Minnesota Legislature
Office of the Revisor of Statutes
Minnesota Session Laws - 2005, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 90-S.F.No. 1716
An act relating to workers' compensation; adopting
recommendations of the Workers' Compensation Advisory
Council; amending Minnesota Statutes 2004, sections
176.011, subdivision 9; 176.041, by adding a
subdivision; 176.081, subdivision 1; 176.092,
subdivision 1a; 176.102, subdivision 3a; 176.106,
subdivision 1; 176.129, subdivisions 1b, 2a, 13;
176.135, subdivisions 1, 7; 176.1351, subdivision 5;
176.1812, subdivision 1; 176.185, subdivisions 1, 7,
by adding a subdivision; 176.231, subdivision 5;
176.238, subdivision 10; 176.391, subdivision 2;
repealing Minnesota Statutes 2004, section 176.1812,
subdivision 6.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 2004, section 176.011,
subdivision 9, is amended to read:
Subd. 9. [EMPLOYEE.] "Employee" means any person who
performs services for another for hire including the following:
(1) an alien;
(2) a minor;
(3) a sheriff, deputy sheriff, constable, marshal, police
officer, firefighter, county highway engineer, and peace officer
while engaged in the enforcement of peace or in the pursuit or
capture of a person charged with or suspected of crime;
(4) a person requested or commanded to aid an officer in
arresting or retaking a person who has escaped from lawful
custody, or in executing legal process, in which cases, for
purposes of calculating compensation under this chapter, the
daily wage of the person shall be the prevailing wage for
similar services performed by paid employees;
(5) a county assessor;
(6) an elected or appointed official of the state, or of a
county, city, town, school district, or governmental subdivision
in the state. An officer of a political subdivision elected or
appointed for a regular term of office, or to complete the
unexpired portion of a regular term, shall be included only
after the governing body of the political subdivision has
adopted an ordinance or resolution to that effect;
(7) an executive officer of a corporation, except those
executive officers excluded by section 176.041;
(8) a voluntary uncompensated worker, other than an inmate,
rendering services in state institutions under the commissioners
of human services and corrections similar to those of officers
and employees of the institutions, and whose services have been
accepted or contracted for by the commissioner of human services
or corrections as authorized by law. In the event of injury or
death of the worker, the daily wage of the worker, for the
purpose of calculating compensation under this chapter, shall be
the usual wage paid at the time of the injury or death for
similar services in institutions where the services are
performed by paid employees;
(9) a voluntary uncompensated worker engaged in peace time
in the civil defense program when ordered to training or other
duty by in emergency management as defined in section 12.03,
subdivision 4, who is:
(i) registered with the state or any political subdivision
of it, according to the procedures set forth in the state or
political subdivision emergency operations plan; and
(ii) acting under the direction and control of, and within
the scope of duties approved by, the state or political
subdivision.
The daily wage of the worker, for the purpose of calculating
compensation under this chapter, shall be the usual wage paid at
the time of the injury or death for similar services performed
by paid employees;
(10) a voluntary uncompensated worker participating in a
program established by a local social services agency. For
purposes of this clause, "local social services agency" means
any agency established under section 393.01. In the event of
injury or death of the worker, the wage of the worker, for the
purpose of calculating compensation under this chapter, shall be
the usual wage paid in the county at the time of the injury or
death for similar services performed by paid employees working a
normal day and week;
(11) a voluntary uncompensated worker accepted by the
commissioner of natural resources who is rendering services as a
volunteer pursuant to section 84.089. The daily wage of the
worker for the purpose of calculating compensation under this
chapter, shall be the usual wage paid at the time of injury or
death for similar services performed by paid employees;
(12) a voluntary uncompensated worker in the building and
construction industry who renders services for joint
labor-management nonprofit community service projects. The
daily wage of the worker for the purpose of calculating
compensation under this chapter shall be the usual wage paid at
the time of injury or death for similar services performed by
paid employees;
(13) a member of the military forces, as defined in section
190.05, while in state active service, as defined in section
190.05, subdivision 5a. The daily wage of the member for the
purpose of calculating compensation under this chapter shall be
based on the member's usual earnings in civil life. If there is
no evidence of previous occupation or earning, the trier of fact
shall consider the member's earnings as a member of the military
forces;
(14) a voluntary uncompensated worker, accepted by the
director of the Minnesota Historical Society, rendering services
as a volunteer, pursuant to chapter 138. The daily wage of the
worker, for the purposes of calculating compensation under this
chapter, shall be the usual wage paid at the time of injury or
death for similar services performed by paid employees;
(15) a voluntary uncompensated worker, other than a
student, who renders services at the Minnesota State Academy for
the Deaf or the Minnesota State Academy for the Blind, and whose
services have been accepted or contracted for by the
commissioner of education, as authorized by law. In the event
of injury or death of the worker, the daily wage of the worker,
for the purpose of calculating compensation under this chapter,
shall be the usual wage paid at the time of the injury or death
for similar services performed in institutions by paid
employees;
(16) a voluntary uncompensated worker, other than a
resident of the veterans home, who renders services at a
Minnesota veterans home, and whose services have been accepted
or contracted for by the commissioner of veterans affairs, as
authorized by law. In the event of injury or death of the
worker, the daily wage of the worker, for the purpose of
calculating compensation under this chapter, shall be the usual
wage paid at the time of the injury or death for similar
services performed in institutions by paid employees;
(17) a worker who renders in-home attendant care services
to a physically handicapped person, and who is paid directly by
the commissioner of human services for these services, shall be
an employee of the state within the meaning of this subdivision,
but for no other purpose;
(18) students enrolled in and regularly attending the
Medical School of the University of Minnesota in the graduate
school program or the postgraduate program. The students shall
not be considered employees for any other purpose. In the event
of the student's injury or death, the weekly wage of the student
for the purpose of calculating compensation under this chapter,
shall be the annualized educational stipend awarded to the
student, divided by 52 weeks. The institution in which the
student is enrolled shall be considered the "employer" for the
limited purpose of determining responsibility for paying
benefits under this chapter;
(19) a faculty member of the University of Minnesota
employed for an academic year is also an employee for the period
between that academic year and the succeeding academic year if:
(a) the member has a contract or reasonable assurance of a
contract from the University of Minnesota for the succeeding
academic year; and
(b) the personal injury for which compensation is sought
arises out of and in the course of activities related to the
faculty member's employment by the University of Minnesota;
(20) a worker who performs volunteer ambulance driver or
attendant services is an employee of the political subdivision,
nonprofit hospital, nonprofit corporation, or other entity for
which the worker performs the services. The daily wage of the
worker for the purpose of calculating compensation under this
chapter shall be the usual wage paid at the time of injury or
death for similar services performed by paid employees;
(21) a voluntary uncompensated worker, accepted by the
commissioner of administration, rendering services as a
volunteer at the Department of Administration. In the event of
injury or death of the worker, the daily wage of the worker, for
the purpose of calculating compensation under this chapter,
shall be the usual wage paid at the time of the injury or death
for similar services performed in institutions by paid
employees;
(22) a voluntary uncompensated worker rendering service
directly to the Pollution Control Agency. The daily wage of the
worker for the purpose of calculating compensation payable under
this chapter is the usual going wage paid at the time of injury
or death for similar services if the services are performed by
paid employees;
(23) a voluntary uncompensated worker while volunteering
services as a first responder or as a member of a law
enforcement assistance organization while acting under the
supervision and authority of a political subdivision. The daily
wage of the worker for the purpose of calculating compensation
payable under this chapter is the usual going wage paid at the
time of injury or death for similar services if the services are
performed by paid employees; and
(24) a voluntary uncompensated member of the civil air
patrol rendering service on the request and under the authority
of the state or any of its political subdivisions. The daily
wage of the member for the purposes of calculating compensation
payable under this chapter is the usual going wage paid at the
time of injury or death for similar services if the services are
performed by paid employees.
If it is difficult to determine the daily wage as provided
in this subdivision, the trier of fact may determine the wage
upon which the compensation is payable.
[EFFECTIVE DATE.] This section is effective for injuries
occurring on or after the day following final enactment.
Sec. 2. Minnesota Statutes 2004, section 176.041, is
amended by adding a subdivision to read:
Subd. 5b. [NORTH DAKOTA EMPLOYERS.] Notwithstanding the
provisions of subdivision 4, workers' compensation benefits for
an employee hired in North Dakota by a North Dakota employer,
arising out of that employee's temporary work in Minnesota,
shall not be payable under this chapter. North Dakota workers'
compensation law provides the exclusive remedy available to the
injured worker. For purposes of this subdivision, temporary
work means work in Minnesota for a period of time not to exceed
15 consecutive calendar days or a maximum of 240 total hours
worked by that employee in a calendar year.
[EFFECTIVE DATE.] This section is effective for dates of
injury occurring on or after October 1, 2005.
Sec. 3. Minnesota Statutes 2004, 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 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 $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) Each insurer and self-insured employer shall file
annual statements with the commissioner detailing the total
amount of legal fees and other legal costs incurred by the
insurer or employer during the year. The statement shall
include the amount paid for outside and in-house counsel,
deposition and other witness fees, and all other costs relating
to litigation.
(g) 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.
[EFFECTIVE DATE.] This section is effective the day
following final enactment.
Sec. 4. Minnesota Statutes 2004, section 176.092,
subdivision 1a, is amended to read:
Subd. 1a. [PARENT AS GUARDIAN.] A parent is presumed to be
the guardian of the minor employee for purposes of this
section. Where the parents of the minor employee are divorced,
either parent with legal custody may be considered the guardian
for purposes of this section. Notwithstanding subdivision 1,
where the employee receives or is eligible for a lump sum
payment of permanent total disability benefits, supplementary
benefits, or permanent partial disability benefits totaling more
than $3,000 or if the employee receives or is offered a
settlement that exceeds five times the statewide average weekly
wage, the compensation judge shall review such cases to
determine whether benefits should be paid in a lump sum or
through an annuity.
[EFFECTIVE DATE.] This section is effective the day
following final enactment.
Sec. 5. Minnesota Statutes 2004, section 176.102,
subdivision 3a, is amended to read:
Subd. 3a. [DISCIPLINARY ACTIONS.] The panel has authority
to discipline qualified rehabilitation consultants and vendors
and may impose a penalty of up to $3,000 per violation, payable
to the commissioner for deposit in the special compensation fund
assigned risk safety account, and may suspend or revoke
certification. Complaints against registered qualified
rehabilitation consultants and vendors shall be made to the
commissioner who shall investigate all complaints. If the
investigation indicates a violation of this chapter or rules
adopted under this chapter, the commissioner may initiate a
contested case proceeding under the provisions of chapter 14.
In these cases, the rehabilitation review panel shall make the
final decision following receipt of the report of an
administrative law judge. The decision of the panel is
appealable to the Workers' Compensation Court of Appeals in the
manner provided by section 176.421. The panel shall
continuously study rehabilitation services and delivery, develop
and recommend rehabilitation rules to the commissioner, and
assist the commissioner in accomplishing public education.
The commissioner may appoint alternates for one-year terms
to serve as a member when a member is unavailable. The number
of alternates shall not exceed one labor member, one employer or
insurer member, and one member representing medicine,
chiropractic, or rehabilitation.
[EFFECTIVE DATE.] This section is effective the day
following final enactment.
Sec. 6. Minnesota Statutes 2004, section 176.106,
subdivision 1, is amended to read:
Subdivision 1. [SCOPE.] All determinations by the
commissioner or the commissioner's designee pursuant to section
176.102, 176.103, 176.135, or 176.136 shall be in accordance
with the procedures contained in this section. For medical
disputes under sections 176.135 and 176.136, the commissioner or
the commissioner's designee shall have jurisdiction to hold an
administrative conference and issue decisions and orders under
this section if the amount in dispute at the time the medical
request is filed is $7,500 or less.
[EFFECTIVE DATE.] This section is effective for medical
requests filed on or after the day following final enactment.
Sec. 7. Minnesota Statutes 2004, section 176.129,
subdivision 1b, is amended to read:
Subd. 1b. [DEFINITIONS.] (a) For purposes of this section,
the terms defined in this subdivision have the meanings given
them.
(b) "Paid indemnity losses" means gross benefits paid for
temporary total disability, economic recovery compensation,
permanent partial disability, temporary partial disability,
impairment compensation, permanent total disability, vocational
rehabilitation benefits retraining compensation paid to the
employee as provided by section 176.102, subdivision 11, or
dependency benefits, exclusive of medical and supplementary
benefits. In the case of policy deductibles, paid indemnity
losses includes all benefits paid, including the amount below
deductible limits.
(c) "Standard workers' compensation premium" means the data
service organization's designated statistical reporting pure
premium after the application of experience rating plan
adjustments excluding retrospective rating plan adjustments,
other individual risk rating plan adjustments such as schedule
rating, premium credits for small and large deductible coverage,
and other deviations from the data service organization's
designated statistical reporting pure premiums and experience
rating plan modification factors but prior to the application of
premium discounts, policyholder dividends, other premium
adjustments, and expense constants, and other deviations from
the designated statistical reporting pure premium.
[EFFECTIVE DATE.] This section is effective the day
following final enactment.
Sec. 8. Minnesota Statutes 2004, section 176.129,
subdivision 2a, is amended to read:
Subd. 2a. [PAYMENTS TO FUND.] (a) On or before April 1 of
each year, all self-insured employers shall report paid
indemnity losses and insurers shall report paid indemnity losses
and standard workers' compensation premium in the form and
manner prescribed by the commissioner. On June 1 of each year,
the commissioner shall determine the total amount needed to pay
all estimated liabilities, including administrative expenses, of
the special compensation fund for the following fiscal year.
The commissioner shall assess this amount against self-insured
employers and insurers. The total amount of the assessment must
be allocated between self-insured employers and insured
employers based on paid indemnity losses for the preceding
calendar year, as provided by paragraph (b). The method of
assessing self-insured employers must be based on paid indemnity
losses, as provided by paragraph (c). The method of assessing
insured employers is based on standard workers' compensation
premium, collectible as provided by paragraph (c). Each insurer
shall collect the assessment through a policyholder surcharge as
provided by paragraph (d). On or before June 30 of each year,
the commissioner shall provide notification to each self-insured
employer and insurer of amounts due. Each self-insured employer
and each insurer shall pay at least one-half of the payment
shall be made amount due to the commissioner for deposit into
the special compensation fund on or before August 1 of the same
calendar year. The remaining balance is due on February 1 of
the following calendar year. Each insurer must pay the full
amount due as stated in the commissioner's notification,
regardless of the amount the insurer actually collects from the
premium surcharge.
(b) The portion of the total amount assessment that is
collected from allocated to self-insured employers is equal to
that the proportion of the that paid indemnity losses for the
preceding calendar year, which the paid indemnity losses of made
by all self-insured employers bore to the total paid indemnity
losses made by all self-insured employers and insured employers
during the preceding calendar year. The portion of the
total amount assessment that is collected from allocated to
insured employers is equal to that the proportion of the total
that paid indemnity losses made on behalf of all insured
employers bore to the total paid indemnity losses on behalf of
made by all self-insured employers and insured employers during
the preceding calendar year.
(c) The portion of the total assessment allocated to
self-insured employers that shall be paid by each self-insured
employer must be based upon paid indemnity losses made by that
self-insured employer during the preceding calendar year. The
portion of the total assessment allocated to insured employers
that is collected from paid by each insured employer insurer
must be based on standard workers' compensation premium written
earned in the state by that insurer during the preceding
calendar year. An employer who has ceased to be self-insured
shall continue to be liable for assessments based on paid
indemnity losses made by the employer in the preceding calendar
year. arising out of injuries occurring during periods when the
employer was self-insured, unless the self-insured employer has
purchased a replacement policy covering those losses. An
insurer who assumes a self-insured employer's obligation under a
replacement policy shall separately report and pay assessments
based on indemnity losses paid by the insurer under the
replacement policy. The replacement policy may provide for
reimbursement of the assessment to the insurer by the
self-insured employer.
(c) (d) Insurers shall collect the assessments from their
insured employers through a surcharge based on standard workers'
compensation premium, as provided in paragraph (a) for each
employer. Assessments when collected do not constitute an
element of loss for the purpose of establishing rates for
workers' compensation insurance but for the purpose of
collection are treated as separate costs imposed on insured
employers. The premium surcharge is included in the definition
of gross premium as defined in section 297I.01. An insurer may
cancel a policy for nonpayment of the premium surcharge. The
premium surcharge is excluded from the definition of premium
except as otherwise provided in this paragraph.
(e) For purposes of this section, the workers' compensation
assigned-risk plan established under section 79.252, shall
report and pay assessments on standard workers' compensation
premium in the same manner as an insurer.
[EFFECTIVE DATE.] This section is effective the day
following final enactment.
Sec. 9. Minnesota Statutes 2004, section 176.129,
subdivision 13, is amended to read:
Subd. 13. [EMPLOYER REPORTS.] All employers and insurers
shall make reports to the commissioner as required for the
proper administration of this section and Minnesota Statutes
1990, section 176.131, and Minnesota Statutes 1994, section
176.132. Employers and insurers may not be reimbursed from the
special compensation fund for any periods unless the employer or
insurer is up to date with all past due and currently due
assessments, penalties, and reports to the special compensation
fund under this section. The commissioner may allow an offset
of the reimbursements due an employer or insurer pursuant to
Minnesota Statutes 1990, section 176.131, and Minnesota Statutes
1994, section 176.132, against the assessment due under the
section.
[EFFECTIVE DATE.] This section is effective the day
following final enactment.
Sec. 10. Minnesota Statutes 2004, section 176.135,
subdivision 1, is amended to read:
Subdivision 1. [MEDICAL, PSYCHOLOGICAL, CHIROPRACTIC,
PODIATRIC, SURGICAL, HOSPITAL.] (a) The employer shall furnish
any medical, psychological, chiropractic, podiatric, surgical
and hospital treatment, including nursing, medicines, medical,
chiropractic, podiatric, and surgical supplies, crutches and
apparatus, including artificial members, or, at the option of
the employee, if the employer has not filed notice as
hereinafter provided, Christian Science treatment in lieu of
medical treatment, chiropractic medicine and medical supplies,
as may reasonably be required at the time of the injury and any
time thereafter to cure and relieve from the effects of the
injury. This treatment shall include treatments necessary to
physical rehabilitation.
(b) The employer shall pay for the reasonable value of
nursing services provided by a member of the employee's family
in cases of permanent total disability.
(c) Exposure to rabies is an injury and an employer shall
furnish preventative treatment to employees exposed to rabies.
(d) The employer shall furnish replacement or repair for
artificial members, glasses or spectacles, artificial eyes,
podiatric orthotics, dental bridge work, dentures or artificial
teeth, hearing aids, canes, crutches, or wheel chairs damaged by
reason of an injury arising out of and in the course of the
employment. For the purpose of this paragraph, "injury"
includes damage wholly or in part to an artificial member. In
case of the employer's inability or refusal seasonably to
provide the items required to be provided under this paragraph,
the employer is liable for the reasonable expense incurred by or
on behalf of the employee in providing the same, including costs
of copies of any medical records or medical reports that are in
existence, obtained from health care providers, and that
directly relate to the items for which payment is sought under
this chapter, limited to the charges allowed by subdivision 7,
and attorney fees incurred by the employee.
(e) Both the commissioner and the compensation judges have
authority to make determinations under this section in
accordance with sections 176.106 and 176.305.
(f) An employer may require that the treatment and supplies
required to be provided by an employer by this section be
received in whole or in part from a managed care plan certified
under section 176.1351 except as otherwise provided by that
section.
(g) An employer may designate a pharmacy or network of
pharmacies that employees must use to obtain outpatient
prescription and nonprescription medications. An employee is
not required to obtain outpatient medications at a designated
pharmacy unless the pharmacy is located within 15 miles of the
employee's place of residence.
(h) Notwithstanding any fees established by rule adopted
under section 176.136, an employer may contract for the cost of
medication provided to employees.
[EFFECTIVE DATE.] This section is effective the day
following final enactment.
Sec. 11. Minnesota Statutes 2004, section 176.135,
subdivision 7, is amended to read:
Subd. 7. [MEDICAL BILLS AND RECORDS.] Health care
providers shall submit to the insurer an itemized statement of
charges on a billing form prescribed by the commissioner. A
paper billing form is not required if the health care provider
and insurer agree to electronic submission under section 62J.535.
Health care providers shall also submit copies of medical
records or reports that substantiate the nature of the charge
and its relationship to the work injury. Health care providers
may charge for copies of any records or reports that are in
existence and directly relate to the items for which payment is
sought under this chapter. The commissioner shall adopt a
schedule of reasonable charges by rule.
A health care provider shall not collect, attempt to
collect, refer a bill for collection, or commence an action for
collection against the employee, employer, or any other party
until the information required by this section has been
furnished.
A United States government facility rendering health care
services to veterans is not subject to the uniform billing form
requirements of this subdivision.
[EFFECTIVE DATE.] This section is effective the day
following final enactment.
Sec. 12. Minnesota Statutes 2004, section 176.1351,
subdivision 5, is amended to read:
Subd. 5. [REVOCATION, SUSPENSION, AND REFUSAL TO CERTIFY;
PENALTIES AND ENFORCEMENT.] (a) The commissioner shall refuse to
certify or shall revoke or suspend the certification of a
managed care plan if the commissioner finds that the plan for
providing medical or health care services fails to meet the
requirements of this section, or service under the plan is not
being provided in accordance with the terms of a certified plan.
(b) In lieu of or in addition to suspension or revocation
under paragraph (a), the commissioner may, for any noncompliance
with the managed care plan as certified or any violation of a
statute or rule applicable to a managed care plan, assess an
administrative penalty payable to the commissioner for deposit
in the special compensation fund assigned risk safety account in
an amount up to $25,000 for each violation or incidence of
noncompliance. The commissioner may adopt rules necessary to
implement this subdivision. In determining the level of an
administrative penalty, the commissioner shall consider the
following factors:
(1) the number of workers affected or potentially affected
by the violation or noncompliance;
(2) the effect or potential effect of the violation or
noncompliance on workers' health, access to health services, or
workers' compensation benefits;
(3) the effect or potential effect of the violation or
noncompliance on workers' understanding of their rights and
obligations under the workers' compensation law and rules;
(4) whether the violation or noncompliance is an isolated
incident or part of a pattern of violations; and
(5) the potential or actual economic benefits derived by
the managed care plan or a participating provider by virtue of
the violation or noncompliance.
The commissioner shall give written notice to the managed
care plan of the penalty assessment and the reasons for the
penalty. The managed care plan has 30 days from the date the
penalty notice is issued within which to file a written request
for an administrative hearing and review of the commissioner's
determination pursuant to section 176.85, subdivision 1.
(c) If the commissioner, for any reason, has cause to
believe that a managed care plan has or may violate a statute or
rule or a provision of the managed care plan as certified, the
commissioner may, before commencing action under paragraph (a)
or (b), call a conference with the managed care plan and other
persons who may be involved in the suspected violation or
noncompliance for the purpose of ascertaining the facts relating
to the suspected violation or noncompliance and arriving at an
adequate and effective means of correcting or preventing the
violation or noncompliance. The commissioner may enter into
stipulated consent agreements with the managed care plan for
corrective or preventive action or the amount of the penalty to
be paid. Proceedings under this paragraph shall not be governed
by any formal procedural requirements, and may be conducted in a
manner the commissioner deems appropriate under the
circumstances.
(d) The commissioner may issue an order directing a managed
care plan or a representative of a managed care plan to cease
and desist from engaging in any act or practice that is not in
compliance with the managed care plan as certified, or that it
is in violation of an applicable statute or rule. Within 30
days of service of the order, the managed care plan may request
review of the cease and desist order by an administrative law
judge pursuant to chapter 14. The decision of the
administrative law judge shall include findings of fact,
conclusions of law and appropriate orders, which shall be the
final decision of the commissioner. In the event of
noncompliance with a cease and desist order, the commissioner
may institute a proceeding in district court to obtain
injunctive or other appropriate relief.
(e) A managed care plan, participating health care
provider, or an employer or insurer that receives services from
the managed care plan, shall cooperate fully with an
investigation by the commissioner. For purposes of this
section, cooperation includes, but is not limited to, attending
a conference called by the commissioner under paragraph (c),
responding fully and promptly to any questions relating to the
subject of the investigation, and providing copies of records,
reports, logs, data, and other information requested by the
commissioner to assist in the investigation.
(f) Any person acting on behalf of a managed care plan who
knowingly submits false information in any report required to be
filed by a managed care plan is guilty of a misdemeanor.
[EFFECTIVE DATE.] This section is effective the day
following final enactment.
Sec. 13. Minnesota Statutes 2004, section 176.1812,
subdivision 1, is amended to read:
Subdivision 1. [REQUIREMENTS.] Upon appropriate filing,
the commissioner, compensation judge, Workers' Compensation
Court of Appeals, and courts shall recognize as valid and
binding a provision in a collective bargaining agreement between
a qualified employer or qualified groups of employers engaged in
construction, construction maintenance, and related activities
and the certified and exclusive representative of its employees
to establish certain obligations and procedures relating to
workers' compensation. For purposes of this section, "qualified
employer" means any self-insured employer, any employer, through
itself or any affiliate as defined in section 60D.15,
subdivision 2, who is responsible for the first $100,000 or more
of any claim, or a private employer developing or projecting an
annual workers' compensation premium, in Minnesota, of $250,000
or more. For purposes of this section, a "qualified group of
employers" means a group of private employers engaged in
workers' compensation group self-insurance complying with
chapter 79A, or a group of private employers who purchase
workers' compensation insurance as a group, which develops or
projects annual workers' compensation insurance premiums of
$2,000,000 or more. This agreement must be limited to, but need
not include, all of the following:
(a) an alternative dispute resolution system to supplement,
modify, or replace the procedural or dispute resolution
provisions of this chapter. The system may include mediation,
arbitration, or other dispute resolution proceedings, the
results of which may be final and binding upon the parties. A
system of arbitration shall provide that the decision of the
arbiter is subject to review either by the Workers' Compensation
Court of Appeals in the same manner as an award or order of a
compensation judge or, in lieu of review by the Workers'
Compensation Court of Appeals, by the Office of Administrative
Hearings, by the district court, by the Minnesota Court of
Appeals, or by the Supreme Court in the same manner as the
Workers' Compensation Court of Appeals and may provide that any
arbiter's award disapproved by a court be referred back to the
arbiter for reconsideration and possible modification;
(b) an agreed list of providers of medical treatment that
may be the exclusive source of all medical and related treatment
provided under this chapter which need not be certified under
section 176.1351;
(c) the use of a limited list of impartial physicians to
conduct independent medical examinations;
(d) the creation of a light duty, modified job, or return
to work program;
(e) the use of a limited list of individuals and companies
for the establishment of vocational rehabilitation or retraining
programs which list is not subject to the requirements of
section 176.102;
(f) the establishment of safety committees and safety
procedures; or
(g) the adoption of a 24-hour health care coverage plan if
a 24-hour plan pilot project is authorized by law, according to
the terms and conditions authorized by that law.
Sec. 14. Minnesota Statutes 2004, section 176.185,
subdivision 1, is amended to read:
Subdivision 1. [NOTICE OF COVERAGE, TERMINATION,
CANCELLATION; NOTICE TO INSURED BEFORE POLICY CANCELLATION,
TERMINATION OR NONRENEWAL.] (a) Within ten days after the
issuance or renewal of a policy of insurance covering the
liability to pay compensation under this chapter written by an
insurer licensed to insure such liability in this state, the
insurer shall file notice of coverage with the commissioner
under rules and on forms prescribed by the commissioner. No
policy shall be canceled by the insurer within the policy period
nor terminated upon its expiration date until a notice in
writing is delivered or mailed to the insured and filed with the
commissioner, fixing the date on which it is proposed to cancel
it, or declaring that meets all of the requirements in
paragraphs (a) to (c).
(a) The notice must specify the date the policy will be
terminated if the premium is not paid, declare that the
insurer intends to cancel the policy by the specified date, or
does not intend to renew the policy upon the expiration date. A
cancellation or termination is not effective until 30 days after
written notice has been filed with the commissioner in a manner
prescribed by the commissioner unless prior to the expiration of
the 30 day period
(b) The notice must include the following statement, which
must be placed on or sent with the premium invoice or other
document sent by the insurer to notify the insured of the
intended cancellation or termination: "You must maintain
workers' compensation insurance, or obtain permission to
self-insure for workers' compensation from the Minnesota
Department of Commerce. The failure to maintain workers'
compensation coverage is a violation of section 176.181, and
could result in criminal prosecution and civil penalties of up
to $1,000 per week per uninsured employee." This statement must
be in at least 12-point font, bold-faced type, and be set out in
a separate paragraph.
(c) The notice must be mailed or delivered to the insured
at least 60 days before the actual date the policy is due to
expire or be terminated or canceled. This 60-day advance notice
to the insured applies to cancellation, termination, or
nonrenewal of all workers' compensation policies for any reason,
notwithstanding any contrary time frame for notice to the
policyholder in section 60A.36 or 60A.37.
Subd. 1a. [NOTICE TO COMMISSIONER OF CANCELLATION OR
TERMINATION; EFFECTIVE DATE.] (a) Within ten calendar days after
the specified cancellation or termination date, the insurer must
send to the insured and file with the commissioner a written
notice of cancellation or termination in the manner prescribed
by the commissioner. Upon the commissioner's request, the
insurer shall provide documentation of the dates the notices
required by this subdivision and subdivision 1 were sent to the
insured. The effective dates of cancellation or termination
specified in paragraphs (b) to (e) apply notwithstanding any
contrary time frames in section 60A.36 or 60A.37.
(b) If within the ten calendar days after the specified
cancellation or termination date the notice of cancellation or
termination is both sent to the insured and received by the
commissioner, the cancellation or termination shall be effective
on the date specified on the notice of cancellation or
termination, except as otherwise provided in paragraph (d).
(c) If within the ten calendar days after the specified
cancellation or termination date the notice of cancellation or
termination is not sent to the insured and received by the
commissioner, the cancellation or termination shall not be
effective until the notice has been sent to the insured and
received by the commissioner, except as otherwise provided in
paragraph (d) or (e).
(d) If the notice required by subdivision 1 is not sent to
the insured or does not meet all of the requirements of
subdivision 1, the cancellation or termination shall not be
effective until 60 days after the notice of cancellation or
termination has been sent to the insured and received by the
commissioner, except as otherwise provided in paragraph (e).
(e) Paragraphs (c) and (d) do not extend the effective date
of cancellation or termination if, on or before the cancellation
or termination date determined under paragraph (c) or (d), the
employer obtains other insurance coverage or an order exempting
the employer from carrying insurance as provided in section
176.181. Upon receipt of the notice,
Subd. 1b. [CONTINUED OR REPLACEMENT COVERAGE.] If, after
receiving a notice of cancellation or termination of a policy
under subdivision 1a, the commissioner does not receive a notice
of continued or replacement coverage, the commissioner shall
notify the insured that the insured must obtain coverage from
some other licensed carrier and that, if unable to do so, the
insured shall request the commissioner of commerce to require
the issuance of a policy as provided in section 79.251,
subdivision 4. Upon a cancellation or termination of a policy
by the insurer, the employer is entitled to be assigned a policy
in accordance with sections 79.251 and 79.252.
Subd. 1c. [CANCELLATION BY EMPLOYER.] (b) Notice of
cancellation or termination by the insured shall be served upon
the insurer by written statement mailed or delivered to the
insurer. Upon receipt of the notice, the insurer shall notify
the commissioner of the cancellation or termination and the
commissioner shall ask the employer for the reasons for the
cancellation or termination and notify the employer of the duty
under this chapter to insure the employer's employees.
(c) In addition to the requirements under paragraphs (a)
and (b), with respect to any trucker employer in classification
7219, 7230, 7231, or 7360 pursuant to the classification plan
required to be filed under section 79.61, if the insurer or its
agent has delivered or mailed a written certificate of insurance
certifying that a policy in the name of a trucker employer under
this paragraph is in force, then the insurer or its agent shall
also deliver or mail written notice of any midterm cancellation
to the trucker employer recipient of the certificate of
insurance at the address listed on the certificate. If an
insurer or its agent fails to mail or deliver notice of any
midterm cancellation of the trucker employer's policy to the
trucker employer recipient of the certificate of insurance, then
the special compensation fund shall indemnify and hold harmless
the recipient from any award of benefits or other damages under
this chapter resulting from the failure to give notice.
Sec. 15. Minnesota Statutes 2004, section 176.185,
subdivision 7, is amended to read:
Subd. 7. [NOTICE, EFFECT.] Where an employer has properly
insured the payment of compensation to an employee, and posts a
notice in conspicuous places about the place of business stating
that there is insurance and the name of the insurer, and files a
copy of that notice with the commissioner of the Department of
Labor and Industry, the employee, or the employee's dependent,
shall proceed directly against the insurer. In such case but
subject to subdivision 8 8a, the employer is released from
further liability in this respect.
[EFFECTIVE DATE.] This section is effective the day
following final enactment.
Sec. 16. Minnesota Statutes 2004, section 176.185, is
amended by adding a subdivision to read:
Subd. 8a. [INSOLVENT INSURER.] (a) If an insurer is or
becomes insolvent as defined in section 60C.03, subdivision 8,
the insured employer is liable, as of May 23, 2003, for payment
of the compensable workers' compensation claims that were
covered under the employer's policy with the insolvent insurer,
to the extent that the Insurance Guaranty Association has
determined that the claims are not covered claims under chapter
60C. This paragraph does not in any way limit the Insurance
Guarantee Association's right of recovery from an employer under
section 60C.11, subdivision 7, for workers' compensation claims
that are covered claims under chapter 60C.
The Insurance Guaranty Association shall notify the
employer and the commissioners of the Departments of Commerce
and Labor and Industry of the association's determination and of
the employer's liability under this subdivision. The
association's failure to notify the employer or the
commissioners shall not relieve the employer of its liability
and obligations under this subdivision.
(b) An employer who is liable for payment of claims under
paragraph (a) shall have all of the rights, responsibilities,
and obligations of a self-insured employer under this chapter
for those claims only, but without the need for an order from
the commissioner of commerce. The employer shall not be
self-insured for purposes of the workers' compensation
self-insurers' security fund under chapter 79A for those
claims. The employer shall not be required to pay assessments
to the workers' compensation self-insurers' security fund, and
the security fund shall not be liable for the claims under
section 79A.10. Notwithstanding any contrary provision of
chapter 60C, the Insurance Guaranty Association shall pay the
claims as covered claims under chapter 60C if the employer fails
to pay the claims as required under chapter 176 and the
commissioner of commerce determines that:
(1) the employer is the subject of a voluntary or
involuntary petition under the United States Bankruptcy Code,
title 11;
(2) a court of competent jurisdiction has declared the
employer to be bankrupt or insolvent; or
(3) the employer is insolvent.
(c) If the employer contracts with an entity or person to
administer the claims under paragraph (a), the entity or person
must be a licensed workers' compensation insurer or a licensed
third-party administrator under section 60A.23, subdivision 8.
The commissioner of commerce may require the employer to
contract with a licensed third-party administrator when the
commissioner determines it is necessary to ensure proper payment
of compensation under this chapter.
(d) For all claims that an employer is liable for under
paragraph (a) and pays on or after the effective date of this
subdivision, and for all deductible amounts an employer pays on
or after the effective date of this subdivision under an
employer's policy with an insurer that became insolvent before
May 23, 2003:
(1) the employer shall file reports and pay assessments to
the special compensation fund, according to the requirements of
section 176.129 that apply to self-insured employers, based on
paid indemnity losses for the claims and deductible amounts it
paid; and
(2) the employer may request supplementary benefit and
second injury reimbursement from the special compensation fund
for the claims and deductible amounts it paid, subject to
section 176.129, subdivision 13. Reimbursement from the special
compensation fund is limited to claims that are eligible for
supplementary benefit and second injury reimbursement under
Minnesota Statutes 1990, section 176.131, and Minnesota Statutes
1994, section 176.132.
(e) For all claims for which an employer is liable under
paragraph (a) and paid between the date of the insurer's
insolvency and the effective date of this subdivision, and for
all deductible amounts an employer paid between the date of the
insurer's insolvency and the effective date of this subdivision
under an employer's policy with an insurer that became insolvent
before May 23, 2003, the employer may request supplementary
benefit and second injury reimbursement from the special
compensation fund, subject to section 176.129, subdivision 13,
if:
(1) the employer files reports and pays all past
assessments based on paid indemnity losses, for all claims and
deductible amounts it paid from the date of the insolvency of
the insurer to the effective date of this subdivision, at the
rate that was in effect for self-insured employers under section
176.129 during the applicable assessment reporting period;
(2) the employer has a pending request for reimbursement of
the claims and deductible amounts it paid from the special
compensation fund as of the effective date of this subdivision,
or files a request for reimbursement within one year after the
effective date of this subdivision; and
(3) the claims are eligible for supplementary benefit and
second injury reimbursement under Minnesota Statutes 1990,
section 176.131, and Minnesota Statutes 1994, section 176.132.
(f) An employer who is liable for claims under paragraph (a)
shall be eligible for reimbursement from the Workers'
Compensation Reinsurance Association under chapter 79 for those
claims to the extent they exceed the applicable retention limit
selected by the insolvent insurer and if the employer has
complied with the requirements for reimbursement established by
the Workers' Compensation Reinsurance Association for its
self-insured members. The employer is not responsible for
payment of premiums to the reinsurance association to the extent
the premiums have been paid by the insolvent insurer.
(g) The expenses of the employer in handling the claims
paid under paragraph (a) are accorded the same priority as the
liquidator's expenses. The employer must be recognized as a
claimant in the liquidation of an insolvent insurer for amounts
paid by the employer under this subdivision, and must receive
dividends and other distributions at the priority set forth in
chapter 60B. The receiver, liquidator, or statutory successor
of an insolvent insurer is bound by settlements of claims made
by the employer under this subdivision. The court having
jurisdiction shall grant the claims priority equal to that which
the claimant would have been entitled against the assets of the
insolvent insurer in the absence of this subdivision.
(h) The Workers' Compensation Reinsurance Association and
the special compensation fund, as a condition of directly
reimbursing an employer eligible for reimbursement, may require
the employer to hold it harmless from any claims by a
liquidator, receiver, or statutory successor to the insolvent
insurer that the Workers' Compensation Reinsurance Association
or special compensation fund improperly indemnified or
reimbursed the employer. In no event shall the Workers'
Compensation Reinsurance Association or the special compensation
fund be required to reimburse any amounts for any claim more
than once.
[EFFECTIVE DATE.] This section is effective the day
following final enactment.
Sec. 17. Minnesota Statutes 2004, section 176.231,
subdivision 5, is amended to read:
Subd. 5. [FORMS FOR REPORTS.] The commissioner shall
prescribe forms for use in making the reports required by this
section. The first report of injury form which the employer
submits shall include a declaration by the employer that the
employer will pay the compensation the law requires. Forms for
reports required by this section shall be as prescribed by the
commissioner and shall be the only forms used by an employer,
insurer, self-insurer, group self-insurer, and all health care
providers.
Sec. 18. Minnesota Statutes 2004, section 176.238,
subdivision 10, is amended to read:
Subd. 10. [FINES; VIOLATION.] An employer who violates
requirements set forth in this section or section 176.239 is
subject to a fine of up to $1,000 for each violation payable to
the commissioner for deposit in the special compensation
fund assigned risk safety account.
[EFFECTIVE DATE.] This section is effective the day
following final enactment.
Sec. 19. Minnesota Statutes 2004, section 176.391,
subdivision 2, is amended to read:
Subd. 2. [APPOINTMENT OF PHYSICIANS, SURGEONS, AND OTHER
EXPERTS.] The compensation judge assigned to a matter, or the
commissioner, may appoint one or more neutral physicians or
surgeons from the list established by the commissioner to
examine the injury of the employee and report thereon except as
provided otherwise pursuant to section 176.1361. Where
necessary to determine the facts, the services of other experts
may also be employed.
Sec. 20. [REPEALER.]
Minnesota Statutes 2004, section 176.1812, subdivision 6,
is repealed.
Presented to the governor May 21, 2005
Signed by the governor May 25, 2005, 12:10 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes