The member may work in a different capacity—and is in fact encouraged to do so under the PERA Duty Disability pension plan. A member who is not working is capped at 100% of his or her “high five earnings” between work comp benefits and PERA Duty Disability benefits. But, a member who is working in a different position may earn up to 125% of his or her “high five earnings” among work comp, PERA benefits, and the new wages. After reaching the 125% threshold, the PERA benefits are offset one for every three dollars over 125% of the “high five earnings.”
“Voluntary” resignation is not a defense to rehabilitation services, including job placement services. The case law remains clear on this issue. In Erickson v. City of St. Paul, the Court determined that “whether an employee is employed, voluntarily terminates his employment, retires, or relocates does not terminate his or her entitlement to rehabilitation services.” slip. op. (W.C.C.A. April 16, 2007). Resignation from a light duty position with the date of injury employer is not a bar to rehabilitation and retraining benefits. Id. Under Lees v. G. & S. Roofing, Inc. an employee may even refuse a job offer and remain entitled to rehabilitation services. (W.C.C.A. June 9, 1999).
An injured worker is not held captive to his or her employer in order to retain his entitlement to workers’ compensation benefits. An employee may accept an early retirement incentive from his employer while still being able to physically perform his job within his restrictions based on his work injury at the time of retirement. Boutto v. U.S. Steel Corp. slip op. (WCCA July 18, 2007).
Additionally, a member who separates in order to begin receiving Duty Disability benefits is not retiring. Therefore, “retirement” is not a defense to rehabilitation services. An injured worker who resigns based on his or her Duty Disability is not withdrawing from the labor market. Rather, the employee is separating based on his or her disability incurred in the course and scope of his or her employment.
Unfortunately, even though the law is settled on this issue occasionally insurers and public employers will still contest the employee’s right to receive rehabilitation services after separating due to a PERA Duty Disability. Insurers and employers look for any opportunity to avoid paying for rehabilitation services. The insurer may refuse to pay for job placement services or file a Rehabilitation Request with the Minnesota Department of Labor and Industry to terminate rehabilitation services with a QRC or qualified rehabilitation consultant. Your attorney should either file a Rehabilitation Request to initiate job placement services or a Rehabilitation Response to the insurer’s request for termination of rehabilitation services. The matter will be heard in front of a mediator for the Department of Labor and Industry and then either party may appeal the decision and the matter will then be heard in front of a Workers’ Compensation Judge at the Office of Administrative Hearings.
Meuser Law Office, P.A. is one of the few workers’ compensation law firms in the state of Minnesota that also handles PERA and MSRS disability claims. We’ve successfully represented hundreds of State Patrol, police officers and firefighters throughout the state for both workers’ compensation and PERA/MSRS disability claims. If you believe that your employer has miscalculated your wage loss benefits or simply want to double check, contact an attorney at Meuser Law Office, P.A. for a free, no-obligation consultation. Our knowledgeable attorneys handle Minnesota workers’ compensation cases on a daily basis and are very familiar with the most current laws and calculations to determine your average wage. We will ensure you receive the full benefits you are entitled.
Call us today at 1-877-746-5680.
by Mary BethMore posts by Mary Beth
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