DEFINITIONS

Employer

Employers are defined by statute. The definition is contained in Minn. Stat. § 176.011, Subd. 10 An employer means any person who employs another person to perform a service for hire. This includes corporations, partnerships, limited liability companies and associations, groups of persons, and governmental entities such as states, counties, towns, cities, school districts and other government subdivisions. Almost any entity that pays another person for a service is deemed an employer.

Statutory Employer

The employer is defined by statute as outlined above. There are some exceptions. For example, there is an exclusion for a family farm under 176.011, Subd. 11a

If the business has even one employee and isn’t a family farm, generally speaking they are required to provide workers’ compensation coverage.

Employee

Employees are defined by statute. According to Minn. Stat. § 176.011, Subd. 9 an employee means any person who performs services for another for hire. By statute the definition is broad and includes aliens, minors, sheriffs, police officers, fire fighters, a person requested or commanded to aid an officer in arresting a person, a county assessor, elected and appointed officials, executive officers of corporations except those executive officers excluded by Statute 176.041, certain volunteers and others listed by statute. For the purposes of Minnesota workers’ compensation law, a farmer or member of their family who exchanges work with other farmers in the community is not considered an employee. Minn. Stat. § 176.011, Subd. 9a.

There are a few additional exceptions to the broad definition of employee. In addition to the exception for farm laborers, casual employment can be outside of the Workers’ Compensation Act. One example is a homeowner who hires a worker to perform minor repairs. This typically applies to persons who are not in the business of the work performed by the alleged employee.

Certain Federal workers are also excluded such as common carriers including railroad workers. See Section 176.041 (1) (a). Family farmers are excluded under 176.041, Subd. 1 parts (2) and (11). Casual employment is covered by 176.041, Subd. 1 (11).

Borrowed Employee

Minnesota law does contain a borrowed or loaned employee doctrine. In this situation, a general employer may loan its employee to a “special employer” and that special employer takes on liability for workers’ compensation coverage.

This doctrine is limited and applies when:
(1) the employee has made a contract to be hired with the special employer (the contract may be express or implied);
(2) the work performed is essentially that of the special employer; and
(3) the special employer has the right to control the details of the work.

Minnesota law allows the two employers to agree on which entity will be responsible for workers’ compensation benefits. If one fails to provide workers’ compensation coverage, the other may become liable.

Independent Contractor

As a general proposition, independent contractors are not covered under the Minnesota Workers’ Compensation Act. Independent contractors are excluded as provided by 176.041, Subd. 12. There is a definition for certain independent contractors contained in 176.041. This applies to trucking and messenger industries. The statute contains a seven part test. A trucker or messenger is an employee unless each of the following factors are present:
(1) the individual owns the equipment or holds it under a bonafide lease arrangement;
(2) the individual is responsible for maintenance of the equipment;
(3) the individual is responsible for operating costs;
(4) the individual is responsible for supplying the necessary personal services to operate the equipment;
(5) the individual’s compensation is based on factors relating to the performance of the work not based on hours;
(6) the individual substantially controls the means and manner of performing services; and
(7) the individual enters into a written contract that specifies their relationship to be that of an independent contractor.

The law also contains a separate definition of construction contractors contained in Minn. Stat. § 181.723. In the construction industry, independent contractors are required to be registered with the Minnesota Department of Labor and Industry. This is outlined in the construction contractor statute 181.723. Further, the commissioner of the Department of Labor and Industry is authorized to generate rules to govern independent contractor relationships. Minn. Stat. § 176.83.

In short, if the worker does not fit within the statutory definition of independent contractor outlined, then the person is most likely an employee.

EXCLUSIVE REMEDY

General Rule

Employees injured during the course and scope of their employment may only collect workers’ compensation benefits from their employer. Workers’ compensation benefits are the employee’s exclusive remedy as it concerns physical injuries. This is provided by statute, 176.031. The liability of an employer for benefits under the Workers’ Compensation Act is exclusive and is in the place of any other liability to the employee, the employee’s estate, surviving spouse, parent, child, dependent, or next-of-kin.

No Exception Recognized

No exceptions are recognized for employers who maintain workers’ compensation insurance. The Minnesota statute contains a very narrow exception allowing certain claims to survive against co-employees. Co-employee liability is discussed in Minn. Stat. § 176.061, Subd. 5(e). A co-employee working for the same employer is not liable for a personal injury incurred by another employee unless the injury resulted from the gross negligence of the co-employee or was intentionally inflicted by the co-employee.

This provision was discussed in Stringer v. Minnesota Vikings Football Club, 705 NW2d 746 (Minn. 2005). The test for determining co-employee liability was outlined. To have a potential breech of a duty owed to the co-employee, the co-employee must have
(1) taken direct action towards the other employee, and
(2) acted outside the course and scope of employment. Essentially the action must be so egregious as to be outside the course and scope of employment.

This is a standard greater than simple gross negligence. As it concerns the intentional exception, it is not enough that the action was an intentional one. Rather, the action must be one consciously and deliberately intended to cause injury. Meintsma v. Loram Maintenance of Way, Inc., 684 NW2d 434 (Minn. 2004).

JURISDICTION AND LIMITATIONS OF ACTIONS

General Rule

The Minnesota workers’ compensation statute extends jurisdiction broadly to any employee who physically sustains a work injury in Minnesota. Minn. Stat. § 176.041, Subd. 4 explains that even employees who perform the primary duties of employment outside of Minnesota or are hired to perform primary duties of employment outside of Minnesota, are covered by Minnesota workers’ compensation if injury is sustained in Minnesota and the employee foregoes any workers’ compensation claim that may be available in some other state. As a general proposition, injuries sustained in Minnesota are covered by Minnesota workers ‘compensation law as outlined by Minn. Stat. § 176.041.

Extraterritorial Jurisdiction

Injuries sustained outside of Minnesota, in certain instances, may be covered by Minnesota workers’ compensation law. For example, if an employee who regularly performs the primary duties of employment within Minnesota sustains an injury while outside of the state in the employ of the same employer, the Minnesota Workers’ Compensation Act applies. Minn. Stat. § 176.041, Subd. 2 If an employee hired in Minnesota by a Minnesota employer sustains an injury while temporarily employed outside of Minnesota, the injury is covered by the Workers’ Compensation Act. Minn. Stat. § 176.041, Subd. 3. If not covered by Subdivisions 2 or 3, injuries sustained outside of Minnesota are not covered by the Minnesota Workers’ Compensation Act. Minn. Stat. § 176.041, Subd. 5a.

Time Limitation

Actions by an injured employee to recover workers’ compensation must be made within three years after the employer has made a written report of injury to the Department of Labor & Industry, but not to exceed six years from the date of accident. Minn. Stat. § 176.151. In short, if there was never a First Report of Injury filed, then the employee has a six year timeframe to make his or her claim. If a First Report of Injury was filed, the time limitation is three years from the date of injury.

It is important to note that if workers’ compensation benefits were paid to or on behalf of the employee, then the statute of limitation is tolled and there is essentially no limitation. In other words, if the employee received medical or other benefits for a work injury, then he may bring his claim at any time in the future. Conversely, if an injury was denied and no benefits were paid, the claim for benefits is subject to the time limitations contained in the statute.

Discovery Rule

Minnesota law requires an employee to provide notice of the injury to the employer so that it may reasonably investigate the claim of a work-related injury. However, the timeframes applicable to giving notice can be relaxed if the employee doesn’t have reason to know work activity has caused an injury. For example, if the injury is one of repetitive minute trauma that gradually occurs during the course of employment, the notice period does not begin to run until it becomes reasonably apparent to the employee that the injury has resulted in or is likely to cause disability. When the evidence shows the employee understood or should have understood that her condition is work-related, the notice provision begins to run.

Notice of Injury

Unless the employer has actual knowledge of the occurrence of the injury, the employee is obligated to give notice to the employer within 14 days after the occurrence of the injury. However, if the notice is given or the employer’s knowledge is obtained within 30 days from the occurrence of the injury, then the lack of notice does not bar compensation unless the employer can show prejudice. In effect, this is a 30 day notice limitation as provided by Minn. Stat. § 176.141.

The statute goes on to explain that if the notice is given or the employer’s knowledge is obtained within 180 days, and if the employee can show that failure to give notice within 30 days was due to the employee’s mistake, inadvertence, ignorance, inability or the fraud misrepresentation or deceit of the employer, then compensation may be allowed, unless the employer can show prejudice. Unless knowledge is obtained or written notice is given within 180 days, benefits are barred although there is an exception for employees that fail to give notice based on physical or mental incapacity.

As outlined above, there are three timeframes that may apply, namely 14 days, 30 days and 180 days. It is very difficult to apply the 14 days limitation. The 30 day limitation applies absent the exceptions outlined above.

Statute of Limitations

Special Rules for Death Claims

Minnesota provides a three year statute of limitations for dependency claims similar to the three year statute of limitations provided for physical injuries. Actions or proceedings by dependents to recover compensation are to be brought within three years after the receipt by the Commissioner of the Department of Labor & Industry of written notice of death but not to exceed six years from the date of injury. That said, if the employee was paid workers’ compensation benefits for the injury which resulted in death, such actions or proceedings by dependents must be commenced within three years after receipt by the Commissioner of written notice of the death, but not to exceed six years after the death. Where no first report of death is filed, the dependency claim must be brought within six years of the death if workers’ compensation benefits were paid or within six years of the injury if no workers’ compensation benefits were paid.

Occupational Disease Death Claims

Minnesota Law does contain additional provisions for certain workers’ compensation injuries described as occupational disease. According to Minn. Stat. § 176.151, Subp. D, if the injury was caused by exposure to x-rays, radium, radioactive substances, ionizing radiation or any other occupational disease, the time limitations outlined above shall not apply but the employee shall give notice to the employer and commence an action within three years after the employee has knowledge of the cause of such injury and the injury has resulted in disability.

Occupational Disease Claims

The notice and statute of limitation provisions of Minnesota Law are applicable to occupational disease claims as provided by Minn. Stat. § 176.151, Subp. D. The employee is required to give notice to the employer and commence an action within three years after the employee has knowledge of the cause of injury and the injury has resulted in disability.

Until 1973, Minnesota Law contained a statute of repose. That rule provided a limit that barred all claims after a certain period of time. That law required disability to occur within a certain number of months or years following the exposure. For injuries sustained before the 1973 repeal, one should investigate Minn. Stat. § 176.66 which applied in various versions from 1921 until 1973.

Extension of Limitation Period

Several events may extend the time limitations. As it concerns the statute of limitations, the following events may toll the statute of limitations: (1) the employee’s physical or mental incapacity; (2) payment of workers’ compensation benefits or payment by the employer of medical or wage loss in lieu of workers’ compensation; (3) misrepresentation by the employer; (4) trivial injury rule.

In the case of physical or mental incapacity, the statute of limitations may be extended for up to three years from the date the incapacity ceases. Minn. Stat. § 176.151, Subd. C.

If the employer or its insurer pays workers’ compensation benefits, that payment tolls the statute of limitations. Further, if the employer pays wage loss or medical expenses in lieu of workers’ compensation, that can similarly toll the statute of limitations. Non-workers’ compensation payments of these types can be deemed, in effect, the same as workers’ compensation. That said, simple payment by the employer of sick time for someone who is unable to come to work does not necessarily equate with payments in lieu of workers’ compensation, absent intent by the employer. Similarly, medical payments by an employer’s group health plan do not toll the statute of limitation if there is no indication that benefits were paid or accepted in lieu of workers’ compensation. If there is no intent by the parties that these were to cover workers’ compensation obligations, case law supports not tolling the statute of limitations.

Misrepresentations by the employer or its insurer may also toll the statute of limitations. Misleading statements such as advice to the employee that there was no workers’ compensation coverage can toll the statute of limitations.

Case law has also developed a trivial injury rule. This has been found to be an exception to the notice requirement but has not extended the six year statute of limitation. For those injuries that are trivial and not reported, and where no First Report of Injury was filed, the six year limitation would still hold.

COMPENSABILITY

General Rule

Workers’ compensation coverage extends to personal injuries and occupational disease. Both are specifically defined by the Minnesota workers’ compensation statute. According to Minn. Stat. § 176.011, Subd. 16, a personal injury means an injury that arises out of and in the course of employment. It does not cover an employee except while engaged in, on, or about the premises where the employee’s services require the employee’s presence as a part of that service at the time of injury and during the hours of service. Where the employer regularly furnishes transportation to employees to and from work, those employees are covered by workers’ compensation while being so transported. Personal injury does not include an injury caused by the act of a third person or fellow employee intended to injure the employee because of personal reasons.

“Injury”Defined

Specific injuries that arise out of and in the scope of employment are compensable under Minn. Stat. § 176.021. Additionally, Minnesota recognizes injuries caused by repetitive minute trauma related to the employee’s job duties. These injuries are called Gillette Injuries and were recognized in Gillette v. Harold Inc., 101 N.W.2d 200 (Minn. 1960). Minn. Stat. § 176.011, Subd. 15 defines occupational disease as a disease that arises out of and in the course of employment, and is peculiar to the occupation in which the employee is engaged and due to causes in excess of the hazards ordinary of employment. Ordinary diseases of life to which the general public is exposed outside of employment are not compensable, except where the disease follows as an incident of the occupation or where the exposure peculiar to the occupation makes the disease an occupational hazard. A disease arises out of employment only if there is a direct causal connection between the conditions of work and the occupational disease. An employer is not liable for compensation regarding a disease that cannot be traced to the employment as a direct and proximate cause and is not recognized as a hazard characteristic of and peculiar to the occupation, or which results from a hazard to which the worker would have been equally exposed outside of the employment.

Types of Injuries

Accident Not Required

To be covered for workers’ compensation the employee must prove either a personal injury or occupational disease. There is no need to prove negligence. Any injury that occurs during the course and scope of employment as defined above may result in a compensable injury.

Infectious Diseases

Infectious Diseases are covered under the definition of occupational disease, so long as the disease is acquired as a direct result of the employment. The employee has the burden of proving a causal link between the employment and the exposure. An employer is not liable for workers’ compensation for an infectious disease which cannot be traced to the employment as a direct and proximate cause or which results from a hazard to which the worker could have been equally exposed outside of employment. If immediately preceding the disablement or death, the employee was providing emergency medical care or the employee was working as a licensed police officer, fire fighter, paramedic, correctional officer, emergency medical technician or licensed nurse providing emergency medical care, and that employee contracts an infectious or communicable disease to which the employee was exposed in the course of employment outside of a hospital, then the disease is presumptively an occupational disease and is presumed to have been caused by the employment. Any factors the employer uses to rebut this presumption known to the employer or insurer at the time of denial of liability shall be communicated to the employee with that denial.

A presumption also exists for fire fighters who are disabled by reason of cancer caused by exposure to heat, radiation or a known or suspected carcinogen defined by applicable agency. That cancer may be presumed to be an occupational disease.

Heart

Heart disease can be proved as an occupational disease if it meets all the elements of the definition contained in Minn. Stat. § 176.011, Subd. 15. The disease must arise out of the course and scope of employment and must be due to causes in excess of the hazards of ordinary employment. Ordinary diseases of life, such as heart disease, to which the general public is equally exposed outside of employment are not compensable, unless it is shown the disease follows as a direct result of the occupation.

Minnesota Law contains a presumption that heart disease is causally related to the employment covering a narrow list of conditions applicable to peace officers. According to Minn. Stat. § 176.011, Subd. 15(b), the disease of myocarditis, coronary sclerosis, pneumonia or its sequelae is deemed causally related to the employment of persons who have the following employment: an employee employed in active duty with an organized fire or police department or any municipality or a member of the Minnesota State Patrol, conservation officer, State Crime Bureau officer, forest officer of the Department of Natural Resources, state correctional officer or full time sheriff or deputy sheriff. There are several required elements to apply this presumption. The first element is that the employee had a pre-employment physical negative for myocarditis, coronary sclerosis, pneumonia or its sequelae.

For these diseases and this set of employees who have had a negative pre-employment physical, the disease is presumptively an occupational disease and is presumed to be causally related to the employment. However, that presumption may be rebutted by the employer showing substantial risk factors personal to the employee. Any factors used to rebut the presumption which are known to the employer or insurer at the time of the denial of liability, shall be communicated to the employee with that denial.

Psychological Injury

For injuries sustained prior to October 1, 2013, workers’ compensation coverage for psychological injury is limited. For a psychological injury to be covered, it must be substantially caused by a compensable physical injury. Alternatively, there may be coverage if a mental impairment leads to a physical injury separately treatable as a physical condition. Mental stress leading to a psychological injury was not covered under the Workers’ Compensation Act for injuries sustained before October 1, 2013. Two categories provided limited coverage for psychological injuries, these are typically described by practitioners as physical-mental injuries or mental-physical injuries. The most common coverage for mental impairments is where a substantial physical injury resulted in a consequential mental impairment such as depression, adjustment disorder or post-traumatic stress disorder.

The Minnesota legislature expanded coverage for certain mental impairments for dates of injury from and after October 1, 2013. In this context, if a mental employment stress leads to a mental impairment it could be covered, but only if the diagnosis applicable to the mental impairment is one of PTSD. This new mental-mental coverage is limited to the diagnosis of PTSD

Further, the diagnosis of PTSD must be made pursuant to the most current edition of the Diagnostic Statistical Manual. The most current edition presently is DSM-5. The diagnosis of PTSD must be made by a licensed psychologist or psychiatrist and must be consistent with DSM-5. If it does not fit all requirements of DSM-5 for PTSD, then the condition is not compensable. The current statute also codifies the existing limited coverage for physical-mental and mental-physical impairments. The new statute is contained in the definition of personal injury and occupational disease as provided by Minn. Stat. § 176.011, Subd. 15 and 16.

Occupational Diseases and Apportionment Issues

As we have outlined above, Minnesota workers’ compensation law does provide coverage for occupational diseases. Minn. Stat. § 176.011, Subd. 15. For employees who are exposed to hazardous materials or substances during multiple employments or multiple periods of coverage, the employer who employed the employee during the last substantial contributing exposure is fully responsible for the occupational disease and pays 100% of workers’ compensation benefits. An occupational disease is not apportioned between multiple employers or exposures in the context of a single disease. If there are multiple personal injuries or multiple diseases, then apportionment is allowed, but Minnesota Law does not support apportionment within one injury or occupational disease.

As a general proposition, the disease becomes compensable when the employee becomes disabled. It is important to determine a specific date the disease manifests itself, because that date of injury is used to confirm workers’ compensation coverage. Disablement has been defined broadly to include a number of things including self-modification of a job or inability to perform all functions of the job even if there is no actual wage loss or lost time. Further, entitlement to benefits is governed by the law in effect on the date of disablement.

Minnesota Law allows coverage for occupational disease in the absence of any wage loss. An employee who contracts an occupational disease is eligible to receive workers’ compensation benefits even when not disabled and earning full wages. This allows an employee to obtain medical benefits for an occupational disease when workability continues.

EXCLUSIONS AND DEFENSES

Court of Employment

Engaged in the Furtherance of Employer’s Business

Workers’ compensation coverage is limited to injuries that arise out of the course and scope of the employee’s employment. This test requires a causal connection between the employment and the injury. An injury is said to arise during the course and scope of employment when the following elements are established: (1) the injury takes place within the period of employment; and (2) the injury takes place at a place where the employee may be while fulfilling his duties. “In the course of” requirement refers to time, place and circumstance. The “arising out of” provision requires that the employee is engaged in furtherance of the employer’s business.

Not in Furtherance of Employer’s Business

To establish a connection between the work activity and the injury, Minnesota Law provides an “increased risk test.” Under the increased risk test, the employee must establish the injury was caused by an increased risk to which the employee, different from the general public, was subjected to by his or her employment. Essentially, the employee must show that a condition of the employment increased the employee’s exposure to potential harm beyond that of the general public or beyond the employee’s exposure to potential harm outside of work.” This was most recently articulated in a Minnesota Supreme Court case Dykhoff v. Xcel Energy filed by the Minnesota Supreme Court on December 26, 2013. In that case, the employee slipped and fell on a flat dry surface. Employee claimed she had been required to dress up for a training session and that included her choice to wear high heels. She fell. The compensation judge found there was no slippery surface. The Minnesota Supreme Court concluded there was no evidence of an increased risk of injury distinct from that to which the general public was exposed. The Court concluded the employee failed to establish compensability and the injury was found non-compensable.

Traveling Employees

In Minnesota, injuries sustained while traveling to and from work are not compensable. Normal commuting is not covered. That said, when the employer sends the employee on a business trip, the employee is typically covered “portal to portal”. In addition, if the employer sends the employee on a special errand, coverage extends to travel during that special errand.

Complexities arise when the work site is mobile. For example, construction workers commuting to a mobile work site are not generally traveling employees but rather are commuters. However, there may be circumstances where special travel is required and the employee is able to sustain the burden of showing she was a traveling employee rather than a commuting employee.

Commuting

As discussed above, the employees are generally not covered while commuting. There can be exceptions if the employee is required to carry substantial tools of the job. For example, if the employee is required to have his or her car as equipment used during employment, the commute may be compensable, because the employee is providing service to the employer by bringing required tools of the work day. However, absent one of these exceptions, commuting employees are not covered for workers’ compensation.

No Fixed Place of Work Exception

Employees who have no fixed place of work may be covered by workers’compensation as traveling employees or may be excluded from coverage as commuting, depending on the detailed facts of each case. As discussed above, for typical construction travel where work places move as construction changes, travel to the job site is typically commuting and not covered by workers’ compensation. However, if the work place moves extraordinarily, in other words, substantially outside of the normal course of employment, the employee may be able to establish he is no longer commuting but is a traveling employee. Indications of traveling employee status may include receiving reimbursement for mileage or lodging Typically, employees who are not compensated for their travel either by wages or mileage reimbursement, but simply move to various job sites, are not covered while they drive to work. That is considered commuting which is not covered by the statute. The factual analysis to be done on a case by case basis is to see whether the facts of the employment relationship fit more as commuting versus a traveling employee who is engaged in business travel for his or her employer.

Transportation Included in Employment Exception

Where the employer regularly furnishes transportation to the employee, injuries sustained while the employer provides transportation are covered by workers’ compensation as provided by Minn. Stat. § 176.011, Subd. 16. Where the employer regularly furnishes transportation to the employee to and from the work place, those employees are covered by workers’ compensation while being so transported.

Special Missions, Assignments, or Circumstances Exception

Minnesota has developed an exception to the coming and going rule described as the special errand rule. If the employer asks the employee to embark on a special errand, travel during that special errand is covered for workers’ compensation benefits. A good example is a maintenance worker who is called in to the work place after hours to fix a broken pipe. While the employee drives to work afterhours, that employee is covered for workers’ compensation. See Nehring v. Minnesota Mining & Manufacturing, 258 N.W. 307 (Minn. 1935).

Premises and Park Lot Cases

If the employer owns the parking lot and the employee slips and falls in the parking lot, coverage is generally accepted as part of the safe ingress and egress to the work place. The employee is covered for workers’ compensation during egress and ingress, in other words, coming in and out of the work premises, at least while the employee is on the company premises.

Once the employee leaves the premises to walk on a public sidewalk or to drive home on their commute, they are generally not covered by workers’ compensation. Occasionally, the law will extend coverage outside the employer premises if the work increases the risk of injury. In these cases of a special hazard, workers’ compensation coverage may extend. For example, if the only place employees can park is across from an extraordinarily busy street, the risk of that busy street may be found to be part of the employment (on a case by case basis), even if they are crossing a public street. The general question is whether the employment substantially increased the employee’s risk. If the employment increased the risk, there can be coverage. That said, if the employee is subject to the same risks as any person on the public sidewalk or street, there should not be workers’ compensation coverage.

This special hazard extension has been described in Minnesota case law as follows: the exception is applicable only if by virtue of the employment, the employee is exposed to a hazard which originates on the employment premises, is a part of the working environment, or if it peculiarly exposes the employee to an external hazard which subjects the employee to a greater personal risk than one has when pursuing ordinary personal affairs.

Related to Employment

Injuries that do not relate to the employment are not covered. One example is idiopathic injuries. Injuries to which no known cause can be established are deemed personal to the employee and not covered for workers’ compensation. An idiopathic injury is peculiar to the employee and arises spontaneously from an unknown cause. Idiopathic injuries do not satisfy the increase risk test and generally are not covered under workers’ compensation.

Intentionally Self-Inflicted Injury or Death

Injuries that are accidentally self-inflicted during the course and scope of employment are generally covered. An exception applies to injuries that are intentionally self-inflicted. The intention of the employee to injure him or herself breaks the causal link between the work and the injury, and these injuries are not covered.

This issue arises occasionally in suicide cases. There can be coverage for suicides when the physical injury causes such extreme pain and/or emotional stress that the self-inflicted injury is not intentional. Where the employee takes the action intentionally, the injury is not covered, but if his or her judgment is so impaired by the chronic pain and/or mental stress, the employee may, in limited circumstances, be able to establish a causal link between the self-inflicted injury and the original physical work injury.

Minn. Stat. § 176.021 explains that injuries intentionally self-inflicted or caused by intoxication are not covered by the Workers’ Compensation Act. However, the burden of proof of these facts is upon the employer.

Employee’s Intoxication

Minn. Stat. § 176.021 states that injuries proximately caused by intoxication are not covered by workers’ compensation. However, the employer has to prove the intoxication and prove that the intoxication was a proximate cause of the injury such that it is not covered by workers’ compensation. Otherwise, an injury sustained where intoxication is not the proximate cause, can be covered if it arose out of the course and scope of employment. Employee negligence is not a defense.

Employee’s Violation of Positive Orders of Employer

If an injury arises from an act prohibited by the employer, coverage is not extended to that injury. However, if the employee is performing an act that is permitted but the manner of performance is prohibited, that injury is generally covered. The employer must show a causal link between the prohibited act and the occurrence of injury to establish the absence of workers’ compensation coverage. It is important that the act be clearly prohibited. For example, if there is a rule against an act but the employee can show it was an act customarily allowed by the employer, it may be difficult for that employer to establish the act was actually prohibited. Essentially a prohibited act is not something that arises in the course and scope of employment, and therefore workers’ compensation coverage should not extend to that injury.

Personal Animosity

Minnesota Law clearly excludes coverage for injuries sustained based upon personal animus. This limitation is contained in the definition of personal injury. According to Minn. Stat. § 176.011, Subd. 16, personal injury does not include an injury caused by the act of a third person or fellow employee intended to injure the employee because of personal reasons and not directed against the employee because he was or she was an employee of that company. The motivation of the actor is important. If the attack is based on the status of someone working for a certain company or arises from the work activity the employee performed, there is coverage. However, if the animus is attributable to issues personal to the employee such as something arising from a non-work relationship, such an injury sustained on the premises would not be covered.

Hostile Attacks

If the attack is due to hostility against the employer, then the injury is covered, assuming it occurs during the course and scope of employment. Hostility directed at the employer but leading to injury sustained by the employee is compensable under Minnesota Law.

Retirement

General Rule

Benefits for wage loss cease at retirement. An employee who is retired is presumed to have removed him or herself from the labor market, and wage loss benefits need not be paid. According to Minn. Stat. § 176.101, temporary total disability benefits shall cease at retirement. Retirement means that a preponderance of the evidence supports a conclusion that the employee has retired. In addition, for injuries occurring after January 1, 1984, an employee who receives Social Security, old age or survivor’s insurance retirement benefits is presumed retired from the labor market. For injuries occurring after October 1, 2000, an employee who receives Social Security or any other service based government retirement pension is presumed retired from the labor market. The current presumed retirement age is 67 in Minnesota.

Proof of Voluntary Retirement

Pursuant to Minn. Stat. § 176.101, Subd. 4, permanent total disability benefits shall cease at age 67, because the employee is presumed retired from the labor market. This presumption is rebuttable by the employee. The subjective statement by the employee that she is not retired is not sufficient to rebut the presumption of retirement. The employee must produce additional evidence. Typical evidence is financial distress such that the employee can establish he or she cannot afford to retire and needs the additional compensation afforded by work. Other evidence would include diligent efforts to seek employment or other evidence to suggest the individual is engaged in the labor market. Establishing that intention could include substantial to job search, work to improve skills, seek training, or develop work connections to support earning capacity.

BENEFITS

Calculation of Average Weekly Wage

Wage loss benefits are based upon the average weekly wage. Calculation of the average weekly wage is governed by statute including Minn. Stat. § 176.011, Subd. 18 and Subd. 8a. If the wage is regular, the calculation is simple and is based on that regular wage.

If the wage is irregular, it is based on average earnings over the 26 weeks preceding the date of injury.

Weekly wage is determined by multiplying the daily wage by the number of days worked. Typically calculating a daily wage is not necessary, unless one is dealing with a construction or seasonal position. If not a construction or seasonal position, the average earnings during the 26 weeks preceding the injury will determine the average weekly wage.

For the construction industry, mining or other industry where the hours of work are affected by seasonal conditions, the weekly wage is determined to be five times the daily wage. The daily wage is typically calculated by dividing the earnings covering the 26 weeks period by the number of days actually worked.

The goal of calculating average weekly wage is to accurately determine the employee’s pre-injury earning capacity. Compensation judges in certain situations have the ability to depart from the 26 weeks average, if that does not accurately measure earning capacity. In certain situations a 52 week history is needed to fully approximate pre-injury earning capacity.

Total Disability

Temporary total disability benefits are governed by Minn. Stat. § 176.101, Subd. 1. For an injury causing temporary total disability, the employee receives 66 2/3% of the average weekly wage on the date of injury. Temporary total is presently limited to a maximum of 130 weeks. For earlier dates of injury, it was capped at 104 weeks. Date of injury governs which cap applies.

Various cessation events are contained in Minn. Stat. § 176.101 that indicate when temporary total shall cease.

Permanent total disability benefits are governed by Minn. Stat. § 176.101, Subd. 4. Permanent total disability benefits shall cease at age 67 because the employee is presumed retired from the labor market. However, this presumption may be rebutted by the employee.

Permanent total disability benefits are paid at 66 2/3% of the daily wage at the time of injury subject to the maximum rate. Permanent total disability benefits shall be paid during the period of permanent total disability. However, after a total of $25,000 of weekly compensation has been paid, the permanent total disability benefits may be reduced by Social Security benefits received and certain other old age and disability benefits outlined in the statute.

Partial Disability

Permanent partial disability is paid based on the employee’s loss of function. It is governed by Minn. Stat. § 176.101, Subd. 2a. Permanent partial disability must be rated as a percentage of the whole body as provided in rules adopted by the Commissioner. The schedule of permanent partial disability payments is outlined in Subd. 2a.

Permanent partial disability benefits are typically paid weekly upon cessation of temporary total disability benefits. If the employee requests payment in a lump sum, the compensation must be paid within 30 days, but it may discounted to the present value calculated at a 5% discount. If the employee does not choose to receive the permanency payment as a lump sum, compensation is paid weekly at the temporary total rate until the permanency is fully paid.

Impairment Rating

Impairment ratings are provided in the workers’ compensation rules. The rules are contained in Chapter 5223 of rules issued by the Department of Labor and Industry.

Vocational Rehabilitation

Vocational rehabilitation is intended to assist the employee in his or her effort to restore any lost earning capacity and return to a job that produces an economic status as close as possible to that which the employee enjoyed prior to the injury. Employees who are unable to return to their chosen occupation may request a vocational rehabilitation consultation to determine whether they are a qualified employee for vocational rehabilitation services. In that initial consultation, the rehabilitation expert is to determine whether the employee is a qualified employee for vocational rehabilitation services.

Employers are instructed to notify the Commissioner of the Department of Labor and Industry whenever an employee’s temporary total disability benefits is likely to exceed 13 weeks. This notification is to assist in determining whether a rehabilitation consultation should be provided to an injured employee.

Vocational services may include medical management, job search, skills enhancement and retraining. Retraining is limited to a maximum period of 156 weeks. Any request for retraining shall be filed by the employee before 208 weeks of any combination of temporary total and temporary partial compensation has been paid. The employer must notify the employee in writing of this 208 week limitation before 80 weeks of wage loss benefits have been paid.

Return to Work with Loss of Earnings

Minnesota workers’ compensation law provides an employee with temporary partial disability benefits where the employee returns to work at earnings less than his pre-injury average weekly wage. Two-thirds of the difference in the weekly wage is paid as temporary partial disability benefits.

Temporary partial may only be paid while the employee is employed earning wages less than the date of injury AWW. Temporary partial disability benefits are capped to a maximum number of weeks of 225 during a period of time that ends 450 weeks after the date of injury, whichever occurs first. In other words, there are two different caps. There is a maximum weeks-paid cap of 225. Separately, the timeframe during which the employee may claim temporary partial ends 450 weeks after the date of injury.

Temporary partial disability benefits are intended to pay for lost earning capacity attributable to the work injury. Accordingly, if the wage loss is not attributable to the work injury, TPD benefits may not be payable.

Earning Power Assessment

An employer has the option of hiring its own vocational expert to determine earning capacity. An employee who is not working at his full earning capacity may be required to continue efforts to mitigate his wage loss by diligently seeking new employment. If the employee’s earnings do not accurately reflect his earning capacity, a defense to payment of temporary partial may be developed. Again, it is the intended benefit of temporary partial to cover lost earnings caused by the work injury, not lost earnings caused by personal choices or other circumstances having no relationship to the work injury.

Employer Job Offer

An employer job offer may substantially impact entitlement to benefits. First, temporary total shall cease when the employee returns to work. Minn. Stat. § 176.101, Subd. 1(e). In addition, temporary total compensation shall cease if the employee refuses an offer of work that is consistent with a plan of rehabilitation filed with the Commissioner or if no plan has been filed, the employee refuses an offer of gainful employment that the employee is able to do given the employee’s physical condition. For employees who refuse an offer of suitable employment as outlined in Minn. Stat. § 176.101, Subd. 1(i), temporary total disability benefits may not be recommenced.

A refusal of an offer of suitable employment, in other words employment the employee is able to perform, can also impact entitlement to temporary partial. In that instance, the wage loss is no long attributable to the work injury, because the employee could have restored his earnings fully by accepting the job offer. This is a case-by-case analysis as it concerns temporary partial disability benefits.

Vocational Expert

Workers’ compensation cases often involve multiple vocational experts. One vocational expert is the qualified rehabilitation counselor working with the injured employee to assist in restoring lost earning capacity. That qualified rehabilitation consultant must remain a neutral party is not an advocate on behalf of the employee. The role of the QRC assigned to provide statutory services is to assist the employee in restoring her earning capacity which benefits both parties.

Separately, the employer has the option of hiring an independent vocational expert to evaluate the vocational rehabilitation plan, evaluate the employee’s job search or address questions of earning capacity, retraining and permanent total disability. Any independent vocational expert hired by either party may serve as an advocate and provide opinion so long as those opinions are based on adequate foundation and the expert is appropriately qualified. Independent vocational experts are most commonly retained to evaluate a proposed retraining program or an assertion of permanent total disability.

Amputation or Loss of Use

Workers’ compensation coverage for amputation and loss of use is covered by the permanent partial disability schedule. Permanent partial disability benefits are intended to compensate the employee for lost function, regardless of the existence of lost earning capacity, which is addressed by temporary total, temporary partial and permanent total disability. For each body part, there is a separate schedule that addresses permanent partial disability entitlement regarding injuries that result in amputations and/or loss of use. The applicable permanency schedules for injuries on or after July 1, 1993 begin at rule 5223.0300

Disfigurement/Scarring

Workers’ compensation coverage for disfigurement and scarring is covered by the permanent partial disability schedule. Permanent partial disability benefits are intended to compensate the employee for lost function, regardless of the existence of lost earning capacity, which is addressed by temporary total, temporary partial and permanent total disability. For each body part, there is a separate schedule that addresses permanent partial disability entitlement regarding injuries that result in disfigurement/scarring. The applicable permanency schedules for injuries on or after July 1, 1993 begin at 5223.0300.

Loss of Sight

Workers’ compensation coverage for loss of sight is covered by the permanent partial disability schedule. Permanent partial disability benefits are intended to compensate the employee for lost function, regardless of the existence of lost earning capacity, which is addressed by temporary total, temporary partial and permanent total disability. The applicable permanency schedules for injuries on or after July 1, 1993 begin at 5223.0300.

Loss of Hearing

Workers’ compensation coverage for loss of hearing is covered by the permanent partial disability schedule. Permanent partial disability benefits are intended to compensate the employee for lost function, regardless of the existence of lost earning capacity, which is addressed by temporary total, temporary partial and permanent total disability. The applicable permanency schedules for injuries on or after July 1, 1993 begin at 5223.0300.

Penalties

For frivolous denials or late payment of workers’ compensation benefits, penalties may be assessed against the employer to be paid to the State and/or to the injured worker. Payments are typical due within 14 days of notice or knowledge to the employer of a compensable injury. The 14 day period and other relevant time frames are outlined in Minn. Stat. § 176.225. These penalties can be substantial.

In addition, penalties may be payable to the employee under Minn. Stat. § 176.225. For example, if the employer institutes a frivolous denial or refuses to pay benefits when due, compensation can be awarded including a penalty up to 30% of the total amount due. Similarly, under Subd. 5 of that statute, where the employer is guilty of inexcusable delay in making payments, payments found to be delayed are to be increased by 25%. Those late payments can also be subject to interest at the rate of 12% per annum. Minn. Stat. § 176.225, Subd. 5.

Interest

Interest is governed by Minn. Stat. § 176.221, Subd. 7. Any payment of compensation not made when due shall bear interest from the date it was due made at the rate set by Minn. Stat. § 549.09, Subd. 1.

Costs

Minnesota Law allows the payment of litigation costs to the injured worker and her attorney when the employee is successfully recovering benefits. Reimbursement is limited to costs deemed reasonable, such as deposition transcript, medical records, expert fees and similar items actually incurred to establish compensability.

Counsel Fees

Attorney’s fees payable to an attorney representing an employee are governed by statute. Fees may not be paid without an order or an award signed by a compensation judge. The fees are governed by Minn. Stat. § 176.081.

For injuries occurring before 10/1/13, attorney’s fees are calculated at 25% of the first $4,000 and 20% of the next $60,000, to reach a soft cap on attorney’s fees of $13,000. That statutory cap on attorney’s fees was determined by the Minnesota Courts to have limited affect. That being said, any fee to be paid is required to be approved by a compensation judge by order or Stipulation for Settlement with an Award.

The law was amended in 2013 to allow attorney’s fees of up to $26,000 at 20% of benefits. Again, this cap is not absolute as the Minnesota Courts determined the Legislature did not have the power to strictly limit attorney’s fees. The award of attorney’s fees is within the authority of the compensation judge.

Attorney’s fees are also available for medical disputes to be paid by the employer when the employee is successful in establishing entitlement to medical or other non-monetary benefits. These are provided pursuant to case law including Roraff, Heaton and Irwin.

Death Benefits

Dependency benefits are provided to dependents of employees whose death arises from the course and scope of employment. The extent of benefits is outlined in the statute, namely 176.111.

Widow/Widower

If the deceased employee leaves a dependent surviving spouse but no dependent children, the spouse is entitled to weekly workers’ compensation benefits at 50% of the AWW for a period of 10 years.

Death Benefits/Children

If the deceased employee leaves a surviving spouse and one dependent child, the surviving spouse and child receive 60% of the average weekly wage until the child is no longer dependent. Once the child is no longer dependent, the surviving spouse is paid a rate which is 16 2/3% less than the last payment which will continue for 10 more years. If there are two surviving children, the benefit continues at 25% less than the previous rate for a period of 10 years. For the details of calculating benefits, see Minn. Stat. § 176.111.

Death Benefits/Parents and Siblings

If the deceased employee leaves no surviving spouse and no surviving children but has dependent parents, there can be a dependency payment at 35 to 45% of the average weekly wage. See Minn. Stat. § 176.111, Subd. 14

Death Benefits/Amounts of Benefits

The details for calculating benefits depend on the number of surviving dependents. There are separate categories for surviving spouse no child, surviving spouse one dependent child, surviving two dependent children and other configurations. Minn. Stat. § 176.111.

Medical Benefits

Employees are entitled to receive all medical care that is reasonable and necessary to cure or relieve the employee from the effects of the work injury. Medical benefits are governed by Minn. Stat. § 176.135. The list of treatment types is broad. The key here is that the healthcare must be reasonable, necessary and causally related to the work injury.

Treatment parameters have been developed by the Department of Labor and Industry and these are instructive in determining the reasonableness and necessity of treatment. Expert opinions may also be generated regarding the necessity of care or its causal relationship to the injury. Medical treatment is not subject to any specific yearly cap and continues so long as treatment is required. The employer has the option of scheduling an independent medical evaluation to evaluate the need for treatment. There are also provisions for second opinions and other reviews of the care such that it can be confirmed necessary and at the appropriate cost. Minnesota has also developed a fee schedule to determine the price of care and treatment.

SUBROGATION OR CREDIT

General Rule

As a general rule, the employer and insurer stand in the shoes of the employee as it concerns claims against third parties whose negligence caused the employee’s work injury. The employer and insurer may join an action brought by the employee or may start their own action. The subrogation framework is outlined in Minn. Stat. § 176.061. The employer’s claim includes workers’ compensation benefits paid and payable. Minnesota also allows an employer to sue a third party for the change in its workers’ compensation premium attributable to the work injury.

Attorney’s Fee

As it concerns a claim against a negligent third party, the plaintiff’s attorneys fee is taken from the recovery. Minnesota has a statutory distribution formula contained in Minn. Stat. § 176.061, Subd. 6 which divides a third party recovery between plaintiff’s counsel, the injured worker and the employer/insurer. The first item is the cost of collection. That is paid from the lump sum and includes attorney’s fees and litigation costs.

Motor Vehicle Accidents

If the employee is injured in a motor vehicle accident that arises out of the course and scope of the employment, it is important to look at the facts of the accident and determine whether there was a third party whose negligence caused the collision and employee’s injuries. If so, the employer and the insurer may assert a subrogation claim pursuant to Minnesota workers’ compensation statute. This statutory subrogation claim is outlined in Minn. Stat. § 176.061.

Health Benefits

For injuries that arise out of employment, medical expenses are paid by workers’ compensation. However, if a no-fault carrier or other medical insurer pays for health care that actually relates to a work injury, then the third party health care insurer or no-fault insurer may intervene in the workers’ compensation action and seek reimbursement.

Credits

If the 3rd party recovery is substantial enough, there may be a future credit. The future credit is calculated pursuant to Minn. Stat. § 176.061, Subd. 6. The employer may use that future credit to reduce future payments. The credit should be memorialized by way of an order or Stipulation for Settlement and filed with the Department of Labor and Industry such that there is no misunderstanding of why benefits are being reduced or not paid based upon the subrogation credit.

ATTORNEYS

Certifying Organization

Minnesota Workers’ Compensation claims must be litigated by attorneys licensed to practice law in the state of Minnesota. Attorneys are licensed in the state of Minnesota by the Minnesota Supreme Court. Attorneys not holding a Minnesota attorney’s license may be admitted to practice on a case by case basis by motion for admission Pro Hac Vice.

Required Documentation

The Minnesota Supreme Court maintains a database of attorneys currently licensed to practice in the state.

CLAIMS PROFESSIONALS

Claims professionals in the state of Minnesota must be licensed under Minnesota Statute § 72b.03. Minn. Stat. §72b.041 Subd. 2 (b) allows an independent adjuster or public adjuster to qualify for a license in adjusting workers’ compensation claims. Minn. Stat. §72b.03 Subd. 3 prohibits anyone not holding a Minnesota license from adjusting workers’ compensation claims.

LITIGATION AND APPEAL

Workers’ Compensation Judge Proceedings

Office of Adjudication

Workers’ compensation disputes may be litigated under two separate processes. Rehabilitation disputes and medical disputes under $7,500.00 are initially heard at the Minnesota Department of Labor and Industry. A mediator/arbitrator from the Department of Labor and Industry will issue a decision on the medical request or rehabilitation request. That decision may be appealed to the Office of Administrative Hearings for a full evidentiary hearing. Medical conferences and rehabilitation conferences at the Department of Labor and Industry proceed informally with “testimony” or documentation received without the parties being placed under oath.

All formal evidentiary hearings are conducted at the Office of Administrative Hearings Workers’ Compensation Division. Those hearings are conducted before workers’ compensation judges from the Office of Administrative Hearings.

Appointment of Workers’ Compensation Judges

Worker’s Compensation Judges are hired by the Chief Administrative Law Judge of the Office of Administrative Hearings pursuant to authority delegated by the Governor of the State of Minnesota. The Chief Administrative Law Judge is directly appointed by the Governor of the State of Minnesota.

Qualifications of a Workers’ Compensation Judge

Workers’ Compensation Judges are hired by the Office of Administrative Hearings based upon their knowledge of and experience in the Minnesota Workers’ Compensation System. All of the Judges are licensed attorneys in the State of Minnesota and their conduct as governed by the Minnesota Judicial Canons of Conduct.

Procedure

A claim is commenced at the Office of Administrative Hearings with the filing of a Claim Petition, Petition to Discontinue or Petition for Formal Hearing appealing an administrative decision from the Department of Labor and Industry. The employer and insurer have 20 days to serve and file their answer to the Claim Petition. If an employee is not receiving any workers’ compensation benefits and currently has no other source of income the employee may file for financial hardship status and request an expedited hearing.

Limited Discovery

The service and filing of the Claim Petition triggers a 120 day deadline for the employer and insurer to serve and file an independent medical examination report. The 120 day deadline can be extended for good cause or by agreement of the parties.

Additional discovery is governed by Minnesota Rule §1420.2200. The rule limits discovery although in general discovery does appear to be expanding. Generally, discovery includes obtaining a list of medical providers from the employee and authorizations to collect all relevant medical employment, social security and other workers’ compensation records.

Minnesota Rule §1420.2200 Subp. 2 allows for taking a deposition of the employee. Depositions are conducted in the same manner provided for under the Minnesota Rules of Civil Procedure.

In cases where the employee’s vocational capabilities are at issue the employer and insurer are entitled to an independent vocational evaluation of the employee.

Block Assignment

After the Claim Petition has been filed, the Office of Administrative Hearings will issue a notice of judge assignment block assigning the case to one workers’ compensation judge. That judge will hear all disputes up to and including the full hearing. Each party is entitled to one petition for reassignment within 10 days of notice of the block assignment.

Hearings

Once a claim is ready to proceed to formal hearing, the parties will be given at least 30 days notice of the hearing date and location. Hearings may be held throughout the state of Minnesota although most hearings are held at the Office of Administrative Hearings in St. Paul or Duluth. Pursuant to Minn. Stat. §106.341 subd. 4, parties may receive a continuance of the hearing date only by showing good cause and by submitting a motion signed by both the attorney and the party requesting the extension.

Generally, all evidence to be received into the record should be submitted at the time of hearing. However, a judge may keep the record open for up to 30 days following the hearing to receive additional evidence. All hearings are recorded and can later be transcribed for purposes of appeal. Any evidence not formally received into the record may not be considered in making a judicial determination or upon appeal.

Generally the party filing the pleading that initiates the case bears the burden of proof. Workers’ compensation cases are decided on a preponderance of the evidence standard.

Compensation judges are not bound by the statutory rules of evidence; however, those rules do provide guidance for conducting a formal hearing. A workers’ compensation judge has the discretion to make determinations on the credibility of any witnesses presented at hearing. Further, with respect to medical evidence, a compensation judge is free to accept or reject all or part of any medical evidence submitted.

Investigative Powers

Minnesota Workers’ Compensation Judges do not have independent investigative powers. However, during hearings the workers’ compensation judge may ask questions of the witnesses directly.

Decisions

A compensation judge must issue a decision within 60 days after the record has closed. A decision should resolve all disputed issues of law and fact as well as making a formal determination of any benefits to be awarded. The workers’ compensation judge has the sole discretion to assess the credibility of the witnesses and evidence presented. A judge is not required to issue a memorandum with the decision unless it is necessary to explain the reasons for the decision or to specifically comment upon the credibility of the witnesses or evidence.

Workers’ Compensation Court of Appeals

Once the compensation judge has issued a decision, any party involved in the dispute has 30 days from the date the decision has been served and filed within which to file a notice of appeal. A notice of appeal must be both filed and served within the 30 day period in order to be valid.

Scope of Review for the Workers’ Compensation Court of Appeals

Pursuant to Minn. Stat. §176.421 Subd. 1 there are three grounds for appeal;

1.       That a compensation judge’s order does not conform with the Minnesota Workers’ Compensation Act;
2.       That the compensation judge committed an error of law;
3.       That the findings of fact and order were clearly erroneous and unsupported by substantial evidence in the record; or
4.       That the findings of fact and order were procured by fraud, coercion or improper conduct of one of the parties.

The Workers’ Compensation Court of Appeals gives deference to compensation judges on issues of determining the credibility of the witnesses, making findings of fact, choosing between competing medical opinions, and any other factual issue. It will only overturn a factual decision of a compensation judge if that decision was clearly erroneous. In contrast, with respect to issues of law the Workers’ Compensation Court of Appeals reviews the issue de novo. It need not give any deference to a compensation judge’s determination of law or interpretation of the law.

Original Jurisdiction

The Workers Compensation Court of Appeals has original and exclusive jurisdiction over petitions to vacate a prior settlement approved through an Award on Stipulation. The court may vacate an Award on Stipulation only “for cause.” “Cause” may include mutual mistake of fact, newly discovered evidence, fraud, or a substantial change in medical condition. A decision to vacate an award on Stipulation may be appealed to the Minnesota Supreme Court.

The remainder of the Court’s docket is comprised of cases appealed from the Office of Administrative Hearings Workers’ Compensation Division.

Minnesota Supreme Court

Jurisdiction

Any party may appeal from the Workers’ Compensation Court of Appeals decision to the Minnesota Supreme Court. Minn. Stat. §176.471 gives the parties a right of appeal to the Minnesota Supreme Court. The party must file a notice of appeal to the Minnesota Supreme Court within 30 days of the Workers’ Compensation Court of Appeals decision.

Appeal to Supreme Court

Pursuant to Minn. Stat. §176.471 Subd.1 there are three grounds for an appeal to the Minnesota Supreme Court;

1.       That a findings and order does not conform with the Minnesota Workers’ Compensation Act;
2.       That the Workers’ Compensation Court of Appeals committed an error of law; or
3.       The findings of fact and order were unsupported by substantial evidence in the record.

Occasionally constitutional questions such as due process or equal protection are raised under the Minnesota Workers’ Compensation Act. The Workers’ Compensation Court of Appeals has no jurisdiction to consider constitutional issues. Constitutional issues are appealed to the Minnesota Supreme Court who has exclusive jurisdiction to determine the constitutionality of any part of the Workers’ Compensation Act.

Minn. Stat. §176.471 Subd. 9 establishes the procedures for appeal to the Minnesota Supreme Court. That statute establishes that Workers’ Compensation appeals to the Minnesota Supreme Court are handled as any other Minnesota Civil appeal to the Minnesota Supreme Court. Importantly, because the Minnesota Workers’ Compensation Act gives the party a right of appeal to the Minnesota Supreme Court rather than requiring a petition for certiorari, the court is not required to grant oral argument in any workers’ compensation case and may issue summary affirmances of the Workers’ Compensation Court of Appeals without further opinion. It is frequent for the Minnesota Supreme Court to dispose of Workers’ Compensation Appeals in that manner.

SETTLEMENT

Mandatory Mediation

There is no mandatory mediation in the Minnesota Workers’ Compensation system.

Voluntary Mediation

Voluntary mediation has been on the rise in the Minnesota Workers’ Compensation system. The parties may agree to a voluntary mediation before a mediator of their choice. The Minnesota Department of Labor and Industry has a panel of mediators who will conduct mediations for no charge. In some cases the parties agree to use a private mediator, typically an experienced workers’ compensation attorney. In addition, the judges at the Office of Administrative Hearings Workers’ Compensation Division are available for mediations although their availability is limited.

Settlement Conferences

All pleadings filed with the Office of Administrative Hearings Workers’ Compensation Division are referred for a settlement conference before a workers’ compensation judge from the Office of Administrative Hearings. The judge presiding over the settlement conference is prohibited from serving as the block assigned judge on the case. A settlement conference is typically set for six months after the first pleading is filed. In cases involving fast tracked litigation settlement conferences may be set for as little as 30 days after the pleading is filed.

All parties are required to submit a pretrial statement at least 10 days prior to the settlement conference. Parties are expected to appear in person at the settlement conference fully prepared to discuss settlement and to present information regarding the merits of their cases.

If a settlement is not reached at the settlement conference the case is referred to the block assigned judge for a hearing date.

Stipulations for Settlement

Settlements under the Minnesota Workers’ Compensation Act are governed by Minn. Stat. §176.521. Additionally, Minnesota Rule §1420.2050 outlines the requirements for filing of a stipulation for settlement, the mandatory settlement document in Minnesota. Pursuant to Rule §1420.2050 the stipulation for settlement must contain:

•       A brief statement of any admitted material facts;
•       A statement of what is in dispute;
•       The positions of the parties and some supporting documentation;
•       Any matters agreed upon by the parties; and
•       Any other information necessary for a judge to determine whether the settlement is fair, reasonable and in conformity with the Minnesota Workers’ Compensation Act.

Importantly, no workers’ compensation settlement is valid until a workers’ compensation judge has approved the stipulation for settlement and issued an award on stipulation. The valid stipulation for settlement must include signature pages from all parties to the case including all parties who have formally intervened.

INSURANCE

General Rule-Mandatory Coverage

Pursuant to Minn. Stat. §176.021 Subd. 1 all employers with one or more employees must provide workers’ compensation liability insurance. There are some limited exceptions to this rule outlined in Minn. Stat. §176.041 Subd. 1. Those limited exceptions include railroad employees engaged in interstate or foreign commerce, employees covered under Federal Employees Liability Act (FELA) or some other comparable federal law. Certain farm laborers, volunteers, household workers meeting certain monetary qualifications, independent contractors, immediate family members of sole proprietorships or closely held corporations, employees of Native American tribes. See Minn. Stat. §176.041 for complete information on employment included from coverage under the Minnesota Workers’ Compensation Act.

Particular Requirements

All employers are required to purchase workers’ compensation insurance or obtain approval from the Minnesota Department of Commerce to designate as self-insured where the employer has proved financial ability to pay for workers’ compensation claims out of pocket.

Where Employer is Uninsured

Minn. Stat. §176.181 Subd. 3(a) establishes a penalty of $1,000.00 per employee per week of non-coverage. Additionally, if the Minnesota Special Compensation has to pay a claim from an employee of an uninsured employer the employer shall be ordered to pay all compensation benefits as well as a penalty of 65% of all benefits already paid. Pursuant to Minn. Stat. §176.183 Subd. 2 the 65% penalty is mandatory.

Minn. Stat. §176.031 also provides a civil action for tort damages against the employer who fails to insure or properly self-insure for workers’ compensation liability. An employee must elect whether to pursue the civil action of pursue compensation of the Minnesota Workers’ Compensation Act with coverage provided by the Special Compensation Fund.

Minnesota Workers’ Compensation Special Compensation Fund

Minn. Stat. §176.129 creates the Minnesota Special Compensation Fund which steps in to handle claims where an employer is not properly insured for workers’ compensation liability. The Special Compensation Fund is funded by surcharges on employer’s workers’ compensation premiums and recoveries from uninsured employers. The Special Compensation Fund also investigates employers who fail to provide workers’ compensation coverage. It maintains a database of insurance coverage for any particular employer including the employer’s name, past workers’ compensation policy numbers, dates of applicable coverage, insurance carrier’s name, and the current status of the policies.