2006 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 or entity
pursuant to chapters 62A, 62C, 62D, 62E, 62R, and 62T, that insurer or entity 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 or entity 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 or entity that made the payments for all payments made under this
subdivision by the insurer or entity, 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.
History: 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; 2005 c 132 s 36