State News : Minnesota

Whitney Teel prepared a chapter in “Workers’ Compensation Emerging Issues Analysis”, 2017 edition. Whitney analyzed the 2017 trends and developments in Minnesota Workers’ Compensation law.

 The Co-editors-in-chief are Thomas A Robinson of LexisNexis and the National Workers’ Compensation Defense Network (NWCDN). CWK is the Minnesota representative for NWCDN.

 This is an excellent book which is an essential tool for attorneys, risk managers, and insurance professionals. The book is a reference guide to issues and cases as well as a 50 state survey of trends and developments.

 You can purchase this tool here http://www.lexisnexis.com/wcrisk or by calling 1-800-223-1940 (mention WCRisk to receive a discount).

This summary was prepared by Associate Attorney, Scott G. Ferriss.

Cousineau, Waldhauser, & Kieselbach attorney Whitney Teel attended and presented at the Larson’s Annual Advisory Board Meeting on Minnesota’s workers’ compensation trends for 2017. The Advisory Board consists of one lawyer from each state. Thomas Kieselbach has been a member of Larson’s Advisory Board for years, advising all members on Minnesota workers’ compensation law.

Whitney presented on three significant Minnesota Supreme Court cases Kubis,Hohlt, and Sanchez. The Sanchez decision received nationwide attention for the emerging issues intersecting employment, workers’ compensation and immigration law. Lexis Nexus listed theSanchez case as one of the top 10 workers' compensation cases for 2017. 

Whitney has also prepared the Minnesota submission for the Lexis Workers’ Compensation Emerging Analysisbook that will be published later this year.

Natalie Lund will be lecturing at the 2017 Workers’ Compensation Deskbook seminaron December 1, 2017 sponsored by Minnesota CLE. Her topic will be Attorney Ethics.

The Deskbook seminar is an annual event. All key cases and developments over the past year will be covered. This is the premier Minnesota workers compensation seminar.

We congratulate Natalie for being selected as a speaker.

Cousineau, Waldhauser, & Kieselbach is proud to welcome two new Associate Attorneys to the firm. Scott Ferriss and Bryan Wachter will be great additions to the team. See below for their biographies.

Scott Ferriss

Prior to joining Cousineau Waldhauser, & Kieselbach, Scott worked in E-discovery. During law school, Scott was a legal extern at the Minnesota Department of Transportation Chief Counsel’s Office and at a large health insurance company in the government programs compliance department. His externship work included legal research, drafting memoranda, and ensuring compliance with government audits.

In his previous career, Scott served as Legislative Assistant to a United States Congressman in Washington, DC covering legislative issues that included, transportation, education, environment, healthcare, and telecommunications. After nearly five years of working for the Congressman, Scott and his then betrothed, Kristen, decided to go to law school. He does not recommend planning a wedding during the first year of law school.

Scott is passionate about the game of golf, railroads, and The Beatles. When he is not golfing, he enjoys spending time with his wife and two cats, Ringo and Eleanor Rigby. 

Bryan Wachter

Prior to joining Cousineau, Waldhauser, & Kieselbach, Bryan was a law clerk to the Honorable Mike Furnstahl, Referee of District Court, Fourth Judicial District, Minnesota. He performed legal research, wrote memoranda, recommended decisions, and drafted orders for the Court.

While in law school, Bryan served as a law clerk at Mid-Minnesota Legal Aid in the consumer division and worked as a research assistant under Professor Neil Hamilton in the development of the American Bar Association publication “Roadmap: The Law Student’s Guide to Preparing and Executing a Successful Plan for Employment.”

Outside of work, Bryan enjoys staying active and spending time with his wife and two dogs. He is an avid reader, sports fan, and music fan.  

Cousineau, Waldhauser, & Kieselbach is proud to be the Minnesota representative for the National Workers’ Compensation Network (NWCDN). The NWCDN is a network of law firms from 45 states dedicated to protecting and representing employers and insurers in workers’ compensation cases.

NWCDN's annual seminar will be held on October 19, 2017 at the Ritz-Carlton Buckhead, 3434 Peachtree Road NE, Atlanta GA. The seminar is open to clients of NWCDN member firms. The cocktail party will be held on October 18, 2017.

Below is a link to the NWCDN website where you can register. There is no cost for the conference and cocktail party. We hope you can attend.

http://www.nwcdn.com/

Tom Coleman, Jennifer Fitzgerald, Tom Kieselbach, Mark Kleinschmidt, Richard Schmidt and Jim Waldhauser have been selected for inclusion in the 2018 Edition of Best Lawyers in America.

For more than 30 years Best Lawyers has published premier guides for the legal profession recognizing talent throughout the word. Currently, lawyers in over 70 countries are recognized. Inclusion in Best Lawyers is based solely upon peer review.

We congratulate our Best Lawyers for their hard work and dedication to our clients.

The Minnesota Supreme Court reversed a decision by the WCCA, and held that the WCCA erred when it found that an expert opinion lacked adequate foundation.

In this case, Debra Mattick (“Employee”) sustained a non-work-related injury to her right ankle in 2000. She underwent two surgeries, and eventually was able to engage in recreational activities including sand volleyball and biking. She was diagnosed with post-traumatic arthritis, and had periodic pain. She returned to work as a cake decorator at Hy-Vee in 2001, working 40-45 hours per week. In 2004, the Employee tripped over a pallet while working at Hy-Vee and twisted her right ankle. She filed a workers’ compensation claim seeking reimbursement for an ankle-fusion surgery. At the Hearing, the compensation judge denied the Employee’s claim for surgery and found that the injury was temporary and had fully resolved. The judge relied on the expert opinion of Dr. Fey and concluded that neither the Employee’s medical records nor the opinions of her treating physicians supported her claim.

The case was appealed to the WCCA, which reversed the compensation judge’s decision and concluded that Dr. Fey’s report lacked adequate factual foundation. The WCCA found that Dr. Fey’s report was suspect, including his discussion of the Employee’s arthritis condition and ankle sprain, and well as his failure to note a 10-year gap in the Employee’s symptoms. Due to this, they found the report to be lacking in adequate foundation.

The Minnesota Supreme Court reversed the WCCA’s decision and reinstated the findings of the compensation judge. The Supreme Court noted that an expert opinion lacks foundation when (1) the opinion does not include the facts and/or data upon which the expert relied in forming the opinion, (2) it does not explain the basis for the opinion, or (3) the facts assumed by the expert in rendering an opinion are not supported by the evidence. Hudson v. Trillium Staffing, 2017 WL 2458132 (Minn. June 7, 2017). The Supreme Court, however, analyzed Dr. Fey’s report based on these factors and found that the report clearly recounted and analyzed the specifics of the Employee’s injuries before opining on the potential aggravation of her arthritis in her ankle, and it was adequately supported by factual foundation. A few statements in the report taken out of context is not enough to discredit the entire report. In conclusion, the Supreme Court found that the WCCA erred, and that the compensation judge properly relied on Dr. Fey’s report.

As the takeaway, the Minnesota Supreme Court reiterated the WCCA’s appellate standard of review under Hengemuhle for the past three decades: the WCCA exceeds its scope of review when it rejects a Compensation Judge’s findings that are supported by substantial evidence and substitutes its own findings.

The case Mattick v. Hy-Vee Foods Stores, A16-1802 and can be found here: http://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme%20Court/Standard%20Opinions/OPA161802-071217.pdf

Josephine Holt (“Employee”) slipped and fell on an icy sidewalk, breaking her hip. She was a painter employed by the University of Minnesota (“Employer”) and after finishing her shift and “punching out”, she began walking the four blocks to her car. She had parked in an Employer owned ramp because it was one of the cheaper places to park. She had not been instructed on where to park. It was snowing and sleeting that day and despite the Employee’s attempt to walk carefully, when she began to cross the street across from the parking ramp, she slipped on the sidewalk’s curb ramp and fell. Per a City ordinance, it is the responsibility of the Employer to maintain the relevant sidewalk and keep it clear of snow and ice.

The matter went to hearing before a compensation judge. The issues disputed at hearing were whether the injury arose out of and in the course on the employment. The compensation judge held the injury did not arise out of the employment because the hazard the Employee faced (an icy sidewalk) was no different than that faced by the general public. The decision was appealed.

The WCCA reversed, holding the injury did arise out of the employment because the Employee was on the Employer’s premises when she was injured and was “walking a short distance on the most direct route to a parking ramp owned and operated by her employer.” The WCCA noted that the Employee was on the premises because of her employment and not because she was a member of the general public. The Employer appealed. arguing the WCCA had misapplied Dykhoff’s distinct “arising out of” and “in the course of” tests.

The Minnesota Supreme Court affirmed the WCCA’s decision, finding the injury compensable. The Court noted that there were no relevant facts in dispute, and therefore reviewed the case de novo. The Court analyzed the facts under the two-part test established in Dykhoff, reiterating that both the “in the course of” and “arising out of” tests must be applied separately and both must be satisfied for an injury to be compensable.

In order for the “arising out of” part test to be satisfied, there must be some casual connection, A causal connection can be established by showing an increased risk. The Court held the WCCA correctly concluded there was a causal connection between the injury and the employment because the Employee was exposed to the hazard of the icy sidewalk because of her employment. The Court stated, “…the test is not whether the general public was also exposed to the risk, but whether the employee was exposed to the risk because of employment.” When an employee is exposed to a hazard on the employer’s premises that creates an increased risk, the “arising out of” prong of the test is satisfied.

An employee is “in the course of” employment both when he or she is providing service to the employer and for a reasonable period of time beyond working hours when engaging in activities incidental to the employment. In this case, the Employee was walking four blocks directly from the building she was working in to where her car was parked. This walk was incidental to her employment and within a reasonable time after she completed her shift. When the incident occurred, she was traveling between Employer premises – the building she was working in and the parking ramp. Traveling between two Employer premises puts an Employee “in the course of’ employment. Additionally, she was walking on Employer maintained sidewalks.

There was a vigorous dissent from Justice Anderson who opined that neither the “arising out of” or “in the course of” tests were satisfied. Justice Anderson reasoned that there was no causal connection between the injury and the employment because the Employee was not exposed to any greater risk than the public and could just as easily have fallen at that same spot in pursuit of personal activities. She was not “in the course of” her employment because she had punched out, was not performing work duties and was walking on a public sidewalk to a parking location of her choosing.

Full Decision: http://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme%20Court/Standard%20Opinions/OPA160349-062817.pdf 

Summary prepared by Emily Johnson, associate attorney