Up North--June 2008

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June 2008

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

THIS MONTH'S TOPICS:

Preventing needless work disability: Invest in system and infrastructure improvements
FMLA leave may run concurrently with workers' compensation leave
Concept of substantial contributing cause and compensable injuries

Preventing needless work disability: Invest in system and infrastructure improvements

This article is the final installment in the multi-part discussion of the American College of Occupational and Environmental Medicine's (ACOEM) 2006 guideline entitled "Preventing Needless Work Disability by Helping People Stay Employed." The full text of the guideline is published on the ACOEM's website.

The Guideline suggests several areas where additional research and investment are required in order to support the goal of preventing and minimizing needless work disability:

Educate physicians on "why" and "how" to play a role in preventing disability
Disseminate medical evidence regarding recovery benefits of staying at work and being active
Simplify/standardize information exchange methods between employers/payers and medical offices
Improve/standardize methods and tools that provide data for SAW/RTW (stay-at-work/return-to-work) decision-making
Increase the study of and knowledge about SAW/RTW

Each of these areas are discussed in more detail in the guideline itself. By focusing on prevention, rather than management, of work disability, the employees have a better outcome and continued employment, while employers realize savings in productivity and insurance costs. Most importantly, implementing many of the concepts in the ACOEM's guideline can result in all participants enjoying a more positive, supportive environment in employment.

FMLA leave may run concurrently with workers' compensation leave

Eligible employees under the FMLA (Family and Medical Leave Act) are entitled to take unpaid leave in connection with the birth of a child or the placement of an adopted or foster child, to care for a child, spouse or parent experiencing a serious health condition, or because the employee's own serious health condition renders him or her unable to perform the job's duties. It is this last category of eligibility that may implicate a work injury. An employee eligible for leave under the FMLA must:

Have been employed by the employer for at least 12 months on the date on which the FMLA leave is to commence;
Have worked with the employer for at least 1,250 hours during the previous 12-month period; and
Be employed at a work site where 50 or more employees are employed.

The employer is required to post notices to workers regarding their rights under the FMLA, to provide FMLA information in a written handbook or similar document, and to give notice of the specific obligations of an employee when an FMLA leave begins. If an employee suffers from a "serious health condition," the FMLA provides various rights to that employee in terms of returning to work and accommodation in addition to leave requirements. An employer is required to maintain group health insurance benefits which the employee would otherwise have enjoyed during the period of FMLA leave, on the same conditions as if the employee was continuously working. The employer's regular employment policies governing paid or unpaid leave should be applied similarly during FMLA leave to determine an employee's entitlement to benefits other than health insurance benefits (e.g. holiday pay).

The FMLA does not preempt, modify or affect the Americans With Disabilities Act (ADA), the Civil Rights Act, ERISA, or the Internal Revenue Code (including continuation requirements under the Consolidated Omnibus Budget Reconciliation Act (COBRA). In addition, the FMLA does not preempt, modify, or affect state leave laws that provide benefits in excess of those established under the FMLA. Thus, the employer must satisfy the more liberal of the state and federal requirements.

If the employee is receiving workers' compensation wage loss disability benefits while the employee is off work for a work-related injury, the employer may elect to count the absence from work against the employee's entitlement to leave under the FMLA. However, in order to count the periods of work-related disability against the available FMLA leave, the employer must inform the employee that it intends to do so in accordance with the terms of the FMLA.

Concept of substantial contributing cause and compensable injuries

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.

Minnesota statutes and case law do not provide a mathematical or objective formula for defining what is a substantial contribution to employee's condition. The work injury or work activities need not be the only cause of the disablement or need for medical care; rather, the employee only must establish that the work injury or activities are an appreciable or substantial contributing cause. This is the concept of "legal causation" under Minnesota law (versus "medical causation"). The lack of precise definition for legal causation results in each case being examined on its own facts.

Even when an employee presents with a significant pre-existing condition (for example, significant degenerative disc disease), so long as the work injury substantially aggravates or substantially accelerates that underlying condition, the work injury is compensable. No apportionment between a non-work related pre-existing condition and a work injury is allowed. Once legal causation is established, the entire disability is compensable as part of the work injury. Different rules apply in cases where a pre-existing condition is due to a prior work injury, and apportionment of liability may occur.

Similarly, if an employee is involved in a non-work related accident or injury after a compensable work injury, if the work injury continues to substantially contribute to the need for medical benefits or disability wage loss benefits, liability for benefits may continue. In certain circumstances, though, a subsequent incident may qualify as a superseding, intervening cause of disability, relieving the work injury from further responsibility for benefits, either on a temporary or permanent basis.

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.