Up North--January 2008

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January 2008

SFM Up North
A publication from the Duluth offices of SFM Companies
Editor: Kathleen S. Bray, Attorney

THIS MONTH'S TOPICS:

Expansion of FMLA likely
"Arising out of" and "in the course of" employment
Is housekeeping a nursing service?

Expansion of FMLA likely

This week, the U.S. Senate approved a bill already passed by the U.S. House last week that would expand Family and Medical Leave Act ("FMLA") protections for employees on active duty or with family on active duty in the military (see H.R. 4986, Sec. 585). The U.S. Department of Labor is still in the process of writing the underlying regulations, but all employers should have a "heads up" regarding this likely change to the law. The bill as proposed would expand FMLA leave from 12 weeks to 26 weeks for employees who are the spouse, son, daughter, parent or next of kin of a covered service member, to care for that service member who is injured in the line of duty. Expansion of the FMLA also is proposed to allow an employee what appears to be the standard 12-week unpaid leave "because of any qualifying exigency" related to their spouse, son, daughter or parent's active duty service. "Qualifying exigency" has yet to be defined.

Other changes are rumored to be pending in the new regulations from the U.S. Department of Labor, also, to reflect some of the litigation that has occurred over the years since the Act was introduced, possibly including regulations affecting notice required, intermittent leave for chronic health conditions, and medical certification requirements. Because of the potential interaction with coincidental workers' compensation leaves, we will continue to keep you updated regarding these developments.

"Arising out of" and "in the course of" employment

A compensable injury under the Minnesota Workers' Compensation Act is one that is "arising out of" and "in the course of" employment. These two concepts both are important when conducting investigations into an injury of questionable liability.

"Arising out of" employment requires an employee to show that the injury is causally related to 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 employment 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 would not satisfy the "arising out of" employment requirement, if the injury is truly personal to the employee without any causal relationship to employment (e.g. heart attack, stroke or seizure that occurs at work with no aggravating factors related to work).

"In the course of" employment is the second half of the primary liability analysis that requires the employee to show the injury occurred during time of employment, at a place related to work activities, and under circumstances that 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 engaged in an activity on break. If the employee is injured while engaged in a "personal comfort" activity, for example, using the restroom or taking a brief drink or snack break, the courts will consider such an injury "in the course of" employment.

When interviewing the employee or witnesses following an injury that raises questions regarding either of these liability elements, confirm the time, place, circumstances of the injury in detail. A parking lot injury may require more detail than the fact that employee fell in the employee parking lot. When did the employee fall? Was it during a break, 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? The more contemporaneous information developed, the better informed your claims adjuster and/or attorney will be in analyzing the initial compensability of the claim.

Is housekeeping a nursing service?

The Workers' Compensation Court of Appeals (W.C.C.A.) decision of Timmer v. I.S.D. No. 482, slip op. (W.C.C.A. 1/23/07) addressed the compensability of cleaning services claimed as a "nursing service." In Timmer, the employee received, per her doctor's orders, in-home personal care services of assistance with her shower, skin care and help with dressing. After she discontinued the home health care provider, the employee contracted for cleaning and housekeeping services with "Angie's First Class Cleaning." The employer and insurer paid for these services for a time, before denying reimbursement based on the defense that the services were not compensable under the Minnesota Workers' Compensation Act.

At hearing, the employee presented medical evidence to show that she could not perform the housekeeping and cleaning duties the outside service performed, and a registered nurse who prepares life plans for people testified that the employee could not remain in her own home without housekeeping assistance. The Compensation Judge found the cleaning services compensable.

On appeal, the W.C.C.A. reversed the compensation judge, finding that the cleaning services were not compensable. Reasonable and necessary medical care for a work injury may include compensation or reimbursement for nursing services. While nursing services may include "not only medically-related and personal care services, but also housekeeping and home maintenance services if rendered necessary by the employee's disability," the Court did not find sufficient evidence that the cleaning services were medically necessary due to the employee's disability. The Court found it significant that no personal care services were provided along with the housekeeping assistance. The Court also observed that an employee's reports of increased pain when performing such activities does not automatically make the activities medically necessary or compensable.

NOTICE: The distribution and receipt of the information provided in this newsletter does not create or continue any attorney-client relationship. The information provided is general in nature and should not be treated as legal advice concerning any particular set of facts or circumstances. Recipients should consult with their attorney before acting on any information discussed in each issue.