Topics in Worker s Compensation

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Topics in Worker’s

Compensation

Presented by: Thomas J. Christenson, Esq.

Shareholder

Shareholder, Quinlivan Hughes, P.A. Litigation , Quinlivan Hughes, P.A. Litigation Committee Co

Committee Co--ChairpersonChairperson

Tom has litigated matters in the state, federal

and administrative courts of MN, ND and WI

for 29 years.

Compiled and Written by: Sarah R. Jewell,

Worker’s Compensation/Litigation Support

Law Clerk

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Overview

Rehabilitation & Retraining

Coordination of Benefits

“Poole” Factors

Defenses, Termination of Rehab Plan

No Time Limits

–

Forever!

Recent Cases

Q & A

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Eligibility –

Qualified Employee

Minn. Rule 5220.0100(22) defines “Qualified Employee”:

An employee who, because of the effects of a work

An employee who, because of the effects of a work--related injury or related injury or disease, whether or not combined with the effects of a prior inj

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

disability:

Is permanently precluded or is likely to be permanently preclude

Is permanently precluded or is likely to be permanently precluded from d from engaging in the employee’s usual and customary occupation or fro

engaging in the employee’s usual and customary occupation or from m engaging in the job the individual held at the time of injury;

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

Cannot reasonably be expected to return to suitable gainful

employment with the date

employment with the date--ofof--injury employer; andinjury employer; and

Can reasonably be expected to return to suitable gainful employm

Can reasonably be expected to return to suitable gainful employment ent through the provision of rehabilitation services considering the

through the provision of rehabilitation services considering the treating treating physician’s opinion of the employee’s work ability.

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Temporary Total Disability

MMI must be reached and served for all

compensable conditions and injuries

presently contributing to the employee’s

disability, in order to discontinue an

employee’s temp total disability benefits.

Schewe

v. Tom Thumb

, 46 W.C.D. 693,

aff’d

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Retraining Standards

The MN Supreme Court held that retraining is

necessary if it will materially assist the employee

in restoring an impaired earning capacity.

in restoring an impaired earning capacity. Nordby v. Nordby v. Arctic Enter., Inc.,

Arctic Enter., Inc., 232 N.W.2d 773, 775 (Minn. 1975).232 N.W.2d 773, 775 (Minn. 1975).

An award of retraining benefits is not automatic,

but must be supported by competent

evidence.

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Changes to Minnesota’s

Workers Compensation Statute

Regarding Retraining

Effective October 1, 2008, the statute was amended to Effective October 1, 2008, the statute was amended to

extend the period of time in which retraining may be extend the period of time in which retraining may be

requested from 156 weeks to 208 weeks. requested from 156 weeks to 208 weeks.

This means employees have more time (52 weeks

This means employees have more time (52 weeks –– aka, 1 aka, 1 additional year) in which to submit retraining requests.

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Poole (Retraining) Factors*

—

1. The

1. The reasonablenessreasonableness of of retraining retraining compared compared to the employee’s return to work with the

to the employee’s return to work with the

employer or through job placement activities. employer or through job placement activities.

2. The

2. The likelihoodlikelihood of the employeeof the employee succeeding in succeeding in a formal course of study given the employee’s a formal course of study given the employee’s

abilities and interests. abilities and interests.

3. The

3. The likelihoodlikelihood that retraining that retraining will resultwill result in a in a reasonably attainable employment.

reasonably attainable employment. 4. The

4. The likelihoodlikelihood that retraining that retraining will producewill produce an an economic status as close as possible to that

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

without the disability. without the disability.

*Poole v. Farmstead Foods

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Rehabilitation –

Did You Know?

Bulau v. Douglas Truck Lines

Bulau v. Douglas Truck Lines, 45 W.C.D. 322 , 45 W.C.D. 322 (1991)

(1991)

The Worker’s Comp Court of Appeals held that an employee who had

retired from his job as an over

retired from his job as an over--thethe--road truck driver; road truck driver; and and

was collecting a teamster’s pension

was collecting a teamster’s pension and social security retirement and social security retirement benefits

benefits

was NOT precluded from rehab assistance where he was unable to

return to his former occupation.

The WCCA noted that rehab services could reasonably be expected

The WCCA noted that rehab services could reasonably be expected to to benefit the employee

benefit the employee even though the compensation judge concluded even though the compensation judge concluded the employee did not prove he intended to return to full

the employee did not prove he intended to return to full--time time employment.

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Coordination of Benefits

When an employee is receiving both temporary

total disability benefits and social security

disability,

disability, the employer pays the full worker’s the employer pays the full worker’s

compensation benefit, and social security reduces

its benefits payable

its benefits payable so that the total paid to the so that the total paid to the employee and her dependents do not exceed 80%

employee and her dependents do not exceed 80%

of the ACE. (average current earnings)

Social Security

Social Security Retirement benefitsRetirement benefits will will NOTNOT be be

reduced for Worker’s Comp benefits paid.

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Time Limits…?

There are

There are NONO time limits on eligibility for time limits on eligibility for rehabilitation assistance.

rehabilitation assistance.

An employee who returns to suitable, gainful

employment after a work

employment after a work--related injury can later related injury can later be eligible for rehab assistance if, because of the

be eligible for rehab assistance if, because of the

effects of the injury or disability, the employee is

again precluded from engaging in his or her usual

and customary occupation and can reasonably be

expected to benefit from rehab services which

could significantly reduce or eliminate the

decrease in employability.

decrease in employability. Wessling v. Briggs Wessling v. Briggs Transportation

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Re-Establishing Rehab

An employee may re

An employee may re--establish entitlement to establish entitlement to rehab benefits following termination from post

rehab benefits following termination from post- -injury employment with the employer, where

injury employment with the employer, where

employment with the employer is no longer

available.

The WCCA held that an employee’s termination

for cause did not permanently bar her from

receiving rehab benefits when she requested such

benefits and agreed to cooperate with renewed

placement efforts.

placement efforts. See Wolf v. G&K ServicesSee Wolf v. G&K Services, 43 , 43 W.C.D. 371 (1990).

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Termination of a Rehab Plan

Before Completion

Under the rehab rules, the insurer or employee may, at any time,

request the closure of rehab services if

request the closure of rehab services if good cause is establishedgood cause is established. . “Good Cause” includes, but is not limited to:

“Good Cause” includes, but is not limited to:

1.

1. A new or continuing physical limitation that significantly A new or continuing physical limitation that significantly

interferes with the implementation of the plan;

2.

2. The employee’s performance indicates that the employee is The employee’s performance indicates that the employee is

unlikely to successfully complete the plan;

3.

3. The employee is not participating effectively in the The employee is not participating effectively in the

implementation of the plan; or

4.

4. The employee is not likely to benefit from further rehab The employee is not likely to benefit from further rehab

services.

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Failure to Cooperate

An employee who does not make a good

faith effort to participate and cooperate in a

rehab plan risks discontinuance or forfeiture

of all benefits under the Worker’s

Compensation Act. See Minn. Stat.

§

176.102(13) (2006).

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What is a “good faith effort”?

The Worker’s Compensation Court of

Appeals has repeatedly held that when an

employee is being provided with rehab

assistance, the issue is

not so much whether

there is a diligent job search as whether the

employee has made a good faith effort to

cooperate with the rehab plan

.

See

Schreiner v. Alexander Const. Co.

, 48

W.C.D. 469 (1993).

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Recent Cases

2009 & 2010 Minnesota Worker’s

Compensation Court of Appeals Cases

A reflection on the state of the economy…?

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Case: Gebrekidan v.LSG Sky

Chefs (2010)

PAR, Inc. provided QRC/rehab services to an

employee who sustained a work injury.

After the employer/insurer’s IME report stated the

employee no longer needed rehab services, the

employer filed a request to terminate services.

Employee continued to obtain services from PAR

& owed $5,000+ by the time the case settled. PAR

was not named a party to the settlement.

Decision: PAR got paid on grounds that PAR was

an intervenor and it’s request for a

Parker/Lindberg hearing should have been

granted.

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CASE: Brownell v.Taconite

Mining (2010)

Employee’s request for rehabilitation consultation

was denied

was denied where the employee where the employee failed to showfailed to show that his work injuries “are

that his work injuries “are substantial contributing substantial contributing factors

factors in any need to limit his activities due to his in any need to limit his activities due to his low back condition.”

low back condition.”

The injury occurred in 2002, and not until 2009 (a

month after the employee’s retirement) did any

medical provider recommend restrictions on the

employee.

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CASE: Clegg v. Winona Health

Services (2009)

Employee claimed she never received notice

from employer that any claim for retraining

must be filed prior to receipt of 156 weeks of

wage replacement benefits.

Evidence showed that procedures in claims

adjusters’ office were subject to human error,

compensation judge allowed employee to file

retraining request after receiving 182 weeks of

benefits.

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Case: Hopkins v. Road Equipment Parts Ctr.

[Rehab-Cooperation] (2009)

Where the employee’s rehab plan called for a

return to work with the employer,

full duty, pending medical clearance,

the employee cooperated with rehabilitation

assistance, and

there was no evidence that an outside job search

was required to be part of the plan,

the employee was entitled to receive temporary

total benefits for 3 months.

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Case: Kimball v. St. Mary’s Duluth Clinic [Retraining investigation request denied] (2009)

Where the employee returned to work for the same

employer after his injury,

in the same job classification,

where his pre

where his pre--injury and postinjury and post--injury job was a injury job was a union position with fringe benefits, and

union position with fringe benefits, and

where the employee was earning more at the time

of the hearing than he was earning on the date of

injury,

substantial evidence supported the compensation

judge’s

judge’s denial of the employee’s request for denial of the employee’s request for investigation of re

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Case: Al-Hameed v. Bailey Const.

[Rehab-Discontinuance] (2009)

Employer sought to terminate rehab benefits being Employer sought to terminate rehab benefits being

provided by PAR, Inc. The compensation judge stated, “A provided by PAR, Inc. The compensation judge stated, “A

significant amount of money has been paid to PAR with significant amount of money has been paid to PAR with

marginal results…For the amount of money that has been marginal results…For the amount of money that has been

spent, the employee should be close to permanently spent, the employee should be close to permanently

returning to the labor market.” returning to the labor market.”

Compensation judge noted, “the obligation to pay for Compensation judge noted, “the obligation to pay for

rehabilitation services may have to be revisited in a short rehabilitation services may have to be revisited in a short

time period.” time period.”

WCCA held that the employee cooperated with the rehab WCCA held that the employee cooperated with the rehab

plan, [and] even while services have been less than plan, [and] even while services have been less than

optimal, there is

optimal, there is no basis for terminating rehab assistanceno basis for terminating rehab assistance.. WCCA decision hinted that perhaps the employer should WCCA decision hinted that perhaps the employer should

have sought to amend the plan or change the QRC. have sought to amend the plan or change the QRC.