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September 2011

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


Why does workers' compensation pay for treatment when the employee has a pre-existing condition?

The law in Minnesota provides that an employer and insurer are liable for medical treatment if a work injury substantially contributes to the need for that treatment. The work injury need not be the cause of the condition itself. If the work injury substantially aggravated or accelerated an underlying condition, such as arthritis, the employer and insurer may be liable for treatment.

The case of Goenner v. Oscar J. Boldt Construction, slip op. (W.C.C.A., April 2, 2010) illustrates this point. The employer and insurer argued that Synvisc injections claimed by the employee were to treat his pre-existing arthritis in the knees. The pre-injury records reflected no complaints regarding arthritis. After a work injury involving a meniscal tear, the employee underwent arthroscopic surgery and Synvisc injections. The employee's doctor indicated that while the employee had a pre-existing condition, the torn medial meniscus from the work injury permanently aggravated that underlying condition. The treating doctor also testified that the injections were a common post-operative course of treatment.

The Workers' Compensation Court of Appeals agreed with the Compensation Judge's decision to award the treatment, finding the opinions of the treating doctor persuasive and consistent with the factual and medical evidence.

Injury when driving employer-provided vehicle home may be compensable

Typically, an employee suffering an injury while driving to and from work, i.e. while commuting, does not have a compensable injury under the Minnesota Workers' Compensation Act. Certain circumstances will create an exception to this rule, though, and allow a finding that the injury occurred in the course of employment.

In Burlingame v. Becker Bros., Inc., slip op. (W.C.C.A., Feb. 2, 2011), the employee appealed an arbitration decision issued as part of the Union Construction Workers' Compensation Program, that denied him benefits. The employee was a foreman for the employer, supervising carpet installers. The employer provided employee with a cargo van that he drove to and from work, as he worked at multiple job sites every month. Almost daily the employee would drive from his home to the employer's shop to load the van with materials and equipment necessary to perform the carpet installation jobs. The vehicle was not to be used for personal errands. The employee typically was not paid for the time he spent driving the employer's van between his home and the job site or his home and the shop. He was only paid for the time he put in at the job site itself. 

On the date of injury, employee worked at a job site and then was involved in a motor vehicle accident while driving home again. The Workers' Compensation Court of Appeals reversed the arbitrator's decision, and awarded employee benefits, finding that the injury had occurred in the course of employee's employment as a carpet installation foreman. In reviewing and discussing other commuting and traveling employee cases, the Court of Appeals found the following facts significant in awarding compensation:

  • The employer-provided van was provided specifically for the purpose of transporting tools and equipment to job sites.
  • The employee's travel and transporting of materials to a job site were integral parts of the employee's job as foreman.

When is a four-year college degree a reasonable retraining option?

Four factors are generally evaluated when reviewing retraining plans. These factors are referred to as Poole factors (named after the case of Poole v. Farmstead Foods, 42 W.C.D. 970 (W.C.C.A. 1989)): 

  1. Reasonableness of retraining compared to job placement activities
  2. Likelihood the employee has the interest and ability to succeed in the proposed course of study
  3. Whether retraining is likely to produce an economic status as close as possible to that the employee would have enjoyed without the disability
  4. Whether retraining is likely to result in reasonably attainable employment

The case of Koppen v. Knowlan's Super Market, slip op. (W.C.C.A., Feb. 15, 2011) involved the employer and insurer's appeal of a four-year retraining plan awarded to the employee by the Compensation Judge. The employer and insurer claimed that a two-year plan was sufficient.

The employee's pre-injury average weekly wage was $906.87, and he worked in the building facilities management department for the employer until his knee injury in 2007. After a second knee surgery, the employer advised it had no work available within restrictions, so the employee began looking for work elsewhere. He first found a job working part-time as a cashier at a gas station, and then found full-time employment as a driver for a garbage company, earning $11.00 per hour.

The QRC submitted a retraining plan, proposing a four-year retraining plan to retrain the employee as a mechanical engineer. The classes would be taken at Century College and the University of Minnesota. The projected post-degree earnings were $984.19 to $1,284.00 per week.

The employer and insurer obtained an independent vocational evaluation, and argued that a two-year retraining program with a goal of obtaining an A.A.S. degree would be sufficient. The degree would retrain the employee as an engineering technician.

In applying the Poole factors to the retraining dispute, the parties had no argument with the concept of retraining itself, rather than additional job search, as the most appropriate vocational rehabilitation goal for the employee. The parties also had no dispute concerning the employee's interest and ability to succeed in either of the proposed retraining programs. The dispute turned instead on whether the two-year program would likely produce an economic status as close as possible to the employee's pre-injury status. If the less expensive, shorter plan is competitive in returning the employee to his pre-injury economic status, that would be the more reasonable option.

The employer and insurer's vocational evaluation asserted a post-degree wage of $954.00 to $1,078.00 following completion of the two-year degree. However, this wage was based on examining the median wage for jobs the employee would be qualified to perform following retraining. The employer and insurer's vocational evaluator felt that the employee's prior work experience would result in employee reaching this median wage within two to three years after graduation. The employee's QRC disagreed with the projected wage following the two-year degree. He noted that a median wage means 50% of the workers are below that level, and that means 50% do not attain that level, regardless of experience. The entry-level wages for engineering technician jobs were identified as $704.00 to $854.00 per week.

The Compensation Judge agreed with the QRC, and found that the two-year degree program would not return the employee to his pre-injury economic status. The four-year retraining program was approved.

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.