1st Engrossment - 89th Legislature (2015 - 2016) Posted on 06/02/2016 09:13am
A bill for an act
relating to workers' compensation; adopting recommendations of the Workers'
Compensation Advisory Council; amending Minnesota Statutes 2014, sections
176.011, subdivision 7a; 176.081, subdivisions 1, 3; 176.137, subdivisions 1,
4, by adding a subdivision; 176.331; 176.361, subdivisions 1, 2, 3, 4, 5, 6, by
adding a subdivision; 176.471, subdivisions 3, 5; 176.511, subdivisions 2, 3;
176.571, subdivision 1; Minnesota Statutes 2015 Supplement, sections 176.135,
subdivision 7a; 176.136, subdivision 1b.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Minnesota Statutes 2014, section 176.081, subdivision 1, is amended to read:
(a) A fee for legal services of 20 percent of the
first $130,000 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 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).
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 $26,000 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 $26,000. If multiple injuries are the subject of a dispute, the commissioner,
compensation judge, or court of appeals shall specify the attorney fee attributable to
(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 20 percent of the first $130,000 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 commissionerdeleted text begin,deleted text endnew text beginnew text endcompensation judge before whom the matter was hearddeleted text begin, or Workers' Compensation Court
of Appeals on cases before the courtdeleted text end. 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 $26,000 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.
Minnesota Statutes 2014, section 176.081, subdivision 3, is amended to read:
A party that is dissatisfied with deleted text beginitsdeleted text end attorney fees new text beginnew text endmay file deleted text beginan applicationdeleted text endnew text beginnew text end for review by the
Workers' Compensation Court of Appeals. The deleted text beginapplicationdeleted text endnew text beginnew text end shall state the basis for
the need of review and whether or not a hearing is requested. A copy of the deleted text beginapplication
deleted text endnew text beginnew text end shall be served new text beginnew text endupon the deleted text beginparty'sdeleted text end attorney deleted text beginby the court administrator
and if a hearing is requested by either party, the matter shall be set for hearingdeleted text endnew text beginnew text end. deleted text beginThe notice of hearing shall be served upon known interested
parties.deleted text end The Workers' Compensation Court of Appeals shall have the authority to raise
the issue of the attorney fees at any time upon its own motion and shall have continuing
jurisdiction over attorney fees.
Minnesota Statutes 2014, section 176.471, subdivision 3, is amended to read:
To effect a review upon certiorari,
the party shall serve a writ of certiorari deleted text beginand a bonddeleted text end upon the administrator of the Workers'
Compensation Court of Appeals within the 30-day period referred to in subdivision 1. The
party shall also at this time pay to the deleted text beginadministratordeleted text endnew text beginnew text end the fee
prescribed by rule deleted text begin103.01deleted text endnew text beginnew text end of the Rules of Civil Appellate Procedure deleted text beginwhich shall be
disposed of in the manner provided by that ruledeleted text end.
Minnesota Statutes 2014, section 176.471, subdivision 5, is amended to read:
deleted text begin
The bond required by subdivision 3 shall be executed in such
amount and with such sureties as the Workers' Compensation Court of Appeals directs
and approves. The bond shall be conditioned to pay the cost of the review. deleted text end new text begin new text end
Minnesota Statutes 2014, section 176.511, subdivision 2, is amended to read:
The commissioner or compensation judge, or
deleted text beginon appealdeleted text end the Workers' Compensation Court of Appealsnew text beginnew text end, may
award the prevailing party reimbursement for actual and necessary disbursements. deleted text beginThese
deleted text endDisbursements shall be taxed upon deleted text beginfivedeleted text endnew text beginnew text end days' written notice to adverse parties.
Minnesota Statutes 2014, section 176.511, subdivision 3, is amended to read:
Where deleted text beginupon an appeal to the Workers'
Compensation Court of Appeals,deleted text end new text beginnew text endan award of compensation is affirmed, or modified
and affirmed, deleted text beginordeleted text end new text beginnew text endan order disallowing compensation is reversed, new text beginnew text endthe Workers' Compensation Court of Appeals may include in
its award deleted text beginas an incident to its review on appealdeleted text end an amount to cover a reasonable attorney
feedeleted text begin,deleted text end or deleted text beginitdeleted text end may allow deleted text beginthedeleted text endnew text beginnew text end fee in a proceeding to tax disbursements.
If the employer or insurer files a notice of discontinuance of an employee's benefits
and an administrative conference is held to resolve the dispute, but the employer or insurer
fails to attend the administrative conference, the commissioner or compensation judge
may order the employer or insurer to pay the employee's attorney fees as a cost under this
section if the employee's benefits are continued.
new text begin new text end
Minnesota Statutes 2015 Supplement, section 176.135, subdivision 7a,
is amended to read:
(a) For purposes of this subdivision, the
following terms have the meanings given:
(1) "workers' compensation payer" means a workers' compensation insurer and an
employer, or group of employers, that is self-insured for workers' compensation;
(2) "clearinghouse" has the meaning given in section 62J.51, subdivision 11a; and
(3) "electronic transactions" means the health care administrative transactions
described in section 62J.536.
(b) In addition to the requirements of section 62J.536, workers' compensation payers
and health care providers must comply with the requirements in paragraphs (c) to (e).
(c) No later than January 1, 2016, each workers' compensation payer must place
the following information in a prominent location on its Web site or otherwise provide
the information to health care providers:
(1) the name of each clearinghouse with which the workers' compensation payer has
an agreement to exchange or transmit electronic transactions, along with the identification
number each clearinghouse has assigned to the payer in order to route electronic
transactions through intermediaries or other clearinghouses to the payer;
(2) information about how a health care provider can obtain the claim number
assigned by the workers' compensation payer for an employee's claim and how the
provider should submit the claim number in the appropriate field on the electronic bill to
the payer; and
(3) the name, phone number, and e-mail address of contact persons who can answer
questions related to electronic transactions on behalf of the workers' compensation payer
and the clearinghouses with which the payer has agreements.
(d) No later than deleted text beginJuly 1, 2016deleted text endnew text beginnew text end:
(1) health care providers must electronically submit copies of medical records or
reports that substantiate the nature of the charge and its relationship to the work injury
using the deleted text beginmost recently approveddeleted text endnew text beginnew text end version of the ASC X12N 275
transaction ("Additional Information to Support Health Care Claim or Encounter"),
according to the requirements in the corresponding implementation guide. The ASC X12N
275 transaction is the only one that shall be used to electronically submit attachments
unless a national standard is adopted by federal law or rule. If a new version of the
attachment transaction is approved, it must be used one year after the approval date;
(2) workers' compensation payers and all clearinghouses receiving or transmitting
workers' compensation bills must accept attachments using the ASC X12N 275 transaction
and must respond with the deleted text beginmost recently approveddeleted text endnew text beginnew text end ASC
X12 electronic acknowledgment for the attachment transaction. If a new version of the
acknowledgment transaction is approved, it must be used one year after the approval
(3) if a different national claims attachment or acknowledgment requirement is
adopted by federal law or rule, it will replace the ASC X12N 275 transaction, and the new
standard must be used on the date that it is required by the federal law or rule.
(e) No later than September 1, 2015, workers' compensation payers must provide
the patient's name and patient control number on or with all payments made to a provider
under this chapter, whether payment is made by check or electronic funds transfer. The
information provided on or with the payment must be sufficient to allow providers to
match the payment to specific bills. If a bulk payment is made to a provider for more than
one patient, the check or electronic funds transfer statement must also specify the amount
being paid for each patient. For purposes of this paragraph, the patient control number is
located on the electronic health care claim 837 transaction, loop 2300, segment CLM01,
and on the electronic health care claim payment/advice 835 transaction, loop 2100, CLP01.
(f) The commissioner may assess a monetary penalty of $500 for each violation of
this section, not to exceed $25,000 for identical violations during a calendar year. Before
issuing a penalty for a first violation of this section, the commissioner must provide written
notice to the noncompliant payer, clearinghouse, or provider that a penalty may be issued
if the violation is not corrected within 30 days. Penalties under this paragraph are payable
to the commissioner for deposit in the assigned risk safety account.
Minnesota Statutes 2015 Supplement, section 176.136, subdivision 1b, is
amended to read:
(a) The liability of the employer for treatment,
articles, and supplies provided to an employee while an inpatient or outpatient at a Critical
Access Hospital certified by the Centers for Medicare and Medicaid Servicesnew text beginnew text end shall be the hospital's usual and
customary charge, unless the charge is determined by the commissioner or a compensation
judge to be unreasonably excessive.
(b) The liability of the employer for the treatment, articles, and supplies that are not
limited by paragraph (a), subdivision 1a, 1c, or section 176.1362 shall be limited to 85
percent of the provider's usual and customary charge, or 85 percent of the prevailing
charges for similar treatment, articles, and supplies furnished to an injured person when
paid for by the injured person, whichever is lower. On this basis, the commissioner or
compensation judge may determine the reasonable value of all treatment, services, and
supplies, and the liability of the employer is limited to that amount. The commissioner
may by rule establish the reasonable value of a service, article, or supply in lieu of the
85 percent limitation in this paragraph. A prevailing charge established under Minnesota
Rules, part 5221.0500, subpart 2, must be based on no more than two years of billing data
immediately preceding the date of the service.
(c) The limitation of liability for charges provided by paragraph (b) does not apply
to a nursing home that participates in the medical assistance program and whose rates are
established by the commissioner of human services.
(d) An employer's liability for treatment, articles, and supplies provided under this
chapter by a health care provider located outside of Minnesota is limited to the payment that
the health care provider would receive if the treatment, article, or supply were paid under
the workers' compensation law of the jurisdiction in which the treatment was provided.
Minnesota Statutes 2014, section 176.571, subdivision 1, is amended to read:
When the head of a department has filed
a report or the commissioner of administration has otherwise received information of
the occurrence of an injury to a state employee for which liability to pay compensation
may exist, the commissioner of administration shall make a preliminary investigation to
determine the question of probable liability.
In making this investigation, the commissioner of administration may require the
assistance of the head of any department or any employee of the state. The commissioner
of deleted text beginmanagement and budgetdeleted text endnew text beginnew text end may require that all facts be furnished which
appear in the records of any state department bearing on the issue.
new text begin new text end
Minnesota Statutes 2014, section 176.011, subdivision 7a, is amended to read:
deleted text begin(1)deleted text end Compensation judge. "Compensation judge" means a workers'
compensation judge at the Office of Administrative Hearings.
deleted text begin
(2) Calendar judge. "Calendar judge" means a workers' compensation judge at the
Office of Administrative Hearings.
deleted text end
deleted text begin (3) Compensation judge. "Compensation judge" means a compensation judge at
the Department of Labor and Industry.deleted text end Compensation judges may conduct settlement
conferences, issue summary decisions, approve settlements and issue awards thereon,
determine petitions for attorney fees and costs, and make other determinations,
decisions, orders, and awards as may be delegated to them by new text beginnew text endthe commissioner.
Compensation judges must be learned in the law.
Minnesota Statutes 2014, section 176.137, subdivision 1, is amended to read:
The employer shall furnish to an
employee who is permanently disabled because of a personal injury suffered in the course
of employment with that employer such alteration or remodeling of the employee's
principal residence as is reasonably required to enable the employee to move freely into
and throughout the residence and to otherwise adequately accommodate the disability.
Any remodeling or alteration shall be furnished only when the division deleted text beginor Workers'
Compensation Court of Appealsdeleted text end determines that the injury is to such a degree that the
employee is substantially prevented from functioning within the principal residence.
Minnesota Statutes 2014, section 176.137, subdivision 4, is amended to read:
(a) Except as provided in paragraph
(b), no award may be made except upon the certification of a licensed architect to the
division deleted text beginor Workers' Compensation Court of Appealsdeleted text end that the proposed alteration or
remodeling of an existing residence or the building or purchase of a new or different
residence is reasonably required for the purposes specified in subdivision 1. The Council on
Disability shall advise the division deleted text beginor Workers' Compensation Court of Appealsdeleted text end as provided
in section 256.482, subdivision 5, clause (7). The alteration or remodeling of an existing
residence, or the building or purchase of a new home must be done under the supervision
of a licensed architect relative to the specific needs to accommodate the disability.
(b) Remodeling or alteration projects do not require an architect's certification and
supervision if the project is:
(1) approved by the Council on Disability;
(2) performed by a residential building contractor or residential remodeler licensed
under section 326B.805, subdivision 1; and
(3) approved by a certified building official or certified accessibility specialist under
section 326B.133, subdivision 3a, paragraphs (b) and (d), who states in writing that the
proposed remodeling or alterations are reasonably required to enable the employee to move
freely into and throughout the residence and to otherwise accommodate the disability.
Minnesota Statutes 2014, section 176.137, is amended by adding a subdivision
new text begin new text end
Minnesota Statutes 2014, section 176.331, is amended to read:
Except in cases involving multiple employers or multiple insurers, if an adverse
party fails to file and serve an answer or obtain an extension from the commissioner or the
petitioner as required by section 176.321, subdivision 3, the commissioner shall refer the
matter to the chief administrative law judge for an immediate hearing and prompt award
or other order. The adverse party that failed to file an answer may appear at the hearing,
present evidence and question witnesses, but shall not be granted a continuance deleted text beginfor any
reasondeleted text endnew text beginnew text end.
If an adverse party who fails to serve and file an answer is neither insured for
workers' compensation liability nor a licensed self-insured as required by section 176.181
and the special compensation fund is a party to the proceeding, the commissioner or
compensation judge may enter an order awarding benefits to the petitioning party without
a hearing if so requested by the special compensation fund.
Minnesota Statutes 2014, section 176.361, subdivision 1, is amended to read:
A person who has an interest in any matter
before the Workers' Compensation Court of Appeals, or commissioner, or compensation
judge such that the person may either gain or lose by an order or decision may intervene in
the proceeding by filing deleted text beginan application ordeleted text endnew text beginnew text end motion in writing stating the facts which show
the interest. The commissioner is considered to have an interest and shall be permitted
to intervene at the appellate level when a party relies in its claim or defense upon any
statute or rule administered by the commissioner, or upon any rule, order, requirement, or
agreement issued or made under the statute or rule.
The commissioner may adopt rules, not inconsistent with this section to govern
intervention. The Workers' Compensation Court of Appeals shall adopt rules to govern the
procedure for intervention in matters before it.
If the Department of Human Services or the Department of Employment and
Economic Development seeks to intervene in any matter before the division, a
compensation judge or the Workers' Compensation Court of Appeals, a nonattorney
employee of the department, acting at the direction of the staff of the attorney general,
may prepare, sign, serve and file motions for intervention and related documents, deleted text beginappear
atdeleted text endnew text beginnew text end prehearing conferences, and participate in matters before a compensation judge
or the Workers' Compensation Court of Appeals. Any other interested party may intervene
using a nonattorney and may participate in any proceeding to the same extent an attorney
could. This activity shall not be considered to be the unauthorized practice of law. An
intervenor represented by a nonattorney shall be deemed to be represented by an attorney
for the purposes of the conclusive presumption of section 176.521, subdivision 2.
Subdivisions 3 to 6 do not apply to deleted text beginmatters pending in the mediation or rehabilitation
and medical services sectionsdeleted text endnew text beginnew text end.
Minnesota Statutes 2014, section 176.361, subdivision 2, is amended to read:
A person desiring to intervene in a
workers' compensation case as a party, including but not limited to a health care provider
who has rendered services to an employee or an insurer who has paid benefits under
section 176.191, shall submit a timely written deleted text beginapplication ordeleted text end motion to intervene to the
commissioner, the office, or to the court of appeals, whichever is applicable.
(a) The deleted text beginapplication ordeleted text end motion must be served on all partiesnew text beginnew text end either personally, by first class mail, or new text beginnew text endregistered mail, return receipt
requested. deleted text beginAn application ordeleted text endnew text beginnew text end motion to intervene must be served and filed within 60
days after a potential intervenor has been served with notice of a right to intervene or
within 30 days of notice of an administrative conference. Upon the filing of a timely
deleted text beginapplication ordeleted text end motion to intervene, the potential intervenor shall be granted intervenor
status without the need for an order. Objections to the intervention may be subsequently
addressed by a compensation judge. Where a motion to intervene is not timely filed
under this section, the potential intervenor interest shall be extinguished and the potential
intervenor may not collect, or attempt to collect, the extinguished interest from the
employee, employer, insurer, or any government program.
(b) The deleted text beginapplication ordeleted text end motion must show how the applicant's legal rights, duties, or
privileges may be determined or affected by the case; state the grounds and purposes for
which intervention is sought; and indicate the statutory right to intervene. The deleted text beginapplication
ordeleted text end motion must be accompanied by the following:
(1) an itemization of disability payments showing the period during which the
payments were or are being made; the weekly or monthly rate of the payments; and the
amount of reimbursement claimed;
(2) a summary of the medical or treatment payments, or rehabilitation services
provided by the Vocational Rehabilitation Unit, broken down by creditor, showing the
total bill submitted, the period of treatment or rehabilitation covered by that bill, the
amount of payment on that bill, and to whom the payment was made;
(3) copies of all medical or treatment bills deleted text beginon which somedeleted text endnew text beginnew text end payment deleted text beginwas
madedeleted text endnew text beginnew text end;
(4) copies of the work sheets or other information stating how the payments on
medical or treatment bills were calculated;
(5) a copy of the relevant policy or contract provisions upon which the claim for
reimbursement is based;
(6) the name and telephone number of the person representing the intervenor who
has authority to new text beginnew text endreach a settlement of the issues in dispute;
(7) proof of service or copy of the registered mail receiptnew text beginnew text end;
(8) at the option of the intervenor, a proposed stipulation which states that all of the
payments for which reimbursement is claimed are related to the injury or condition in
dispute in the case and that, if the petitioner is successful in proving the compensability of
the claim, it is agreed that the sum be reimbursed to the intervenor; and
(9) if represented by an attorney, the name, address, telephone number, and
Minnesota Supreme Court license number of the attorney.
Minnesota Statutes 2014, section 176.361, subdivision 3, is amended to read:
If the person submitting the deleted text beginapplication ordeleted text end motion deleted text beginfor
interventiondeleted text endnew text beginnew text end has included a proposed stipulation, all parties shall either
execute and return the signed stipulation to the intervenor who must file it with the
division or judge or serve upon the intervenor and all other parties and file with the
division specific and detailed objections to any payments made by the intervenor which
are not conceded to be correct and related to the injury or condition the petitioner has
asserted is compensable. If a party has not returned the signed stipulation or filed new text beginnew text endobjections within 30 days of service of the deleted text beginapplication ordeleted text end motionnew text beginnew text end,
the intervenor's right to reimbursement for the amount sought is deemed established
provided that the petitioner's claim is determined to be compensable.new text beginnew text end
Minnesota Statutes 2014, section 176.361, subdivision 4, is amended to read:
deleted text beginUnless a stipulation has been signed and filed or
the intervenor's right to reimbursement has otherwise been established, the intervenor shall
attend all settlement or pretrial conferences, administrative conferences, and the hearing.
Failuredeleted text endnew text beginnew text end to deleted text beginappeardeleted text end new text beginnew text endshall result in the
denial of the claim for reimbursementdeleted text begin.deleted text endnew text beginnew text end
Minnesota Statutes 2014, section 176.361, subdivision 5, is amended to read:
If deleted text beginandeleted text endnew text beginnew text end objection to intervention
remains following settlement or pretrial conferences, the issue shall be addressed at the
hearing.new text beginnew text end
Minnesota Statutes 2014, section 176.361, subdivision 6, is amended to read:
Unless a stipulation has been
signed and filed or the intervenor's right to reimbursement has otherwise been established,
the intervenor shall present evidence in support of the claim at new text beginnew text endthe hearing deleted text beginunless
otherwise ordered by the compensation judgedeleted text end.new text beginnew text end
Minnesota Statutes 2014, section 176.361, is amended by adding a subdivision
new text begin new text end
new text begin new text end