In the summer of 2015, the Minnesota Supreme Court changed the law as to what is required to establish a permanent total disability claim. That change was not good. In the decision of Allan v. R.D. Offutt Co., 869 NW 2d 31 (Minn. 2015), the Minnesota Supreme Court reversed a line of Workers’ Compensation Court of Appeals decisions which had allowed the use of various types of permanent partial disability ratings to satisfy the permanent partial disability thresholds that exist for work injuries in Minnesota that occur after October 1, 1995.
Previously, any permanent partial disability rating for a qualifying disability, work-related or otherwise, could be used to satisfy the permanent partial disability thresholds for a permanent total disability case. This is no longer true. Rather, as the Minnesota Supreme Court indicated in Allan, the injured worker must demonstrate that the permanent partial disability rating affects employability – otherwise it cannot be used.
For injuries occurring before October 1, 1995, permanent partial disability was not required to establish permanent total disability. Rather, for those earlier cases, permanent total disability existed if a person’s physical condition in combination with age, training, experience, and the type of work available, caused the worker to be unable to secure anything more than sporadic employment resulting in insubstantial wage. See Schulte v. C.H. Peterson Constr., Co., 153 NW 2d 130 (Minn. 1967). This was a good standard. It controlled for many years.
Then, effective October 1, 1995, the above definition of permanent total disability status was written into the workers’ compensation statute with the addition that certain permanent partial disability thresholds be satisfied as well. Under Minn. Stat. Section 176.101, Subd. 5, the following thresholds now exist to prove permanent total disability:
- The employee has at least a 17% whole body impairment rating;
- The employee has at least a 15% whole body impairment rating, if the employee was at least 50 years old at the time of the injury; or
- The employee has a whole body impairment rating of at least 13% if the employee was at least 55 years old at the time of the injury and had not completed grade 12 or secured a GED Certificate.
These thresholds have been held to be constitutional by the Minnesota Supreme Court. That makes it more difficult for injured workers to establish permanent total disability status for injuries that occurred after October 1, 1995. Since then, there have been cases where injured workers – who could not find a job because of their disability – had their permanent total disability claim denied because the permanent partial disability threshold could not be satisfied. And that is not fair.
This led enterprising attorneys to creatively satisfy the threshold with different non-work- related permanent partial disability ratings. One such example was a case handled by this office, Metzger v. Turck, Inc., 59 WCD 229 (W.C.C.A. 1999). In Metzger, the Workers’ Compensation Court of Appeals affirmed the use of the employee’s non-work-related hysterectomy surgery, together with a work-related spinal disability, to satisfy the threshold. This resulted in a fair outcome.
Unfortunately, given the 2015 Allan decision, this can no longer occur. Instead, the permanent partial disability ratings used to satisfy the threshold must be shown to affect the injured worker’s ability to get or hold a job. This will complicate litigation. It will require additional medical and vocational opinions. This will make outcomes even more uncertain.
The Allan decision is overly restrictive. The 1995 establishment of a permanent partial disability threshold already created hardship for an injured worker who could not go back to work as a result of a work-related injury, but was unable to establish sufficient permanent partial disability for a successful claim. A classic example is someone who had a poor result from a bilateral carpal tunnel surgery. Depending on that individuals’ age, the ongoing symptoms and restrictions from a failed bilateral carpal tunnel surgery could preclude from a successful return to work in any capacity. Under the applicable schedule however, that person would only receive a 5.91 whole body impairment rating. Given what the court has decided in Allan, securing a fair result for that injured worker has just become that much more difficult. Unless this worker has another ratable permanent partial disability that affects employability, the permanent total disability claim will be denied.
At this point, it appears that the only workable solution is to get the Minnesota legislature to change the law. Unfortunately, that has not yet happened.