Recent Blog Posts

Truck Driver Denied Work Comp for Ignoring Safety Policy

Josh Laabs — Wed, 09 May 2012 15:48:00 GMT

A case was recently decided in Tennessee, where a truck driver was denied workers' compensation benefits because he failed to take his required 10 hour break and was injured when he subsequently fell asleep at the wheel.

The Tennessee workers' compensation court agreed that the driver should not received workers' compensation benefits. The court applied a four-part test to the Tennessee truck driver, finding that he "willfully and intentionally" disregarded the explicit safety policy of the employer and was therefore not entitled to benefits. Not only did the employer instruct the Tennessee truck driver on the "hours-of-service" safety policy (which he was in severe violation of when he was injured—as he had been driving 36 hours straight!), but the policy itself was adopted from the Federal Motor Carrier Safety Administration and the U.S. Department of Transportation, which regulates the trucking company.

But what would happen in a similar Minnesota workers' compensation claim?

Minnesota, like Tennessee, has eligibility exclusion to workers' compensation benefits when an employee is injured while doing an act that the employer expressly prohibits. In Minnesota, this is called the "Prohibited Act Doctrine."

Minnesota's Prohibited Act Doctrine states that where an employer has a policy that expressly prohibits the doing of a certain act, the disregard of which is not foreseeable to the employer, a violation of that policy takes the employee outside of the scope of employment, and injuries resulting there from are not compensable. Bartley v. C-H Riding Stables, Inc., 26 W.C.D. 675 (1973).

But, what constitutes an "expressly prohibited act"? Generally, prohibited actions which would not destroy workers' compensation eligibility are those actions which an employer prohibits, but where employers still anticipate employees to violate the policy. An example may be where a warehouse employee is injured while violating an employer policy which states, "WALKING OR STANDING ON PALLETS IS NOT ALLOWED."

However, the Prohibited Action Doctrine may apply where an employer has an express policy prohibiting an act, and would reasonably not expect an employee to violate it. An example of this might be where an employer has safety rules prohibiting the use of a particular complicated forklift at work, when the employer has a specific policy that no one is permitted to operate the forklift without training and a license to do so.

In a Minnesota workers' compensation claim, to determine whether the action the employee was engaged in when injured was "expressly prohibited" by the employer, a six-part test is applied. This test includes the following:

Whether the employee knows of the prohibition;
Whether the prohibition was customarily observed;
Whether the employer took reasonable steps to enforce the prohibition;
The reason for the prohibition;
Whether the performance of the prohibited act was unreasonably dangerous; and
Whether it was reasonably foreseeable by the employer that the expressly prohibited act would occur.

Be aware of the behaviors or actions that your employer expressly prohibits, and understand that if you are injured while violating your employer's express policy against that behavior, you may be prevented from receiving workers' compensation benefits. This is another good reminder to know and follow your employer's policies.

Related Sources:

hr.blr.com

2012 Minnesota Death on the Job Report

Minnesota Workers' Compensation Lawyer — Thu, 03 May 2012 15:03:00 GMT

Yesterday the ALF-CIO (America's largest group of labor unions) released the 2012 Death on the Job Report.

The report compiled and analyzed statistics from the last four decades. The results showed an overall decrease in work related deaths, but an alarming number of workers are still being injured and killed on the job.

In 2010, there were 13 on the job deaths and 50,000 deaths caused by work related disease. The number of workplace deaths rose 3.1 percent from 2009. This increase is particularly troubling considering how high the unemployment rate is. Additionally, Latinos die on the job 8% more than all other workers.

The report emphasized the need for greater government enforcement of safe working conditions and harsher penalties for companies that break the rules.

West Virginia, Wyoming, South Dakota and North Dakota were the states with the highest workplace fatality rate, while Massachusetts, Rhode Island, and New Hampshire had the lowest rates. Minnesota workplace fatality and injury rates fell in the mid to low level range compared to other states.

Related Sources:

aflcio.org

Huffpost.com

Australian Woman Receives Work Comp for Work Trip Sex Injury

Josh Laabs — Fri, 20 Apr 2012 15:31:00 GMT

Recently, Australian courts were asked to decide whether an individual who was injured while having sex during a work trip could be eligible for Workers' Comp benefits.

In this case, a public servant was injured while having sex in a hotel room on a work trip. The higher court in Australia recently determined that the employee was not precluded from bringing the claim, and that the original judge who denied benefits had decided the case on improper grounds.

The question then becomes, why would someone injured while having sex be entitled to bring a Workers' Compensation claim for those injuries?

The answer is not necessarily an easy one. Most states, and even jurisdictions outside the United States (such as Australia), have laws that grant certain employees greater situations of coverage under Workers' Compensation than other types of employees.

This is the case of the traveling employee. Traveling employees are generally afforded more liberal coverage for a greater amount of time and activities. This is because Workers' Compensation law recognizes compensable injuries as those that arise in the course and scope of employment. Traveling employees are required to be in particular places for extended periods of time and because of such requirements, they are generally "in the scope" of employment for a longer period of time and a greater set of activities.

To return to the Australian example, an important factor seemed to be that the female employee was actually injured while she was having sexual intercourse, rather than because of such activity. She suffered injuries when a light fell and struck her in the face, nose, and teeth. It is unclear how such a claim would come out if it occurred in Minnesota, but the law may be more receptive to such a claim than you might think.

For example in a 2006 case in Minnesota, an employee who contracted a staph infection from sleeping in a dirty hotel room as part of his employment was awarded Workers' Compensation benefits resulting from his injuries, which included cellulitis and toxic shock syndrome.

In Minnesota, a claim like the one in Australia might turn on whether the traveling employee was provided with lodging as part of the employment, the distance traveled, and whether the employee was required to stay overnight as part of their employment. Whatever the result would be, a Workers' Compensation claim like the one from Australia would likely be one of first impression in Minnesota.

Related Sources:

Thestar.com

California Workers' Comp System Overhaul Mirrors Minnesota's

Minnesota Workers' Compensation Lawyer — Fri, 13 Apr 2012 19:28:00 GMT

California's work comp system, specifically the mandatory insurance program, is changing.

The objective of the overhaul is to provide better insurance for injured workers without causing business premiums to rise. They are attempting to accomplish this goal by squeezing waste out of the state's $15 billion work comp system.

The average compensation paid to California workers with a permanent partial disability decreased by more than half in the last 8 years. This is the result of laws passed in 2004 that curtail business premiums. Many injured workers spend years in court trying to get their benefits while being too injured to return to work.

Some people are afraid that increasing premiums would harm the ability for businesses to hire, during a time when unemployment is already dangerously high. Others think there are alternative solutions to the problem.

"The focus should always be about making the system better for injured employees—they are the true victims here," says MN workers' comp attorney Ben Heimerl. "If employers want to lower their premiums, they should make the workplace safer and there will be fewer accidents. Alternatively, they can spend less money defending legitimate claims. Making the system less expensive shouldn't mean taking money out of the victims' pockets. This is a true in Minnesota as well. It's about time the pendulum swung the other way—toward injured workers, and away from big businesses. "

Related Sources:

LATimes.com

Who is Your Workers' Compensation Insurer?

Josh Laabs — Fri, 30 Mar 2012 16:04:00 GMT

After you suffer a work injury in Minnesota and have notified your employer, what do you do next?

If you're like most injured workers, you seek appropriate medical treatment, whether it's emergency care, diagnostic treatment, or just follow-up care. Those medical bills should then be submitted to your employer's Workers' Compensation Insurance Carrier.

But who is that?

Most often, your employer will provide you with that information, either at the time you inform your employer of your injury, or shortly thereafter.

But what if your employer can't (or won't) give you that information? Sometimes it isn't easy to get the insurance information from your employer, for various reasons: Maybe your supervisor doesn't know who the work comp insurer is, or maybe the person who knows isn't available. It's also possible your employer is withholding the information on purpose. If that is the case, you might be able to make a claim against them for illegal conduct. In the meantime, you still need to get medical treatment, and you can't afford to wait. So what can you do?

The answer lies with the Department of Labor and Industry (DOLI). If you have access to the internet (which, if you're reading this blog post, you likely do), you can search to identify the workers' compensation insurers for Minnesota employers at the DOLI search engine site.

All you need is some basic information, such as the date range for your inquiry, and information about the employer's name and address. However, if you are still unable to find the insurer after using DOLI's above search site, you can place a request directly at the inquiry page, and will likely receive an e-mail response from a DOLI employee within hours.

If you do not have regular access to the internet, you can always call DOLI directly to ask, by calling (651) 284-5005.

Don't get left in the dark by your employer. Find out who your workers' compensation insurer actually is. And be aware that if you run into difficulties, an experienced work comp attorney can help you get the benefits you deserve.

Are "Illegal" Immigrants Entitled to Minnesota Work Comp?

Minnesota Workers' Compensation Lawyer — Thu, 15 Mar 2012 14:17:00 GMT

Minnesota has a strong migrant worker community, primarily due to the farming needs and processing plants across the state. Some estimate that more than 20,000 migrant workers are employed in Minnesota each year.

While (obviously) not all migrant workers are "illegal" workers, such a large migration community may raise the question: are undocumented workers entitled to Minnesota workers' compensation benefits?

Yes, they are.

Generally, and under the Immigration Reform and Control Act of 1986 (IRCA), it is illegal in the United States for employers to continue to employ an illegal worker if the employer knows that "the alien is (or has become) an unauthorized alien with respect to such employment."

But does this prevent undocumented workers from being able to receive workers' compensation benefits if they are injured on the job? Not in Minnesota.

"There are certain states, like Idaho and Wyoming, that do not permit undocumented workers to be eligible for work comp benefits," says work comp attorney Michael Lammers. "It is important to know that in Minnesota, all employees are protected by the Minnesota Workers' Compensation Act, regardless of whether they are legal workers or workers having illegal status."

Minnesota law states that immigrants unauthorized to work in the United States are not, as a matter of law, precluded from receiving temporary total disability benefits conditioned on a diligent job search. This was solidified by the Minnesota Supreme Court in an important 2003 case, Correa v. Waymouth Farms, Inc.

"Correa confirmed the clear language of the Act," says Minnesota lawyer Benjamin Heimerl. "This is because the Minnesota Workers' Compensation Act does not distinguish between authorized or unauthorized workers. For better or worse, all people who are Employees under the Act, are covered by the Act; and workers without legal status can indeed be Employees under the Act."

New Missouri Workers' Comp Bill to Include Occupational Diseases

Minnesota Workers' Compensation Lawyer — Mon, 12 Mar 2012 18:55:00 GMT

A new worker's compensation bill just passed through the Missouri legislature that will allow more ailments to be covered by the state's WC system.

The new bill includes occupational diseases in employee work comp coverage. The hope is that this will significantly cut down on litigation in workers' comp claims, thus making the state more attractive to businesses.

Occupational diseases are those that employees contract on the job. They range in severity from carpal tunnel syndrome to cancer caused by asbestos. Coverage of these diseases was removed from state law in 2005.

The house passed the bill 87-68. It now goes to the governor, who may or may not sign the bill into law.

Some took issue with the bill, saying that it will not effectively compensate people with severe occupational diseases.

"Our concern is for people with catastrophic, toxic disease, stuff that kills Missouri workers very savagely in a very short period time," said Rep. Stephen Webber. "This bill comes up short on that."

Minnesota workers' comp law includes similar occupational disease coverage but it too falls short of perfect in the eyes of many.

"I think Missouri may have taken a step backwards today," says Minnesota Workers' Comp Attorney, Ben Heimerl. "Minnesota workers' compensation has recognized occupational diseases since 1921, but most workers' comp programs are simply inadequate to fully compensate an individual for this type of injury, Minnesota included."

Related Sources:

ColumbiaTribune.com

10 MN Workers' Comp Medical Entitlements

Minnesota Workers' Compensation Lawyer — Fri, 09 Mar 2012 20:10:00 GMT

Often in workers' comp cases, employees are not awarded enough compensation for their medical needs. Minnesota work comp laws are very complicated. As a result, many workers are taken advantage of by their employers, and required to pay for pricey prescriptions and medical appointments. Don't be fooled. If you're injured at work, you have certain entitlements.

MN law states that any injured worker is entitled to the following 10 medical benefits:

Reasonable Medical Care
Hospital Services
Your Choice of Doctor (in most cases)
Physical Therapy
Chiropractic
Medication and Pain Relief
Crutches
Eye Glasses
Artificial Limbs
Wheelchairs

If your compensation benefits do not include one of these benefits, contact a workers' comp attorney immediately to make sure you are receiving all the benefits you deserve.

Protections for Injured Workers in Minnesota

Minnesota Workers' Compensation Lawyer — Wed, 22 Feb 2012 16:33:00 GMT

Getting injured at work can be hard enough by itself. But when your employer takes improper actions against you following a work injury, it can be downright unbearable.

Thankfully, Minnesotans have legal protections against improper employer actions. In this article, we'll discuss just a few statutes that protect injured workers in Minnesota.

The Minnesota Workers' Compensation Act makes it illegal for an employer to fire, or threaten to fire an employee because said employee is seeking workers' comp benefits. This protects employees from being fired simply because they are seeking compensation because of a work related injury.

The Minnesota Human Rights Act is another statute that prevents employers from firing, refusing to hire, or discriminating against (in the form of hiring, compensation, terms, conditions, or privliges) a person based on a disability. This effectively limits the actions an employer can take to an injured employee.

Federal statutes like the Family and Medical Leave Act and the Americans with Disabilities Act Amendments Act of 2008 also provide protections to those injured in the workplace.

Despite all these legal protections, employers often violate injured workers' rights. Sometimes these actions are intentional, other times employers simply don't realize they're breaking the law. If you think your employer has violated your rights as an injured worker, contact a Minnesota Workers' Comp lawyer. You don't have to face this situation alone.

Minnesota Workers' Comp Attorney Fees

Minnesota Workers' Compensation Lawyer — Fri, 17 Feb 2012 15:24:00 GMT

It is always beneficial to hire a workers' comp attorney if you are injured at work and plan to file a claim. But many are hesitant to do so because of the cost of hiring an attorney.

In general, workers compensation attorney's fees are done on a contingent basis. In other words, you don't have to pay an attorney any upfront costs. Under the Minnesota Workers' Compensation Act, your attorney is not entitled to any fees unless they successfully settle a dispute. Even when an attorney resolves a claim and wins benefits, there are still limitations on what an attorney can be awarded. The following are a few examples of these limitations:

For wage (indemnity) benefits, attorney fees are limited by statute. Fees are 25% of the first $4,000, and 20% of the next $60,000 obtained.
For medical benefits, attorney fees are paid solely by the insurance company. The injured worker does not lose any benefits (including money) if the attorney wins medical benefits in the dispute.
For rehabilitation benefits, attorney fees are also only paid by the insurance company. Similarly, the injured worker does not lose any benefits or money if the lawyer wins rehabilitation benefits.

Approaching a workers' comp dispute can be overwhelming. An attorney can help guide you through the process. And rest assured you won't need to worry about paying out of pocket when retaining a workers' compensation attorney.

4 Things to Remember if You Suffer a Work Injury

Minnesota Workers' Comp Lawyer — Fri, 03 Feb 2012 16:02:00 GMT

If you are one of the unfortunate individuals that suffer an injury at work, the following are some good reminders:

Report your work injury immediately. If you suffer a work injury, even if you think it is minor, make sure you protect your statutory rights and report your injury. Generally, employees should report their injury to a supervisor within 14 days of the injury. Don't be afraid to report your injury. It is against the law for employers to retaliate against workers who seek workers' compensation benefits. Once you report your work injury, the employer has the responsibility for initiating aworkers' compensation claim.
Seek appropriate medical treatment. Trust yourself and your body. If you feel like you need medical treatment, you should seek medical treatment. Sometimes, being "Minnesota-strong" at the expense of necessary medical consultation or treatment can end up hurting you in the long run, so if you need medical attention, be sure to seek it.
Know if your workers' compensation claim is accepted or denied. There are usually two ways employees are informed whether or not their claim is accepted or denied:
1. You should receive a Notice of Insurer's Primary Liability Determination (NOPLD) from your employer's workers' compensation insurer. This is a standard form and will have a box checked on it that indicates whether the claim is accepted or denied.
2. If you seek medical treatment and the workers' compensation insurer is denying the claim, your medical provider may inform you that the insurer is not paying. This may (though not necessarily) be an indication that the claim is denied.
Know when to contact an attorney. It is not always necessary to have an attorney if you suffer a work injury and receive workers' compensation benefits. Many work injuries are accepted and treatment and other benefits are paid without any problems. However, you should consider contacting an attorney if:
1. Your claim is denied
2. You think your claim is denied
3. You are required/asked to attend an Independent Medical Examination (IME)
4. You think you are not getting all the benefits to which you are entitled

Hopefully, you never suffer an injury at work. However, please be aware that you have rights as an injured worker, and be sure to protect those rights.

Minnesota Workers' Comp Costs Rank Poorly

Minnesota Workers' Compensation Lawyer — Thu, 19 Jan 2012 21:17:00 GMT

According to an annual analysis of state workers' compensation costs, Minnesota ranks as the highest Midwest state for workers' comp insurance rates.

The study, conducted by the Oregon Department of Consumer and Business Services, found that in 2010 Minnesota employers paid $2.27 per $100 of payroll for workers' comp. That's the 16^th highest in the nation, and the highest of all neighboring Midwestern states. Listed below are the rates for nearby states.

Wisconsin — $2.21
South Dakota — $2.02
Iowa — $1.82
North Dakota — $1.02

So what makes Minnesota's rates so high?

Minnesota employers are required to compensate injured workers. Most businesses do this by purchasing insurance policies which are generally more costly than neighboring states.

The report did stress however, that these numbers represent indexes not averages, because the analysts needed a standard way to compare states to one another.

Related Sources:

Finance & Commerce

Minnesota Workers' Comp Process

Minnesota Workers' Compensation Lawyer — Wed, 11 Jan 2012 16:38:00 GMT

Date of the Injury - This can be the date you were actually injured, or the date you first sought medical help.
Notice - Notify your employer immediately when you know you have a workers' comp claim. Minnesota law requires your employer to fill out a First Report of Injury and file it with the state.
Liability - Within 14 days of notice your employer will contact their insurance company and a decision should be made as to whether your claim will be admitted or denied.
Admitted Claims – If your claim is admitted it means the insurance company has agreed to pay benefits. This does not mean that benefits will be paid forever. It is still wise to seek the advice of an attorney to monitor your claim.
Denied Claims - If your claim is denied, the insurance company has decided not to pay benefits. If this happens and you still wish to pursue benefits, you must file a claim petition with the state. Claim petitions are deliberately complicated. You should not attempt to handle this without the advice of a workers' comp attorney.

Timeline for a Workers' Comp Claim

3 months: Within the first three months of filing a claim, the insurance company will probably send you to get an independent medical exam and take your deposition.

6-8 months: Within six months the court will likely hold a mandatory settlement conference. It is very important that you have a workers' comp lawyer present at this conference.

12-14 months: If no resolution is reached at the settlement conference the case may be certified for a hearing.

2 months after hearing: The Judge has up to 60 days to make a decision after the hearing. The losing party has the right to appeal that decision to the Workers' Compensation Court of Appeals.

Minnesota Workers' Comp FAQs

Minnesota Workers' Compensation Lawyer — Mon, 09 Jan 2012 20:04:00 GMT

What are the potential benefits of workers' comp?

There are many benefits that can come from workers' compensation. The primary benefits of workers' comp in Minnesota include:

Medical Expenses
Lost Wages
Vocational Rehabilitation
Death Benefits

Who is eligible for workers' compensation?

Any company employee (not contractors) is eligible for workers compensation. In order to be eligible, you need to prove several things:

That you have sustained personal injury/illness
That you have sustained this injury "arising out of the employment"
That you have sustained this injury "in the course of the employment"

What to do if injured on the job?

If you are injured on the job, there are many things you need to do in order to receive your workers' comp benefits:

Report the injury to a supervisor
Fill out an injury report claim at work and get a copy
Get medical attention and be sure the doctor notes that the accident occurred at work
Keep records and copies of all your workers compensation documents
Let your employer know about your progress, treatment, and work restrictions
Contact a Minnesota workers' compensation attorney for additional help

When to contact a MN workers' comp lawyer?

If you are having any of the following problems, contact a MN work injury attorney immediately:

Medical treatment and benefits are cut off
Claim is denied
Benefits are not fully paid
Paperwork is too confusing
Employer harassment or retaliation

Regular Overtime Workers: Often Overlooked Wage Loss

Minnesota Workers' Compensation Lawyer — Tue, 03 Jan 2012 20:22:00 GMT

If you are like many Minnesota workers, you regularly work overtime and rely on those earnings in order to pay your bills and support yourself or your family. It can be a really good thing if your employer has overtime work available, and pays at overtime rates. However, wage loss benefits are often overlooked for overtime workers that suffer a work injury.

If an employee suffers a work injury, but can still work as a result (under work restrictions), most Minnesota employers that can accommodate the employee to continue working with those restrictions only allow employees to work up to 40 hours per week on light duty. This caps the employee's wage at 40 hours per week, rather than the 40-plus-overtime hours they may have been earning before the injury.

As a result, the employee will often suffer wage loss if he or she consequently works that light duty job. This is because they are no longer able to work those overtime hours that help them get by, and it is that "overtime" wage loss that often gets overlooked. Whether intentional or not, insurers often do not pay those wage loss benefits to injured workers who are able to work 40 hours per week. However, if the overtime employee is earning less wages in working (capped at 40 hours per week), they are still entitled to wage loss benefits.

A worker is entitled to wage loss benefits of 2/3 the difference between their average weekly wage (AWW) prior to the accident and their weekly earnings after the accident. AWW does not depend on just what the worker earns per hour, but is rather an average of earnings grossed per week prior to the accident.

Therefore, if you suffer a work injury and you were a regular overtime employee before the accident, be aware that you may be entitled to wage loss benefits if you are not able to work those same overtime hours.

Workers' Comp issues are very complex in the state of Minnesota. If you have any questions about a workers' comp issue, contact a skilled MN workers' comp attorney.