Governor Dayton recently signed into law a number of revisions to the Minnesota workers’ compensation statute. These changes are significant, so please feel free to write or call if you have any questions or concerns.
- Limited Mental-Mental Claims now permitted The definition of an occupational disease was revised to include mental impairment. Mental impairment is defined as post-traumatic stress disorder diagnosed by a licensed psychiatrist or psychologist. The statute states that for the purpose of workers’ compensation, “post-traumatic stress disorder” means the condition as described in the Diagnosis and Statistical Manual of Mental Disorders. Despite this revision to the statute, the language is quite restrictive, as it prohibits recovery from mental impairment if it results from:
- Disciplinary action
- Work evaluation
- Job transfer
“Similar actions” taken in good faith by an Employer
This new law would potentially affect the holding in future cases similar to Schuette v. City of Hutchinson, No. WC12-5486 (W.C.C.A. Apr. 18, 2013), where a police officer responded to an accident involving a 12-year-old girl, and then realized he knew both the girl and her family personally. The police officer alleged he suffered from a post-traumatic stress disorder, but under the previous Minnesota Supreme Court case of Lockwood, both the compensation judge and the W.C.C.A. found that this was a non-compensable mental-mental claim.
- TTD rate increased, annually, to 102% of the SAWW Instead of $850, the maximum compensation rate will be adjusted annually to “102% of the SAWW for the period ending December 31 of the preceding year.” The number will be posted on the DOLI and WCRA websites.
- Attorney’s Fees increased to $26,000 Instead of the 25/20 formula, there will be a straight 20% fee applied to the first $130,000 in benefits, which means a maximum attorney fee of $26,000. Fees for employers and insurers were also increased to $26,000 per case, although limitations on defense fees were never enforced, and possibly unconstitutional. Attorney’s fees on some smaller cases will actually be less under this formula (by only $200), but overall fees will go up for the Petitioner’s side.
- Subd. 7 Fees only for attorney fees based on a contingency, not medical or rehabilitation disputes The new statutory revisions eliminate partial reimbursement of attorney’s fees to employees pursuant to Minn. Stat. § 176.081, Subd. 7 for fees awarded on medical or rehabilitation disputes. Subd. 7 fees can now only be awarded when attorney’s fees are deducted from benefits on a contingency basis.
- Job search limited to 26 weeks Minn. Stat. § 176.102, Subd. 5 was amended to state that job development services provided by a QRC or registered rehabilitation vendor must not exceed 20 hours per month or 26 consecutive or intermittent weeks. When 13 consecutive or intermittent weeks of job development services have been provided, the QRC must consult with the parties and either file a plan amendment reflecting an agreement by the parties to extend job development services for up to an additional 13 consecutive or intermittent weeks, or file a request for a rehabilitation conference under Minn. Stat. § 176.106. The commissioner or compensation judge may issue an Order modifying the Rehabilitation Plan or make determinations about the employee’s rehabilitation, but must not order more than 26 total consecutive or intermittent weeks of job development services.
- 176.645 Adjustments cannot be under 0 percent or over 3 percent For injuries occurring on or after October 1, 2013, no adjustment increase shall exceed 3 percent a year. The statute also states that no adjustment shall be less than 0 percent. Also, the initial adjustment will now be deferred until the third anniversary of the date of injury.
- QRC Discipline switched from “shall” to “may” The old law mandated the Commissioner to pursue an investigation of any and all complaints against QRC’s and rehabilitation vendors. The Department now has discretion as to whether they pursue the claims or not.
- $7,500 on DOLI jurisdiction not applicable if issue to be determined is whether a charge is excessive The $7,500 limited does not apply for jurisdiction over medical issues for DOLI if the determination is whether a charge for a service, article or supply is excessive under Minn. Stat. § 176.136.
- Changes to 176.521 regarding Settlements during WCCA Appeal This provision is a procedural codification for suspending activities before the Workers’ Compensation Court of Appeals if the parties intend to settle their case instead of proceeding with the appeal.
- Patient Advocate Pilot Program A patient advocate pilot program will have no immediate legal effect. The revised statute introduces a two-year program through DOLI for patients with back problems who are considering fusion surgery. The goal is to better educate patients about the high costs and potential risks of fusion surgery.
- Treatment Parameters to be amended to add rules for long-term opioid use The Treatment Parameters will be amended to add criteria for the long-term use of opioids or other “scheduled medications”, including written contracts between injured workers and the health care providers who prescribe the medication.
We are disappointed to report that the provision in an earlier bill to eliminate “Spaeth” claims was removed. Pursuant to the Spaeth case, medical providers are allowed to pursue the difference between the workers’ compensation fee schedule and the amount they received from a health insurer. This requires every potential medical and chiropractic provider to be placed on notice of their right to intervene in litigated cases. Each medical and chiropractic provider has a right to pursue its claim no matter how small, making settlements much more complicated and time consuming.
Please call any of our Minnesota workers’ compensation attorneys if you have any questions about these statutory provisions. We are cautiously optimistic that the change in the definition of an occupational disease to include mental impairments will have limited application due to the restrictive language in the statute. We are very encouraged by the limitations on placement services. This should present a significant cost savings to employers and insurers.