HF 1848

as introduced - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to workers' compensation; requiring employers to pay for continued
health coverage for injured workers; requiring employers to pay attorney fees in
certain cases; amending Minnesota Statutes 2006, sections 176.021, subdivisions
1, 3; 176.081, subdivision 1.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2006, section 176.021, subdivision 1, is amended to read:

Subdivision 1.

Liability for compensation new text begin and medical insurance premiums new text end .

Except as excluded by this chapter all employers and employees are subject to the
provisions of this chapter.

Every employer is liable for compensation according to the provisions of this
chapter and is liable to pay compensation in every case of personal injury or death of an
employee arising out of and in the course of employment without regard to the question of
negligence. new text begin In addition, every employer is liable to continue paying the total cost of an
employee's medical insurance premium in the case of personal injury or death arising out
of and in the course of employment without regard to the question of negligence, if the
employee was receiving the medical insurance coverage at the time of injury or death.
new text end The burden of proof of these facts is upon the employee.

If the injury was intentionally self-inflicted or the intoxication of the employee is
the proximate cause of the injury, then the employer is not liable for compensation. The
burden of proof of these facts is upon the employer.

Sec. 2.

Minnesota Statutes 2006, section 176.021, subdivision 3, is amended to read:

Subd. 3.

Compensation, commencement of payment.

All employers shall
commence payment of compensation new text begin and continue payment of any medical insurance
premiums new text end at the time and in the manner prescribed by this chapter without the necessity
of any agreement or any order of the division. Except for medical, burial, and other
nonperiodic benefits, payments shall be made as nearly as possible at the intervals when
the wage was payable, provided, however, that payments for permanent partial disability
shall be governed by section 176.101. If doubt exists as to the eventual permanent partial
disability, payment shall be then made when due for the minimum permanent partial
disability ascertainable, and further payment shall be made upon any later ascertainment
of greater permanent partial disability. Prior to or at the time of commencement of
the payment of permanent partial compensation, the employee and employer shall be
furnished with a copy of the medical report upon which the payment is based and all
other medical reports which the insurer has that indicate a permanent partial disability
rating, together with a statement by the insurer as to whether the tendered payment is for
minimum permanent partial disability or final and eventual disability. After receipt of all
reports available to the insurer that indicate a permanent partial disability rating, the
employee shall make available or permit the insurer to obtain any medical report that the
employee has or has knowledge of that contains a permanent partial disability rating which
the insurer does not already have. Permanent partial compensation pursuant to section
176.101 is payable in addition to but not concurrently with compensation for temporary
total disability but is payable pursuant to section 176.101. Impairment compensation
is payable concurrently and in addition to compensation for permanent total disability
pursuant to section 176.101. Permanent partial compensation pursuant to section 176.101
shall be withheld pending completion of payment for temporary total disability, and no
credit shall be taken for payment of permanent partial compensation against liability for
temporary total or future permanent total disability. Liability on the part of an employer
or the insurer for disability of a temporary total, temporary partial, and permanent total
nature shall be considered as a continuing product and part of the employee's inability
to earn or reduction in earning capacity due to injury or occupational disease and
compensation is payable accordingly, subject to section 176.101. Permanent partial
compensation is payable for functional loss of use or impairment of function, permanent
in nature, and payment therefore shall be separate, distinct, and in addition to payment for
any other compensation, subject to section 176.101. The right to receive temporary total,
temporary partial, or permanent total disability payments vests in the injured employee or
the employee's dependents under this chapter or, if none, in the employee's legal heirs at
the time the disability can be ascertained and the right is not abrogated by the employee's
death prior to the making of the payment.

The right to receive permanent partial compensation vests in an injured employee
at the time the disability can be ascertained provided that the employee lives for at least
30 days beyond the date of the injury. Upon the death of an employee who is receiving
economic recovery compensation or impairment compensation, further compensation is
payable pursuant to section 176.101. Impairment compensation is payable under this
paragraph if vesting has occurred, the employee dies prior to reaching maximum medical
improvement, and the requirements and conditions under section 176.101, subdivision
3e, are not met.

Disability ratings for permanent partial disability shall be based on objective
medical evidence.

Sec. 3.

Minnesota Statutes 2006, section 176.081, subdivision 1, is amended to read:

Subdivision 1.

Limitation of fees.

(a) A fee for legal services of 25 percent of the
first $4,000 of compensation awarded to the employee and 20 percent of the next $60,000
of compensation awarded to the employee is the maximum permissible fee and does
not require approval by the commissioner, compensation judge, or any other party. All
fees, including fees for obtaining medical or rehabilitation benefits, must be calculated
according to the formula under this subdivision, except as otherwise provided in clause
(1) or (2).

(1) The contingent attorney fee for recovery of monetary benefits according to the
formula in this section is presumed to be adequate to cover recovery of medical and
rehabilitation benefit or services concurrently in dispute. Attorney fees for recovery of
medical or rehabilitation benefits or services shall be assessed against the employer or
insurer deleted text begin only if the attorney establishes that the contingent fee is inadequate to reasonably
compensate the attorney for representing the employee in the medical or rehabilitation
dispute. In cases where the contingent fee is inadequate the employer or insurer is liable
for attorney fees based on the formula in this subdivision or in clause (2) deleted text end new text begin if the employee's
claim prevails new text end .

For the purposes of applying the formula where the employer or insurer is liable for
attorney fees, the amount of compensation awarded for obtaining disputed medical and
rehabilitation benefits under sections 176.102, 176.135, and 176.136 shall be the dollar
value of the medical or rehabilitation benefit awarded, where ascertainable.

(2) The maximum attorney fee for obtaining a change of doctor or qualified
rehabilitation consultant, or any other disputed medical or rehabilitation benefit for which
a dollar value is not reasonably ascertainable, is the amount charged in hourly fees for the
representation or $500, whichever is less, to be paid by the employer or insurer.

(3) The fees for obtaining disputed medical or rehabilitation benefits are included
in the $13,000 limit in paragraph (b). An attorney must concurrently file all outstanding
disputed issues. An attorney is not entitled to attorney fees for representation in any
issue which could reasonably have been addressed during the pendency of other issues
for the same injury.

(b) All fees for legal services related to the same injury are cumulative and may
not exceed $13,000. If multiple injuries are the subject of a dispute, the commissioner,
compensation judge, or court of appeals shall specify the attorney fee attributable to
each injury.

(c) If the employer or the insurer or the defendant is given written notice of claims
for legal services or disbursements, the claim shall be a lien against the amount paid or
payable as compensation. Subject to the foregoing maximum amount for attorney fees,
up to 25 percent of the first $4,000 of periodic compensation awarded to the employee
and 20 percent of the next $60,000 of periodic compensation awarded to the employee
may be withheld from the periodic payments for attorney fees or disbursements if the
payor of the funds clearly indicates on the check or draft issued to the employee for
payment the purpose of the withholding, the name of the attorney, the amount withheld,
and the gross amount of the compensation payment before withholding. In no case
shall fees be calculated on the basis of any undisputed portion of compensation awards.
Allowable fees under this chapter shall be based solely upon genuinely disputed claims or
portions of claims, including disputes related to the payment of rehabilitation benefits or
to other aspects of a rehabilitation plan. The existence of a dispute is dependent upon a
disagreement after the employer or insurer has had adequate time and information to take
a position on liability. Neither the holding of a hearing nor the filing of an application for a
hearing alone may determine the existence of a dispute. Except where the employee is
represented by an attorney in other litigation pending at the department or at the Office
of Administrative Hearings, a fee may not be charged after June 1, 1996, for services
with respect to a medical or rehabilitation issue arising under section 176.102, 176.135,
or 176.136 performed before the employee has consulted with the department and the
department certifies that there is a dispute and that it has tried to resolve the dispute.

(d) An attorney who is claiming legal fees for representing an employee in a workers'
compensation matter shall file a statement of attorney fees with the commissioner,
compensation judge before whom the matter was heard, or Workers' Compensation Court
of Appeals on cases before the court. A copy of the signed retainer agreement shall also
be filed. The employee and insurer shall receive a copy of the statement. The statement
shall be on a form prescribed by the commissioner and shall report the number of hours
spent on the case.

(e) Employers and insurers may not pay attorney fees or wages for legal services
of more than $13,000 per case.

(f) An attorney must file a statement of attorney fees within 12 months of the date
the attorney has submitted the written notice specified in paragraph (c). If the attorney
has not filed a statement of attorney fees within the 12 months, the attorney must send a
renewed notice of lien to the insurer. If 12 months have elapsed since the last notice of
lien has been received by the insurer and no statement of attorney fees has been filed, the
insurer must release the withheld money to the employee, except that before releasing the
money to the employee, the insurer must give the attorney 30 days' written notice of the
pending release. The insurer must not release the money if the attorney files a statement of
attorney fees within the 30 days.