We've Moved!

We've Moved!

MeuserLaw's legal blogs have moved!

For a huge database of articles covering workers' compensation, PERA duty disability, MSRS duty disability, and personal injury, check out MeuserLaw's article library.

And, for Minnesota's Police Officers, Firefighters, and Corrections Officers, Meuser Law Office has started a brand new blog called "In the Line of Duty." 

"In the Line of Duty," which is proudly hosted by Meuser Law Office, P.A., consists of articles and resources that discuss the specific and unique needs of injured Minnesota Police Officers, Firefighters, and Corrections Officers who are trying to navigate the complex legal system following an in-the-line-of-duty injury.

Why Minn. Stat. § 176.021, Subd. 7 Should Be Repealed

If you’ve been through the Minnesota workers’ compensation system, you are probably well aware of the fact that it’s not always fair to injured workers. In fact, in many respects, the deck is stacked against injured workers.

Nothing is more frustrating than seeing an injured worker who gets shortchanged because of an innocent mistake, because of ambiguous language within the law, or because the benefits provided by workers’ compensation are simply inadequate to fully address the full extent of their losses.

January is usually when people make resolutions to end bad habits or to learn new good habits. I usually forget to make a resolution, or if I remember to make one, I forget about it within a day or two. Instead, this year, I’m going to take the opportunity to write about a provision within the Minnesota Workers’ Compensation Act that I’d like to see changed in 2012.

Major changes to the Minnesota Workers’ Compensation Act don’t happen often, and it’s usually a long process to make changes to the law. Nonetheless, I’d love to see the Minnesota legislature take up the challenge of making this change to the Minn. Work Comp. Act to make things just a little more fair for injured workers.

Repeal of Minn. Stat. §176.021, Subd. 7. 

This portion of the Minnesota Workers’ Compensation Act provides in relevant part, that:

If an employee covered by the Minnesota State Retirement System receives total and permanent disability benefits pursuant to section 352.113 or disability benefits pursuant to sections 352.95 and 352B.10, the amount of disability benefits shall be deducted from workers' compensation benefits otherwise payable. If an employee covered by the teachers retirement fund receives total and permanent disability benefits pursuant to section 354.48, the amount of disability benefits must be deducted from workers' compensation benefits otherwise payable. 

In plain language, what this statute says, at least according to the State, is that if you are a State worker and you’re eligible for MSRS disability benefits by virtue of a work-related injury, the State gets to reduce (or eliminate) your workers’ compensation benefits to the extent of one dollar for every dollar of MSRS disability benefits you receive. This provision, arguably, affects state corrections workers, state troopers, teachers, conservation officers, and almost all other state employees.

This statute is ambiguous, for one, because it doesn’t state which types of workers’ compensation benefits are subject to this offset. For example, if you’re receiving $500 a week in MSRS disability benefits, and you’re also eligible for $500 a week in workers’ compensation wage loss benefits, it’s the State’s position that you get zero workers’ compensation wage loss benefits. Arguably, the State could offset your entitlement to other types of workers’ compensation benefits, too, like permanent partial disability benefits, rehabilitation benefits, or even medical benefits. The plain language of the statute could theoretically allow the State to refuse to pay your medical bills to the extent of your MSRS disability benefits. By way of example, an injured worker who receives $1000 a month in MSRS disability benefits could, in theory, be required to pay the first $1000 of their workers' compensation medical bills before work comp kicks in, so that workers' entire monthly MSRS disability benefit could be wiped out by medical bills.

So what’s wrong with this? 

First off, MSRS disability benefits don’t cover 100% of your lost wages, so you’re just out of luck making up the difference between MSRS and your normal wage. Moreover, as noted above, while I've never seen the State try to offset anything except wage loss benefits, the language of the statute would clearly allow them to offset their obligation to pay other workers' compensation benefits, like PPD benefits, rehabilitation benefits, or even medical expense benefits.

Second, basically, state employees are paying for their own workers’ compensation insurance. State employees make contributions to MSRS, just like private-sector employees pay into social security. By offsetting its obligation to pay workers’ compensation benefits, the State is passing the cost of work-related injuries right back to the injured worker.

The other problem with this statute is that it unfairly discriminates against state employees. Only state employees are subject to this offset provision. There is another provision under the Workers’ Compensation Act, Minn. Stat. § 176.101, Subd. 4 that provides for coordination of workers’ compensation benefits and other governmental disability benefits, such as PERA and SSDI. That statute only allows the workers’ compensation insurer to take an offset if the injured worker is receiving PERA or SSDI disability, has been determined to be permanently totally disabled, and has been paid $25,000.00 in PTD benefits. Importantly, this provision applies only to permanent total disability benefits, not other types of wage loss benefits. 

Here’s an example of how this exactly how this unfairness can play out. You have a state trooper and a city police officer, with identical injuries, and identical entitlement to workers’ compensation benefits. The state trooper receives MSRS disability benefits, and the police officer receives PERA disability benefits (which incidentally, are paid at the same rate). The police officer is entitled to receive both her workers’ compensation benefits, and her PERA benefits, subject to certain caps, above which PERA reduces the amount it pays, but the state trooper receives only his MSRS disability benefits. This makes no sense.

In my humble opinion, Minn. Stat. § 176.021, Subd. 7 is unconstitutional because it discriminates against state employees. Unfortunately, there is some rather old case law that supports the validity of the statute, although my arguments set forth above were not directly addressed by the Court, and this case law at least arguably supports the State’s position.

Simply repealing this section solves the problem.

Minn. Stat. § 176.101, subd. 4 provides the normal offset rules that apply to injured workers who receive other governmental benefits, including SSDI and PERA. It can just as easily be applied to injured workers’ who receive MSRS disability benefits.

Moreover, the MSRS disability statutes already contain their own offset provisions, meaning that MSRS can reduce the amount of its disability payment if the combination of work comp. and disability benefits exceeds certain amounts. The MSRS offset provisions currently in existence within the disability statutes prevent overcompensation and double dipping.

Repeal Minn. Stat. § 176.021, Subd. 7. Problem solved. Statutory ambiguity eliminated and uniformity created. Fairness achieved.

If you’re a state employee, particularly if you’ve sustained a work-related injury, I encourage you to contact your state representatives and bring this issue to their attention. Fixing the problem is simple. Minn. Stat. § 176.021, Subd. 7 should be repealed.

If you have questions or concerns about your rights under Minnesota workers’ compensation law, call Meuser & Associate at 877-746-5680, or click here to send us an email to schedule a free, no-obligation consultation.

Can I Receive Workers’ Compensation and PERA Duty Disability at the Same Time?

Yes! In most cases, you can receive PERA disability benefits and workers’ compensation benefits at the same time.

Police officers, firefighters, and other public employees who receive PERA disability pension benefits are usually also entitled to workers’ compensation benefits.

PERA allows a disabled firefighter or police officer to receive duty disability benefits plus workers' compensation wage loss benefits, up to a total of his or her salary at the time of the disability, or the current salary of the position, whichever is greater. PERA reduces the benefit amount dollar-for-dollar if a combination of the two benefits exceeds this limit.

If the disabled firefighter or police officer is able to work in a non-police-and-fire position, that individual can receive duty disability benefits plus re-employment earnings plus workers’ compensation wage loss benefits, up to a total of 125% his or her salary at the time of the disability or the current salary of the position. PERA reduces its benefit payment for $1 of each $3 earned in excess of those limitations.

If a firefighter, police officer, corrections officer, or other public employee sustains an injury or a combination of injuries that prevents that person from returning to his or her former career, he or she may be entitled to both workers’ compensation benefits and disability pension benefits under the Public Employees’ Retirement Association (PERA), the Minneapolis Firefighters Relief Association (MFRA), the Minneapolis Employees Retirement Fund (MERF), the Minnesota State Retirement System (MSRS), and any other local retirement association.

If you’re a firefighter, police officer, or corrections officer, and you sustained an injury in the course and scope of your duties that will keep you from returning to your former position for a period of at least a year, you should strongly consider applying for duty disability benefits.

Unfortunately, if you’re a member of PERA, MSRS, or any other local or state retirement association, you’re probably keenly aware of the fact that these pension funds are woefully under-funded. Because of this issue, in the past few years, the Minnesota legislature has drastically changed the requirements to qualify for duty disability benefits.

In years past, if you had a career-ending work-related injury, you would almost certainly qualify for duty disability benefits under PERA, any of the local relief associations, and under MSRS. Under the most recent law changes, however, you now need to show that your disability “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.” Minn. Stat. §353.01, Subd. 41 (2009). The requirements for duty disability under the PERA corrections plan, MFRA, MSRS, and other local plans are virtually identical to the requirements under the police and fire plan.

In plain English, what this means is that a disabled police officer, firefighter, or corrections officer must now prove not only that the injury occurred in the line of duty, but that the injury occurred during the performance of duties that involve protecting property or safety, and that are inherently dangerous. What does that mean? In all honesty, no one is entirely certain. This version of the law hasn’t been around long enough for any cases to make their way through Minnesota’s higher courts.

What we can say is that in reviewing duty disability applications, PERA is taking a very strict reading of the statute, which basically means that they are frequently denying applicants who are injured performing duties that are not “hazardous” enough. Obviously, if you are shot by a suspect, or burned in a fire, those are hazardous duties. And, slipping and falling on a patch of ice on the way into work is probably not hazardous enough. But there’s a lot of room between those two extremes.

Here are some examples of police officers, firefighters, and corrections officers we’ve assisted with applications and appeals for PERA and MSRS duty disability benefits:

• A corrections officer suffered a torn rotator cuff in her shoulder while hanging up an evidence bag doing intake of an inmate. She was initially denied duty disability benefits. We appealed, and PERA reversed its decision and awarded her duty disability benefits.

• A firefighter injured a disc in her low back while lifting a heavy patient on a stretcher. She returned to work, but re-injured her back when she fell off a fire truck while doing inventory. PERA initially denied her application for duty disability benefits, but reversed its decision when we appealed and awarded her duty disability benefits.

• MSRS denied duty disability benefits to a corrections officer who developed Post-Traumatic Stress Disorder (PTSD) after witnessing a traumatic incident involving prisoners. We appealed, and MSRS reversed its decision and awarded her duty disability benefits.

• A firefighter suffered several knee injures over the years, the last of which was sustained while he was carrying heavy fans around at the scene of a fire. We completed his application for benefits, and PERA awarded him duty disability benefits.

So why does it matter? Under PERA, MSRS, and other relief associations, the rate of pay for duty disability benefits is significantly higher than “regular” disability benefits. Over the course of several years, this can add up to tens or hundreds of thousands of dollars. In addition, police officers and firefighters who are awarded duty disability benefits under PERA, MSRS, or a local plan are entitled to continuation of healthcare coverage, which means your employer continues to pay their share of your healthcare premiums. That’s a huge financial benefit!

At Meuser & Associate, we believe that the vast majority of duties performed by police officers, firefighters, and corrections officers are hazardous, and we’ve successfully represented a number of police officers, firefighters, and corrections officers in both their workers’ compensation cases and for PERA and MSRS duty disability applications and appeals.

It is important that your workers’ compensation lawyer is familiar with the duty disability laws under PERA, MSRS, and other local retirement associations, otherwise, you could be leaving thousands of dollars in benefits on the table.

When we meet with a new client who is a firefighter, police officer, or corrections officer, we evaluate not only their workers’ compensation case, but we also evaluate any potential claims for PERA or MSRS disability benefits. We will give you an honest assessment on the likelihood of succeeding both on your claim for workers’ compensation benefits and your claim for disability benefits.

At Meuser & Associate, when we evaluate your claim for duty disability benefits, we always give you the option of preparing the application on your own. We’re happy to provide you with guidance to give you the best chance of succeeding on your application, while allowing you to complete it on your own. Alternatively, we can prepare your application and all necessary documentation for you. If you’ve been denied, we can also assist you with an appeal. If you applied on your own and received notice that your application for duty disability benefits was denied, you need to act fast! There’s a very limited time within which to complete an appeal.

Meuser & Associate, P.A. provides assistance with disability pension benefits on an hourly fee basis. For a FREE consultation, click here to send us an email, or call us at 877-746-5680 to speak with attorneys Ron or Jen.

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