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Brian Wood and Brandon Meshbesher Successfully Opposed a Petition for Review to the Wisconsin Supreme Court

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 fetish 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. Link v Link_Published

Lind Jensen Sullivan & Peterson P.A. is a proud sponsor of the 2022 Federated Challenge. #federatedchallenge

Lind Jensen Sullivan & Peterson P.A. is proud to stand alongside sponsors from across the country to defend, empower, and ignite potential in our nation’s youth. Imagine the possibilities. #federatedchallenge

 Imagine the possibilities — we did. 

Brandon Meshbesher Testified Before the Minnesota Senate Civil Law Committee

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 us in Congratulating Brandon Meshbesher and Brian Wood in a Recent Victory at the Wisconsin Court of Appeals

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 fetish 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. WI Court of Appeals Decision

MINNESOTA WORK COMP COVID PRESUMPTION RETURNS

We’ve previously reported on a causation presumption applicable to COVID-19 and Minnesota Workers’ Compensation Law that was enacted in April of 2020.  The law contained a “sunset date” and ended at 11:59 PM on December 31, 2021.  By action of the legislature and Governor, the presumption has now returned.  Minn. Stat. 176.011 subd 15(f) has been revived and reenacted.

On February 4, 2022, Governor Walz signed into law H.F. 1203 which extends workers’ compensation benefits to certain frontline workers who contract COVID-19, by way of a rebuttable presumption.  The action reinstates the previous presumption applicable only to the listed occupations, and covers dates of injury beginning on the date of enactment through January 13, 2023.

Employees with dates of injury occurring from January 1, 2022, until the law was revived and went into effect are not entitled to the presumption.

If you have questions regarding COVID cases and workers’ compensation, whether within or outside the reach of the presumption, please contact us.  We are happy to assist you.

Timothy P. Jung – timothy.jung@lindjensen.com
Mark A. Fredrickson – mark.fredrickson@lindjensen.com
Katie H. Storms – katie.storms@lindjensen.com
Molly H. de la Vega – molly.delavega@lindjensen.com

 

Eric Steinhoff and Patrick Larkin obtained a full defense verdict in a gas explosion case.  The case was tried over six full days in Swift County (Benson, Minnesota).  Plaintiffs claimed that the firm’s client was negligent in providing furnace installation and furnace maintenance services and that such negligence caused the explosion which severely burned the Plaintiff.  Plaintiff and his wife sought roughly $14 million in damages but the jury awarded $0.00 for all areas of claimed damages.  One of the main disputes in the damages aspect of the case was Plaintiff claimed a large loss of earning capacity claim even though he had returned to work and testified in court that his self-owed farming business was  earning more money now than it ever had.  The jury denounced Plaintiffs’ claims for liability and Plaintiffs’ claim for exaggerated damages in their entirety.

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:

  1. Ambulatory surgical centers (42 C.F.R. § 416.51);
  2. Hospice care providers (42 C.F.R. § 418.60); C
  3. Inpatient psychiatric service providers (42 C.F.R. § 441.151);
  4. Programs of all-inclusive care for the elderly (PACE) (42 C.F.R. § 460.74);
  5. 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);
  6. Long-term care facilities (including skilled nursing facilities and nursing facilities, generally called nursing homes) (42 C.F.R. § 483.80);
  7. Intermediate care facilities for individuals with intellectual disabilities (42 C.F.R. §§ 483.430; 483.460);
  8. Home health services (42 C.F.R. § 484.70);
  9. Comprehensive outpatient rehabilitation facilities (42 C.F.R. §§ 485.58; 485.70);
  10. Critical access hospitals (42 C.F.R. § 485.640);
  11. Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services (42 C.F.R. § 485.725);
  12. Community mental health centers (42 C.F.R. § 485.904);
  13. Home infusion therapy suppliers (42 C.F.R. § 486.525);
  14. Rural health clinics/federally qualified health centers (42 C.F.R. § 491.8); and,
  15. 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 – Bill.Davidson@lindjensen.com
(612) 746-0147

Susan Stokes – Susan.Stokes@lindjensen.com
(612) 746-0104

Pat Larkin – Pat.Larkin@lindjensen.com
(612) 746-0154

Ryan Myers – Ryan.Myers@lindjensen.com
(612) 746-0157

Molly de la Vega – Molly.delaVega@lindjensen.com
(612) 746-0174

 

Minnesota Work Comp Presumption For COVID-19 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 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 – timothy.jung@lindjensen.com
Mark A. Fredrickson – mark.fredrickson@lindjensen.com
Katie H. Storms – katie.storms@lindjensen.com
Molly H. de la Vega – molly.delavega@lindjensen.com

https://www.lindjensen.com

Congratulations to Attorneys Thomas Jensen, Lauren Hoglund and Paralegal Elizabeth Morris

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.

Paul Peterson and Matt Sloneker obtained the dismissal of a federal lawsuit alleging civil rights violations and other claims against a Tribal Court-appointed guardian ad litem

Paul Peterson and Matt Sloneker obtained the dismissal of a federal lawsuit alleging civil rights violations and other claims against a Tribal Court-appointed guardian ad litem.  The court found that guardians ad litem are entitled to absolute quasi-judicial immunity for the performance of their court-appointed duties, and dismissed all claims.

 

Breaking News – Minnesota Supreme Court Work Comp Case on Medical Cannabis

WORK COMP MEDICAL CANNABIS AWARD PREEMPTED BY FEDERAL LAW

 

On October 13, 2021, the Minnesota Supreme Court issued a decision in the case, Musta v. Mendota Heights Dental Center, overturning an award of medical cannabis to an injured employee.  (note there was a companion case with the same result on the same day, Bierbach v. Digger’s Polaris).
 
The Court determined the Federal Controlled Substances Act, which makes possession of cannabis a federal crime, preempts provisions in the Minnesota Workers’ Compensation Act that make an employer liable for an injured employee’s cost of medical cannabis, regardless of whether the use of cannabis is reasonable and necessary.
 
After a long discussion of jurisdiction, the Minnesota Supreme Court ruled that federal law and state law are in conflict. It would be impossible for a Minnesota employer to comply with both state and federal law. Therefore, the compensation judge’s Order to reimburse medical cannabis expenses is preempted by the Controlled Substances Act. The Court explained that the state order to pay or reimburse cannabis could make the employer criminally liable for aiding and abetting the possession of cannabis under federal law.
 
Until that conflict is resolved by future legislation, an employer is not required to reimburse an injured employee’s claim for medical cannabis under the Minnesota Workers’ Compensation Act.
 
In response to any claim for medical cannabis, an employer or insurer could reasonably provide the following response:
 
Pursuant to the Minnesota Supreme Court decision of Musta v. Mendota Heights Dental Center, filed October 13, 2021, the Controlled Substances Act, 21 USC Section 801–971 preempts any Minnesota workers’ compensation provision or order allowing medical cannabis, including Minn. Stat. §176.135, Subd. 1.  Based upon the ruling of the Minnesota Supreme Court, medical cannabis is not payable due to federal preemption, whether or not the treatment might be reasonable and necessary.
 
While an employer or insurer cannot be required to pay for cannabis, nothing prohibits an employer who wants to resolve a claim to offer a lump sum settlement that employee may choose to use for various medical options, including cannabis, in exchange for closing out certain claims.
 
Please contact our office to discuss any claim for medical cannabis in the workers’ compensation system, or if you have questions regarding the scope of this decision.  We are happy to assist you.

Timothy P. Jung – timothy.jung@lindjensen.com
Mark A. Fredrickson – mark.fredrickson@lindjensen.com
Katie H. Storms – katie.storms@lindjensen.com
Molly H. de la Vega – molly.delavega@lindjensen.com

https://www.lindjensen.com/

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Congratulations to Brandon Meshbesher who was appointed to the MSBA’s Court Rules and Administration Committee

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.

New Associate Lauren M. Hoglund Joins Lind Jensen Sullivan & Peterson

Lind Jensen Sullivan & Peterson is pleased to welcome new associate Lauren M. Hoglund to the Firm.

Lauren focuses her practice on advising and defending clients in complex litigation in a variety of industries, including insurance defense, medical malpractice and employment law. She received her undergraduate degree from the University of St. Thomas and her Juris Doctor from Mitchell Hamline College of Law.

After graduating from law school, Lauren served as a law clerk for the Honorable David C. Higgs in Minnesota’s Second Judicial District. Then, she clerked for the Honorable Peter Reyes, Tracy Smith, and Randall Slieter at the Minnesota Court of Appeals.

Lauren also has experience in general commercial litigation and has represented clients in a variety of business disputes.

 

Shareholder Katie H. Storms sworn into the State Bar of Wisconsin

On July 19, 2021, shareholder Katie H. Storms was sworn into the State Bar of Wisconsin. Please join us in congratulating her on this accomplishment. She joins several other members of our firm, also licensed to practice in the Badger State.
Lind Jensen Sullivan & Peterson, P.A., has also has attorneys licensed to practice law in Illinois, Iowa, North Dakota, South Dakota, and Michigan. We pride ourselves on being a boutique law firm, centrally located in the Upper Midwest, and able to deploy our lawyers to all areas outside of Minnesota’s borders.

Timothy Jung is editor of the Workers’ Compensation chapter of the Minnesota Insurance Law Deskbook

Timothy Jung is editor of the Workers’ Compensation chapter of the Minnesota Insurance Law Deskbook.  He recently drafted an update for 2021, and that update has now been published and is available at Minnesota Continuing Legal Education. Minnesota State Board of Continuing Legal Education | (mn.gov)

Congratulations to the Lind Jensen Sullivan & Peterson 2021 Super Lawyers

2021 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

Paul C. Peterson. Professional Liability Defense – Top 100

Matthew D. Sloneker, Civil Litigation Defense

Eric J. Steinhoff, Civil Litigation Defense

Brian A. Wood, Personal Injury General Defense

2021 Minnesota Rising Stars:

Ryan P. Myers, Employment and Labor

Timothy Jung, Molly de la Vega, and João Medeiros Secured for the Firm’s Client ISD 912 a Favorable Result in a Decision by the Minnesota Supreme Court

Timothy Jung, Molly de la Vega, and João Medeiros secured for the firm’s client a favorable result in a decision by the Minnesota Supreme Court, published April 28th.  In Leuthard v. Independent School District 912 – Milaca, the Minnesota Supreme Court reversed the WCCA and reinstated the compensation judge’s Findings and Order denying certain treatment as outside applicable treatment parameters and not reasonable and necessary.  This decision preserves the value of Minnesota’s workers’ compensation treatment parameters made effective in 1995.  It also supports the key role of the fact finder and reaffirms the long-recognized limited review of the Worker’s Compensation Court of Appeals regarding questions of fact.

A copy of the decision can be found at the Supreme Court website:  OPA200893-042821.pdf (mncourts.gov)

Happy 30th Anniversary Lind Jensen Sullivan & Peterson P.A.

On a Friday morning on March 15, 1991 heading into a St. Patrick’s Day holiday weekend, a light went on in an office on the 39th floor of the IDS Tower, and Rick Lind, Tom Jensen, and Ted Sullivan officially opened Lind, Jensen & Sullivan, PA for business.  Beth Morris and Tim O’Connor joined them soon thereafter, with Paul Peterson and yours truly making it in the door not too long before an incredible one-year anniversary party. The firm was small, but the attitude was big.  A little irreverent and a bit pugnacious some might say.  The lobby reading materials definitely included Rolling Stone, the firm beer was Rolling Rock, and the firm’s phone number (then and now) spelled “defends.”

 

A few things have changed along the way since Rick and Tom founded the firm (and you can make, and keep, your own lists and jokes to yourself), but the goals of zealous advocacy, great effort, an adventurous spirt, and teamwork remain.

 

Today, exactly 30 years later, please take some time to celebrate the firm’s anniversary. While the pandemic might keep us from gathering to celebrate as we’d prefer, in your own way, raise a glass, and share good cheer and well wishes to everyone for their contributions to the firm’s 30 years of success.  And thanks to everyone here for those contributions.

 

Bill

Recent Workers’ Compensation Laws Regarding the Covid-19 Vaccine

Workers’ Compensation Laws Regarding Covid -19 Vaccine

Timothy P. Jung – timothy.jung@lindjensen.com

Mark A. Fredrickson – mark.fredrickson@lindjensen.com

Katie H. Storms – katie.storms@lindjensen.com

Molly H. de la Vega – molly.delavega@lindjensen.com

 

Timothy Jung presented a program entitled “The Anatomy of a Workers’ Compensation Trial”

Timothy Jung presented this program at the March 10, 2021 Safety Council meeting of the Minnesota Trucking Association.

Michael Burke and Brandon Meshbesher Recent Publication in Bench & Bar MN

Michael Burke and Brandon Meshbesher recently published an article in Bench & Bar MN Magazine titled, Click it or Zip it: It’s Time to Rethink the Seat-belt Gag Rule, BENCH & BAR MINN. (Jan. 4, 2021), available at  https://www.mnbar.org/resources/publications/bench-bar/articles/2021/01/04/click-it-or-zip-it-it-s-time-to-rethink-the-seat-belt-gag-rule

After 16 years with LJSP, Jack Moore has Decided to Retire……

Jack plans to spend time continuing tutoring elementary school kids in the Minneapolis Public Schools in reading. He also looks forward to improving his tennis serve and reducing his golf slice. Once the pandemic ends he looks forward to traveling with his wife Reg, and spending time with his two daughters.

Updated Guidance Relating to an Employer’s Potential Right to Require Employee Vaccinations

On December 16, the Equal Employment Opportunity Commission issued updated guidance relating to an employer’s potential right to require employee vaccinations.  Attached is an update Lind, Jensen, Sullivan & Peterson prepared discussing the EEOC’s newest guidance and other considerations as employers evaluate whether they can, or should, mandate employees to get a Covid-19 vaccination. COVID-19 Guidance re Vaccinations – Employer Update

Timothy Jung addresses an Important Doctrine of MN Workers’ Comp Law to the MN Supreme Court

On December 7th Timothy Jung presented arguments to the Minnesota Supreme Court on behalf of a self-insured client.  The case addressed an important doctrine of Minnesota Workers’ Compensation law, including the evaluation of reasonable and necessary medical care and application of treatment parameters made effective in 1995.

Jason Prochnow & Ryan Myers helped a WI Municipality obtain a Finding of No Probable Cause of Discrimination in response to alleged Age Related Discrimination Claims following an employee discharge.

Jason Prochnow & Ryan Myers helped a WI Municipality obtain a Finding of No Probable Cause of Discrimination in response to alleged Age Related Discrimination Claims following an employee discharge.

December 4th 2020 Timothy Jung will be presenting at the 2020 Workers’ Compensation Deskbook Seminar

On December 4th Timothy Jung will be presenting at the 2020 Workers’ Compensation Deskbook Seminar.  Tim will be leading a panel discussion regarding legal presumptions in occupational disease cases.  These presumptions may apply, depending on a number of factors, to certain listed occupations involving heart disease, cancer, infectious disease, COVID-19 and Post Traumatic Stress Disorder.  The online live program is December 4th with an online replay January 15th.

Mark Fredrickson and Michael Burke Obtain Summary Judgment in Nerf War Wrongful Death Lawsuit

Attorneys Mark Fredrickson and Michael Burke successfully defeated wrongful-death claims alleging that a school district breached its duty to supervise and warn students and parents about a non-school sanctioned game called “Nerf Wars.”  The lawsuit further alleged that the school district failed to execute or adopt anti-Nerf War policies or train on-campus adults to monitor students.  The decedents were involved in an off-campus car accident after school let out for the day.  In dismissing the case with prejudice, the court found that the school district was entitled to immunity and that the plaintiffs failed to establish a duty of care.  It was a case that received much media attention.  Discovery was extensive as the case lasted nearly three years.  The parties conducted over twenty-five depositions in that time, and every judge in the First Judicial District recused themselves, which required intervention by the Minnesota Supreme Court to appoint a judge in Tenth Judicial District to hear the case. Flynn et al. v. Indep. Sch. Dist. 194, 19HA-CV-18-728 (Oct. 15, 2020).

Eric Steinhoff and Michael Burke Obtain Summary Judgment in Land Dispute Matter in Wisconsin

Attorneys Eric Steinhoff and Michael Burke successfully defeated claims for breach of easement, trespass, and statutory violations of Wis. Stat. §§ 182.017(5) and 26.09.  In dismissing the case with prejudice, the Douglas County (Wisconsin) Circuit Court Judge found that Plaintiff failed to put forth evidence that he owned to the center line of the roadway as opposed to the public right-of-way.  Boad S. Swanson v. CenturyTel of Northwest Wisconsin, LLC, 2019CV112 (Wis. Cir. Ct. Nov. 4, 2020).

Attorneys Katie H. Storms and João C.J.G. Medeiros prepared an amicus brief to the Minnesota Supreme Court on behalf of the Minnesota Defense Lawyer’s Association (MDLA).

Attorneys Katie H. Storms and João C.J.G. Medeiros prepared an amicus brief to the Minnesota Supreme Court on behalf of the Minnesota Defense Lawyer’s Association (MDLA).  The Minnesota Supreme Court issued its opinion on August 12, 2020, fully affirming the position of the Respondent and amicus.  Specifically, the Court held that a health care provider who voluntarily declines to intervene in a pending workers’ compensation proceeding after receiving timely and adequate notice of the right to intervene cannot initiate a collateral attack on the compensation award under statute.  A link to the full decision can be found here: Article

Congratulations to the Lind Jensen Sullivan & Peterson 2020 Super Lawyers

2020 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

Jack D. Moore, 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

Brian A. Wood, Personal Injury General Defense

2020 Minnesota Rising Stars:

Michael T. Burke, Business Litigation

João C.J.G. de Medeiros, Appellate

Ryan P. Myers, Employment and Labor

Patrick Larkin, Brandon Meshbesher, Eric Steinhoff, and Rick Lind Published in July Issue of Bench & Bar Minnesota

Patrick Larkin, Brandon Meshbesher, Eric Steinhoff, and Rick Lind authored an article titled The Business Interruption Pandemic
Claims for business interruption loss coverage in the wake of covid-19, which is featured in the July 2020 issue of Bench and Bar Minnesota.

Article

Congratulations Ryan Myers

A huge congratulations to Ryan Myers for being promoted to Shareholder at Lind Jensen Sullivan & Peterson P.A.

Congratulations Molly de la Vega

A huge congratulations to Molly de la Vega for being promoted to Shareholder at Lind Jensen Sullivan & Peterson P.A.

Lind Jensen Sullivan and Peterson Welcomes

Lind Jensen Sullivan and Peterson welcome; Shareholders Ryan C. Ellis, Jennifer M. Waterworth, Paralegals Nicole Kvarnlov, Kathy Mullholland, and Legal Assistant Kimberly McKenzie.  All are joining the firm from Gislason and Hunter LLP.

Attorney Michael Burke Obtains Summary Judgment for Client

Attorney Michael Burke obtained an order dismissing negligence-based claims against a general contractor.  The Plaintiff alleged that the general contractor’s duty of care extended to areas beyond the construction zone.  In dismissing the case, the court found that Plaintiff failed to put forth evidence necessary to support his claims and reaffirmed that a construction company’s duty of care does not include areas beyond the construction zone.  Johnson v. Mathiowetz Constr. Co., Court File No. 74-CV-19-1044 (Apr. 2, 2020).

Attorney Michael Burke published in Minnesota Defense

Michael Burke authored an article titled Practical and Ethical Pitfalls of Audio Recording Neuropsychological Examinations, which is featured in the Winter 2020 issue of Minnesota Defense magazine. The article addresses the mechanics of obtaining an order for examination and provides guidance for combating situations in which an injured party objects to undergoing a neuropsychological IME absent an audio recording. https://cdn.ymaws.com/www.mdla.org/resource/resmgr/media/MDLA-Magazine-Winter-2020.pdf

 

Attorney Michael Burke published in the Journal of the American College of Construction Lawyers.

Michael Burke has co-authored an article titled The Advocacy Preferences of Construction Arbitrators, which is featured in the Winter 2020 issue of the Journal of the American College of Construction Lawyers.  The article surveys 231 experienced construction arbitrators throughout the United States in order to uncover what advocacy techniques arbitrators find to be persuasive, and similarly, what techniques arbitrators find to be unpersuasive.  As the editor’s note states, “this analysis looks into actual preferences of established arbitrators,” and is an “example of original and timely research on a matter of great importance.”

 

Patrick Larkin and Michael Burke Obtain Summary Judgment for Client

Attorneys Patrick Larkin and Michael Burke obtained an order from the court dismissing with prejudice all claims made under the Family Medical Leave Act and the Minnesota’s Whistleblower Act. Olinger v. Renville Cty. Hosp. & Clinics, 2019 WL 5901379 (D. Minn. Nov. 12, 2019) (ECT/TNL).

Brian Wood and Michael Burke Obtain Summary Judgment for Client

Attorneys Brian Wood and Michael Burke obtained an order from the court dismissing with prejudice a more than quarter-million dollar contribution and indemnity claim pertaining to a damaged wind turbine. Juhl Energy, Inc. v. G. NcNeilus, LLC et al., Dodge Court File No. 20-CV-18-146 (Oct. 29, 2019).

Associate Nicholas Rauch Article Titled ‘Counteranchoring: An Important Thought Before Trial’ Published in the Latest Version of DRI The Voice

Nicholas Rauch has an article titled ‘Counteranchoring: An Important Thought Before Trial’ that was published in the DRI The Voice see attached article.http://www.dri.org/docs/default-source/webdocs/the-voice/2019/voice_11_20_19.pdf?sfvrsn=2

Shareholder Susan Stokes Speaking at the U of M Law School Today

Susan Stokes will be part of a panel today at the University of Minnesota Law School, speaking about careers in environmental and energy law. See Facebook link below: https://www.facebook.com/umneels/

Brian Wood and Nicholas Rauch Granted Summary Judgement

Attorneys Brian Wood and Nicholas Rauch were granted summary judgment on products liability claims against a firearm manufacturer. The Court ruled that Plaintiff failed to evidence a defect to support claims for products liability and failed to disclose an expert who would opine to the alleged mechanical defect in the firearm. The Court also ruled that Plaintiff had failed to adequately support claims for abnormally dangerous activity, stemming from the manufacturing and distribution of the firearm. All claims against the firearm manufacturer were dismissed with prejudice. Carnea Roberson v. STI International & Bill’s Gun Shop; 62-CV-19-79 (Nov. 12, 2019; Ramsey Cty.)

Jack Moore and Nicholas Rauch Granted Favorable Judgements

Attorneys Jack Moore and Nicholas Rauch were granted summary judgment on landowner liability claims against an apartment complex. The Court ruled that the apartment complex did not have a duty to maintain an adjacent lot, which contained an injury causing condition. All claims against the apartment complex were dismissed, with prejudice. AWK, a minor, by his father and natural guardian of Travis Klein v. Robert Hanson and Steven Mahacek; 19HA-CV-19-1970 (Nov. 12, 2019; Dakota Cty.)

Shareholder Timothy Jung Presented At Federated Insurance

On October 22nd Timothy Jung presented an educational program at Federated Insurance in Owatonna, MN on the subject of PTSD claims and traumatic brain injuries.

 

There are Still Spots Open for Today’s Sharpen Your Skills Workers’ Compensation Seminar

Winter is here, but there are still a few spots available for Thursday’s (9/26) workers’ compensation Sharpen Your Skills seminar!

Food, drink, and parking are provided.

We hope to see you there.
2019 Seminar Topics

  • Law of the New Realm – One Year In
  • Arising Out Of, Mythical/Magical Falls, and Unexplained Injuries
  • Queen of Forms
  • Cannabis: The Ale of the Twenty-First Century
  • Dr. Kristin Zeller: Words from the Maester An Update on Pain, Drugs, and Opioids

September 26, 2019
12:00 p.m. until 5:00 p.m.
Orchestra Hall
1111 Nicollett Mall
Minneapolis, MN
55402

Susan Stokes Presenting at Women Caring for the Land Seminar on September 26th

Shareholder Susan Stokes will be presenting ‘Conservation Provisions in Agricultural Leases’ at Women Caring for the Land event tomorrow.  See attached information WOMEN CARING FOR THE LANDAgendaStillwater2019Sept26     WomenCaring2019Sept26

Shareholder Tom Jensen Presents at the 10th Annual Meeting of the PLDF on Sept 26th in Chicago

Tom Jensen’s memorandum on “Defense of Opioid Malpractice and Board Discipline Complaints” supporting his presentation to the 10th Annual Meeting of Professional Liability Defense Federation on September 26, 2019 in Chicago, is available here Opioid Materials – 2019

 

Lind Jensen Sullivan & Peterson Welcomes Shareholder Susan Stokes

Susan has experience in a broad range of practice areas, including employment law, administrative law, and agricultural law. She recently served as Assistant Commissioner at the Minnesota Department of Agriculture, where she oversaw the agency’s regulatory work. Susan is admitted to practice before the state and federal courts of Minnesota, the Eighth Circuit Court of Appeals, and the United States Supreme Court.

New Associate Ryan P. Torpey Joins Lind Jensen Sullivan & Peterson

Lind Jensen Sullivan & Peterson is pleased to welcome new associate Ryan P. Torpey to the Firm. Ryan practices civil litigation, primarily in the areas of professional liability and insurance defense. Before joining the firm, Ryan was a law clerk to the Hon. Bruce A. Peterson of the Minnesota Fourth Judicial District. There, he drafted court orders in a variety of civil matters, including malpractice, contract and insurance law. Ryan received his J.D. from the University of Minnesota Law School, and his B.A. with high distinction from the University of Minnesota.

Tom Jensen Presented at the RAM Mutual Claims Department

Tom Jensen presented “Defense of First- and Third-Party Bad Faith Claims” to the RAM Mutual Claims Department on July 19, 2019.