Workers Compensation Benefits | Serving Minnesota and Wisconsin

Workers' compensation benefits in Minnesota are controlled by a statute that was first enacted in 1913. An employer (and its insurer) are liable to a worker injured on the job only for the benefits described in the statute. Workers' compensation benefits are the exclusive remedy for an on-the-job injury as against the employer in almost every case. This section will provide an overview of those benefits.

I. GENERAL CONSIDERATIONS

A. THE DATE OF INJURY CONTROLS APPLICABLE LAW.

1. Minnesota 's workers' compensation statute has been amended many times. The most recent significant amendments occurred in 1984, 1992, and 1995. Which benefits are available to an injured worker, and the extent of those benefits, often depends on the law in effect as of the date of injury.

2. The controlling injury is the last injury that substantially contributes to the injured worker's condition. For example, if an employee has suffered four injuries over a career, each equally contributing to the disabling medical condition, the law in effect as of the last date of injury controls the benefits payable. If an injury is merely temporary, or does not significantly contribute to the overall medical condition, then that injury is not considered in computing benefits.

3. A Gillette-type injury is defined as repetitive minute trauma to an employee occurring over time. The date of a Gillette injury is generally the point at which there is a culmination or a breakdown resulting in disability. This could mean the date of first medical treatment, date of disability from work, date of significant medical treatment (such as surgery), or any reasonable date when the injured worker's condition results in a claim for workers' compensation benefits. When there are multiple Gillette-type injuries, the last injury which substantially contributes to the employee's condition is controlling.

B. AVERAGE WEEKLY WAGE.

1. The amount of most workers' compensation benefits is based on the average weekly wage at the time of injury. The average weekly wage at the time of the last injury which substantially contributes to the injured worker's condition is used for calculating benefits.

2. Average weekly wage is first calculated based on the daily wage. If the daily wage is irregular or difficult to determine, then the wage is determined by dividing the total earnings for the 26 weeks preceding the injury by the total number of days in which the employee worked. The daily wage is then used to calculate the weekly wage, by multiplying the daily wage by the number of days and fractional days normally worked in a workweek. Commonly, the weekly wage can also be determined by taking the 26-week total and dividing by the number of weeks worked during that period.

3. If the employee works at two or more jobs at the time of injury, then all earnings from all employment are used in calculating the average weekly wage.

4. Special rules apply to certain categories of workers. Construction workers, seasonal workers, and workers in the mining industry are presumed to have an average weekly wage of five times the daily wage, regardless of the number of days worked. Minors and apprentices are also provided special rules for calculating average weekly wage based on a presumption that their actual earnings do not reflect future earning capacity.

5. Tips are included in average weekly wage to the extent they are reported to the employer. Any overtime which is regular or frequent is included in average weekly wage. Most fringe benefits, including health insurance coverage and pension contributions are not included in average weekly wage calculations.

C. NON-WORKERS' COMPENSATION BENEFITS OR CLAIMS.

1. While workers' compensation benefits are almost always the only remedy an injured worker has against an employer for an on-the-job injury, there may be other benefits available outside the workers' compensation system following an injury.

2. Where the injury is caused by the negligence or wrongful conduct of a person or company which is not the employer (or a co-worker with the same employer), then the injured worker may have a claim for damages. Those damages may include the same items covered by workers' compensation, but also pain, suffering, disability (from things other than work), emotional distress, spousal claims (for loss of society and companionship), and others. Any workers' compensation benefits paid by the employer/insurer could be recovered from the negligent third party under a formula in the workers' compensation statute.

3. Other wage loss benefits may be available, including unemployment compensation, short-term or long-term disability benefits, sick leave, sickness and accident benefits, accrued vacation time, assistance benefits, or social security.

4. If medical expenses are paid by a health insurance plan, or if wage loss benefits are paid by some other plan, or by unemployment, then the entity paying usually has a right to get repaid from the employer and insurer when the case is found to be compensable. The law specifically provides that, if a workers' compensation claim is being denied, then health insurance must pay the medical expenses under the health plan or policy, and then wait for repayment. ( Minn. Stat. §176.191.)

II. TEMPORARY TOTAL DISABILITY

A. IN GENERAL, TEMPORARY TOTAL DISABILITY IS A WAGE LOSS BENEFIT PAYABLE FOR A LIMITED PERIOD OF TIME.

1. The amount of temporary total disability is 2/3 of the employee's average weekly wage at the time of injury.

2. It is payable when an injured worker is either totally unable to work under doctors' orders, or under work restrictions that prevent a return to suitable employment.

3. If an injured worker is released to work under restrictions (such as limited lifting, avoiding repetitive activities, etc.), then the employee usually has to look for work under the restrictions in order to be eligible for temporary total disability benefits.

4. The workers' compensation statute and case law have established a number of defenses to temporary total disability benefits, or reasons why the employer and insurer are not liable for payment. Those defenses depend on the date of injury.

B. FOR INJURIES THAT OCCUR BEFORE JANUARY 1, 1984 , TEMPORARY TOTAL DISABILITY BENEFITS ARE PAYABLE FOR AS LONG AS AN INJURED WORKER IS DISABLED BY THE WORK INJURY, AND THAT DISABILITY PREVENTS THE EMPLOYEE'S ABILITY TO FIND AND HOLD EMPLOYMENT.

C. FOR INJURIES OCCURRING BETWEEN 1984 AND OCTOBER 1, 1995 , TEMPORARY TOTAL DISABILITY BENFEITS ARE LIMITED AS FOLLOWS:

1. The benefits are payable only until 90 days after the date of maximum medical improvement. Maximum medical improvement is defined as the date after which no further significant recovery from the work injury can be reasonably anticipated. It is a medical opinion.

2. An employee receiving temporary total disability benefits would be cut off if he or she refused a suitable job offer.

3. If an employee, working at a suitable job following a work injury, becomes medically unable to continue working, then the temporary total disability benefits would recommence. The benefits may be reinstated even if the employee is not working at the time he or she becomes medically unable to work.

D. FOR INJURIES OCCURRING AFTER OCTOBER 1, 1995 , THERE ARE ADDITIONAL LIMITATIONS ON TEMPORARY TOTAL DISABILITY BENEFITS:

1. The maximum duration of temporary total disability benefits is 104 weeks, cumulative.

2. An employee who is discharged for misconduct is not eligible for reinstatement of temporary total disability benefits.

3. An employee who refuses a job offer that is either consistent with the rehabilitation plan or which provides gainful employment is not eligible for temporary total disability benefits.

4. The requirement that the injured worker perform a diligent job search was made a part of the statute.

5. The maximum weekly benefit from 1995 to October 2000, was $615.00 per week. For injuries occurring after October 1, 2000 , the maximum temporary total benefit is $750.00 per week.

6. An employee must be working at the time he or she becomes medically unable to work to be eligible for reinstatement of benefits.

III. TEMPORARY PARTIAL DISABILITY

A. GENERAL.

1. Temporary partial disability benefits are payable when the employee has returned to work, under restrictions, at a wage less than the average weekly wage at the time of injury.

2. The benefit may be adjusted for inflation, depending on the date of injury. If the current wage is more than the date of injury average weekly wage, then there is no benefit regardless of the effects of inflation.

3. Temporary partial disability is based on actual earnings. Actual earnings are presumed to reflect the employee's earning capacity.

4. Courts have generally ruled that, in order to rebut the presumption that an employee's wage represents his or her earning capacity, the employer/insurer must present vocational expert testimony.

5. Temporary partial is not payable when there is no current wage, even if the employee is working. For example, self-employment or commission-based work often fails to qualify for temporary partial disability benefits because of a lack of provable earnings.

B. FOR INJURIES THAT OCCURRED BEFORE OCTOBER 1, 1992 , TEMPORARY PARTIAL DISABILITY BENEFITS WERE UNLIMITED.

C. FOR INJURIES THAT OCCUR ON OR AFTER OCTOBER 1, 1992 , BENEFITS ARE LIMITED TO A MAXIMUM OF 225 WEEKS OF BENEFITS PAID (CUMULATIVE), AND TO A MAXIMUM OF 450 WEEKS FOLLOWING THE WORK INJURY.

IV. PERMANENT PARTIAL DISABILITY

A. GENERAL.

1. Permanent partial disability is payment for functional loss of use or impairment of function due to a work injury.

2. The benefits are typically expressed as a percentage of impairment to the whole body (or to a body part) for injuries before 1984.

3. Permanent partial disability benefits are payable at the date of maximum medical improvement, but not payable concurrent with temporary total disability benefits.

4. In general, permanent partial disability is based on the specific medical diagnosis, treatment, and examination findings related to the work injury, rather than its effect on the injured worker's ability to work, amount of pain, or non-work disability.

5. If an employee has a pre-existing condition caused either by a congenital condition or by a prior traumatic event, which contributes to the permanent partial disability rating, then that pre-existing condition would be apportioned, and only the work-related part of the permanent impairment would be payable.

B. FOR INJURIES OCCURRING BEFORE JANUARY 1, 1984 , PERMANENT PARTIAL DISABILITY WAS EXPRESSED AS A PERCENTAGE OF IMPAIRMENT TO THE BODY PART (SUCH AS THE SPINE, LEG , ETC .), AND PAYABLE AS A NUMBER OF WEEKS OF WEEKLY BENEFITS.

C. FOR INJURIES OCCURRING BETWEEN JANUARY 1, 1984 AND SEPTEMBER 30, 1995 , PERMANENT PARTIAL DISABILITY WAS BASED ON DISABILITY SCHEUDLES.

1. The disability schedules list a variety of medical diagnoses and provide whole body percentages of disability according to the diagnosis, treatment rendered, and clinical findings following that treatment.

2. For conditions that are not specifically covered in the disability schedules, a doctor may provide a rating by analogy to the closest condition that is represented in the schedules.

3. The amount of permanent partial disability depends on whether the injured worker is able to return to physically and economically suitable employment. If so, then the benefits are payable as impairment compensation, based on the whole body percentage of disability multiplied by a dollar figure. If the employee is not able to return to a physically and economically suitable job, then permanency is payable as economic recovery compensation. That benefit is calculated by multiplying the percentage of disability by the number of weeks of the temporary total disability benefit rate. Economic recovery compensation was almost always significantly higher than impairment compensation. (For PPD benefit schedule, see Appendix.)

4. If an employee suffers an injury, receives temporary total disability benefits, but has no ratable permanent partial disability, then the employee would receive a minimum 26 weeks of economic recovery compensation.

5. The workers' compensation disability schedules were first enacted in 1984, and then significantly amended effective July 1, 1993 . The 1993 changes listed a number of significant medical conditions that were rated at zero percent. The changes also created different categories of impairments, some of which could be combined with other functional limitations, and some of which were the exclusive remedy for that medical condition.

D. FOR INJURIES OCCURRING ON AND AFTER OCTOBER 1, 1995 , THERE IS ONLY ONE TYPE OF PERMANENT PARTIAL DISABILITY BENEFIT.

1. The Legislature repealed the impairment compensation/economic recovery compensation "two-tier system", and essentially made all permanent partial disability payments payable as impairment compensation.

2. Permanent partial disability was payable on a weekly basis, unless the employee elected to take a 5% discount, and receive the benefits in a lump sum.

3. Minimal permanency ratings where the employee was unable to return to suitable work were repealed.

4. The amount of permanent partial disability ratings were increased slightly for injuries occurring after October 1, 2000 . (See Appendix.)

V. REHABILITATION AND RETRAINING

A. VOCATIONAL REHABILITATION INCLUDES VARIOUS METHODS OF ASSISTING THE EMPLOYEE TO A RETURN TO SUITABLE EMPLOYMENT.

1. The goal of rehabilitation is to restore an employee to either former employment, modified former employment, or to a different occupation which produces an economic status as close as possible to that which the employee would have enjoyed without the disability caused by the work injury. Economic status is to be measured not only by opportunity for immediate income but also opportunity for future income.

2. Rehabilitation is provided to a "qualified employee." "Qualified Employee" is defined as an employee who:

(a) Is permanently precluded or is likely to be permanently precluded from engaging in the employee's usual and customary occupation or from engaging in the job the employee held at the time of injury;

(b) Cannot reasonably be expected to return to suitable gainful employment with the date-of-injury employer; and

(c) Can reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services, considering the treating physician's opinion of the employee's work ability.

3. Rehabilitation services provided to a qualified employee may include vocational evaluation, counseling, job analysis, job modification, job placement, labor market survey, vocational testing, transferable skills analysis, work adjustment, job seeking skills training, on-the-job training, and retraining. For employees who are not released to work, rehabilitation assistance may simply include medical management.

4. Rehabilitation assistance is provided by qualified rehabilitation consultants, who are governed by rules that specify their necessary education and experience and duties toward the injured worker, employer, and insurer.

5. The employee is entitled to choose a qualified rehabilitation consultant. Once a rehabilitation plan has been developed and agreed to by all parties, then the employee can choose to change the QRC once within 60 days. After that, then the QRC can be changed only with the agreement of all parties, or as ordered by a compensation judge.

B. RETRAINING MEANS A FORMAL PLAN FOR EDUCATION PAID FOR BY THE EMPLOYER/INSURER.

1. Retraining may be awarded if necessary to assist the employee in restoring his or her impaired capacity to earn a livelihood following a work injury.

2. The courts have listed the following factors to consider in making a determination as to whether retraining should be awarded:

(a) The reasonableness of retraining versus a return to work through alternative rehabilitation methods;

(b) The likelihood of success in the retraining program;

(d) The likelihood that the job returned to will produce an economic status as close as possible to that which the employee would have enjoyed without the disability.

3. A retraining plan may be appropriate even if intended to increase the employee's earning capacity to a level above the pre-injury average weekly wage.

4. Under an approved retraining plan, the employer/insurer is responsible for all of the costs of the education, including tuition, books, fees, transportation costs, and weekly benefits at the temporary total disability rate. If an employee works part time while in school, then temporary partial disability benefits are paid. Any temporary partial paid during the retraining plan does not count against the 225-week/450-week limits on temporary partial disability.

5. The maximum retraining benefit is 156 weeks.

C. STATUTORY CHANGES TO REHABILITATION AND RETRAINING.

1. Rehabilitation and retraining were made statutory in 1979.

2. For injuries occurring between October 1, 1995 and September 30, 2000 , retraining benefits were available only if the employee made a claim for retraining before 104 weeks of temporary total or temporary partial disability benefits were paid. The employer/insurer was obligated to give notice of this deadline before 85 weeks of those benefits were paid. The law is not settled as to what sort of claim the employee must make within that 104-week period. Typically, an injured worker would file a Claim Petition or Rehabilitation Request to satisfy the requirement, but the courts have not yet ruled on whether anything short of filing a retraining plan satisfies the statute.

3. For injuries occurring after October 1, 2000 , the employee must file a claim for retraining before 156 weeks of temporary total or temporary partial disability benefits have been paid. What constitutes a claim under the post-2000 statute has also not been clarified by the courts.

VI. PERMANENT TOTAL DISABILITY

A. GENERAL.

1. Permanent total disability is a weekly benefit paid to an injured worker who is completely unable to work on a permanent basis due to the injury.

2. The benefit is payable to an employee who is totally and permanently incapacitated, meaning that the employee's physical disability, in combination with the employee's age, education, training and experience causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income.

3. An employee is also permanently and totally disabled if he or she has lost the sight of both eyes, the loss of both arms, the loss of both legs, or the total and permanent loss of mental faculties.

4. For injured workers who have a limited ability to work, a diligent job search is required in order to prove permanent total disability. Frequently, vocational testimony is also necessary.

5. For injuries occurring before October 1, 1995 , permanent total disability benefits are unlimited. Retirement is not a defense to permanent total disability for injuries before October 1, 1995 .

6. For injuries before October 1, 1995 , after $25,000 in permanent total disability benefits are paid, then the permanent total disability benefit is reduced by the amount of social security disability (for the same condition as the work injury) or other government disability or retirement benefits received by the employee (including Minnesota State Retirement and PERA). Once 208 weeks of weekly benefits are paid, then an employee is eligible for supplementary benefits to total 65% of the statewide average weekly wage.

B. IN 1995 THE LEGISLATURE SUBSTANTIALLY CHANGED THE LAW REGARDING PERMANENT TOTAL DISABILITY.

1. For injuries after October 1, 1995 , an employee cannot be found permanently totally disabled unless he or she meets the following thresholds:

(a) The employee has at least a 17% permanent partial disability rating of the whole body;

(b) If the employee is at least 50 years old at the time of injury, and has a permanent partial disability rating of at least 15% of the whole body; or (c) The employee is at least 55 years old at the time of injury, has not completed high school or obtained a GED certificate, and has at least a 13% permanent partial disability of the whole body.

2. Retirement is a defense to permanent total disability benefits. All employees are presumed to retire at age 67. Other evidence may determine that an employee is "retired", and ineligible for permanent total disability benefits, before age 67. Other evidence may establish that an employee did not intend to retire at age 67, and may receive permanent total disability benefits after that date.

3. Supplementary benefits were eliminated. After $25,000 of permanent total disability benefits are paid, then the employer/insurer may subtract any government retirement or disability benefits, including social security disability (for the same condition as the work injury), social security retirement, Minnesota State Retirement, or PERA, from the permanent total disability benefits payable.

4. The minimum permanent total disability rates for all injuries occurring after October 1, 1995 is 65% of the statewide average weekly wage. The minimum applies before any offsets for benefits as described above.

VII . MEDICAL EXPENSE BENEFITS

A. THE EMPLOYER/INSURER MUST PAY MEDICAL EXPENSES RELATED TO THE WORK INJURY.

1. The medical expenses allowed include medical treatment, surgery, hospitalization, nursing services, medicines, dental services, psychological treatment, chiropractic treatment, physical therapy, durable medical equipment and supplies, and related expenses.

2. The amount of medical expenses payable is limited by the workers' compensation fee schedule produced by the Department of Labor and Industry.

3. Only reasonable and necessary medical treatment related to the work injury may be covered. Reasonable and necessary is defined as treatment designed to cure and relieve the effects of the work injury.

4. An employee is entitled to choose his or her primary treating physician for a work injury. Within the first 60 days after commencing treatment, the injured worker has a right to change physicians. After 60 days, the employee may change doctors only with permission of all parties, or as ordered by a compensation judge.

5. Transportation costs, including mileage, are compensable as a medical expense.

B. MANY FORMS OF MEDICAL TREATMENT ARE LIMITED BY THE TREATMENT PARAMETERS SET FORTH IN THE MINNESOTA RULES.

1. The treatment parameters specifically limit all forms of "passive" care, which includes chiropractic, physical therapy, acupuncture, electrical muscle stimulation, massage, and thermal treatments. These treatment modalities are typically limited to 12 weeks following an injury, with a number of exceptions and grounds for departure.

2. The treatment parameters also specifically limit the types and duration of treatment permissible for medical imaging, low back pain, neck pain, mid back pain, upper extremity disorders, reflex sympathetic dystrophy, hospitalization, surgery, and chronic pain management.

C. MEDICAL EXPENSE CLAIM PROCEDURES

1. When primary liability for a work injury is established, an injured worker may file a Medical Request to obtain payment of disputed medical expenses.

2. An employee who succeeds in obtaining payment of disputed medical expenses is entitled to attorneys' fees and costs.

3. A medical provider may also file a Medical Request seeking payment of disputed medical expenses.

4. Where medical expenses are arguably related to a work injury, but the workers' compensation employer/insurer is denying responsibility, then the employee's health insurance must pay the bills, and seek reimbursement through the workers' compensation system. If the workers' compensation fee schedule allowance is higher than the contract allowance under the health insurance plan, then the medical provider is entitled to the difference, which is called a Spaeth balance.

5. Medical expenses may also be claimed through a Claim Petition along with other disputed benefits.