Workers’ Compensation

Workers' Compensation

Have You Been Denied Benefits?

Our attorneys have provided the following responses to commonly-asked questions regarding being injured on the job in Minnesota, including what you should do, what the responsibilities are of the employer and insurer and what do after you have been denied benefits.

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Injured at Work? Here’s What You Should Do First

When you have an on-the-job injury it can be anything from a cut, strain, fracture, etc. For most employees when they have a work-related injury, they don’t know what to do. It can become a very complicated and stressful situation. Consequently, it is a good idea to know what your injured worker’s rights are under Minnesota Workers’ Compensation law. Here are a few helpful tips.

1. Report your injury to your employer.

It is very important to report your injury immediately to your employer. Many employers have their own guidelines and rules about reporting work-related injuries. You should make sure to check with human resources or your employee handbook about the appropriate procedure. Regardless of your company’s own policies, under Minnesota Workers’ Compensation law, you are required to report your injury within 30 days of the injury. Only in limited circumstances are you allowed to report your injury beyond 30 days. If you had a work-related injury but failed to report it within 30 days, you may want to discuss the matter with a Minnesota Workers’ Compensation lawyer to go over your options. There are exceptions to the reporting requirement that are very fact specific and an attorney may be better suited to discuss it with you.

2. Seek medical care or treatment.

We would expect that this would be a very obvious and self-explanatory recommendation, especially when dealing with work-related injuries. This is not always the case. While in most cases, cuts and bruises will heal on their own but more significant soft tissue or even traumatic injuries won’t. An injured worker should seek medical care or treatment to evaluate the severity of the injuries. Not only is seeking medical care and treatment important to determine the extent of the injuries, it also allows opportunity for the injury to be documented and memorialized in the medical records. This is important. In some cases, documents get lost, witnesses are no longer available, and employers deny injuries even occurred. By documenting it in a medical note, it allows for others to know that it happened.

3. Speak with an Attorney.

There is no such thing as a silly question. In most cases, this is your first and only work-related injury. Most of the documents and forms that are presented to you are new and can be a lot to try and understand. There are people out there who can assist you in answering your questions. Our attorneys can help you and provide you the legal advice you need.

Since 1981, the Law Office of Thomas Mottaz and the lawyers have been protecting injured people on the job.  Our experienced knowledgeable staff can answer all of your legal questions, provide you assistance when the employer and insurer are only looking out for their interests.

4. Be prepared.

We always like to believe that people and insurance companies will always do the right thing. Again, that is not always the case. In workers’ compensation, things can turn bad really quickly. In other words, an insurance company that has been paying bills and wage loss benefits can suddenly stop paying. It is important to have an understanding of what benefits are available to you and what your legal options are in getting those benefits. When an insurance company stops paying medical bills or benefits most of the time it’s not because they should be. Therefore, you should have a basic understanding of what benefits are available to you, and whether you may be potentially entitled to those benefits. In most cases, it is good to speak with an experienced workers’ compensation lawyer to again go over your options.

Qualifying for Workers' Compensation

Qualifying for Workers’ Compensation Benefits

In Minnesota, you qualify for work comp benefits as long as you are an employee under the law. You are entitled to workers’ compensation benefits for conditions that have been caused or aggravated by a work injury or activity. A work-injury can be caused by anything from a specific event, repetitive work activities, or occupational diseases contracted due to hazards or exposures from the employment. Workers’ compensation benefits are paid regardless of any fault of either the employer or employee.

The following are some commonly asked questions that our attorneys have answered:

What Types of Injuries are Covered?

In Minnesota, employees are entitled to workers’ compensation benefits for conditions that have been caused or aggravated by a work injury or activity. A work-related disability can be caused from anything from a specific event, repetitive work activities, or occupational diseases contracted due to hazards or exposures from the employment.

The information below details some of the most common injuries and what you can expect during the workers’ compensation process:

  • Back Injury – Some of the most common work-related injuries are injuries to the back and spinal cord.
  • Neck Injury – Frequently asked questions about the cervical spine and neck including getting benefits you deserve
  • Knee Injury – Torn meniscus?  ACL?  Ligament damage?  Learn more about these types of injuries and how to make sure your rights are protected.
  • Shoulder Injury – Torn rotator cuff?  Bursitis?  Inflammation in the shoulder joint?  Minnesota workers’ compensation covers work-related shoulder injuries.  Find out more about it.
  • Chronic Pain – Chronic pain is a diagnoseable condition which often times is overlooked and denied by workers compensation.RSD? CRPS? Know your rights to benefits.
  • Carpal Tunnel – repetitive injury? CTS? What are your rights to work comp benefits?
  • Fractures -Fractures can be painful and some times can result in incomplete recovery. Learn more about work injury fractures.
  • Internal Injuries – Sometimes the injuries are not obvious. Some injuries result in internal damages to muscles, organs or other tissues of the body. Learn more.
  • Spinal Cord Injuries  – Damage to the spinal column? Injuries resulting in paralysis, numbness, weakness or tingling. Find out more.
  • Occupational Disease or Environmental Injuries – Learn more about an occupational disease such as such as asbestosis from asbestos or hearing loss.
  • Psychiatric/Psychological Injuries – Under Minnesota law, certain psychological and mental injuries are covered.  Find out more as to whether your condition is covered.
  • Traumatic Brain Injury (TBI) – Head injury?  Concussion?  Understand the TBI symptoms, testing and what to do to ensure your benefits are protected.
  • Repetitive Trauma or Cumulative Trauma Injuries -Learn more about Gillette injuries like carpal tunnel, date of disablement, medical treatment and whether you have an injury.
  • Consequential injuries – Suffered a new injury as a result of an old injury?  Overcompensating at new injury?  Find out more about consequential injuries.
  • Car Accident | Truck Accident | Injuries traveling to and from work – Motor vehicle accident?  Find out more about whether you have a work-related injury.
  • Wrongful Death | Injuries resulting in DeathSadly, there are situations that a work injury results in the death of a loved one. We can help identify what benefits you would be entitled to.

What Types of Benefits Are Paid?

Although the law controls the specific amounts duration and types of benefits in effect at the time of the injury, there are 4 main types of Minnesota workers compensation benefits available to an injured worker.

Wage Replacement Benefits

  • Temporary total disability benefits (TTD) – TTD benefits are a form of compensation available to an injured employee who is unable to work because of the work injury, or who is released to work with restrictions but is unable to find work within those restrictions. The TTD rate is two-thirds of the employee’s gross wage at the time of the injury, subject to certain maximum and minimums.
  • Temporary partial disability benefits (TPD) – TPD benefits are partial wage loss compensation for an injured employee who is back to work but is earning less than the date of injury wage due to the effects of a work injury. TPD is calculated at two thirds of the difference between the pre-injury wage and the employee’s current ability to earn.
  • Permanent Total Disability Benefits (PTD) – PTD benefits are wage loss compensation where the injured employee’s physical disability causes the employee to be unable to find anything more than occasional employment resulting in insubstantial income. This means that the worker cannot secure a steady job and earn a living from work. The rate payable for PTD benefit is two-thirds of the employee’s gross weekly wage at the time of the injury.

Functional Impairment or Permanent Partial Disability Benefits (PPD)

  • Permanent partial disability or “permanency” is a payment for the loss of use of, or the loss of body function. These benefits are paid according to the compensation schedule established by the Workers’ Compensation Division. The amount and duration of the benefit are controlled by the permanent partial disability rating. It may be payable in one lump sum or in weekly increments. In cases where there is no specific schedule for that injury, the courts have allowed what is called a “Weber” rating. Under Weber, a doctor may provide an alternative permanent disability rating.
How to calculate permanent partial disability benefits

Medical Benefits

  • The employer and insurer are responsible for payment of “reasonable and necessary” medical treatment, which will aid in curing or relieving the effects of the work injury. Covered treatments include hospitalization, surgery, physical therapy, occupational therapy, chiropractic services, injection therapy, chronic pain management and many other forms of medical care. The right to receive these benefits may be impacted by the Minnesota Workers’ Compensation Treatment Parameters depending on various factors including whether the injury is admitted or denied.
Medical treatment FAQ

Vocational Rehabilitation Benefits

  • Vocational rehabilitation benefits are designed to assist the injured worker returning to former employment or to a job related to that employment. In the alternative, rehabilitation services assist the injured employee to return to a job in another work area, which produces an economic status as close as possible to that enjoyed but for the disability. This assistance may include direct job placement, on-the-job training or formal retraining. Rehabilitation services can include the use of a Qualified Rehabilitation Consultant (“QRC”) to help with medical management, return to work, and job placement.
Learn More About Vocational Rehabilitation Benefits

Dependency Benefits

  • After the death of a loved one, the dependents (mother, father, son, daughter, father, mother, etc) may be entitled to dependency benefits
  • It is always a tragic situation when someone dies from a work-related injury. However, you should rest assured that dependency benefits are available to you and your family. Wrongful death benefits or dependency benefits are available to the family.
  • Dependency benefits are based upon weekly wage and daily wage which is determined by the hours normally worked in that employment.
  • Benefits are paid to the spouse, children, or dependents. Allocation amongst the various individuals depends on the type and number of dependents the decedent had at his/her death.
  • The minimum amount of dependency benefits that must be paid is $60,000. When there are no persons entitled to monetary benefits, the estate of the injured worker is to be paid $60,000.
  • In addition to dependency benefits, there are also burial and funeral expenses which can also be recovered.

How Can I Afford a Lawyer to Help Me?

There is no cost to meet with our office to discuss your workers’ compensation case. We do not charge a fee unless you retain our office and we are able to recover benefits on your behalf. This means if you retain our office and during the life of your claim we do not recover any disputed or new benefits, you will not owe us anything. This means that we will monitor your case and make sure to advise you on important issues.

Minnesota workers’ compensation attorney fees are handled on a contingency basis. No fee is owed unless we are able to recover additional workers’ compensation benefits or a settlement. Before October 1, 2013, attorney fees would be paid on a contingency basis of 25% of the first $4,000 and 20% thereafter. After October 1, 2013 dates injuries, the law changed to 20% of workers’ compensation. In the case that there is no money paid directly to you, whether it be wage loss, permanency or a settlement, and in a situation where we recover medical or rehabilitation benefits on your behalf, we are allowed to have the insurance company pay our hourly fees.

Insurance companies spend lots of money to hire defense lawyers to represent them. Hiring a lawyer gets someone in your corner that understands the system and makes sure that no one is taking advantage of you.

Following a work injury, there is no bad time to meet with a workers’ compensation lawyer. All meetings are private and confidential. An attorney can help you with even the smallest of cases and assist in monitoring your claim and making sure there are no issues. Waiting until there are issues may not always be in your best interest.

Meeting with a workers’ compensation lawyer for an initial consultation is free with no obligation to sign.

Employer Requirements

What Your Employer Can and Can’t Do

Will They Hold My Job Once I Return?

Following a work injury, you may have many questions such as “will my employer hold my job while I am on work comp”? Often times it is in your employer’s best interest to keep your job available. However, in some cases, an employer may not be willing to hold your job. It is important to know what your options are and what you should be doing in order to protect your rights.

In Minnesota, most employees are  “at will.” That means, in the absence of an employment contract, an employer can discharge an employee at any time for any legal reason, with or without notice. However, there are certain protections that an injured employee has, including your employer cannot refuse to offer continued employment to you when employment is available within your physical limitations. If an employer fails to offer you employment without good cause they may be responsible to pay you one year’s worth of wages in addition to work comp benefits.

Additionally, the Federal Family and Medical Leave Act (the “FMLA”) provides eligible employees with the right to take unpaid leave in connection with a work-related injury. The FMLA applies to any employer employing 50 or more employees within 75 miles of a work site for 20 or more weeks in the current or prior calendar year.

To be eligible for FMLA leave, you must have been employed by the employer for at least 12 months (the months need not be consecutive) and must have worked at least 1,250 hours in the 12-month period preceding the leave. If you are eligible you may take up to 12 weeks of unpaid leave during any 12-month period in conjunction with the work-related injury.

During the FMLA leave an employer is required to continue your group health coverage during the period of FMLA leave as if you had continued to work, although you must continue to pay your share of the group health plan premiums in order to retain coverage during the leave.

At the end of the leave, you must be restored to your prior position or to a position with equivalent benefits.

Can They Force Me Back to Work?

After you sustained an injury, it is important that you obtain proper medical treatment and you provide your body an opportunity to heal. It is your doctor that will give you restrictions and limitations in an effort to allow you time to heal from your injury. Unfortunately, employers and insurers may try to rush you back to work too early and, you have a right to dispute it.

If you have been taken off work or placed on restrictions, you are not required to go back to work against your doctor’s recommendations. The insurance company may obtain an independent medical evaluation in an attempt to try to argue that you can go back to work either in a limited or full-duty capacity. The employer and insurer will then attempt to discontinue your wage loss benefits if you fail to return to work as they have requested. Under these circumstances, you have their ability to fight the discontinuance of benefits by requesting a conference. A workers’ compensation lawyer can assist you in representing you at a conference to stop the insurance company from discontinuing your wage loss benefits.

It is important to discuss with an attorney at any time that you have been offered employment as it can have a drastic effect on your wage loss benefits if you refuse employment. It is important to make sure that your doctor or physician believes that work offered by the employer and insurer is not truly within your restrictions or limitations. If the work is within your restrictions and limitations and your doctor believes that it is work that you can do, then it is possible that the work could be suitable gainful employment. In that case, if you did refuse the work, the employer and insurer would be allowed to discontinue your benefits. Consequently, it is very important that you have discussed these various scenarios with an attorney so you can make an informed decision.

Can My Employer Retaliate Against Me?

Employers are responsible for providing a safe and healthful workplace for their employees. If an employee or worker takes it upon himself or herself to report an employer violation that employee cannot suffer employer retaliation in Minnesota. They cannot be retaliated for filing a complaint to OSHA or for reporting a work-related injury.

Your employer may be found to have retaliated against you if your protected activity was a contributing or motivating factor in its decision to take an unfavorable personnel action against you.

Such actions may include:

  • Firing or laying off
  • Blacklisting
  • Demoting
  • Denying overtime or promotion
  • Disciplining
  • Denying benefits
  • Failing to hire or rehire
  • Intimidation
  • Reassignment affecting promotion prospects
  • Reducing pay or hours

Minnesota is an employment “at will” state. This means the employer can fire any employee for any reason as long as that reason is not illegal. It is illegal under the law to fire an employee for making a workers compensation claim. If they do the employer could be responsible for 3x the amount of damages in civil court.

If you feel you have been retaliated against for bringing a workers compensation case, speak with one of our attorneys today. We can discuss with you the best course of action to take in order to get you the benefits you deserve.

denied

Benefits Denied? Hope Is Not Lost

At Mottaz & Sisk Injury Law, we take cases, not to settle, but to get the benefits YOU deserve. If this means taking depositions, obtaining medical reports from your doctors, taking the case to trial or appealing to the Court of Appeals, our office will do it. Our attorneys and staff are here to help you!

One of the most common questions we get is about:

Notice of Intention to Discontinue Benefits

When the insurance company decides that they are going to stop paying you wage loss benefits they are required under the law to file a Notice of Intention to Discontinue Benefits or NOID. The form you receive provides various instructions on how to request a conference concerning your benefits. Typically, you have a very short window, sometimes 12 days, in order to request a conference. If you fail to request a conference in a timely fashion, your ability to get wage loss benefits will be delayed. It is important to talk with one of our experienced workers’ compensation lawyers right away so the necessary steps can be taken in order to get your benefits reinstated.

If you have not received an NOID our office can assist in getting your benefits reinstated by requesting a conference or filing a claim for benefits. One of our lawyers can discuss with your the appropriate course of action to get you the benefits you are entitled to under the law.

Going To The Conference

Some injured workers request their own conference and attend on their own, but in most cases, it would be in the injured worker’s best interest to have representation to make the necessary arguments to the compensation judge so their benefits get reinstated. An injured worker may not know what to argue or what to bring with them to a conference. Our office has handled thousands of these conferences and we know what needs to be done to get your benefits reinstated.

We at Mottaz & Sisk Injury Law offer free consultations for you to discuss your legal options. Because things move fairly quickly once an NOID has been filed it is important that if you wish to speak with an attorney that you contact us quickly. Our office will work diligently to schedule a time to meet with you as promptly as possible. And, if you do retain our office to represent you, we will then take the necessary steps to attempt to get your benefits reinstated.

I Lost At My Conference, What Now?

If you have had an Administrative Conference, whether it be over wage loss, medical, or rehabilitation benefits, typically there is a short window in which you can appeal that decision for a formal evidentiary hearing. The deadlines to appeal a decision can range from 30-60 days depending upon the type of conference. While some Administrative Conferences can be handled adequately by the injured worker, it is important to consult with an attorney if you intend on appeal a decision or if the insurance company appeals a decision.

Following an Administrative Conference, whether it is appealed by the injured worker or not, the insurance company will most likely want to perform some type of discovery. This can include requests for authorizations, requests for medical records, depositions, independent medical evaluations, etc. The employer and insurer will attempt to build a case against you in an effort to stop paying benefits. It is important that if you have not already to discuss the matter with an attorney to go over your options and the best way to handle your case.

Under Minnesota worker’s compensation law, attorneys are retained on a contingent basis. What this means that if the attorney is not successful in getting benefits on your behalf, there are no fees. If an attorney is successful in obtaining wage loss benefits on your behalf, then contingent fees will be withheld in the amount of 20%. If the dispute involves medical or rehabilitation and the attorney is successful in getting benefits for you, then the attorney would be able to recover attorney fees from the insurance company and not from your benefits directly. There would be no fees unless the attorney recovered benefits on your behalf. It is important that you discuss the matter with an attorney so as to protect your rights under the Minnesota Workers’ Compensation Act

Benefits Stopped Due To Maximum Medical Improvement

The Legislature created MMI to serve two essential functions. So, what is Maximum Medical Improvement or MMI? MMI is defined as “the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability, irrespective and regardless of subjective complaints of pain.” Stated otherwise, MMI essentially means an injured worker is as good as they are going to get. An analogous concept is that of a healing plateau.

MMI serves two basic purposes:

  1. First, it constitutes a defense to payment of additional temporary total disability benefits (TTD).
  2. Second, it serves as a place marker, so that where appropriate, a permanent partial disability (PPD) rating can be assigned.

In order for MMI to be used as a defense to payment of further TTD, it is not enough that the injured worker has attained MMI; rather, the injured worker must also be advised about reaching MMI. This is usually accomplished by the insurer mailing a medical report to the injured worker – indicating MMI has been reached. In legal terms, this is known as service of MMI. Service can be accomplished by mail, fax, email or in person. The latter could arise if an injured worker’s physician provided a report of workability to the injured worker indicating MMI at an office visit.

As a general rule, 90 days after the injured worker receives notice of MMI, no additional TTD is payable. Exceptions can occur if the injured worker later becomes medically unable to continue to working or participates in an approved retraining plan. Those, however, are fairly limited circumstances.

Attainment of MMI does not act as a defense to payment of temporary partial disability benefits (TPD) nor permanent total disability benefits (PTD). Rather; it only constitutes a defense to payment of additional TTD. Moreover, although it appears counterintuitive, MMI does not constitute a defense to claims for further medical treatment.

Under Minnesota law, MMI occurs upon proof that the employee’s condition has stabilized and will likely show little further improvement. Moreover, an injured worker may reach MMI regardless of further flare-ups or worsened symptoms. Factors to be considered by the court when dealing with the issue of MMI include the history of improvement, current treatment, pre-existing conditions, and proposed treatment. An injured worker can be at MMI even if still disabled and unable to work. Moreover, a worsening condition does not preclude a finding of MMI because the issue is whether the employee has reached a point where substantial lasting improvement is unlikely.

Attainment of MMI gets decided by a compensation judge – if disputed. The judge decides MMI based upon the medical opinions, the medical records, and the employee’s testimony. The opinion of the treating physician does not necessarily govern. Sometimes, insurers will hire independent medical examiners to render opinions on MMI.

Benefits Payout

Insurer Not Paying? You May Get Additional Compensation

After a work injury, you are entitled to certain benefits. We all have a role in the workers’ compensation process. Whether it is a doctor, employee, QRC, judge or adjuster. Obviously, it is the adjuster’s role to pay benefits when they are owed. Failure to do so causes undue hardship for you, the injured worker. Especially, if it is just poor investigation on the part of the adjuster and it results in you not getting benefits. This type of failure puts the insurance company at risk for a penalty. Some of these penalties are payable to you while others are payable to the special compensation fund.

After a Work Injury

Under the law, the employer and insurer are required within 14 days after the employer has been notified of an injury to admit or deny liability. Wage loss benefits are not payable for the first three calendar days following an injury. However, if your disability lasts greater than 10 days, compensation is due from the date your disability commenced. In other words, they are required to pay from the first day.

Temporary and Permanent Total Disability Benefits are due on the date you would have received wages had you continued working.

Temporary Partial Disability Benefits are due 10 days following mailing of your check stub.

Permanent Partial Disability benefits are due within 30 days a medical report containing a PPD rating or medical information the insurer may determine a rating.

Penalties

If the work comp insurer does not pay benefits when owed you could be entitled to penalties. Penalties can be assessed for specific prohibited acts such as failure to respond to requests, failing to conduct an investigation or advising you not to obtain an attorney. Other penalties can be assessed for frivolous denials or inexcusable delay in payment of benefits.

We can safely say that the system was developed to allow the injured worker a way to recover. The system also put in place rules for the insurance company to follow in order to assist in that recovery. Sometimes the adjuster and insurance company lose sight of these obligations. Our office can make sure the adjuster is following the law and providing appropriate and timely benefits.

Late Benefit Checks

Workers’ compensation insurers are required, under the law, to issue workers’ compensation checks in a timely fashion. What does this mean? Well, this depends on the type of benefits you are receiving.

If you are receiving temporary total disability benefits, the checks are required to be paid at the same interval which you would be receiving checks normally from your employer. In other words, if you get your check on a weekly basis, then temporary total disability benefits are to be paid to you on a weekly basis.

If you are receiving temporary partial disability benefits, the checks are to be issued ten days after you have sent your paystubs to the insurance company. If you are relying on the employer to send the checks, then it would be ten days from which the employer is sending the check to the insurance company. You may want to send the paystub on your own and not rely on the employer to send it to make sure that they are sent in a timely fashion.

Medical mileage is typically issued 30 days after it has been sent to the insurance company. The reason that it is 30 days is that the insurance typically handles it like medical bills for which under the statute they have 30 days to issue payment.

If checks have been sent to you untimely or late, a penalty may be assessed against the insurer. A penalty can be brought, at your request, by the Special Compensation Fund with the Department of Labor and Industry. A complaint can be made and an investigation will be undertaken to determine what, if any, checks have been issued late. The Department of Labor and Industry may then issue a penalty which would then be payable to you. In other circumstances, an attorney can also bring a claim for penalties based on the employer and insurer’s failure to issue checks in a timely fashion.

Incorrect Check Amount

If an injured worker is suffering a wage loss as a result of their injuries, they may be entitled to workers’ compensation wages loss benefits including temporary total disability benefits, temporary partial disability benefits, or even permanent total disability benefits. These checks are based on the injured worker’s average weekly wage. These benefits are depending upon the type of benefit.

If an injured worker is not receiving the correct amount, they may be able to request a conference before a workers’ compensation judge to get the insurance company to pay the correct amount. They may also be able to contact the Department of Labor and Industry to review the checks and determine whether the employer and insurer are inappropriately dispensing the wrong wage loss benefits.

Additionally, the injured worker can talk to a lawyer about filing a Claim Petition to obtain the correct amount of wage loss benefits. Sometimes, this may be the best option as there may be issues as to what the correct average weekly wage is and what the underpayment of wage loss benefits may be.

If you are having issues with workers’ compensation providing benefits in a timely fashion, please feel free to contact the experienced and knowledgeable attorneys at the Mottaz & Sisk Injury Law to discuss your options.