Can PERA PTD Benefits and PTD Work Comp Benefits be Awarded?

If PERA awards a police officer, firefighter, or deputy sheriff permanent total disability (PTD) benefits then he or she IS still entitled to permanent total disability benefits under Minnesota worker’s compensation. Permanent total disability benefits in workers’ compensation are benefits payable to injured workers who are unable to return to gainful employment. PTD is calculated using an injured worker’s average weekly wage (AWW) and is multiplied by 2/3 for a compensation rate under Minnesota Statute §176.011, subdivision 18. This amount is capped at the same limit as temporary total disability (TTD) and is subject to cost of living adjustments over time. PERA disability benefits and Social Security Disability Income (SSDI) benefits are also increased on a very limited basis over time. In many cases, employees must reach a certain rating of permanent partial disability (PPD) before he or she is awarded PTD benefits or deemed to have reached PTD. These ratings take into account all permanent conditions, work related or not, that affect the employee’s ability to work.

PTD benefits are offset by certain types of disability benefits, such as social security disability benefits and PERA PTD benefits; however, workers’ compensation PTD benefits in Minnesota are not offset until the employer and insurer have paid $25,000 in PTD benefits under Minnesota Statute §176.101, subdivision 4. Notably, benefits are only offset if the SSDI benefits and work comp benefits are based on the same injuries.

Frequently, if a PERA member is receiving PERA permanent total disability benefits and is deemed PTD by workers’ compensation, after reaching the $25,000 threshold work comp does not owe the injured worker anything until the injured worker’s PERA PTD benefits convert into a retirement benefit. Typically, the PTD PERA benefits completely offset the work comp PTD benefits. Many PERA members will also not receive SSDI benefits as he or she has paid into PERA instead of SSDI. However, those who are entitled to social security disability will have those benefits offset by work comp as well.

PERA PTD benefits convert to retirement benefits on the member’s normal retirement age, which for members covered under the Minnesota Police and Fire Plan is 55 years old. Under the recent Minnesota Supreme Court case Gary Ekdahl v. Independent School District #213, once these benefits convert, then the work comp insurer is no longer allowed an offset for PTD benefits.

Typically, an injured worker who is awarded PERA PTD benefits and is deemed PTD by work comp, is entitled to:

1. The first $25,000 of work comp PTD benefits
2. Permanent partial disability benefits for loss of use or function of a body part
3. Medical mileage

The employee is also entitled to medical care and treatment that is both reasonable and necessary and designed to cure or relieve the effects of the injury. After being awarded PERA duty PTD benefits, the police officer, firefighter, or Deputy Sheriff is also entitled to Healthcare Continuation Benefits under Minnesota Statute §299A.465 provided by the employer as if the member was still an employee. This healthcare continuation, which includes family health care coverage, extends until the member reaches age 65.

Educate yourself about your rights under the Minnesota Workers’ Compensation system, PERA Duty Disability claims, as well as healthcare continuation claims. You may recover more benefits overall by applying for PERA Duty Disability rather than PERA PTD. It may not be in your best interest to be deemed PTD by Minnesota work comp until after your PERA disability benefit converts to a retirement benefit. 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. Contact Meuser Law Office, P.A. for a free, no-obligation workers’ compensation case consultation.  Call us today at 1-877-746-5680.

by Mary Beth
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Important Changes Regarding Post-Traumatic Stress Disorder (PTSD) and Law Enforcement: DSM-V vs. DSM-IV-TR PTSD Diagnostic Criteria

This article was originally published in December, 2015 in the Minnesota Police Journal. PTSD was and continues to be an important topic with major implications for Minnesota’s first responders who suffer from PTSD. In October of 2013, the Minnesota workers’ compensation law recognized post-traumatic stress disorder as a covered or compensable injury for purposes of workers’ compensation law. Since then, law makers continue to fight for the rights and benefits of Minnesota’s first responders as well as continue to raise awareness of PTSD, including the re-introduction of a crucial bill in the 2017 legislative session that directly affects first responders who suffer from PTSD.

Written by Dr. Michael Keller, Ph.D and published in the Minnesota Police Journal

Introduction 

There have been some important changes regarding the diagnosis of post-traumatic stress disorder (PTSD), and these changes have a significant effect on those employed as licensed Minnesota Peace Officers relative to such matters as eligibility for disability benefits under the Public Employees Retirement Association (PERA), the Minnesota State Retirement Association (MSRS), and workers’ compensation. Due to changes in Minnesota Law taking place over the past few years, it is now the case that Minnesota Peace Officers must meet the diagnostic standards for PTSD as indicated in the Diagnostic Statistical Manual, Fifth Edition (DSM-5, 2013), whereas previously, the diagnostic criteria for PTSD as indicated in the Diagnostic Statistical Manual, Fourth Edition, Text Revised (DSM-IV-TR, 2000) have been relied upon for the determination of the diagnosis of PTSD.

The official effective date for the transition from DSM-IV-TR diagnoses to DSM-5 diagnoses took place on October 1st, 2015. It was at this time that all medical and psychiatric providers were to cease using diagnostic coding (and relevant diagnostic criteria) relative to ICD-9-CM standards, to diagnostic coding as indicated by ICD-10-CM standards (including any changes relevant to diagnostic criteria of various disorders, conditions or problems). ICD codes (International Classification of Diseases codes), more formally identified as the International Statistical Classification of Diseases and Related Health Problems, is copy written by the World Health Organization (WHO) and owns and publishes the classification. For example, under the DSM-IV-TR, diagnostic coding and ICD-9 coding for PTSD are both identified as 309.81, whereas coding for PTSD under DSM-5 is identified as F43.10 as to ICD-10 and 309.81 diagnostically.

It is important to understand that although the official date for the transition from DSM-IV-TR to DSM-5 took place on October 1st, 2015, changes in Minnesota State Statutes regarding the diagnosis of PTSD requiring DSM-V diagnostic criteria, as in the case of workers’ compensation benefits for Peace Officers, took place prior to October 2015 (see Minnesota Statute §299A.465 and Minnesota Statute §299A.475 for important details regarding PERA, MSRS, and workers’ compensation).

More important than the differences in diagnostic coding between DSM-IV-TR (PTSD, 309.81) and DSM-5 (PTSD, 309.81 F43.10) are the substantive distinctions in the differences between PTSD diagnostic criteria as indicated in the DSM-V as compared to the DSM-IV-TR.

Post-Traumatic Stress Disorder, DSM-V vs. DSM-IV-TR

According to the Diagnostic Statistical Manual, Fifth Edition, (DSM-V), PTSD is described specifically, in part, as follows.

Post-Traumatic Stress Disorder (PTSD) 309.81 (F43.10) – Diagnostic Criteria:
 Note: The following criteria apply to adults, adolescents, and children older than 6 years.

A. Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
1. Directly experiencing the traumatic event(s).
2. Witnessing, in person, the event(s) as it occurred to others.
3. Learning that a traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental.
4. Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains, police officers repeatedly exposed to details of child abuse).

Note: Criterion A4 does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work-related.

B. Presence of one (or more) of the following intrusive symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred:
1. Recurrent, involuntary, and intrusive distressing memories of the traumatic events(s).
2. Recurrent distressing dreams in which the content and/or affect of the dream are related to traumatic the event(s).
3. Dissociative reactions (e.g., flashbacks) in which the individual feels or act as if the traumatic event(s) were recurring. (Such reactions may occur on a continuum, with the most extreme expression being a complete loss of awareness of present surroundings).
4. Intense prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
5. Marked psychological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).

C. Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic event(s) occurred, as evidenced by one or both of the following:
1. Avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
2. Avoidance of or efforts to avoid external or internal reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).

D. Negative alterations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
1. Inability to remember an important aspect of the traumatic event(s) (typically due to dissociative amnesia and to other factors such as head injury, alcohol or drugs).
2. Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., “I am bad,” “No one can be trusted,” “The world is completely dangerous,” “My whole nervous system is permanently ruined”).
3. Persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others.
4. Persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame).
5. Markedly diminished interest or participation in significant activities.
6. Feelings of detachment or estrangement from others.
7. Persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings).

E. Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
1. Irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects.
2. Reckless or self-destructive behavior.
3. Hyper vigilance.
4. Exaggerated startle response.
5. Problems with concentration.
6. Sleep Disturbance (e.g., difficulty falling asleep or restless sleep).

F. Duration of the disturbance (Criteria B, C, D, and E) is more than 1 month.
G. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
H. The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition.

Specify whether:

With dissociative symptoms: The individual’s symptoms meet the criteria for post-traumatic stress disorder, and in addition, in response to the stressor, the individual experiences persistent or recurrent symptoms of either of the following:

1. Depersonalization: Persistent or recurrent experiences of feeling detached from, and as if one were an outside observer of, one’s mental processes or body (e.g., feeling as though one were in a dream; feeling a sense of unreality of self or body or time moving slowly).
2. Derealization: Persistent or recurrent experiences of unreality of surroundings (e.g., the world around the individual is experienced as unreal, dreamlike, distant, or distorted).
Note: To use this subtype, the dissociative symptoms must not be attributable to the physiological effects of a substance (e.g., blackouts, behavior during alcohol intoxication) or another medial condition (e.g., complex partial seizures).

Specify if:

            With delayed expression: If the full diagnostic criteria are not met until at least 6 months after the event (although the onset and expression of some symptoms may be immediate).

American Psychiatric Association (2013). Diagnostic and Statistical Manual, Fifth Edition, Text 
           Washington, DC: American Psychiatric Association (271- 272).

According to the Diagnostic Statistical Manual, Fourth Edition, Text-Revised (DSM-IV-TR), PTSD is described, in summary, as requiring two critical features, as follows: (1) The person has been exposed to a traumatic event whereby they have experienced, witnessed, or were confronted by an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others and, (2) the person’s response involved intense fear, helplessness, or horror. Research informs us that the traumatic event alone does not cause PTSD but that it is the individual perception of the event by the involved person and the thoughts generated about the traumatic event that results in the traumatic emotional and memory response that characterizes PTSD. In other words, the way we think about things shapes how we emotionally respond to things, thus we suggest that individual differences in perception, cognitive appraisal of the event, emotions generated, and memories produced regarding the traumatic event or events are important contributory variables in terms of the development of PTSD in terms of intensity of response. Overall, it is the emotional memory of the traumatic event that seems to be a significant source of PTSD symptoms and complaints as opposed to the material facts of the traumatic event itself.

Among the most significant changes in the DSM-5, which, as indicated above, was released in May of 2013, are both the classification and conceptualization of PTSD. The condition is no longer indicated as being an anxiety disorder, but rather a “Trauma-and-Stressor-Related Disorder.”  Also, the DSM-5 reflects a number of changes relative to PTSD criteria whereas a traumatic event is more clearly defined than it was previously in the DSM-IV-TR. The DSM-5 specifies examples of experiencing or witnessing a traumatic event, such as sexual assault or the repeated indirect exposure to adverse events, such as in the case for public safety professionals, and requires the necessity of being explicit as to how the event was experienced (i.e., directly or indirectly).

Determination of a PTSD Diagnosis

As was the case previously under DSM-IV-TR, and is the case now regarding the DSM-V, the recommended best practices regarding the process to be used in determination of a diagnosis of PTSD includes the completion of a structured interview of the individual wherein some sort of specific instrument or protocol is used so as to identify the triggering traumatic exposure or exposures (e.g., the story of traumatic exposure), the reported and observed associated symptoms and complaints including onset, intensity, frequency and duration and frequency (e.g., individual self-report and the use of some type of PTSD symptom check-list), the completion of psychometric evaluation (e.g., MMPI-2/MMPI-RF testing), and the review of relevant current and past treatment records, if available, depending on the date of injury and onset of problems.

Conclusion

PTSD, whether understood and diagnosed in the context of DSM-IV-TR or DSM-V diagnostic criteria, remains a very serious condition and needs to be taken seriously. It is important to seek and obtain professional help if you think you might be experiencing PTSD.

It is also important to understand that from a clinical diagnostic perspective, if an individual meets DSM-IV-TR diagnostic criteria for PTSD secondary to their work-related traumatic exposure or exposures while working as a licensed Minnesota Peace Officer, they will continue to meet DSM-V PTSD diagnostic criteria going forward. The change from DSM-IV-TR to DSM-5 did not have a more limiting and/or restrictive affect as to an individual potentially meeting diagnostic qualification for a formal diagnosis of PTSD; rather it clarified and more so expanded potential qualification as a result of clarification of what is understood to be a traumatic event and what is meant by exposure or repeated exposures to said traumatic events as compared to the previous criteria of witnessing and/or participating in a traumatic event or events.

Sources:

 American Psychiatric Association (2000). Diagnostic and Statistical Manual, Fourth Edition, Text 
             Revision, Washington, DC: American Psychiatric Association.

American Psychiatric Association (2013). Diagnostic and Statistical Manual, Fifth Edition,
           Washington, DC: American Psychiatric Association (271- 272).

Centers for Disease Control and Prevention (2015). Clarification of Diseases, Functioning, and 
             Disability, Washington DC: U.S. Department of Health and Human Services

Houston, A.A., Webb-Murphy, J., & Delaney, E. (2013). From DSM-IV-TR to DSM-5: Changes in 
            Posttraumatic Stress Disorder, Naval Center for Combat & Operational Stress Control, Boston, MA.

Weathers, F.W., Litz, B.T., Keane, T.M., Palmieri, P.A., Marx, B.P., & Schnur, P.P. (2013), The PTSD 
            Checklist for DSM-5 (PCL-5). National Center for PTSD.


Dr. Michael Keller is a licensed clinical and forensic psychologist who serves a variety of Minnesota and Wisconsin law enforcement agencies as well individual members of the law enforcement community and their families. He is a retired law enforcement officer and a member of the American Psychological Association (Clinical Psychology and Police & Public Safety Psychology Sections) and is a member the Police Psychological Services Section of the International Association of Chiefs of Police.

Dr. Michael Keller, Ph.D., LP
121 Adams Street
Cambridge, MN 55008
763-442-4111
www.psychologicalserviceassociates.com

by Ron Meuser
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Can I Move to Another State While Collecting Minnesota Workers’ Compensation Benefits?

I have been asked many times by injured employees, “Can I move out of state? Will this affect my Minnesota workers’ compensation benefits?” The answer I always give my clients is it depends. And, it truly does depend on a number of factors, including the location of the move and the type of benefits involved. But, we can typically find a way to make the out-of-state move work while still protecting all of the injured workers’ benefits.

Factor 1: Can you perform a diligent job search in your new location?

If an injured employee is completely off of work and collecting temporary total disability (TTD) benefits, he or she is required to conduct a diligent job search. There is no case law or statute that specifically defines “diligent job search” or specifies the number of job contacts that must be made or the geographic area within which jobs must be sought. Rather, whether a diligent job search has been conducted is a fact question for the judge.

The central question I ask my clients when assessing this factor is what is the new area like? Is it a city or a small town? Are there going to be job opportunities there? Will those job opportunities be similar to those that are available in the city they are currently living in? If my client is looking to move to a city that is similarly situated in terms of size and job opportunity then I’m typically confident that he or she will be able to perform a diligent job search in the new location. Of course, if you move to the new location for a job offer, this factor is largely moot unless the job does not come close to replacing your date of injury wages.

Factor 2: Would you be deemed to have withdrawn from the labor market in your new location?

Under Minnesota Statutes section 176.101, subd. 1(f), an employee’s temporary partial disability benefits shall cease if the employee withdraws from the labor market; however, moving to a new community does not preclude an employee from receiving wage loss benefits if there is a reasonable expectation of earning a reasonable livelihood in the town of destination. This is the proper test for determining whether your wage loss benefits will cease after moving to a new community.

If the injured worker moves to a new community where the employment prospects are substantially worse, or virtually non-existent, his or her wage loss benefits will be in jeopardy. The insurer will argue that the move is the reason why the employee cannot find work, not the work injury. An example I often use with clients is a move from the Twin Cities to a small town in Montana. It is fairly clear in this circumstance that the Twin Cities offers greater employment opportunities and the insurer may be able to make a colorable argument that the employee is effectively withdrawing from the labor market. It is a fine line though. The Workers’ Compensation Court of Appeals in Giles v. Minnesota Department of Transportation determined that a move from the Twin Cities to Albert Lea was not sufficient to cut off wage benefits under this theory. The court ruled that Albert Lea was not so sparsely populated to the point where job opportunities were virtually non-existent.

If an insurer does cut off your wage benefits because of a move, benefits can be restarted if you reenter the labor market prior to 90 days after reaching maximum medical improvement (MMI) and before receiving 130 weeks of TTD.

Factor 3: What impact does an out-of-state move have on my rehabilitation benefits?

If an employee voluntarily relocates to another city or town, the same analysis is used for rehabilitation benefits. You will still be able to seek rehabilitation services, including vocational rehabilitation services from your qualified rehabilitation consultant (QRC) as long as there is a reasonable expectation of earning a reasonable livelihood in the town of destination.

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.

by Ashley Biermann
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