, advice, and comradery!
Tom Coleman is marking his 30th year at Cousineau. Tom’s extensive litigation experience, courtroom abilities, and trivia knowledge is legendary. Tom’s a frequent lecturer on workers’ compensation topics, spent over a decade as a professor at local law schools teaching workers’ compensation law, and written extensively in scholarly publications and practical training guides alike. His breadth of knowledge for this area of law is only surpassed by his encyclopedic memory of Gophers Football statistics from 1950-1965. For those wanting more on either subject, Tom keeps office hours at Tiffany Sport Lounge in Saint Paul most Saturdays. Thank you Tom!
Dick Schmidt also marked his 30th year milestone at Cousineau. Dick Schmidt, while retiring from active defense practice in 2019, was unable to completely walk away from the world of workers’ compensation law and continues to mediate cases. Whether this is due to a deeply held passion for the law, or his inability to keep himself independently busy during retirement, we are greatly appreciative of his continued presence, and the humor he brings into our office. We are excited for Dick’s next adventure, where he will continue to grow his mediation practice through Schmidt Mediation LLC, Congrats Dick and thank you!
CWK is pleased to welcome Adam Brown, who joins us as the Director of Professional Development and as a non-voting Shareholder. Adam’s position is structured so that he will handle customary legal work for our clients, but he will also have the time and capacity to provide individual coaching, training, real-time feedback, and skill-building support for our associates and other legal professionals. In addition, he will provide business development support for the firm and assist with our integral firm systems, including structural design and professional development. Ultimately, Adam’s work will translate into even better service and support for our clients.
Adam comes to us from the University of St. Thomas School of Law, where he spent nearly six years as the Assistant Director of Career and Professional Development, managed the law school’s externship program, and taught courses in the externship and mentor programs (in fact, Adam is continuing to teach the advanced externship course at UST Law this fall). Before UST Law, Adam worked as a staff attorney at the Minnesota Workers’ Compensation Court of Appeals (WCCA), an attorney at Heacox Hartman, and a judicial law clerk at the Minnesota Court of Appeals.
Adam’s experience in our practice area and his expertise in educational design and teaching, legal writing, diversity and inclusion (Adam will be the chair of the HCBA Diversity & Inclusion Committee for 2020-21), and business and practice development make this a great fit. Adam is authentically passionate about this work, and having this type of direct, individualized support for our legal professionals in-house is almost unheard of in the legal industry. Adam is eager to make this novel and innovative professional development model work for our clients, for our firm, and for our industry. We have clear-eyed optimism that providing this brand of mentorship will ensure that our people have the skills they need for a successful professional career. We are all excited to see where this can go, so please join us in welcoming Adam Brown.
On August 12, 2020, the Minnesota Supreme Court affirmed the Decision of the Minnesota Worker’s Compensation Court of Appeals dismissing the Petition for Payment of Medical Expenses filed by a medical provider, Keith Johnson, D.C.
The chiropractor was properly placed on notice of right to intervene pursuant to Minn. Stat. § 176.361 and chose not to file a Motion to Intervene, which would have made the provider a party to the claim. The Employee ultimately settled his claim with the Employer and Insurer and those providers which had intervened were included in the settlement. The Award extinguished the right of the chiropractor to recover payments pursuant to the statute and Minn. Rule 1420.1850.
Eight months after the Award was filed, the chiropractor filed a Petition for Payment of Medical Expenses. The Employee and the Employer and Insurer filed Motions to Dismiss and the compensation judge dismissed the Petition with prejudice, concluding that the chiropractor did not have standing to file such a Petition because there was no outstanding claim by the Employee. The chiropractor appealed to the Workers’ Compensation Court of Appeals, arguing: 1) the Award was unenforceable and invalid as his rights were extinguished on the basis he chose not to intervene; 2) the rule and statute relied upon by the compensation judge and Office of Administrative Hearings exceeded the express or implied authority granted by the legislature; and 3) he was entitled to full payment per case law as he was excluded from settlement negotiations.
The WCCA affirmed the Order dismissing the Petition, finding that the medical provider chose not to be a party to the case and avail himself of the remedies provided by statute when he chose not to intervene. Because he was not a party to the case, he had no authority or standing to bring a claim under Minn. Stat. § 176.291 or assert the Award collaterally. Due to the lack of standing, the WCCA did not address other arguments by the chiropractor.
The chiropractor appealed the WCCA’s decision to the Minnesota Supreme Court. Michael Johnson represented the Employer and Insurer at oral argument before the Supreme Court en banc on June 2, 2020.
The Minnesota Supreme Court affirmed the WCCA decision in its entirety, finding that a health care provider who voluntarily declines to intervene in a pending workers’ compensation proceeding after receiving timely and adequate notice of the right to intervene cannot initiate a collateral attack on the compensation award under Minn. Stat. 176.271, .291, or Minn. R. 1420.1850, subp. 3B.
The case affirms that under Minn. Stat. § 176.361, Subd. 2(a) and Minn. Rule 1420.1850, a potential intervenor who is properly provided notice of right to intervene and does not file a Motion to Intervene within 60 days of notice shall have their right to recover extinguished.
CWK attorneys Natalie K. Lund and Michael R. Johnson handled the case on behalf of the Employer and Insurer. Please contact either of them with any questions. Natalie can be reached at (952) 525-6951. Mike can be reached at (952) 525-6950