Cost Of Living Decrease of 1.14% Beginning October 1, 2010

If you are reading this article you are one of tens of thousands of Minnesota Workers Compensation victims who have had there benefits reduced at a time when they can least afford it. Is there any remedy to this reduction? Not directly, but many of you who have contacted my office have been educated about benefits you NEVER knew you were entitled to receive under Minnesota law. Workers' compensation benefits are NOT welfare. They are a benefit that YOU pay for indirectly out of your salary and with every day of labor you provide. Do not be afraid to talk with a workers compensation attorney; preferably one who specializes in work comp and disability claims. Take the opportunity of this decrease to educate yourself and your family of your rights to retraining, second medical opinions, skill enhancements and even additional wage loss benefits that may have been stopped years ago. That's right, benefits that have been stopped can in many circumstances be restarted after losing a job or having an aggravation of your injury. At Atkinson Law Office and Minnesota Disability our staff has over 50 years experience handling workers compensation claims. There is no cost to speak with an attorney 7 days a week. 651-333-3636 or visit our web site www.mndisability.com

GET PROMPT MEDICAL TREATMENT WITH PROVIDER OF YOUR CHOICE

An employee is entitled to payment of medical, psychological, chiropractic, and other treatment for a work-related condition. Minn. Stat. §176.135. This includes any treatment which is reasonable and necessary to cure and relieve the effects of a work injury.

Almost without exception, the injured worker has the absolute right to choose his or her treating doctor for a work injury. The employee can change doctors within 60 days after medical treatment has commenced, without getting the permission of the employer, insurer, or other interested parties. Minn. Rule Part 5221.0430, Subpart 2. After 60 days, the employee can change primary doctors, but only with the permission of the employer and insurer, or by seeking approval of the court. The rule provides that the employee may not change primary doctors if:

(a) A significant reason for the request is to block reasonable treatment or to avoid returning to work;

(b) The change is to develop litigation strategy rather than to pursue appropriate diagnosis and treatment;

(c) The provider lacks the expertise to treat the employee for the injury;

(d) The travel distance to obtain treatment is an unnecessary expense and the same care is available at a more reasonable location;

(e) At the time of the employee's request, no further treatment is needed; or

(f) For another reason, the request is not in the best interest of the employee and the employer.

In other words, even if the employee's initial treatment is at an emergency room or at an occupational medicine clinic favored by the employer, the employee can change doctors within 60 days. Choosing a qualified physician is important. A general orthopedic surgeon may not be you physician of choice if you have a complex hand injury. There are specialties within specialties and attorney Thomas Atkinson with Minnesota Disability can help you sort through this complex system.

Back & Neck Pain - Part II

Facet Joints

Lumbar facet joint are small pairs of joints on the back side of the spine where the vertebrae meet. These joints provide stability to the spine by interlocking two adjacent vertebrae. Facet joints also allow the spine to bend forward (flexion), bend backward (extension), and twist.

Inflammation of facet joints can occur from injuries or from arthritis. Many times, particularly in the case of injuries, one may not see abnormalities on an x-ray or MRI.

Spinal Stenosis
The term lumbar stenosis refers to any narrowing of the spinal canal. There are many causes of spinal stenosis; the most common is degeneration of the spine, which occurs almost inevitably as a part of the aging process.

Several factors contribute to the narrowing of the spinal canal with degenerative changes. First, wear and tear causes the facet joint to enlarge into the spinal canal. Second, the major ligament of the spinal canal, the ligamentum flavum, undergoes hypertrophy (enlargement) and buckling. Third, the intervertebral discs may bulge backwards or herniate into the canal. Fourth, the vertebrae may slip forward in a condition called spondylolisthesis. Finally, these changes may be superimposed on a congenitally narrow canal.

The hallmark of lumbar stenosis is pain in the back and legs which is aggravated by standing and walking and relieved by sitting or forward bending. The syndrome of pain induced by walking is known as neurogenic claudication (from the Latin claudico, to limp). Neurogenic claudication must be distinguished from is vascular claudication, or leg pain on walking caused by insufficient blood flow to the legs. The features which help to distinguish neurogenic from vascular claudication are the following:

1. Pain occurs after varying amounts of exercise, with standing, or with coughing. Vascular claudication is reliably produced with a fixed amount of exercise, such as walking a certain number of blocks, and is rare at rest.
2. Pain relief with rest is variable and slow, usually requiring sitting or stooping. Resting in a standing position is usually not enough to relieve the pain and may even aggravate the pain. In contrast, the pain of vascular insufficiency is usually quickly relieved by resting in a standing position. This is the main distinguishing feature.
3. Pain from spinal stenosis is usually in a distribution of a spinal nerve rather than the muscles exercised.
4. Sensory loss is also in a nerve root distribution, while with vascular insufficiency it is in a stocking-glove distribution.
5. Signs of vascular insufficiency should be absent: diminished pulses, foot pallor on elevation, and decreased temperature of the feet.

Spondylolysis and Spondylolisthesis
The most common cause of low back pain in adolescent athletes is a stress fracture in one of the vertebrae that make up the spinal column. Technically, this condition is called spondylolysis (spon-dee-low-lye-sis). It usually affects either the fourth or the fifth lumbar vertebra in the lower back. The fracture site is called a pars defect.

If the stress fracture weakens the bone so much that it is unable to maintain its proper position, the top vertebrae can shift forward on top of the bottom vertebrae. This condition is called spondylolisthesis (spon-dee-low-lis-thee-sis).

In adults, a spondylolisthesis is usually caused from degenerative changes in the spine. If too much slippage occurs, the bones may begin to press on nerves and surgery may become necessary to correct the condition.

Causes

• Genetics: There may be an inherited aspect to spondylolysis. An individual may be born with a thin vertebral bone and therefore may be predisposed to this condition. Rapid growth spurts in a teen may also encourage slippage.
• Overuse: Several types of athletics, such as gymnastics, weight lifting and football, put a great deal of stress on the bones in the lower back. They also require that the individual constantly over-stretch (hyperextend) the spine. In either case, the excessive stress can lead to fractures of the vertebrae.
• Spondylolisthesis may also develop because of degenerative changes in the vertebral joints and certain medical conditions such as cerebral palsy.

Sacroiliac Joints
The sacroiliac joint connects the sacrum (the triangular bone at the bottom of the spine) with the pelvis (iliac crest). The joint:

1. Transmits all the forces of the upper body to the pelvis (hips) and legs
2. Acts as a shock-absorbing structure
3. Does not have much motion

The sacroiliac joint can become inflamed from an acute injury or from chronic postural abnormalities such as undue stress on the joint following low back fusion surgery. Pain from sacroiliac joint abnormalities can occur in the low back, buttock/hip, abdomen, groin, or legs.

Ankylosing Spondylitis
Ankylosing spondylitis primarily affects the spine or back. In a person with ankylosing spondylitis, the joints and ligaments that normally permit the spine to move become inflamed and stiff. The bones of the spine may grow together, causing the spine to become rigid and inflexible. Other joints such as the hips, shoulders, knees, or ankles also may become involved.

Other rare causes of back pain include:

• Benign or malignant tumors
• Infections
• Problems of the digestive tract or genitourinary tract
• Vascular problems such as an aneurysm or hardening of the arteries

Back & Neck Pain - Part I

Causes of back pain

Muscles/Ligaments

There are many causes of back pain, the most common of which is a sprain or strain of muscles or ligaments. Muscle spasm can occur after twisting or bending awkwardly, or from a simple sneeze or cough. The majority of muscle spasms tend to get better over time. Severe cases of muscle spasms are treated with medication, physical therapy, or injections.

Discs

Disc Degeneration
Disc problems are common causes of back pain. Discs are usually moist, like a sponge with water in it. After a disc injury, or as we age, discs lose water and deteriorate in a process called disc degeneration.

The earliest form of injury to a disc is in the form of tears or fissures in the annulus fibrosis (outer portion) of the disc. The annulus fibrosis is like a large round ligament that prevents the nucleus pulposus (inner portion) of the disc from pushing outward. Tears in the annulus heal by scar formation resulting in tissue that is not as strong as normal tissue. The repeated cycle of many annular tears healing by scar formation lead to a disc that begins to degenerate.

As a disc degenerates it becomes stiff, narrows, and losses it's ability to act as a shock absorber. Bone from the vertebrae above and below the disc may grow forming bone spurs. If bone spurs get large enough, they may cause pressure on nerves in the spinal canal, causing pain, numbness, and weakness in the arms or legs. The combination of disc degeneration and bone spur formation in the spine is called spondylosis. Any narrowing within the spinal canal, from bone spur formation or from any other cause is called spinal stenosis. Spondylosis or spinal stenosis can occur at any level in the spine-cervical, thoracic, or lumbar.

Bulging Disc, Protruding Disc, Herniated Disc, Extruded disc
Over time, because of injury or degeneration, discs start to change shape. Many terms describe this change in shape including bulging, protruding, herniated, prolapsed, slipped. They generally describe a disc that is displaced beyond the limits of the intervertebral disc space.

The earliest change in shape many times is in the form of a disc bulge-a wide based extension of the disc. Often, disc bulges do not cause pain. As the degenerative process progresses, the central, nucleus pulposus portion of the disc can extend through a tear in the outer annular wall of the disc, resulting in a focal protrusion or herniation of the disc. Disc protrusions can cause symptoms of pain, numbness, or weakness from nerve root pinching. In some individuals however, disc protrusions will not cause any symptoms. A disc extrusion is a severe version of a disc protrusion in which a large portion of the nucleus pulposus is displaced through the wall of the disc. A disc extrusion is almost always symptomatic.

Work Injuries Can Develop Slowly Over Weeks or Even Years

Injuries are generally thought to be the result of a specific occurrence; i.e. you lift a heavy object at work and hurt your back.  However, Minnesota workers’ compensation law recognizes that not all injuries occur as the result of a single incident. Some injuries are the result of a degenerative process caused by the physical stresses of particular jobs over a period of time. These injuries are referred to in workers’ compensation parlance as “repetitive minute trauma,” or “Gillette” injuries.  Gillette injuries can develop over a few weeks or many years of trauma.  Injuries can occur to just about any part of your body and both the employee and his/her treating doctor generally overlook the cause.

Gillette injuries are as compensable as injuries that occur as a result of a specific occurrence.  Because of the nature of these injuries, however, the question arises as to the exact date of injury. This question is significant because generally it is the insurer covering you as of the “date of the injury” which is responsible for providing workers’ compensation benefits. The general rule holds that a Gillette injury has not occurred, or “culminated,” until the employee has either lost time from work or required a change of duties because of his or her physical condition. It should be noted, however, that there are frequent exceptions to this rule depending upon the facts of each individual case.

If you feel you may have sustained an injury over time as described above, please contact attorney Thomas Atkinson at MN Disability and we can examine your work history along with you doctor to investigate the possibility of an overlooked work injury.  Mr. Atkinson sees clients throughout Minnesota and the Twin Cities seven days a week and you can generally reach him in person by calling his office at 651-324-9514. You can also visit his web site www.mndisability.com

I Just Received a Notice of Intent to Discontinue Benefits in the Mail. What should I do now?

I was reminded about the importance of having an attorney review Notices of Intent to Discontinue benefits (NOIDs) after meeting with a new client this afternoon. An attorney who has been handling workers compensation cases as long as myself can look at a NOID and usually find a deficiency or mistake that can help avoid the IMMEDIATE cessation of benefits. If you receive wage loss benefits YOU WILL RECEIVE A NOID at some point in your claim if the insurer is compliant with Minnesota’s Workers Compensation Laws.

When you receive a Notice of Intent to Discontinue Benefits (NOID), you should probably contact an attorney to simply have them review it to ensure you don’t have any defenses. At MN Disability, attorney Tom Atkinson will review your NOID for FREE! The Notice of Intent to Discontinue benefits should be sent to you by mail, along with any supporting documents with which they are relying to stop you benefit payments. The document must also state in clear and concise language the basis for which they intend to discontinue your wage loss benefits.

Insurers often attempt to discontinue temporary total and temporary partial disability benefits for a variety of reasons. The most usual reasons are: reaching Maximum Medical Improvement, your return to work at full or reduced wages, release from work restrictions, or failure to cooperate with rehabilitation efforts. As in the case with my client today, the insurance company’s basis to discontinue benefits was improper on its face. In this instance the medical information referenced in the NOID was not attached by the inexperienced out of state claims handler. This error was compounded by other errors that will allow for additional defenses in the future.

As with most employee’s, you will receive no warning of the receipt of Notice of Intent to Discontinue your benefits. You simply find a letter from your workers compensation insurer along with a two page NOID with a sentence or two attempting to explain why your benefits are terminated. You have a right to immediately object to discontinuance. Though there are some exceptions, if you are not represented, you should IMMEDIATELY call the Minnesota Department of Labor and Industry at 1-800-342-5354 to object by telephone. Next, immediately contact an attorney to review the Notice of Intention to Discontinue benefits. If you do not prevail at the conference, it is a long road to appeal the decision and have the matter heard by a workers compensation judge. Though the time frame can vary, if you do not appeal the NOID within 12 days, you will need to retain an attorney to file an Objection to Discontinue benefits or file a Claim Petition.

Failure to object to a Notice of Intent to Discontinue Benefits can significantly delay your receipt of temporary total or temporary partial disability benefits. I strongly urge you take allow an attorney to provide a FREE review of your NOID to discuss options to the termination of you benefits. Attorney Tom Atkinson with MN Disability will directly take your call at 651-324-9514 EVERY DAY of the week. Don’t wait until Monday morning, call him today.

Temporary Partial Disability Wage Loss Benefits (TPD)

Temporary partial disability (TPD) is a wage-loss benefit payable to employees who are back to work, but earning less than their pre-injury gross weekly wage. It is payable at two-thirds of the difference between what the employee earned at the time of the injury and the current earnings. The benefits are payable only if the employee is employed. Be careful not to confuse "not being employed" with "being employed, but on vacation." If an employee who is collecting TPD takes one week of vacation, the employee is still employed and TPD should be paid for that week at an average weekly rate. TPD benefits can be paid concurrently with permanent partial disability (PPD).

Over the years, the laws regarding entitlement to TPD benefits have changed dramatically. Your injury may have included limitations on the duration of TPD benefits. It is important to remember that the date of injury controls many your rights to workers compensation benefits, so any potential limitations in effect on the date of the injury, may affect the length of payment of TPD. Just because a friend or neighbor is receiving a particular amount for a certain duration doesn’t mean you are limited or entitled to the same amount. That is why it is important to contact attorney Tom Atkinson and MN Disability to discuss your case today at 651-333-3636.

For injuries occurring on or after Oct. 1, 1992

TPD is limited to 225 weeks of paid benefits or 450 weeks after the date of injury, whichever occurs first. All periods of TPD for that date of injury are counted toward these limitations, except benefits paid during an approved training plan.

For injuries occurring on or after Oct. 1, 1995

176.101 Compensation Schedule (1995)
Subd. 2. Temporary partial disability.
(a) In all cases of temporary partial disability the compensation shall be 66-2/3 percent of the difference between the weekly wage of the employee at the time of injury and the wage the employee is able to earn in the employee's partially disabled condition. This compensation shall be paid during the period of disability except as provided in this section, payment to be made at the intervals when the wage was payable, as nearly as may be, and subject to the maximum rate for temporary total compensation.
(b) Temporary partial compensation may be paid only while the employee is employed, earning less than the employee's weekly wage at the time of the injury, and the reduced wage the employee is able to earn in the employee's partially disabled condition is due to the injury. Except as provided in section 176.102, subdivision 11, paragraph (b) and (c), temporary partial compensation may not be paid for more than 225 weeks, or after 450 weeks after the date of injury, whichever occurs first.
(c) Temporary partial compensation must be reduced to the extent that the wage the employee is able to earn in the employee's partially disabled condition plus the temporary partial disability payment otherwise payable under this subdivision exceeds 500 percent of the statewide average weekly wage.

Calculation of Average Weekly Wage (AWW)

As you can see from the statutory language, calculating your benefit amount can be very confusing. However, below is an example that may make it easier for you to understand.

For example, an employee earning $500 a week at the time of the injury is now earning $200 a week. The wage loss is $300 a week and the unadjusted TPD is two-thirds of that, or $200 a week. The $200 is multiplied by any annual adjustments that would apply.
Minnesota’s Workers’ Compensation laws are difficult for lawyers who dabble in workers compensation on occasion as a small part of their practice so it should be no surprise that it is difficult for the injured worker to understand. We can review you existing receipt of workers compensation benefits to ensure you are receiving the correct amounts. Minor mistakes by the insurance adjuster, such as improper calculation of your average weekly wage, can dramatically affect the amount of your benefits.

At MN Disability & Atkinson Law Offices representing injured and disabled workers is ALL we do. We don’t handle slips and falls, write wills or work on family law matters. We have chosen to focus on one area of the law for nearly two decades and that is why his peers have recognized Tom Atkinson as a Super Lawyer! Call 651-324-9514 or tom@mndisability.com

I've Been Injured At Work; Who Pays For My Medical Treatment?

I’ve been injured at work, who pays for my medical treatment?

NOT YOU! If the workers compensation carrier accepts your claim, ALL reasonable and necessary health care treatment related to your work injury must be paid. Unlike most health care plans, there are no deductibles or prepays involved. Fortunately, with few exceptions, you are entitled to choose your own doctor or health care provider to assist you in your recovery.

These are important facts to keep in mind:
1. Prescriptions and reimbursement for mileage to medical appointments are also payable;
2. The insurer may designate a pharmacy or pharmacies that you must use to obtain medicine for your injury, if the pharmacy is within 15 miles of your home;
3. You may choose your own health care provider under most circumstances; Be sure to advise you doctor or medical provider you are treating for a workers compensation injury and to be sure they sends all bills and supporting information to the insurer. The supporting information must explain how the treatments and charges relate to your work injury;
4. Your health care provider must notify the insurer before you have any surgery or hospitalizations, except in an emergency. You or the insurer may ask for a second opinion for any surgery that is not an emergency. The insurer must pay for the second opinion. You cannot be forced to have surgery if you do not want it;
5. Treatment by certain unlicensed complementary and alternative health care providers is not paid. This does NOT apply to chiropractic treatment. In Minnesota, the employer and insurer must provide up to 12 weeks of reasonable and necessary Chiropractic treatment.

What if my employer has a managed care plan?

Most employers do NOT participate in a workers’ compensation certified managed care plan. A certified managed care plan is an organization that has been certified by the state to manage health care for injured workers. Your employer must tell you if you are covered by a certified managed care plan. Some employers or insurers have contracted with a managed care plan or network of doctors who are not certified by the department. You are not required to receive treatment from a doctor in a plan or network that is not certified. If you are NOT required to participate in a managed care plan, you are strongly urged to obtain medical treatment with your regular doctor or clinic unless it is a medical emergency!
At MN Disability & Atkinson Law Offices representing injured and disabled workers is ALL we do. We don’t handle slips and falls, write wills or work on family law matters. We have chosen to focus on one area of the law for nearly two decades and that is why his peers have recognized Tom Atkinson as a Super Lawyer! www.mndisability.com

Layoff of Employees with Minnesota Workers Compensations Injuries

-->

In the first two months of this year, Minnesota lost 24,000 jobs across a multitude of areas including professional, manufacturing and government. It is important to remember that a lay off does NOT relieve an employer’s obligation to continue providing ongoing workers compensation benefits to an injured worker. What many Minnesotans don’t realize is that aside from unemployment benefits, they may be entitled to substantial workers compensation benefits for ongoing workers compensation injuries. These benefits could include wage loss benefits AND retraining. Minnesota’s Workers’ Compensation law permits laid-off workers to receive wage loss benefits, if a work injury affects their ability to find employment after being laid off. This is often not a very difficult burden to establish given this down economy. Unfortunately, injured workers are sometimes the first employees laid off by an employer despite claims otherwise.

Who is qualified for rehabilitation benefits?

A "qualified employee" entitled to receive rehabilitation services. Minnesota Rule 5220.0100(22) defines "qualified employee" as: An employee who, because of the effects of a work-related injury or disease, whether or not combined with the effects of a prior injury or disability:

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 individual 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.

I’ve been laid off, now what do I do?

First, file for unemployment IMMEDIATELY. If you are not receiving workers compensation benefits at the time of layoff or are unsure about your eligibility, I encourage you to apply for unemployment. If you are later found eligible for unemployment, your receipt of workers’ compensation benefits will offset your unemployment benefit. Unlike unemployment, however, your workers compensation wage loss benefits are generally TAX FREE. You can apply online or by telephone by contacting the State of Minnesota through their web site www.uimn.org/ui/

Next contact our office and we will assist you in obtaining a copy of your employment and workers compensation files. With nearly two decades of experience handling cases involving injured worker, Thomas Atkinson and MN Disability can help explain whether your old or current injuries entitle you to rehabilitation benefits or a many other Minnesota Workers Compensation benefits. If you are found to be “qualified” you may be entitled to the assistance of a Qualified Rehabilitation Consultant who will act on YOUR behalf to help you find a new job or seek retraining opportunities. Injured workers entitled to rehabilitation benefits are often entitled to full-time wage loss benefits in the form of temporary total disability as well. If you have already found a new part-time or full time job you may still be entitled to rehabilitation assistance and other wage replacement benefits such as temporary partial disability benefits.

Remember that a lay off does NOT relieve an employer's obligation to continue providing ongoing workers' compensation benefits to an injured worker. If you suffer from the effects of a current or old workers compensation injury, and you have been laid off, call attorney Tom Atkinson at Atkinson Gerber Law Office TODAY for a free consultation. With nearly two decades of experience practicing in ONLY workers compensation, we know how to navigate the work comp maze. We have evening and weekend appointments open throughout Minnesota. tom@workcomplawyers.com or 651-333-3636.