Thursday, September 28, 2017

Police Officer Duty Belts and Gillette Low Back Work Injuries

In Minnesota under the Workers’ Compensation Act the legislature recognizes numerous types of work injuries including specific injuries, Gillette injuries, occupational diseases, and consequential injuries. The case Gillette v. Harold, Inc. established that injuries caused by repetitive minute trauma brought about by the performance of ordinary job duties is compensable under the Minnesota Workers’ Compensation Act. (257 Minn. 313 (1960).) These types of injuries may be thought of generally as “wear and tear” injuries or repetitive motion injuries that are cumulative in a larger injury.

At Meuser Law Office, P.A. we frequently see law enforcement officers with Gillette low back injuries. While conducting patrol, police officers and deputy sheriffs wear duty belts that press up against his or her low back during a shift. The duty belt may weigh anywhere from 15 – 20 pounds and make handgun, handcuffs, flashlights, gloves, baton, radio, pepper spray, among other tools instantly accessible to officers. Additionally, officers may also have to wear a protective vest that puts additional strain on his or her back. Studies have shown that the equipment’s weight, the placement against the officer’s body, and the force exerted on the equipment when the officer is seated inside his or her squad car factor the amount of pain an officer suffers from wearing a duty belt.* Police officers and deputy sheriffs wear these heavy belts when entering and exiting squad cars, arresting or chasing non-compliant suspects, and when lifting patients into emergency vehicles. Officers conducting patrol duties in squad cars also face additional strain and pressure on his or her low back.

Over time, the everyday wear and tear on an officer’s low back due to his or her duty belt coupled with an officer’s normal job duties can cause serious disc issues in the officer’s lumbar spine. If the discs are damaged and further deteriorate, surgical intervention may be required in the future. If you are experiencing low back pain which you believe may be work-related, it is imperative you seek medical attention immediately and report your possible injury to your employer.

If the duty belt exacerbates an underlying non-work related injury, you may still have a compensable work injury. The Minnesota Workers’ Compensation Act does not require that the work-related injury be the sole cause of a disabling condition. The law only requires that the work injury be a substantial contributing cause or fact to the employee’s condition. Swanson v. Medtronics, 443 N.W.2d 534 (1989).  An injury is compensable when an injury aggravates or accelerates a pre-existing condition. Wallace v. Hanson Silo Co., 235 N.W.2d 363 (Minn. 1975). So, while an officer may have had a prior low back injury from a motor vehicle collision, if the duties such as wearing a duty belt, entering and existing a squad car, among other patrol duties substantially aggravates or accelerates disc degeneration in his or her lumbar spine, then the injury may be compensable. In order to determine if the new injury is compensable the judge will consider:

The nature and severity of the pre-existing condition and the extent of restrictions and disability resulting there from
The nature of the symptoms and extent of medical treatment prior to the aggravating incident
The nature and severity of the aggravating incident and the extent of the restrictions and disability resulting there from
The nature of the symptoms and the extent of medical treatment following the aggravating incident
The nature and extent of the employee’s work duties and non-work activities during the relevant period
Medical opinions on the issue. McClellan v. Up North Plastics, slip. op. (W.C.C.A. October 18, 1994)

If you are a Minnesota police officer with a low back injury you believe was incurred from work duties, contact the experienced attorneys at Meuser Law Office, P.A. immediately for a free, no-obligation case review. At Meuser Law Office, P.A. we have represented hundreds of police officers with low back injuries and have successfully been awarded PERA Duty Disability benefits, Health Care Continuation benefits under Minnesota Statute 299A.465, and workers’ compensation wage loss benefits and medical treatment. Call us today at 1-877-746-5680.

* Ergonomics and Safety in Law Enforcement, by Fabrice Czarnecki and Ira Janowitz, 2003.

Mary Beth Boyceby Mary Beth
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Thursday, September 21, 2017

Third-Party Claims and Workers’ Compensation Subrogation

In certain limited circumstances, injured workers may bring a civil claim arising out of the incident that caused his or her work injury. These civil claims may include pain and suffering and other types of monetary damages not available under the Minnesota Workers’ Compensation system. The employee may not sue his or her employer for causing his or her injury, but the injured worker may sue a third-party who is at fault, meaning that the other person or entity’s negligence caused the injured worker’s injury. Third-party claims typically arise in work-related motor vehicle accidents, construction accidents, products liability claims, or premise liability claims.

When a claimant brings a third-party claim against a separate party, the workers’ compensation insurance carrier maintains a “subrogation interest” in the litigation. The defendant in the civil law suit will have to pay back the workers’ compensation insurance carrier as the defendant’s negligence caused the injury and ensuring disability with monetary damages. This interplay creates a nuanced relationship between the injured worker and the employer and insurer, which may even be described as, “the enemy of my enemy is my friend.”

The third-party defendant or “tortfeasor” may sue the employer for contribution to the employee’s civil claim based on the employer’s negligence in causing the employee’s injury, as described in Lambertson v. Cincinnati Corporation, 257 N.W.2d 679 (Minn. 1977). In some cases, the work comp insurer may agree to “waive and walk” under Minnesota Statute § 176.061, subdivision 11, meaning the insurer will waive the subrogation claim as a part of a settlement and avoid a Lambertson claim in the civil context. The injured worker cannot recover from the employer for his or her work injury so it is not in his or her best interest to allege negligence on behalf of his employer. As a party of a work comp settlement with the employee, the insurer and employer may also agree to waive and assign his or her future subrogation interest as and for additional consideration. This future subrogation interest can be very valuable for the employee.

The quintessential case that describes this relationship between the employer and employer and insurer and the distinct types of settlements in third-party claims is Naig v. Bloomington Sanitation, 288 N.W.2d 891 (Minn. 1977). The workers’ compensation insurance carrier maintains a separate right of recovery as against the defendant; however, frequently it is in the parties’ best interest to unite against the civil defendant to maximize each party’s recovery. A work comp insurer could separately settle its workers’ compensation subrogation claim on an independent basis, which is commonly referred to as a reverse-Naig basis, as defined in Folstad v. Eder, 467 N.W. 2d 608 (1991).

If the employee and employer and insurer agree to “no-naig” and “no reverse-naig,” meaning neither party will settle out its interest as against the civil defendant without the other’s agreement, then the parties must agree on how to allocate the settlement proceeds. If the civil suit were to proceed to trial and the plaintiff, or employee, were to successfully recover damages against the civil defendant, the recovery is generally distributed as outlined by the formula in Minnesota Statute § 176.061, subdivision 6. The distribution formula allows for the possibility that the monetary damages recovered may not fully compensate the plaintiff for his or her losses. For example, the civil defendant may only have $500,000 in an insurance policy; however, the plaintiff’s damages may exceed $1 million. Rather than engage in drawn out litigation against a defendant who is “judgement proof,” meaning he or she may not have money in excess of the insurance policy limits, the defendant may offer the full policy limits. The plaintiff may then bring a claim against his or her own insurance policy for under-insured motorist coverage, in the case of a motor vehicle collision. The distribution formula also allows that of the $500,000 recovered in the civil case, attorney fees are deducted as well as litigation costs. The workers’ compensation subrogation interest is then reduced by what is referred to as the “cost of collection”.

Don’t wait to get an attorney involved if you believe you may have a third-party claim arising out of your Minnesota workers’ compensation claim. The process can be complex and you want to be sure you receive the full benefits to which you are entitled. Contact Meuser Law Office, P.A. for a free no-obligation consultation and claim evaluation. If you have a third-party claim it is imperative to use a firm with experience in work comp as well as personal injury. Call us today at 1-877-746-5680.

Mary Beth Boyceby Mary Beth
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Monday, September 18, 2017

Moot Court and Trial Competitions at University of St. Thomas Law School

Ron Meuser and Mary Beth Boyce of Meuser Law Office, P.A. are proud to be part of this year’s University of St. Thomas Moot Court Intramural Competition. Each year the University of St. Thomas Law School send students to participate in national moot court, trial advocacy, and negotiations competitions. These competitions offer students an opportunity to focus on their written and oral advocacy skills, which are key skills when practicing law. The intramural competition helps determine which students make the various teams.

In a moot court competition, students are tasked with arguing a hypothetical case on appeal to the United Supreme Court. In participating, the students are showing their ability to write and speak clearly while thinking quickly.

Mary Beth was invited to judge the initial rounds and Ron was asked to be a judge for the final round of the St. Thomas School of Law Intramural Moot Court Competition held in September. Ron had the honor to judge alongside former Minnesota Supreme Court Justice Dietzen and Professor Teresa Collett. What an honor and great experience! Congratulations to all the students who participated!

Ron Meuserby Ron Meuser
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Wednesday, September 13, 2017

Remembering Officer William Mathews of the Wayzata, Minnesota Police Department

On behalf of Meuser Law Office, P.A., we extend our deepest condolences to the family, friends, and colleagues of Officer William Mathews, 47, who was struck and killed by a motorist in the early afternoon on September 8, 2017. Officer Mathews was removing dangerous debris in the roadway when he was hit by an SUV and died of his injuries.

Officer Mathews is a nine-year department veteran who was proud to serve the Wayzata and Long Lake communities. His family says law enforcement was his “calling” and he loved his life serving as a police officer. Officer Mathews leaves behind a wife and young son.

Meuser Law Office, P.A. has represented hundreds of police officers, firefighters, state troopers, and paramedics and understand the dangers faced each day they put on their uniform. Motor vehicle accidents pose a great risk to first responders. We respect the risks they take performing their daily duties to keep our communities safe and take this time to simply say thank you.

Please keep Officer Mathews’ family, friends, and fellow officers in your prayers.

Ron Meuserby Ron Meuser
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Wednesday, August 30, 2017

Medical Treatment & The Minnesota Workers’ Compensation Act

Can I choose my treating physician?

Yes, you have the right to choose your treating health care provider. But, you must choose wisely because once you choose a treating physician, it becomes difficult to switch. As such, you also have to be careful about continuing treatment with the employer-recommended physician. The employer’s physician will be deemed to have been “selected” by you as your primary treating physician if you continue to treat with him or her.

Who may provide my treatment?

The Workers’ Compensation Act (WCA) covers medical treatment for an employee injured within the course and scope of employment at a “health care provider.” A health care provider is defined as “a physician, podiatrist, chiropractor, dentist, optometrist, osteopath, psychologist, psychiatric social worker or any other person who furnishes a medical or health service to an employee.” Minn. Stat. 176.135, subd. 2(a). The WCA covers treatment with out of state medical providers but the fees paid are dictated by the workers’ compensation fee schedule. Practically speaking, this means that many out of state providers will be paid less for treating Minnesota workers’ compensation claims and they may not want to provide them with services as a result.

Can I change my treating physician?

After you’ve chosen or selected your treating physician and you’ve treated with this physician on two or more occasions, this physician is deemed your primary treating physician. This means that you have to provide a reasonable basis for a change of treating physicians if you don’t switch to a new physician within the first 60 days of treatment.

The case law is clear that you cannot change your primary treating physician for purposes of litigation—e.g., your doctor refuses to write a supportive narrative report or issue work restrictions. You can, however, change treating physicians if you lose confidence in your doctor. But, this loss of confidence must be supported by actual facts, and not the mere statement that you’ve lost confidence in your doctor. For example, you could indicate that you have lost faith in your doctor’s skill, you could point out that your condition has not improved under your doctor’s care, or you could indicate that there has been a breakdown in communication between you and your doctor. If you have evidence to support any of these rationales, the court would likely approve a change of primary treating physician.

If you change primary treating physicians without prior authorization from your workers’ compensation insurer, the insurer is not liable for treatment rendered by the new primary health care provider unless a change is later approved by the insurer or the court. The court may approve an unauthorized change in treating physicians if the change was required due to an emergency, or if prior approval could not have reasonably been obtained from the insurer.

Contact Meuser Law Office, P.A. for a free, no-obligation case evaluation and consultation. If you have questions regarding your right to medical treatment, wage loss or permanency benefits, the knowledgeable attorneys at Meuser Law Office, P.A. will take the time to understand the intricacies of your case before making recommendations about how to proceed. Call us today at 1-877-746-5680.

Ashley Biermannby Ashley Biermann
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Monday, August 21, 2017

What Should I Do If I’m Injured on the Job?

If you sustain an injury in the course and scope of your employment in the state of Minnesota, you have certain rights under the Minnesota Workers’ Compensation Act. Here is a very basic, step-by-step checklist to follow after an injury to ensure your rights are protected.

Step 1: Report your injury

  • When your injury occurs, make sure your supervisor knows about it. Notifying your supervisor can be as simple as writing an email stating the date of your injury, how and where your injury occurred, and which body parts were affected. 
  • When you return to the station or firehouse, make sure that a First Report of Injury is filed. Minor injuries can quickly turn into major injuries and there are strict reporting guidelines under the Minnesota Workers Compensation Act. It is important to be covered in the future, so make sure to report ALL of your injuries. 
  • An employer may require you to fill out a supplemental injury report, such as a supervisor’s report, incident report, IOD or JD. You should complete these reports. Also make sure a First Report of Injury is completed. The First Report of Injury form is necessary in the context of workers’ compensation. 

Step 2: Seek treatment for your injury

  • If you sustain an injury while on duty you must seek treatment in order to protect your rights. This can be as simple as a visit to the emergency room, urgent care or to your family physician. Filling out an IOD is not enough.
  • An employer may require that you make an appointment with a physician of their choosing, but you have the right (and should) choose your own doctor for purposes of ongoing care.

Step 3: Ensure the bill is paid by the workers’ compensation insurer

  • Once one bill is paid on your behalf by the workers’ compensation insurer it is deemed an admitted injury. This means that for the rest of your life your rights are vested under the Minnesota Workers’ Compensation Act and the statute of limitations does not apply. 

Step 4: Call Meuser Law Office, P.A. to review your options

  • We offer police officers and firefighters free, no-obligation consultations in person or over the phone at any point throughout the claims process. We pride ourselves on representing those who spend their lives protecting and serving the public, and are happy to answer any questions you may have about your potential claims. 

Don’t wait to get an attorney involved if you have a Minnesota workers’ compensation claim. The process can be complex and you want to be sure you receive the full benefits you are entitled. Contact Meuser Law Office, P.A. for a free no-obligation consultation and claim evaluation. At Meuser Law Office, P.A. we keep our clients informed of the process as well as what to expect each step of the way. Call us today at 1-877-746-5680.

Ashley Biermannby Ashley Biermann
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Wednesday, August 16, 2017

Independent Psychological Evaluations

When do I have to submit to an IPE?

An independent psychological evaluation (IPE) may be required for mental disability claims. Under the Workers’ Compensation Act, only certain mental disorders are compensable. Post-traumatic stress disorder (PTSD) is defined by Minn. Stat. 176.11, subd. 15 as the condition described in the most recently published addition of the DSM-V. See article entitled Cumulative Post-Traumatic Stress Disorder and Police Officers for a full description. PTSD is not compensable if it is the result of a disciplinary action, such as a work evaluation, job transfer, layoff, demotion, etc.

All other mental health conditions must be related to a physical injury to be compensable. For example, if a workers’ compensation claimant injuries his back at work and develops depression due to his pain, the depression would be a compensable injury. This is what is referred to as a physical-mental injury.

What is an IPE?

Your date of injury employer and its insurance company may ask that you submit to an IPE. This involves meeting with a psychologist selected by the insurer. Typically, the IPE evaluator is given a foundation letter by the insurance company’s attorney, which explains the employer-insurer’s legal position and summarizes the pertinent portions of your case, including the medical records, diagnoses, and job duties. If the IPE arises out of a PTSD claim, the insurer’s attorney provides a summary of your Criteria A Events. As such, the IPE evaluator knows the employer-insured’s position prior to the evaluation, and the IPE evaluator will search for ways to support their position during the course of the evaluation. Be honest and truthful with the evaluator—but, also remember, the IPE evaluator is not your friend.

During the evaluation, the IPE evaluator will typically have you undergo a series of psychometric testing, including the MMPI-2 and MMPI-2-RF. The evaluator will also ask that you submit to an interview, which can last anywhere from 45 minutes to 2 hours. Depending on the claim, this may be a structured interview using the CAPS-5 or the PTSD Checklist. Again, it is important that you are open and honest with the evaluator—but, it is also important that you are not simply agreeing with the evaluator’s questions.

What is an IPE Report?

Following the evaluation, the IPE evaluator will issue a report. In this report the evaluator will determine: 1) whether you have a mental health diagnosis (e.g., PTSD, anxiety, depression, adjustment disorder, etc.); 2) whether this diagnosis is related to specific incidents and/or your work duties; 3) your functional capacity (i.e., work restrictions); 4) whether your treatment to-date has been reasonable and necessary; and 5) future treatment recommendations, if any.

The opinions of the IPE evaluator are typically at odds with the opinions and recommendations of your treating physician(s). It is important that you continue to follow the treatment recommendations of your treating physician, even if they are not supported by the IPE evaluator. Your treating physician and the IPE evaluator have very different goals in making their recommendations. With the IPE evaluator, no therapeutic relationship is being established and they are not providing treatment. The IPE evaluator’s sole purpose is to determine whether or not you are eligible for disability benefits. Conversely, your treating physician is making recommendations in an effort to improve your mental health.

Can I object to an IPE?

Technically, you can object to an independent psychological evaluation, however, if a mental health disability is the subject of your claim, a judge will compel you to attend the IPE. As such, as a general rule, we advise our clients to voluntarily attend the IPE. Prior to attending the appointment, we make sure that our client knows what to expect so the process is a little easier.

If the insurer requests a second IPE, we would likely object and force the insurer to file a motion to compel your attendance at the second IPE. A judge may ultimately order the second IME—this decision is typically dependent upon the opinions of the first IME evaluator and how much time has elapsed since the first IPE. Either way, because an independent psychological evaluation is invasive and uncomfortable, we will try to avoid a second IPE whenever possible.

If you are scheduled for an IPE and are not currently represented by a Minnesota workers’ compensation attorney, it is imperative that you speak to a lawyer regarding your options and next steps. Employer-insurers will attempt to use the independent psychological evaluation report to deny primary liability on your claim, cut off your workers’ compensation benefits, or assert defenses to your claims. Contact Meuser Law Office, P.A. for a free, no-obligation workers’ compensation legal consultation to discuss your rights. Call us today at 1-877-746-5680.

Ashley Biermannby Ashley Biermann
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