A co-op employee who was injured while moving a grill for a company party might not be eligible for workers’ compensation benefits under a Nebraska Supreme Court ruling, Omaha.com reported .

The Nebraska Supreme Court’s reversal of the workers’ compensation court’s ruling hinged on the lower court’s omission of one word — “direct,” according to the report. The high court asked the workers’ compensation court to address whether the company received a “substantial direct benefit” from the man’s attendance at the event as is required to determine eligibility for workers’ comp, not just a “substantial benefit.”

The Supreme Court of Iowa has reversed a judgment made by former Iowa Workers’ Compensation Commissioner Christopher Godfrey on surveillance footage used in workers’ compensation cases.

The Supreme Court decided that Iowa Code section 85.27(2) does not require employers to provide surveillance footage to workers’ compensation claimants before they are deposed.

On-the-job injuries can cost your company time, productivity, money and even employee morale. These costs are compounded when you become engaged in a legal battle with your injured employee. Here are four ways you can prevent most workers’ compensation claims from ever getting to that point:

• Stay in contact with the employee, and reassure the employee that he or she will have a job to return to. 
  Many times injured employees seek out attorneys because they are concerned about their livelihoods. Hearing that you want them back and are looking forward to their return can greatly reduce an injured workers’ anxiety.
  Read more about staying in contact with injured employees
• Think hard before firing an injured employee. 
  Terminating an injured employee can put you at risk of a lawsuit for retaliatory discharge. It can also end up costing you more in wage-loss benefits, because injured employees will continue drawing benefits on your policy if they are unable to return to work, regardless of whether they’re still employed by you. If you’re having performance issues with an injured worker, see our past post on disciplining employees with work injuries for tips.
• Address disciplinary issues with employees right away. 
  If you need to discipline or terminate an employee, it becomes much more difficult to do so after that employee has reported a work injury. Addressing performance issues early on can save you from future problems.
  Read more on dealing with problem employees before an injury occurs
• Promptly investigate any reports of retaliation or discrimination from the injured employee or coworkers.
  If you hear that an injured worker is facing retaliation for declining to perform duties outside of doctor’s restrictions, or being treated differently in any way, address it immediately.

Injured employees do have the right to retain an attorney if they so choose, but by giving them confidence that they’ll be treated fairly, employers can lessen the likelihood that they’ll feel the need to do so.

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

Incorporating workers’ compensation into your employee handbook shows your staff that you take work injuries seriously. It can also save you trouble with legal issues and employee relations down the line.

Consider including these points in your policy:

• Employees must report work injuries right away. 
  Be sure supervisors know the importance of prompt reporting, and to pass along any reports of injury to your claims coordinator as soon as they hear about them.
• Employees will be brought back to work as soon as they are medically able.
  Even if an injured employee can’t return to his or her regular job right away, providing transitional work as soon as possible reduces your claim costs and increases the likelihood that the employee will recover smoothly.
• Fraud is not tolerated.
  Workers’ compensation fraud is punishable under state law. Let employees know that you and SFM have zero tolerance for fraud and actively pursue offenders.

For more details, see SFM’s sample employee handbook policy .

Including these items in your employee handbook is a great start, but it’s a good idea to communicate these same ideas in other ways, such as a training class or employee newsletter.

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 Kathy Bray, Esq.

After an employee is injured at work, many employers are at a loss regarding how to address employment performance concerns.

Disabled status does not excuse performance expectations

Simply because an employee sustained a work injury does not excuse that employee from performing the duties and expected standards of the job.

You can turn to the Americans with Disabilities Act  (ADA) for guidance in evaluating performance concerns. Ask yourself:

• Is the performance deficiency due to a physical inability to do the job, which may require some reasonable accommodations or light-duty consideration for a period of time while the employee continues to recover from the injury?
• Or, is the substandard performance due to factors unrelated to the work injury or impairment?

Once you’ve determined the cause of or reason for the poor performance, the next question should be: How are other employees treated when similar performance issues arise? The injured employee should be treated consistently.

After the performance problem is evaluated and a plan of action decided upon, it’s important to take prompt action. Problems can arise later if the employee’s performance concerns are not addressed right away. If you later raise the alleged deficiencies as a cumulative reason for discipline or termination, the employee may have reason to cry “pretext” because your silence implies approval and condones the performance.

Remember the steps:

• Is performance concern due to limitation from the work injury?
• If not, then how are other employees treated when similar concerns arise?
• Finally, promptly and properly document the concern, and address with the employee in an appropriate manner, consistent with the employment practices and policies.

Rule violations punishable — work injuries aren’t

Sometimes an employee is injured while violating a workplace rule. For example, imagine an employee sustained a back injury while carrying the garbage to the outside dumpster, but failed to complete the maintenance log during the shift to document custodial activities. If other employees are written up for failure to document tasks in the maintenance log as part of their jobs, then it is fair and appropriate to write up the injured employee, also. What you may not do, however, is discipline the employee for sustaining an injury. Failing to document in the maintenance log is not the injury; suffering an injury is not the action subject to punishment.

Perhaps an employee is injured while driving the forklift at excess speed. Negligent or reckless behavior may still result in a compensable work injury. Such behavior may separately be the subject of discipline, and that discipline at times may even include termination.

Document employee concerns immediately

As soon as an employer recognizes that a significant disciplinary action or termination of the injured employee is necessary, you should thoroughly review the circumstances of the disciplinary event and the employee’s personnel file to identify whether any basis for employment law claims may exist. If any basis for concern is found, you should immediately contact employment counsel to assist in evaluating the potential risks and alternative courses of dealing with the situation.

You must insure that the separation decision is based upon valid reasons, and that the reason for discipline or termination is well-documented. If the reason for discipline or termination of an employee is merely a pretext for treating the employee differently or more harshly because he or she had a work injury, you may face legal liability exposures for discrimination or retaliation on both the state and federal level.

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 Kathy Bray, Esq.

In a decision filed on March 5, the Minnesota Supreme Court affirmed the Workers’ Compensation Court of Appeals and compensation judge’s findings that an employee’s post-traumatic stress disorder was a non-compensable mental injury under the law in effect at the time of employee’s injury. The Supreme Court’s decision in Schuette vs. City of Hutchinson effectively maintains the status quo for compensability of Minnesota’s PTSD injuries, declining to recognize so-called “mental mental” injuries for pre-Oct. 1, 2013, injury dates. The Minnesota Legislature changed this analysis effective Oct. 1, 2013, with its amendment to the Minnesota Workers’ Compensation Act.

A full discussion of the Workers’ Compensation Court of Appeals’ and compensation judge’s decisions can be found in this earlier blog post. The employee asked the Minnesota Supreme Court to review the lower court’s analysis, arguing that the findings were contrary to the evidence and also asking the Court to overrule the case that established Minnesota’s longstanding pre-Oct. 1, 2013, analysis for mental-mental injuries. The Court declined to take up the employee on either argument.

In the original hearing, the employee’s medical experts opined that the employee suffered a physical injury that should support compensability of the accompanying PTSD injury, because the brain is physically damaged as part of the PTSD condition. The expert opinions submitted by the employer and insurer disagreed with this analysis. Minnesota law recognizes the discretion of the compensation judge in adopting competing medical opinions, which is what happened in the Schuette case—the judge adopted the medical opinions submitted by the employer and insurer, finding there was no physical injury sustained by the employee, and therefore, finding the independent PTSD injury not compensable under the pre-Oct. 1, 2013, Minnesota Workers’ Compensation Act.

The Minnesota Supreme Court also declined to overturn the longstanding Lockwood decision, decided by the Court in 1981. Lockwood confirmed that mental injuries caused by mental stimulus, without physical injury, were not compensable work injuries under Minnesota law. The Court deferred to the Legislature in 1981, and again deferred to the Legislature in its 2014 decision.

The last argument put forth by the employee in the Schuette appeal was a constitutional challenge, claiming that the law on mental injuries violated his equal protection rights. The Court quickly dismissed the constitutional challenge, and declined to disturb three decades of case law.

What does this mean for employers in Minnesota? While significant, the Supreme Court’s Schuette decision does not change the law or analysis applicable to pre-Oct. 1, 2013, mental injuries, and the new law enacted by the Legislature effective Oct. 1, 2013, has only recently provided the opportunity for employees to receive compensation for PTSD injuries from work-related events. How this new law will affect the landscape of Minnesota workers’ compensation law remains to be seen.

For a work injury to be eligible for workers’ compensation benefits, Minnesota law states  it must “arise out of” and “in the course of” employment.

In a decision filed on Dec. 26, 2013 , the Minnesota Supreme Court extensively discussed the proof necessary for an employee to satisfy those requirements, and ultimately reversed the ruling of the Minnesota Workers’ Compensation Court of Appeals.

Court case: Is slip-and-fall injury in office eligible for workers’ comp?

The Dykhoff v. Xcel Energy case concerned an employee who worked as a journeyman electrician. She usually worked from a desk monitoring power lines and wore jeans or casual clothing for work. Her employer required her to attend a training session at the general office, which required her to wear dress clothes. The employee wore a nice shirt and pants, and shoes with 2-inch heels.

As she was walking to the conference room, she fell and injured her left knee. She did not trip, but described the floor as slippery with a highly polished surface. She had walked back and forth across the same area of the floor just before her fall without incident and confirmed there was no incline, no debris, and the floor was not wet.

The employer took photos of the area, showing scuff marks on the floor near where the employee fell. The scuff marks were consistent with the color of the heels she was wearing. At a hearing, the employer submitted results from tests performed after the incident, showing the “coefficient of friction” (slipperiness of the floor) was within Occupational Safety and Health Administration (OSHA) specifications.

Compensation judge denies claim, appeals court reverses denial

The compensation judge denied the employee’s claim for workers’ compensation benefits, finding that the employee did not prove her injury was caused by an increased risk related to her work activities. On appeal, the Workers’ Compensation Court of Appeals reversed the compensation judge’s ruling, applying a “balancing test” to assign greater weight to the “in the course of” aspect of the injury. Consequently, the appeals court found the employee’s knee injury to be compensable under the Minnesota Workers’ Compensation Act.

The employer asked the Minnesota Supreme Court to review the matter, with the only issue concerning whether the employee’s injury arose out of her employment, as it was undisputed the incident took place in the course of Dykhoff’s employment.

Supreme Court analyzes denial

The employee did not argue that she was exposed to a special hazard at work, but instead claimed she was injured while walking from one area to another at work. The Supreme Court noted that the hazard need not be obvious in order to be a risk that was more than the employee faced in her everyday life.

The compensation judge made a finding of fact that the floor on which the employee fell was not hazardous, and the judge declined to adopt the employee’s impression that the floor was slippery. The judge noted that the employee’s shoes “were an equally plausible explanation” for the employee’s slip and fall. The Supreme Court agreed that the record supported the compensation judge’s findings, and the decision on whether an injury arises out of employment is a fact question, not a question of law.

The court discussed a variety of risk tests used to analyze compensability — street risk, positional risk — but focused the discussion to the case at hand: an injury occurring on the employer’s premises.

The opinion stated:

“We have declined to ‘make the employer an insurer against all accidents that might befall an employe[e] in his employment.’ [citation omitted] Accordingly, we require more to satisfy the ‘arising out of’ requirement in section 176.021, subdivision 1, than simply an injury occurring at work. [citations omitted]”

Applying the increased risk test to the facts of the Dykhoff case, the Minnesota Supreme Court agreed with the compensation judge that the injury did not arise out of employment, and reinstated the decision denying the employee’s claim for benefits.

What makes a work injury compensable in Minnesota?

Here’s a breakdown of what “arising out of” and “in the course of” mean.

‘Arising out of’ employment

Arising out of employment requires an employee to show that the injury is caused by his or her employment activities. The concept often is evaluated in the context of an increased risk relationship to employment.

In other words, does the employee’s job expose the employee to an increased risk of harm over that which a general member of the public faces? The test is not black and white, and often disputes arise in parking lot or ingress/egress cases. Idiopathic injuries (injuries that arise spontaneously) would not satisfy the “arising out of” employment requirement, if they are truly personal to the employee without any causal relationship to employment (for example, a heart attack, stroke or seizure that occurs at work with no aggravating factors related to work).

“In the course of” employment

The second half of the primary liability analysis requires the employee to show the injury occurred:

• During time of employment
• At a place related to work activities
• Under circumstances that the employee was executing duties on behalf or for the benefit of the employer

The “in the course of” element often is the subject of disputes when injuries occur while the employee is traveling or while the employee is on break. If the employee is injured while engaged in a “personal comfort” activity such as using the restroom or taking a brief drink or snack break, the courts typically will consider such an injury “in the course of” employment.

Tip for employers: Details of work injuries help determine liability

When interviewing the employee or witnesses following an injury that raises questions regarding either of these liability elements, confirm the time, place and circumstances of the injury in detail. For example, if an employee falls in a parking lot, you would need to know:

• When did the employee fall?
• Was it during a break?
• Was it before or after the shift?
• Why was the employee in the lot?
• What path did the employee take to get there?
• Was the employee carrying anything?
• What caused the employee to fall?

Consider taking photos of the area where the injury occurred. The more information you get at the time of the injury, the better informed your claims adjuster and/or attorney will be in analyzing the initial compensability of the claim.

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

Did you know that a workplace injury can occur before or after the workday?

Workers’ compensation law requires that employers provide safe, well-maintained and accessible routes for employees to and from their parked vehicles into their place of work, referred to as safe ingress and egress.

So, if an employee falls in the employer’s parking lot while walking to the employer’s office building, for example, he or she would most likely be entitled to workers’ compensation benefits.

Requirements to qualify for workers’ compensation benefits

In order to qualify for workers’ compensation benefits, the employee must be able to prove that the injury:

• Occurred reasonably close to the start or end of the workday. 
  While there is no strictly defined rule, over the years, Minnesota case law has appeared to define a reasonable time period to be about one hour before or after work. So, if employees stay after work for a couple of hours to watch a sports game or have drinks with coworkers, for example, they might not qualify for workers’ compensation benefits if they are injured while leaving the workplace.
• Happened on the employer’s premises. 
  This could include a public street, if an employee must cross the street to get from the work premises to an employer-owned parking lot.
• Took place within a customary route of entry or exit. 
  If the employee decided to take a shortcut not typically used by other employees, an injury might not qualify for workers’ compensation.

Related Minnesota case law

Following are a couple of Minnesota cases that involved employee injuries while entering or exiting work:

• Birch v. Hance Distributing
  In this case, the employee had finished his shift at Burger King at 2:30 p.m., joined some friends and coworkers in the lobby briefly, and then went to socialize in the parking lot for about 15-30 minutes longer. When he eventually traveled to his car to leave, he stepped off a curb and hurt his knee. The Minnesota Workers’ Compensation Court of Appeals determined that he sustained a compensable injury and was still well within the timeframe that was reasonable for ingress and egress.
• Johnson v. Ricci’s of Hugo
  In this case, the employee punched out from her bartender job and then spent the next hour drinking, playing pool and socializing with friends at the business. She slipped and fell while leaving through the back door and fractured her ankle. Because the employee was not engaged in activities incidental to her job duties and instead had become a customer at the establishment, the appeals court ruled that her injury wasn’t eligible for workers’ compensation benefits.

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 Kathy Bray, Esq.

In Minnesota, until a change to the workers’ compensation law takes effect Oct. 1, employees must suffer a contemporaneous or consequential physical injury in order to obtain compensation for a mental condition or injury. Historically, a mental injury independent of physical injury from the same event, the so-called “mental-mental” injury, has not been compensable in Minnesota. A recent Workers’ Compensation Court of Appeals decision explains the longstanding criteria for compensability of mental injuries:

Thirty-two years ago, the Minnesota Supreme Court considered the issue of compensability for mental injury in Lockwood v. Independent School District No. 877 . The court classified compensation claims involving mental conditions into three groups: mental trauma resulting in physical injury; physical trauma resulting in mental injury; and mental trauma resulting in mental injury. Concluding that coverage for mental-mental claims was not contemplated by the Legislature, the court held that a mental injury caused by job-related stress without physical trauma is not a compensable claim under the Minnesota Workers’ Compensation Act.

The Schuette case  followed this traditional application of the law, and denied a police officer’s claim for workers’ compensation benefits after he was called to the local high school because a young girl had fallen out of a pickup truck and hit her head. As he was responding to the call, the officer realized he knew the girl and her family. He and another officer tried to resuscitate the girl, and drove her to the hospital. She later died.

Even while at the hospital, the officer began feeling ill and continued to experience a variety of symptoms for several years following the event, including difficulty sleeping, nightmares, anxiety, panic attacks, flashbacks, and headaches. Ultimately, he was diagnosed with post-traumatic stress disorder (PTSD). A dispute developed over whether PTSD involved a correlating physical injury which created a compensable work injury. The employee’s experts opined that imaging studies can show structural damage to the brain related to the PTSD symptoms, and that the employee’s disability from work was due to this physical injury to his brain. The employer’s expert disagreed, noting that findings on the imaging studies could not be correlated to PTSD, and that no evidence was present to support the conclusion the employee had sustained a physical injury to his brain as part of the work-related incident.

The compensation judge at the hearing concluded that the employee had suffered a mental disability without physical injury that was not compensable under the Minnesota Workers’ Compensation Act. On appeal, the judge’s decision was affirmed. The appellate court noted that Minnesota was in the minority of jurisdictions which declined to recognize a purely mental disability as a compensable work injury.

Change coming soon to Minnesota workers’ comp law

Beginning Oct. 1, the outcome of claims like the one presented in Schuette may change. The Minnesota Workers’ Compensation Act was changed for injuries on or after that date, with a new definition of “occupational disease” under Minn. Stat. Sec. 176.011, subd. 15 and a new definition of “personal injury” under subd. 16, expanding both to include mental impairment, defined as follows:

[A] diagnosis of post-traumatic stress disorder by a licensed psychiatrist or psychologist.

The statute specifically confirmed that the longstanding law recognizing the compensability of physical stimulus resulting in mental injury and mental stimulus resulting in physical injury remains the same.

The diagnosis or condition of post-traumatic stress disorder (PTSD) as specifically addressed in the law , by defining the condition as that “described in the most recently published edition of the Diagnostic and Statistical Manual of Mental Disorders by the American Psychiatric Association.”

The definition of compensable “personal injury” under the law was similarly expanded.

The amended statute specifically excludes from compensable occupational diseases those mental impairments resulting from disciplinary action, work evaluation, job transfer, layoff, demotion, promotion, termination, retirement, or similar action taken in good faith by the employer.

Would outcome of Schuette case have been different?

If Schuette’s claim had arisen after Oct. 1, 2013, would the outcome have changed? It is uncertain, because the employer and insurer disputed the scope and extent of the claimed PTSD diagnosis and extent of disablement, regardless of the finding on whether the employee’s alleged PTSD diagnosis had resulted in a physical or structural injury to the brain. Certainly, though, this change in the law opens up new avenues to employees seeking compensation for work-related PTSD injuries that did not result in accompanying physical injury.

You can be certain this is not the last you will hear of the PTSD claim under workers’ compensation law in Minnesota.

(At the time this blog post was published, the Schuette case was on appeal to the Minnesota Supreme Court.)

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 Kathy Bray, Esq.

Just a few months ago, the U.S. Equal Employment Opportunity Commission  (EEOC) settled the first lawsuit it had filed under the federal Genetic Information Nondiscrimination Act  (GINA).  As detailed in a May 7, 2013 press release , the EEOC disclosed that Fabricut, Inc., a fabric distributor, would pay $50,000 and provide other equitable relief to resolve the suit filed by the EEOC.

The EEOC alleged that Fabricut had refused to hire a temporary worker who had applied for a permanent position as a memo clerk, after she underwent the pre-employment, post-offer physical. The physical required the applicant to complete a questionnaire that inquired about a variety of medical conditions, including any family history of them. The exam resulted in the examiner recommending further evaluation for potential carpal tunnel syndrome (CTS). The employer relayed this recommendation to the applicant, and advised they would need a report from her treating physician after she was evaluated for carpal tunnel syndrome. She did so after her personal doctor concluded she did not have CTS. Fabricut still declined to hire her, on the belief she had CTS (based on the report from the pre-employment physical provider).

The EEOC charged Fabricut with not only violating GINA, based on discriminating against a job applicant because of genetic information (including family history), but also violating the federal Americans With Disabilities Act  (ADA), noting that employers may not discriminate on the basis of disability or discriminate against applicants incorrectly regarded as having a disability.

Some take-away wisdom for employers from this settlement is best illustrated by a quote from the EEOC’s General Counsel, David Lopez:

“Employers need to be aware that GINA prohibits requesting family medical history … When illegal questions are required as part of the hiring process, the EEOC will be vigilant to ensure that no one be denied a job on a prohibited basis.”

Employers were reminded of the EEOC’s vigilance a mere week after it announced the settlement in the Fabricut case. The EEOC’s press release  confirmed that it filed another lawsuit against an employer under GINA and the ADA. The suit alleged that the employer had improperly asked for the genetic information during the hiring process. Similarly to the Fabricut case, this second suit claimed that the employer had requested family medical history as part of the post-offer, pre-employment physical. Simply put, employers may not request or use genetic information during the hiring process.

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