Sunday, February 8, 2009

Appealing a Minnesota PERA Disability Pension Decision

We recently represented a woman who worked as a firefighter a workers’ compensation claim. She had injured her back on two occasions in the course and scope of her duties as a firefighter, and ultimately underwent two back surgeries. Her doctors concluded that she could no longer be a firefighter. Our client applied for Duty Disability benefits through PERA. She received a letter from PERA indicating that her application for Duty Disability was denied, but that she was approved for Regular Disability benefits. We appealed the decision on her behalf, and argued that not only were her injuries sustained in the course and scope of her employment as a firefighter, but that the duties she was performing at the time of the injuries were inherently dangerous and unique to the duties of a firefighter. Prior to the appeal hearing, PERA reversed its decision and awarded her Duty Disability benefits. In this case, we were able to obtain higher benefits for our client without the necessity of even proceeding to the appeals hearing.

In addition to workers’ compensation benefits, firefighters and police officers who are injured in the line of duty may be entitled to Duty Disability Benefits through the Public Employees Retirement Association (PERA).

In order to qualify for this benefit, you typically must be a Minnesota firefighter or police officer, covered under PERA’s Police and Fire Plan. You must have sustained an injury in the course and scope of your employment as a firefighter or police officer, and that injury must prevent you from returning to your employment as a firefighter or police officer for at least one year.

The Minnesota Statute setting forth the requirements to qualify for Duty Disability PERA benefits was recently amended to provide that:

"Duty disability," physical or psychological, means a condition that is expected to prevent a member, for a period of not less than 12 months, from performing the normal duties of the position held by a person who is a member of the public employees police and fire plan, and that is the direct result of an injury incurred during, or a disease arising out of, the performance of normal duties or the actual performance of less frequent duties, either of which are specific to protecting the property and personal safety of others and that present inherent dangers that are specific to the positions covered by the public employees police and fire plan.

What this means is that now a disabled police officer or firefighter must show that the injury must have arisen out of the performance of duties that are specific to protecting property and personal safety, and those duties present dangers that are specific to firefighters and police officers.

This change in the law is significant. Prior to the change, so long as the disabling injury was sustained in the course and scope of a firefighter or police officer’s employment, regardless of whether it was sustained in the performance of some “hazardous” activity, the police officer or firefighter qualified for a Duty Disability. Essentially, the change makes it much more difficult for a police officer or firefighter to obtain Duty Disability benefits.

So why does it matter whether you get Duty Disability benefits or Regular Disability benefits? Simply because Duty Disability benefits are greater than Regular Disability benefits. A Duty Disability pension is 60 percent of your average salary over your five highest-paid consecutive years of service. This is the equivalent to a retirement benefit based on 20 years of service. If you have in excess of 20 years of public service, you will receive an additional 3 percent of salary for every year beyond 20 years of service. Regular Disability pension is 45 percent of your salary, or the equivalent of 15 years of service.

So how does that look in numbers? Let’s assume you sustained a disabling injury in the course and scope of your employment as a Minnesota police officer or firefighter, and that you have 25 years of service. Let’s also assume that your average salary is $50,000.00.

Your Duty Disability benefits would be calculated as follows:

$50,0000.00 (x) 60% = $30,000.00 (Base duty disability pension)

Since you have over 20 years of service, the excess years are multiplied by 3%.

5 years (x) 3% = 15%

That additional percentage is multiplied by your average salary and added to your pension.

$50,000.00 (x) 15% = $7,500.00

$30,000.00 + $7,500.00 = $37,500.00 per year Duty Disability Pension

Under the same scenario, Regular Disability Pension would be calculated as follows:

$50,000.00 (x) 45% = $22,500.00 per year Regular Disability Pension

If you qualify for Total Permanent Disability Pension, which means that you are unable to procure any substantial gainful employment, and you have 20 years of service or more, the benefit amounts are the same. If you have less than 20 years of service, Duty Disability benefits are greater.

Once you have applied for PERA benefits, and they have issued a determination, you have a very limited time to appeal that decision if you disagree with the determination. As you can see from the benefit comparison, which disability benefit you receive can amount to a difference of thousands of dollars over the course of a year or more.

If you’ve applied for PERA benefits and disagree with the determination, call us today at 877-746-5680 or click here to schedule a free consultation. Note that our services for PERA appeals are provided on an hourly basis rather than on a contingency basis.

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