While the federal mandate that large employers must vaccinate employees against COVID-19 was struck down by the U.S. Supreme Court, employers can still encourage or require employees to vaccinate against COVID-19.

This raises the question of compensability for adverse reactions from the COVID-19 vaccine, and related medical treatment and time lost from work. A key factor for workers’ compensation compensability is whether the vaccination was required by the employer.

As with the flu vaccine, the Equal Opportunity Employment Commission and the Occupational Safety and Health Administration have both confirmed that employers can mandate that their workers receive the COVID-19 vaccine as a condition of employment. Those employers that choose to mandate the COVID-19 vaccine will need to accommodate waivers or exemptions for employees objecting on health or religious reasons. Other employers may decide to encourage the vaccine, but not mandate it, by offering on-site vaccinations, payment or reimbursement of vaccine costs, monetary incentives, or as a part of an employer’s wellness program to encourage employees to be vaccinated.

A second key factor for compensability is whether the side effects that occurred from undergoing a COVID-19 vaccination rise to the level of an injury or illness, temporary or permanent. To date, the reported COVID-19 vaccine side effects mirror those that have been seen with the flu vaccine. The most common side effects of the COVID-19 vaccine include swelling or pain at the injection site, tiredness, muscle pain, chills, joint pain and fever. These are usually mild in nature and resolve on their own in a few days. Severe allergic reactions to the COVID-19 vaccination requiring treatment have been reported as rare according to the Centers for Disease Control and Prevention .

What does all this mean in the context of workers’ compensation? Is an adverse vaccine reaction compensable? The answer is that it depends.

To determine whether an adverse reaction is compensable will require an investigation into the facts of each claim, receipt of medical records and consideration of the following:

• Was the vaccine mandated by the employer?
• Was undergoing the vaccine a condition of employment?
• Was there something specific to the employment and/or job duties that put the employee at an increased risk for exposure to COVID-19?
• Does undergoing the vaccine in some way further the business of the employer?
• Is the employee working with COVID-19 positive patients?
• Is the employee required to work with the public?
• Was the vaccine administered at work while the employee was working and being paid?
• Did the employee, for personal reasons outside of their employment, undergo the vaccine?

In states such as Wisconsin, Iowa, Nebraska, South Dakota and Kansas, consideration of the specific circumstances of the vaccination that caused the adverse reaction, as suggested by the questions above, will help to guide the determination of compensability.

For Minnesota claims, there is an additional statutory provision that may need to be considered. MN Stat. 176.011, Subd. 16 specifically states “an injury or disease resulting from a vaccine in response to a declaration by the United States Department of Health and Human Services to ‘address an actual or potential health risk’ related to the employee’s employment is an injury or disease arising out of and in the course of employment.” Thus, in Minnesota where the COVID-19 vaccine reaction rises to the level of an injury or disease, and was related to the employee’s employment, the medical treatment and any lost time from work most likely would be compensable.

If an employer mandates vaccination, or strongly encourages the employee to obtain the vaccine for work-related reasons, the scales will more likely tip in favor of compensability.

The COVID-19 vaccine-related reaction claims may contain varying facts and medical situations. Please contact your attorney before making any employment or workers’ compensation liability determinations.

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

On Feb. 3, 2022, Minnesota Gov. Tim Walz signed a bill into law that reinstated and extended the rebuttable COVID-19 presumption under Minnesota’s occupational disease statute.

Minnesota Statutes Section 176.011, subd. 15(f), reinstated what has become known as the COVID-19 presumption law, creating a rebuttable presumption for certain first responders, corrections workers and COVID-19 healthcare workers who contract COVID-19.

The new presumption is not retroactive, which means any first responders, corrections workers and COVID-19 healthcare workers who contracted COVID-19 after Dec. 31, 2021 (the date the previous presumption sunsetted) through Feb. 3, 2022, were not covered under the presumption. However, they were still potentially covered under other existing occupational disease or injury provisions of Minnesota’s Workers’ Compensation Act.

When not covered by the presumption, workers in Minnesota who believe their COVID-19 infection is a direct result of their employment are able to file a claim to pursue compensation under the existing occupational disease and personal injury provisions.

In summary, the reinstatement and extension of Minnesota’s COVID-19 workers’ compensation presumption law provides:

• A defined list of occupations covered by the presumption of COVID-19 as an occupational disease:  firefighter; paramedic; nurse or health care worker, correctional officer, or security counselor employed by the state or a political subdivision at a corrections, detention, or secure treatment facility; emergency medical technician; a health care provider, nurse, or assistive employee employed in a health care, home care, or long-term care setting, with direct COVID-19 patient care or ancillary work in COVID-19 patient units.
• Those on the list of covered workers can show they contracted COVID-19 by a positive laboratory test or, if a test is not available for the employee, by diagnosis and documentation from a licensed physician, physician’s assistant, or advanced practice registered nurse (APRN);
• The presumption is rebuttable by the employer and insurer only by a showing that the employment was not a direct cause of the disease;
• The date of injury for this presumptive COVID-19 is either the date the employee was unable to work due to the diagnosis, or due to symptoms that were later diagnosed as COVID-19, whichever occurred first;
• If an employee who has contracted COVID-19 does not fall under the new presumption, they still have the right to file a claim under the existing occupational disease and personal injury provisions of the Minnesota Workers’ Compensation Act.

This COVID-19 presumption legislation is effective for employees who contract COVID-19 on or after the day following enactment (April 8, 2020) through Dec. 31, 2021, and once again is effective the day following enactment (Feb. 3, 2022) through Jan. 13, 2023.

For more information on the law, see the Minnesota Department of Labor and Industry’s Frequently Asked Questions document .

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 Peter F. Lindquist, Esq. Defense Counsel with SFM’s in-house law firm

The Minnesota Supreme court issued two companion decisions on October 13, 2021 – Musta v. Mendota Heights Dental Center, and Bierbach v. Digger’s Polaris – addressing a burning question on the minds of many in the Minnesota workers’ compensation world: Can an employer and insurer be required to pay for an injured worker to treat their work-related condition with the use of medical cannabis, even if the use of medical cannabis is prohibited by federal law?

In these cases, the Minnesota Supreme Court answered “No.” Due to issues of “federal preemption,” Minnesota employers and workers’ compensation insurers cannot be compelled to violate the federal Controlled Substances Act by providing for an employee’s use of medical cannabis, even if use of medical cannabis a is legal under the Minnesota Medical Cannabis Therapeutic Research Act.

By way of background, the employees in both Bierbach and Musta had been certified to treat their work-related injuries with medical cannabis by their treating doctors. That treatment was unsuccessfully disputed by the employer and insurer in the Bierbach case, but reasonableness and causal relationship was stipulated to in the Musta case. The primary issue in both cases was the federal preemption defense. The compensation judges in both cases found that the Minnesota Medical Cannabis Therapeutic Research Act was not preempted by the federal Controlled Substances Act.

On appeal, the Workers’ Compensation Court of Appeals determined that they did not have jurisdiction to decide issues relating to the applicability of federal laws and could not decide the federal preemption issues. They therefore upheld the award of medical cannabis in both cases.

The Minnesota Supreme Court noted that the compensation judges’ order made it impossible for the employers and insurers to comply with both state and federal laws. The Court reasoned that ordering the insurers to reimburse for medical cannabis was tantamount to requiring them to aid and abet the commission of a federal crime. Because the Supremacy Clause of the US Constitution states that when “there is any conflict between federal and state law, federal law shall prevail,” the Court ruled that the compensation judge’s order is preempted by the federal law and reversed the appeals court and compensation judge’s award of reimbursement for medical cannabis.

These decisions create a new bright-line rule regarding the compensability of medical cannabis in workers’ compensation claims. Following to these decisions, insurers now have an almost absolute basis to deny a request to reimburse expenses for medical cannabis, as they cannot be required to violate federal law. This applies even if the treatment with medical cannabis is found reasonable and necessary from a medical provider.

The employees in both cases have the right to appeal these decisions to the U.S. Supreme Court, and as of the writing of this article it appears that they are likely to do so. It will be some time before there is any indication as to whether the Supreme Court decides to hear the appeal. Unless the U.S. Supreme Court overturns the Minnesota Supreme Court’s decisions, the only remaining means for the federal preemption defense to be changed or limited would be for U.S. Congress to pass, and the President to sign, legislation modifying the Controlled Substances Act.

Given how divided the federal government and nation have been on the issue of marijuana legalization, I do not think we should expect for there to be any change in this manner for the foreseeable future.

Click here to read the Supreme Court’s decision in Musta v. Mendota Heights Dental Center

Click here to read the Supreme Court’s decision in Bierbach v. Digger’s Polaris.

Iowa Workers’ Compensation Commissioner Joseph Cortese determined that an injury to a muscle in the rotator cuff is considered a shoulder injury for the purpose of determining permanent partial disability benefits.

This is important because shoulder injuries are listed on the state’s workers’ compensation schedule, which provides a formula to calculate permanent partial disability benefits for listed body parts. This makes it much simpler to determine the dollar amount of benefits owed.

This determination was made in the case of Mary Deng vs. Farmland Foods, Inc., and reversed a previous decision of a deputy commissioner.

The Minnesota Supreme Court addressed the rights of intervenors in workers’ compensation proceedings in the August 12, 2020, decision of Koehnen v. Flagship Marine Company and Auto Owners Insurance Company.

The outcome of the case provided some certainty in the workers’ compensation system by confirming that intervenors risk losing their right to recover payments, or other interests, if they decline to participate in the proceedings. Intervenors are third parties who provide services or paid benefits to or on behalf of an injured worker.

In this case, Keith Johnson, D.C. was provided with notice of the right to intervene and chose not to do so in a pending workers’ compensation proceeding. The employee went on to settle his claim with the employer and insurer, and the intervention interests were resolved with the settlement.

A Workers’ Compensation Judge at the Office of Administrative Hearings then issued an award that extinguished the right for Johnson to recover payments, and shortly thereafter, the chiropractor filed a petition for payment of medical expenses.

The employee, the employer and insurer filed motions to dismiss, which the Compensation Judge granted. Johnson then appealed the decision all the way to the Minnesota Supreme Court after the Workers’ Compensation Court of Appeals affirmed the order dismissing Johnson’s petition.

The Court found that the chiropractor chose not to be a party to the case and pursue reimbursement when he failed to participate in the case proceedings. The appellate courts affirmed the chiropractor had no authority or standing to file a petition for reimbursement under the Minnesota Workers’ Compensation Act, or to challenge the ruling that extinguished the chiropractor’s potential intervention interest.

In the end, the Court held that an intervenor who is properly notified of their right to intervene in a workers’ compensation proceeding must either intervene or potentially have their reimbursement rights taken away.

By Tom Davern, Esq., Senior Defense Counsel with SFM’s in-house law firm

It can be challenging to determine whether an employee’s injury is considered work related, even in the typical work environment. Working from home can present unique workers’ compensation issues due to the inevitable mix of work-related and personal activities.

When an employee sustains an injury while engaged in work activities at home, it is a compensable workers’ compensation injury. The standard rule is that if you’re engaged in work activities at home, this will be considered the same as working at the office for the purposes of workers’ compensation. The standard compensability analysis used for each state applies to the home office pretty much the same as it would in the actual office. In Minnesota, you look to see whether the injury happened in the course and scope of employment (time and place) and whether it arose out of the employment (work-related connection). However, it can be a challenging line to draw in the home office environment when you mix in child care, laundry and leisure throughout the workday.

For example, consider a situation where your employee is injured while shoveling the driveway after getting a foot of snow the night before. If the employee needed to clear the driveway to go out on a sales call, it would likely be considered a work-related injury. However, what about a situation where there is only a half inch of snow in the driveway and the employee still decides to shovel before the sales call?  A defense could be raised that the employee was outside of the course and scope of employment because the driveway did not need to be shoveled to get the vehicle out on the road. The employee elected to complete a personal task that was not required in order to continue or further a work purpose.

Injuries during ‘personal comfort’ breaks

SFM’s core states of Minnesota, Wisconsin, Iowa, Nebraska and South Dakota all recognize the personal comfort doctrine in some form and to some degree. This means that injuries that occur on the premises during the workday while the employee is attending to personal needs (taking a break) are potentially compensable workers’ compensation claims. The personal comfort doctrine transfers to the home office. The big question is: “Was the injury truly incidental to an authorized break, or did the employee engage in a personal task that removed them from workers’ compensation protection?” This is one area of the law that justifies the use of the legal cliché “case by case” basis.

In Minnesota, an injury was held to be compensable when an employee fell down the stairs after walking from his home office to his kitchen for coffee. At the same time, there is a line an at-home worker can cross that would take the employee outside of the protection of workers’ compensation. So, while incidental injuries incurred during lunch or a break may be compensable, it is not necessarily a work injury.

Imagine an employee decided to hang shingles on a lunch break and fell off the roof. This would be a denied claim, as the employee went outside of the course and scope of employment by engaging in a dangerous personal activity that had no connection to the employment. Another example of a potential denial would be if an employee came down with carpal tunnel syndrome as a result of playing video games every day during breaks. I would argue that this was personal in nature and not an activity subject to the personal comfort doctrine. The pivotal question is whether the employee was truly engaged in a personal comfort activity or had deviated from the employment to engage in an unrelated household chore or activity with no work connection.

Employers responsible to provide safe work environment, regardless of where

Since the home is seen as an extension of the workplace, this means that an employer could also be held liable for a cumulative injury due to a home office setup that’s not ergonomic. Obviously, employers have less control over employees’ home office environments. I would not be surprised to see an increase in cumulative back injury claims due to employees sitting in bad chairs for eight hours a day. It may be a good idea to be proactive with communication with your employees regarding at home ergonomic issues as it could potentially save a workers’ compensation claim down the road.

Navigating the legal and safety issues surrounding working from home can be challenging. Your SFM account team and our in-house attorneys are here to help.

When injured workers receiving permanent total disability (PTD) benefits advance to retirement age, the impact on their benefits differs by state.

For example, in Wisconsin and South Dakota, PTD benefits are owed for life. In Iowa and Nebraska, PTD benefits are owed as long as the individual remains disabled.

In Minnesota, depending on the date of injury, an employee receiving PTD benefits under the Minnesota Workers’ Compensation Act will either have benefits for life, will be presumed retired at the age of 67 or 72, or will be eligible for only five years of PTD benefits.

Injuries prior to Oct. 1, 1995

For injuries prior to this date, Minnesota Statute 176 did not provide a presumption of retirement, hence, employees were eligible for lifetime PTD benefits.

Injuries from Oct. 1, 1995, to Sept. 30, 2018

On Oct. 1, 1995, Minnesota Statute 176.101, subdivision 4 was revised to include a presumption of retirement at the age of 67. This presumption is rebuttable, or in other words, the employee could dispute this presumption based upon the employee’s testimony and the totality of the circumstances surrounding retirement.

Factors to be considered include:

1. The employee’s expressed intent to retire or continue working;
2. Whether an application for Social Security benefits was made;
3. Evidence of financial need for employment income and the adequacy of retirement income;
4. Whether the employee had initiated discussion of retirement;
5. Whether the employee engaged in or sought vocational rehabilitation; and
6. Whether the employee was working after age of presumption.

Davidson v. Thermo King, 64 W.C.D. 380 (W.C.C.A. 2004).

If it was clearly established that an employee that was injured beyond the age of 67 had rebutted the presumption of retirement, that employee could receive PTD benefits through his or her lifetime.

Injuries after Oct. 1, 2018

Due to the trend of employees working later in life, for injuries occurring after Oct. 1, 2018, the presumption of retirement was pushed to age 72.

Additionally, the updated legislation provides a cap of five years if an employee was injured after the age of 67. In other words, if an employee was injured at the age of 69 and deemed permanently and totally disabled, that employee could receive PTD benefits from the age 69 through 74, rather than the potential lifetime of benefits under the earlier legislation.

Tip for employers: Document employees’ references to retirement

If any statement is made by an employee about intent to retire, make a note of the statement for future reference. Employers also should document the circumstances of any retirement discussions, such as who raised the issue and whether the employee approached the employer.

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 Aaron Schmidt, Esq.

With more employees working from home since the pandemic, many policyholders have turned to SFM for answers on liability questions concerning the home office.

As a starting point, many state courts view the home office as an extension of the workplace.

In general, injuries sustained by an employee during normal working hours — and during the actual performance of work activities while at home — are compensable. This does not, however, mean that injuries sustained by employees in a home office at the employee’s residence are necessarily afforded the same presumption of work relatedness as injuries occurring at the employer’s office. Therefore, a careful analysis of the facts is necessary.

Activities such as maintaining and setting up a home office, snow blowing a driveway, and shoveling snow from the driveway to allow for business travel have been found to be compensable in some states. Furthermore, the travel between an employee’s home and another portion of the employment premises have also been found compensable.

It is important to note as well that the personal comfort doctrine, which holds compensable injuries sustained on the employer’s premises while attending to personal needs and comforts, has been extended to employees in some states where they were injured in their own homes while on breaks from work in their home office.  As an example, Minnesota courts have found compensable an employee that was injured when he fell down the stairs after leaving his home office on the way to the kitchen to get a cup of coffee.

To learn more about this topic, see our workers’ compensation and the home office telecommuter blog post.

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

Some work injuries don’t occur at a specific time, but rather they are the result of a degenerative process that takes place over months or years. These are known as repetitive-motion or cumulative injuries.

In Minnesota, they are called “Gillette” injuries, a term that comes from the 1960 Minnesota Supreme Court case of Gillette v. Harold, Inc.

The Gillette case involved an employee who worked as a sales clerk at Harold Department Store. She underwent surgery on her left big toe for a condition that wasn’t work-related. Two months after the surgery, she returned to work and was performing all of her regular duties, which required her to be on her feet most of the day. As time went by, she experienced increasing pain in her right toe. Eventually her doctor said she couldn’t work because the prolonged walking and standing her job required was aggravating her toe. The Minnesota Supreme Court ruled that the employee had sustained an injury that was compensable and defined a Gillette injury as, “a personal injury arising out of and in the course of employment as a result of the cumulative effect of repetitive minute trauma over a period of time.”

Deciding whether a compensable cumulative injury has occurred

To determine whether a Gillette injury has occurred, the court looks at:

• The employee’s specific work activity.
• How that work activity affects the employee.
• The symptoms the employee experienced in doing the work over and over.
• The physician’s opinion as to whether the employee’s work activity was a substantial contributing factor to his or her injury.

Determining the date of injury

Even though a cumulative injury isn’t the result of a specific incident, determining a date of injury is still required. The date of injury is significant because it is typically the insurer covering the employer at the date of injury that is responsible for providing workers’ compensation benefits. The general rule holds that a Gillette injury has not occurred or “culminated” until the employee has either lost time from work, required a change of duties because of his or her physical condition or sought medical treatment. There are frequent exceptions to this rule depending on the facts of each individual case.

For more information on Gillette injuries, download the following SFM resources:

• Cumulative (Gillette) injuries Legal Advisory
• Repetitive stress injuries CompTalk and safety quiz
• Repetitive motion injuries – Office 5-minute solution

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