By Jessica Stoeckman, Esq.

When injured workers receiving permanent total disability (PTD) benefits advance to retirement age, the impact on their benefits differs by state.

For example, in Wisconsin and South Dakota, PTD benefits are owed for life. In Iowa and Nebraska, PTD benefits are owed as long as the individual remains disabled.

In Minnesota, depending on the date of injury, an employee receiving PTD benefits under the Minnesota Workers’ Compensation Act will either have benefits for life, will be presumed retired at the age of 67 or 72, or will be eligible for only five years of PTD benefits.

Injuries prior to October 1, 1995

For injuries prior to this date, Minnesota Statute 176 did not provide a presumption of retirement, hence, employees were eligible for lifetime PTD benefits.

Injuries from October 1, 1995 to September 30, 2018

On October 1, 1995, Minnesota Statute 176.101, subdivision 4 was revised to include a presumption of retirement at the age of 67. This presumption is rebuttable, or in other words, the employee could dispute this presumption based upon the employee’s testimony and the totality of the circumstances surrounding retirement.

Factors to be considered include:

1. The employee’s expressed intent to retire or continue working;
2. Whether an application for Social Security benefits was made;
3. Evidence of financial need for employment income and the adequacy of retirement income;
4. Whether the employee had initiated discussion of retirement;
5. Whether the employee engaged in or sought vocational rehabilitation; and
6. Whether the employee was working after age of presumption.

Davidson v. Thermo King, 64 W.C.D. 380 (W.C.C.A. 2004).

If it was clearly established that an employee that was injured beyond the age of 67 had rebutted the presumption of retirement, that employee could receive PTD benefits through his or her lifetime.

Injuries after October 1, 2018

Due to the trend of employees working later in life, for injuries occurring after October 1, 2018, the presumption of retirement was pushed to age 72. 

Additionally, the updated legislation provides a cap of five years if an employee was injured after the age of 67. In other words, if an employee was injured at the age of 69 and deemed permanently and totally disabled, that employee could receive PTD benefits from the age 69 through 74, rather than the potential lifetime of benefits under the earlier legislation.

Tip for employers: Document employees’ references to retirement

If any statement is made by an employee about intent to retire, make a note of the statement for future reference. Employers also should document the circumstances of any retirement discussions, such as who raised the issue and whether the employee approached the employer.

This is not intended to serve as legal advice for individual fact-specific legal cases or as a legal basis for your employment practices.

By Aaron Schmidt, Esq.

With more employees working from home due to the recent COVID-19 outbreak, many policyholders have turned to SFM for answers on liability questions concerning the home office. 

As a starting point, many state courts view the home office as an extension of the workplace. 

In general, injuries sustained by an employee during normal working hours, and during the actual performance of work activities while at home are compensable. This does not, however, mean that injuries sustained by employees in a home office at the employee’s residence are necessarily afforded the same presumption of work relatedness as injuries occurring at the employer’s office. Therefore a careful analysis of the facts is necessary. 

Activities such as maintaining and setting up a home office, snow blowing a driveway, and shoveling snow from the driveway to allow for business travel have been found to be compensable in some states. Furthermore, the travel between an employee’s home and another portion of the employment premises have also been found compensable. 

It is important to note as well that the personal comfort doctrine, which holds compensable injuries sustained on the employer’s premises while attending to personal needs and comforts, has been extended to employees in some states where they were injured in their own homes while on breaks from work in their home office.  As an example, Minnesota courts have found compensable an employee that was injured when he fell down the stairs after leaving his home office on the way to the kitchen to get a cup of coffee.

To learn more about this topic, see our workers’ compensation and the home office telecommuter blog post.

SFM also has a number of other resources related to telecommuting and COVID-19 on our COVID-19 resources page.

This is not intended to serve as legal advice for individual fact-specific legal cases or as a legal basis for your employment practices.

Some work injuries don’t occur at a specific time, but rather they are the result of a degenerative process that takes place over months or years. These are known as repetitive-motion or cumulative injuries.

In Minnesota, they are called “Gillette” injuries, a term that comes from the 1960 Minnesota Supreme Court case of Gillette v. Harold, Inc.

The Gillette case involved an employee who worked as a sales clerk at Harold Department Store. She underwent surgery on her left big toe for a condition that wasn’t work-related. Two months after the surgery, she returned to work and was performing all of her regular duties, which required her to be on her feet most of the day. As time went by, she experienced increasing pain in her right toe. Eventually her doctor said she couldn’t work because the prolonged walking and standing her job required was aggravating her toe. The Minnesota Supreme Court ruled that the employee had sustained an injury that was compensable and defined a Gillette injury as, “a personal injury arising out of and in the course of employment as a result of the cumulative effect of repetitive minute trauma over a period of time.”

Deciding whether a compensable cumulative injury has occurred

To determine whether a Gillette injury has occurred, the court looks at:

• The employee’s specific work activity.
• How that work activity affects the employee.
• The symptoms the employee experienced in doing the work over and over.
• The physician’s opinion as to whether the employee’s work activity was a substantial contributing factor to his or her injury.

Determining the date of injury

Even though a cumulative injury isn’t the result of a specific incident, determining a date of injury is still required. The date of injury is significant because it is typically the insurer covering the employer at the date of injury that is responsible for providing workers’ compensation benefits. The general rule holds that a Gillette injury has not occurred or “culminated” until the employee has either lost time from work, required a change of duties because of his or her physical condition or sought medical treatment. There are frequent exceptions to this rule depending on the facts of each individual case.

For more information on Gillette injuries, download the following SFM resources:

• Cumulative (Gillette) injuries Legal Advisory
• Repetitive stress injuries CompTalk and safety quiz
• Repetitive motion injuries – Office 5-minute solution

This is not intended to serve as legal advice for individual fact-specific legal cases or as a legal basis for your employment practices.

Remember when you were willing to work for little or no pay just to get some “real-world” experience in your chosen field?

If your organization helps students and recent graduates gain work experience by offering internships, be aware that even unpaid interns could be eligible for workers’ compensation benefits.

Paid interns are almost always covered by your workers’ compensation policy. Statutes and case law relating to unpaid interns vary by state.

A key issue in determining compensability is whether the student is under the control of the employer as far as work schedule and duties as well as the presence of room, board or other allowances. If so, that could give legal grounds to identify the unpaid intern as an employee.

Unpaid intern or volunteer?

Another issue is differentiating between an unpaid intern and a volunteer. While unpaid interns may be eligible for workers’ compensation benefits, volunteers generally aren’t. Interns are typically characterized as advanced students or recent graduates who are learning a professional field.

Some states get specific on interns who qualify for workers’ comp

Some state laws specifically list certain types of interns who are eligible for workers’ compensation.

For example, Minnesota law specifically states that, for purposes of workers’ compensation, student teachers are considered employees of the schools where they’re working. South Dakota law  stipulates that vocational program students working off school premises are considered school employees unless the offsite organization where they are working pays them or otherwise elects to cover them.

Contract between school and workplace key

When there’s a question whether an intern is eligible for workers’ comp, SFM’s attorneys often look to the contract between the intern’s school and the organization where the intern is working. In some cases, the contract explicitly states that the employer will provide workers’ compensation coverage. 

Related resource:

• Internship programs under the Fair Labor Standards Act

This fact sheet from the U.S. Department of Labor provides general information to determine whether interns must be paid minimum wage and overtime.

This is not intended to serve as legal advice for individual fact-specific legal cases or as a legal basis for your employment practices.