Minnesota Employer Liability and Workers Compensation Update Minnesota Self-Insurer s Association December 2, 2011 Johnson & Condon, P.A.

Similar documents
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

Whitney L. Teel Natalie K. Lund Thomas F. Coleman Craig A. Larsen* Michael R. Johnson Elizabeth R. Cox

Decided: July 11, S13G1048. CARTER v. PROGRESSIVE MOUNTAIN INSURANCE. This Court granted a writ of certiorari to the Court of Appeals in Carter

STATE OF MICHIGAN COURT OF APPEALS

Recent Developments in Construction Defect Litigation: Wooddale Builders/Kootenia. by Matthew P. Bandt.

MINNESOTA EMPLOYERS WORKERS COMPENSATION CASE LAW SUMMARY (SEPT - NOV 2018)

7/19/2010. GoToWebinar Attendee Interface PRESENTED BY: MATTHIESEN, WICKERT & LEHRER, S.C. PRESENTED BY: MATTHIESEN, WICKERT & LEHRER, S.C.

5/23/2016. Presented by: Thomas, Thomas & Hafer LLP Attorneys: Presented by: Subrogration Rights Under Section 319 of the PA WC Act

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF MINNESOTA IN COURT OF APPEALS A James Poehler, Respondent, vs. Cincinnati Insurance Company, Appellant.

Marianne Gallagher v. Ohio Casualty Insurance Co

IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE June 18, 2007 Session

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 843/07

Section by Section: HSB169-Workers Compensation

Issue: MEDICAL TREATMENT & EXPENSE TREATMENT PARAMETERS; RULES CONSTRUED

POST: VIRGINIA SURETY vs. NORTHERN INSURANCE CO.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

COVENANT: WHAT'S NEXT

STATE OF MINNESOTA IN COURT OF APPEALS A K & R Landholdings, LLC, d/b/a High Banks Resort, Appellant, vs. Auto-Owners Insurance, Respondent.

A Survey of Recent Developments in the Law: Insurance Law

ALABAMA COURT OF CIVIL APPEALS

THIS NOTICE IS DIRECTED TO:

SUPREME COURT OF ALABAMA

HF518--Workers Compensation

United States Court of Appeals

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE September 7, 2001 Session

v No Wayne Circuit Court

IN COURT OF APPEALS. DECISION DATED AND FILED April 16, Appeal No. 2012AP1260 DISTRICT III KONRAD MARINE, INC., PLAINTIFF,

Fourth Court of Appeals San Antonio, Texas

NUZZO & ROBERTS NEWSLETTER

IN THE SUPREME COURT OF THE STATE OF NEVADA

STATE OF MICHIGAN COURT OF APPEALS

STATE OF MICHIGAN COURT OF APPEALS

Recent Changes in the Law Regarding Termination of Rehabilitation Services: An In Depth Look at the Halvorson Decision

COLORADO COURT OF APPEALS 2014 COA 70

STATE OF MICHIGAN COURT OF APPEALS

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

STATE OF MINNESOTA IN SUPREME COURT A

Commonwealth of Kentucky Court of Appeals

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

ARCHITECTS & ENGINEERS NEWSLETTER

STATE OF OHIO ) IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF MEDINA ) DECISION AND JOURNAL ENTRY

Pegram v. Herdrich, 90 days later By Jeffrey Isaac Ehrlich

SUPREME COURT OF THE STATE OF UTAH

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. 480A.08, subd. 3 (2008).

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Boston College Journal of Law & Social Justice

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE April 16, 2009 Session

Petition for Writ of Certiorari Denied February 19, 1980 COUNSEL

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellee No MDA 2013

COUNSEL JUDGES. Sosa, S.J., wrote the opinion. WE CONCUR: WILLIAM RIORDAN, Justice, MARY C. WALTERS, Justice AUTHOR: SOSA OPINION

STATE OF MICHIGAN COURT OF APPEALS

Oklahoma Court of Civil Appeals Cases

litigating ANY CASe IS often A MAtteR of WeIgHINg RISK AND ANAlYZINg CoSt AgAINSt benefit. IN the PRoPeRtY & CASuAltY (P&C) WoRlD of

WORKERS COMPENSATION SUBROGATION IN ALL 50 STATES

Can an Insurance Company Write a Reservation of Rights Letter that Actually Protects Their Right to Deny Coverage in Light of Advantage Buildings?

IN THE COURT OF APPEALS OF MARYLAND. No. 68. September Term, BERNARD J. STAAB et ux. AMERICAN MOTORISTS INSURANCE COMPANY

2015 PA Super 264. Appellee No WDA 2014

IN THE SUPREME COURT OF TEXAS

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 12a0935n.06. No UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ) ) ) ) ) ) ) ) ) )

Professional Practice 544

IN THE SUPREME COURT OF IOWA

[J ] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT : : : : : : : : : : : : : : : OPINION. MR. JUSTICE EAKIN Decided: December 22, 2004

No. 07SA50, In re Stephen Compton v. Safeway, Inc. - Motion to compel discovery - Insurance claim investigation - Self-insured corporation

OVERVIEW OF WISCONSIN WORKER S COMPENSATION SYSTEM

AUTO INSURACE BAD FAITH CLAIMS IN VIRGINIA

Purchase of Insurance as waiver

Minnesota Workers Compensation Update. Decisions of the

12/6/2011 PRESENTERS. Tim Pagel Matthiesen, Wickert & Lehrer, S.C. Heath Sherman Leahy, Eisenberg & Fraenkel, Ltd. GOTOWEBINAR ATTENDEE INTERFACE

Holding Companies Beware: Illinois Adopts "Direct Participant Theory"

STATE OF MICHIGAN COURT OF APPEALS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT H036724

STATE OF MICHIGAN COURT OF APPEALS

State & Local Tax Alert

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

ROBERT A. CHAISSON JUDGE

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT. No Non-Argument Calendar. D.C. Docket No. 1:12-cv GRJ.

Insurance Law Fall 2015 page 1 Class Session 1

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

: : : : : : : : : : : Reversed and Remanded. July 22, 2002

Fourteenth Court of Appeals

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

2015 Changes to Wisconsin Worker s Compensation Act 2015 CHANGES TO WISCONSIN WORKERS COMPENSATION ACT

Third District Court of Appeal State of Florida

Vermont Bar Association 134 th Annual Meeting

CITY OF LOS ANGELES, Plaintiff and Appellant, v. CENTEX TELEMANAGEMENT, INC., Defendant and Respondent.

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. **********

IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE September 3, 2003 Session

Released for Publication October 26, COUNSEL JUDGES

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT July Term 2010

Alabama Insurance Law Decisions

No. 50,291-WCA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA * * * * * Versus * * * * *

SCHOOL COMMUNITY USE LIABILITY IN KANSAS

STATE OF MICHIGAN COURT OF APPEALS

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT ELLEN JOHNSON. vs. PROSELECT INSURANCE COMPANY & another. 1 MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

THE STATE OF NEW HAMPSHIRE SUPREME COURT. Docket No Terry Ann Bartlett

15 - First Circuit Determines When IRS Willfully Violates Bankruptcy Discharge Order

951 A.2d 208 (2008) 401 N.J. Super. 371

UNDERINSURED MOTORIST (UIM) COVERAGE

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

Transcription:

Minnesota Employer Liability and Workers Compensation Update Minnesota Self-Insurer s Association December 2, 2011 Johnson & Condon, P.A. Matthew M. Johnson Sarah E. Groskreutz MMJ@Johnson-Condon.com SEGroskreutz@Johnson-Condon.com Direct Dial: (952) 806-0484 Direct Dial: (952) 806-0407

CASE LAW UPDATE REGARDING WORKERS COMPENSATION SUBROGATION AND EMPLOYER LIABILITY Staab v. Diocese of St. Cloud, 780 N.W.2d 392 (Minn. Ct. App. 2010) Not an employer liability or workers compensation subrogation case. Important case impacting all civil cases involving comparative fault.

EMPLOYER LIABILITY LAMBERTSON Based on case Lambertson v. Cincinnati Corporation, 257 N.W.2d 679 (Minn. 1977) Third Party s Right of Contribution Against Employer Fault-Based: Tortfeasor and Employer s Fault Compared

EMPLOYER LIABILITY LAMBERTSON (CONT.) Typical Claims: Negligent Training/Supervision Unsafe Workplace OSHA Violations Product Modification/Misuse Part II of Workers Compensation Policy

EMPLOYER LIABILITY LAMBERTSON (CONT.) Lambertson Exposure: Workers Compensation Benefits Paid and Payable Limited by Statute to Amount Employer May Recover By Way of Subrogation Problems Arise When Employer s Part II Coverage is Less Than the Potential Subrogation Recovery

LAMBERTSON EXAMPLE Comp Paid 300,000 Total Award 900,000 Subro Recovery 200,000 Lambertson Coverage 100,000 Percentage of Fault Amongst Parties: Plaintiff 0% Tortfeasor 80% Employer 20% Lamberston Exposure 180,000 Excess Exposure to Employer 80,000

WAIVE AND WALK Waive and Walk Minn.Stat. 176.061, subd. 11 (2000): Waive Subrogation Claim for Paid and Payable, and Avoid Lambertson Claim by Tortfeasor

COMPARATIVE FAULT: MINN. STAT. 604.02, SUBD. 1 (PRE 8/1/2003) When two or more persons are jointly liable, contributions to awards shall be in proportion to the percentage of fault attributable to each, except that each is jointly and severally liable for the whole award...

COMPARATIVE FAULT: MINN. STAT. 604.02, SUBD. 1 (POST 8/1/2003) Joint Liability. When two or more persons are severally liable, contributions to awards shall be in proportion to the percentage of fault attributable to each, except that the following persons are jointly and severally liable for the whole award: (1) A person whose fault is greater than 50 percent...

STAAB V. DIOCESE OF ST. CLOUD, 780 N.W.2D 392 (MINN. CT. APP. 2010) Plaintiff injured when she fell out of wheelchair that was pushed by her husband while exiting Holy Cross Parish School. Doorway where she was exiting had an interior floor 4-5 inches higher than the concrete outside.

STAAB V. DIOCESE OF ST. CLOUD, 780 N.W.2D 392 (MINN. CT. APP. 2010) (cont.) Plaintiff sued Diocese of St. Cloud Plaintiff did not sue her husband Diocese did not bring third-party action Both Diocese and husband were included on special verdict form Jury found Diocese 50% and husband 50% at fault

STAAB V. DIOCESE OF ST. CLOUD, 780 N.W.2D 392 (MINN. CT. APP. 2010) (cont.) Trial court held the Diocese must pay 100% of award based on Schneider v. Buckman, 433 N.W.2d 98 (Minn. 1988). In Schneider, the only defendant, an ambulance owner, was found 55% at fault while other non-parties shared the remaining fault.

STAAB V. DIOCESE OF ST. CLOUD, 780 N.W.2D 392 (MINN. CT. APP. 2010) (cont.) Because Buckman was only party defendant, court held he must pay 100% of verdict. Trial court in Staab followed Schneider determining that the Diocese, as the only defendant, must pay 100% of the award after the jury found it negligent.

STAAB V. DIOCESE OF ST. CLOUD, 780 N.W.2D 392 (MINN. CT. APP. 2010) (cont.) Minnesota Court of Appeals disagreed finding Diocese s only severally liable because its fault did not exceed 50%. Court called into question whether Schneider is still good law in light of changes to statutory language.

STAAB V. DIOCESE OF ST. CLOUD, 780 N.W.2D 392 (MINN. CT. APP. 2010) (cont.) Case argued to Minnesota Supreme Court in December 2010 No decision yet

STAAB s IMPACT ON SELF- INSURERS If affirmed, there is arguably no Lambertson exposure when the third-party tortfeasor s fault is 50% or less. Third-party would not be required to pay more than its fair share resulting in no contribution claim.

STAAB s IMPACT ON SELF- INSURERS Decreases potential for Lambertson exposure. However, subrogation recovery will be less if third-party only owes its percentage of fault.

STAAB s IMPACT ON SELF- INSURERS May impact interplay between self-insured exposures (workers compensation) and insured exposures (employer liability coverage).

STAAB s IMPACT ON SELF- INSURERS If reversed, any finding of negligence could result in third-party owing the entire award (other than for the plaintiff s own fault). End result is that Lambertson claim may exist even if third-party s fault is less than 50%.

WORKERS COMPENSATION CASE LAW UPDATE Let s focus on three main trends that were prominent this year: Petitions to Vacate Psychological injuries PTD claims

Petitions to Vacate- 7 cases were heard between February and October 2011. 5 Petitions were granted. That s over 71%. This is a significant increase compared to prior years.

Petitions to Vacate- The following evidence was deemed significant: Change in diagnosis (ie. herniation to spondylosis; 3 surgeries since Award; new herniations ). Change in ability to work (ie. able to work until deemed PTD). Need for medical care (ie. $185,000 in expenses paid since Award). Additional PPD (15% to 40%; 11% to 25%). A causal connection between the work injury and current condition (ie. agreement of the parties; unrefuted opinion of Dr. Wengler).

Psychological injuries- 2 main cases, each factually different; one involved unwanted touching by IME doctor. A mere temporal relationship between the injury and the onset of a mental condition, standing alone, is insufficient to establish causation for a mental injury. Quijada v. Heikes Farms, Inc., slip op. (WCCA May 4, 2011) citing Rindahl v. Brighton Wood Farms, Inc., 382 N.W.2d 855 (Minn. 1986). A medical opinion causally relating the mental condition to the physical injury is required to find depression compensable.

PTD claims- Frandsen v. Ford Motor Co. is the seminal case. WCCA held the parties failed to refer to 176.101, subd. 4 or to include language in the Stipulation that PTD benefits would cease when the EE reached age 67. Supreme Court partially overturned and remanded, noting waiver requires an expression of intent to relinquish the right at issue. Lesson - make sure your PTD Stipulations include language that you reserve all defenses to PTD claims under the statute and rules!

PTD claims- However, on remand, the WCCA just held: There is no need to file a Petition to Discontinue Benefits to discontinue PTD benefits based on the presumptive retirement provision The ER/IR may cease payment of PTD benefits when an EE attains the age of 67 without taking further action. If the EE disagrees, he may file a Claim Petition.

PTD claims- This seemingly answers some long-standing procedural questions. However, it is contrary to the procedures outlined in Minn. Rule 5220.2630. And, it is contrary to Judge Milun s due process concerns, as outlined in two separate dissenting opinions. Will the plaintiff bar push for an appeal? STAY TUNED!

So, what can we look forward to in 2012?

We anticipate increased claims relating to: Diabetic neuropathy Complications of obesity Bariatric surgeries Age-related conditions And, with the current economic conditions, we foresee: Increased lay-offs An aging workforce Attacks on the age 67 retirement presumption Increased PTD claims

There are some big icebergs on the horizon Risk management issues Surgical implants Medicare/MSA considerations All of these factors will likely increase WC claims. We are happy to help Please call with questions

Minnesota Employer Liability and Workers Compensation Update Minnesota Self-Insurer s Association December 2, 2011 Johnson & Condon, P.A. Matthew M. Johnson Sarah E. Groskreutz MMJ@Johnson-Condon.com Direct Dial: (952) 806-0484 Direct Dial: (952) 806-0407 SEGroskreutz@Johnson-Condon.com