The Importance of Reporting and Filing a Claim Upon Notice from the Employee

By Ed Risch, Tentinger Law Firm, P.A.

For the first five years of my legal career, I represented workers’ compensation insurance carriers for claims related to work injuries.  After being on the defense side of the fence, I switched sides and represented injured workers, also for 5 years.  I now represent both.

To say the least, I learned a great deal by working both sides of the fence.  I am frequently asked “What is the one most important thing you learned as the result of working for both insurance companies and employees?”  My response is always, “Employers need to report the injury to their workers’ compensation insurance carrier as soon as possible and the insurance carrier needs to begin its investigation as soon as they receive notice from their insured.”  Following this advice gets the claim off on the right foot and concludes with a quick resolution.

Employer’s Duty to Report an Injury

After an employee reports a work injury to his/her employer for which the claimed disability exceeds three calendar days, employment related deaths the exception, the employer must submit a First Report of Injury to its workers’ compensation insurance carrier within 10 calendar days of the first day of disability or the date the employer was aware of the disability.

Based on my experience, I cannot stress enough how following this simple rule can make the claim move forward in a more manageable way.

When representing workers’ compensation insurance carriers, it is often claims  come across my desk due to the fact the employer failed to report the injury in a timely manner or at all.  Due to the employer’s failure to report the injury, the employee has sought legal representation.  If only the employer had reported the injury in a timely manner, the insurance carrier could have begun its investigation, determined liability, and pay benefits if required.  Quick reporting by an employer usually leads to a happy employee.  A happy employee generally means lower litigation fees for the insurance carrier.

From the employee’s side of the claim, most of my clients sought legal representation due to the fact they had not heard from their employer or its workers’ compensation insurance carrier after reporting an injury.  They admit, had the employer or its insurance carrier contacted them about a reported injury, they may not have sought legal representation.  I have cases where the client came to me solely because there was a lack of acknowledgement of the injury.  Once we make contact with the insurance carrier, the claim is acknowledged and either accepted or denied.  If accepted, the employee is happy.  Certainly, if the employer had reported the claim as required, I would not be needed due to a satisfied employee.  If denied, we are able to start the litigation process and hopefully resolve the claim in a timely fashion with little costs to each side.

It is important that an employer report the injury as required.

Filing the Notice of Insurer’s Primary Liability Determination

Once the employer reports an injury to its workers’ compensation insurance carrier, and the claimed disability extends more than three calendar days, the carrier must make a liability determination within 14 days of the first day of disability or the date the employer was aware of the disability, whichever is later.  Failure to make the determination in 14 days can result in penalties.

As soon as the insurance carrier receives notice of an injury from its insured, it is important that the claim be assigned to a claims handler and the investigation period begins immediately.

When defending a claim, another reason a file comes across my desk is due to the fact the claim handler received notice of the claim long after the injury was reported to the employer by the employee and the employer failed to notify its insurance carrier.  The claim handler is forced to deny the claim due to the fact there has been a lapse of time between the date of injury, medical treatment, and lost time from work.  The claim handler is better off denying the claim and transferring the file to an attorney to handle due to the events that occurred since the date of injury.

It goes without saying, if the workers’ compensation insurance carrier fails to act upon notice of an injury by its insured, you can be assured the employee is getting more frustrated as the days pass.  As time passes, the probability the employee retains an attorney increases.

Although reporting an injury and conducting an investigation once notified of an injury in a timely manner may seem simple, it is often neglected and a main reason an employee seeks representation.  Being timely is sure to reduce litigation costs and foster quicker resolution of a claim.

*Ed has experience representing both insurance companies and employees for claims related to work injuries.

Stepparent Adoption in Minnesota

Stepparent Adoption in Minnesota

If you marry someone who has a child, you may consider legally adopting the child.  In order to adopt your stepchild, you must:

  1. terminate the parental rights of the other parent (not your spouse);
  2. petition the court for adoption and file all necessary paperwork;
  3. have social services conduct a background study and finger print check; and
  4. attend the final court hearing.

Termination of Parental Rights

Termination of parental rights can be voluntary or involuntary.   In a voluntary termination of parental rights, the biological parent consents to the adoption.  One incentive for the other parent to consent to the adoption is that he or she will no longer be obligated to pay child support.  If the other parent will not consent, you must demonstrate abandonment of the child by that parent to the court.  Because this is much more costly and difficult, it is advisable to first attempt to obtain consent to termination of parental rights.

Petition for Adoption

After you obtain consent to the adoption or have demonstrated abandonment, you will file a petition for adoption with the Court and proposed order.  The petition provides basic information to the court and affirms that the adoption is in the best interest of the child.  The Court will look at the length of the marriage and the financial ability of you and the nonterminating parent to support the child.

You will also typically file a Motion to Waive Post-Placement Assessment and Affidavit in Support of Motion to Waive Post-Placement Assessment.  A post-placement assessment involves a social service agency evaluating your home and living conditions.  In addition, if you have not resided in Minnesota for one year, you will have to file a motion and affidavit to reduce the residency requirement to thirty days.  Finally, you will submit the following documents:

  1. a certified copy of the child’s birth certificate;
  2. the consent signed by the terminating parent (if voluntary);
  3. the consent signed by the child if they are age 14 or older;
  4. a list of  the child’s personal property; and
  5. the results of the search of the Father’s Adoption Registry.  You can find information about requesting a search of the Father’s Adoption Registry through the Minnesota Department of Health website.

Background Study and Fingerprint Check

In addition to terminating parental rights and filing a petition for adoption and other required paperwork with the Court, you must submit to a background study and fingerprint check by social services.  The background study and fingerprint check must be conducted on every adult in the adoptive home age 18 and older.  Unlike the post-placement assessment, this requirement cannot be waived by the Court.

Final Court Hearing

After you have completed all of the above requirements, you will attend the final court hearing with your spouse and the child to be adopted.   The Court will ask you questions about your petition and also may ask the child questions as well.  As a family law practitioner, this is my favorite type of hearing because everyone is happy to be there.

Although stepparent adoption is relatively easy compared to other types of adoption, there are still many requirements that must be met.  If you are considering a stepparent adoption, it is important to talk to an experienced attorney.  Contact Tentinger Law Firm for an experienced legal consultation on stepparent adoption at www.tentingerlawfirm.com or 952-953-3330.

Will vs. Living Trust: Choosing the Best Option for You

Wills and Living Trusts are basic components of an estate plan.  But what is the difference between the two and which is right for you?

The Basics of Estate Planning

Before discussing the differences between a Will and a Living Trust, it is important to understand the definition of estate planning.  Estate planning is the process of anticipating and arranging for disposal of your property during your life and after your death.  A basic estate plan typically includes a Health Care Directive, Durable Power of Attorney, and a Will or Living Trust.

A Health Care Directive outlines your preferences for health care during a serious illness when you are unable to communicate your preferences.  It also typically appoints someone to make health care decisions for you if you are unable to communicate or are not mentally competent to make a decision.  A Health Care Directive is also commonly referred to as a Living Will or Advance Directive.

A Durable Power of Attorney authorizes someone to represent you or act on your behalf in financial matters.  It is called “durable” because it continues to be effective if you become incompetent.  The primary purpose of the Durable Power of Attorney, in this context, is to avoid the need for appointment of a Guardian or Conservator if you become mentally incompetent to manage your finances.

What is a Will?

A Will is a written document that indicates how your property will be distributed at the time of your death.  It is not effective until after your death and can be amended or revoked during your lifetime.  Even if you have a Will, your estate will still have to through probate except in limited circumstances.  Probate is the court process of administering your estate.

What is a Living Trust?

A Living Trust is a legal arrangement in which you (Trustor) give fiduciary control of your estate to a person or institution (Trustee) for the benefit of your beneficiaries.  It is referred to as “living” because it is created during your lifetime.   A Living Trust can be revocable or irrevocable, but will usually be revocable to allow you to change the terms of the Living Trust during your lifetime.

When utilizing a Living Trust for estate planning, your property is actually retitled into the name of the Living Trust or to the Trustees of your Living Trust.  If your property is retitled in this fashion, you are able to avoid probate.  This is important because your estate will avoid the cost and inconvenience of a probate proceeding and it will allow your financial matters to remain private.   Further, unlike a Will, a Living Trust is immediately effective, so it can be used for incapacity planning.

While the advantages of avoiding probate and providing for incapacity planning sound attractive, the disadvantage of a Living Trust is that it is more costly to set up.  This is because you must transfer title of your property to the Living Trust in order for it to be an effective estate planning tool.  If you do not transfer property into the Living Trust, your estate will be subject to probate and the associated cost and inconvenience.

Will vs. Living Trust

In deciding whether a Will or Living Trust is more appropriate for your situation, the primary factor is cost.  A Living Trust has advantages beyond a Will (i.e. incapacity planning and avoiding probate), but will involve more upfront effort and expense.  If you are not able or willing to bear this initially higher expense, a Will may be the better option for you.

Because each estate plan is unique and based on the specific facts of your estate, it is important to talk to an experienced attorney.  Contact Tentinger Law Firm for an experienced legal consultation on estate planning at www.tentingerlawfirm.com or 952-953-3330.

Jay Tentinger Conducts Farm Accident Seminar

Attorney Jay A. Tentinger presented a 90-minute seminar for the National Business Institute on April 2, 2014 on the topic of farm accident injuries. The seminar was attended by attorneys interested in litigating cases involving farming accidents, insurance adjusters, and others interested in the legal issues surrounding farming accidents.

Jay Tentinger grew up on a farm and is still active in farming. He owns farmland and helps with crops during the spring and fall farming seasons. As an experienced farmer he has an extensive knowledge of farming equipment tools, how to handle livestock, as well as how to preserve and protect the value of crops.

With his extensive legal experience and with his background in farming, Jay Tentinger understands the extent of injury and damage in farm accident cases. Having a deep appreciation for the practices of farming and being a farmer himself, he helps clients best protect their rights and interests if something goes wrong. He understands the nuances of the farming industry and can effectively protect clients’ rights and long-term interests when they have suffered property damage or an injury caused by farming equipment and farming accidents.

We are experienced in farm accidents and damage involving:

  • Injuries caused by silage cutter or balers
  • Equipment defects
  • Farm augers and mowers
  • Amputated limbs
  • Maiming by harvesters
  • Chemical burns
  • Misrepresentation/fraud related to infected or damaged livestock
  • Tractor overturns
  • All-terrain vehicle accidents
  • Equipment entanglements
  • Injuries sustained by animals
  • Injuries caused by animals

Go to following link if you are interested in listening to Jay Tentinger’s farming injury litigation seminar.

http://www.nbi-sems.com/Details.aspx/R-65809SADM%7C?ctname=SPKEM

Tentinger Law Firm, PA, 15000 Garrett Avenue, Apple Valley, MN 55124

www.tentingerlawfirm.com

952-953-3330

Grandparent Visitation Rights in Minnesota

One of the more frequently asked questions in my practice is what rights grandparents granparents visitation photo 1have to visit their grandchildren. Generally, grandparents do not have a right to visitation with their grandchildren if:

  • both parents are alive;
  • a divorce action or custody action has not been commenced between the parents; and
  • the grandchild has never resided with the grandparents for a significant period of time.

Part of parents’ due process right under the Constitution is to make child-rearing decisions, including with whom their child associates.  Therefore, grandparents are at the mercy of their son or daughter to arrange visits with their grandchildren unless:

  • their son or daughter is deceased;
  • a dissolution, custody, legal separation, annulment or determination of paternity is commenced by one of the parents;
  • the child has resided with the grandparent for a period of twelve months or more and is subsequently removed from the home by the child’s parents; or
  •  if a step-parent adopts the child and either the grandparent’s child is deceased or the grandparent’s child’s rights have been terminated pursuant to the step-parent adoption.

In these circumstances, grandparents and even great-grandparents do have a right to seek reasonable visitation with the child under Minnesota Law (Minnesota Statute Section 257C.08).

Before the court may award grandparent visitation they must find that the visitation rights would be in the best interest of the child and, by clear and convincing evidence, would not interfere with the parent/child relationship (See e.g. C.D.G.D. v. Darst, 800 N.W.2d 652 (Minn. Ct. App. 2011).

grandparents visitation photo 2In making this determination, courts must consider the amount of personal contact between the parents or grandparents of the child and the child prior to the application for grandparent visitation rights.  The more frequent the prior contact, the more likely the courts are to find that continued contact is in the child’s best interest.  Another common argument that continued contact is in the child’s best interest is that it furthers the child’s interest in maintaining or establishing connections with that side of the family.

It is extremely important to remember that the courts in this context are focused on the right of the child to see the grandparents and not on the grandparent’s interest.  Therefore, the focus always remains on what is good for the child, not what is good for the child’s grandparent.  Further, because of the parent’s fundamental right to the care, custody and control of his or her child carries with it the presumption that the parent is acting in the best interests of the child, the court must consider the parent’s own determination regarding grandparent visits.  It is also not generally appropriate for the court to award as much visitation to a grandparent as it would to a noncustodial parent, so an every-other-weekend visit schedule is probably not appropriate, but a once-a-month visit may be appropriate, depending on the facts of the case.

Because of the fact-specific nature of grandparent visitation cases and the somewhat granparents visitation photo 3difficult legal standard, it is important to talk to an experienced attorney.  Contact Tentinger Law Firm for an experienced legal consultation on grandparent visitation at http://www.tentingerlawfirm.com/ or 952-953-3330.

Tentinger Law Firm Welcomes Anna M. Yakle as Associate Attorney

Anna Color

Tentinger Law Firm Welcomes Anna M. Yakle to the firm as Associate Attorney as of March 1, 2014.

Anna focuses her practice on family law matters, including divorce, adoption, custody, parenting time/visitation, grandparent visitation, and paternity.  She also represents clients in the areas of employment law, business law and wills/trusts. 

Anna obtained her Bachelor of Science in Paralegal Studies from Winona State University in Winona, Minnesota in 2004 and obtained her Juris Doctorate from Hamline University School of Law in Saint Paul, Minnesota in 2008.  During law school, Anna served on the Hamline Law Review and maintained her presidential merit scholarship. Anna was admitted to the Minnesota Bar in 2008. Prior to joining Tentinger Law Firm, Anna was employed as an Associate at the Law Offices of Edward R. Shaw in Brainerd, Minnesota, representing clients in family law cases.  She truly enjoys helping clients achieve their goals and is excited to be serving Dakota County and the surrounding areas.

Contact Tentinger Law Firm for your free consultation regarding your legal issue in family law, divorce, child custody, employment law, business law, and wills and trusts.

Tentinger Law Firm, P.A.

15000 Garrett Avenue

Apple Valley, MN 55124

Phone:  952-953-3330

Fax:  952-953-3331

jay@tentingerlawfirm.com

anna@tentingerlawfirm.com

 

Amendments to the Whistleblower Act Clarifies Protected Workplace Conduct for Employers and Employees

See no evil, hear no evil, speak no evil—it’s the surest way to keep your job—butwhistleblower photo 2 what about professional integrity? After corporate debacles, such as Enron and huge bank bailouts, the expectation has grown that professional integrity in the workplace be protected. However, what exactly those protections should be has been unclear until recent amendments to the Minnesota Whistleblower Act.

The Minnesota Whistleblower Act, Minn. Stat. §§ 181.931-2, enacted in 1987, was intended to prohibit employers from retaliating against employees who report, or refuse to engage in illegal conduct. The purpose was to encourage employees to report unlawful conduct and, thereby, dissuade employers from engaging in illegal behavior.

The original language of the law prohibited an employer from retaliating against an employee because the employee reported a violation of federal or state laws or rules “in good faith.” Over the years, because “in good faith” was not defined, courts tended to enforce a narrow interpretation of the language of the law, particularly “in good faith.” This narrow interpretation made it difficult to successfully make a case for whistleblower protection as whistleblowers had to prove they were blowing the whistle to expose an illegality.

This year, the legislature has amended the act to define “in good faith” and clarify that employees are acting “in good faith” as long as they do not make statements or disclosures knowing that they are false or that they are in reckless disregard of the truth.

whistleblower photoAmendments to the whistleblower act have clarified protected “whistleblowing” activity to now:

 
–Protect the conduct of a neutral party who blows the whistle for the protection of the general public, or at least, some third person in addition to the whistleblower.

–Cover reports of violations of common law, such as certain types of fraud, breach of fiduciary duty, breach of contract, or other conduct that has not been specifically prohibited by a statute or regulation.

–Protect planned violations, meaning plots to violate laws that may occur in the future that have not yet been implemented. However, the existence of an actual plan will need to be proved.

–Defined “report” as a verbal, written, or electronic communication by an employee about an actual, suspected, or planned violation.

–Defined “penalize” to include conduct that might dissuade a reasonable employee from making or supporting a report, including post-termination conduct.

–Expand protection of state employees to prohibit retaliation against state employees for providing information relating to the government.

While the Whistleblower Act amendments have strengthened employee protections, employers can still reduce their liability by performing well-documented investigations of employee reports and implementing effective training for management and human resources personnel.

Jay A. Tentinger

Contact Tentinger Law Firm for experienced legal consultation on how to protect your business from legal liability, www.tentingerlawfirm.com. 651-287-9815.

Minnesota Attorney Uses Farming Experience to Advocate for Victims of Farm Accidents

Farmers and people who work on farms know that their work is filled with risk. Not only do they have to deal with the whims of Mother Nature and the fluctuations of the market, they must also perform work in conditions that are at high risk for fatal or debilitating injuries. What’s more, unlike other industries, in which the work is done Farm1offsite, farm work presents dangers for family members who also live and often work on the farm. According to the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA), agriculture has one of the highest death rates among all occupations in the United States.

The Centers for Disease Control and Prevention (CDC), report 476 farmers and farm workers died from a work-related injury in 2010. The CDC data shows that every day about 243 agricultural workers suffer injury resulting in work loss. Five percent of these injuries result in permanent impairment. Additionally, CDC research showed in 2009, an estimated 16,100 children and adolescents were injured on farms; 3,400 of these injuries were due to farm work.

Attorney Jay A. Tentinger of Tentinger Law Firm was once a farmer and continues to assist in farm work (farming the land and maintaining livestock) when he is not advocating for his clients. While Jay’s office is located in Minnesota, he is a licensed attorney in the states of Minnesota, Iowa, and Nebraska. Because Jay owns farmland in Iowa, he understands that agriculture injuries can result from the following factors:

Tractor Accidents and Rollovers—Tractor accidents on farms cause the highest number of fatalities, with tractor overturns accounting for 44 percent of all tractor fatalities. Even though technology exists to protect workers from overturn, many tractors do not come with this equipment.

Farm Machinery Accidents—Farm work involves heavy machinery with moving parts, such as skid loaders, hay balers, augers, front end loaders and back hoes. Safety devices that often can prevent these foreseeable accidents exist but often are not Farm2installed by manufacturers in order to cut costs. In addition, manufacturers must provide complete warnings, operator instructions, and service procedures. Often malfunctions of the machinery itself can lead to accidents.

Livestock Accidents—Farm workers can be kicked or knocked over by a cow or other livestock. Car accidents involving farm animals loose in the road are not uncommon.

Pesticide and Chemical Exposures—Chemicals and pesticides that fail to provide complete instructions on safe usage and hazard warnings can result in devastating injuries. The National Occupational Research Agenda (NORA) has released two new publications on the safe use of cleaning chemicals.

Entrapments—Malfunctioning farm equipment can result in farmers becoming trapped in grain bins, silos, barns or other structures.

Slip and Fall Accidents—Accidental falls from horses, silos, barns, or combines are everyday risks along with slipping on wet farm equipment and surroundings.

Fires—with fuel needed to run farm machinery, defective farm equipment can cause injuries and loss from fire.

If you have been injured in a farm accident you may want to find the answers to the following questions:

  • How am I going to pay for my medical bills?
  • Can I get disability?
  • Can I be compensated for lost wages or pain and suffering?
  • Can I be compensated for disfigurement or scarring?
  • Is there any insurance money available to help me right now?
  • What papers should I sign?
  • Do I need an attorney?

Jay uses his first-hand knowledge of how farm machinery works and the day-to-day operations on a farm to help victims of farm accidents recover compensation for their loss.

In one case, Jay successfully represented a client whose cattle were damaged due to how they were handled during veterinary treatment. Jay has assisted farmers injured in tractor overturns, combine accidents, power take off (PTO) accidents, and a farmer who was killed by a silage cutter.

If you have loved ones who have been involved in a farm accident, call Jay Tentinger to find out what you can do, 651-287-9815.

Minnesota Supreme Court Rules in Favor of Employees in Wage Deduction Lawsuit

When employees blew the whistle on their employers for forcing them to use their tipswaitress to pay for walkouts, register shortages, and unsigned credit-card receipts, the case went all the way up to the Minnesota Supreme Court.

Roughly 750 servers, bartenders, and security guards brought a class-action against their Employees, Uptown Drink, LLC, Drink, Inc., Downtown Entertainment Ventures LLC d/b/a Spin Night Club, Fun Group, Inc., and Michael Whitelaw, claiming their employers violated Minn. Stat. § 181.79.

Section 181.79 makes it unlawful for an employer to:

Make any deduction, directly or indirectly, from the wages due or earned by any employee for lost or stolen property, damage to property, or to recover any other claimed indebtedness running from employee to employer without voluntary authorization from the employee.

paying with credit cardDuring the trial, witnesses, including the employer’s witnesses, testified that the employees were required to pay from their tips for register shortages and the bills of customers who left without paying or signing credit card receipts or face employment termination.

The employers argued that the payments were not deductions because the employees decided, of their own volition, that rather than take a write-up for improperly failing to handle cash, they would cover the shortages to the employers.

In District Court, the employees alleged five causes of action, including the unlawful deductions, and sought a directed verdict on the section 181.79 claim. The District Court denied the motion and submitted the claim to a jury who found the employers did not violate section 181.79.

The jury concluded that even though there was evidence that employees were forced toOLYMPUS DIGITAL CAMERA pay for the shortages and walkouts from their own tips, the deductions were being taken from tips rather than their hourly pay. The jury consequently concluded that the employee’s wages would need to fall below the minimum wage in order to violate 181.79. The jury concluded that the employees failed to show that the deductions resulted in any employee’s wages falling below minimum wage.

After the verdict, the employees requested judgment as a matter of law but the District Court denied the motion. The Court of Appeals affirmed. However, the Supreme Court concluded that the employees were entitled to judgment as a matter of law for their section 181.79 claim.

According to the Minnesota Rules of Civil Procedure 50.01, if during a trial by jury, the jury finds for a party, but there is no legally sufficient basis for a reasonable jury to find for that party, the Court may decide the issue against the party and grant a motion for judgment as a matter of law.

leaving a tipThe Supreme Court held that tips or gratuities also fall under the definition of wages even though the money is paid by another person and that the plain language of section 181.79 does not require employees to show that deductions caused their wages to fall below minimum wage. The law states “any deduction . . from the wages due.”

The Supreme Court reversed the decision and remanded to the District Court with instructions to rule in favor of the employees on section 181.79.

See Jana Karl, et. al. v. Uptown Drink, LLC et. al., A12-0166, Minn., Aug. 14, 2013.

Contact Tentinger Law Firm for an attorney who has experience in employment law, 651-287-9815.

What Can Disqualify You for Unemployment Insurance?

If your employer terminates you for misconduct, does that automatically disqualify you for unemployment benefits?

You have rights when you are fired from your job

Consult attorney Jay Tentinger if you are fired without cause.

Yes

However, you have rights when you are terminated by an employer.

Employee misconduct is defined as intentional, negligent, or indifferent conduct that is in serious violation of the standards of behavior the employer has a right to expect. Some acts may not be found to constitute misconduct according to the law, such as unsatisfactory performance, good faith error in judgment, or violations of rules that the employer failed to communicate to employees.

Most people know that if they quit a job by their own choice and without good cause, this will disqualify them from unemployment benefits. However, if you have “good cause” as defined by the Minnesota unemployment office, you may qualify to collect benefits.

Other reasons for being ineligible for unemployment benefits include insufficient earnings, quitting because of illness or to attend school, involvement in a labor dispute or strike, failure to apply for suitable work, or being self-employed.

If you feel you have been terminated without cause, it is best to consult a legal advisor. Jay Tentinger is an experienced employment law attorney. Call Tentinger Law Firm for a free case evaluation.