WORKERS= COMPENSATION - FALL SEMESTER 2002

Coelman and Kieselbach

WORKERS= COMPENSATION - FALL SEMESTER 2002

FINAL EXAMINATION

1. 2.5 Hour Bluebook Exam

2. The following materials can be utilized in the examination:

A) MN Workers= Compensation Statute (green covered materials);

B) Hand-out concerning compensation rates, benefit adjustments, PPD schedules, supplementary benefits, etc.; and

C) Calculator.

3. Please use separate Bluebooks for questions 1 through 2 and for questions 3 through 4.

WORKERS= COMPENSATION - FALL SEMESTER 2002

FINAL EXAMINATION

QUESTION NO. 1: (25 points/37.5 minutes)

Kullas Construction Company was a general contractor on a commercial building construction project. They had entered into a subcontract with Bohn Construction Company to provide laborers and concrete workers.

Kullas was operating under severe time constraints and had to complete the project by August 30, 1999, in order to avoid contractual penalties of $25,000.00 per day.

Jimmy Malloy was a long time laborer with Bohn Construction Company who was working on the project. Jimmy was a professional boxer and he obtained an opportunity for a fight in Las Vegas that would pay him $400,000.00. He took the fight on three week=s notice and immediately quit his job. He sent his brother, Terry Malloy, down to report for work on June 28, 1999. Terry indicated he was reporting with the intention of filling in for his brother. The supervisor from Bohn Construction okayed the substitution. Terry was working as a general construction laborer and did a little bit of concrete work.

Terry was injured on the job on July 11, 1999. Terry was working with a Kullas Employee setting up construction scaffolding. They were using the same tools and were coordinating their efforts together.

The Kullas Employee asked Terry to use a front-end loader at the other end of the construction site to bring over materials for the construction of scaffolding which was also at the far end of the site. It should be noted that Terry had never received any training in the operation of heavy equipment. He did not even have a driver=s license. He had been specifically instructed by his supervisor at Bohn not to operate heavy equipment, although he had done so on numerous occasions prior to his injury date.

Terry went and got in the front-end loader and picked up the scaffolding materials. While heading back to the area where the scaffolding was being constructed, he struck the side of the building with the front-end loader, which caused several beams to fall, one of which struck Terry in the head and knocked him from the front-end loader and severely injured him.

While being treated at the hospital, blood tests were administered which revealed that Terry had a blood alcohol level of .27. Previous medical records later obtained showed that Terry was a chronic alcoholic. Both Bohn and Kullas employees gave statements indicating that on the day of the accident, Terry=s speech was slurred, his eyes blood shot, he reeked of alcohol, and he appeared unsteady on his feet. He was observed to have tripped and fallen on one occasion.

While in the hospital, Terry, who had been an aspiring, but failed professional boxer in his own right, blurted out that he crashed the front-end loader into the building intentionally because he wanted to kill himself. He was despondent over the fact that his brother was getting a title shot and his ring career was an abysmal failure. He screamed repeatedly AI could have been somebody!@

Bohn was uninsured for workers= compensation liability at the time of the injury.

Discuss and analyze the issues, potential claims and remedies, and defenses thereto.

QUESTION NO. 2: (25 points/37.5 minutes)

Butch Nash worked in a foundry as a stone mason. In an industrial accident on the job on June 8, 1997, Mr. Nash suffered severe injuries to his low back and leg. He ultimately was given an 18% whole body permanency rating for the low back and a 15% whole body permanency rating to his leg.

Mr. Nash=s date of injury wage was $900.00 per week.

Mr. Nash was on temporary total disability benefits for six months from June 8, 1997, to January 8, 1998.

Mr. Nash then enrolled in an Employer approved retraining program to become a CAD operator (Computer Assisted Draftsman). This program ran for two years from January 10, 1998, through January 10, 2000. During this time, Mr. Nash received 104 weeks of retraining benefits.

Upon completion of retraining on January 10, 2000, the Employee continued to collect temporary total disability benefits from January 11, 2000, through March 1, 2000.

On March 1, 2000, Mr. Nash started a new job as a CAD operator in Minneapolis. His starting wage was $600.00 per week. Pursuant to his employment agreement, his salary increased to $800.00 per week after completion of six months probation.

On September 1, 2000, the Employee was terminated by his Employer for sexually harassing the female CEO.

Mr. Nash, lived in the Twin Cities. While there were numerous CAD jobs available in the Twin Cities, the market had gone soft.

The Employee was provided with vocational rehabilitation. However, in contravention of the rehab plan, he refused to look for work as a CAD operator saying he did not have the temperament or patience for this type of work.

On June 6, 2001, the Employee found a new job as a professional masseuse for Lenora=s Massage Parlor, which was owned by his new girlfriend, Alexandra. The Employee worked 10-20 hours per week and was paid $10.00 per hour. He also received tips which averaged another $100.00 per week.

You have been retained to represent the Employer and Insurer in this case.

B. What permanent partial disability exposure is there in this case? Show your calculations and discuss.

C. Assume that the Employee=s date of injury was 9/1/02 rather than 6/8/97. Would the permanent partial disability exposure be any different? Explain and show your calculations.

D. When is payment of permanent partial disability benefits due in this case?

E. Discuss the potential temporary partial disability exposure in this case and analyze potential defenses thereto. With respect to possible exposure, show your calculations.

QUESTION NO. 3: (25 points/37.5 minutes)

Betty is a union iron worker. She is a single parent and has decided that she will only work 3 days per week in order to give her children quality time. As a rule, her daily wage is $200.00. She has worked for the same company, Easy Construction Company, for 15 years. She has had the same schedule for 15 years.

On October 5, 2000, Betty falls off of a scaffold and severely injures her low back. She immediately sees her family doctor who recommends a surgical consultation. Five days later, she has major surgery on her low back. Temporary total disability benefits commence immediately.

On January 1, 2001, she is released to return to work with a 5-pound lifting restriction with no repetitive bending, twisting or lifting. The treating surgeon renders an opinion that Betty will never return to work as a iron worker. However, the employer, Easy Construction Company, offers her a light-duty job as an estimator which will require her to work 5 days per week, 8 hours per day, earning $10.00 per hour. The job is within restrictions.

Betty promptly rejects the job on January 4, 2001. She insists that she will only work 3 days per week because of child care issues.

On January 5, 2001, Easy Construction Company discovers that Betty has been embezzling funds from the company for 13 years. Over the years, she has embezzled over $1 million. A criminal complaint is promptly filed against Betty for felony embezzlement. She is promptly fired on January 6, 2001, and her temporary total disability benefits are cut off by the insurance company. Betty is arrested and convicted of a felony. She is sentenced to 5 years in prison. Betty will be in prison until July, 2007.

On January 6, 2002, she begins making license plates in prison. Her hourly rate of pay is 25 cents per hour for a 3-day, 20-hour per week schedule. Once again, Betty has refused to work 40 hours per week. The license plate job is within restrictions.

Betty does not reach maximum medical improvement until October 5, 2002 with service of the maximum medical improvement report on October 10, 2002. Betty hires an attorney to represent her. A claim is made for temporary total or temporary partial disability benefits from January 6, 2001 to the present and continuing. Is Betty entitled to any temporary total disability and/or temporary partial disability benefits? If so, for what periods? Calculate the exposure for temporary total disability benefits and temporary partial disability benefits. Explain your answers.

Calendar

- January 6, 2001 to January 6, 2002 52 weeks

- January 6, 2002 to December 13, 2002 49 weeks

- January 6, 2001 to December 13, 2002 101 weeks

- October 10, 2002 to January 10, 2003 13.4 weeks

QUESTION NO. 4: (25 points/37.5 minutes)

Bill Brickhead is a machine operator. For the past 20 years, he has exclusively worked the Widgetmaker 1000 machine for a company called Widgets, Inc. His usual work day begins at 8:30 a.m. On October 5, 2002, Bill decides to go to work a bit early in order to clean up the shop for an upcoming OSHA inspection. Bill has no role at all in any aspect of the OSHA inspection. He decided that it was a good idea to clean up the shop as a surprise birthday gift for his boss. Bill shows up for work at 6:00 a.m. and punches the time clock. He then decides to go across the street to get a cup of coffee and a donut at the Lonely Hearts Café. He arrives at the Lonely Hearts Café at approximately 6:15 a.m.

Bill proceeds to drink 5 cups of coffee and eat 2 dozen donuts. While at the café, Bill engages the waitress in a debate over the legalities of unannounced OSHA inspections. The waitress is far more knowledgeable than Bill on this particular issue. He becomes frustrated, takes a big gulp of air and swallows a donut. The donut then becomes lodged in his windpipe. He panics, bolts out of the café and heads back towards the plant. While in the middle of the street, he is hit and killed by a speeding delivery truck owned by Widgets, Inc. Death is immediate. He dies at 8:25 a.m.

You are an attorney for a plaintiff=s law firm. The senior partner has requested that you draft a memorandum identifying and analyzing the issues with a recommendation as to whether or not the firm should accept the case.

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