In Minnesota, there is a six-year statute of limitations for personal injuries arising out of a motor vehicle accident. Accordingly, you have six years from the date of the accident to serve a Summons and Complaint upon the party or parties responsible for your injuries. Failure to adhere to this date will preclude you from recovery.

While six years may sound like a long period of time, when you factor in treatment time, negotiations prior to serving the Complaint, and settling related claims (i.e., workers’ compensation, applying for and receiving disability), it goes by quickly. To ensure your attorney has ample time to investigate and document the claim – thereby, securing the highest settlement value for you – seek an attorney’s help sooner rather than later. While an attorney may not be able to secure money on your behalf immediately, earlier representation means the attorney will be able to properly document your treatment and damages.

During your intake interview, be prepared to not only talk about the motor vehicle accident and your injuries, but also prior injuries. You will need to inform your attorney of any and all facilities you have treated in the years prior to the accident. Prior injuries to the same or similar areas that were injured in the motor vehicle accident do not preclude recovery, but it is incredibly important for your attorney to be aware of these injuries. Failure to disclose prior injuries or treatment early in your case could cost you hundreds of thousands of dollars.

If you have photographs of the accident, your damaged property, and/or your injuries, bring copies of these to your intake. If the photographs are stored electronically on your phone, computer or camera, the attorney will ask that you send them to him or her. Any pictures taken by you or others can and, likely, will become evidence in your case. To the best of your ability, you should document who took the picture and when it was taken.

Depending on the nature and extent of your injuries, you could be doctoring for several months or even years. Once you hire an attorney, you will need to keep him or her apprised of your diagnosis and prognosis. When you have completed treatment and/or your doctors have determined there is no further treatment, it will be time to evaluate your claim.

Your attorney will gather the appropriate and necessary medical notes, bills, and ledgers of costs already paid on your behalf. You will be responsible for repaying insurance companies who have made conditional payments as a result of your bills. The insurance company’s claims will be paid through your negotiated settlement.

Once the aforementioned documents are gathered, your attorney can submit a demand upon the insurance company or serve the adverse driver(s) with a lawsuit. The route which your attorney will take depends on a number of factors including, but not limited to, the nature and severity of your injuries, your prognosis, and whether your claim is running close to the statute of limitations.

A demand is a letter drafted by your attorney and sent on your behalf to the adverse driver’s insurance company. This document details how the accident occurred, your course of treatment, cost of treatment, and the amount of money you are entitled to as a result of the injuries sustained. The insurance company does not have to reply to the demand within any specified period of time, but generally proposes a counteroffer within 30 to 45 days of receipt of the demand. If the parties are unable to settle your claim via these informal negotiations, a lawsuit may need to be started. Informal negotiations typically last about six weeks (inclusive of the time immediately after sending the demand).

If informal negotiations fail and a lawsuit is commenced, it generally takes 12 to 18 months for your lawsuit to resolve. The vast majority of personal injuries claims settle prior to trial.

Hiring an attorney at the earliest possible time after your motor vehicle accident is critical. We understand you have innumerable things going through your mind after suffering devastating injuries, but having an attorney by your side should alleviate some of this stress. Your attorney will communicate with your insurance company and any adverse insurance companies. Insurance companies have many rights and tools at their disposal to effectively defend your claim. Even your insurance company could turn into an adversary. To ensure the best financial recovery for yourself, you should hire an expert that will explain your rights through it all. Contact Meuser, Yackley & Rowland, P.A. for a free, no-obligation consultation. Call us today at 1-877-746-5680.

A few weeks ago, I argued before the Minnesota Supreme Court in the case of Angela Hawley v. City of Blaine and League of Minnesota Cities. Less than ten days later, the Minnesota Supreme Court dismissed the employer/insurer’s appeal as moot, which is one of the outcomes that I advocated for at oral arguments.

(You can view a video of the oral argument by clicking on the following link: https://www.mncourts.gov/SupremeCourt/OralArgumentWebcasts/ArgumentDetail.aspx?vid=1358)

As a result, the Workers’ Compensation Court of Appeals (WCCA) decision, that a Workers’ Compensation Judge does not have subject matter jurisdiction to decide a discovery motion before proceedings have commenced, remains the law effecting all future cases.

This is an incredible outcome, that will have a significant impact on injured workers and the Minnesota workers’ compensation system.

But, what does this mean?

Practical impact of winning at the Minnesota Supreme Court

Practically speaking, it means that an employer cannot compel an employee to attend an invasive psychological examination, before the employer admits liability for her workers’ compensation claim and pays benefits, or the employee initiates a proceeding by filing a Claim Petition.

(It would be like reporting a traffic accident to your auto insurance provider and being compelled to attend an adverse medical evaluation before deciding whether you want to bring a claim.)

How did we get here?

Every workers’ compensation case starts with an injured worker. Here, a Police Officer sustained an injury in the nature of PTSD, she reported her injury to her supervisor, and the employer denied liability for her injury. After denying liability for her injury, the employer/insurer sent the Police Officer notice that she was scheduled to attend an independent psychological evaluation. However, she had not yet filed a Claim Petition, or otherwise put her mental health into controversy. All she had done at that point, was report her injury and request a First Report of Injury.

Fortunately, the Police Officer had hired Meuser, Yackley & Rowland, P.A. to protect her rights and advocate for her interests. Meuser, Yackley & Rowland, P.A. sent a letter to the employer/insurer explaining that the Police Officer would not agree to attend an independent psychological evaluation, at this time, as was her right. The employer/insurer filed a Motion to Compel, and the Workers’ Compensation Judge determined that she did not have jurisdiction to decide the employer/insurer’s motion.

The employer/insurer appealed the Workers’ Compensation Judge’s decision to the Workers’ Compensation Court of Appeals. Meuser, Yackley & Rowland briefed and successfully defended the employee’s position, and the Workers’ Compensation Court of Appeals affirmed the Workers’ Compensation Judge’s decision. The employer/insurer then appealed to the Minnesota Supreme Court.

The issue decided by this case

The issue in this case was whether a Workers’ Compensation Judge at the Office of Administrative Hearings has subject matter jurisdiction to decide an employer/insurer’s discovery motion to compel an independent psychological evaluation, in the context of a denied claim, before a petition initiating a proceeding has been filed.

The Workers’ Compensation Judge determined that she did not have subject matter jurisdiction over the employer/insurer’s motion to compel an independent psychological evaluation because the employee had not availed herself of the benefits of the Workers’ Compensation Act. The WCCA affirmed on the basis that the employee had not filed a Claim Petition, initiating litigation of her workers’ compensation claim and putting her mental health at controversy.

The Minnesota Supreme Court dismissed the case as moot because the employee filed a claim petition (vesting subject matter jurisdiction) and attended the independent psychological evaluation (the object of the employer/insurer’s motion).

Meuser, Yackley & Rowland won at the Office of Administrative Hearings and at the Workers’ Compensation Court of Appeals. The employer/insurer appealed to the highest court in the State of Minnesota. However, because the Minnesota Supreme Court dismissed the case, the Workers’ Compensation Court of Appeals decision remains the law effecting all future cases.

It is your right to choose whether to file a claim for workers’ compensation benefits

An employee should be able to choose whether to bring a claim for benefits, and unless/until the employee puts her mental health into controversy, the employer should not be allowed to compel an employee to turn-over sensitive mental health treatment records and attend an adverse psychological evaluation.

What to do if your employer requests an adverse psychological evaluation

If you have notified your employer that you were injured at work, and your employer asks you to attend an independent medical examination, proceed with caution. The employer/insurer is not asking you to attend an independent medical examination to conduct a “fair and independent” evaluation of your injuries.

Rather, an independent medical examination is bought and paid for by the employer/insurer to provide it with defenses against your claim, support their ongoing denial of benefits. If you are in this situation, then you need to get a lawyer, and fast, in order to protect your rights. Contact Meuser, Yackley & Rowland, P.A. for a FREE and CONFIDENTIAL consultation. Call us today at 1-877-746-5680.

We are excited to announce that Jennifer Yackley and Lindsey Rowland have been named partners and, as such, Meuser Law Office, P.A. is now Meuser, Yackley & Rowland, P.A. Established in 1990, Meuser Law Office, P.A., is recognized as one of the top law firms in Minnesota dedicated to the integrated practice of workers’ compensation, PERA/MSRS disability, and personal injury law. We believe that experience matters and this change builds on the foundation for our future.

Jennifer Yackley is a fierce advocate for police officers & firefighters. Jen has been working for Meuser Law since graduating from Hamline University School of Law in 2007. Jen’s forte includes her legal writing and the ability to manage complex cases involving the coordination of benefits and complicated medical issues.

Lindsey Meuser Rowland joined Meuser Law in 2018 after receiving her J.D., Magna Cum Laude, from St. Thomas School of Law. While in school, Lindsey worked for both the Workers’ Compensation Court of Appeals and the Office Administrative Hearings – Workers’ Compensation Division, where she gained courtroom exposure. As a student attorney Lindsey successfully argued a pro-bono case before the United States Court of Appeals for the Ninth Circuit. Just recently, Lindsey argued a legally significant workers’ compensation case before the Minnesota Supreme Court which had a positive outcome as well.

Combined, the team of attorneys at Meuser, Yackley & Rowland, P.A. have 50+ years of experience and the depth of knowledge that is so crucial to the intertwined practice of work comp, PERA/MSRS disability, and personal injury law. We will successfully manage all aspects of your case, bringing a full understanding of all three areas and how they interrelate with each other to the table, so you receive all the benefits and compensation you are entitled to under the law.

Our legal team, which includes 6 attorneys a growing number of paralegals, clerks, analysts, and administrative assistants, has represented more firefighters, police officers and first responders injured in the line of duty than any other law firm in the state of Minnesota. The name of our firm has changed, but the same dedicated service to each of our clients remains the same. Founder, Ron Meuser Jr., will remain an active partner and is committed to ensuring that the clients of Meuser, Yackley & Rowland, P.A. obtain the best possible results from their claims. Satisfied clients are the foundation of our reputation and the reason for our firm’s longstanding success. Please join us in congratulating Jen & Lindsey on their elevated presence within the firm.

Individuals who suffer a work injury in Minnesota often wonder if or when they will receive a settlement. In fact, there are “work comp settlement calculators” on the Internet that mislead people into thinking that punching a few numbers into a form will give them a settlement estimate.

In Minnesota workers’ compensation is a “pay as you go” system, meaning that work comp benefits are paid on an ongoing basis, as long as you remain entitled to benefits. There is no such thing as an automatic “settlement” for your injuries.

That being said, settlement is a very common practice in Minnesota workers’ compensation cases, particularly where:

• There is a dispute over benefits
• The person will be eligible for ongoing work comp benefits for an extended period of time

An experienced Minnesota workers’ compensation attorney can help you decide whether a settlement of your case is in your best interest. With the guidance of an attorney, whether or not to settle your case is ultimately your decision. If you are considering settlement of your workers’ compensation case, you and your attorney will typically discuss the settlement process, which includes:

• Making a settlement demand
• Settlement negotiations
• Strengths and weaknesses of your case
• Approximate settlement value of your case

When calculating the settlement value of a Minnesota workers’ compensation case, there are several factors that are taken into consideration, including past owed wage loss, future estimated wage loss, rehabilitation and/or retraining benefits, permanent partial disability benefits, and outstanding medical expenses. Once the attorney has calculated a settlement demand, with client authorization to do so, the attorney will then send that demand to the defense attorney or the insurance adjuster. From there the defense attorney or adjuster will respond with an offer, and the parties negotiate back and forth, ultimately arriving at a number that is acceptable to both sides.

Beyond the numbers in a Minnesota workers’ compensation case, your lawyer will discuss the strengths and weaknesses of your case, and he or she will give you recommendations of the likelihood of success. The relative strength of a given case plays a huge role in the settlement value of the case. For example, if there is a case where the past and future wage loss is potentially worth $200,000, but the client only has a 25% chance of succeeding at trial, the case is worth far less than the potential past and future monetary value of the case.

Minnesota workers’ compensation settlement negotiations can take a variety of forms. Often, negotiating is an informal process of phone calls or emails back and forth. At times settlement discussions occur at a Settlement Conference at the Office of Administrative Hearings, and frequently, Meuser Law Office, P.A. utilizes a form of alternative dispute resolution called mediation in negotiating on a case. A mediation involves the services of an individual who is a third-party neutral to facilitate settlement discussions between the injured worker and the employer/insurer.

In addition to a dollar figure, the parties will also need to reach an agreement as to terms of the settlement. Is it a “to-date” settlement, meaning that the settlement only pertains to past owed benefits? Or is it on a full, final, complete basis, meaning that the settlement is for past and future benefits? Are future medical expenses open or closed – in other words, is the workers’ compensation insurer responsible for future medical expenses relative to the work injury? Who is responsible for paying any outstanding medical expenses or third party reimbursement claims, such as unemployment or short/long-term disability, the injured worker or the employer/insurer? These are all issues that need to be worked out in addition to the settlement amount.

Once you have reached a settlement on your workers’ compensation case, it typically takes a few weeks before things are finalized. You will ultimately sign a Stipulation for Settlement, which is a contract between you and the employer and their workers’ compensation insurer setting forth the terms of the settlement. Depending on the complexity of the case, it is not uncommon that it can take several weeks for this paperwork to be finalized. After the paperwork is signed by both sides, it is submitted to the Office of Administrative Hearings for approval. Once a judge has reviewed and signed off on the settlement, the Court will issue an Award on Stipulation, which is simply a Court Order approving the settlement. The workers’ compensation insurer has 14 days from the date of the Award on Stipulation to issue payment.

If you would like to discuss potential settlement of your Minnesota workers’ compensation case, contact Meuser Law Office, P.A. to schedule a free, no-obligation legal consultation. Our knowledgeable attorneys will help you understand the often-confusing Minnesota work comp law and ensure you receive the full benefits to which you are entitled. Call us today at 1-877-746-5680.

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 costhundreds 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 rights 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.

In rare circumstances employers and insurers may be subject to monetary penalties for violating the Minnesota Workers’ Compensation Act. Penalties serve as a deterrent to employers and insurers from flagrant disregard of the rules. Some penalties are payable to the State of Minnesota and some are payable to the employee.

1. Frivolous Liability Denial

When an adjuster for an insurance company denies an injured worker’s claim, the adjuster must demonstrate a good-faith effort to investigate the claim. The adjuster may also not use clearly inaccurate statements of fact or applicable law under the Minnesota Workers’ Compensation Act. If a judge finds that an adjuster has violated Minnesota Statute §176.221, subdivision 1 and 176.225, subdivision 1, then the judge may issue a penalty against the insurance company payable to the State and the employee. An employee may be entitled to 30% of the amount of the delayed benefits.

At Meuser Law Office, P.A. we have recently brought a claim for penalties for the failure of an insurer and public employer to pay temporary total disability benefits and temporary partial disability benefits after the law enforcement officer separated from the date of injury employer in order to receive PERA Duty Disability benefits. The insurer and employer admitted liability for the injury and is in agreement with the Independent Medical Examiner and treating physician’s restrictions for the employee. The employer and insurer refuses to pay despite the definitive case law on this issue under Boutto v. U.S. Steel Corp. (July 18, 2007 WC06-288).

2. Non-specific Denial of Liability

Similar to penalties for frivolous denial of liability, under Minnesota Statute 176.84 insurers must issue specific and clear reasons that the adjuster is denying the injury. The penalty for a non-specific denial of liability is $500 each violation.

3. Late Payments of Benefits

Insurers and employers are also required to make timely payment of benefits under Minnesota Statute § 176.221, subdivision 1. An employee’s first temporary total disability payment must be issued the 14th day after the first day of an employee’s disability or the date the employer received notice, whichever is later. The employee may be awarded 25% of the delayed benefits.

4. Obstructing an Employee’s Minnesota Work Comp Benefits

Under Minnesota Statute §176.82, subdivision 1, an insurer or an employer who fires or threatens to fire an employee for making a claim for workers’ compensation benefits is liable for civil damages in addition to workers’ compensation benefits owed. This violation also includes costs and reasonable attorney fees in addition to punitive damages three times the amount of any compensation benefits to which an employee is owed.

This violation may be difficult to prove but if an employee is able to offer concrete evidence, for example text messages, letter, or a saved voicemail with the employer threatening to fire the employee for filing a work comp claim, may be persuasive.

5. Refusing to Offer Continued Employment

Under Minnesota Statute §176.82, subdivision 2, an employer who has work available with the employee’s physical restrictions must offer continued employment. If an employer does not have reasonable cause to continue to offer suitable employment is liable for one year of the employee’s wages in a civil lawsuit. Employers with less than 15 full-time employees are exempt from this statute.

6. Failure to Ensure

An uninsured employer may also be fined by the Department of Labor and Industry for failure to insure employees for workers’ compensation injuries, regardless if any employee has been injured. An employer may be required to pay a penalty up to $1,000 per employee per week for the time period the employee was not insured.

7. Failure to Pay Settlement Award

After the parties agree to a settlement and the settlement is set forth in the stipulation for settlement, a workers’ compensation judge must review and then issue an award on stipulation, which is a court-order dictating what the employer and insurer must pay. The employer and insurer must issue payment within 14 days of the award or be subject to fines.

If you believe you may be entitled to penalties under the Minnesota Workers’ Compensation Act or have a workers’ compensation claim, contact the knowledgeable attorneys at Meuser Law Office, P.A. for a free no-obligation case evaluation. Call us today at 877-746-5680.

In 2018, the Minnesota legislature took a huge step, and passed legislation creating a workers’ compensation statutory presumption of PTSD for our state’s first responders. In other words, for certain workers in the state of Minnesota, including police officers, firefighters, corrections officers, and others defined as “first responders,” a diagnosis of post-traumatic stress disorder is to be presumed to be work-related. The goal of this bill, authorized by Representative Nick Zerwas (R), and which had almost unanimous support in the legislature, was to eliminate barriers to quick, effective medical care for our State’s first responders suffering from PTSD.

The presumption statute was largely in response to the way our first responders’ claims were being handled by public insurers – which was to deny, deny, deny. The hope was that Representative Zerwas’ presumption bill might change that. But, in order to get business interests on board, the bill also directs the Department of Labor and Industry to create “treatment parameters,” which are a set of administrative rules governing what kind of treatment is authorized, how often that treatment is authorized, and how long that treatment is authorized, amongst other things. The Department has gone through several drafts of these rules and unfortunately, numerous Plaintiff’s attorneys, including the attorneys at Meuser Law, are gravely concerned that the rules that are ultimately developed may very well make it even harder for our state’s first responder to access appropriate care.

At the invitation of Law Enforcement Labor Services (LELS) and the Minnesota Police and Peace Officers Association (MPPOA), I attended a meeting with Representative Nick Zerwas, LELS, MPPOA, Department of Labor and Industry Commissioner Ken Peterson and others, which took place on November 1, 2018. At that meeting, we made our concerns abundantly clear regarding the draft treatment parameters.

Since that time, various revisions have occurred to the parameters, but after reviewing the latest version found here, it’s obvious that the drafters of the parameters did not take our input seriously. While they made a few changes to the parameters, the most troublesome issues are still in the rules. Our office will continue to do what we can to stop these parameters from taking effect, but our options are somewhat limited. The rules are set to take effect July 1, 2019. Frankly, for the health and safety of our first responder clients, we are considering recommending that they proceed outside the workers’ compensation system so as to avoid these completely arbitrary rules and limitations on treatment until they’ve had an opportunity to treat until their symptoms are better controlled – and then proceeding with a workers’ compensation claim later on. That obviously completely undermines the purpose of the presumption statute, but as it stands – the proposed parameters also completely undermine the purpose of the statute.

Here are some of the biggest issues with the current draft of the proposed PTSD parameters:

• The 16-week limitation – An individual who has an admitted workers’ compensation claim for PTSD gets no more than 16 weeks of treatment – of one particular modality – at a frequency no greater than twice a week. Where does the 16 weeks come from? No one seems to know or be willing to acknowledge the rationale behind a 16-week limitation. What I can say is that I don’t know if I’ve EVER had a first responder PTSD client that is “all better” after 16 weeks. The 16-week limitation is completely and utterly divorced from reality. People with low back injuries get what we call “12 + 12” or 24 weeks of chiropractic care, but we’re going to limit PTSD claimants to 16 weeks? That speaks volumes about how seriously the drafters of the rules are taking this – how many times can we say it – PTSD is life or death! 16 weeks? Maybe civilians with relatively minor traumas can get “better” within 16 weeks, but most of our first responder PTSD clients are still treating for years after they have separated from service.
• Departures and treatment beyond 16 weeks. The rules do allow for additional hoop jumping to obtain more than 16 weeks of treatment, which has to be pre-approved by the insurer. How often do you think they’re going to pre-approve an extra 16 weeks? What is the person supposed to do for treatment while they’re waiting? The PTSD departure rules model the departure rules that already exist for things like chiropractic or physical therapy.

Here’s the language of the current proposed rule:

1. An extension of the psychotherapy treatment duration specified in subpart 5, item B, is indicated in the following circumstances:

(1) The patient’s treatment has been interrupted or delayed because of a need for treatment of a different medical or psychological condition, including treatment of comorbidities;

(2) Previous treatment for PTSD did not meet the accepted standard of practice;

(3) There is documentation in the medical record or other report, pursuant to subpart 9, of all of the following during the current course of treatment:

 (a) that the patient has adhered to the treatment plan, as described in subpart 4;

(b) a decrease in the patient’s PTSD symptoms;

(c) improvement in the patient’s functional status; and

(d) further decrease in the patient’s PTSD symptoms and continued improvement in the patient’s functional status are anticipated with additional treatment.

(4) The patient has returned to work, and is in need of additional treatment related to an exacerbation of PTSD symptoms caused by their work activities;

(5) With the approval of the commissioner or a compensation judge, subject to the requirements of part 5221.6050, subpart 7 (C), in rare cases with exceptional circumstances where departure from the durational limits is necessary to obtain proper treatment.

I can say pretty definitively that plaintiff’s attorneys are going to be kept busy litigating over getting our clients access to care beyond the first 16 weeks.

• The “second chance for a denial” provision. The rules also provide that if a person doesn’t “respond to or complete” 16 weeks of one type of therapy – meaning that they haven’t fully resolved, that person “shall be referred for a complete psychological assessment.” And who is going to perform that psychological assessment? A “doctor” chosen by the insurer? Maybe one of the “usual suspects” who performs “independent” psychological exams? If the injured worker wants to choose their own evaluator, is the insurer going to pay for it? How much is the insurer going to pay a person’s own doctor to perform a “complete psychological assessment” including the MMPI-2 or MMPI-2-RF which takes hours to administer and score? You can see exactly where this provision is headed – it is a blatant “second chance” for insurers to send people with PTSD for another adverse examination with an IME doctor.

• The rules also provide that treatment under the parameters can basically be “paused” and resumed, if a person has a co-morbid diagnosis that needs to be treated. This conceptually again reflects that the drafters seem to be oblivious about the realities of PTSD. Some studies demonstrate co-morbidities in up to 80% of PTSD cases. Does that mean our clients have to somehow treat separately for depression and PTSD, or anxiety and PTSD? And does it mean that the insurer only has to pay for the PTSD treatment, and not the treatment for anxiety and depression? At this stage, no one seems to know.

• The rule also provides that a person has to continue to meet all the DSM-5 criteria for PTSD in order to be eligible for additional treatment. This is not what the law says, and basically the writers of the parameters appear to be accepting a legal theory argued by the defense bar that somehow if a person’s PTSD symptoms have at least partially improved, that they should no longer be covered by workers’ compensation. Again, this is non-sensical. If an individual still meets 7 of the 8 criteria for PTSD, but no longer demonstrates clinically-significant avoidance symptoms, that person no longer needs medical care?
• The “Two Week Rule” – 5(D) requires – among other things – a psychotherapy provider to 1) complete an “assessment” to evaluate the person’s severity of symptoms and functional status and it 2) requires a provider to provide a work ability report – every TWO WEEKS. This is completely impractical – there aren’t enough providers to treat our first responders as it is. Sometimes it can take weeks for a person to even get into a psychiatrist. It is utterly ridiculous to require a full diagnostic assessment AND an updated workability report every two weeks. No other type of medical condition in the workers’ compensation system has this kind of onerous reporting requirement. If the goal is to bury people with PTSD and their medical providers in paperwork, this is a good start.
• Benzodiazepines are flat out banned for treatment of PTSD under the parameters. Again, it’s completely unknown where the authors of the parameters came up with this. Benzodiazepines are somewhat controversial, and I believe the VA recommends against them, because they do have the potential for abuse. However, I would estimate that around 50% of our first responder clients with PTSD are prescribed some form of benzodiazepine early on in treatment to help with severe anxiety symptoms or sleep disturbance. Without citing any reason why, the drafters of the parameters have decided to completely bar coverage for those types of medications, again demonstrating that they are not actually consulting with the providers who are on the front lines of treating our first responders with PTSD.

The writers of the parameters have cobbled together a set of rules that may look good on paper if they’ve never met a person with PTSD, but to anyone that’s in the trenches day in and day out, representing first responders with PTSD, it’s amazing how divorced from reality these rules actually are. It remains to be seen how much damage these rules – if passed – will do.

For a free, no-obligation consultation to learn about your workers’ compensation rights, or to learn how to protect yourself in light of the First Responder Presumption Statute and the proposed PTSD treatment parameters, contact Meuser Law Office.  Call us today at 1-877-746-5680.

MPD Lt. Bob Kroll called the show to respond to comments by Ward 3 Councilman over police staffing and downtown crime.

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