Up North--July 2008

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July 2008

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

THIS MONTH'S TOPICS:

Using criminal background information in employment decisions
What is a "consequential injury" under Minnesota workers' compensation law?
Importance of timely and thorough investigation: Recent case illustration

Using criminal background information in employment decisions

While Minnesota does not have a specific anti-discrimination law addressing use of criminal history in employment decisions, employers should proceed with caution in use of criminal background data on prospective or current employees. Federal law also does not specifically prohibit employers from using criminal history, but an applicant or employee may argue that the arbitrary use of criminal background data results in a disparate, discriminatory impact. Wisconsin employers do have specific guidance from the Wisconsin Fair Employment Law, Wisconsin Statutes. 111.31-111.395, which addresses the use of both arrest and conviction records. A helpful guidance on the Wisconsin law can be found on the Wisconsin Department of Workforce Development website.

The Wisconsin guidance offers good advice for Minnesota employers, as well, to minimize risk of potential disparate impact or other discrimination claims. Unless the criminal record is directly or substantially related to the job in question, employers should act cautiously in making adverse employment decisions using such information. While a conviction for embezzlement may be relevant to the decision not to hire a candidate for a controller position, it is more questionable what relevance a dated DWI conviction has on the decision to hire someone for a janitorial position, if driving company vehicles is not part of the job.

Some positions in Minnesota, as well as under federal law, may allow or require use of criminal background information in evaluating fitness for specific employment. Some examples include apartment caretakers, caretakers for certain groups of people, fire/protection jobs, public employment jobs. Even then, employers are limited in their use of criminal history data. Fire department jobs, as an example, allow an employer to consider criminal history data only if it is directly related to the position sought. The criteria for determining relevance include: the nature and seriousness of the criminal history data; the relationship of the data to the purposes of regulating the position of employment sought; and the relationship of the criminal history data to the ability, capacity, and fitness required to perform the duties.

Further, if an employer uses a criminal background report in employment decisions, they may need to comply with the Fair Credit Reporting Act (FCRA). Employers using criminal background reports in their employment decision-making process should consult their corporate attorney regarding the obligations and limitations under the FCRA, as well as disclosures that employers must make when using information from such reports.

What is a "consequential injury" under Minnesota workers' compensation law?

Sometimes injuries or conditions that develop subsequent to the initial compensable work injury become compensable as part of the original work injury. If an employee develops a subsequent condition or disability that is a "direct and natural consequence" of a work injury, that subsequent condition or disability is considered a consequential injury.

A consequential injury may occur when the employee suffers a new injury or aggravation while undergoing treatment for the original work injury. For example, an employee who is participating in physical therapy for a work-related knee injury, but twists his back during therapy, would probably have a consequential back injury. Or, if while undergoing back surgery, an employee contracts a staph infection in the hospital, the complications or consequences of that secondary infection would be compensable.

If the original work injury results in a weakened condition, such as a weak knee that causes buckling while going up and down stairs, an accident at home caused by employee falling down the stairs due to her knee buckling may result in compensable injuries. Another form of consequential injury may occur as a result of an aggravation sustained while participating in a subsequent activity outside of work. If the employee is not exceeding her restrictions, and the non-work activity is not excessive or unreasonable, an aggravation sustained while participating in such non-work activities may be found consequentially related to the original work injury. The aggravations sustained while participating in personal, non-work activities are often litigated and disputed, as parties argue at what point the line should be drawn in defining a "direct and natural consequence" of the original work injury.

Importance of timely and thorough investigation: Recent case illustration

The Minnesota Workers' Compensation Act, Minnesota Statutes Chapter 176, requires employers and insurers to provide compensation to employees for injuries or occupational diseases which arise out of and in the course of employment. The operative concept for determining the causal relationship of work activities to an injury or condition is "substantial contributing cause." The injury or condition is compensable if an employee's work activities substantially contribute to cause, aggravate or accelerate the employee's condition.

A recent decision from the Minnesota Workers' Compensation Court of Appeals affirming a Compensation Judge's decision that an employee did not sustain a work-related injury illustrates the importance of a timely and thorough accident investigation by the employer. In Rowan v. United States Steel Corp., No. WC08-135 (W.C.C.A. July 7, 2008), the employee's claim for benefits related to a right knee injury that occurred at work was denied by the employer, and upheld by the Compensation Judge. The employee reported a right knee injury on August 4, 2006. He had a long history of knee problems, including a prior medial meniscectomy surgery, and arthroscopic surgery later in 1999. Degenerative changes were noted in the 1999 operative report. The employee treated in the spring of 2004, due to worsening right knee pain following back surgery. The MRI reflected significant degenerative findings and a complex tear of the medial meniscus, leading to a third right knee surgery in November 2004. He continued to treat for the right knee following surgery, including a series of Synvisc injections, but then had no treatment for the right knee from February 2005 until early August 2006. The employee denied any significant knee symptoms during that 18-month period.

While working as a millwright for the employer in August 2006, he turned to his left and experienced right knee pain. He reported the injury the same day. The employee completed an injury report the day of the incident and stated he was "going to get another liner holding chains turned to get another liner felt knee pop and hurt, uneven surface in rod mill might have caught my foot I'm not sure." The employee indicated in another document, also completed on the day of the incident, that he had "turned left to get another liner felt right knee pop." The employee's area manager wrote a memo several days later documenting a conversation he had with the employee. While the employee completed the injury report forms with his supervisor, the manager had asked the employee several times to described how the injury had occurred, and was specific in asking whether the employee was taking a step at the time he felt the pop, what stage of the process he was at when replacing the liners in the mill, whether the employee was lifting anything at the time of the injury, etc. The supervisor indicated in a report that employee had twisted his knee on grinding rods, and the employee later wrote in an application for disability benefits that he was injured when his foot got wedged and twisted his knee.

The contemporaneous medical records are similarly conflicting in their details as to what occurred immediately prior to the employee experiencing the symptoms in his knee. A dispensary visit a few days following the reported injury states that the doctor reviewed the situation with the employee and the employee did not twist his knee, did not fall, did not step, did not slip, was not lifting anything at the time, but simply turned to place the hook on the lining material when he felt pain in his medial knee. Subsequent treatment visits with treating doctors state that the employee's foot was caught in rubble while working, causing the knee to twist.

The employee underwent another right knee surgery in November 2006, which consisted of an arthroscopic medial meniscal repair, partial anteromedial meniscectomy, extensive debridement of the ACL, and excision of a loose body in the anterior compartment. After review of the medical records, independent medical examination report and deposition testimony of the examiner, testimony of the employee's manager and two co-workers, as well as the employee himself, Compensation Judge Gregory Bonovetz denied the employee's claim for wage loss and medical benefits related to the right knee injury reported on August 4, 2006. The Judge found that employee's symptoms and knee condition did not arise out of his work duties and the surgery performed several months later was related to pre-existing conditions.

On appeal by the employee, the Court of Appeals affirmed the Compensation Judge's decision, indicating that while the employee was "in the course of" his employment when the right knee symptoms were experienced, an injury did not "arise out of" his employment duties. In other words, no increased risk related to the employee's work activities was determined to have caused a work injury. While there were some conflicting records of the events immediately preceding the onset of symptoms, the Judge concluded that the employee had done nothing more than turn to his left and felt a pop in the knee at that time. The Judge did not find that a traumatic event or significant twisting force occurred at the time of the incident.

The Court of Appeals also agreed that the medical evidence supported the medical causation findings of the Compensation Judge. The independent medical examiner's opinions, which were adopted by the Compensation Judge, found that a complete ACL tear already was documented by MRI at least two years prior to the reported work injury. The symptoms that developed on August 4, 2006 at work were described by the independent examiner as a manifestation of the employee's pre-existing condition. The examiner found no material change in the employee's pre-existing condition could have occurred by the reported incident at work. The Judge also noted that the employee's treating examiners did not appear to have a complete history of the employee's extensive prior knee treatment and surgeries, while the decision suggests that the independent examiner thoroughly reviewed the pre-injury records and provided deposition testimony further supporting his opinions.

EMPLOYER TIP: Even with incidents that are not traumatic, but seem relatively innocuous, make a detailed accident investigation report. Ask the employee detailed questions regarding the mechanism of injury, any tools or equipment involved at the time, the body positioning and movement at the time symptoms were experienced, and have the employee write his or her own statement at the time the injury is reported, as well.

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.