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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Sustained an Injury in the Line of Duty?

If you have sustained an injury in the line of duty, you may be entitled to hundreds of thousands of dollars-worth of benefits. There are several types of benefits available to Minnesota’s first responders who have been injured in the line of duty, depending on the individual circumstances of the case. It can be complicated to coordinate all the different types of benefits to ensure you are maximizing your financial recovery. Working with an attorney who is experienced in this area of the law is in your best interest.

Types of Benefits Available for Injured Peace Officers:

Workers’ Compensation:  Under the Minnesota Workers’ Compensation Act, injured police officers may be entitled to medical, vocational, and wage loss benefits. These benefits include, but are not limited to, temporary total disability, temporary partial disability, permanent total disability, permanent partial disability, vocational rehabilitation services, and retraining benefits. Wage loss benefits are based on the officer’s earnings 26 weeks before the date of injury, from all sources of employment. Many departments also add in injured on duty time to the work comp benefits or allow officers to add in a portion of stored sick or vacation time.

Covered medical treatments include but are not limited to: doctor appointments, chiropractic care, surgery, injections, massage therapy, physical therapy, mental health counseling, prescriptions, pain programs, and acupuncture. Medical care must be both reasonable and necessary for services to be covered. Injured employees are also entitled to medical mileage as well as the reimbursement of certain types of attorney fees.

PERA Duty Disability:  PERA Duty Disability Benefits entitle police officers injured in the line of duty who are no longer able to perform the normal duties of a police officer to 60% of the officer’s “high five” earnings, 60 consecutive months of the member’s highest wages, through age 55 or 5 years from the date of filing, whichever is longer. In order to qualify injured officers must have sustained an injury performing inherently dangerous duties specific to police officers. Additional requirements apply to police officers with injuries over two years old applying for Duty Disability benefits.

Healthcare Continuation under Minnesota Statute §299A.465:  After PERA awards an injured member Duty Disability Benefits or an officer who is over age 55 with over 20 years of service directly applies, an injured police officer is entitled to healthcare coverage through age 65 as if the officer remained with the department. If the officer had family coverage at the time of the injury, his or her family also retains healthcare coverage. Extrapolated over the course of the benefit, this benefit is frequently worth over $500,000. Similar requirements apply to police officers applying for Duty Disability benefits.

Personal Injury:  If police officers are injured in the line of duty due to the negligence of a third-party, such as a person resisting arrest or a negligent driver in a motor vehicle collision, injured officers may bring a civil claim against the negligent party and in motor vehicle cases, claims against under-insured and uninsured motorist insurance policies. These claims include monetary recovery for pain and suffering, loss of enjoyment of life, past and future wage loss, past and future medical treatment, and are in addition to PERA and work comp benefits. If the injuries are so severe that the officer is no longer able to return to work as police officer, he or she may be entitled to very significant sums in addition to PERA/MSRS disability benefits, healthcare continuation benefits, and Minnesota workers’ compensation benefits.

Here are a few more things you may not know:

• PTSD is covered under the Minnesota Workers’ Compensation Act. PERA and MSRS also recognize PTSD as a covered disability for Duty Disability benefits and healthcare continuation benefits under §299A.465.
• Work comp benefits and personal injury monies are non-taxable. PERA Duty Disability benefits are non-taxable until the age 55 or until the benefit converts to a regular retirement benefit.
• Unless there is a dispute, attorney fees are not charged in workers’ compensation cases. Attorney fees in personal injury and work comp cases are contingent. Unless we recover monies on your behalf we do not charge a fee.
• Strict time limits exist as to when injured officers may bring a workers’ compensation, personal injury, or PERA/MSRS disability claim.

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. Call us today at 877-746-5680.

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

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

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

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

In order to receive TPD injured workers must:

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

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

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

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

Meuser Law Office, P.A. is one of the few workers’ compensation law firms in the state of Minnesota that also handles PERA and MSRS disability claims. We’ve successfully represented hundreds of State Patrol, police officers and firefighters throughout the state for both workers’ compensation and PERA/MSRS disability claims. Sitting down with us for a consultation to learn more about your potential claims is a lot like financial planning. We can explain what rights you have and make recommendations to you in terms of how to best protect your rights to those benefits. The knowledgeable attorneys at Meuser Law Office, P.A. can help make the process easier to navigate. Contact us today for a free, no-obligation consultation by calling 1-877-746-5680.

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

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

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

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

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

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

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

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

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

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

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

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

(1) Requirements

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

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

(2) Survivorship

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

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

(3) Taxation

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

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

(4) Workers’ Compensation Offsets

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

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

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

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

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

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

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

by Mary Beth
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