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Law Blog

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A sobering expose on workers' compensation elsewhere

Posted on November 14, 2015 at 12:00 AM

Thankfully, Minnesota is not this bad yet. Yet.

It goes without saying: If you have occupational disease, talk to an attorney. And do it fast:


"How Workers’ Comp Is Rigged"

- Jeff

TTD, TPD, PTD, and PPD: Decoding the alphabet soup of work-comp benefits

Posted on June 16, 2015 at 8:00 AM

Two of the most frequent questions when it comes to workers’ compensation benefits are: “What are all these acronyms, and what’s with all the Ds , Ps, and Ts?” Well, TPS Reports they are not, Office Space fans. Each acronym, in fact, represents a separate and specific kind of benefit. Three of them consist of wage-loss benefits, and the other is compensation for loss of function or functional impairment.

Wage-loss benefits

TTD: “Temporary total disability.” This is the benefit you receive when you cannot work at all. When you are hurt, have full work restrictions, and are no longer collecting any paychecks, you are entitled to TTD benefits. These are payable at two-thirds of your average weekly wage (“AWW”) before your injury.

TPD: “Temporary partial disability.” This is the benefit you receive when you can work after injury, but not at the same level as before you were hurt. You have work restrictions, but they are partial restrictions. You are earning some income, but not the same amount as before you were hurt. TPD is intended to make up the difference. It is payable at two-thirds of the difference between your AWW and your weekly income after injury.

PTD: “Permanent total disability.” This is the benefit you receive once it is ultimately determined that you cannot return to work due to your work injury. Both TTD and TPD have duration limits of a few years. PTD, on the other hand, is basically TTD that pays out until your presumptive retirement date. Like TTD, it is payable at two-thirds of your AWW. There are, however, certain offsets that apply to PTD benefits that do not apply to TTD.

Functional-impairment benefits

PPD: “Permanent partial disability.” This is not wage loss compensation, nor is this compensation for pain and suffering. PPD benefits compensate for permanent loss or impairment of a bodily function, and are in no way dependent upon wage loss or ability to work. PPD benefits are specific to the type of injury and body part injured, and some injuries are worth more than others. You are generally entitled to PPD benefits after a doctor determines that you have healed as much as you are going to heal from the work injury, otherwise known as reaching “maximum medical improvement” (or “MMI,” which is a lot less complicated than all these D’s, P’s, and T’s).

IRS bonus

Workers’ compensation benefits – namely all of the beneficial acronyms listed here – are considered non-taxable under 26 U.S. Code § 104 (a). So what you see is what you get with TTD, TPD, and PTD payments; you do not have to pay taxes on these workers’ compensation benefits. This is also why, in part, these benefits are paid out at a fraction, two-thirds, of the whole income loss (which would have otherwise been taxable if earned as wages or salary).

- Jeff



When an employer ignores your restrictions: Stand firm

Posted on May 6, 2015 at 8:00 AM

A common refrain from injured employees is this: I’ve been injured at work, I’ve notified my employer, and I am treating with a doctor for my injury. My doctor has provided me light-duty work restrictions, but my employer refuses to honor those restrictions. What do I do?

My first response to this unfortunate query is usually: What is this employer thinking? My second response to the client is: Stand firm. You’ve been put in a tough spot through no fault of your own, but with a reasonable, measured response, we can push through this difficult situation and even come out ahead in the end.

The law requires that employers attempt to accommodate injured workers’ restrictions whenever possible. The “whenever possible” aspect of this rule, however, is the tricky part. Some employers go to great lengths to accommodate an injured employee’s restrictions. If that’s your situation, great. You probably don’t need to read anymore of this post.

Other employers, however, fail to hold an employee’s work restrictions in very high regard. Some will outright ignore restrictions, telling the employee just to get back to work even if the work is outside the restrictions. Others will engage in a kind of “duty creep,” where they accommodate the worker’s restrictions at first, but then gradually increase the workload beyond the employee’s restrictions.

The motivation for this on the employer’s part is varied, but it usually has financial underpinnings. Many employers see injured workers as a drag on the bottom line, and they have pressure to keep production up. Paying injured workers for significantly less performance than they provided previously tends to be low on the priority list for many employers. There may also be an element of resentment or spite on the employer’s part, who may simply have an irrational aversion to employees on workers compensation.

Whatever the motivation, often the goal of an employer pushing an injured worker’s restriction limits is to compel that employee to quit the job.

Do NOT do this. I repeat: Do NOT quit your job – at least not unless the situation becomes unbearable. When an employee voluntarily severs employment, the employee provides the workers’ compensation insurer grounds to discontinue payment of wage-loss benefits. In other words, if you quit, you’ll not only lose your wages, they’ll probably stop paying you work comp, too. So unless you’ve got a better gig already lined up and waiting for you, this does not make a lot of sense.

At the same time, it makes little sense to soldier on loading those trucks and lifting far beyond your doctor’s 20-pound waist-to-shoulder lifting restrictions. Or to keep cranking out widget after widget on the assembly line ten hours a day using the same repetitive motion that gave you the epicondylitis in the first place. To do so is to surrender, and it puts you at risk of greater, permanent injury and knocking you further out of work than you already are.

I recommend that clients always carry a copy of their latest restrictions with them. Literally. Fold it up and keep it in your pocket. When faced with the prospect of a supervisor or colleague asking you to do more than your doctor recommends, calmly explain that the requested task is outside your restrictions and ask if there is alternative work within your restrictions. Do not get mad. Do not argue. Do not brag. If the supervisor either doesn’t believe you or further insists on violating the restrictions, you have the doctor’s orders in your pocket to fall back on. If that still doesn’t work with your supervisor, then address the issue with your supervisor’s supervisor or human resources. The point is to remove the onus of accommodating your restrictions from you and put it back on the employer, which is where it belongs. At that point, the employer either has to find you accommodating and suitable work or it does not. And if not, you will be entitled to workers’ compensation benefits for your lost wages.

Ideally, this is how it is supposed to work, but in the real world it can look a lot different. An employee’s fear of losing a job for asserting restrictions is powerful, and it’s entirely understandable. Employers (and insurers) know this, and they can take advantage of it in order to try and push workers’ compensation employees out the door. This is how restrictions get ignored in the first place. But it’s important to know that you are protected by the law. There are legal consequences for employers who retaliate against an employee who has filed a workers’ compensation claim.

If you are in position where you fear losing your job for asserting your restrictions, the choice is clear: Talk to an experienced workers’ compensation attorney. My hope is that you have already contacted JD Schroeder Law well before this happens so that the situation can be addressed early on. But if you are forced to choose between your health and your job, the choice invariably should settle on your health. Let JD Schroeder Law help you take care of the job and lost wages part of it.

- Jeff

Simultaneous disability benefits and workers' compensation: A confusing mishmash

Posted on April 30, 2015 at 11:00 AM

Clients are often faced with the prospect of collecting both workers’ compensation and certain disability benefits at the same time. This is not necessarily a bad problem to have if you are injured and out of work. It is a good thing when injured to qualify for different types of benefits because it provides you options.

What is problematic, however, is the notion that you generally cannot collect both disability benefits and workers’ compensation benefits at the same time. Or, more accurately stated, it is possible that you can collect both types of benefits at the same time, but you generally will not collect both benefits for the same period of wage loss.

Confusing? It is. Sort of.

First, it is easier if we clarify what we mean when we distinguish between “workers’ compensation” and “disability” benefits. The two categories of benefits are both designed to replace lost income due to injury. So what’s the difference? The difference effectively boils down to how you became injured and who is paying the benefits.

Workers’ compensation

Minnesota employers are generally required by law to carry workers’ compensation insurance. If you get hurt at work and suffer wage loss due to the injury, then the employer’s workers’ compensation insurance carrier pays out benefits to replace the lost wages. The key to workers’ compensation: Your injury must arise from your work.

Simple enough, except when you discover that workers’ compensation wage-loss benefits are confusingly titled “disability” benefits under the law: “temporary total disability,” “temporary partial disability,” “permanent total disability,” and something called “permanent partial disability” (which is not really a wage-loss benefit at all, but I will avoid bogging down in the details for the moment). To keep it simple, consider these benefits as simply “workers’ compensation” for the sake of this discussion.

Disability benefits

The generic term “disability benefits” tends to refer to three distinct types of benefits: short-term disability (STD), long-term disability (LTD), and Social Security disability (SSDI). These, too, are designed to replace wages lost due to injury, but the difference between them and workers’ compensation is that, with these disability benefits, it does not matter how or where you got hurt. If you are hurt bad enough to suffer wage loss, you can collect disability benefits whether the injury arose from your work activities or not.

The other distinction lies in who pays the benefits. STD and LTD benefits are paid by insurance carriers from insurance policies provided by the employer. These are policies governed by contract, not state law, and they are not mandatory. So, many employees do not have access to STD or LTD benefits if the employer does not elect to provide such coverage. On the other hand, many employers do choose to provide STD and LTD plans for their employees as a fringe benefit. It is a matter of choice. The bottom line is that these benefits, like workers’ compensation, are paid by insurance carriers, but it is not required that your injury arose from work.

SSDI is the safety net. The Federal government has your back on this one. The Social Security Administration has its own qualification standards for you to receive this benefit, but the idea is the same: If you are hurt badly enough to suffer wage loss, you can collect SSDI benefits. Again, like STD and LTD, for SSDI the cause of the injury is irrelevant; all that matters is that the injury has knocked you out of work.

“Double-dipping” not allowed

Whether you are collecting STD, LTD, or SSDI, and you also qualify for workers’ compensation wage-loss benefits, the general rule of thumb is that you will not collect disability and “work comp” at the same time. Public policy disfavors double-recovery of benefits. There are several institutional mechanisms to discourage this kind of activity depending on which type of disability benefit is at issue.

STD, LTD and other contractual disability plans usually have “right of recovery” or “right of reimbursement” provisions embedded within them. These provisions usually state that, if the disabled worker collects workers’ compensation for the same period of wage loss that he or she has collected STD/LTD benefits, the STD/LTD carrier has the right to pursue recovery of the benefits it has already paid to the worker. How they do this varies. Oftentimes they simply offset future benefits against this “overpayment.” Sometime s the carrier demands the injured employee writes them a check for the “overpayment.” Some contractual plans do not require reimbursement for workers’ compensation, but they are rare. Consider yourself lucky if that is your situation. The rule of thumb is that you cannot double-dip on STD/LTD and work comp.

Social Security disability benefits are another issue. The Social Security Administration will pay disability benefits concurrent to workers’ compensation benefits – and this often happens – but it will offset your disability benefit amounts against your workers’ compensation benefits. The formulas and rules for how they do this are somewhat complicated, so it pays to give me a call to discuss such situations. Just know that you can collect both SSDI and workers’ compensation at the same time, but expect to see offsets taken from one or the other benefit if you do.

- Jeff

JD Schroeder Law: Specializing in paying attention to the details

Posted on April 28, 2015 at 1:45 PM

There are a lot of workers' compensation attorneys out there. People have asked me: Why should I choose you? The answer is simple: Because I just love this work. It is all I do. I do not dabble in other areas of law, like personal injury or criminal defense. A fair number of other "workers' compensation" attorneys and firms do this. But this approach, in my opinion, can distract from the task at hand. I have specialized my practice to handle only workers’ compensation and related claims so my clients can rest assured that the focus is on them.

What I bring to the table is a wealth of workers’ compensation experience, plus the ability, resources, and zeal to pursue and execute a claim correctly. By listening to you and working with you, my goal is to achieve the best possible resolution for clients on every single case, not just the easiest or fastest resolution.

If you choose representation elsewhere, that is okay. But make sure to avoid putting yourself at risk of failing to maximize the value of your workers’ compensation claim. I am here to help clients out of an uncomfortable situation and make their life easier. This is my mission.

To be perfectly honest, I find unfair insurance industry practices against injured workers -- people who need help, not harassment -- profoundly distasteful. This motivates me as a plaintiff’s attorney, and I gain enormous satisfaction with every dollar that I recover for injured workers. I take a systematic and broad-based view of each case I handle. My goal is to make the right choices with you, whether that involves zealously pursuing a win at trial or conference, negotiating a mutually satisfying settlement, or collaborating with you on a specialized type of resolution. Every claim is distinct. I pay attention to the details because I can, because every claim demands it, and because every client deserves it. I simply do not settle for anything less.

I'm a straightforward guy, and so is the tagline: When work hurts, JD Schroeder Law can help. Call today for a free, no-obligation consultation.

- Jeff