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I Separated from My Employer Because I was Approved for PERA, Am I Still Entitled to Work Comp Benefits?

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PERA

Workers' Compensation

Personal Injury

wc-content_copyRetirement is a bad word for injured workers in workers’ compensation. If an employee retires then he or she cuts him or herself off from access to many types of Minnesota workers’ compensation benefits. Retirement means that an employee is removing him or herself from the labor market. Employers and insurers often erroneously equate PERA Duty Disability benefits with retirement.
Separation as a Result of a Disability – Not Retirement

At Meuser Law Office, P.A. we frequently see employers and insurers who attempt to cut off police officers, first responders, and firefighters’ benefits through a NOID (“Notice of Intent to Discontinue Benefits”) or a Rehabilitation Request when the injured employee separates from their employer in order to receive PERA Duty Disability benefits. Insurers and employers attempt to equate PERA Duty Disability benefits with retirement under the law. The courts have uniformly held that employees who separate from their employers in order to receive PERA Duty Disability benefits are not retired. Despite that these employees are not retired, employers and insurers may still try to use this defense. PERA Duty Disability benefits are not retirement benefits. An employee who receives service-based government retirement pensions is presumed retired from the labor market. But, service-based government retirement pension does not include disability-based government pensions. Minnesota Statute § 176.101, subdivision 8.

Post-Separation Benefits

Once a client of ours separates from the employer as a result of his or her PERA approval, our office typically sends a letter reminding the employer that they need to begin paying Temporary Total Disability (“TTD”) or Temporary Partial Disability (“TPD”) benefits, depending on whether the injured worker is working or completely out of work. Separating from your employer in order to receive Duty Disability benefits is not refusal of a suitable job. Employees are not bound forever to their date-of-injury employer. See Haswell v. Indelco Plastics (W.C.C.A. September 17, 2001).

You may also be entitled to Rehabilitation Benefits, if you haven’t already been receiving them, which may include the assistance of a Qualified Rehabilitation Consultant or a “QRC.” Pursuant to Minnesota Statute § 176.102, subdivision 4(a), a rehabilitation consultation must be provided by the employer to the employee upon request by the employee, employer, or commissioner. A rehabilitation consult can be denied if the employee does not have restrictions. However, if you were approved for PERA Duty Disability benefits, you have restrictions from your doctor. Moreover, even though you are not retired, you would still be entitled to rehabilitation assistance. See Boutto v. U.S. Steel Corp., slip op. (W.C.C.A. July 18, 2007) (retirement does not bar further rehabilitation assistance).

PERA and Work Comp Offsets and Reductions

If an injured employee receives both work comp benefits as well as Duty Disability benefits, then PERA takes an offset—or reduces the amount that they pay to the employee. Thus, in many cases it may be more prudent to settle a work comp claim in a lump sum rather than suffer a reduction the PERA Duty Disability benefit.

However, if an employee is deemed PTD or Permanently Totally Disabled, then workers’ compensation takes an offset and the value of your Minnesota work comp claim may be drastically reduced. You may be PTD based on the amount of permanency associated with your particular injury as well as any other non-work related disabilities.

But, pursuant to recent changes in the case law, once the PERA Duty Disability benefit converts to a retirement benefit, then workers’ compensation does not receive an offset. Employees who received Duty Disability benefits as a result of an injury 10 years prior, may now be PTD as a result of their worsening conditions and therefore maybe able to bring additional claims.

Tips:

- When an employee is separating from his or her employer, he or she should indicate they are not retiring and are separating as a result of a disability.

- Do not check the retirement box on any Human Resources form. Do not tell people you work with that you are retiring. Do not use the word retire. For many police officers and firefighters “retired” from the department is used interchangeably with leaving on a disability. But for the purposes of workers’ compensation, do not give the employer an opportunity to attempt to discontinue your benefits.

- A diligent job search demonstrates that you are not retiring but rather are disabled from performing the duties of a correction officer, paramedic, police officer, or firefighter. It is imperative you record your job search using a job log.

- Indicate on the PERA Duty Disability application that while you may be disabled from performing the duties of a correctional officer, paramedic, police officer, or firefighter, you are not disabled from performing all types of work. Indicating that you are PTD or permanently totally disabled may adversely affect your work comp claim.

If you have a PERA Duty Disability, health care continuation, personal injury, or workers’ compensation claim, contact the attorneys at Meuser Law Office, P.A. for a free consultation. Our knowledgeable attorneys will help you understand the often-confusing Minnesota workers’ compensation law and ensure you receive the full benefits you are entitled to.


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