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By: Jerry Sisk, Partner at Mottaz & Sisk Injury Law
Once solidified laws change to keep up with the times. Sometimes, societal needs change due to unanticipated events like the COVID-19 pandemic. Other times, society shines a light on an issue that lurked in the background and brings it to the forefront to enact change. No matter the impetus, change is a good thing when it comes to Minnesota workers’ compensation law.
In the Workers’ Compensation section of the Minnesota Association of Justice – of which I currently serve as Chair – we collectively work to facilitate legal changes in our state’s workers’ compensation system. Here are five of the 2023 proposals that are underway to help injured workers and their attorneys—and improve the system as a whole.
Permanent Partial Disability (PPD) Schedule
A worker can receive PPD benefits for permanent loss of the use of a body part. These schedule-based payments have largely been fixed from 1984 to 2021, according to the Department of Labor. In constant dollars, the benefits have decreased as much as 60%. A proposed change would substantially increase the dollar amount for each impairment rating to align with current wages and provide workers who qualify for PPD with a higher benefit amount.
PTSD Rebuttable Presumption
In 2019, Minnesota added first responders and corrections employees to the list of workers who have a rebuttable presumption of work-relatedness for a post-traumatic stress disorder (PTSD) claim. This means these workers can file a medically diagnosed PTSD claim, and the onus is on the insurer or employer to prove the condition is not work-related. In 2023, an effort is underway to add healthcare essential workers—those who provide direct care beside hospital beds and long-term care nurses—to the PTSD Rebuttable Presumption. This effort also recommends increasing penalties for claims that are denied without good cause.
Average Weekly Wage (AWW)
When an employee suffers a workplace injury and can’t return to work right away, they can file a workers’ compensation claim for temporary total, temporary partial or permanent total disability. The eligible benefit is based on the employee’s AWW, which is usually calculated by adding the injured worker’s paychecks for the 26 weeks prior to the date of injury and dividing it by the number of weeks worked. A proposed statutory amendment would calculate the AWW based on gross earnings and include non-taxable contributions such as health insurance, pension and 401Ks so the injured worker could receive higher benefits.
Denial and Late Payment Penalties
In Minnesota, insurers and other associated entities may incur a penalty for prohibited conduct surrounding the denial of claims—failing to reply, failing to notify the claimant of acceptance or denial, failing to pay or denying medical bills, etc. Likewise, employers or insurers who delay or make late payments to an eligible injured worker can suffer penalties—typically 25% of the benefit that is delayed. A proposal for stronger penalties in these situations is underway to make this behavior more costly and reduce these types of incidences.
Adverse Medical Exams (AMEs) or Independent Medical Exams (IMEs)
Minnesota allows insurance companies and employers to hire their own doctor to provide an AME or IME on an injured worker. The outward purpose is to confirm or refute the injured worker’s diagnosis from their own medical professional. To prevent abuse of this practice, a proposal has been put forth to limit employer and insurer delays to “good cause,” and require doctors to disclose how many AMEs and IMEs they perform annually and how much they or their facility are paid for these types of exams.
Time to Modernize Workers’ Compensation Law
Like all things, change is inevitable. Laws need to be strengthened to reflect modern times and provide greater protections for workers injured on the job. These six proposed changes hold great promise for helping injured workers and their attorneys—and improving the system as a whole. The Workers’ Compensation Advisory Council (WCAC) will hold discussions about these proposals throughout the year to address the issues and ultimately recommend legislative change for workers’ compensation.
Jerry Sisk, Partner at Mottaz & Sisk Injury Law
Jerry is recognized by Super Lawyers magazine as a Super Lawyer and Rising Star. He sits on the Executive Committee for the Minnesota State Bar Association and Minnesota Association of Justice. Currently, Jerry is Chair of the Workers’ Compensation section of the Minnesota Association of Justice. He is co-host of the Podcast, “MN Work Comp Connection,” and a contributor to the Minnesota Association of Justice Trial magazine.