2001 Minnesota Statutes

     176.191 Dispute between two or more employers or 
  insurers regarding liability. 

    Subdivision 1.    Order; employer, insurer, or special 
 compensation fund payment.  Where compensation benefits are 
 payable under this chapter, and a dispute exists between two or 
 more employers or two or more insurers or the special 
 compensation fund as to which is liable for payment, the 
 commissioner, compensation judge, or court of appeals upon 
 appeal shall direct that one or more of the employers or 
 insurers or the special compensation fund make payment of the 
 benefits pending a determination of which has liability.  The 
 special compensation fund may be ordered to make payment only if 
 it has been made a party to the claim because the petitioner has 
 alleged that one or more of the employers is uninsured for 
 workers' compensation under section 176.183.  A temporary order 
 may be issued under this subdivision whether or not the 
 employers, insurers, or special compensation fund agree to pay 
 under the order, and whether or not they agree that benefits are 
 payable under this chapter.  A temporary order shall be issued 
 if the commissioner or compensation judge determines based on 
 evidence submitted by the employee that benefits are payable 
 under this chapter and if two or more employers, insurers, or 
 the special compensation fund deny liability based on an 
 assertion that another employer, insurer, or the special 
 compensation fund is liable.  A temporary order shall not be 
 withheld where the denials of liability are frivolous as defined 
 in section 176.225, subdivision 1, or nonspecific as defined in 
 section 176.84, subdivision 1. 

    If the parties do not agree to a temporary order, the 
 commissioner or compensation judge shall summarily hear and 
 determine the issues and issue an order without the need for a 
 formal evidentiary hearing.  At any time after a temporary order 
 is issued, the paying party may request to discontinue payment 
 of benefits based on new evidence that benefits are not payable 
 under this chapter by following the procedures of section 
 176.238 or 176.239. 

    At any time after a temporary order is issued, the paying 
 party may also petition for a formal hearing before a 
 compensation judge for a determination of liability among the 
 parties.  If the petition is filed within one year after a 
 temporary order was issued, the hearing shall be held within 45 
 days after the petition was filed.  Payments under a temporary 
 order shall continue pending the determination of the 
 compensation judge.  The compensation judge shall have 
 jurisdiction to resolve all issues properly raised, including 
 equitable apportionment.  The procedures and monetary thresholds 
 contained in section 176.191, subdivisions 1a and 5, shall not 
 apply to these proceedings.  This subdivision applies to all 
 dates of injury. 

    When liability has been determined, the party held liable 
 for the benefits shall be ordered to reimburse any other party 
 for payments which the latter has made, including interest at 
 the rate of 12 percent a year.  The claimant shall also be 
 awarded a reasonable attorney fee, to be paid by the party held 
 liable for the benefits. 

    An order directing payment of benefits pending a 
 determination of liability may not be used as evidence before a 
 compensation judge, the workers' compensation court of appeals, 
 or court in which the dispute is pending. 

    Subd. 1a.    Equitable apportionment.  Equitable 
 apportionment of liability for an injury under this chapter is 
 not allowed except that apportionment among employers and 
 insurers is allowed in a settlement agreement filed pursuant to 
 section 176.521, and an employer or insurer may request 
 equitable apportionment of liability for workers' compensation 
 benefits among employer and insurers by arbitration pursuant to 
 subdivision 5.  For purposes of this subdivision, the term 
 "equitable apportionment of liability" shall include all 
 attempts to obtain contribution and/or reimbursement from other 
 employers or insurers.  To the same extent limited by this 
 subdivision, contribution and reimbursement actions based on 
 equitable apportionment are not allowed under this chapter.  If 
 the insurers choose to arbitrate apportionment, contribution, or 
 reimbursement issues pursuant to subdivision 5, the arbitration 
 proceeding is for the limited purpose of apportioning liability 
 for workers' compensation benefits payable among employers and 
 insurers.  This subdivision applies without regard to whether 
 one or more of the injuries results from cumulative trauma or a 
 specific injury, but does not apply to an occupational disease.  
 In the case of an occupational disease, section 176.66 applies.  
 Apportionment against preexisting disability is allowed only for 
 permanent partial disability as provided in section 176.101, 
 subdivision 4a.  Nothing in this subdivision shall be 
 interpreted to repeal or in any way affect the law with respect 
 to special compensation fund statutory liability or benefits.  

    Subd. 2. Repealed, 1995 c 231 art 2 s 110 

    Subd. 3.    Insurer payment.  If a dispute exists as to 
 whether an employee's injury is compensable under this chapter 
 and the employee is otherwise covered by an insurer pursuant to 
 chapters 62A, 62C and 62D, that insurer shall pay any medical 
 costs incurred by the employee for the injury up to the limits 
 of the applicable coverage and shall make any disability 
 payments otherwise payable by that insurer in the absence of or 
 in addition to workers' compensation liability.  If the injury 
 is subsequently determined to be compensable pursuant to this 
 chapter, the workers' compensation insurer shall be ordered to 
 reimburse the insurer that made the payments for all payments 
 made under this subdivision by the insurer, including interest 
 at a rate of 12 percent a year.  If a payment pursuant to this 
 subdivision exceeds the reasonable value as permitted by 
 sections 176.135 and 176.136, the provider shall reimburse the 
 workers' compensation insurer for all the excess as provided by 
 rules promulgated by the commissioner. 

    Subd. 4.    Program payments.  If the employee's medical 
 expenses for a personal injury are paid pursuant to any program 
 administered by the commissioner of human services, or if the 
 employee or spouse or dependents living with the employee 
 receive subsistence or other payments pursuant to such a 
 program, and it is subsequently determined that the injury is 
 compensable pursuant to this chapter, the workers' compensation 
 insurer shall reimburse the commissioner of human services for 
 the payments made, including interest at a rate of 12 percent a 
 year. 

    Amounts paid to an injured employee or spouse or dependents 
 living with the employee pursuant to such a program and 
 attributable to the personal injury shall be deducted from any 
 settlement or award of compensation or benefits under this 
 chapter, including, but not limited to, temporary and permanent 
 disability benefits.  

    The insurer shall attempt, with due diligence, to ascertain 
 whether payments have been made to an injured employee pursuant 
 to such a program prior to any settlement or issuance of a 
 binding award and shall notify the department of human services, 
 benefit recovery section, when such payments have been made.  An 
 employee who has received public assistance payments shall 
 notify the department of human services, benefit recovery 
 section, of its potential intervention claim prior to making or 
 settling a claim for benefits under this chapter.  Notice served 
 on local human services agencies is not sufficient to meet the 
 notification requirement in this subdivision. 

    Subd. 5.    Arbitration.  Where a dispute exists between 
 an employer, insurer, the special compensation fund, or the 
 workers' compensation reinsurance association, regarding 
 apportionment of liability for benefits payable under this 
 chapter, and the requesting party has expended over $10,000 in 
 medical or 52 weeks worth of indemnity benefits and made the 
 request within one year thereafter, a party may require 
 submission of the dispute as to apportionment of liability among 
 employers and insurers to binding arbitration.  However, these 
 monetary thresholds shall not apply in any case where the 
 employers and insurers agree to submit the apportionment dispute 
 to arbitration.  The decision of the arbitrator shall be 
 conclusive on the issue of apportionment among employers and 
 insurers.  Consent of the employee is not required for 
 submission of a dispute to arbitration pursuant to this section 
 and the employee is not bound by the results of the 
 arbitration.  An arbitration award shall not be admissible in 
 any other proceeding under this chapter.  Notice of the 
 proceeding shall be given to the employee.  

    The employee, or any person with material information to 
 the facts to be arbitrated, shall attend the arbitration 
 proceeding if any party to the proceeding deems it necessary. 
 Nothing said by an employee in connection with any arbitration 
 proceeding may be used against the employee in any other 
 proceeding under this chapter.  Reasonable expenses of meals, 
 lost wages, and travel of the employee or witnesses in attending 
 shall be reimbursed on a pro rata basis.  Arbitration costs 
 shall be paid by the parties, except the employee, on a pro rata 
 basis. 

    Subd. 6.    Award.  If the employee commences an action 
 under this chapter for benefits arising out of the same injury 
 which resulted in the dispute arbitrated under subdivision 5, 
 and if the benefits awarded to the employee under the employee's 
 claim are inconsistent with the arbitration decision, any 
 increase in benefits over those paid pursuant to the arbitration 
 proceeding is paid by the party or parties who ordinarily would 
 have been required to pay the increased benefits but for the 
 arbitration. Any reimbursement from the employee of any decrease 
 in benefits from those paid pursuant to the arbitration is paid 
 to the party or parties who previously had paid the increased 
 benefits.  The provisions of this subdivision apply regardless 
 of whether more or fewer employers and insurers or the special 
 fund have been added or omitted as parties to the employee's 
 subsequent action after arbitration.  

    Subd. 7.    Representation.  If an employee brings an 
 action under the circumstances described in subdivision 6, the 
 parties to the previous arbitration may be represented at the 
 new action by a common or joint attorney.  

    Subd. 8.    Attorney fees.  No attorney's fees shall be 
 awarded under either section 176.081 or 176.191 against any 
 employer or insurer in connection with any arbitration 
 proceeding unless the employee chooses to retain an attorney to 
 represent the employee's interests during arbitration.  

    HIST: 1953 c 755 s 24; Ex1967 c 1 s 6; 1973 c 388 s 54; 1975 c 
 271 s 6; 1975 c 359 s 23; 1976 c 134 s 78; Ex1979 c 3 s 52; 1981 
 c 346 s 95; 1983 c 290 s 122-125; 1984 c 654 art 5 s 58; 1985 c 
 234 s 13,14; 1986 c 444; 1987 c 332 s 52,53; 1987 c 370 art 2 s 
 2; 1993 c 13 art 2 s 1; 1995 c 231 art 2 s 76-79; 1997 c 128 s 
 4,5; 2001 c 123 s 12