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.
Cousineau, Waldhauser & Kieselbach is proud to announce Jennifer Fitzgerald, Tom Kieselbach and Jim Waldhauser have been selected as 2019 Minnesota Super Lawyers. Elizabeth Cox and Whitney Teel have been selected as 2019 Minnesota Rising Stars.
Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas 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. In 1998, Super Lawyers launched Rising Stars in Minnesota to recognize the top up-and-coming attorneys in the state — those who are 40 years old or younger, or who have been practicing for ten years or less. Designation as a Rising Star is awarded annually to no more than 2.5% of licensed, active lawyers. For more information, visitwww.SuperLawyers.com.
On July 12, 2019, Cousineau, Waldhauser & Kieselbach, P.A. presented its’ annual client seminar. Attendance was excellent. Natalie Lund organized and hosted the seminar. We thank Natalie for her excellent and hard work. The topics included interesting and helpful takes on: Arising out of and in the Course of, Dykhoff, PTSD, Surveillance, Caselaw Update, #MeToo in Mn, How to Make Rehabilitation Work, and Compensability Questions and Answers.
The reviews from our clients were spectacular. All of the topics and speakers were given top marks. We thank our clients and guests for such positive feedback. Our next seminar will be in 2020. We promise that the quality will remain the same. We will provide a seminar which is geared to our clients’ needs and as always will be informative, helpful and entertaining.
We are please to announce that Cousineau, Waldhauser, & Kieselbach's Target Corporation team received the highest rating nationally for Workers' Compensation for the fourth quarter of 2018. The team graded at 3.92/4.00.
Jennifer Fitzgerald,Tom Kieselbach, andParker Olson make up the team. Congratulations to the team for their excellent work.
Natalie Lund, Shareholder at Cousineau, Waldhauser, & Kieselbach has been asked to be the defense co-chair for the 2019 Workers’ Compensation Institute on April 24 and 25, 2019, sponsored by Minnesota CLE.
The Institute provides a complete update on all the workers’ compensation developments over the last year in Minnesota, with featured guest and attorney speakers. This is the premier Minnesota workers compensation seminar.
We congratulate Natalie for being selected as the co-chair.
In September 2018, the National Workers’ Compensation Defense Network (NWCDN) held it’s annual national conference and seminar in Minneapolis. It was a great success. Industry leaders and attorneys from 45 states attended. The seminar was headlined by Bob Lund, CEO of SFM, Dr. Uzma Samadani, Dr. Richard Migliori, Dr. Teresa Bartlett and Steve Perroots, Vice President of Marriott International. CWK was the host law firm. Tom Kieselbach moderated the seminar. Mark Kleinschmidt and Natalie Lund participated in the substantive program.
Annually, US News and World Report/Best Law Firms honors the top law firms in the United States. The selection process is rigorous.Cousineau, Waldhauser & Kieselbach, P.A. has been selected as a Tier 1 law firm for Workers Compensation-Employers, 2019. We are proud of the honor and thank our peers for selecting us. We have been selected every year as a Tier 1 law firm/practice group since the inception of the award.
We are also please to announce that six CWK attorneys have been selected for inclusion in "Best Lawyers in America".
This is an extraordinary accomplishment, especially given that CWK has 18 lawyers. We congratulate our attorneys and staff for their excellent work!
Jim Waldhauser of Cousineau. Waldhauser, & Kieselbach, P.A., has been selected by his peers as the 2019 Minnesota Lawyer of the Year - Workers' Compensation-Employers. This is a singular and well-deserved honor.
Jim is a tremendous advocate who has contributed greatly to the profession.
For more information, please visit our website.
Roller-Dick vs. CentraCare Health System, A17-1816 (Minn. August 8, 2018):
ISSUE: ARISING OUT OF & IN THE COURSE OF
Procedural History of Case
In this case, Employee sustained an injury to her ankle after falling down a set of stairs located on the employer’s premises. The stairway had handrails on both sides as well as nonslip treads on the steps. However, Employee was not using the handrails because she was holding a personal plant from her desk as well as her handbag. She ended up falling on the stairs and injuring her ankle.
The matter proceeded to a Hearing. The sole issue before the compensation judge was whether her injury “arose out of” the employment. Relying onDykhoff v. Xcel Energy, 840 N.W.2d 821 (Minn. 2013) and Kirchner v. County of Anoka, 339 N.W.2d 908 (Minn. 1983), the compensation judge held that the injury did not arise out of employment because Employee failed to establish that the stairs were more hazardous than stairs she might encounter in everyday life or that her work duties in some way increased her risk of falling. The WCCA reversed and clarified that the issue is whether the stairs posed an “increased” as opposed to a “neutral” risk. The WCCA determined the stairs were inherently hazardous and not a neutral condition like the floor inDykhoff.
The Minnesota Supreme Court recently affirmed the WCCA’s decision.
Minnesota Supreme Court’s Analysis
For an injury to “arise out of employment,” there must be some “causal connection” between the injury and the employment. The Court noted that the case turns on whether the Employee faced a hazard that originated on the premises as a part of the working environment. In analyzing the Kubis and Hohlt decisions, the Court affirmed the core principles underlying the conclusion inDykhoff: “for an injury sustained on an employer’s premises to arise out of employment, the employee must have faced a hazard that originate on the premises as part of the working environment, thus supplying the requisite causal connection between the injury and employment.”
The Court compared this case to the Kirchner case, in which the Employee fell down stairs without using a handrail because persons ascending the staircase occupied the only side with the handrail. In this case, the Employee was not using the handrails as she was descending the stairs because she was carrying a plant as well as her handbag. The Court held that these circumstances created an increased risk that the Employee would fall and injure herself, thus satisfying the requisite causal connection between the workplace and her injury.
The Court goes on to explain that in workers’ compensation cases, it does not inquire whether the circumstances that led to an employee’s injury were attributable to either the employee or the employer. The Court notes that the dissent’s opinion that the fall is not compensable due to the Employee’s decision to not take advantage of the handrails returns the case to the negligence standard that the Workers’ Compensation Act expressly rejects. In a footnote, the majority opinion expressly states “we do not hold… that stairs themselves are workplace hazards exposing employees to an increased risk of injury. Rather, we conclude that the now-undisputed factual circumstances surrounding Roller-Dick’s injury… amount to an increased risk as a matter of law.”
Dissent
Justice Gildea, in the dissenting opinion, states that there is no dispute that the Employee satisfies the “in the course of” requirement of the statute, but that because the Employee did not establish a causal connection between her injury and her employment, she does not meet the “arising out of” element. The dissent points out that by failing to require a connection to the Employee’s actual job duties, the majority opinion effectively does away with the “arising out of” element of the statute. The dissent felt that carrying a personal plant and not holding the handrail was not sufficient for an increased risk connected to the employment.
Why this case matters
Failure to use handrails on employer-maintained staircases can lead to compensable injuries, even if the employee’s reason for not holding the handrail is purely personal in nature (i.e. carrying personal items). Notably however, this decision explicitly declined to provide a bright-line rule that stairs are inherently hazardous. There likely will be more cases to come addressing this issue of employer staircases.
For the full decision, click the link below:
https://mn.gov/law-library-stat/archive/supct/2018/OPA171816-080818.pdf
Summary completed by Bryan Wachter and Parker Olson, CWK Associate Attorneys
Hufnagel v. Deer River Health Care Center, A17-2064 (Minn. July 18, 2018)
In this case, Employee sustained an admitted injury to her low back in 2009 while working for Deer River. Deer River then became Essentia Health-Deer River and changed its insurer in 2013. Employee continued to work there, and sustained aggravations to her low back in 2014 and 2015. Employee then filed a Claim Petition; however it was solely against the 2009 Deer River injury. Attorney for Deer River asked Employee’s attorney to join the 2014 and 2015 Essentia Health injuries to the matter, but he refused. Subsequently, Deer River filed a Motion for Joinder to add Essentia Health to the case. This was granted. At the Hearing, Employee’s attorney indicated that he did not believe there were any injuries in 2014 or 2015, which was contrary to the opinion of an Independent Medical Examiner. Judge Kohl instead found that there were injuries in 2014 and 2015 and ordered Essentia Health to make payment of wage and medical benefits. There were no benefits awarded against the 2009 injury and Deer River.
Employee subsequently claimed attorney fees under Roraff/Irwin and Minn. Stat. §176.191 in the amount of $31,120.00. In support of the claim for .191 fees, Employee asserted that the primary dispute in the case was between the two insurers, even though both insurers had denied primary liability. At the hearing for attorney fees, Employee’s attorney was found to be entitled to $8,000 inRoraff/Irwin fees. The compensation judge concluded that Employee was not entitled to recover attorney fees for the time her attorney spent in re-establishing the 2009 injury. Additionally, it was noted that since Deer River was actually the entity to join Essentia Health, which ultimately gave rise to compensation for Employee, that Employee’s attorney fee claim should be reduced. The compensation judge denied any additional fees under Minn. Stat. §176.191, as he found that the primary dispute was not between the insurers, but rather between the employee and the insurer(s).
The WCCA reversed this decision, holding that the compensation judge failed to fully consider the extent to which each employer sought to shift liability to the other employer and that it was error to deny the motion for fees under Minn. Stat. §176.191, subd. 1. They also held that Employee’s attorney was entitled to recover additional attorney fees underRoraff/Irwin.
Essentia Health appealed the decision to the Minnesota Supreme Court. The Minnesota Supreme Court affirmed the WCCA. The Court addressed two issues: (1) whether the compensation judge erred in concluding that there was no dispute between the two employers that would entitle her to fees under Minn. Stat. §176.191, and (2) whether the Employee is entitled to recover attorney fees for the time spent in establishing the 2009 injury.
With regard to the .191 fees, the Court concluded that it was error for the compensation judge to determine the dispute in this case was not primarily between the insurers. The Court held that whether the 2009 injury was a substantial contributing factor in the Employee’s ongoing physical condition was, at its heart, a dispute about which employer was liable for the benefits the Employee would be entitled for 2014 and 2015 injuries. The efforts by each employer to shift responsibility to the other employer greatly increased the burden on the Employee’s counsel to provide effective representation, and therefore the Court held she was entitled to receive reasonable attorney fees under Minn. Stat. §176.191, subd. 1. Even though the Employee had not been guaranteed any compensation for herself going into the Hearing as both insurers denied liability, the Court still found that the primary dispute was between the insures.
With regard to the issue of Roraff/Irwin fees, the Court held that although the case before the compensation judge was not itself about an award of benefits specific to the 2009 injury, some amount of time and effort was still necessary to adequately prepare for and respond to the argument the employers raised regarding the 2009 injury and its relationship to the 2014 and 2015 injuries. The Court discussed its expectation that attorneys thoroughly prepare to represent their clients and that an award of reasonable fees should be adequate to compensate an employee’s attorney for the value of representation provided, including for the time reasonably necessary to thoroughly prepare.
One key takeaway from this decision is that the standard for .191 attorney fees is not a bright-line rule. In a situation where there are two insurers (who even both deny primary liability), Employee’s attorney may be found to be entitled to fees under Minn. Stat. 176.191 if there is enough “finger pointing” between the two insurers. Such situations require a full case-by-case analysis of all the facts to make a determination.
For the full decision, click the link below.
https://mn.gov/workcomp-stat/sup/Hufnagel-sup%2018.html
Summary completed by Bryan Wachter, CWK Law Associate Attorney