Employee Who Separates from Date of Injury Employer Due to PERA Duty Disability Remains Entitled to Wage Loss Benefits

Accepting an award of PERA Duty Disability Benefits does not prevent firefighters, police officers, deputy sheriffs, and corrections officers from receiving wage loss benefits, including temporary partial disability benefits under the Minnesota Workers’ Compensation Act.

A member approved for PERA Duty Disability benefits must separate from his or her position covered under the applicable plan, Police and Fire or Corrections, before receiving benefits. Members are encouraged to work in a different capacity. PERA Duty Disability benefits are not the same as PERA permanent and total disability benefits, members may work and still receive work comp benefits, PERA benefits, and income from a new employer. When the member begins working with a new employer and earns less than from the previous city or county employment, he or she will be eligible for temporary partial disability benefits from Minnesota workers’ compensation.

Temporary partial disability (TPD) benefits are wage loss benefits available to injured workers under the Minnesota Workers’ Compensation Act who are able to return to work, but at a reduced wage because of his or her work injury. TPD is available for a total of 225 weeks but no more than 450 weeks after the date of injury. TPD is paid out at a rate of 2/3 of the difference between what the employee was making at the time of the injury or average weekly wage and the reduced earnings. Like other work comp benefits, TPD benefits are non-taxable.

In order to receive TPD injured workers must:

(1) Suffer a work-related injury
(2) Experience a loss of earning capacity as a result of that injury
(3) Be able to work, subject to restrictions
(4) Experience an actual loss of earning capacity

It is well settled law that “[a]n injured worker is not forever bound to his employer in order to retain his entitlement to benefits.” Boutto v. U.S. Steel Corp., slip. Op., No. WC06-288 (W.C.C.A. July 18, 2007). This means that an injured employee does not have to continue to work for the date of injury employer as a prerequisite to receiving work comp benefits. Anything less would force injured workers to be at the mercy of the employer.

This is especially the case when injured workers leave the date of injury employer as a result of PERA awarding PERA Duty Disability benefits. “The fact that the employee accepted an early retirement incentive from his employer for reasons unrelated to his injury or that he remains physically able to perform his previous job is not relevant to the question of whether the employee’s actual loss of earning capacity is causally related to the work injury.” Id. “[I]t is well settled that termination from employment for reasons not connected to the work injury does not preclude an award of temporary partial disability benefits.” Id.

Employers and insurers hate having to pay employees wage loss benefits who separate due to his or her PERA Duty Disability and will look for any excuse to cut off the payment of such benefits. Attorneys may have to file claim petitions or send letters to demand payment.

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. Sitting down with us for a consultation to learn more about your potential claims is a lot like financial planning. We can explain what rights you have and make recommendations to you in terms of how to best protect your rights to those benefits. The knowledgeable attorneys at Meuser Law Office, P.A. can help make the process easier to navigate. Contact us today for a free, no-obligation consultation by calling 1-877-746-5680.

by Mary Beth
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What if the Critical Incidents Which Cause PTSD Happen Prior To October 1, 2013?

Frequently, Minnesota police officers, firefighters, and corrections officers worry that they may not be entitled to workers’ compensation benefits arising out of his or her employment because the critical incidents pre-date October 1, 2013. Due to the nature of post-traumatic stress disorder (PTSD), classifying PTSD as a specific injury with a specific “exposure” date may be illogical, especially in cases involving police officers who participate in many traumatic events during the course and scope of their employment. The law changed in Minnesota on October 1, 2013. PTSD is now compensable as a strictly mental-mental injury. The date of injury in these cases are particularly important because the date of injury determines what benefits are available to injured employees.

1. Minnesota Statute §176.011, subdivision 15, defines PTSD as an occupational disease

PTSD may also be considered an occupational disease. Therefore, the applicable date of injury is the date the employee became disabled or diagnosed, not a single specific traumatic exposure under Minn. Stat. §176.66, subd. 1. The employee’s entitlement to benefits is established by the law in effect on the date of disablement, not the law in effect on the last date of exposure. Stillson v. Peterson & Hede Co., 454 N.W.2d 430 (Minn. 1990). As set forth in Criterion G of the DSM-5, the diagnostic tool used to diagnosis PTSD as required by Minnesota Statute 176.011, subdivision 15(d), in order for an employee even be diagnosed with PTSD, the employee must experience a later functional disturbance or impairment in social, occupational, or other areas of function. Many officers are exposed to traumatic events, but not all officers develop PTSD as they may not ever experience a functional impairment.

2. Minnesota Statute §176.011, subdivision 16, also allows PTSD to be defined as a Gillete type injury 

The date of injury in Gillete cases is the date of disablement and include ascertainable events that evidence the culmination of a disability, which include the date the employee initiated medical attention, date of a definite diagnosis, when the treating doctor determined the condition was work-related, and when the employee sought regular medical care. Schnurrer v. Hoerner-Waldorf, 345 N.W.2d 230 (Minn. 1984); Schaffer v. Minn. Orchestra, 53 W.C.D. 341 (1995); Reel v. Loftness Specialty Farm Equipment, slip op. (W.C.C.A. February 3, 2004); Neff v. Supervalue, Inc., 71 W.C.D. 217 (W.C.C.A. 2011); Cramer v. United Parcel Services., 72 W.C.D. 519 (W.C.C.A. 2012). As set forth in Criterion A in the DSM-5, PTSD may develop from the exposure to one or more traumatic events. It is questionable whether a physician could even pinpoint to a degree of medical certainty which event accounts for what percentage of the employee’s overall PTSD; therefore, the date of disablement is the logical date of injury.

3. A date of injury before October 1, 2013 does not bar an employee’s claim for benefits arising out of his or her PTSD post October 1, 2013

Even if an employee developed PTSD before October 1, 2013, his PTSD prior to October 1, 2013 would constitute a pre-existing condition. If subsequent traumatic events were substantial contributing causes or factors to the worsening of the condition, then his condition after October 1, 2013 would be compensable.

If you or someone you know suffers from PTSD due to a work-related accident or traumatic incident, you should consult with an attorney experienced in this area of the law. At Meuser Law Office, P.A., we have represented many clients with PTSD, including police officers, firefighters, first responders and correctional officers. We understand this nuanced area of the law and work with our client to ensure you receive the full benefits you are entitled. Contact Meuser Law Office, P.A. for a no-obligation consultation today. Don’t let the insurance company unfairly deny you benefits as a result of their misinterpretation of the law surrounding PTSD in Minnesota. Call us today at 1-877-746-5680.

by Mary Beth
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PERA Permanent and Total Disability vs PERA Duty Disability

PERA Duty Disability benefits and PERA Permanent Total Disability benefits entitle qualified members to 60% of the member’s average salary over his or her five highest-paid consecutive years of service, which is the equivalent to a retirement benefit based on 20 years of service. If members have in excess of 20 years of qualifying service he or she will receive an additional 3% for every year in excess of 20 years.

Police Officers and Firefighters injured in the line of duty face advantages and disadvantages when deciding to apply for PERA Permanent and Total Disability or PERA Duty Disability benefits.

(1) Requirements

PERA Permanent and Total Disability:  Members must demonstrate that they were disabled in the line of duty while performing inherently dangerous duties specific to the position covered by the plan and are unable to continue working in substantial gainful employment.

PERA Duty Disability:  Members must show that they were disabled in the line of duty while performing inherently dangerous duties specific to the position covered by the Police and Fire Plan. Members may be released to work in another capacity but are not able to fulfill all the normal duties of his or her date of injury position.

(2) Survivorship

PERA Permanent and Total Disability:  If the Duty Disability is total and permanent, the member is eligible for automatic survivor protection until age 55 or 5 years after the disability occurs, whichever is later. Survivor protection means should you die the spouse will receive a portion of the member’s disability pension for a set amount of time.

PERA Duty Disability:  If the member is approved for Duty Disability he or she may elect a survivorship option, such as single life, 50% or 100%. The monthly disability benefit is then reduced based on the option to pay for the elected survivorship option, which then functions like life insurance for the disabled member. When the Duty Disability converts to a retirement benefit, either in 5 years or at age 55, whichever is later, then the member may re-elect and change his or her survivorship option.

(3) Taxation

PERA Permanent and Total Disability:  The base 60% of the member’s five highest consecutive years of his or her salary remains non-taxable for life; however, the member’s benefits stemming from service in excess of 20 years is taxable.

PERA Duty Disability:  The base 60% of the member’s “high five” is non-taxable until the disability benefit converts to a retirement benefit. Benefits attributable to service in excess of 20 years is taxable, even when categorized as a disability benefit.

(4) Workers’ Compensation Offsets

PERA Permanent and Total Disability:  If PERA approves a member for permanent and total disability benefits, he or she remains in disability status for his or her lifetime and the benefit never converts to a retirement benefit.

If the member cannot work on a substantial gainful basis than he or she will not be eligible for temporary partial disability benefits in workers’ compensation benefits.

The member would likely be deemed “permanently totally disabled” in the workers’ compensation context as well. Permanent total disability benefits in work comp are completely offset by PERA disability benefits. Members frequently receive more in PERA disability benefits than they would be entitled to receive through work comp. Therefore, if members receive PERA permanent and total disability benefits they may not be entitled to any wage loss benefits from work comp.

PERA Duty Disability:  If PERA approves a member for Duty Disability benefits, then he or she is able to receive wage loss benefits from work comp in addition to his or her PERA benefits.

The member may receive work comp, PERA, and work in a different capacity. If he or she earns less money than the member did before the injury, then he or she may be entitled to temporary partial disability benefits. If these three sources of income are over 125% of the members “high five” income then the PERA benefit is reduced a dollar for every three dollars.

If the member is deemed “permanent and totally disabled” in the workers’ compensation context, then the member’s PERA Duty Disability benefits are offset until the PERA benefits convert to a retirement benefit.

If you are considering applying for PERA Duty Disability or PERA permanent and total disability benefits contact the attorneys at Meuser Law Office, P.A. for a free, no obligation consultation. Each case is unique you may be sacrificing hundreds of thousands of dollars if you apply for the wrong benefit. Our knowledgeable attorneys will help you understand the often confusing PERA Duty Disability benefit law and ensure you receive the full benefits you are entitled to. Call us today at 1-877-746-5680.

by Mary Beth
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