Generally, to qualify for workers’ compensation benefits, a person must be established as an employee by receiving some form of payment from the employer for his or her services.

So, when someone is injured while volunteering, they’re usually not eligible for workers’ compensation benefits, but there are exceptions. For example, volunteers who are paid in kind or who fall into particular classes specifically mentioned in state law can be considered employees.

Non-monetary compensation

Someone who is being paid in kind for their services — through free meals from a restaurant or reduced rent from a landlord, for example — could be considered an employee if the parties had entered into an agreement about compensation. There must be some intent to enter into this relationship — receipt of a mere tip or gift doesn’t make someone an employee.

Protected classes of volunteers

In some cases, state law defines certain classes of volunteers as employees for the purposes of workers’ compensation.

Minnesota law  defines the following types of volunteers as employees:

• Volunteers working in state institutions, such as correctional facilities, under the supervision of the commissioner of Human Services or the commissioner of Corrections.
• Volunteers participating in programs established by local social service agencies , such as a county health and human services department. In this case, “local social services agency” means any agency established under Minn. Statutes section 393.01 , with each county in the state typically having a social services agency that includes the board of county commissioners.
• Volunteers in the building and construction industry who are working for joint labor-management nonprofit community service projects.
• Volunteers serving at a Minnesota veterans home.
• Volunteer ambulance drivers and attendants.
• Volunteer first responders (such as firefighters).

Wisconsin law also includes certain volunteers in its definition of employees, including:

• Members of volunteer fire squads, rescue squads or diving teams.
• Students in a technical college who, as part of their training, perform services or produce products for which the school collects a fee or who produce a product that is sold by the school.
• Public or private school students performing services as part of school work training, work experience or work study program, if certain conditions are met.
• Employees, volunteers or members of emergency management units and certain regional emergency response teams.

Good Samaritans

So-called Good Samaritans are almost always ineligible for workers’ compensation benefits because there’s typically no intent to establish an employment relationship and they’re not usually compensated for their services. For example, in a 1969 Minnesota case (Huebner v. Farmers Co-op)  where a tractor driver was seriously injured while helping a grain elevator operator who had asked for assistance, the Minnesota Supreme Court ruled that the driver wasn’t eligible for workers’ compensation.

Things to consider when using volunteers

Since volunteers typically aren’t entitled to workers’ compensation benefits, organizations should think about the likelihood of an injury, and the potential legal and financial consequences if one occurs. If an injured volunteer files a lawsuit, who will pay the damages?  Will a general liability or some other insurance policy defend against the claim and pay resulting damages?  An employer’s potential liability may well exceed the value of the volunteer’s services.

For more information, see our Volunteers in the Workplace Legal Advisory – Minnesota and Volunteers in the Workplace Legal Advisory – Wisconsin .

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

Iowa’s workers’ compensation system will see some significant changes on July 1, under a bill signed into law by Gov. Terry Branstad in March.

Following are the changes employers are most likely to notice:

• Pre-existing conditions
  Employers will now only be liable for the portion of an employee disability related directly to an injury that occurred at their organization. This is referred to as “apportionment,” and it prevents the employer from being held liable for portions of a disability caused by work injuries at previous employers or other pre-existing injuries.
• Shoulder injuries
  The law provides for retraining at community colleges for certain employees who cannot return to employment due to shoulder injuries. It also adds the shoulder as a scheduled body member, meaning the amount of compensation due an employee who sustains a work-related shoulder injury is spelled out by law.
• Intoxication
  If an employee tests positive for drugs or alcohol at the time of a work injury or immediately after, the burden of proof will be on the employee to show that he or she was not intoxicated at the time of the injury.
• Notice of injury
  In order to receive workers’ compensation benefits, the law will require injured employees to notify their employers within 90 days from the date they are injured, which the law defines as the date they “knew or should have known that the injury was work-related.”
• Interest rates
  Interest rates on workers’ compensation awards will change from a fixed 10 percent to the Federal Reserve’s one-year treasury constant plus 2 percent.
• Permanent partial disability
  Under the new law, permanent partial disability payments won’t be made until the injured employee reaches maximum medical improvement, and doctors’ permanency ratings will be based on American Medical Association guidelines. Currently, payments are made prior to maximum medical improvements, and so the ratings are estimates.

One of the more controversial provisions of the bill was ultimately dropped — a provision that would have cut off permanent total disability payments at age 67.

Photo of Iowa Gov. Terry Branstad by Rich Koele / Shutterstock.com

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

The Wisconsin Medical Examining Board adopted new guidelines for prescribing opioid painkillers aimed at combating heroin use, according to the Milwaukee Journal Sentinel.

According to the article, the guidelines include:

• Treating pain through other methods before prescribing opioids
• Prescribing the drugs in the lowest dose possible
• Issuing multiple prescriptions with specific refill dates rather than one larger prescription
• Documenting a treatment plan to avoid addiction and overdose

For more details, see the Milwaukee Journal Sentinel article .

Each day, 91 people die from an opioid overdose in the U.S., according to the Centers for Disease Control and Prevention .

To prevent injured workers from ending up with painkiller addictions, the state of Minnesota has adopted stronger requirements for prescribing physicians.

The new rules for long-term opioid prescriptions  took effect in Minnesota on July 13, 2015.

Now, before prescribing long-term opioids, doctors are required to:

• Affirm that the patient cannot maintain functions of daily life without the medication, doesn’t have somatic symptoms disorder, doesn’t have a history of failure to comply with treatment, and doesn’t have substance abuse disorder.
• Ensure that all other pain management options have been exhausted.
• Determine whether the following circumstances are present, and whether they constitute contraindications for long-term opioid use: history of respiratory depression, pregnancy or planned pregnancy, history of substance abuse, suicide risk, poor impulse control, and regular engagement in an activity that could be unsafe for a patient on opioids.
• Complete a scientific assessment to determine the patient’s risk for abuse.
• Explain the potential consequences and complications of using opioids long-term to the patient.
• Enter into a written contract with the patient that includes a provision for drug testing at the doctor’s discretion.

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

A co-op employee who was injured while moving a grill for a company party might not be eligible for workers’ compensation benefits under a Nebraska Supreme Court ruling, Omaha.com reported .

The Nebraska Supreme Court’s reversal of the workers’ compensation court’s ruling hinged on the lower court’s omission of one word — “direct,” according to the report. The high court asked the workers’ compensation court to address whether the company received a “substantial direct benefit” from the man’s attendance at the event as is required to determine eligibility for workers’ comp, not just a “substantial benefit.”

The Supreme Court of Iowa has reversed a judgment made by former Iowa Workers’ Compensation Commissioner Christopher Godfrey on surveillance footage used in workers’ compensation cases.

The Supreme Court decided that Iowa Code section 85.27(2) does not require employers to provide surveillance footage to workers’ compensation claimants before they are deposed.

On-the-job injuries can cost your company time, productivity, money and even employee morale. These costs are compounded when you become engaged in a legal battle with your injured employee. Here are four ways you can prevent most workers’ compensation claims from ever getting to that point:

• Stay in contact with the employee, and reassure the employee that he or she will have a job to return to. 
  Many times injured employees seek out attorneys because they are concerned about their livelihoods. Hearing that you want them back and are looking forward to their return can greatly reduce an injured workers’ anxiety.
  Read more about staying in contact with injured employees
• Think hard before firing an injured employee. 
  Terminating an injured employee can put you at risk of a lawsuit for retaliatory discharge. It can also end up costing you more in wage-loss benefits, because injured employees will continue drawing benefits on your policy if they are unable to return to work, regardless of whether they’re still employed by you. If you’re having performance issues with an injured worker, see our past post on disciplining employees with work injuries for tips.
• Address disciplinary issues with employees right away. 
  If you need to discipline or terminate an employee, it becomes much more difficult to do so after that employee has reported a work injury. Addressing performance issues early on can save you from future problems.
  Read more on dealing with problem employees before an injury occurs
• Promptly investigate any reports of retaliation or discrimination from the injured employee or coworkers.
  If you hear that an injured worker is facing retaliation for declining to perform duties outside of doctor’s restrictions, or being treated differently in any way, address it immediately.

Injured employees do have the right to retain an attorney if they so choose, but by giving them confidence that they’ll be treated fairly, employers can lessen the likelihood that they’ll feel the need to do so.

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

Incorporating workers’ compensation into your employee handbook shows your staff that you take work injuries seriously. It can also save you trouble with legal issues and employee relations down the line.

Consider including these points in your policy:

• Employees must report work injuries right away. 
  Be sure supervisors know the importance of prompt reporting, and to pass along any reports of injury to your claims coordinator as soon as they hear about them.
• Employees will be brought back to work as soon as they are medically able.
  Even if an injured employee can’t return to his or her regular job right away, providing transitional work as soon as possible reduces your claim costs and increases the likelihood that the employee will recover smoothly.
• Fraud is not tolerated.
  Workers’ compensation fraud is punishable under state law. Let employees know that you and SFM have zero tolerance for fraud and actively pursue offenders.

For more details, see SFM’s sample employee handbook policy .

Including these items in your employee handbook is a great start, but it’s a good idea to communicate these same ideas in other ways, such as a training class or employee newsletter.

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 Kathy Bray, Esq.

After an employee is injured at work, many employers are at a loss regarding how to address employment performance concerns.

Disabled status does not excuse performance expectations

Simply because an employee sustained a work injury does not excuse that employee from performing the duties and expected standards of the job.

You can turn to the Americans with Disabilities Act  (ADA) for guidance in evaluating performance concerns. Ask yourself:

• Is the performance deficiency due to a physical inability to do the job, which may require some reasonable accommodations or light-duty consideration for a period of time while the employee continues to recover from the injury?
• Or, is the substandard performance due to factors unrelated to the work injury or impairment?

Once you’ve determined the cause of or reason for the poor performance, the next question should be: How are other employees treated when similar performance issues arise? The injured employee should be treated consistently.

After the performance problem is evaluated and a plan of action decided upon, it’s important to take prompt action. Problems can arise later if the employee’s performance concerns are not addressed right away. If you later raise the alleged deficiencies as a cumulative reason for discipline or termination, the employee may have reason to cry “pretext” because your silence implies approval and condones the performance.

Remember the steps:

• Is performance concern due to limitation from the work injury?
• If not, then how are other employees treated when similar concerns arise?
• Finally, promptly and properly document the concern, and address with the employee in an appropriate manner, consistent with the employment practices and policies.

Rule violations punishable — work injuries aren’t

Sometimes an employee is injured while violating a workplace rule. For example, imagine an employee sustained a back injury while carrying the garbage to the outside dumpster, but failed to complete the maintenance log during the shift to document custodial activities. If other employees are written up for failure to document tasks in the maintenance log as part of their jobs, then it is fair and appropriate to write up the injured employee, also. What you may not do, however, is discipline the employee for sustaining an injury. Failing to document in the maintenance log is not the injury; suffering an injury is not the action subject to punishment.

Perhaps an employee is injured while driving the forklift at excess speed. Negligent or reckless behavior may still result in a compensable work injury. Such behavior may separately be the subject of discipline, and that discipline at times may even include termination.

Document employee concerns immediately

As soon as an employer recognizes that a significant disciplinary action or termination of the injured employee is necessary, you should thoroughly review the circumstances of the disciplinary event and the employee’s personnel file to identify whether any basis for employment law claims may exist. If any basis for concern is found, you should immediately contact employment counsel to assist in evaluating the potential risks and alternative courses of dealing with the situation.

You must insure that the separation decision is based upon valid reasons, and that the reason for discipline or termination is well-documented. If the reason for discipline or termination of an employee is merely a pretext for treating the employee differently or more harshly because he or she had a work injury, you may face legal liability exposures for discrimination or retaliation on both the state and federal level.

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 Kathy Bray, Esq.

In a decision filed on March 5, the Minnesota Supreme Court affirmed the Workers’ Compensation Court of Appeals and compensation judge’s findings that an employee’s post-traumatic stress disorder was a non-compensable mental injury under the law in effect at the time of employee’s injury. The Supreme Court’s decision in Schuette vs. City of Hutchinson effectively maintains the status quo for compensability of Minnesota’s PTSD injuries, declining to recognize so-called “mental mental” injuries for pre-Oct. 1, 2013, injury dates. The Minnesota Legislature changed this analysis effective Oct. 1, 2013, with its amendment to the Minnesota Workers’ Compensation Act.

A full discussion of the Workers’ Compensation Court of Appeals’ and compensation judge’s decisions can be found in this earlier blog post. The employee asked the Minnesota Supreme Court to review the lower court’s analysis, arguing that the findings were contrary to the evidence and also asking the Court to overrule the case that established Minnesota’s longstanding pre-Oct. 1, 2013, analysis for mental-mental injuries. The Court declined to take up the employee on either argument.

In the original hearing, the employee’s medical experts opined that the employee suffered a physical injury that should support compensability of the accompanying PTSD injury, because the brain is physically damaged as part of the PTSD condition. The expert opinions submitted by the employer and insurer disagreed with this analysis. Minnesota law recognizes the discretion of the compensation judge in adopting competing medical opinions, which is what happened in the Schuette case—the judge adopted the medical opinions submitted by the employer and insurer, finding there was no physical injury sustained by the employee, and therefore, finding the independent PTSD injury not compensable under the pre-Oct. 1, 2013, Minnesota Workers’ Compensation Act.

The Minnesota Supreme Court also declined to overturn the longstanding Lockwood decision, decided by the Court in 1981. Lockwood confirmed that mental injuries caused by mental stimulus, without physical injury, were not compensable work injuries under Minnesota law. The Court deferred to the Legislature in 1981, and again deferred to the Legislature in its 2014 decision.

The last argument put forth by the employee in the Schuette appeal was a constitutional challenge, claiming that the law on mental injuries violated his equal protection rights. The Court quickly dismissed the constitutional challenge, and declined to disturb three decades of case law.

What does this mean for employers in Minnesota? While significant, the Supreme Court’s Schuette decision does not change the law or analysis applicable to pre-Oct. 1, 2013, mental injuries, and the new law enacted by the Legislature effective Oct. 1, 2013, has only recently provided the opportunity for employees to receive compensation for PTSD injuries from work-related events. How this new law will affect the landscape of Minnesota workers’ compensation law remains to be seen.