TENPITFALLS FOR THE UNREPRESENTED INJURED WORKER

by Falsani, Balmer, Peterson, Quinn & Beyer

1.FAILURE TO REPORT THE INJURY.

An injured worker must report a work injury to his or her employer, unless the employer has actual knowledge of the injury.  Minn. Stat. §176.141 provides for three different time periods regarding notice:

(a)  If the employee does not give notice within 14 days after the injury, then the workers' compensation may be delayed until notice is given.

(b)  Normally an employee must give notice within 30 days of the injury.  If the notice given within 30 days is somehow inaccurate or even if there was insufficient reason to delay notice as long as 30 days after the injury, compensation still must be paid.  If the employer is somehow prejudiced by the nature of the notice given within 30 days, it can deny compensation but only to the extent that it is prejudiced by the delayed or insufficient notice.

(c)  If the employee fails to give notice of the injury within 30 days, but establishes that the failure was due to mistake, inadvertence, ignorance of fact or law, or inability due to the fraud, misrepresentation or deceit of the employer, then the employee has up to 180 days to give notice.  Failure to give notice within 180 days of an injury may be a total and complete bar to any workers' compensation benefits.

Minn. Stat. §176.141.

The purpose of the notice requirement is to enable the employer to furnish immediate medical attention to the employee, and to investigate the claim as soon as possible after the injury has occurred.Kling v. St. Barnabas Hospital, 291 Minn. 257, 261, 190 N.W.2d 674, 677 (1971).  Generally, the Workers' Compensation Court of Appeals has been liberal in applying the "mistake or inadvertence" excuse for giving notice more than 30 days (but less than 180 days) after an injury.  There must be specific facts to show, essentially, why an employee's claim of mistake or inadvertence should not excuse late notice.See,e.g.,Nuerurer v. Jamar Company, W.C.C.A. File No. 477-46-4817, served and filed July 17, 2003,citingWood v. Airco Industrial Gasses, 45 W.C.D. 342, 345 (W.C.C.A. 1991), summarily affirmed (Minn. Oct. 30, 1991).  On the other hand, the Supreme Court strictly applied the 30-day rule inFreyholtz v. Blackduck School District No. 32, 613 N.W.2d 757 (Minn. 2000).

When does the clock start ticking after an injury?
Generally, the notice requirement begins once the employee, as a reasonable person, recognizes that he or she has a work injury that has resulted in, or is likely to cause, a compensable disability.Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 867 (Minn. 1987).  This is an especially difficult issue in cases involving aGilletteinjury: an injury caused by repetitive minute trauma brought about by the performance of ordinary job duties over a period of time.  The date of aGilletteinjury is when an "ultimate breakdown" has occurred; this could be construed as the first date of lost time from work (Prouty v. City of Duluth, 29 W.C.D. 550 (W.C.C.A. 1977); the date restrictions are imposed on the employee by a doctor (Schnurrer v. Hoerner-Waldorf, 345 N.W.2d 230 (Minn. 1984); or when the employee first seeks medical treatment for the work-related condition (Stoffer v. Minnesota Orchestra, 53 W.C.D. 341 (W.C.C.A. 1995).

2.FAILURE TO OBTAIN PROPERANDPROMPT MEDICAL TREATMENT.

An employee is entitled to payment of medical, psychological, chiropractic, and other treatment for a work-related condition.  Minn. Stat. §176.135.  This includes any treatment which is reasonable and necessary to cure and relieve the effects of a work injury.

The injured worker has the absolute right to choose his or her treating doctor for a work injury.  The employee can change doctors within 60 days after medical treatment has commenced, without getting the permission of the employer, insurer, or other interested parties.  Minn. Rule Part 5221.0430, Subpart 2.  After 60 days, the employee can change primary doctors, but only with the permission of the employer and insurer, or by seeking approval of the court.  The rule provides that the employee may not change primary doctors if:

(a)  A significant reason for the request is to block reasonable treatment or to avoid returning to work;

(b)  The change is to develop litigation strategy rather than to pursue appropriate diagnosis and treatment;

(c)  The provider lacks the expertise to treat the employee for the injury;

(d)  The travel distance to obtain treatment is an unnecessary expense and the same care is available at a more reasonable location;

(e)  At the time of the employee's request, no further treatment is needed; or

(f)  For another reason, the request is not in the best interest of the employee and the employer.

In other words, even if the employee's initial treatment is at an emergency room or at an occupational medicine clinic favored by the employer, the employee can change doctors within 60 days.

3.PROVIDING AN INCONSISTENT OR UNTRUTHFUL STATEMENT.

Other than the notice requirement, Minnesota law does not require the employee to submit to a statement, whether written, verbal, over the phone, in person, or otherwise, to either the employer or the insurer.  The employer and insurer may not condition workers' compensation benefits on the employee providing such a statement.

4.GETTING STUCK WITH THE WRONG QRC.

The employee has an absolute right to choose which qualified rehabilitation consultant (QRC) to provide statutory rehabilitation services where appropriate.  If the employer or insurer choose the QRC, the employee can change QRCs within 60 days after the rehabilitation plan is filed.  Minn. Stat. §176.102(4)(a).  After 60 days following the filing of the plan, the employee has to seek court approval for changing the QRC; the standard is usually whether changing the QRC is in the best interests of all parties.

5.FAILURE TO PROMPTLY INVESTIGATE A POSSIBLE THIRD PARTY CLAIM.

Workers' compensation benefits are the exclusive remedy an employee has against the employer following an on-the-job injury.  If the injury is caused by the negligence of a third party, however, the employee may have the right to sue for damages, including non-workers' compensation damages.  This can mean an automobile accident case, premises liability case, or product liability case.  It is often vitally important to investigate such third party claims promptly, and to ensure that evidence related to such a claim is not lost or destroyed.

6.BEING UNPREPARED FOR AN ADVERSE MEDICAL EXAMINATION.

The employer and insurer have the right to have an injured worker examined by a doctor of their choice for an adverse medical examination.  The examination must be scheduled within 150 miles of the employee's residence, and the employer and insurer generally have to pay for costs incurred in attending the examination, including mileage, parking, meals, and wage loss, if any.  Minn. Stat. §176.155.  The adverse medical examinations are sometimes used by the employer and insurer to claim that the injured workers' symptoms are inconsistent; have no objective medical basis; were related to an injury or condition that pre-existed the work injury; are not cause for work restrictions; are not permanent; or that medical treatment or proposed medical treatment is not reasonable and necessary.  These opinions can be very harmful to the continued receipt of workers' compensation benefits.

7.RETURNING TOWORKAT AN UNSUITABLEJOBOR REFUSING TO RETURN TO A SUITABLEJOB.

An injured worker's right to many types of workers' compensation benefits can be terminated if the worker refuses an offer of employment that is either consistent with the rehabilitation plan developed by the QRC, or, if there is no rehabilitation plan, is an offer of gainful employment.  Minn. Stat. §176.101, Subd. 1(i).  In either event, the offer of employment must be something the employee can do in his or her physical condition.  Often, there is a tension between the treating doctor's recommendations regarding work, and an adverse medical examination report on work ability or the employer's interpretation of the treating doctor's recommendations.  An employee can be placed in a position of either accepting a job contrary to his or her own doctor's wishes, possibly risking further injury, and risking disciplinary action by the employer for failing to carry out the job duties as expected; or refusing a job offer, and risking termination of workers' compensation benefits and possibly of the employment itself.

The injured worker's benefits may also be discontinued upon termination for "misconduct".  Minn. Stat. §176.101, Subd. 1(e)(1).  "Misconduct" is generally defined as a willful disregard for standards of behavior which an employer has a right to expect from an employee; it does not include inability, negligence, or good faith errors of judgment or discretion.Benson v.IowaBeef Processors, 348 N.W.2d 394 (Minn. App. 1984).

8.RETIREMENT OR WITHDRAWAL FROM THE LABOR MARKET.

For any date of injury, Minnesota workers' compensation law provides that retirement may be a defense to payment of temporary total disability benefits.  The definition depends on the date of injury.  For injuries before 1992, there was a presumption of retirement when the employee received social security old age and survivor retirement benefits.  For injuries after 1992, it was presumed that retirement would serve as a bar to temporary total disability benefits.  The employee could rebut the presumption of retirement by a preponderance of evidence.  Typically, evidence that would rebut the presumption would include specific plans to work beyond retirement, financial needs that would preclude retirement, and other statements from witnesses regarding the intent of the injured worker.

For injuries after October 1, 1995, there was a new presumption that employees are retired at age 67.  This retirement presumption also works to terminate permanent total disability benefits.

Employers and insurers frequently assert that an employee has withdrawn from the labor market.  The basis for such a claim could be moving from an urban area (like the Twin Cities) to a rural area where jobs are more scarce; applying for social security disability or other disability pension that precludes full time work; being incarcerated; or even an unrelated medical condition (like pregnancy) that prevents the employee from seeking work.  Minn. Stat. §176.101, Subd. 1(f).

But the most common defense to wage loss benefits in this area is the failure to diligently look for work within the injured worker's restrictions.  Minn. Stat. §176.101, Subd. 1(g).  For any date of injury, in order to receive temporary total disability, the employee must search for work within his or her doctor's restrictions.  Generally, the factors to be considered in evaluating a job search include the number of employer contacts, the nature of the contacts (in person, phone, by mail, reading the want ads, etc.), the geographic scope of the job search (which sometimes depends on medical restrictions on driving), and other factors specific to the employee's background (such as the educational or skill level before the injury and the pre-injury average weekly wage).  If there is a rehabilitation plan and job placement agreement, then obviously the employee's job search obligations are set forth in the written agreement.

9.FAILURE TO RESPOND PROMPTLY TO A NOTICE OF INTENT TO DISCONTINUE BENEFITS.

Weekly workers' compensation benefits can be discontinued only by serving the injured worker with a written Notice of Intention to Discontinue Benefits.  Minn. Stat. §176.238, Subd. 1.  If the discontinuance is caused by the employee's returning to work, then the employee can contest the NOID within 30 days.  If the NOID states a reason other than return to work, then the employee must request a hearing within 12 calendar days after the NOID is filed.  Minn. Stat. §176.239, Subd. 2.  There will then be an administrative conference on the discontinuance scheduled within ten days.  Minn. Stat. §176.239, Subd. 4.  At the conference, the issue is whether the employer and insurer had reasonable grounds to discontinue the benefits.  Usually, the employee will be paid the weekly benefits through the date of the discontinuance conference, even if the judge determines that the employer and insurer were entitled to discontinue the benefits.  Minn. Stat. §176.239, Subd. 3.

If the employee fails to request the conference on a timely basis, then the employee can file an Objection to Discontinuance.  A hearing before a compensation judge will be scheduled on the objection on an expedited basis, usually within 60 days.  Minn. Stat. §176.238, Subd. 6.  If the injured worker does not either request a conference on the NOID or file an Objection to Discontinuance, then the employee may file a Claim Petition alleging entitlement to the discontinued benefits.  Currently, the hearing on a Claim Petition will be scheduled between 14 and 20 months after it is filed.

10.SETTLEMENT OFALLOR PART OF WORKERS' COMPENSATION CLAIMS.

To be valid, a settlement agreement in a workers' compensation matter must be in writing, and signed by all parties and intervenors, and approved by a judge.  Minn. Stat. §176.521.  The settlement must be reasonable, fair, and in conformity with the law.  Minn. Stat. §176.521, Subd. 2.  In most cases, a Stipulation for Settlement must contain:

(a)  A brief statement of the admitted material facts.

(b)  A detailed statement of the matters in dispute, stating the positions of the parties and supported by medical reports or other documents.
(c)  The weekly wage and compensation rate of the employee.

(d)  An itemization of the sums, if any, previously paid by the employer and insurer.

(e)  A statement that either the medical expenses have been paid by the employer and insurer, or, if applicable, which third parties have paid medical expenses or other reimbursable expenses related to the claim.

(f)  The benefits claimed upon which the compromise agreement is based.

(g)  A statement that the employee has been advised of the provisions of Sections 176.132 and 176.645. [Still the law, although Section 176.132 was repealed in 1995, and Section 176.645, which governs adjustment of benefits, was rendered almost meaningless by the statutory amendments in 1992 and 1995].

(h)  A provision regarding attorneys' fees.

(i)  Specific language regarding any proposed closeout of rehabilitation or medical benefits.

Once signed by everyone and approved by the judge, a settlement can be vacated only by petitioning the Workers' Compensation Court of Appeals for relief.  Under Minn. Stat. §176.461, "cause" to vacate a stipulation and award is limited to (1) a mutual mistake of fact; (2) newly discovered evidence; (3) fraud; or (4) a substantial change in medical condition since the time of the award; for settlements approved after July 1, 1992, the substantial change in medical condition must also have been not clearly anticipated and could not have reasonably been anticipated at the time of the award.