Lind Jensen Sullivan & Peterson, P.A.

Please join us in congratulating our newly minted partner, Brandon Meshbesher, in his recent success in securing summary judgment for his client.

https://www.lindjensen.com/brandon-meshbesher-and-bill-davidson-obtained-summary-judgment-in-a-defamation-case/

Congratulations to the 2024 Lind Jensen Sullivan & Peterson Super Lawyers - Lind Jensen Sullivan & Peterson 2024 Minnesota Super Lawyers: William L. Davidson, Appellate Mark A. Fredrickson, Personal Injury General Defense Thomas D. Jensen, Civil Litigation Defense Patrick J. Larkin, Construction Litigation Richard A. Lind, Civil Litigation Defense Timothy J O’Connor, Civil Litigation Defense Paul C. Pet...

On May 8, 2024, attorney Katie H. Storms presented at the Workers' Compensation Symposium, discussing the statutory updates during the 2023 and 2024 legislative sessions. Over the last two years, Ms. Storms has been working with the Minnesota Defense Lawyer's Association, the Department of Labor & Industry, and the Workers' Compensation Advisory Council to draft and propose changes to the Workers' Compensation Act for enactment and approval by Minnesota's Congress, the most recent of which was signed into law by Governor Walz on May 7, 2024.

For more information on the recent legislative changes or a copy of the PowerPoint presentation, please reach out directly to Ms. Storms at [email protected].

Tom Jensen, Bill Davidson, and Stuart Campbell recently obtained a complete victory from the Minnesota Court of Appeals. The appeal involved crossclaims between the defendants in a personal injury action, and addressed questions of law regarding statutory and common law indemnification when an allegedly negligent employee is protected from out-of-pocket loss by personal liability insurance.

The plaintiff alleged injuries stemming from a massage, and she named the involved massage therapist and chiropractic clinic as defendants. Lind, Jensen represented the clinic. Plaintiff’s claims were ultimately settled, and the defendants’ insurers paid their settlement sums. For her crossclaim, the therapist argued that her personal insurer must be reimbursed by the clinic for the settlement sum paid to plaintiffs because she was entitled to statutory indemnification as the clinic’s employee. The clinic argued that statutory indemnification was precluded because the therapist had been indemnified by her personal insurer, and the clinic responded with its own crossclaim for common law indemnification to be paid by the therapist’s insurer. The District Court entered summary judgment in favor of the clinic on both claims. The therapist appealed.

In a published opinion, the Minnesota Court of Appeals held that the applicable employee indemnification statute was Minn. Stat. § 302A.521, which requires an employer to provide indemnification when an employee “has not been indemnified by another organization.” The Court of Appeals affirmed and concluded that under the statute, a person who has been indemnified by personal insurance is not entitled to statutory indemnification because the insurer is “another organization.” The Court of Appeals further held that common law indemnification claims are only precluded when the requirements for statutory indemnification are met. The Court of Appeals determined that the requirements for statutory indemnification were not met because the therapist had been indemnified by her insurer. Because the therapist failed to establish a right to statutory indemnification, the Court of Appeals concluded the clinic’s crossclaim could proceed. The Court of Appeals affirmed the District Court.

Congratulations to our Super Lawyers!

2023 Minnesota Super Lawyers:
William L. Davidson, Appellate
Mark A. Fredrickson, Personal Injury General Defense
Thomas D. Jensen, Civil Litigation Defense
Patrick J. Larkin, Construction Litigation
Richard A. Lind, Civil Litigation Defense
Timothy J O'Connor, Civil Litigation Defense
Paul C. Peterson. Professional Liability Defense
Matthew D. Sloneker, Civil Litigation Defense
Eric J. Steinhoff, Civil Litigation Defense
Katie H. Storms, Workers' Compensation
Brian A. Wood, Personal Injury General Defense

2023 Minnesota Rising Stars
Brandon D. Meshbesher, Business Litigation

Eric Steinhoff, Matt Sloneker, and Brandon Meshbesher obtained a victory from the Wisconsin Court of Appeals. The case involved the alleged disclosure of personal financial information of the Plaintiff. The Plaintiff alleged that the information was posted on the Defendant’s website and initiated a lawsuit for invasion of privacy under Wisconsin law. The Circuit Court granted summary judgment in favor of Defendant, holding that the Plaintiff failed to satisfy the “publicity” element of her claim. Plaintiff appealed and the Court of Appeals affirmed in a unanimous decision.

Congratulations to attorneys Thomas Jensen and Lauren Hoglund for successfully obtaining a complete defense verdict for their client at a recent jury trial in Washington County District Court. Plaintiff alleged that the defendant chiropractor breached the standard of care by using excessive force in a chiropractic adjustment, which allegedly caused a vertebral artery dissection and led to a stroke. Plaintiff also claimed that the defendant chiropractors failed to give informed consent about the association between chiropractic adjustments and vertebral artery dissections. Defendants were found not negligent, with the jury confirming that the chiropractor did not act negligently in his care and treatment of Plaintiff and finding that vertebral artery dissections are not a significant risk of neck chiropractic adjustments.

This podcast highlights the history and success of Hmong American Farmers Association and Lind Jensen Sullivan & Peterson, P.A. partner Susan Stokes’ work with them. Susan is experienced at assisting nonprofit organizations and farmers in responding to some of the unique challenges they face. Susan’s insights begin at minute 24:08 of the podcast.

‎Love Takes Action: Hmong American Farmers Association, When Food is Medicine on Apple Podcasts ‎Show Love Takes Action, Ep Hmong American Farmers Association, When Food is Medicine - Jul 5, 2022

On June 1, 2022, Katie H. Storms became a Director, joining the equity partners at Lind, Jensen, Sullivan & Peterson, P.A. Ms. Storms graduated from the University of St. Thomas School of Law in 2006, and joined the firm as an associate in May 2015. She became a shareholder in January 2019, and focuses her practice on the defense of workers’ compensation and employment-related disputes. In addition to her legal practice, Ms. Storms mentors newer attorneys and law students, volunteers with multiple organizations, and enjoys spending time with her children and family. She also serves on the Board of Directors for the Minnesota Defense Lawyer’s Association, and is a regular speaker on a variety of topics including ethics, insurance coverage, and Medicare issues. Ms. Storms is licensed to practice in Minnesota and Wisconsin.

Brian Wood and Brandon Meshbesher successfully opposed a Petition for Review to the Wisconsin Supreme Court. The case involved an individual who was accused of posting Plaintiffs’ photographs, along with sexually suggestive and degrading captions about them, on a members-only fe**sh website. It was a consolidated appeal from two separate lawsuits brought by eight individual Plaintiffs. We represented the Defendant’s homeowners insurer and intervened in the lawsuits to contest coverage. The insured asserted his Fifth Amendment privilege against self-incrimination in response to discovery requests served on behalf of the insurer. In a published decision, Wisconsin Court of Appeals affirmed summary judgment in favor of the insurer in both cases, holding that the Defendant violated policy provisions requiring the insured to cooperate in the investigation and truthfully represent all material facts. Link v. Link, 972 N.W.2d 630 (Wis. Ct. App. 2022). The Defendant filed a Petition for Review with the Wisconsin Supreme Court and that petition was denied on May 18, 2022. Link v. Link is an important decision that further defines the rights and obligations of insurers and their insureds in the state of Wisconsin.

www.wicourts.g

On March 3, 2022 Brandon Meshbesher testified before the Minnesota Senate Civil Law Committee in support of S.F. No. 3066—a bill that would repeal a Minnesota statute commonly referred to as the “seat belt gag rule.” John Hausladen, President of the Minnesota Trucking Association, also testified in support of the bill. The seat belt gag rule prohibits the admission into evidence of the use, or failure to use, seat belts in motor vehicle accident cases involving personal injuries or property damage. Meshbesher testified the seat belt gag rule has outlived its original justifications and its continued existence harms litigants, undermines the truth seeking function of civil trials, and prevents Minnesota juries from hearing relevant evidence and making informed decisions. The bill received enough votes in the Civil Law Committee and will next be considered by the Minnesota Senate Judiciary Committee.

Please join the firm in congratulating Brandon Meshbesher in his recent victory concerning an insured's duty to cooperate with an investigation of a claim.

The case involved an individual who was accused of posting Plaintiffs’ photographs, along with sexually suggestive and degrading captions about them, on a members-only fe**sh website. It was a consolidated appeal from two separate lawsuits brought by eight individual Plaintiffs. We represented the Defendant’s homeowners insurer and intervened in the lawsuits to contest coverage. The insured asserted his Fifth Amendment privilege against self-incrimination in response to discovery requests served on behalf of the insurer. We then moved for summary judgment in both cases arguing that invoking the Fifth Amendment violated policy provisions requiring the insured to cooperate in the investigation and truthfully represent all material facts. Both motions were granted and the insured appealed. A three judge panel affirmed the trial courts’ in a unanimous decision. The panel also recommended that the decision for publication in the official reports. The decision contains important statements of law concerning an insured’s duty to cooperate with an insurer’s investigation of a claim or suit and to avoid concealing material information from the insurer.

Please join us for the return of the Sharpen Your Skills Seminar!

Members of our Workers' Compensation defense team we will be hosting a virtual seminar in a lunch and learn format. The first seminar will be held on March 3, 2022, from 12:00 PM to 1:15 PM.

In our program, "Trauma Center: Readiness for a Catastrophe," we will discuss what to do when traumatic events occur. We will provide pragmatic guidance to address catastrophic events confidently within a workers’ compensation context and in anticipation of litigation. We will share our own experiences responding to traumatic events including industrial accidents, work place shootings, the pandemic, and the Minneapolis I-35 bridge collapse.

1 hour of CE credit has been applied for.

Please RSVP to seminar at Lind Jensen Sullivan & Peterson - Sharpen Your Skills Seminar - https://www.lindjensen.com/skills/

If you have any questions, please do not hesitate to contact Molly de la Vega at [email protected]

Please also mark your calendars for a second seminar on May 12, 2022!

Copyright © 2022 Lind Jensen Sullivan & Peterson, P.A., All rights reserved.

COVID-19/CORONAVIRUS – RECENT DEVELOPMENTS REGARDING MANDATORY VACCINATION REQUIREMENTS FOR EMPLOYERS

A great deal of uncertainty has surrounded employers’ obligations under the OSHA “vaccine or testing” regulation (the “OSHA ETS”) and the Centers for Medicare and Medicaid Services (“CMS”) interim final rule (the “CMS IFR”) requiring certain health care providers to ensure that its employees are vaccinated for COVID-19. With two recent orders from the U.S. Supreme Court, some of that uncertainty has been removed.
The Supreme Court issued an order on January 13, 2022, staying enforcement of the OSHA ETS. This means that OSHA can no longer enforce the “vaccine or testing” regulation against employers with 100 or more employees (“Large Employers”) that was set to go into effect.

The same day, the Supreme Court issued a separate order upholding the CMS IFR. This means that the much smaller subset of Medicare or Medicaid-reimbursed employers will need to take steps to ensure that their employees are vaccinated for COVID-19 in a manner consistent with those regulations.

Employers who are not required to comply with a mandatory vaccination regulation are still entitled to develop and implement mandatory vaccination policies, subject to certain exceptions.

OSHA ETS REQUIREMENTS FOR EMPLOYERS WITH 100 OR MORE EMPLOYEES ARE STAYED AND LARGE EMPLOYERS ARE NOT REQUIRED TO MANDATE VACCINES OR REQUIRE TESTING FOR UNVACCINATED EMPLOYEES

On Thursday, January 13, 2022, the Supreme Court issued an order staying enforcement of the OSHA ETS, and sent the case back to the lower courts for further proceedings. This means, at least for the time being, that “Large Employers” who would have been subject to the OSHA ETS (employers with 100 or more employees), will not be subject to the “vaccine or test” requirements of the rule for the foreseeable future. Because the Supreme Court did not invalidate the OSHA ETS outright, it remains possible that the OSHA ETS may be upheld and enforced at some point in the future (or that other requirements will be formally adopted by the normal administrative rule-making process).

Minnesota Occupational Safety and Health Administration (“MNOSHA”) recently adopted the requirements of the federal OSHA ETS in its own rulemaking issued on January 3, 2022. Given the U.S. Supreme Court’s decision, MNOSHA has suspended enforcement of its requirements pending future developments. See MNOSHA Press Release.

EMPLOYERS OF MEDICAL PROVIDERS GOVERNED BY THE CENTERS FOR MEDICARE AND MEDICAID SERVICES REMAIN OBLIGATED TO MANDATE VACCINATIONS OF STAFF

For employers subject to the Centers for Medicare and Medicaid Services (“CMS”) Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (the “CMS IFR”), the Supreme Court issued a separate order on January 13, 2022, that upheld the regulation (by reversing a stay issued by a lower court that applied in some 25 states). On its website, CMS has issued guidance to those certain Medicare or Medicaid reimbursed employers in the healthcare industry who are subject to the CMS IFR (“Healthcare Employers”).

**Please note that the CMS guidance (the “Guidance”) was published on December 28, 2021, before the U.S. Supreme Court issued its order upholding the CMS IFR. The Guidance notes that certain states are not subject to the CMS IFR “at this time.” We believe CMS is now free to enforce its mandatory vaccination regulations in all states—and that this language no longer applies—given the U.S. Supreme Court’s decision upholding the CMS IFR.**

To assist Healthcare Employers in understanding the requirements of the CMS IFR, CMS published a PDF that contains general guidance to employers subject to the CMS IFR mandatory vaccination requirement. In summary, Healthcare Employers must ensure, within thirty (30) days following the date of the Guidance (i.e., January 27, 2022), that:

Policies and procedures are developed and implemented for ensuring that all facility staff, regardless of clinical responsibility or patient or resident contact are vaccinated for COVID-19; and

100% of staff have received at least one dose of COVID-19 vaccine, or have a pending request for, or have been granted qualifying exemption, or identified as having a temporary delay as recommended by the CDC, the facility is compliant under the rule;

or

Less than 100% of all staff have received at least one dose of COVID-19 vaccine, or have a pending request for, or have been granted a qualifying exemption, or identified as having a temporary delay as recommended by the CDC, the facility is non-compliant under the rule. The facility will receive notice of their non-compliance with the 100% standard. A facility that is above 80% and has a plan to achieve a 100% staff vaccination rate within 60 days would not be subject to additional enforcement action. States should work with their CMS location for cases that exceed these thresholds, yet pose a threat to patient health and safety. Facilities that do not meet these parameters could be subject to additional enforcement actions depending on the severity of the deficiency and the type of facility (e.g., plans of correction, civil monetary penalties, denial of payment, termination, etc.).

Healthcare Employers are subject to additional compliance requirements at both the sixty (60) day mark (i.e., February 26, 2022), and the ninety (90) day mark (i.e., March 28, 2022), which are detailed in the Guidance. In short, CMS has indicated that it intends to begin taking enforcement action against Healthcare Providers who are remain less than fully compliant with their employee vaccination obligations on March 28, 2022.
In addition, CMS also published PDFs that cover specific requirements for Healthcare Employers, depending on the particular CMS reimbursement program in which the employer participates, as follows:

Ambulatory surgical centers (42 C.F.R. § 416.51);
Hospice care providers (42 C.F.R. § 418.60); C
Inpatient psychiatric service providers (42 C.F.R. § 441.151);
Programs of all-inclusive care for the elderly (PACE) (42 C.F.R. § 460.74);
Hospitals (acute care hospitals, psychiatric hospitals, hospital swing beds, long term care hospitals, children's hospitals, transplant centers, cancer hospitals and rehabilitation hospitals/inpatient rehabilitation facilities) (42 C.F.R. § 482.42);
Long-term care facilities (including skilled nursing facilities and nursing facilities, generally called nursing homes) (42 C.F.R. § 483.80);
Intermediate care facilities for individuals with intellectual disabilities (42 C.F.R. §§ 483.430; 483.460);
Home health services (42 C.F.R. § 484.70);
Comprehensive outpatient rehabilitation facilities (42 C.F.R. §§ 485.58; 485.70);
Critical access hospitals (42 C.F.R. § 485.640);
Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services (42 C.F.R. § 485.725);
Community mental health centers (42 C.F.R. § 485.904);
Home infusion therapy suppliers (42 C.F.R. § 486.525);
Rural health clinics/federally qualified health centers (42 C.F.R. § 491.8); and,
End-stage renal disease facilities (42 C.F.R. § 494.30).

If your organization falls under one of these reimbursement programs, please review the CMS guidance specific to your organization for more information about your specific compliance obligations. If you have questions about your organization’s obligations arising under the CMS IFR, one of the attorneys on the employment team at Lind, Jensen, Sullivan & Peterson, P.A. would be happy to assist you.

EMPLOYERS REMAIN FREE TO IMPLEMENT THEIR OWN MANDATORY VACCINATION OR TESTING POLICIES, SUBJECT TO POSSIBLE MEDICAL OR RELIGIOUS EXEMPTIONS

Although Large Employers not subject to the CMS IFR will not be required by law to ensure their employees are either vaccinated or tested weekly, all employers – regardless of size – remain free to develop and implement policies requiring employees to be fully vaccinated as a condition of their employment. Such policies must contain processes for considering requests for exemptions from the mandatory vaccination requirement on the basis of the employee’s medical history, disability status, or sincerely-held religious belief.

If you have any employment or other questions regarding the ongoing COVID-19 pandemic as it relates to your employees, please do not hesitate to contact our employment team at Lind Jensen Sullivan & Peterson, P.A. by email or phone at (612) 333-3637.

Bill Davidson – [email protected]
(612) 746-0147
Susan Stokes – [email protected]
(612) 746-0104
Pat Larkin – [email protected]
(612) 746-0154
Ryan Myers – [email protected]
(612) 746-0157
Molly de la Vega – [email protected]
(612) 746-0174

MINNESOTA WORK COMP PRESUMPTION FOR COVID ENDED DECEMBER 31, 2021

This news blast is to remind you that the presumption applicable to COVID and Minnesota workers’ compensation law ended at 11:59 PM on December 31, 2021.

We have previously issued announcements concerning the COVID presumption as contained in Minn. Stat. §176.011, Subd. 15(f). Please check our website for more information.

The presumption that took effect in April 2020, has now ended.

For injury dates from April, 2020, through the end of 2021, an employee is covered by the presumption if that employee worked in one of the listed categories of employment:

Peace officer as defined by Minn. Stat. §626.64, Subd. 1;
Firefighter;
Paramedic;
Nurse,
Health care worker,
Corrections officer or security counselor employed by the state or a political subdivision at a corrections, detention or secure treatment facility;
Emergency medical technician;
Health care provider,
Nurse or assistive employee employed in a health care,
Home care or long-term care setting with direct COVID-19 patient care or ancillary work in COVID-19 patient unit;
Workers required to provide child care to first responders and healthcare workers under Executive Order 20–02, and Executive Order 20–19

The employee’s COVID-19 must be confirmed by a positive laboratory test, or if a laboratory test was not available, the employee was diagnosed by a licensed physician, licensed physician assistant, or a licensed advanced practice registered nurse based on employee’s symptoms. A copy of the positive laboratory test or the written diagnosis of the clinician shall be provided to the employer or insurer.

If the statutory provision is satisfied, the employee is presumed to have a compensable occupational disease, unless the presumption is rebutted by the employer or insurer by showing the employment was not a direct cause of the disease. The burden of proof shifts to the defense.

REMAINING MORE LIMITED PRESUMPTION

Because the COVID specific presumption is no longer available for dates of injury after December 31, 2021, an employee may potentially raise a presumption that remains in the statute regarding infectious and communicable disease.

The infectious disease presumption is contained in Minn. Stat. §176.011, Subd. 15 (b). This applies only to certain, listed occupations. It covers employees who contract an infectious or communicable disease in the course and scope of employment, outside of a hospital. If the provisions of this infectious or communicable disease presumption are met, then the injury is compensable unless the employer rebuts the presumption by showing substantial factors. Any substantial factors used to rebut the presumption that are known to the employer and insurer at the time of denial shall be communicated to the employee in that denial of liability.

SUMMARY

Please reach out to us to discuss COVID claims – whether before or after the effective dates of the presumption. Minnesota’s occupational disease statute provides that in general, ordinary diseases of life (note that “ordinary” does not mean the disease isn’t potentially severe or dangerous), such as COVID-19 are not compensable. A disease arises out of employment only if there is a direct, causal connection between the disease and conditions of the work, and the occupational disease is a result of exposure occasioned by the employment. An employer is not liable for compensation for an occupational disease that cannot be traced to the employment as a direct and proximate cause, or for an injury that results from a hazard to which the employee would have been equally exposed outside of employment. Minn. Stat. §176.011, Subd. 15, generally.

These situations require substantial case-by-case analysis at the time compensability is determined, and we look forward to working with you and answering your questions.

Timothy P. Jung - [email protected]
Mark A. Fredrickson - [email protected]
Katie H. Storms - [email protected]
Molly H. de la Vega - [email protected]

Lind Jensen Sullivan & Peterson Attorneys at Law

Congratulations to attorneys Thomas Jensen, Lauren Hoglund and Paralegal Elizabeth Morris for successfully obtaining a complete defense verdict for their client at a recent jury trial in Dakota County District Court. Plaintiff alleged that the defendant chiropractor breached the standard of care by failing to diagnose, and continuing to treat with chiropractic adjustment, Plaintiff’s cervical region that included a herniated disc. Defendants were found not negligent, with the jury confirming that the chiropractor did not breach the standard of care or act negligently in his care and treatment of Plaintiff.

Brandon Meshbesher has been appointed to the Minnesota State Bar Association’s (MSBA) Court Rules and Administration Committee. Committee members are appointed by the MSBA President and have diverse backgrounds with respect to type of practice, practice area, geographic location, and years in practice. The purpose of the committee is to study and recommend changes or comments in matters of court rules, administration, or policies in any subject area except those covered by the Professional Regulation Committee. The Court Rules and Administration Committee also makes recommendations to the MSBA President regarding MSBA nominees to the Supreme Court Advisory Committees on Rules.

At the MDLA's 2021 Trial Techniques Seminar, Lind Jensen Sullivan & Peterson, P.A. was given the Community Service award for collecting the most school supplies on behalf of children in Minnesota schools. In addition to epic bragging rights for the next year, firm members at the conference were awarded the trophy, pictured below, which will be displayed proudly in the firm for years to come.