Can You be Denied Workers’ Compensation Benefits Because of a Prior Injury?

Many injured workers are denied Minnesota workers’ compensation benefits because of prior injuries. For example, a workers’ compensation insurer may see that you filed a workers’ compensation claim with a former employer for the same body part and deny your claim, alleging that your current symptoms are the result of the prior injury. Or, an insurer may review your medical records and discover that you sustained an injury while playing basketball fifteen years earlier. This can be true even if you have been working full-duty for several years without any physical issues.

What do you do when your claim is denied?

Dealing with a denied workers’ compensation claim can be very frustrating. Many injured workers reasonably assume that because they were injured at work, everything will be taken care of by their employer and its insurance company. Unfortunately, for many injured workers, this is not the case and they find themselves incurring thousands of dollars in wage loss and medical bills, the employee has lost several weeks of wages and run up hundreds, or thousands, of dollars in medical bills.

In this situation, you have a couple of options. The insurance company hopes that you will simply walk away. If you have health insurance or are willing to go back to work despite your injury (and many times, against your treating doctor’s advice), you can simply avoid the fight and walk away from the claim. Many insurance companies count on the fact that employees will do this instead of contacting an attorney and taking definitive steps to prove their claim. The choice to not make a workers’ compensation claim can have dire consequences if the injury turns out to be a serious or long-term issue. Under the Workers’ Compensation Act, employees must file their workers’ compensation claims with the state within a prescribed period of time or they will be forever barred from bringing their claims. It is important that you discuss these deadlines (or statute of limitations) with an experienced attorney so you can make an informed choice about whether to proceed with a claim.

The second option is to fight the insurance company for the wage loss and medical benefits that you are entitled to under the Minnesota Workers’ Compensation Act. The first thing you will want to do is call an attorney experienced in the area of workers’ compensation to determine whether you have a viable claim. If the attorney believes that you have a compensable claim, they will work on your behalf to establish your claims by gathering medical evidence, including records and reports; filing your claim with the Department of Labor and Industry; and advocate on your behalf with the insurance company and its representatives.

What if I had a prior injury to the same body part?

When I first speak to clients, I often hear that they do not want to bring a claim because of a prior injury to the same body part. Many people falsely believe that a prior injury will disqualify them from receiving workers’ compensation benefits. This is categorically untrue. Prior injuries can make your claim more complicated in some circumstances; however, the Minnesota workers’ compensation laws do not require that your work injury be the sole cause of your current injury or disability. The law only requires that the work injury be a substantial contributing cause or factor to the underlying condition or disability. In other words, your prior injury and your work injury may have combined to create your current condition—and that’s completely fine. You are still able to bring a workers’ compensation claim, collect wage loss and have your medical bills covered.

In Minnesota, the workers’ compensation laws actually go even a step further. If you have a pre-existing injury that is substantially re-aggravated or accelerated by a work injury or your work duties, you are eligible to receive workers’ compensation benefits. An example the attorneys at Meuser Law Office, P.A. frequently encounter is police officers that develop PTSD on the job relating to his or her job duties. Many police officers have served in the military prior to going into law enforcement and may have experienced traumatic events as a police officer and as a service member. This does not preclude them from receiving workers’ compensation benefits relating to his or her PTSD condition. This is true even if the police officer had been diagnosed with PTSD through the Veteran’s Administration and is collecting disability benefits.

The burden of proof in a Minnesota workers’ compensation claim is on the employee. This is significant because it means that when a claim is denied or disputed, an employee must prove that his or her work injury or duties was a substantial contributing cause or factor to his or her current condition. An employee can establish this by filing a claim with the Department of Labor and Industry, obtaining a medical report (or a “narrative report”) that supports the causal connection between the condition and the work duties, and resolving the claims through settlement or a hearing.

If you or someone you know has sustained an injury on the job and the workers’ compensation insurer has denied your claim, do not panic. As explained in this article, you are able to fight this determination, even if you have a pre-existing condition or prior injury. It is important that you contact the experienced attorneys at Meuser Law Office, P.A., they will provide valuable guidance on the Minnesota workers’ compensation system and help you navigate through what can be a very stressful process. Contact us today for a free, no-obligation consultation by calling 1-877-746-5680.

by Ashley Biermann
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Do I Need Work Restrictions to Make a Workers' Compensation Claim?

The simple answer is yes.

Following a work injury, it is of utmost importance that you seek medical treatment. In a typical Minnesota workers' compensation case, an employee will go to the emergency room or urgent care for an evaluation and will be given work restrictions at that time. Work restrictions can be as restrictive as "no work at all" until an employee can be evaluated by a specialist or have an MRI completed. Work restrictions may also be as simple as "no lifting more than 50 pounds." Once you receive work restrictions, you must provide documentation of these restrictions to your human resources department or supervisor immediately.

When you see your doctor following a work injury, it is very important that you inform your doctor that you sustained an injury at work and how the injury occurred. Tell the truth and be consistent with what you tell your doctors. If you are inconsistent in your narrative of how the injury occurred, the workers' compensation insurer may try to deny the claim on this basis.

At some point, your treating physicians may determine that you can return back to full-duty work and release you back to work without formal physical restrictions. Your doctor may think that he's doing you a favor in allowing you to return to work; however, unless your injury was mild or temporary in nature, your treating physician releasing you to return to work without restrictions can be problematic for your workers' compensation claim, in addition to your overall physical well-being.

What are my employer's responsibilities?

When you have restrictions relating to your work injury, your doctor will document the work injury and provide you with restrictions. An employer cannot fire you for having work restrictions and they cannot force you to work outside the scope of your physical restrictions. You may feel pressured by the employer to ask your doctor to lift your physical restrictions, but this could make the injury worse or cause re-injury. In addition, as a practical matter, returning to work without restrictions (even though you remain injured) puts you in a vulnerable position because if you are fired for being unable to perform your job, you will not be entitled to ongoing wage loss benefits. You need physical restrictions to receive wage loss benefits under the Minnesota Worker's Compensation Act.

If you've sustained a work-related injury and have work restrictions, an employer must either accommodate your restrictions in your current position, find a light duty position within your physical restrictions, or provide vocational rehabilitation and training if you are unable to work in your previous position.

Do I have to accept a light duty job?

When you have been injured at work and are unable to perform all the duties of your position, employers will often offer you light duty work. To be acceptable, this work must be within the physical restrictions issued to you by your doctor. If the light duty position pays less, or provides you with fewer hours, you will be entitled to a wage loss benefit known as temporary partial disability (TPD). The purpose of temporary partial disability is to return you to the economic status that you enjoyed before sustaining an injury on the job, and as such, it pays you the difference between what you were making at the time of the injury and what you are making in the light duty position.

Every light duty job is different. It is very important that you do not turn down or refuse a light duty job offer until you speak with an attorney. An experienced attorney will be able to analyze the job offer and determine whether it is physically and economically suitable. If it is, your safest course of action would be to accept the light duty position. If you do not, you run the risk of the workers' compensation insurer terminating your ongoing wage loss benefits.

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 to which 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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What Can I Expect to Receive in a Workers' Compensation Settlement?

A question often asked by clients when meeting for the first time is "how much is my claim worth?" While there is no hard and fast rule when it comes to estimating the value of a Minnesota workers' compensation claim, there are a variety of factors in every claim that help determine a fair settlement value or range.

1. How long have you been receiving wage loss benefits?

Most wage loss benefits in the workers' compensation system have temporal caps. For example, you can only receive 130 weeks of temporary total disability benefits (TTD) for injuries occurring on or after October 1, 2013. In addition, you can only receive 225 weeks of temporary partial wage loss benefits (TPD) or approximately four and a half years. Because these wage loss benefits are capped, the number of weeks you have received benefits will affect the value of a Minnesota workers' compensation claim.

2. Average weekly wage, i.e., how much were you earning on your date of injury?

If the injured person is a high wage earner, the value of the claim will be greater than someone earning a lower wage. The average weekly wage for a claim is calculated based upon average earnings for the six months preceding the date of injury. As such, it is important to have an accurate average weekly wage calculation and to be using the most recent date of injury to ensure the greatest possible settlement from workers' compensation is received.

3. Did the insurer accept or deny your workers' compensation claim?

When a workers' compensation claim is accepted by the insurer, you generally have a stronger position going into a settlement conference or mediation. This is true because many times the insurer is paying the employee ongoing benefits. If your claim is accepted, there will still be a dispute with the insurer with regard to the "nature and extent" of the injury and the amount of the benefits owed but the insurer has admitted responsibility for the injury when a claim is accepted.

On the other hand, if a claim is denied and litigation is pending, the insurance company knows that there is a chance that they will not have to pay anything for the claim. If you go to court, there is a chance the insurance company will win, and this is factored into the insurance company's exposure analysis for your claim. For example, let's say you have a 50% chance of winning your claim. The insurance company will typically look at the overall exposure for your claim, calculate how much you would receive if your case went to hearing and we won on each of the claims then reduce that amount by 50%, (i.e., the estimated chance of success for the claim).

4. Did you sustain a permanent or temporary injury? 

This concept is relatively straightforward. If you sustained a serious injury and are issued permanent restrictions, the insurance company will understand that you will likely collect most, if not all, of your wage loss benefits. In addition, you will likely be entitled to a benefit known as permanent partial disability (PPD) for the loss of use or functioning of the affected body part. This benefit is not available to employees that have sustained minor injuries. Conversely, if you sustained a relatively minor injury, the claim will likely have a limited settlement value because the injured person is expected to make a full recovery and return to the date of injury employer at full wage earnings.

5. How strong is your medical support?

If there is medical support from a treating physician, linking the injured individual's current condition to a work-injury, the claim tends to be stronger. This is especially true if the treating physician is an experienced, well-respected specialist, such as an orthopedic surgeon, in the relevant area. Remember, the burden of proof in a workers' compensation claim is on the employee. This means that the injured employee is responsible for providing medical evidence to support the claims if the matter goes before a judge. As such, if a claims adjuster or a defense attorney gets a persuasive narrative report from a treating physician that supports your claims, they will understand that you will be much more likely to be successful at hearing, which adds value to your claim.

6. Who is representing you?

If you choose to represent yourself, you will be at a serious disadvantage when it comes to settling your claims. Minnesota workers' compensation is a complex, confusing area of the law and you will not know whether you are getting all the benefits to which you are entitled unless you have an experienced workers' compensation attorney. In addition, your employer will be represented by a claims adjuster or attorney that has significant experience in the area and they will not be looking out for your best interests.

If you are thinking about settling your Minnesota workers' compensation claim, it is of utmost importance that you check with a workers' compensation attorney before you do. This is especially true if you are a police officer or firefighter and also entitled to PERA or MSRS benefits because there are certain, applicable offset provisions that will apply to any workers' compensation settlement. A wrong decision could cost you thousands of dollars. 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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Can I Be Fired for Reporting a Work Injury?

The short answer is no, not legally. Technically, an employer can terminate you for any reason, legal or not, but there is recourse that can be taken if you are fired or threatened with termination after sustaining an injury at work.

An employer must fill out a First Report of Injury after you report a work injury however, despite completing and filing this form, an employer may still doubt your veracity and the legitimacy of your injury claim. If this belief is communicated to the Minnesota workers’ compensation insurer, your claim may be denied. After the denial, the employer may feel justified in disciplining or firing you for filing a “false claim.”

Minnesota law does not allow an employer from discharging or threatening to discharge an employee for seeking workers' compensation benefits or in any manner intentionally obstructing an employee seeking workers’ compensation benefits. This provision allows an injured worker to bring a civil claim against his employer if the employee was fired or obstructed from bringing a workers’ compensation claim. In practice, these actions are fairly uncommon but they’re also essential. The action acts as a check against employers, allowing employees to recover the workers’ compensation benefits that they would have received if not for the unlawful interference of their employer.

This law does not mean that an employee can never be fired legally after sustaining a work-related injury. For example, if an employee already has an extensive history of absenteeism and then misses several days from work after a work injury without providing restrictions from his doctor, the employee may be terminated through the process set out in the employer’s standard policy. If your employer terminates you after filing a work injury and does not follow its standard policy, does not assist you in filing for workers’ compensation benefits, or does not allow you a reasonable opportunity to seek medical treatment, you may be able to bring a successful retaliation claim.

Furthermore, with regard to “false claims,” the employer may be able to fire you for reporting what they believe to be a false workers’ compensation claim. This, however, is risky for the employer because the court seems to be asking whether the employer had a “reasonable belief” of claim falsification. What is a reasonable belief of claim falsification? Again, it depends, but the consensus seems to be that the employer must conduct a thorough investigation of the employee’s allegation of work-related injury. In completing this investigation, the court looks at whether the employer conducted a detailed and fair investigation, and was not simply results oriented. It also should make sure that any such investigation is complete and not results oriented.

It is also worth noting that practical concerns influence employers with regard to discharging employees. If an employee’s claim is admitted, the employer and insurer will be on the hook for ongoing wage loss benefits, if they choose to terminate you. This results in a very real financial incentive for employers to find work for you after sustaining a work injury. This is still true, but to a lesser extent, for denied claims. Even if your claim is denied by the workers’ compensation insurer, you’re still able to fight for the benefits the insurer should have paid you and establish ongoing workers’ compensation payments from the date of termination forward.

Contact Meuser Law Office, P.A. for a free, no-obligation case evaluation and consultation. The knowledgeable attorneys at Meuser Law Office, P.A. take the time with each client to help determine which benefits under the Minnesota Workers’ Compensation Act you are entitled. Call us today at 877-746-5680.

by Ashley Biermann
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I Was Injured Commuting to or From Work. Am I Covered Under the Minnesota Workers’ Compensation Act?

The general rules is, you will not be entitled to workers’ compensation benefits if you were commuting to or from work at the time you were injured; however, there are a few exceptions to this rule.

In Minnesota, the general rule is that workers’ compensation benefits are available to employees who sustain injuries “while engaged in, on, or about the premises where the employee’s services require the employee’s presence as a part of that service at the time of the injury and during the hours of that service.”  Minn. Stat. § 176.011, subd. 16.

One exception to what is often referred to as the “coming and going” rule is the responsibility of the employer to provide its employees with a safe ingress to or egress from the employment premises. To fall within this exception, an employee must show that the injured occurred within the following criteria:

1) Before or after the workday
2) On an area that is considered a party of the employer’s premises
3) Within a customary route of ingress and egress

For example, if an employee falls, and is injured due to snow and ice the employer’s parking lot a few minutes after clocking out, this injury would likely be compensable. If the same injury occurred on the state-owned sidewalk in front of the employer’s premises, this injury would likely not be compensable.

One other factor that courts take into consideration is whether the employee was “engaged in activity reasonably incidental to her employment” at the time of the injury. For example, if a bartender clocks out but chooses to “hang out” at the bar, have drinks and socialize for an hour before leaving and sustaining an injury in the employer’s parking lot, this would not be a compensable injury because the employee was no longer engaged in an activity reasonably incidental to his or her employment.

The second exception to the “coming and going” rule is employer-furnished transportation. When the employer regularly furnishes transportation to employees to and from the place of employment, and the employee is injured during transport, the employee’s injury is compensable under Minnesota workers’ compensation laws.

The third exception to the “coming and going” rule is travel between two work places. One of these work sites could be the employee’s home if a portion of the employee’s work is performed at home. Therefore, situations may arise in which an injury that occurs during the trip between the employee’s home and his employer’s premises falls within the scope of workers’ compensation coverage. The most important factor when analyzing this exception is whether the employee’s conduct at the time he or she sustained an injury was connected with the demands or obligations of his or her employment.

Lastly, if the employment requires travel, injuries sustained by the employee may be compensable if the injury occurs in the course of a business trip. The portion of this exception that is often the subject litigation is: “What does it mean to be in the course of a business trip?” To prove an employee was in the course of a business trip, the employee must show that the trip furthered the employer’s interest, the employee received complete or partial reimbursement for travel expenses or the employee received wages for the time spent traveling. However, if the employee deviates from the employer’s business during the course of the trip and engages in a “personal mission,” workers’ compensation benefits can be denied. An example of a personal mission is visiting a romantic partner or watching the football game at a bar for recreational purposes.

Don’t wait to get an attorney involved if you have a Minnesota workers’ compensation claim. As this article illustrates, this area of the law is nuanced and complex. The attorneys at Meuser Law Office, P.A. will help ensure that you receive all the benefits to which you’re entitled. Contact Meuser Law Office, P.A. for a free no-obligation consultation and claim evaluation. Call us today at 1-877-746-5680.

by Ashley Biermann
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FAQs: Timing of Minnesota Workers’ Compensation Payments

At Meuser Law Office, P.A. we are committed to ensuring our clients are kept informed during the Minnesota workers’ compensation claim process and they know what to expect each step of the way. The process can be complex and confusing with many questions along the way. Here are some of the frequently asked questions:

How long does the workers’ compensation insurer have to pay my medical bill?

This is a question the attorneys at Meuser Law Office, P.A. are asked often. The answer is, it depends.

Per Minnesota Statute, the insurer must make payment for your medical bills within 30 days of receiving the bill. Notably, the thirty-day time period does not start to run until the insurer actually receives the medical bill. The relevant date is not the date of service for the appointment.

If the insurer choses to deny a bill, or a portion of a bill, the insurer must provide the employee and the health care provider with written notification of the denial, providing the basis for the denial. The denial must be issued 30 days from the insurer’s receipt of the bill.

When is my wage loss payment considered “late”?

Under Minnesota workers’ compensation law, the insurer must admit or deny liability for a workers’ compensation claim within 14 days of the employer receiving notice of the injury. Wage loss benefits begin three days after an injury occurs, but if your injury takes you out of work for more than ten days, wage loss will be due from the date your disability began (i.e., you will receive compensation for the first three days you missed work). If an insurer does not admit or deny liability within this prescribed period or start your wage loss benefits within 14 days, the insurer is at risk for a penalty.

Once wage loss benefits start, an employee is paid every week or every other week, depending on how frequently the employee was paid when he or she was working. Penalties are available if the employee can provide proof that more than three benefits payments were issued more than three business days late. Unfortunately, there is no penalty for late payments unless it occurs more than three times and each of these late payments were more than three business days late. In terms of “proof,” the following is sufficient to prove you are entitled to an employer-paid penalty:

• A copy of your compensation check stubs (temporary total disability benefits); or
• Documentation of the date on which the wage loss documentation was sent to the insurer (temporary partial disability).

The amount of the penalty is determined by the length of the delay and the amount of the benefits delayed. The amount of the penalty ranges between six and thirty percent of the amount delayed, and the percentage is based upon the length of time that the payment is delayed.

Can I request direct deposit (i.e., electronic funds transfer)?

One way to avoid late payments is to request direct deposit in lieu of paper checks for your weekly or biweekly workers’ compensation payments. One benefit of direct deposit is that you do not have to worry about national holidays or inclement weather slowing down the mail. In addition, you will be able to easily track and monitor the timing and amount of your payments.

The Minnesota State Legislature requires that employers set up direct deposit (or an electronic funds transfer) within 30 days of the employee making the request. If the employer-insurer does not have the electronic funds transfer system established, the employer-insurer must make efforts to establish the electronic funds transfer arrangement within 14 days of the employee’s request, and the insurer must make payment within 30 days of the request being fulfilled. 


Contact Meuser Law Office, P.A. for a free, no-obligation case evaluation and consultation. If you have questions regarding a Minnesota workers’ compensation insurer’s late payment of your medical or wage loss benefits, the attorneys at Meuser Law Office, P.A. will take the time to explain the laws that apply to your case and will make recommendations about how to proceed. Call us today at 1-877-746-5680.

by Ashley Biermann
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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.

by Ashley Biermann
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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

• Whether your injury is minor or career-ending, it is important to know your rights and options from the onset of your claim.

• 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.

by Ashley Biermann
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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.

by Ashley Biermann
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What Is the Superseding Intervening Cause Defense In My Workers’ Compensation Case?

The superseding intervening cause defense is one of the few defenses in Minnesota workers’ compensation law that can result in a complete bar to all benefits claimed that are attributable to the superseding event. The next natural question is, what is a superseding cause? Insurers argue that a wide range of activities constitute a superseding intervening cause, but that does not mean the court will agree. The central question to determine whether the event was a superseding intervening cause is, was the employee acting unreasonably when the event occurred? If the employee is deemed to have been acting unreasonably when the event occurred, the event will be deemed to be an independent cause of disability and the employee will lose all workers’ compensation benefits.

What? ‘Unreasonable’ is a pretty broad standard, what are some specific examples of how the court ruled in these cases?

In the following situations, the court ruled there WAS a superseding intervening cause, which cut off the employee’s benefits:

• The employee sustained injuries to his left and right shoulder at work. He did not miss work following this injury and he did not have any physical restrictions. Subsequently, he sustained a right shoulder injury when he fell on the ice and a left shoulder injury when he fell off of a small step stool at home. Following the at-home injuries, the employee missed time from work and underwent shoulder surgery. Hendrickson v. Potlatch Corp., 43 W.C.D 212 (1990). 

• The employee sustained a low back injury at work, which required two surgeries. After the second surgery, the employee was caught shoplifting on two occasions and was seen running away from the scene. After these shoplifting incidents, the employee sought additional treatment for the low back, including a spinal fusion. Winkelman v. Sandoz Nutrition (W.C.C.A. 1992).

• The employee sustained a work injury in 1981. By 1987, the employee had nearly returned to “normal” until she was in a motor vehicle collision resulting in further disability. Austin v. Coca-Cola Bottling (W.C.C.A. 1991).

• The employee sustained a work-related low back injury, which required surgery and the employee had ongoing problems. Eleven years later, the employee was playing softball in the snow and sustained another injury requiring surgery. Cummins v. Ryan Construction Co., 37 W.C.D (1984).

• The employee sustained a work-related injury, underwent surgery, completed a retraining program and returned to employment. Subsequently, the employee was roller skating and sustained a non-work related injury to the same area of the back. Gaspers v. Minneapolis Electric Steel Castings, 290 N.W.2d 743 (Minn. 1979). 

In the following situations, the court ruled that there was NO superseding intervening cause, and therefore the employee’s benefits were payable/awarded:

• The employee injured a knee in a badminton game and the cast applied to treat this non-work related injury aggravated his previous, work-related back injury. Eide v. Whirlpool Seeger Corp., 109 N.W.2d 47 (Minn. 1961).

• The employee sustained a work-related injury to an arm. Subsequently, the employee moved a couch at home, which was outside of physical restrictions. The employee testified that the non-injured arm was used to move the couch away from the wall. Johnson v. Waseca Independent School District No. 829 (W.C.C.A. 2003). 

• The employee sustained a work-related eye condition, which made him more vulnerable to re-injury. The employee subsequently walked into a door jamb at home and required surgery on his eye. Michlitsch v. Michlitsch Builders, Inc. (W.C.C.A. 2006).

• The employee aggravated a previous work injury when the employee slipped and fell on ice outside of the home. Scholz v. LeBistro Café (W.C.C.A 2007). 

Now remember, context is important for each of the examples listed above. The court will not rule that every employee playing a game of badminton was acting reasonably at the time. Similarly, it will not rule that every fall off of a step ladder will constitute a superseding intervening cause. Much of the court’s determination on this issue depends on the employee’s medical history, the extent of previous treatment relating to the work injury, the employee’s physical restrictions, and the extent of the new injury and treatment.

The knowledgeable attorneys at Meuser Law Office, P.A. will be able to distinguish or analogize to the cases listed above, in addition to similar cases on the subject matter, to support your claim and fight to get you the benefits to which you are entitled.

The Legal Standard – in a Nutshell

The defense of superseding intervening cause is a defense that uses negligence principles. The court must determine whether the employee was acting unreasonably when the event occurred. If the employee is acting unreasonably when the event occurred, the event will be deemed an independent cause of disability and the employee can be denied benefits.

If the court determines that the employee was performing a normal activity of everyday life, the event will not constitute a superseding intervening cause. The Minnesota Workers’ Compensation Court of Appeals held that when a work injury creates a permanently weakened physical condition and the employee’s subsequent normal activities aggravates that underlying condition, the resulting medical treatment is compensable. The proper test to determine whether an incident is a superseding intervening cause is the substantial contributing cause test, not the “but for” test. In other words, it is not enough for the insurer to argue that but for Sally falling on the ice at home, she would not have needed back surgery. In this example, the insurer would have to show that Sally’s initial back injury at work was not a substantial contributing cause or factor for her present disability. It is also important to note that the burden of proof is on the employer to show that the work injury is not a substantial contributing cause or factor to the present disability in the context of this defense.

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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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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Cumulative Post-Traumatic Stress Disorder and Police Officers

Ten years ago, many people had never heard of post-traumatic stress disorder (PTSD). Today most people associate PTSD with soldiers, who often suffer from the effects of PTSD from a single traumatic incident or exposure in the line of duty. What this means is when you ask a soldier the cause of his or her PTSD, they can usually point to a single incident or set of incidents that sparked the onset of their PTSD symptoms. This is not the case for Minnesota police officers. Many times, PTSD symptoms manifest over the course of time as a result of multiple traumatic experiences, and it is difficult to point to just one incident as the inciting event.

What Causes PTSD?

Many events can cause PTSD in police officers, such as shootings or “shots fired” calls, motor vehicle collisions involving fatalities or severe injuries, hostage situations, dangerous drug busts, domestic dispute calls, child abuse investigations, or any other situation that involves exposure to serious injury or death. There is no rhyme or reason for why one person develops PTSD and another does not. There is also no reason why one particular event “causes” PTSD while another, perhaps more traumatic event, does not. With police officers, PTSD many times occurs as a result of a build-up of events that arise throughout an officer’s career.

The Workers Compensation Act recognizes post-traumatic stress disorder as a compensable injury as of October 1, 2013 and defines PTSD by the Diagnostic and Statistical Manual of Mental Disorders-V (DSM-V). The DSM-V specifically describes the types of incidents that are required for a PTSD diagnosis. These incidents include exposure to actual or threatened death, serious injury, or sexual violence in on 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 the traumatic event(s) occurred to a close family members or close friend.
4. Experiencing repeated or extreme exposure to aversive details of the traumatic event(s).

The DSM-V provides an example for #4 above, citing to first responders who collect human remains or police officers exposed to details of child abuse.

Other stressful situations may also contribute to an officer’s overall deterioration in mental health, including long hours, politics within the police department, not knowing what the next call will be or when it will come in, and handling the attitudes of others. In addition, officers are often times criticized and investigated for the decisions they have to make within a split second. While this likely contributes to an officer’s mental condition, factors such as these “work stress factors” are not events that lead to PTSD.

Signs and Symptoms of PTSD

There are many symptoms of PTSD. A common symptom witnessed in most of our Meuser Law Office, P.A. clients is their report of having irritable behavior or angry outbursts with little to no provocation. This makes sense since PTSD inhibits one’s ability to appropriately handle stress. On a scale of one to ten, with ten being the most stress you’ve ever had in your life and zero being no stress, a person with PTSD may rate going to the mall or grocery store at a 7 when a person without PTSD may rate it as a 1 or a 2.

Here are other signs and symptoms to watch for:

• Irritability or frequent anger
• Withdrawal from family and friends
• Emotional outbursts
• Suspicion or paranoia
• Risk taking behaviors such as excessive drinking, drug use or risky sexual behaviors
• Insomnia or difficulty falling asleep
• Anxiety or panic feelings
• Guilt
• Nightmares
• Panic attacks
• Intrusive thoughts
• Avoiding people or places
• Easily distracted
• Lack of concentration
• Fatigue
• Recurring thoughts
• Flashbacks
• Judgment errors
• Sweating, trembling or shaking
• Negative beliefs about yourself
• Inability to feel positive emotions
• Hypervigilance
• Exaggerated startle response

It is important to remember that 10 - 30 percent of first responders will develop PTSD in the course of their career. These injuries can be just as serious and dangerous as physical injuries and should be taken seriously. Early intervention in the form of therapy and/or prescription medication is likely the single best thing you can do for a PTSD diagnosis. There is no one answer for everyone. What may work for one person in terms of treatment may not work for you. However, the faster you seek assistance for your post-traumatic stress disorder symptoms, the greater the chance you have of making a rapid and full recovery.

Under the Workers’ Compensation Act, there are benefits available for Minnesota police officers and first responders who develop PTSD on the job. These benefits include wage loss, rehabilitation, and medical care and treatment. 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 Ashley Biermann
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Workers’ Compensation Benefits for Firefighters with Cancer: The Statutory Presumption

Minnesota has a long history of protecting workers. In fact, Minnesota and New York were the first states to adopt “occupational disease presumptions” into the law. Prior to the adoption of these presumptions of causation, an injured party had the burden of proving that the injury or disease arose out of the course and scope of his or her employment.

At first glance, it makes sense to require the injured party to “connect the dots” between the injury or condition and the activities he or she performed as a part of the job; however, as a practical matter, this requirement precluded injured workers from obtaining a remedy under the Workers’ Compensation Act.  For example, if a worker contracted lung cancer from his contact with dangerous work-place fumes, proving that the fumes he was exposed to at work caused the cancer would be difficult, if not impossible. Causation is difficult in these cases because the cancer could have been caused by many different things, such as a genetic predisposition or exposure to cigarette smoke, and doctors are unable (or unwilling) to state to a reasonable degree of medical certainty what the “true” cause of the condition is.

The Minnesota legislature stepped in to address this injustice by adopting a presumption of causation with regard to occupational diseases. A classic example of an occupational disease from the early 20th century is Radium Jaw—a disease that involves the constant bleeding of the gums, which eventually leads to a tumorous jaw bone and severe facial distortion. This condition results from exposure to the radium used in the manufacture of watch dials. With a presumption of causation, an injured watch worker’s Radium Jaw would be presumed to be caused by his or her work. In order to overcome this presumption, counsel for the defense must provide substantive evidence showing the condition was caused by something other than the employee’s work. In other words, the watch dial manufacturer would have to prove that the employee: 1) came into sufficient contact with radium outside of work, and 2) prove that the non-work related radium was the actual cause of the disease.

In 1988, Minnesota extended the statutory presumption to provide legal protection for firefighters who developed certain types of cancer. Minnesota Statutes section 176.011 provides that an active duty firefighter who is unable to perform his or her duties because of a disabling cancer is presumed to have an occupational disease. To qualify for this presumption of causation, the cancer must be of a type caused by heat, radiation, or reasonably linked carcinogens. When a firefighter contracts one of these types of cancers, it is presumed to be caused by his work as a firefighter.

For more information on the statutory presumption of causation related to firefighters, click here.

If you are a firefighter who has been diagnosed with cancer and have questions about whether you have a workers’ compensation claim, or are eligible for PERA Duty Disability claim, contact the attorneys at Meuser Law Office, P.A.  Our attorneys have experience representing clients with this type of workers’ compensation claim. Contact us today at 877-746-5680 for a free no-obligation consultation.

by Ashley Biermann
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