MN Legislature Passes New First Responder Work Comp PTSD Bill

Great news for Minnesota’s first responders! A bill has been passed by both the House and Senate, and is expected to be signed by the Governor, that adds additional workers’ compensation rights for our state’s first responders who are suffering from mental illness.

House Bill HF 3873 and the companion Bill in the Senate SF3420 have both passed with overwhelming support, and the bill is expected to be signed by Governor Dayton. The portion of the bill as it relates to first responders and post-traumatic stress disorder (PTSD) will take effect January 1, 2019.

This bill has been in the works for a few years now, but finally had enough support to pass. While it won’t necessarily have a significant impact on people who are currently in the Minnesota workers’ compensation system, we expect that it will make a major difference to those who find themselves struggling with work-related PTSD in the future.

Post-traumatic stress disorder is a major problem amongst Minnesota’s first responders. Our state’s first responders see and experience the worst of humanity. They are on the front lines when it comes to dealing with violent crimes, child abuse, medical emergencies, fatal accidents, and death. It should come as no surprise that repeated exposure to this kind of trauma puts our first responders at risk for developing PTSD. Post-traumatic stress disorder is a devastating condition that affects a person’s ability to process stressors. The symptoms can pervade every area of life – from work to home life.

There is effective help out there for people suffering from PTSD. But, for our state’s first responders, historically, there have been barriers to getting access to this help. Hopefully, this bill will reduce the barriers to accessing help.

Until October 1, 2013, Minnesota work comp law did not recognize post-traumatic stress disorder as a compensable injury. This meant that an individual with work-related post-traumatic stress disorder – no matter how valid the diagnosis, and no matter how disabling the condition – was ineligible for workers’ compensation benefits.

Our legislature finally took action and passed legislation recognizing post-traumatic stress disorder as a compensable injury beginning October 1, 2013. Since that time, Meuser Law Office, P.A. has helped hundreds of our state’s first responders suffering from PTSD navigate the complexities of the workers’ compensation system.

As the law has developed in this area, one thing has become very clear – too many of our state’s first responders are being denied Minnesota workers’ compensation benefits at the outset. While in our experience, some workers’ compensation insurers have been better than others in accepting primary liability on post-traumatic stress disorder claims, we estimate that approximately 75% of these claims involving police officers and firefighters are denied at the outset. Notwithstanding an initial denial of liability, Meuser Law Office, P.A. has an excellent track record of getting good results on these types of cases. It’s not always easy or straightforward, and it can be very difficult emotionally for an individual suffering from post-traumatic stress disorder to go through the process of litigation. We are hopeful this new first responder PTSD bill will change that.

The Minnesota bill that was just passed creates a statutory presumption of work-relatedness for certain classes of workers, who have been diagnosed with post-traumatic stress disorder.
Here is the relevant text:

If, preceding the date of disablement or death, an employee who was employed on active duty as: a licensed police officer; a firefighter; a paramedic; an emergency medical technician; a licensed nurse employed to provide emergency medical services outside of a medical facility; a public safety dispatcher; an officer employed by the state or a political subdivision at a corrections, detention, or secure treatment facility; a sheriff or full-time deputy sheriff of any county; or a member of the Minnesota State Patrol is diagnosed with a mental impairment as defined in paragraph (d), and had not been diagnosed with the mental impairment previously, then the mental impairment is presumptively an occupational disease and shall be presumed to have been due to the nature of employment. This presumption may be rebutted by substantial factors brought by the employer or insurer. Any substantial factors that are used to rebut this presumption and that are known to the employer or insurer at the time of the denial of liability shall be communicated to the employee on the denial of liability. The mental impairment is not considered an occupational disease if it results from a disciplinary action, work evaluation, job transfer, layoff, demotion, promotion, termination, retirement, or similar action taken in good faith by the employer.

This provision will only apply to individuals with a date of injury on or after January 1, 2019, but it should hopefully result in more individuals being approved at the outset for workers’ compensation benefits.

This bill specifically includes the following individuals for additional protections under the Minnesota workers’ compensation act:

• Licensed police officers
• Firefighters
• Paramedics
• EMTs
• Licensed nurses employed to provide emergency medical services outside of a medical facility
• Public safety dispatchers
• Officers employed by the state or a political subdivision at a corrections, detention, or secure treatment facility
• Sheriffs, full-time deputy sheriffs
• Members of the State Patrol

In theory, under this statute, an employer/insurer must demonstrate a “substantial factor” to overcome the statutory presumption of work-relatedness. We anticipate that despite this new statutory presumption, employers/insurers will still fight PTSD cases, by alleging 1) that the diagnosis isn’t actually PTSD, 2) that the PTSD is due to something non-work-related, or 3) that if the person has PTSD, that it’s a temporary condition. Even though we don’t think this statutory change will eliminate all litigation on post-traumatic stress disorder in cases involving Minnesota’s first responders, we think it’s a big step in the right direction to helping those individuals suffering from PTSD overcome barriers to accessing early, appropriate medical and financial care.

If you or someone you know is a Minnesota first responder, police officer or firefighter suffering from post-traumatic stress disorder, Meuser Law Office, P.A. can help you understand your rights. The knowledgeable attorneys at Meuser Law Office, P.A. will help you navigate the system and help you obtain access to a variety of resources and benefits with compassionate, expert legal counsel. Contact us for a free confidential, no-obligation consultation. Call us today at 1-877-746-5680.

by Jen Yackley
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299A.465 Continuation of Health Insurance Benefits and Cash Waivers

In Minnesota, a police officer or firefighter who suffers from a physical or mental condition that limits their ability to perform the normal duties of their position for a period of at least one year, and where that condition is the direct result of an injury or illness arising out of or incurred during the performance of inherently dangerous duties, is eligible for Public Employees Retirement Association (PERA) Police and Fire Plan Duty Disability benefits. In turn, a police officer or firefighter who is determined to be eligible for PERA Duty Disability benefits is also eligible for Continuation of Health Insurance Benefits in accordance with Minn. Stat. § 299A.465. State Troopers, DNR Officers, and BCA Officers who are determined to be eligible for Duty Disability benefits under the Minnesota State Retirement System (MSRS) State Patrol Plan are also eligible for this benefit.

Minnesota Statute 299A.465 Continuation of Health Insurance Benefits

This statute provides, in relevant part, that any peace officer or firefighter who is deemed to be eligible for Duty Disability benefits, is also entitled to Continuation of Health Insurance benefits. In other words, the officer or firefighter’s employer shall continue to provide health insurance coverage for the officer or firefighter, and the officer or firefighter’s dependents if the officer or firefighter had family coverage at the time of injury. The employer is required to continue paying the employer’s contribution for said health insurance coverage until the officer reaches, or would have reached age 65, in the case of dependent coverage.

Given the ever-rising cost of health insurance, this benefit can be worth hundreds of thousands of dollars for a disabled police officer or firefighter. It also means that it can cost hundreds of thousands of dollars for the officer or firefighter’s employer. Notably, an employer does have the right to contest via administrative contested case hearing whether an officer or firefighter is eligible for these benefits, and Meuser Law Office, P.A. is frequently involved in litigation on this type of case.

Health Insurance Cash Waiver Incentive Plans

Health insurance costs have risen exponentially over the last several years, and there is increased uncertainty in the markets given the political maneuvering over subsidized insurance. Some public employers have sought to reduce their health insurance costs by offering their employees incentivized alternatives to health insurance coverage through their group health plans. One such alternative that we are seeing more and more frequently are cash waiver plans.

Cash waiver plans can be offered in a variety of ways. In general, they offer an employee the option of waiving health insurance coverage in exchange for some form of monetary benefit. For example, we have handled cases involving:

• An annual cash benefit offered as an alternative to family coverage for those employees who are eligible for family coverage, but choose to waive it
• A monthly cash benefit, paid as an increase in the employee’s monthly salary, for those employees who waive single coverage and are able to demonstrate coverage elsewhere
• A monthly employer contribution towards a Health Care Savings account on a high deductible plan where the employer required two married officers to waive their respective single coverage plans, and enroll in a family plan

Cash waiver plans invariably also provide that if the person waiving coverage loses their alternative coverage elsewhere, they will have the option of re-enrolling in the employer’s group health plan. These plans also generally allow an employee to opt out of the cash waiver plan and to re-enroll in the employer’s group health plan during annual enrollment.

These types of plans are perfectly legal, and they unequivocally save an employer substantial amounts of money in the form of reduced premium costs for insuring their employees. Since they come with a cash incentive – sometimes worth several hundred dollars a month – it can be financially advantageous for an employee to elect coverage under these types of plans.

Litigation and Case Law Update

The problem with these cash waiver plans; however, is the uncertainty that they generate in the context of statutory § 299A.465 continuation of health insurance coverage eligibility if an officer or firefighter loses his or her job due to a work-related injury. We have been involved in litigation on several cases where the employer has argued that an officer or firefighter who had been enrolled in a cash waiver plan at the time of injury gave up their right to continuation of health insurance benefits under Minn. Stat. § 299A.465 and are therefore not eligible for any ongoing cash payment or insurance coverage.

Unfortunately, the statue itself says nothing about how the law is to apply in this circumstance, but thus far, the courts who have heard cases involving cash waivers have generally held that the policy reasons behind § 299A.465 – providing access to health insurance coverage to disabled police officers and firefighters – should guide how the law applies in these cases. Here’s how a few of these cases have been determined in the courts so far:

• Administrative law decision – An officer with PTSD primarily due to traumatic incidents experienced while employed by a major metropolitan city, subsequently became employed by a smaller city in outstate Minnesota. The symptoms did not become disabling until the officer had been employed by the smaller city police department for a few years. The officer was determined to be eligible for PERA Duty Disability benefits, and PERA ordered the current department to pay health insurance. The current employer appealed and joined the officer’s prior employer to the litigation. Both cities argued about the cause of the PTSD – in other words, which of the employers was “more” responsible for the officer’s PTSD.  But, the current employer also pointed out that the officer opted for a cash waiver benefit and waived health insurance coverage, and that therefore, they were not required to continue offering insurance. The current employer moved for summary judgment on this issue. After a summary judgment hearing, the administrative law judge held that the employee electing a cash waiver plan rather than health insurance coverage did not waive eligibility for insurance, and that the employer was required to continue to offer the opportunity to enroll in their group health plan. The parties, including both of the officer’s employers, subsequently reached a settlement on a cash basis.
• District court decision – An officer with PTSD had been deemed to be eligible for Duty Disability benefits by PERA. The employer enrolled the officer in single coverage and had continued said coverage for a number of years. Prior to termination from employment, the officer had elected to waive eligibility for family coverage in exchange for an annual cash incentive. The employer argued the officer was not entitled to either the cash payment on an ongoing basis, or the family coverage. The District Court held that the City was not required to pay the cash payment, as Minn. Stat. § 299A.465 did not specifically describe cash payments as “insurance;” however, the Court did hold that the City was required to offer the officer the opportunity to elect family coverage, rather than just single coverage.
• Consolidated district court cases – three cases involving police officers and firefighters from the same employer were consolidated for the district court to address the cash waiver issue. In all three of the cases, the officer or firefighter had enrolled in a cash waiver plan prior to their disabling injuries, meaning they received a monthly cash payment from the employer rather than health insurance coverage through the City. There was no dispute that all three were disabled as the result of injuries in-the-line-of-duty. The City argued that by having waived coverage in exchange for the cash incentive, each of the employees had given up their right to claim continuation of health insurance benefits in accordance with Minn. Stat. § 299A.465. In this heavily contested case, both parties moved for summary judgment. The district court found in favor of the disabled officers and firefighter. The judge found that the disabled officers and firefighters had not waived their rights to benefits in accordance with Minn. Stat. § 299A.465 but left it up to the employer as to whether to pay the cash incentive or to offer the officers and firefighters the opportunity to enroll in coverage.

If you are a Minnesota police officer or firefighter who has experienced a significant work-related injury, 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 as well as discuss PERA Duty Disability benefits and Healthcare Continuation Benefits under Minnesota Statute § 299A.465 and help guide you through the complex process to ensure your rights are protected. Call us today at 1-877-746-5680.

by Jen Yackley
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Retraining and Work Comp in Minnesota

Retraining is a benefit available in the state of Minnesota under the Workers’ Compensation Act. Retraining is a formal education program paid by the work comp insurer which is designed to assist an employee in returning to suitable gainful employment. Retraining may include vocational technical programs or post-secondary education, depending on the employee’s skillset and physical restrictions.

Retraining differs from other types of rehabilitation benefits, wherein an employee may engage in job search with the assistance of a QRC (Qualified Rehabilitation Consultant) to find suitable gainful employment outside of the date of injury employer. Retraining is also different than permanent total disability benefits, wherein an employee is not able to return to suitable gainful employment at all.

The retraining program must be approved by the insurer or court ordered and must be requested before 208 weeks of a combination of temporary total or temporary partial disability benefits are paid. Under Minnesota Statute 176.102, subdivision 11 (d) insurer must provide employees notice of the 208-week limitation for filing a request.

While an employee is in a retraining program, he or she is also entitled to wage loss benefits for up to 156 weeks. These benefits are paid out at the same rate as temporary total disability benefits (TTD) or two-thirds of an employee’s average weekly wage. These benefits are also non-taxable. These benefits are separate and distinct from temporary total disability benefits and temporary partial disability benefits; therefore, even if an employee reaches the 130-week cap on TTD or 225-week cap on TPD, he or she may still be entitled to retraining wage loss benefits.

First a QRC will perform an evaluation to determine whether retraining is appropriate. This evaluation may include vocational testing and an examination of the employee’s scholastic skills and physical capabilities as well as a labor market study. The QRC will then create a retraining plan proposal that will include: the type of program, costs, appropriateness and feasibility that the employee will complete the program. The QRC’s role in formulating an appropriate retraining plan cannot be understated and it’s an important reason to request your own QRC, not the one assigned by the insurer or employer. You have up to 60 days to elect a change in a QRC, after the QRC has filed his or her rehabilitation plan.

Typically, police officers or firefighters whose public service careers are cut short by a life-changing injury or injuries make excellent retraining candidates. Police officers and firefighters may have worked in his or her field for an extended period of time, have a limited educational background in law enforcement or fire science, and are high wage earners. They also may have another 10 - 15 years before he or she reaches retirement age. These injured workers may need additional education to assist them return to work in a field that pays comparable to their pre-injury careers.

The formulation and approval of a retraining plan is a lengthy and often tedious process with frequent court involvement. Typically, employees must perform extensive job search efforts before retraining is even considered. Some employees prefer to negotiate a settlement and use the monies to pursue their choice of study rather than jump through the work comp insurer’s hoops to be approved for a program in a field he or she may not truly want to study.

If you believe that you are eligible for retraining benefits or have questions regarding a potential workers’ compensation claim, contact the experienced attorneys at Meuser Law Office, P.A. We are one of the few workers’ compensation law firms in the state of Minnesota that also handles PERA and MSRS disability claims. We have represented hundreds of State Patrol, police officers and firefighters throughout the state for both workers’ compensation and PERA/MSRS disability claims. Meuser Law Office, P.A. will 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 at 1-877-746-5680 for a free, no-obligation case evaluation and consultation.

by Mary Beth
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Move Over for Police Officers on the Side of the Road!

When winter weather strikes, Minnesota’s State Troopers, police officers, and sheriff’s deputies are out in full force to assist motorists involved in crashes or in need of assistance due to bad road conditions. Move over and slow down when you see an officer on the side of the road. Watch this powerful video from the Minnesota State Patrol's Facebook page:

https://www.facebook.com/MnStatePatrol/videos/10155267944773144/

Unfortunately, while they are helping motorists in need of assistance, our State’s law enforcement officers are placed in harm’s way. Every winter, dozens of Minnesota police officers suffer injuries as a result of a car accident. All too often, these crashes occur while an officer is assisting a motorist and another motorist loses control or is not paying attention and hits the officer who is stopped on the side of the road. An officer is far more likely to be killed or seriously injured as a result of a car crash than being killed or seriously injured by gunfire.

State Troopers, police officers and sheriff’s deputies who suffer injuries as the result of a car crash –whether it is on the side of the road during a stop, while helping motorists involved in a crash, during a pursuit, while responding to a call with lights and sirens, or while on patrol – may be eligible for a number of different types of benefits. Securing these benefits on behalf of the injured officer will ensure access to medical care and cover any lost wages that may occur:

Public Employees Retirement Association (PERA) Police and Fire Plan Duty Disability Benefits or Minnesota State Retirement Association (MSRS) State Patrol Plan Duty Disability Benefits

A State Trooper or police officer who suffers serious injuries resulting in limitations on their ability to perform full duty for a period of at least a year may be eligible for PERA/MSRS Duty Disability benefits. This monthly benefit provides a base rate of 60% of the injured officer’s high five salary. These benefits are non-taxable though age 55 or for 5 years, whichever is longer. Usually, injuries that are the result of an on-duty car crash will qualify for this benefit.

Minnesota Statute 299A.465 Continuation of Health Insurance Benefits

Minnesota troopers and police officers who are determined to be eligible for Duty Disability benefits through PERA or MSRS are also eligible for Continuation of Health Insurance Benefits in accordance with Minn. Stat. § 299A.465. This statute requires the State Trooper or police officer’s employer to continue to pay insurance premiums for health insurance coverage for the officer, and the officer’s family if the officer had family coverage at the time of the injury. This benefit continues through age 65.

Minnesota Workers’ Compensation Benefits

Troopers and other law enforcement officers are also eligible for workers’ compensation benefits for injuries suffered in the line of duty, including injuries that occur as a result of a car crash. Minnesota workers’ compensation includes medical expense benefits, wage loss benefits, permanent partial disability benefits, and rehabilitation benefits. In many cases, the officer may also be eligible for a lump sum settlement.

Personal Injury Civil Liability Claims

In addition to disability pension benefits and workers’ compensation benefits, a police officer who suffers injuries as the result of a motor vehicle crash may also be able to assert a liability claim against the at-fault driver. These claims allow an officer to make claims for past and future medical expenses, past and future wage loss, and past and future pain and suffering – which is not covered by workers’ compensation.

Choosing the right lawyer matters. For Minnesota police officers and State Troopers involved in car crashes, choosing the right lawyer is important. There are several large personal injury firms that do a fantastic job on personal injury claims. BUT, what they don’t do is just as important for Troopers and police officers – those large firms do not handle workers’ compensation or PERA/MSRSA disability claims.  That means that if you hire one of these firms to handle your personal injury claim, you will need to have a second lawyer to handle your workers’ compensation claim, and you are on your own or might even need to hire a third lawyer to help you with your pension claim.

We have heard it time and again – a police officer has hired a lawyer to assist them with their car accident claim, but they are getting no help or guidance on their workers’ compensation or pension claims. They don’t know what steps to take, how to deal with disputes that pop up on their workers’ compensation claims, how to deal with their employer, what to do about their work restrictions and light duty, and what to expect as far as whether they will be able to continue in their job.

At Meuser Law Office, P.A. we handle ALL claims arising out of an in the line of duty car crash for Minnesota police officers. Meuser Law Office, P.A. is the pre-eminent law firm in the State of Minnesota for police officers and firefighters. Coordinating the various claims is complex and a misstep, such as missing a deadline, not filling out paperwork properly, or simply not providing appropriate guidance can cost a officer hundreds, if not thousands of dollars in benefits.

As we get into the homestretch of winter, we can expect several more snowfalls and more bad road conditions. Don’t be the one that is responsible for injuring one of our State’s law enforcement officers. Slow down and move over if you see an officer on the side of the road!

If you are an officer who has suffered injuries due to a car crash, call us first! The experienced attorneys of Meuser Law Office, P.A. will coordinate all of your potential claims to ensure you and your family have access to the full benefits you are entitled to. Call us today at 1-877-746-5680.

by Jen Yackley
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Meuser Law Attorneys Speak to Burnsville Police Officers and Firefighters

We are pleased to share that Ron Meuser, Jennifer Yackley, Mary Beth Boyce and Ashley Biermann of Meuser Law Office, P.A. were invited recently to speak to the City of Burnsville police officers, firefighters and HR Generalists. Ron and his team of experienced attorneys were asked to educate the group of first responders and HR Generalists on the basics of PERA disability, Minnesota work comp, as well as other benefits available in the event an injury occurs in the line of duty.

Once combined, Burnsville's police and fire departments have been operating since 1981 as individual units with the shared commitment to the preservation of life, safety and protection of property for the city's residents, business owners, and visitors. Although highly trained in safety measures to not only keep the public safe, but also the city's first responders as well, injuries do occur. In fact, according to the Bureau of Labor Statistics, police officers are four times more likely to be injured on the job than other occupations. The types of injuries to firefighters, such as cancer, are growing as well according to the National Fire Protection Agencies. The City of Burnsville understands the increased danger the police officers and firefighters face each day and want to ensure their first responders know what steps to take when an injury happens to ensure they receive the full benefits they are entitled, including continuation of health insurance and PTSD.

Ron, Jen, Mary Beth and Ashley met with the entire group and presented an overview and basic information. The attorneys went more in depth with the 20 police officers and 10 firefighters in attendance after the chiefs and HR Generalists exited the presentation. The following topics and others were discussed:

• The importance of timing when reporting an injury
• When to seek treatment for an injury
• PTSD
• Firefighters with cancer

Discussion included the types of benefits available to first responders who are injured in the line of duty, and information regarding post-traumatic stress disorder (PTSD) including the new workers' compensation rules that govern PTSD claims, as well as complex timing and coordination rules that apply specifically to Minnesota's peace officers who receive Duty Disability and workers' compensation benefits.

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 Minnesota's first responders for both work comp and PERA/MSRS disability claims. Sitting down with us to learn more about your potential claim is a lot like financial planning. We can explain what benefits you may be eligible for 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 the often-complex process easier to navigate.

Why choose Meuser Law Office, P.A. for your PERA, workers' compensation and personal injury representation? The difference in experience between Meuser Law and an attorney who isn't as versed in this area of the law can mean hundreds of thousands of dollars to your claim. Contact us today for a free no-obligation consultation by calling 1-877-746-5680. Ron Meuser and the attorneys at Meuser Law Office, P.A. are available to speak at ANY police or fire department in Minnesota to educate and inform on the valuable information and ensure injured first responders are receiving the benefits to which they are entitled.

by Ron Meuser
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Continuation of Health Insurance Benefits for Disabled Minnesota Firefighters and Police Officers

In addition to workers’ compensation and PERA disability benefits, Minnesota’s police officers and firefighters who suffer disabling injuries while performing inherently dangerous duties are also eligible for continued health insurance coverage.

Minnesota statute § 299A.465 requires that an employer of a police officer or firefighter who has been awarded PERA Duty Disability benefits continue to pay their share of the police officer or firefighter’s health insurance premiums until the officer or firefighter reaches age 65. If the officer or firefighter’s dependents had coverage through the employer at the time of the officer or fighter’s injury, the employer must also continue to pay its share of the insurance premiums for those dependents.

In plain English, that means that if you are a Minnesota police officer or firefighter, and you suffer a career-ending injury that was incurred while you were performing inherently dangerous duties, your employer has to continue to offer you the same health insurance and continue to pay their share of the premium, as though you remained on the payroll through age 65.

Although this statute seems pretty straight-forward, Meuser Law Office, P.A. has seen a huge increase in the frequency of litigation on these claims. Given the rising costs of health insurance, more and more employers are trying to deny these types of claims, and we are seeing more and more situations where it isn’t 100% clear how this statute should apply.

Here are a few of the situations the attorneys at Meuser Law Office, P.A. have seen recently and how the courts have been deciding these issues. Notably, we are seeing different courts arrive at different conclusions.

Employer Contested Case Hearings

After an officer or firefighter is awarded PERA Duty Disability benefits, an employer has the right to “appeal” that determination by requesting a Contested Case Hearing at the Office of Administrative Hearings in front of a neutral Administrative Law Judge within 60 days of notice of PERA’s Duty Disability approval. Usually “appeals” in this context are based on an employer’s argument that the police officer or firefighter doesn’t meet the Duty Disability criteria for one reason or another. We have litigated several of these cases to a favorable conclusion in front of an Administrative Law Judge, and we have settled several other contested cases for a lump sum cash settlement. A Contested Case Hearing is like an informal trial, at which evidence and testimony will be submitted, and the Administrative Law Judge makes a decision as to whether the officer or firefighter is eligible for benefits. This is considered a final determination, and either side can appeal to the Minnesota Court of Appeals.

Our office recently had an interesting case involving two employers. Arguably, the officer’s post-traumatic stress disorder was caused by his traumatic exposures at two different law enforcement agencies, and arguably, both are partially responsible for his health insurance coverage. One employer requested a Contested Case Hearing, and the other did not. The employer who did not request a Contested Case Hearing filed a Motion for Summary Judgment, arguing that he had waived his right to future health insurance coverage via Minn. Stat. § 299A.465 because he had signed an employment law release in exchange for a severance when he left that department. The Court disagreed. In fact, the Court held that employer had no right to even contest this officer’s eligibility health insurance coverage since it failed to request a Contested Case Hearing within the statutory time frame.

Suing an Employer in District Court

Even though Minn. Stat. § 299A.465 says that an employer has to request a Contested Case Hearing within 60 days of PERA’s notice of approval for Duty Disability benefits, often employers don’t do that. Instead, they admit that the disabled officer or firefighter meets the eligibility requirements for Duty Disability, but they argue that the disabled officer or firefighter is ineligible for Continued Health Insurance benefits for other reasons. Usually, these cases must then be sued out in district court. We have a couple cases currently pending in district court involving these issues, and we’ve been able to settle a few cases as well. Usually, the issues involved in cases in district court revolve around whether the disabled officer or firefighter is barred from health insurance because of a gap in coverage, because they were covered as a dependent on a spouse’s policy, or because they waived coverage in exchange for a cash benefit.

Cases Involving More Than One Employer

As mentioned, we now have a handful of cases involving multiple employers. Two cases involved post-traumatic stress disorder that was caused by an officer’s exposure to traumatic events at two different agencies, and a third case involved an officer who suffered a back injury that was re-injured with a different agency. In one of the post-traumatic stress disorder cases, notwithstanding both employers’ arguments to the contrary, the Administrative Law Judge held that even though Minn. Stat. § 299A.465 doesn’t explicitly address that situation, that a court may equitably apportion responsibility for continued health insurance coverage to two or more employers who may both be responsible for the officer’s underlying disabling condition. The second post-traumatic stress disorder case is still in litigation. On the case involving the back injury, even though two employers were both arguably responsible for the officer’s back injury, his most recent employer voluntarily agreed to pay his ongoing health insurance coverage.

Cash Incentive Insurance Waivers

With ever-rising health insurance costs, we are seeing litigation involving cash incentive waiver plans much more frequently because we are seeing more and more public employers offering such plans. Employers can offer a variety of different types of cash waiver plans, but the concept is that an officer or firefighter waives health insurance coverage through their public employer in exchange for a monthly, quarterly, or annual cash benefit. For example, an officer may have the option of waiving health insurance coverage through his employer, go on his spouse’s family plan as a dependent, and receive $250 per month from his employer as an incentive for waiving coverage. Sounds like a pretty good deal, right? Well, not necessarily. In almost every case we have seen with a cash waiver plan, the employer has argued that the officer or firefighter is ineligible for health insurance benefits. What if that officer or firefighter’s spouse loses his or her job and insurance? What if the officer or firefighter goes through a divorce or their spouse dies? What if the officer or firefighter’s spouse retires? Who pays for that officer or firefighter’s insurance?

At this point, it is unclear. We have had different results in different courts on this issue. There is a Court of Appeals case our office handled a few years ago which found that a disabled firefighter who was a dependent on his spouse’s insurance policy was eligible for Continued Health Insurance Benefits in accordance with Minn. Stat. § 299A.465, even though he was not individually covered on the city’s health insurance plan.

We also recently had an Administrative Law case where the officer had elected to waive his coverage in exchange for cash benefit, and he was a dependent on his wife’s family policy. The employer argued that he gave up his right to benefits under Minn. Stat. § 299A.465 because he accepted the cash benefit and waived coverage. The court disagreed, holding that the employer was required to continue to offer him coverage.

We currently have a case in District Court involving three officers/firefighters from the same employer that all elected the cash waiver plan offered by their employer. We expect that this case will go to the Minnesota Court of Appeals to hopefully definitively answer whether an employer is required to “continue” health insurance for a disabled officer or firefighter who waived coverage.

Occasionally run into other types of cases involving disputes over exactly what benefits are provided by Minn. Stat. § 299A.465, including a case involving a cash incentive for waiver of family coverage, cases involving HSA contributions, and cases involving reimbursement for COBRA coverage.

This is a very complex and evolving area of law. If you are a Minnesota police officer or firefighter with questions about your rights under Minn. Stat. § 299A.465, we are happy to help.

There are a variety of benefits available for Minnesota’s disabled police officers and firefighters, including, but not limited to, workers’ compensation benefits, PERA disability benefits, Continuation of Health Insurance benefits, and third-party liability claims. Contact the knowledgeable attorneys at Meuser Law Office, P.A. to learn more about your rights. Call us today at 1-877-746-5680.

by Jen Yackley
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PERA Police and Fire Plan 18 Month Filing Deadline: Do Not Miss It!

There are several important deadlines that Minnesota police officers and firefighters need to be aware of when filing a PERA disability benefits claim, including the 18-month post-termination filing deadline.

Applications for Public Employees Retirement Association (PERA) Police and Fire Plan Duty or Regular Disability Benefits MUST be filed within 18 months after the person’s termination from public service. If an application is not filed within 18 months, an otherwise eligible disabled police officer or firefighter is barred from filing for PERA disability benefits. Missing this deadline can cost a disabled police officer or firefighter hundreds of thousands of dollars.

We have seen this issue come up several times. If a disabled police officer or firefighter has missed the 18-month deadline, no matter how strong his or her claim for PERA Duty Disability benefits and no matter how much we want to help, there is nothing the attorney can do.

Unfortunately, the attorneys at Meuser Law Office, P.A. see this issue come up occasionally. For example:

• An attorney in our office was contacted by a police officer who was involved in an on-duty shooting incident. The officer developed some mental health issues as a result and went on a medical leave for a short period of time. At the officer’s request, the officer’s doctor cleared her to return to full duty, even though she was still having mental health issues. After a short time back on the job, she realized things weren’t going well and she knew she couldn’t continue. She resigned from her job and didn’t pursue anything even though she was suffering from serious post-traumatic stress disorder (PTSD) as a result of the on-duty shooting incident. Thankfully, a former colleague of hers suggested she call Meuser Law Office, P.A. to see if she was eligible for any benefits. We got her application in just shy of the 18-month deadline, and this officer was awarded PERA Duty Disability benefits, 299A.465 Continuation of Health Insurance benefits, and workers’ compensation benefits. 

• An officer contacted us to evaluate his potential PERA Duty Disability claim. He was referred to Meuser Law Office, P.A. by his workers’ compensation lawyer, having just settled his workers’ compensation claim. This Minnesota police officer had suffered a low back injury while wrestling with a suspect which required surgery. After his physical restrictions due to his low back injury were deemed permanent, his employer terminated him based on his inability to perform his full duty job. Over the next two years, he collected various workers’ compensation benefits, and his work comp lawyer ultimately settled his workers’ compensation case. Unfortunately, his workers’ compensation lawyer also instructed him not to file for PERA Duty Disability benefits during that time. By the time he met with an attorney in our office, his PERA claim was barred because he had failed to file within 18 months of his termination. There was nothing that we could do to help him. Because this officer’s workers’ compensation lawyer didn’t know the rules associated with PERA, he gave the officer bad advice that cost him several hundred thousand dollars.

• An attorney in our office met with a Minnesota police officer who had terminated from his employment over two years prior to our meeting. He had resigned as a police officer when he started to struggle with some mental health issues. Unfortunately, he didn’t seek help for his symptoms and he wasn’t diagnosed with post-traumatic stress disorder until more than two years after he terminated. Because he didn’t seek help and tried to manage it on his own, this officer didn’t even know he had PTSD until two years after he resigned. This gentleman didn’t receive a diagnosis until after the 18-month deadline had passed, but currently PERA does not have an exception for latent conditions that are not diagnosed until much later in time, such as cancer or post-traumatic stress disorder.

For Minnesota’s police officers and firefighters who suffer significant on-duty injuries, it is imperative to have the right lawyer from the beginning. At Meuser Law Office, P.A., the first time we meet with a client, our knowledgeable and experienced attorneys evaluate every potential claim, including but not limited to, Minnesota workers’ compensation, PERA/MSRS disability, Continuation of Health Insurance claims, and third-party claims. Our attorneys develop a timeline and a plan to ensure every possible resource for benefits is explored, which includes the coordination of claims every step of the way. Experience matters. For a free, no-obligation consultation, contact Meuser Law Office, P.A. Call us today at 1-877-746-5680.

by Jen Yackley
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Mounted Police Officers and Workers’ Compensation Injuries

In the state of Minnesota, the cities of Minneapolis, St. Paul, and Duluth maintain mounted patrol units. The Minnesota Sheriff’s Mounted Posse Association (MSMPA) is comprised of volunteer and reserve units of mounted deputy sheriffs across the state who assist the County Sheriff whenever appropriate. Mounted patrol units help with crowd control, crime control, search and rescue, and community outreach. It is estimated that one mounted police officer has the effect of ten officers on foot. Horses provide size, weight, and every officer is 10 feet tall on horseback, enhancing visibility. Mounted police officers can travel quickly to places that squad cars cannot travel.

Unfortunately, while performing crowd control duties on horseback can increase safety for officers and the public, horseback riding is still a dangerous activity. Although the horses used in mounted patrol units are chosen for their temperament and suitability for the job, horses are still animals who can react unpredictably in unknown situations. Even the sweetest most docile horse can trip, fall to the ground and inadvertently crush a rider.

To ensure safety, officers should follow certain precautions:

• Safety equipment. Wearing a helmet can prevent very serious head injuries. There’s no excuse for not wearing a helmet while riding.
• Wearing a helmet when working with horses while on the ground is also important. Loading and unloading horses into a trailer can be a very dangerous situation. While horses in the mounted patrol unit may be loaded and un-loaded multiple times a week, working with a 1,100-pound animal in a small space is hazardous. Turning out a horse at night back into the herd can also be dangerous. Some horses like other horses better than others and if you turn out into a group of horses standing near the gate and another horse bites the horse you are working with he may kick out and may even hurt you.
• Wearing a helmet while walking out to the pasture to catch a horse is also a smart precautionary measure. Sometimes horses may gather around you and get pushy, hoping the human has a treat or looking for attention. A horse could nip another horse and then someone could kick out or knock you down out in the field. Horses can strike out with their front or back hooves.
• Wear proper footwear around horses. Getting stepped on in boots versus flip flops is an entirely different experience.
• Don’t stand directly behind a horse. Talk to the horse when you are working with him or her to let the horse know where you are standing and to prevent startling the horse.
• Don’t loop a lead line, reins, or lunge lines around your hands. If the horse runs away you could become caught and dragged.
• Properly lead a horse into its stall. When returning a horse to its stall don’t just unclip the lead line from his halter, lead the animal into the stall, walk around the stall, turn him to face the stall door and then back out. This prevents you from getting crushed or kicked in a confined space.
• Tack and groom in the same way each time. This creates a pattern so it is less likely a crucial step is forgotten. Check and re-check girth tightness before you mount. Girths should be tightened slowly and each time the horse should be walked around before moving up an additional hole.

If you sustain an injury, even one which may seem minor at the time, it is important to report the injury to your supervisor. Waiting a few days after what seemed to be a sprain or strain and then reporting the injury may give the workers’ compensation insurance carrier an excuse to deny your claim.

Contact an attorney early in the process. At Meuser Law Office, P.A. we field calls from many police officers and deputy sheriffs injured in the line of duty who may just need a few questions answered. Call us today at 877-746-5680 for a free no-obligation consultation with an experienced Minnesota personal injury, PERA disability, and workers' compensation attorney.

For more information on mounted patrol units in Minnesota check out the following websites:

• MSMPA www.mnmountedposseassn.com/home.html
• St. Paul www.stpaulmountedpolice.org/index.htm
• Minneapolis www.minneapolismountedpolicefoundation.org/home.html
• Duluth www.facebook.com/DPDMOUNTEDPATROL

by Mary Beth
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Police Officer Duty Belts and Gillette Low Back Work Injuries

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

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

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

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

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

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

* Ergonomics and Safety in Law Enforcement, by Fabrice Czarnecki and Ira Janowitz, 2003.
http://www.theppsc.org/Staff_Views/Czarnecki/ergonomics_and_safety_in_law_enforcement.htm

by Mary Beth
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Third-Party Claims and Workers’ Compensation Subrogation

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

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

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

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

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

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

by Mary Beth
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