State News : Minnesota

In this case, Kubis (“Employee”) sustained an injury at work while rushing up a staircase at Community Memorial Hospital (“Employer”). The matter proceeded to a Hearing. The issue before the compensation judge was whether her injury arose out of and in the course of her employment. During the Hearing, the Employee testified that she needed to go up to the second floor to complete a report and clock out. In conflicting pieces of testimony, she stated that she rushed up the stairs because she was “afraid of the overtime” and “wanted to report off to the next crew.” In the weeks leading up to her fall on the staircase, there was some discussion by her Employer regarding limiting “unnecessary overtime” for all employees. However, this Employee had been authorized to work overtime to complete her documentation in the past. Additionally, she had worked overtime in 10 of the 13 pay periods preceding her fall. There was nothing hazardous about the staircase itself according to an expert report submitted by the Employer and Insurer. The compensation judge dismissed the Employee’s claim and found that she failed to establish that her injury was caused by an increased risk that arose out of her employment. Most importantly, the compensation judge found that her “claim that she was rushing up the stairs because she felt pressured to do so because of the hospital’s policy encouraging employee’s [sic] to log out on a timely basis at the end of their shifts is not credible.”

The matter was appealed to the WCCA, and it reversed the compensation judge’s decision. The WCCA reasoned that the Employee’s split motivation of prompt report to the oncoming shift established an increased risk that arose out of her employment. The case was appealed to the Minnesota Supreme Court.

The Minnesota Supreme Court reversed the WCCA’s decision and reinstated the ruling by the compensation judge. The Court held that the WCCA failed to adhere to the appropriate standard of review, which is found in Hengemuhle. The WCCA cannot substitute its view of the evidence as long as the compensation judge’s findings are supported by substantial evidence. Ultimately, the Court held that the WCCA substituted its own credibility determination of the Employee in this matter and decided that the compensation judge was incorrect. This is improper under the Hengemuhle standard of review.

Notably, this case was a 4-3 decision. The Minnesota Supreme Court did not analyze the increased risk test, as the case was solely decided by the standard of review issue described above. However, the dissent notes that Minnesota should consider adopting the “positional-risk test” instead of the increased risk test. This may be an interesting development in the future should the Minnesota Supreme Court decide to hear this issue.

The full decision can be found here: http://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme%20Court/Standard%20Opinions/OPA160361-062817.pdf 

Summary prepared by Parker Olson, associate attorney.

This is an employment law case which involves the workers’ compensation anti-retaliation statue, Minn. Stat. 176.82. The underlying facts of this case concern an employee who came to the United States on a tourist visa, but continued to live in the United States without documentation after the visa expired. He bought a social security number to apply for jobs, and this social security number was provided to the employer when he was hired in 2005. The employee alleged his managers were aware that he was no legally authorized to work in the United States.

He was injured in 2013 while operating a sandblaster. He missed work and incurred medical expenses. A claim petition was filed, and the workers’ compensation claim had settled. In any event, in his deposition, he testified he was not legally authorized to work in the United States. After his deposition, he was asked about his legal status by his employer, and he was told he could not work for the employer any longer due to his legal status. He was then presented with a letter – which he signed – indicating that he had voluntarily told his employer that his social security documentation was not legitimate and that he was not authorized to work in the United States, and thus, he was sent home on unpaid leave. He could return to work once he provided legitimate paperwork evidencing he could legally work in the United States.

Procedurally, the employee sued the employer under Minn. Stat. 176.82 for retaliatory discharge. The district court granted summary judgment to the employer concluding there was no issue raised of material fact about whether the employee was discharged due seeking workers’ compensation benefits. The Court of Appeal reversed, and the Supreme Court affirmed.

Minn. Stat. 176.82 only applies in cases of discharge, threatened discharge, and intentional obstruction of benefits. Thus, there was a question on whether the employee’s “leave” constituted discharge. The Court held that the actual intent of the employer was key in determining whether discharge occurred, and where the employee is placed on “temporary” leave, but the intent is for the leave to not end, then said “leave” amounts to discharge. If the motivation was retaliatory, then it implies there was intent for the leave to be permanent. This was determined to be an issue of factual dispute, which was to be resolved by a factfinder.

In addition, the Court held there was an issue of genuine material fact regarding whether the employee was discharged for seeking workers’ compensation benefits, another element of Minn. Stat. 176.82. The Court noted that the employee asserted the employer knew about his immigration status for years prior to the workers’ compensation injury.

Finally, the Court held the Immigration Reform and Control Act (IRCA) did not preempt an undocumented worker’s claim under 176.82. The Court indicated employer could have complied with IRCA and 176.82, if the employee had been discharged due to immigration status.

Impact: This is a procedural employment law opinion; however, the impact on workers’ compensation is that an employee can bring a 176.82 retaliatory discharge claim even if the employee is placed on “leave” when it is the employer’s intent is for the employee not to return to work. In addition, complying with IRCA will not be a defense to a 176.82 claim when the discharge is retaliatory for bringing a workers’ compensation claim. Simply put, where an employer knows that the employee is undocumented prior to the workers’ compensation claim, and discharges the employee after the workers’ compensation claim on the basis of the employee being undocumented, they expose themselves to a 176.82 claim.

The full decision can be found here: http://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme%20Court/Standard%20Opinions/OPA151183-062817.pdf 

Summary prepared by Elizabeth Cox, associate attorney.

We are pleased to announce that Jim Waldhauser and Tom Kieselbach have once again been selected asSuper Lawyers (2017).  Whitney Teel has been selected as a Rising Star (2017). 

The selection process for Super Lawyers has been patented (U.S. Pat. No. 8,412,564).  The selection process involves three steps:  creation of the candidate pool, evaluation of candidates by the research department and peer evaluation by practice area.  Each candidate is evaluated on twelve indicators of peer recognition and professional achievement.  Candidates cannot nominate themselves nor can they pay to be on aSuper Lawyers’ list.  For more information on Super Lawyers visit www.superlawyers.com.

We are pleased to announce that Michael Gilligan has joined the firm as an Associate Attorney. Michael is a 2011 graduate of Kenyon College where he played varsity golf and lacrosse. In 2015 he graduatedCum Laude from William Mitchell College of Law. Michael was an Assistant Editor of the William Mitchell Law Review and was a finalist in the Rosalie E. Wahl Moot Court Competition. He also was on the Dean’s List.

Prior to joining the firm Michael was a law  clerk for the Honorable Diane M. Hanson, Judge of District Court, First Judicial District, Minnesota. While in law school, Michael clerked at an insurance defense firm in Minneapolis. He has experience in civil matters, including subrogation and general liability.

Michael’s practice will focus primarily on workers’ compensation  litigation, including hearings, settlements, depositions, conferences and motions.

 Jennifer Fitzgerald and Whitney Teel were honored in 2016 as “Rising Stars” in Workers’ Compensation. In the April 2017 print edition ofMpls/St. Paul Magazine they were listed as “Top Women Attorneys in Minnesota”. The selection process is rigorous and based upon peer reviews and third party research.

 The annual Minnesota Workers' Compensation Symposium will be held at the Marriott Hotel, Brooklyn Park, MN, on May 11, 2017. This is the largest and most comprehensive Workers' Compensation seminar in Minnesota. The topics will be diverse, with presentations by medical, rehabilitation, psychological experts, as well as practicing attorneys.

Cousineau, Waldhauser, & Kieselbach, P.A. attorneys Richard Schmidt and Jennifer Fitzgerald will be presenting on the topics of settlement and settlement issues.  

Tom Kieselbach will present the 2018 class of Fellows  at the College of Workers’ Compensation Lawyers Induction Dinner in Phoenix on March 18, 2017.  The College was created to honor lawyers nationally for their excellence. Fellows must possess the highest professional qualifications and ethical standards. Fellows have to demonstrate scholarship, advocacy skill, civility, and the respect of their peers.  

Tom was selected as a Charter member of the College in 2007. He is currently on the Board of Governors and serves as Chair of the Nominating Committee. Mark Kleinschmidt was selected as a Fellow in 2011, but unfortunately will not be attending the induction dinner.

The College’s annual meeting and Induction dinner are held in conjunction with the ABA/WC annual seminar.

For years our firm and its attorneys have been honored by our peers for excellence. In 2017, Jim Waldhauser, Tom Kieselbach, Mark Kleinschmidt, Dick Schmidt and Tom Coleman were once again included inBest Lawyers in America. Our Workers’ Compensation practice group at Cousineau McGuire (now Cousineau, Waldhauser & Kieselbach, P.A.) was selected as a Tier one practice group byU.S. News and World Reports/Best Law Firms in America.

We are proud of our years of quality service and thank our peers for recognizing our firm and attorneys.

Recently, the Minnesota Supreme Court reversed a decision by the WCCA and held that a psychological examiner had adequate foundation to provide an expert opinion regarding a concussion and post-concussion syndrome. In the case, an employee injured her head in the scope of employment, and filed a medical request seeking coverage for various treatments. Following the hearing, the compensation judge denied the employee’s medical request and found that she had not sustained a concussion or post-concussive syndrome. The compensation judge relied heavily on the opinion of a psychological examiner in ruling in favor of the employer and insurer.

 The employee filed an appeal to the WCCA, which reversed the compensation judge’s decision. The WCCA found that the psychological examiner lacked foundation and was not competent as an expert. The issue of competence was never raised on appeal. The WCCA brought it up sua sponte (“on their own”), and ruled in favor of the employee after second-guessing the decision of the compensation judge.

 The case was then appealed to the Minnesota Supreme Court, which reversed the WCCA’s decision. The Court found that the WCCA erred when it ruled on the issue of the psychological examiner’s competence. Pursuant to Minn. Stat. 176.421, Subd. 6, the WCCA is “limited to issues raised by the parties in the notice of appeal” and therefore should never have raised the competence issuesua sponte. Furthermore, the Court indicated that it was frankly perplexed at the WCCA’s opinion that the psychological examiner did not have adequate foundation. The Court made it clear that the WCCA should not have second-guessed the compensation judge, and ultimately ruled in favor of the employer and insurer.

 The case is Gianotti v. I.S.D. 152, A16-0629 and can be found here: http://mn.gov/law-library-stat/archive/supct/2017/OPA160629-020817.pdf

 This article was prepared by Parker T. Olson and edited by Michael R. Johnson.