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June 24, 2020
Dear Workers’ Compensation Claims Manager,
The Minnesota Department of Labor and Industry (DLI) has started receiving Notice of Intention to Discontinue Workers' Compensation Benefits (NOID#3) forms on existing workers' compensation claims that may have been impacted by the COVID-19 pandemic. This communication is to remind you and your claims staff of the circumstances when workers' compensation benefits must continue and the information and supporting documentation that must be included on the NOID#3 form.
NOID#3 form specificity, supporting documents
DLI has noticed some of the reasons for discontinuing benefits on recently filed NOID#3 forms for COVID-19 claims lack the required specificity to determine whether the reason for discontinuance is valid in accordance with the Minnesota workers' compensation law. In addition, some of the NOID#3 forms being filed lack the required attached documentation that supports the reason for discontinuing the benefits. DLI reminds claims staff members of the following.
- When filing a NOID#3 form, you must "state the date of intended discontinuance and set forth a statement of facts clearly indicating the reason for the action. Copies of whatever medical reports or other written reports in the employer's possession which are relied on for the discontinuance shall be attached to the notice." If the employee has been or is presently represented by an attorney for the same injury, the NOID#3 must also be served on the last attorney of record. (See Minnesota Statutes § 176.238, subdivisions 1 and 9.)
- The legal reason or reasons for the proposed discontinuance or reduction must be stated in language that is easily read and understood by a person of average intelligence and education, and in sufficient detail to inform the employee of the factual basis for the discontinuance or reduction. (See Minnesota Rules 5220.2630, subpart 4(B)(5).)
- A penalty of up to $1,000 for each violation may be assessed for failure to comply with these requirements. (See Minn. Stat. § 176.238, subd. 10.)
Additional reminders for when a claimant experiences a layoff due to COVID-19
Temporary total disability (TTD) benefits
If the employee is receiving TTD benefits and is still totally medically disabled from working, then the employee has not yet returned to the job market and a layoff from an employer related to COVID-19 has no impact on their eligibility for continuing TTD benefits.
If the employee is receiving TTD benefits and has been released to return to work with medical restrictions that the employer cannot accommodate, a layoff from the employer due to COVID-19 has no impact on the claimant's eligibility for continuing TTD benefits.
TTD benefits are still subject to cessation for other reasons in accordance with Minn. Stat. § 176.101, such as 90 days post-service of maximum medical improvement, 130 weeks maximum TTD benefits paid or refusing an offer of suitable work.
Temporary partial disability (TPD) benefits
If the employee is receiving TPD benefits while working in a medically restricted capacity and is laid off from the employer due to COVID-19, the employee is no longer eligible for TPD benefits as provided in Minn. Stat.
§ 176.101, subd. 2(b). However, Minn. Stat. § 176.101, subd. 1(e)(1), provides that an employee who is laid off for any reason other than misconduct is entitled to recommencement of TTD benefits (unless the employee has already been paid 130 weeks of TTD benefits or is already 90 days post-service of maximum medical improvement). Depending on whether the layoff is permanent or temporary, the employee may be required to search for work to retain entitlement to TTD benefits and may be entitled to vocational rehabilitation benefits.
Unemployment and workers’ compensation benefits
Minnesota workers' compensation benefits are primary over unemployment benefits under Minn. Stat. § 268.085, subd. 3a. Note that Executive Order 20-29, related to unemployment benefits, does not waive subdivision 3a.
Therefore, if an employee who is receiving or is entitled to receive TTD or TPD benefits is laid off, workers' compensation wage-loss benefits are primary over any unemployment benefits that may be payable.
The employer and/or the laid-off employee should contact the Minnesota Department of Employment and Economic Development at www.uimn.org for more information about the interaction between workers' compensation and unemployment benefits.
Please share the information in this letter with your staff to promote a continued increase in compliance. Thank you for your attention to these issues. If you have questions or would like to discuss the information contained in this letter, call me at 651-284-5226.
Sincerely,
Ralph Hapness
Workers’ compensation program supervisor
Compliance, Records and Training
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