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INDEPENDENT MEDICAL EXAMINATION REPORTS

By

Tom W. Atchison

I. OVERVIEW

A. An Independent Medical Examination (IME) is one of the best defense tools

available to Employers and Insurers in Minnesota workers’ compensation claims.

1. Allows Employers and Insurers to obtain medical opinions regarding the

reasonableness and necessity of recommended medical treatment.

2. Provides a basis to discontinue workers’ compensation benefits or close out

medical benefits in Stipulations for Settlement.

3. Provides opinions regarding the nature and extent of an injury, maximum

medical improvement, and an injured workers’ disability status.

B. In order to maximize effectiveness, there are certain considerations that must be

kept in mind when obtaining an IME.

1. When to obtain reports and supplemental reports.

2. Which doctor to use.

3. What information and materials to provide to IME doctor.

4. What questions to pose to IME doctor.

II. INDEPENDENT MEDICAL EXAMINATION

A. When allowed under Minn. Stat. § 176:

1. Minn. Stat. § 176.155, subd. (1)

a. An injured worker “must submit to examination by the employer's

physician, if requested by the employer, and at reasonable times

thereafter upon the employer's request.”

b. Not necessarily limited to one IME or the same doctor.

(1) Injured workers must submit to subsequent examinations at

“reasonable” times.

2. “Reasonable time” for additional IMEs

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a. New injuries

b. New claims

(1) Claims for new injured body parts

(2) Claims for new benefits

(3) New PPD ratings

(4) New recommendations for medical treatment

(5) Significant changes in disability status

c. In advance of upcoming Hearing

(1) Often, there are significant delays in workers’ compensation

litigation, creating situations where a hearing occurs a few years

after the initial IME. In those cases, it is reasonable to obtain

an updated IME in advance of the hearing.

d. Changes to nature and extent of injuries

(1) For example – original IME was obtained to address carpal

tunnel syndrome, but employee subsequently begins treating for

radicular problems or neurological issues involving spine.

e. Entitlement to additional IME is ultimately a fact issue for a

compensation judge.

(1) File Motion to Compel if Employee objects to attending the

IME.

3. Other considerations

a. Examination must be located within 150 miles of an injured

worker’s residence.

(1) Not a firm, absolute rule: IME can be outside of 150 miles if the

Employer and Insurer can show “cause”.

i. An IME with a certain specialist (e.g., neurosurgeon who

performs cervical fusions, psychologist, etc.) not available

within 150 miles.

ii. Time considerations of case make IME within 150 miles

limitation impractical.

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iii. Employee was already seen by doctor for prior IME.

(2) Employee may have reason to agree to travel beyond 150 miles.

b. Must pay reasonable travel expenses, including mileage and

parking. In some situations, lodging and meals are to be paid to the

Employee. The Employer and Insurer must also pay for wages lost

while attending IME.

c. IME report must be served on the employee and his/her attorney and

filed with DOLI/OAH within 120 days of service and filing of an

Employee’s Claim Petition.

(1) If deadline cannot be met, a Motion for IME Extension

should be filed with OAH.

III. WHEN TO OBTAIN AN IME REPORT

A. To address causation.

B. To address the reasonableness and necessity of recommended medical treatment.

1. Even for admitted claims, an Employer and Insurer can obtain an IME

before electing to approve surgery or other treatment.

C. To address reasonable and necessary future medical care and treatment.

D. To address an injured worker’s disability status.

1. The appropriateness of work restrictions recommended by treating doctor.

2. The need for long term work restrictions.

E. To obtain a PPD rating and MMI opinion.

IV. WHICH DOCTOR TO USE

A. Selecting the right IME doctor is an important part of defending a workers’

compensation claim in Minnesota.

B. It is important that the IME doctor is the correct doctor for the current dispute.

1. For example, if a cervical fusion is being recommended, it is better to obtain

an IME with a practicing neurosurgeon, rather than a general orthopedic

specialist.

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2. If the doctor recommending surgery is a practicing surgeon with certain

specialty, it is a good idea to find an IME doctor who is also practicing in

the same field and regularly performs the surgery at issue.

C. Make sure the doctors do not go outside their area of expertise.

1. IME doctors who address injuries they do not treat or surgeries they do not

perform should be avoided.

D. Make sure that the IME doctor is credible.

1. Certain doctors have a reputation for never finding a compensable work

injury or always concluding that the recommended treatment is not

reasonable, necessary, or causally related to a work injury.

2. Compensation Judges at OAH know which IME doctors are reasonable and

which ones always side with the defense.

E. Know the tendencies of the doctors.

1. For example, some doctors are favorable to employees when addressing

causation, but very guarded with treatment recommendations.

a. This type of doctor would be a good choice on an admitted claim

with a surgery recommendation.

F. Make sure the doctor writes a good report.

1. Reports should be well-written and persuasive, not just “yes or no” answers

with limited explanations.

V. WHAT TO PROVIDE TO IME DOCTOR

A. In order for an IME report to be credible, the IME report must first have proper

foundation.

B. Make sure the doctor has all of the Employee’s medical records, including any

records that pre-date the injury.

1. If an injured worker has a prior injury, make sure that the IME doctor has

all records related to the injury.

C. Diagnostic tests

1. Whenever possible, it is better for the IME doctor to have copies of MRI

scans, not just the radiology report.

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a. This is particularly true if someone has pre-existing issues.

D. An accurate description of the injury in question, including witness statements and

employee deposition testimony.

1. If the IME occurs before the deposition or investigation of the injury occurs,

you will likely need a supplemental report.

E. Gillette Claims

1. Whenever possible, make sure the IME doctor has a detailed description of

the employee’s job duties.

VI. QUESTIONS FOR IME DOCTOR

A. The actual questions posed to the IME doctor are crucial, because they can

dramatically affect the outcome of a case.

B. Too many people use the same, standard questions, regardless of the facts of the

case.

1. The questions need to be tailored to the facts of the case.

a. If there is no dispute the injury occurred, and causation is not at

issue, it can be dangerous to have the IME doctor address causation.

b. If the Employee has provided testimony that he sustained a

particular injury at work, but provided his doctor with a different

history of injury, it is pointless to simply ask if the Employee’s

“work injury” is a substantial contributing factor to his diagnosis or

disability.

(1) Which “work injury” – the one he reported to his doctor or the

one described at his deposition?

c. The questions you might ask on a back injury case are not the same

questions you would ask on PTSD claim.

C. Make sure that the interrogatories ask the IME doctor to explain the basis for his or

her opinions.

1. One or two sentence answers should be avoided.

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COMPOUND MEDICATIONS

By

C. Jeremy Lagasse

I. DEFINITION:

A. “[C]ompounding is a practice in which a licensed pharmacist…combines, mixes,

or alters ingredients of a drug to create a medication tailored to the needs of an

individual patient.” (FDA).

II. COMPOUNDING INCLUDES:

A. The alteration of one active ingredient from one form to another.

1. Pill to liquid

2. Liquid to power

B. The mixture of multiple active ingredients and inactive ingredients.

1. Creams

2. Gels

3. Ointments

III. POLICY:

A. “Individualized medicine”

B. Focus on “unique” needs of patients

1. Pain

2. Ingestion limitations

3. Personal preference

C. Attempt to resolve symptoms NOT resolved by commercially available

medications

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IV. HISTORY:

A. Producers of compound medications:

1. Pharmacists

a. Licensed to handle FDA approved medications for personal

use/consumption.

b. Traditionally charged with dispensing medications based upon

doctor diagnosis.

c. If a person had a need for the medication to be reformulated or

altered for delivery purposes, the pharmacist would be in charge.

2. Compounding companies

a. New development in modern “medicine”.

b. Created to produce marketable compounds.

c. Often associated with a smaller number of clinics comfortable with

their services.

d. NOT initially subject to FDA approval/regulation.

e. Traditionally subject to state regulation.

(1) Minn. Stat. § 151.15 – mandates pharmacist supervision.

V. CRISIS:

A. Public Health

1. New England Compounding Company

a. 2012 outbreak of fungal meningitis

b. Killed 64

c. Sickened hundreds

B. Cost inflation

1. Claims submission changes in 2012 by the National Council on

Prescription Drug Programs.

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2. Permitted compounding pharmacies to bill for all ingredients.

a. Previously billed based only on the most expensive ingredient.

3. Policy: prices would more accurately reflect costs of all ingredients.

4. Effect: companies starting packing more inert and unnecessary ingredients

into their compounds to up the price.

VI. RESPONSE:

A. Federal Government:

1. Drug Quality and Security Act of 2013

a. Classes of compounding companies were established

(1) “outsourcing facilities”

b. Licensing regime

(1) voluntary registration

(2) random inspection

B. State Government

1. Minn. Stat. § 151.253

a. Ties the standard for “bulk drug substances” to the federal

standard.

b. Prohibits compounding of drugs that are “essentially copies of

commercially available drugs”.1

c. Prohibits compounding of drugs that are dangerous as per U.S.C. §

21.

1 Note: The term "essentially a copy of a commercially available drug product" does not include a drug product in

which there is a change, made for an identified individual patient, that produces for that patient a significant difference,

as determined by the prescribing practitioner, between the compounded drug and the comparable commercially

available drug product. (This allows an end run around the statute)

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C. Private Sector:

1. 2014 - Express Scripts began blocking reimbursement for over 1,000

different compounding agents

2. Claims Professionals

VII. THE FUTURE:

A. Scrutinize those files.

B. Work with the right Pharmacy Benefit Manager.

C. Reach out to doctors to ask if they have explored all other options.

D. Be wary of a claimant’s physical condition and their ability to ingest or receive

medications.

E. Work with doctors who are trained to spot abuse and frivolous prescriptions.

F. Contact an attorney who can help craft the inquiry to the doctor and evaluate the

exposure.

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VOCATIONAL REHABILITATION

By

Michael T. Courtney

I. INITIAL CONSULTATION

A. An Employee is entitled to a rehabilitation consultation, as a matter of right, unless

the Employer or Insurer has filed a timely request for a waiver.2

B. The Employer and Insurer are not indefinitely responsible for a rehabilitation

consultation, but can assert threshold liability issues, such as complete recovery

from injury, lack of notice, statute of limitations, refusal of suitable employment,

denial of primary liability.3

C. Disability Status Report – document that triggers rehabilitation consultation

1. Must be filed when the Employee has not returned to work;

a. Within 14 days of when it becomes known that the disability will

extend beyond 13 weeks from the date of injury;

b. Within 90 days of the date of injury; or

c. Within 14 days after receiving a request for a rehab consultation,

whichever is earlier.4

2 Wagner v. Bethesda Hosp., slip op. (W.C.C.A. Jan. 5, 1995). 3 Judnick v. Sholom Home, slip op. (W.C.C.A. Aug 4, 1995). 4 Minn. R. 5220.0110, subp. 7A.

TIPS

Unless there is a waiver filed, approve the initial rehab consultation in most

cases.

If there is a dispute as to whether or not the employee is a qualified employee

for rehabilitation services, object to the rehabilitation consultation report by

filing a rehabilitation request.

When it becomes apparent the employee may be eligible for rehabilitation

benefits, file a disability status report and choose a good QRC.

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II. QUALIFED EMPLOYEE – MINNESOTA RULE 5220.0100 (22)

A. An employee who, because of the effects of a work-related injury or disease,

whether or not combined with the effects of a prior injury or disability:

1. Is permanently precluded or is likely to be permanently precluded from

engaging in the employee’s usual and customary occupation or from

engaging in the job the employee held at the time of the injury;

2. Cannot be reasonably expected to return to suitable gainful employment

with the date of injury employer; and

3. Can reasonably be expected to return to suitable gainful employment

through rehabilitation services, considering the treating physician’s opinion

of the employee’s work ability.

B. An employee only need be presently precluded from engaging in previous work

duties.5

III. SELECTION OF QRC

A. Employee has a right to choose a QRC at the onset.

1. If employer selects QRC, employee has 60 days following the filing of the

rehabilitation plan to object and choose their own.6

B. Any party may propose a change of assigned QRC. The parties can agree to a

change, or if no agreement, a rehabilitation request can be filed.7

1. Best interest of the parties.

2. Determined based on the goals of rehabilitation.8

3. Goal is to restore the injured employee so they may return to a job related

to their former employment or work in another area which produces an

economic status as close as possible to that the employee would have

enjoyed without disability.9

5 Richardson v. Unisys Corp., 4 WC.D. 188 (1990). 6 Minn. Stat. § 176.102, subd 4(a); Minn. R. 5220.0710, subp. 1; Owens v. New Morning Windows, slip op.

(W.C.CA. June 5, 2000). 7 Minn. R. 5220.0710, subp 3. 8 Id. 9 Minn. Stat. 176.102, subd 1(b)

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4. Employee’s reasonable loss of faith and trust in QRC has been found to be

a reason to switch QRCs.10

5. On the other hand, it is not to be given greater consideration than employer’s

interest.11

IV. JOB PLACEMENT (THE IN-HOUSE REFERRAL)

A. Minn. R. 5220.1900 1(a-f)

1. Limits QRC billing to two hours per 30 days where a job placement vendor

is performing services

2. Limits QRC’s accompanying employee to medical appointments without

consent of employer

3. Limits QRC billing to no more than 8 hours to conduct rehabilitation

consultation and develop, prepare, and file rehabilitation plan

B. Employer/Insurer only liable for reasonable and necessary services. The

commissioner’s or judge’s review of reasonable and necessary services must

include ALL of the following factors:

1. Employee’s unique disabilities and assets in relation to the goals, objectives,

and time table of the rehabilitation plan;

2. Type of rehabilitation services provided and the actual amount of time and

expense incurred in providing the service;

3. An evaluation of whether the services were unnecessary, duplicated,

excessive, or available at no charge to the public; and

4. Whether services were expressly called for by the employee’s rehabilitation

plan.12

C. Time limitations

1. For injuries occurring on or after October 1, 2013, must not exceed 20 hours

per month or 26 consecutive or intermittent weeks.

10 Gombold v. Metal Craft Mach. & Eng., slip op, No. WC07-132 (W.C.C.A. Sept. 11, 2007). 11 Lemke v. Independent School District No. 112 (W.C.C.A. May 30, 2003). 12 Minn. Rule. 5220.1000, subp. 2.

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2. Once 13 weeks of job placement has been provided, QRC must consult with

parties and either file plan amendment to extend the plan for another 13

weeks, or file a request for Rehabilitation Conference.

3. No job placement plan can exceed 26 weeks.13

V. RETRAINING

A formal course of study in a school setting that is designed to train an employee to

return to suitable gainful employment.14

A. Results in substantial exposure

1. 156 weeks of TTD while participating in program

2. Tuition, books, mileage, parking, etc.

B. Timing

1. Employee must request retraining before 208 weeks of any combination of

TTD or TPD benefits.

2. Employer/Insurer must give the employee written notice of the right to

request retraining before 80 weeks of TTD or TPD benefits have been paid.

C. Employees precluded from their pre-injury jobs are entitled to an evaluation to

determine whether retraining is an appropriate and feasible option.15

D. Poole16 factors:

1. Reasonableness of retraining compared to the employee’s return to work

with the employer or through job placement activities;

2. The likelihood of the employee succeeding in a formal course of study given

the employee’s abilities and interests;

3. The likelihood that retraining will result in a reasonable attainable

employment; and,

13 Minn. Stat. § 176.102, subd. 5. 14 Minn. Stat. § 176.011, subd. 17(a). 15 Siltman v. Partridge River, Inc., 523 N.W.2 491 (Minn. 1994). 16 Poole v. Farmstead Foods, 42 W.C.D. 970, 978 (1989).

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4. The likelihood that retraining will produce an economic status as close as

possible to that which the employee would have enjoyed without the

disability.

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CASE LAW UPDATES

By

Mackenzie R. Moy

I. POST-INJURY EMPLOYMENT

Jenkins v. Minn. Vikings Football Club, slip op. (W.C.C.A. Dec. 10, 2015)

Jenkins was drafted by the Minnesota Vikings in 2011. In November 2011, he suffered

a complete tear of the lateral meniscus and he underwent a meniscus repair. He did not

play the remainder of the 2011-2012 football season. After extensive rehabilitation, he

played all 16 games of the 2012-2013 season before he was released from his contract

with the Vikings and signed a one-year contract with the New England Patriots for the

2013 season. He was released from that contract in August 2013. He was approached

by the Indianapolis Colts and Detroit Lions, but did not receive medical clearance and

never signed with either team. He retired from professional football in fall 2013. He

did not engage in a job search, but filed a Claim Petition seeking wage loss benefits,

which were denied by the compensation judge and the employee appealed. He argued

that he was entitled to temporary total disability benefits because he was in a “unique”

position and that a job search was futile because he had been cut from professional

football teams. The WCCA upheld the findings of the compensation judge, holding that

all injured workers are required to conduct a reasonable and diligent job search within

the employee’s restrictions. There is no special rule that exempts an employee from

searching for work outside of his or her profession.

Huderle v. Sanford Clinic Bemidji, slip op. (W.C.C.A. Jan. 26, 2016)

Huderle worked as a nursing assistant for Sanford Health and sustained a work-related

injury to her low back. She sought a consultation with a QRC, who determined that she

was a qualified employee for vocational rehabilitation services because she had

restrictions, although she had returned to work with the employer in a different position

and was not working at a wage loss. The trial court denied vocational rehabilitation

services and the employee appealed to the WCCA. The employee claimed that she was

entitled to vocational rehabilitation services because she was not physically capable of

working in her pre-injury position. The WCCA held that eligibility for vocational

rehabilitation services is based upon a comparison of the employee’s pre- and post-

injury economic status, as well as other factors as laid out by Minn. Rule 5220.0100,

subp. 34. There was no evidence as to the difference in opportunity for future income

or advancement between her pre- and post-injury positions. The WCCA concluded that

while an employee may prefer to work in her prior position, her inability to do so does

not automatically trigger entitlement to vocational rehabilitation services.

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Gilbertson v. Williams Dingman, LLC, slip op. (W.C.C.A. May 2, 2016)

Gilbertson worked for the employer as a funeral director and sustained an injury to her

low back while lifting coffins. The employer and insurer admitted liability for the

employee’s injury and assigned a QRC to the case, who prepared a Rehabilitation Plan,

indicating that the goal was to return the employee to work with a different employer.

The employer and insurer did not object to the plan as it was written. The employer

offered a job to the employee and she declined. The employer and insurer filed a Notice

of Intention to Discontinue Benefits seeking to discontinue the employee’s wage loss

benefits. The trial court upheld the discontinuance and the employee appealed to the

WCCA. The WCCA reversed the compensation judge’s denial, finding that the job

offer was inconsistent with the rehabilitation plan because it specifically stated that the

goal was to return the employee to work with a different employer.

Halvorson v. B&F Fastener Supply, slip op. (W.C.C.A. May 9, 2016).

Halvorson performed assembly work for the employer and sustained injuries to

multiple body parts in the course and scope of her employment. She sought a

consultation with a QRC, who determined the employee was a “qualified employee”

and vocational rehabilitation services commenced. The employee then began working

for another employer in a position that was within her permanent restrictions. The

employer sought to discontinue vocational rehabilitation services because she was no

longer a “qualified employee”, arguing that the employee had attained suitable gainful

employment. The trial court upheld the discontinuance of rehabilitation benefits and

the employee appealed. The WCCA reversed this decision, holding that vocational

rehabilitation services cannot be discontinued because the employee is no longer a

“qualified employee.” This standard is only applicable for determining an employee’s

initial qualification for rehabilitation services. Closing a rehabilitation plan, however,

is governed by Minn. Stat. 176.102, subd. 8 and Minn. Rule 5220.0510, subp. 5.

Rehabilitation services cannot be discontinued because an employee is deemed to no

longer be a “qualified employee.”

Washek v. New Dimensions Home Health, slip op. (W.C.C.A. May 16, 2016)

Washek was involved in a motor vehicle accident in the course and scope of his

employment and suffered significant injuries that ultimately left him permanently and

totally disabled. The employee sought payment for a handicap accessible van. The

WCCA upheld the compensation judge’s denial of the employee’s claims, finding that

payment for a handicap accessible vehicle was not appropriate where the vehicle did

not enable the employee to seek or engage in employment. Further, the WCCA found

there was no evidence the employee was even capable of working.

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II. PETITIONS TO VACATE AND STIPULATIONS FOR SETTLEMENT

Ryan v. Potlach Corp., 882 N.W.2d 220 (Minn. 2016)

In 2002, the employee sustained a back injury in the course and scope of her

employment with Potlach Corporation and the parties entered into a full, final, and

complete settlement, closing out future medical treatment. An Award on Stipulation

was served and filed in 2003. The employee continued to experience back pain and

underwent two fusion surgeries in 2009. She was also diagnosed with depression and

anxiety attributable to her ongoing back problems. The employee then filed a Claim

Petition in 2013, seeking additional benefits related to her back injury as well as her

consequential psychological condition. The employer and insurer moved to dismiss the

employee’s Claim Petition, arguing that the employee must first file a Petition to

Vacate the 2003 settlement agreement before pursuing her claims. The compensation

judge denied the employer and insurer’s motion and allowed the employee to proceed

on her Claim Petition. The WCCA affirmed the trial court’s decision and based its

opinion on a 1986 Minnesota Supreme Court decision, Sweep v. Hanson Silo. In Sweep,

the Minnesota Supreme Court held that parties can enter into full, final, and complete

settlements that foreclose future claims that arise from “specifically identified work

injuries addressed in the settlement agreement.” In that case, the parties had tried to

foreclose any future work injuries with that employer, which was overreaching

according to the Supreme Court. However, since the Sweep decision, the WCCA

interpreted the Supreme Court’s holding to mean that consequential injuries cannot be

closed out as part of a settlement agreement and that employee’s, therefore, are allowed

to bring new claims by way of a Claim Petition. In Ryan, however, the Minnesota

Supreme Court held that the parties must rely on Minn. Stat. 176.461 and that

settlement agreements can only be set aside for cause in the event of a substantial

change in condition that was clearly not anticipated and that could not have been

reasonably anticipated at the time of settlement. The Court held that settlement

agreements can close out consequential conditions arising out of the original work

injury, even if the consequential condition is not specifically referenced in the

settlement agreement. Therefore, employees must seek to vacate settlement agreements

rather than filing a new Claim Petition when seeking benefits related to consequential

injuries resulting from work injuries specifically identified in a settlement agreement.

Larson v. Michigan Peat Co., slip op. (W.C.C.A. Dec. 17, 2015)

The employee sustained a low back injury in 1988 when his coworkers tipped over a

portable toilet with him inside. The parties entered into a settlement agreement for a

full, final, and complete settlement, closing out medical treatment, with the exception

of non-chiropractic treatment to the employee’s low back. Throughout the negotiations,

the employee continued to work. In 2006, the employee was found to be disabled and

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began receiving Social Security Disability benefits. He sought to vacate the Stipulation

for Settlement asserting that he experienced a substantial change in his medical

condition. The employer and insurer argued that the settlement agreement should not

be vacated because the employee had acknowledged as part of the agreement that his

condition could worsen. The WCCA found that where there is a limited amount paid

in settlement ($40,000.00 in this case) and where both parties assumed the employee

would continue to work, subsequent total disability supports the vacation of an Award

on Stipulation.

Peterson v. Long Term Health Care, slip op. (W.C.C.A. Jan. 11, 2016).

The employee worked as a nursing assistant for the employer and sustained back

injuries in the course and scope of her employment in 2006 and 2007. Diagnostic

studies demonstrated that the employee had a disc herniation at L4. Subsequently, the

parties entered into a settlement agreement in 2008 for a full, final, and complete

settlement with the exception of future medical treatment. After the Award was served

and filed, the employee’s condition worsened and she underwent two fusion surgeries,

fusing a total of three levels from L3-S1, first in 2009 (L4-S1) and again in 2013 (L3-

4). The employee then sought to vacate the Stipulation for Settlement asserting a

substantial change in condition. The WCCA granted the employee’s petition, holding

that while the first fusion surgery could have been reasonably anticipated, the second

procedure fusing the additional level could not have been anticipated as the imaging

studies were essentially normal at the time of the 2008 settlement agreement.

Therefore, the Court held, the employee had satisfactorily established that she had

experienced a substantial change in condition.

Blomme v. ISD # 413, slip op. (W.C.C.A. Feb. 23, 2016).

In 2003, the employee sustained a work-related injury to his low back while setting up

bleachers for a graduation ceremony. The parties entered into a Stipulation for

Settlement for a full, final, and complete settlement, leaving future non-chiropractic

medical treatment open. Thereafter, the employee experienced worsening symptoms

and undertook additional medical treatment, which was approved and paid for by the

self- insured employer. The employee then sought to vacate the Stipulation, alleging a

substantial change in condition due, in part, to a change in medical diagnosis. The

WCCA held that although the employee did not meet all of the Fodness factors, failure

to demonstrate one of the factors does not preclude vacation of the stipulation where

the other factors “demonstrate good cause” to grant an employee’s Petition to Vacate.

The case is currently on appeal to the Minnesota Supreme Court, although the Court

has not indicated whether certiorari will be granted.

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McKinley v. Target Corp., slip op. (W.C.C.A. June 27, 2016)

In 1993, the employee sustained a work-related left ankle injury when she fell in a

storage area at a Target Store. She later developed RSD in the left lower extremity. By

1995, the employee was using a wheelchair as she had developed symptoms in her left

shoulder, arm and hand. Her left hand was closed into a claw shape and she was unable

to sit upright in her wheelchair. She was determined to be permanently and totally

disabled as a result of her 1993 work injury. In 1997, the parties entered into a

settlement agreement to resolve the employee’s permanency claim for up to 52%. In

2001, the parties settled the remaining permanency claim for up to 100% and

established an annuity that was paid monthly to the employee for a period of 10 years.

The employee began receiving personal care services and was receiving care 70 hours

per week at the time of a third settlement in August 2010, which addressed her ongoing

personal care services and use of medications. In 2012, the employee attended an

appointment with her treating physician, Dr. David Bell, at Mayo Clinic, who had been

treating her condition since 2004. When Dr. Bell entered the examination room, he

found the employee to be standing. She reported that on Christmas Eve, December 24,

2011, she had fallen out of her wheelchair and was lying on the floor for 8 hours when

she experienced a spontaneous recovery of her symptoms. She explained she had

experienced a miracle whereby her hand, foot, and spine had straightened out. The

employer and insurer filed a Medical Request seeking to discontinue the employee’s

ongoing medical treatment and use of personal care services. At hearing, the

compensation judge determined that ongoing medical care and personal care services

were not warranted. The employer and insurer then filed a Petition to Vacate the prior

stipulations on the basis of fraud, mutual mistake of fact and an unanticipated

substantial change in condition. Given the employee’s miraculous reversal of her

condition, the WCCA granted the Petition to Vacate on the basis that the employee had

experienced an unanticipated substantial change in condition and did not address

mutual mistake of fact or fraud.

III. PAYMENT TO MEDICAL PROVIDERS

David v. The Heavy Equip. Co., slip op. (W.C.C.A. Feb. 17, 2016).

The employee sustained a work-related injury to multiple body parts after being struck

by a falling chimney while sitting in an excavator. The employer and insurer admitted

primary liability for the work injury and began paying benefits to and on behalf of the

employee. Later, the employer and insurer retroactively denied liability for the incident

and the court ultimately determined that the employee’s injuries did not arise out of

and in the course of his employment. The employer and insurer sought reimbursement

from the medical providers for money paid relating to the employee’s injuries. The

WCCA upheld the trial court’s denial of the employer and insurer’s Petition for

Reimbursement, finding that there was no legal basis under the Minnesota Workers’

Compensation Act that would allow reimbursement from the medical providers.

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IV. CHILD CARE EXPENSES

Hagel v. Barrel O’Fun Snack Foods Co., slip op. (W.C.C.A. Mar. 21, 2016)

The employee sought payment of child care expenses while she was receiving medical

treatment for her work-related injury. The WCCA upheld the trial court’s denial of the

child care expenses, holding that while the Workers’ Compensation Act does provide

for child care as part of rehabilitation when an employee is looking for work or

receiving retraining, this benefit does not extend to medical care under Minn. Stat. 176.

135, subd. 1.

V. EXPERT OPINIONS

Gionatti v. ISD #152, slip op. (W.C.C.A. Mar. 24, 2016).

In 2014, the employee alleged that she had sustained a traumatic brain injury while

working as a bus monitor for the employer. At the request of the employer and insurer,

the employee underwent an independent psychological examination with a licensed

psychologist, who determined that the employee did not sustain a brain injury. At

hearing, the compensation judge relied upon the psychologists opinions and denied the

employee’s claims related to her alleged TBI. The WCCA overturned the trial court

decision, holding that a licensed psychologist was not competent to provide opinions

on medical conditions outside of his scope of practice.

VI. VOLUNTARY EMPLOYER EVENTS

Shire v. Rosemount, Inc., slip op. (W.C.C.A. Feb. 17, 2016)

The employer hosted an annual employee-recognition event and advised employees

that the event was voluntary. The employee sustained an injury at the employer-

sponsored event and pursued workers’ compensation benefits. Undisputed evidence at

hearing established that employees were given three options with respect to the event:

attend the event and receive usual wages, not attend the event and use accrued paid

vacation time, or not attend and request unpaid leave. The WCCA upheld the trial

court’s determination that the program was in fact not voluntary. In so doing, the Court

held that where an employee’s only option is to attend and get paid or not attend and

forfeit pay or benefits, the event is not voluntary for the purposes of the Workers’

Compensation Act.

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VII. DUAL-PURPOSE TRIPS

Groetsch v. Kemps, LLC, slip op. (W.C.C.A. April 4, 2016).

The employee was involved in a motor vehicle accident while driving to a medical

appointment to treat his work-related injury. On the way to the appointment, he ran a

personal errand. The accident occurred very near the location of the medical clinic,

although the employee was not on the route he would have been on had he began his

stop from his home. The WCCA upheld the trial court’s decision holding that because

the motor vehicle accident occurred close to the medical clinic, the resulting injuries

were compensable.

VIII. JURISDICTION

Gruba v. Tradesman Int’l, Inc., slip op. (W.C.C.A. April 5, 2016)

The employee sustained a work-related injury and initially collected benefits in North

Dakota. Later, the employee established subject matter jurisdiction for his workers’

compensation claims in Minnesota and the employer and insurer were awarded a credit

for the benefits the employee had received under the North Dakota workers’

compensation system. The court determined that North Dakota’s workers’

compensation system, Work Force Safety and Insurance System (WSI), did not have a

right to seek reimbursement for benefits paid from the employer. WSI then sued the

employee for reimbursement of benefits paid. At the time of the Minnesota hearing, the

employee had not reimbursed WSI for the claimed payments and no judgment had been

entered against the employee in the North Dakota action. WSI had also failed to timely

intervene in the Minnesota case after receiving due and proper notice. The employee,

however, filed a Claim Petition seeking payment from the employer to reimburse either

WSI or the employee for the benefits that had been paid under the North Dakota system.

The compensation judge determined that subject matter did not exist and the WCCA

affirmed.

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ARISING OUT OF – POST DYKHOFF

The Erosion of Dykhoff

By

Stephen P. Ward

I. MINN. STAT. § 176.021 SUBD. 1:

A. Every Employer is liable for compensation according to the provisions of

this chapter and is liable to pay compensation in every case of personal

injury or death of an Employee arising out of and in the course of

employment without regard to the question of negligence. The burden of

proof of these facts is upon the Employee.

II. HISTORICAL CASE LAW/ EXAMPLES OF APPLICATION

A. Bohlin v. St. Louis County

1. If the “in the course of” test is weak but the “arising out of” test is strong,

the necessary minimum level of work-connection will be met. If both the

“in the course of” and “arising out of” elements are weak, the minimum

connection will not be met.

III. DYKHOFF V. XCEL ENERGY

The employee was at an offsite work meeting walking on a clean, dry floor. She was

wearing high heels when she fell for no identifiable reason, dislocating her left knee.

Primary liability for the injury was denied as the injury did not arise out of employment.

The compensation judge sided with the employer, finding that there was no increased

risk of injury. The WCCA reversed the compensation judge expressing concern that

unexplained injuries would never be compensable if only the increased risk test were

applied. The WCCA applied the work-connection test of articulated in Bohlin, and

reversed the compensation judge. The Supreme Court found there was nothing

hazardous about the floor on which the employee was walking at the time she fell, and

the floor was “very clean, dry, and flat.” The Court held that “An injury arises out of

employment within the meaning of the Workers' Compensation Act if the employment

exposes the employee to a hazard which originates on the premises as a part of the

working environment, or peculiarly exposes the employee to an external hazard

whereby he is subjected to a different and a greater risk than if he had been pursuing

his ordinary personal affairs.”

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IV. POST – DYKHOFF DECISIONS

A. Kainz v. Arrowhead Senior Living Community

The employee twisted her ankle while descending stairs as she was walking to

obtain work supplies. The employee testified that the staircase was steep and that

a handrail did not run the full length of the staircase. The WCCA upheld the

decision of the compensation judge finding that there was an increased risk of

injury. The employer appealed to the Supreme Court, which was in the process of

deciding Dykhoff. Post-Dykhoff, the WCCA once again affirmed the

compensation judge’s decision. The employer and insurer again appealed to the

Supreme Court, which found that the WCCA’s findings were “manifestly contrary”

to the evidence. Specifically, a photo of the staircase and handrail that were relied

upon by the compensation judge and WCCA was found to be an incomplete

depiction of the scene.

B. Dennis v. Salvation Army

The employee slipped and fell in snowy conditions on an unplowed street.

Employees of the Salvation Army were provided two areas for smoking, one of

which was across the street. The compensation judge determined the injury arose

out of employment under the “street doctrine.” The WCCA affirmed the

compensation judge’s reliance on the street doctrine and effectively ruled that it did

not matter if a member of the public would be subjected to the same risk.

C. Williams v. ISD 2396

The employee was a custodian setting up bleachers for a basketball game. It was

her testimony that she was “rushed” in setting up the bleachers. As she was

descending the bleachers, her foot hit a metal lip on a stair resulting in a fractured

foot. The WCCA affirmed the compensation judge’s finding that the bleachers and

the fact that the employee was rushed presented an increased risk of injury.

D. Hohlt v. University of Minnesota*

The employee slipped and fell on an icy sidewalk while walking from a campus

parking ramp to a campus building. The employer successfully argued to the

compensation judge that the Supreme Court in Dykhoff had articulated a new test

for whether an injury arose out of the employment, in that a work injury must arise

from a risk that is unique to the employment, being distinct from a risk that might

encountered by a member of the general public. The WCCA reversed the

compensation judge's decision citing the increased risk standard in the context of

the “unique risk” argument, concluding that a personal injury is compensable if the

employee encounters an increased risk of injury on the employer's premises

because she is an employee and the injury follows from that risk. The WCCA found

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it irrelevant that members of the general public might encounter the same risk,

specifically because they were not brought to that risk by employment. The WCCA

effectively held that Dykhoff does not require a “special” or “unique” risk. A

special risk is required only where an employee is not on the work premises when

injured. If on premises, an increased risk is sufficient.

E. Kubis v. Community Memorial Hospital Association*

A nurse was “rushing” up a staircase when she fell injuring her right shoulder. She

testified that she was rushing because of an overtime policy. The employer denied

the injury on Dykhoff grounds. The compensation judge agreed with the employer,

finding that the employee's claim that she was rushing up the stairs was not credible.

The WCCA reversed the compensation judge citing the fact that the employee was

hurrying for a reason related to her work and therefore there was increased risk of

injury.

F. Erven v. Magnetation

The employee was walking at a hurried pace to address a leaking tank when he

rolled his ankle. In addition to walking at a slightly faster pace, he testified that he

was looking up at the tank as he was walking towards it. Incidentally, it was

determined that the floor was flat and dry. The compensation judge held that there

was an increased risk due to the employee’s hurried pace and the fact that he was

looking up at the tank. The WCCA affirmed.

G. Chrushshon v. New American Hospitality

The employee was walking on a walkway between a parking lot and the front door

of a hotel. The concrete walkway was “stamped” to resemble cobblestone. The

employee tripped and fell forward, fracturing her arm. The compensation judge

found the irregular surface of the stamped concrete walkway to be the cause of the

employee's trip and fall. The WCCA affirmed. In its decision, the WCCA observed

the following:

In considering Dykhoff, it is important to recognize what the decision of the

Supreme Court did and did not do. What the Supreme Court did was to

reject the balancing test used by this court in Bohlin and in subsequent

decisions. What the Supreme Court did not do was to create a new rule of

law for deciding if a personal injury arises out of employment. Instead, the

court relied on previous case law and reiterated that there must be some

“causal connection between the injury and the employment.

V. WHAT DOES THIS MEAN FOR HANDLING OF CLAIMS?

A. Dykhoff continues to provide a reasonable basis for denying claims.

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B. Recorded statements should be obtained as soon as possible. By the time of a

deposition, the employee has been “coached.” When questioning an employee, a

checklist should be referred including pace, destination, floor transitions,

inclines/declines, surface, lighting, handrails, state of mind, whether the employee

was carrying anything, etc.

*Appealed to Supreme Court and arguments have been held.