CASE LAW UPDATE
by
Daniel M.
Pedriana
Lindner & Marsack, S.C.
411 East Wisconsin Avenue
Suite 1800
Milwaukee, WI
53202
Tel: (414)
273-3910
Fax:(414) 273-1986
dpedriana@lindner-marsack.com
FEDERAL COURT DECISIONS
A. Schmude v. Tricam
Industries, 550 F.Supp.2d 846 (E.D. Wis.) (Filed May 5,
2008)
Numerical percentages representing the
assessment of the degree of permanent partial disability for purposes of
determining the benefits the applicant should receive under Wisconsin’s worker’s compensation law have
no relation to the determination of damages in a personal injury action.
Facts
Kevin Schmude was injured when
he fell from a newly purchased eight-foot stepladder while installing radio
frequency shielding in a hospital room intended to house an MRI machine.
Schmude sued for worker’s compensation benefits. Pursuant to that claim,
Schmude’s expert, Dr. Durrette, assigned each region of the spine a numerical
percentage to represent his assessment of the degree of permanent benefits
Schmude should receive under Wisconsin’s
worker’s compensation law. Schmude then sued the manufacturer of the ladder.
During the products liability action, Schmude presented Dr. Durrette as an
expert on the extent of the injuries Schmude sustained in the fall. Tricam
asserts that it should have been allowed to question Dr. Durrette about the
numerical percentages he assigned to each region of Schmude’s spine to represent
his assessment of the degree of permanent partial disability Schmude sustained
in the course of the accident for purpose of determining the benefits he should
receive under Wisconsin’s
worker’s compensation law.
Issue
Whether the numerical percentages representing the assessment of the degree
of permanent partial disability for purposes of a worker’s compensation claim
are relevant to the determination of damages in a personal injury action.
Holding
The numerical percentages used to determine the benefits an applicant
should receive in a worker’s compensation claim have no relation to the
determination of damages in a personal injury action.
Analysis
The specific percentages were excluded because the court concluded that
they would mislead and confuse the jury. Because the Schmude’s experts relied
primarily upon physical capacity evaluations to measure Schmude’s physical
limitations, the jury had a solid foundation to assess his injury and any
resulting loss of earning capacity without the numerical percentages. The court
also allowed the vocational expert to rely on a stipulation between Schmude and
the worker’s compensation carrier as to the amount of income he was receiving
at the time of the accident in determining his past loss of earning capacity.
The fact that the interest of the worker’s compensation carrier was adverse to
Schmude’s suggests that such reliance was not unreasonable. It was also offered
as evidence and not presented to the jury as a stipulation of fact agreed upon
by the parties. Note that this holding
is relevant when a Wis. Stat §
102 29 action is brought after the worker’s compensation claim has been
resolved.
B. Rodriquez v. Labor and Industry Review Commission,
2008 WE 496161 (E.D. Wis.)
(Slip Copy) (Filed February 21, 2008)
Denial of worker’s compensation benefits is a matter of state law and any
remedy lies with the LIRC.
Facts
Rafael A. Rodriguez’s
claim relates to an injury that
allegedly occurred while he was working for Peck Foods on March 21, 1990. Peck Foods denied his claim for worker’s
compensation benefits on the ground that the injury was not work related.
Rodriguez requested a hearing before WCD and a hearing was scheduled for June
22, 1992. When Rodriguez failed to appear at the hearing, the claim was
dismissed without prejudice. Rodriguez renewed his application and on July 29,
1993, LIRC denied his application without prejudice for lack of medical
support.
On October 3, 2005, Rodriguez filed a summons and complaint with the Milwaukee
County Circuit Court seeking review of LIRC’s decision. The circuit court
dismissed Rodriguez’s complaint against LIRC on the basis that he never
re-filed his worker’s compensation application and never appealed the dismissal
of the application to LIRC. The Wisconsin Court of Appeals affirmed the
dismissal on August 4, 2006. The Court of Appeals determined that Rodriguez had
failed to exhaust his remedies under the Worker’s Compensation Act and is
barred from proceeding further.
On February 13, 2008, Rodriguez filed a complaint against LIRC and his former
employer. Accompanying his complaint was a motion to proceed in forma pauperis.
Issue
Because Rodriguez alleged sufficient liabilities and income to satisfy the
court that he was indigent, the issue was whether Rodriguez stated a claim upon
which relief may be granted.
Holding
Rodriguez failed to state a claim upon which relief may be granted because any
remedy lies with LIRC.
Analysis
A federal court is not empowered to hear all manner of grievances because
it may only hear case that fall within its limited and specifically defined
jurisdiction. The court determined that Rodriguez’s complaint failed to state a
claim that may be heard in federal court. His claim related to his denial of
worker’s compensation benefits, which involves a matter of state law and, as
such, any remedy lies with LIRC.
C. Lloyd Frank Loggin v. Charles
Healy,
2007 WI App 249, 742 N.W.2d 337 (Filed October 30, 2007)
Where an employer has never employed anyone other than himself, he cannot be
considered an employer for purposes of the Act even if he has purchased a
worker’s compensation policy, and instead must be considered an employee whose
claim is covered under the Act.
Facts
In December of 200, Healy entered into an agreement with Frank to cut
trees. The arrangement was conditioned on Healy purchasing a worker’s
compensation insurance policy for himself. Healy did so, but cancelled it when
Rank told him that the policy was not necessary. Healy did, however, maintain a
policy for his sole proprietorship. Healy was subsequently injured on March 9,
2001 while cutting trees for Frank.
Issue
Whether Healy was an independent contractor, or became an employer by
purchasing worker’s compensation insurance, thereby subjecting himself to the
Act.
Holding
Where an individual has never employed anyone other than himself, he
cannot be considered an employer for purposes of the Worker’s
Compensation Act, and as an employee is entitled to protection under the Act.
Analysis
Wis. Stat §
102 05(2) provides, “Any employer who shall enter into a contract
for the insurance of compensation, or against liability thereof, shall be
deemed thereby to have elected to accept the provisions of this chapter.
For purposes of the Act, “employer” is defined in
Wis. Stat. §
102.04 to include every person who employs three or more employees or
every person that “usually employs less than three employees, provided the
person has paid wages of $500 or more in any calendar quarter for
services performed in this state.” Because Healy has never had individuals in
his service as employees and does not otherwise fulfill the statutory
definition of employer, he is not an employer under the Act. Individuals who
are not employers cannot elect to come under the Act simply by purchasing a
worker’s compensation policy. Because Healy is not an employer, he is not
excluded from the definition of employee and as such is entitled to benefits
from Frank.
D. Acuity Insurance Company v.
David Whittingham,
2007 WI App 210, 740 N.W.2d 154 (Filed August 29, 2007)
Where applicant is an “employer,” he is not precluded from being an “employee” in some circumstances and may be
entitled to coverage under the Act.
Facts
Whittingham worked intermittently for Carr Builders, as an individual
rather than a contractor, performing general carpentry work. Whittingham was
also the sole proprietor of a carpentry business. He was severely injured while
performing services for Carr Builders. Acuity Insurance Company, Carr’s
worker’s compensation carrier, disputed Whittingham’s claim, arguing that he
was not an employee under the Act because he also runs his own small business,
making him an employer.
Issue
Whether an applicant who owns a business can also be considered an employee
in some circumstances under the Act
Holding
While an employer is not an employee by definition, the Commission can make
a distinction between a worker and the side business that worker operates.
Analysis
Wis. Stat. §
102.04(l)(b)2 includes “every person who usually employs less than three
employees, provided the person has paid wages of $500 or more in any calendar
quarter for services performed within the state” within the definition of
“employer.” Under Wis. Stat. §
102.07(8m), “An employer who is subject to this chapter is not an
employee of another employer for whom the first employer performs work or
service in the course of the other employer’s trade, business, profession, or
occupation.”
Whittingham meets this definition of “employer” in his role as sole proprietor
of a small business. The issue then becomes the scope of Wis. Stat. § 102.07(8m)
and whether a person running a small business can be an employee when they work
for another employer as an individual. The Act allows for a distinction between
a person as an individual and as the proprietor of a business. Where, as here,
the worker is hired as an individual rather than as a business, the injury is
covered by the Act because the nature of the relationship was that of employer
and employee.
This interpretation is consistent with the purpose of the Worker’s Compensation
Act, which is to be liberally construed in order to affect coverage for an
injured worker.
II. PUBLISHED WISCONSIN
COURT OF APPEALS DECISIONS
A. Rutherford
v. Labor & Industry Review Commission,
2008 WL 706627 (Wis. Ct.
App. 2008) (Filed March 18, 2008)
The ALJ did not exercise
discretion in applying Wis. Admin. Code § 218.17 where the ALJ did not balance the equities as between the parties
before refusing to admit un-certified copies of medical records.
Facts
Brenda Rutherford
fell while she was working and injured her right hand and left ankle. As a result, Rutherford required surgery and when she
was released to work she returned to light duty and required the use of a
motorized scooter. When she was able to return to her normal duties, Rutherford continued to need to use a cane and wrist
brace.
On June 9, 2004, Rutherford under went an
independent medical examination. The IME report concluded that Rutherford had no physical or medical restrictions and
that she was fully capable of performing all duties required in her position
and that it was no longer necessary for her to wear a wrist brace or use a
cane. Rutherford was instructed that she would
not be allowed to war the wrist brace or use the cane while at work. When Rutherford objected she was given until July 6, 2004, to
obtain another medical opinion stating that it was necessary for her to use a
wrist brace or cane.
On July 6, 2004, Rutherford did not have a
formal report but stated that her doctor had ordered her to use the wrist brace
and cane until her next appointment, which was in about a week. Rutherford’s
doctor’s office faxed a note signed by a nurse verifying that Rutherford
was supposed to use the brace and cane until her next appointment. However, Rutherford’s employer refused to employ her unless she
worked without a cane or wrist brace. When Rutherford
refused to violate her doctor’s orders, she was terminated.
Rutherford then filed a Wisconsin Fair Employment Act disability discrimination
complaint with the ERD, which determined that Rutherford did not sustain a
permanent injury based on the IME report relating to Rutherford’s worker’s
compensation case because Rutherford presented no medical evidence to dispute that
diagnosis.
Rutherford appealed and the appeal was heard
before an ALJ. The ALJ informed Rutherford
that to show an actual disability she would have to present competent medical
evidence, which would require certified medical records relevant to the medical
issue in dispute.
At the hearing the ALJ refused to allow Rutherford
sufficient time to find documents that supported her answers to the ALJ’s
questions. When she attempted to enter into evidence a number of exhibits, the
ALJ refused to consider the medical records because they were not certified copies
of medical records. The ALJ also refused to admit into evidence any records
containing Rutherford’s notes without
considering redacting or ignoring these handwritten notes. Rutherford informed the
ALJ that her employer was already in possession of all of the documents she
planned to present because they had been provided in connection with her
worker’s compensation claim, but the ALJ concluded that Rutherford
had not proven the existence of a disability.
Issue
Whether the ALJ exercised discretion in applying the relaxed rules of
evidence required by Wis. Stat. §
227.45 when the ALJ refused to consider copies of medical records either
because they were not certified or because they contained Rutherford’s
handwritten notes.
Holding
Where the decision did not consider whether the proposed and subsequently
rejected copies of medical records showed a disability that might have entitled
Rutherford to relief, nor did the decision consider Rutherford’s representation
that her employer already had all of the records to which she wished to refer,
although they had not been produced a second time in connection with the
hearing, the ALJ did not exercise discretion in applying Wis. Admin. Code § 218.17
or Wis. Stat.
§ 227.45.
Analysis
The ALJ failed to exercise discretion in applying the relaxed rules of
evidence required by Wis. Stat. §
227.45 when the ALJ refused to consider copies of medical records either
because they were not certified, or because the copies of records contained
notes made by Rutherford, without consideration of whether the notes could be
redacted or ignored. The ALJ did not exercise discretion in applying Wis.
Admin. Code §
218.17 when the ALJ did not balance the equities as between the parties
before refusing to admit copies of medical records which had been previously
produced by Rutherford but were not produced a second time in connection with
the administration hearing. The excluded evidence was both relevant and
material to Rutherford’s claim and if that
evidence had been considered, it might have resulted in a different conclusion
by the ALJ. The court remanded the case for a new hearing before an ALJ
pursuant to Wis. Stat. §
227.578(5).
B. Michels Pipeline Const. v.
Labor and Industry Review Commission, 2008 WI App 55 (Wis. Ct. App. 2008) (Filed March 12, 2008)
Social security offset may not be taken against payments made under Wis. Stat. § 102.43(5) during the period an employee is
receiving instruction under Wis. Stat. § 102.61(1) or (im).
Facts
On October 24, 1983 David Benites was injured at work when the ground caved in on him
when he was laying water pipe. Over the
course of the next eleven years he was paid over $99,760 in
temporary disability payments for his worker’s compensation claim. A separate
calculation by the Department of Workforce Development indicated that Benites
should have received nearly $113,000 for his claim. The discrepancy existed
because Michels applied the social security offset described in Wis. Stat. § 103.44(5)
to the temporary disability payments made while Benites was enrolled in a
vocational rehabilitation program pursuant to Wis. Stat. § 102.43(5).
The AlJ determined that Michels improperly applied the social security
offset and owed Benites an additional $13,000. LIRC affirmed that decision, finding
that the social security offset cannot be taken against payments made during
the period an employee is receiving instruction with a vocational
rehabilitation program. LIRC determined that payments for vocational retraining
are not temporary disability benefits, but instead are benefits for vocational
rehabilitation paid at the temporary total disability rate. As such they are
maintenance benefits separate and distinct from temporary disability payments.
The circuit court affirmed LIRC’s decision.
Issue
Whether the social security offset under Wis. Stat. § 102.43(5) can
be taken against payments made while an employee is receiving instruction
through a vocational rehabilitation program under Wis. Stat. § 102.6
1(1) or (lm).
Holding
Temporary total disability payments made while the employee is
participating in vocational rehabilitation are subject to the social security
offset.
Analysis
The legislature has defined temporary total disability benefits to include
benefits paid during vocational rehabilitation under Wis. Stat. § 102.61
and distinguished temporary disability from maintenance payments that are
authorized under certain circumstances. Temporary disability benefits are thus
subject to social security offset pursuant to Wis. Stat. § 102.44(5).
C. Waste Management Inc. v. Labor and Industry Review Commission, 2008
WI App 50, 747 N.W.2d 782 (Filed February 26, 2008)
Whether LIRC violated Waste Management’s due process rights by holding it
liable under on a theory that was not raised before the ALJ.
Facts
In March of 2003, Timothy Bowe applied for worker’s compensation benefits.
The case was expanded to include three employers, Chippewa Falls,
Countryside Hides, and Waste Management. The issue in dispute at the time of
the hearing was whether Bowe suffered an accidental injury while employed by
any of the three employers. Bowe alleged in the alternative that he suffered
from an occupational back disease while employed for Countryside Hide. When
asked whether Waste Management could also be liable on an occupational disease
theory, the ALJ stated
that there was no allegation of occupational disease as to Waste Management and
it was too late to amend the pleadings and raise a new claim. In May of 2006,
the ALJ rendered a decision finding Bowe sustained an occupational back injury
and Countryside Hides was solely responsible for Bowe’s damages.
Countryside Hides appealed. LIRC determined that the occupational disease did
not commence until Bowe was working for Waste Management, and that Waste
Management was solely liable for Bowe’s damages.
Waste Management appealed to the circuit court, arguing that LIRC violated its
due process rights by awarding damages on an occupational disease theory that
was not raised before the ALJ. The circuit court affirmed LIRC’s decision.
Issue
Whether LIRC violated Waste Management’s due process rights by holding it
liable under on a theory of occupational disease even though that issue was not
raised before the ALJ and the only claim against Waste Management was for
accidental injury.
Holding
Holding Waste Management liable on a theory of liability that was not
alleged violated its due process rights.
Analysis
By statute, all parties to a worker’s compensation claim are entitled to a
“full, fair and public hearing.” Wis.
Stat. §
102.18(1)(a). This requirement means that a party is entitled to: (1)
the right to seasonably know the charges or claims proffered; (2) the right to
meet such charges or claims by competent evidence; and (3) the right to be
heard by counsel upon the probative force of the evidence adduced by both sides
and upon the law applicable thereto.
At the hearing all of the parties stipulated
that the only claim to be litigated against Waste Management was a claim for
accidental injury. Because the parties explicitly stated the only claim against
Waste Management was for accidental injury, Waste Management could not “know
the charges or claims” against it included an occupational disease claim. Additionally,
Waste Management never had an opportunity to be heard on “the probative force
of the evidence adduced by both sides” as applied to the occupational disease
claim, or on the law applicable to the occupational disease claim, either
during the hearing or its brief to the Commission.
Although Countryside Hides argues that there was no violation of due process
because Waste Management had knowledge of all necessary facts that could lead
to a finding of an occupational disease, full access to the medical reports
that formed the basis of the Commission’s decision, and the opportunity to
challenge the probative force of any evidence in the record, knowing facts that
might give rise to a claim is not the equivalent of knowing the charges or claims
to be litigated or having the opportunity to be heard on the probative force of
the evidence relevant to that claim.
Under these circumstances, Waste Management was denied both due process and a
fair hearing under Wis Stat §
102 18(l)(a)
D General Motors Corporation v
LIRC
305 Wis. 2d 655, 739 N.W.2d 491,2007 WL 2323918
There is nothing the in the Wisconsin Worker’s Compensation Act that bars a
claimant from attempting to show a particular injury could have been caused in
one of several ways, or in some circumstances, may even have had more than one
cause.
Facts
Hawkinson started working at General Motors in 1986. At the end of
2002, he began installing front doors on vehicles. He frequently experienced
general aches and pains doing this front door assembly job, but on July 14,
2003, Hawkinson began experiencing more severe neck pain. The symptoms became
progressively worse over the next several days and Hawkinson was diagnosed with
a herniated disc, a ruptured disc, and a slipped disc for which he later
underwent surgery.
Hawkinson subsequently filed for worker’s compensation benefits, claiming 20%
permanent partial disability stemming from either a traumatic injury, or
occupational exposure, or both.
Issue
Whether a claimant must specify that an injury is either occupational or
traumatic in nature such that a claimant is barred from proceeding on
alternative, potentially inconsistent theories.
Holding
There is nothing in the plain language of Wis. Stat. § 102.01(2) that bars a claimant
from attempting to show that a particular injury could have been caused in one
of several ways, or even that it may have had more than one cause.
Analysis
Wis. Stat. § 102.0
l(2)(c) defines an injury as “mental or physical harm to an employee caused by
accident or disease.” This statutory language means that a claimant must
establish that an injury under either a traumatic or occupational theory, and
need not prove both. A claimant is not barred from attempting to show that an
injury could have been caused in one of several ways, or that it may have even
had more than one cause.
In this case, Hawkinson suffered injury to three different discs. The evidence
indicates that the injury to two of the discs was progressive in nature, while
the injury to the third disc could have occurred at one particular point in
time. Hawkinson did not have to establish one case of the injury to the
exclusion of the other.
E Torres v. Morales, 2008 WI App 113 (filed 18 June
2008) (ordered published 30 July 2008)
Where an out-of-state employee is injured or killed in Wisconsin in the course
of employment, the Wisconsin Worker’s Compensation Act is applicable.
Facts
Richard Torres lived and worked in Texas
and had traveled along with a coworker to Wisconsin for a seminar related to his job.
While the coworker was driving the car and Torres was the passenger they were
involved in an accident in Oconomowoc in which Torres was killed.
Torres’s estate, his minor daughter, and his
mother sued the coworker and his insurers for negligence, but the trial court
dismissed the claims on the grounds that the Wisconsin Worker’s Compensation
Act provides Torres’s exclusive remedy for his coworker’s negligence in the
accident.
Issue
Whether the accident falls under Wisconsin’s
Worker’s Compensation Act.
Holding
Where an out-of-state employer sends an out-of-state employee to Wisconsin and the employee is injured or killed in Wisconsin in the course of employment, the Wisconsin’s Worker’s
Compensation Act is applicable.
Analysis
The Wisconsin Worker’s Compensation Act prohibits an employee from seeking any
other remedy against his or her employer or a co-employee for the same injury
or death. This exclusive remedy provision bars wrongful death actions against
an employer or co-employee by the employee’s estate or relatives.
An out-of-state employee and employer are subject to the Act when the employee
is injured in Wisconsin
in the course of his or her employment. The Act does not require the employer
be located within the state of Wisconsin,
only that the employer employs 3 or more employees. Wis. Stat. § 102.04(l)(b)l. Nor does
the Act state that the employee’s residence or usual place of employment must
be in the state. Wis.
Stat. §
1 02.07(4)(a). Thus, an in-state injury in the course of employment will
trigger worker’s compensation, regardless of the employee’s residency or the
employer’s place of business.
Because the accident at issue is compensable under the Act, the estate was
precluded from maintaining its action against the coworker and his insurer.
The court did note that one state’s application of its worker’s compensation
laws does not bar another state’s application of its own where each state has
proper connections to the parties or events.
III.
UNPUBLISHED WISCONSIN COURT OF APPEALS
DECISIONS
A.
Journal Sentinel, Inc. v. Wagner,
2008 WE 2096361 (Wis.
App. I 01st.) (Slip Copy) (Filed May 20, 2008)
Although the physician’s opinions were
based on an inaccurate estimate of the number of steps the applicant had to take each shift he worked, where there
was no evidence the applicant was trying to exaggerate or mislead his physician or that a more accurate
estimate would have altered the physician’s opinions as to the cause of the
applicant’s injuries, there was credible evidence to support the findings of
the ALJ.
Facts
Michael J. Wagner began
working for the Journal Sentinel in 1966 as a journeyman pressman. The
pressroom at which Wagner worked contained some stairs, although the location
was equipped with several man lifts that reduced the number of stairs a
pressman had to climb on any given shift. Wagner testified that he suffered
from episodes of discomfort in his knees, but this did not prevent him from
working and he did not require any treatment.
In 2002-2003 the Journal Sentinel built a new pressroom that contained
significantly more stairs and was not equipped with any man-lifts. Wagner
estimated that when he worked at this location he would go up 2,000-3,000 steps
in a single shift.
In December of 2003 Wagner began experiencing great discomfort in his knees and
then in his hips. He testified that this pain was much greater than the pain he
experienced at the original location.
Wagner sought treatment in March of 2004. His doctors determined that the
injuries were work-related and, following surgery, Wagner was released to work
with restrictions of no kneeling, stair climbing, or squatting and a limit of a
four-hour workday.
The Journal Sentinel did not accommodate the work restrictions and Wagner never
returned to work. Wager was subsequently terminated pursuant to the Journal
Sentinel’s to terminate any employee who does not return to work within one
year from the start of a short-term disability.
The ALJ ruled that the injury was work related, and that decision was affirmed
by LIRC. When the Journal Sentinel appealed to the circuit court, the decision
was again affirmed.
Issue
Whether where the physician’s opinions were based on an inaccurate estimate as
to the number of steps Wagner had to use each shift he worked there is credible
evidence to support the findings that Wagner’s injuries were work-related.
Holding
Although there were some contradictory statements regarding the exact
number of stairs Wagner climbed each shift he worked, the record does not come
close to demonstrating the kind of clear misinformation that would allow the
court to find that the medical opinions were so discredited that they must be
disregarded as a matter of law.
Analysis
On appeal the Journal Sentinel emphasizes the point that Wagner was not
required to climb 2,000-3,000 steps on every shift to argue that the evidence
does not support the findings and that the expert witness’s opinions that the
injury was work-related should be set aside.
Both sides in this case had the opportunity at the hearing to clarify any
confusion about the number of stairs Wagner actually climbed and to call the
treating physicians to explain the statements in their various reports.
Although there were some contradictory statements regarding the number of
stairs, the record does not come close to demonstrating the kind of clear
misinformation that would allow the court to find that the medical opinions
were so discredited that they must be disregarded as a matter of law.
Additionally, there was no evidence that Wagner was attempting to exaggerate or
mislead his doctors when reporting his stair usage, nor is there any suggestion
that a more accurate estimate would have altered the physician’s opinions as to
the cause of Wagner’s injuries.
What was important was that Wagner claimed to have considerable knee and hip
pain shortly after his work changed to involve a lot of stair climbing. The
general sense of the doctors reports, as well as common sense, indicate that it
was not a matter of the precise amount of stairs.
The court concluded that the record contained sufficient substantial credible
evidence to support the findings that Wagner’s knee and hip injuries were
work-related due to the fact that repetitive stair climbing required on the job
was a material contributory factor in the injury.
B. J.B. Hunt Transport,
Inc. v. Labor and Industry Review Commission,
A 2008 WL 441721 (Filed February 20, 2008)
Where an employee’s employment is localized in Wisconsin, Wisconsin
has jurisdiction over the worker’s compensation claim.
Facts
While working for J.B. Hunt Transport as a truck driver, John D. Hill
sustained an injury when the semi-tractor trailer he was driving rolled over on
the New Jersey
turnpike. Following the accident, Hill, a resident of Wisconsin,
sought worker’s compensation benefits in the state of Wisconsin. J.B. Hunt argued that Wisconsin did not have
jurisdiction over the dispute.
Hill testified that he completed paperwork prior to his employment and one of
his instructors in Chicago told him to write in
a home terminal at Johnson Creek,
Wisconsin. This location was a
garage space that J.B. Hunt leased from another business and this would be the
location where he would park his tractor when he was at his home residence in Milwaukee, Wisconsin.
The ALJ concluded that Wisconsin did, in fact,
have jurisdiction because Hills’ employment was localized in Wisconsin and that decision was affirmed by
LIRC. The circuit court affirmed LIRC’s order.
Issue
Whether Hill’s employment was localized in Wisconsin
such that his worker’s compensation claim is within Wisconsin’s jurisdiction.
Holding
Where an employee’s employment is localized in Wisconsin, Wisconsin
has jurisdiction over the worker’s compensation claim in the event the employee
is injured outside the state.
Analysis
Because Hill’s injury occurred outside Wisconsin,
he can present a claim for worker’s compensation benefits in Wisconsin
if he shows that his employment with J.B. Hunt was principally localized in Wisconsin or that he was
working under a contract made in this state. Wis. Stat. § 102.03(5).
Although LIRC erroneously stated that all of Hill’s driving originated from
Johnson Creek, other findings support the conclusion that Hill’s employment was
principally located in Wisconsin.
For example, Hill’s completed paperwork reflected a home terminal in Johnson Creek, Wisconsin;
Hill was told that he would use the Johnson Creek location to park his
tractor-trailer when he was at his home residence in Milwaukee; and J.B. Hunt’s safety manager
testified that Hill was considered a Johnson Creek terminal hire. Thus, it was
reasonable for LIRC to conclude that Hill’s employment was principally
localized in Wisconsin.
C. Albert
Trostel & Sons Co. v. Labor and Industry Review Commission, 2008 WL 299054 (Filed February 5,2008)
Where the ALJ issues an interlocutory order and retains jurisdiction over the
claim, the employer can seek a determination as to whether additional surgery
is still reasonable and necessary such that an open r ended order does not
violate due process.
Facts
Arnulfo Calderon hurt his low back on June 7, 2000 while working
for Trostel. In September 2000, Calderon underwent an L5-S 1 microdiscectomy.
In May of 2002, Calderon filed a worker’s compensation claim seeking additional
benefits. Trostel claimed that further treatment was unnecessary.
On September 26, 2003, Calderon sought additional treatment and a
laminoforaminotomy at L4-5 and L5-S 1 was recommended. Calderon underwent the
surgery on December 2, 2003. When Calderon did not get better, additional tests
were performed. Calderon was then diagnosed with a mechanical instability at
L5-S 1 and additional surgery and a dynamic stabilization implant was
recommended.
The ALJ found that the December 2003 surgery was reasonable and necessary. The
ALJ also concluded that the recommended disc-replacement surgery was necessary.
The ALJ ordered that Trostel was liable for the reasonable medical expenses
incurred a result of the prospective dynamic lumbar stabilization implant at
L5-S1 pursuant to Wis. Stat. §l02.18(1)(b).
Issue
Whether an order to pay for future surgery violates due process where the
order is not specific as to when and under what circumstances the surgery will
be performed and the employee’s medical condition could change in the interim.
Holding
Where the ALJ retained jurisdiction for further findings and awards, the
employer can seek a determination as to whether the disc replacement surgery is
still reasonable and necessary should applicant’s medical condition change.
Analysis
Because the ALJ retained jurisdiction for further findings and awards,
Trostel can seek a determination as to whether the disc replacement surgery is
still reasonable and necessary should Calderon’s medical condition change such
that the order does not violate due process.
IV. LIRC DECISIONS
A. Crawford v. Wiza Industries,
Claim No. 2005-024852 (LIRC March 6, 2008)
Where the applicant failed to
return to work after a justified three-day suspension for insubordination, the employer
demonstrated reasonable refusal to rehire.
Facts
Brian Crawford sustained a work injury, sought treatment, and was released
to work with restrictions. Upon returning to work Crawford was issued a verbal
warning for failing to follow safety instructions, a written warning for not
punching out on the time clock, a three-day suspension for a disrespectful
attitude, a letter stating that he had voluntarily terminated his employment
for being a no-call, no-show for two days after his three-day suspension, and a
letter terminating the applicant’s employment for removing production records
from the employer’s plant.
During his suspension Crawford went to the employer’s plant to get his
paycheck. At that time he also requested his personnel file and production
reports. He was not given the production reports, which he is alleged to have
removed from the plant later. When Crawford’s doctor provided a release for the
missed days, he was told that he was still terminated because he had removed
the employer’s confidential production reports without permission.
Crawford then brought a claim alleging that he had been terminated in
retaliation for filing a worker’s compensation claim.
The ALJ found that the employer was justified in terminating the applicant for
not returning to work after his three-day suspension and for the later belief
that the applicant stole company production records. He noted that the employer
accommodated Crawford’s restrictions from a minor work injury and that this
tended to disprove the claim that the employer fired him because of his work
injury.
On appeal, Crawford asserts that the human
resources executive assistant could only offer hearsay as to why he was
discharged, and that there was no first-hand evidence he removed the production
records such that his employer could not justify his termination.
Issue
Whether there was evidence establishing that the employer justifiably
terminated the applicant.
Holding
The employer reasonably terminated Crawford where he engaged in insubordinate
conduct and failed to return to work without notice after a three-day
suspension.
Analysis
While it is true that hearsay may be admitted at the discretion of an ALJ
if it has probative value, hearsay may not serve as the sole basis for a finding
in a contested case.
In this case the employer reasonably terminated the applicant’s employment
based on his insubordinate conduct and failure to return to work without notice
after the three-day suspension. The after-the-fact work release and the employer’s
belief that he stole the records may have caused the employer to send the
letter suggesting that theft was a superseding cause for the termination. But
the employer offered first hand testimony that the applicant was insubordinate,
that he was given a three-day suspension for that insubordination, that he was
absent without notice for two days after the suspension ended and that the
employer regarded workers generally as having abandoned their jobs under that
circumstance.
The employer met their burden of showing that there was no bad faith on its
part to evade Wis. Stat. §
102.3 5(3) and
that, having returned the applicant to work following his injury, the employer
discharged him with good cause.
B. Valenti v. Smith Rogers &
Smith,
Claim No. 1975-041301
(LIRC April 14, 2008)
Where the ALJ’s order only addresses a
single issue the order is
only
final with respect to that one issue
and interlocutory with respect to all
other issues even if the ALJ does explicitly make that intention clear in drafting
the order.
Facts
Tineke Valenti was involved in a work-related automobile accident on August 27,
2975 and sustained multiple injuries, including skull and facial
fractures and wounds, a fracture of the second cervical vertebra, severe
fractures of her pelvis and both legs, bilateral ankle fractures, and ruptures
of internal organs.
An issue arose with regard to the extent of loss of earning capacity
attributable to the effects of the unscheduled head injuries. The ALJ issued an
order regarding the extent to the applicant’s lost earning capacity
attributable to the unscheduled injuries.
On January 22, 2004, Valenti filed an application for additional temporary
disability, permanent disability and medical expenses attributable to the work
incident of August 27, 1975.
The respondents asserted that the ALJ’s order was a final order and
jurisdiction over the entire claim ended when the appeal period for that order
expired. In addition, they argued that the applicable statute of limitations
had run on the claim and therefore the department and commission had lost
jurisdiction over the claim.
Issue
Whether the ALJ’s order was full and final or interlocutory.
Holding
Where the ALJ’s order was limited to one issue, it was interlocutory with
respect to all other issues.
Analysis
The ALJ’s order only addressed a single issue, the extent of loss of earning
capacity attributable to the applicant’s unscheduled head injuries. Although
the ALJ should have made her intention clearer by stating that her order was
limited to this one issue and by identifying the order as being interlocutory
with respect to all other issues, her careless drafting does not defeat the
legal effect of the order, which was to address only one outstanding issue in a
claim with a number of outstanding issues. The ALJ’s drafting errors cannot
defeat Valenti’s claim. Because the order was interlocutory, the statute of
limitations issue is moot.
C. Legler
v. JComp Technologies Inc.,
Claim No. 2003-030691 (LIRC April 22, 2008)
Where the employer does not have a
progressive disciplinary procedure, the employer failed to establish a valid
reason for discharging the applicant following a work injury.
Facts
Chad M. Legler sustained a work injury on February 24, 2003,
although he
was able to continue to work subject to work restrictions.
Legler received a first written warning for poor job performance on March
4,2003 and he was subsequently terminated on April 11,2003.
Legler then filed a claim pursuant to Wis. Stat. §
102.35(3) alleging that his termination constituted an unreasonable
refusal to rehire.
The employer contends that prior to Legler’s injuries there were issues with
his job performance, and the applicant’s injury did not play any part in his
ultimate termination, but rather, he was discharged due to poor work
performance. The employer testified that Legler did not meet his billable hour’s
requirement, obtain additional certification, or become a productive employee
and that is what led to his termination.
Legler, however, testified that he had not received any written or verbal
warning concerning his poor job performance prior to his work injury.
Issue
Whether the employer had a valid business reason for discharging the
applicant due to poor performance.
Holding
Where the employer did not have a progressive disciplinary procedure, the
employer failed to establish a valid business reason for discharging the
applicant.
Analysis
The evidence did not indicate that the employer followed a progressive
disciplinary policy prior to discharging the Legler. The March 4, 2003 letter
did not offer guidance or directives as to how Legler was supposed to cure or
correct his performance issues, and Legler testified that he received no further
oral or written warnings between March 4 and his termination. The employer
failed to establish a valid business reason for discharging the applicant.
D. Weed v. Electro Connect Inc.,
WC Claim No. 2005-040256 (LIRC July 10, 2008)
c Where an employee is injured at work and
subsequently terminated, the burden shifts to the employer to establish a
reasonable cause for discharge.
Facts
Corey J. Weed worked as a
lead worker or supervisor in
the employer’s wire harness area. This including machine set-up
and operation and training other workers.
Weed was injured in a motor vehicle accident in the employer’s parking lot. He
reported the injury to his foreman and asked the employer owner’s wife for the
name of the worker’s compensation carrier but she initially refused to tell him
the name of the carrier. Weed proceeded to file the claim with the worker’s
compensation insurer himself.
Weed was off of work completely from October21 to November 22, 2005. While he
was off of work, the employer owner had to do Weed’s work. He hired a
production manager who took over Weed’s former duties, and concluded that
Weed’s position as lead worker or supervisor in the wire harness area had
ceased to exist. When Weed had been off of work for about four weeks he
received a letter indicating that the employer had been required to fill his
job in his absence.
Weed filed an application for hearing claiming that he was discharged in
retaliation for filing a worker’s compensation claim.
When Weed’s doctor released him to work subject to restrictions, he forwarded
the restrictions to his employer. The employer owner testified that Weed’s job
as a lead worker or supervisor in the wire area required work that Weed would
not be able to do under his work restrictions.
The employer owner also testified that although there were open positions
available doing circuit board assembly and that position did not involve work
that would violate Weed’s work restrictions, Weed could not do this work
because he did not have the requisite training and skills.
Weed, however, testified that he was qualified
for this position. He stated that he had received the requisite certification
from an earlier employer and provided the certificates to the employer with his
resume and application.
The ALJ dismissed the application.
Issue
Whether there was evidence of good cause for termination such that the
Wisconsin Worker’s Compensation Act applies to the out of state injury.
Holding
Where the applicant credibly testified that he was qualified for another
position with the employer, the employer did not meet its burden to establish
good cause for termination.
Analysis
After an employee shows that s/he has been injured in the course of
employment and subsequently denied rehire, it becomes the burden of the
employer to show reasonable cause for not rehiring the employee. This does not,
however, guarantee reemployment in every case. Where the employer shows that it
refused to rehire an injured employee because their position had been
eliminated to reduce costs and increase efficiency, for example, the employer
has shown reasonable cause under Wis. Stat. §
102.3 5(3).
In this case, Weed established that he was an injured in the course
of employment and subsequently denied rehired. The burden thus shifted to the
employer to show reasonable cause for discharging the applicant.
In this case Weed could no longer perform his job as lead worker or supervisor
in the wire harness area within his physical restrictions when he was
discharged. The employer did not have an obligation to keep the applicant’s job
unfilled indefinitely while he was unable to perform his former job duties. The
employer’s decision to hire another worker to perform the applicant’s job
duties while the applicant was not able to do so was not unreasonable.
The employer cannot, however, show reasonable cause for not rehiring the
applicant, or returning him to work, in other suitable employment. Assembling
circuit boards was within Weed’s physical restrictions, and, while those duties
required some skill, the applicant testified he had the requisite certification
and had performed this work in the past.
Finally, the commission commented on the fact
that the employer did not report Weed’s claim to its worker’s compensation
carrier. The commission stated that, at best, this showed the employer lacked a
basic understanding of its duties under Wisconsin’s
worker’s compensation law, and, at worst, showed that the employer was hostile
to the claim.
E. Walters v. Utecht Bakeries,
LLC,
WC Claim No. 2006-016654 (LIRC May 13, 2008)
Where the applicant cannot explain the fall by evidence of a cause related
to employment, the fall is not compensable.
Facts
Betty A. Walker was injured in
a fall at work when walking on a clean, flat, dry floor with no foreign substances visible. Although she
testified that the reasonable inference in a bakery was that a substance on the floor caused her foot to stick, the
ALJ concluded that the injuries Walker
suffered did not arise out of her employment.
Issue
Whether the reasonable inference in a bakery would be that substance on the
floor caused her foot to stick and caused the fall.
Holding
Where there is no evidence of any material on the floor which would have
caused Walker’s
foot to stick leading to her fall, the accident causing the injuries did not
arise out of employment.
Analysis
There was no evidence of any material on the floor that would have caused
the applicant’s foot to stick leading to her fall. A fall must be connected to
some hazard or zone of danger to be compensable. Where the applicant fell while
walking on a clean, flat, dry floor with no visible evidence of a work- related
cause for the fall, the accident causing the injuries did not arise out of
employment.
F. Knight v. Thorn Apple
Valley Inc.,
WC Claim No. 2003-044254 (LIRC June 18, 2008)
Where the applicant is a resident of Wisconsin but fails to prove a contract
for hire was made in this state, the applicant is not entitled to benefits
under the Wisconsin Worker’s Compensation Act.
Facts
Carolyn M. Knight testified that she was hired in a telephone call from the
employer. However, Knight was not able to produce any evidence to establish
that she was in fact in Wisconsin
when she received the phone call.
Issue
Whether the contract for hire was made in Wisconsin.
Holding
The applicant was not working under a contract made in the State of Wisconsin at the time of
her work injury and so the applicant is not entitled to benefits under the
Wisconsin Worker’s Compensation Act.
Analysis
Under Wis. Stat. §
102.03(5), if an employee is injured while working outside the
territorial limits of the state for which s/he would have been entitled to
benefits provided by the Act had the injury occurred within the state, they
will be entitled to benefits if they are working under a contract made in this
state in employment principally localized in another state whose worker’s
compensation law is not applicable to that person’s injury.
In this case, Knight could not establish that the contract was made in this state.
Additionally, the Michigan Worker’s Compensation Law covered Knight’s injuries
such that her claim was not denied on jurisdiction grounds. Indeed, she received benefits and medical
expenses in Michigan.
G. Monson v. Heyde Health Systems,
Inc.,
WC Claim No. 2005-009475 (June 18,
2008)
Where the applicant would have had a miscarriage and could have had a fallopian
tube rupture without slipping and falling does not mean the claim is not
compensable where the injury induced or triggered an earlier onset of a
deteriorative or degenerative condition.
Facts
On March 10, 2005, Laura Monson slipped and fell in her employer’s parking lot on the way into work. Upon
falling, Monson experienced pain in her bottom,
low back and abdominal cramping. At the time of her fall, Monson
was not aware that she was pregnant. She began work, but continued cramping and
felt dizzy. She was taken by ambulance to a local hospital. While at the
emergency room, Monson became hypotensive, and was given a pregnancy test that
returned a positive result. Monson underwent surgery and was diagnosed with a
ruptured tubal pregnancy.
Monson left the hospital and returned to work after the surgery, although she
testified that she remained bruised and “crampy.” On July 22, 2005, Monson
experience a sudden onset of abdominal pain, and was again diagnosed with a
ruptured tubal pregnancy. During the surgery, the doctor noted adhesion and
scarring, including scar tissue that obstructed the left ovary. The left
fallopian tube was removed along with the ectopic pregnancy, and a dilation and
curettage procedure was performed.
Monson filed a worker’s compensation claim for disability compensation and
medical expense related to both the March 10 and July 22, 2005 surgical
procedures. The employer denied liability.
Issue
Whether ruptured fallopian tube caused by a pre-existing condition that
would have resulted in a miscarriage and could have caused a ruptured fallopian
tube notwithstanding the work injury is a compensable claim.
Holding
Although Monson could have had a miscarriage and could have had a fallopian
tube rupture without slipping and falling does not mean the claim is not
compensable where the injury induced or triggered an earlier onset of a
deteriorative or degenerative condition.
Analysis
Monson’s ectopic pregnancy pre-existed her work injury. However, if a work
accident causes disability, even though that disability may not have been
caused in the absence of a pre-existing congenital condition, the disability
remains compensable. Similarly, an injury that induces or triggers the earlier
onset of a deteriorative or degenerative condition is also compensable under
the worker’s compensation laws. The employer takes the employee as is.
In this case, the fall on March 10, 2005, caused the rupture of Monson’s left
fallopian tube. The absence of bruising, pelvic fracture, or other evidence of
trauma does not mean that the fallopian tube rupture was simply coincidental
with the slip and fall. Although the applicant would have had a miscarriage and
could have had a fallopian tube rupture without slipping and falling does not
mean compensation may not be paid in this case.
H. Fallen
v. Work Injury Supplemental Benefits Fund,
WC Claim No. 1994-011509
Loss of earning capacity is “permanent disability” for all purposes, including those of Wis.
Stat. § 102.59 such that such that loss of earning capacity
because to determine whether the applicant meets the secondary threshold of Wis. Stat. § 102.59.
Facts
Gerald Pallen had a preexisting congenital hand condition. On February 16,
1994 Pallen fell and tore his left shoulder rotator cuff and herniated a disc
at C6-78. On October 13, 1998 he entered into a compromise agreement with his
employer and its insurer. The compromise was full and final.
Subsequently the applicant filed a claim for additional compensation with the
Work Injury Supplemental Benefit Fund, pursuant to Wis. Stat. § 102.59(1). Initially
the Fund provided additional permanent disability benefits. The payment was
formalized in a compromise agreement between Pallen and the Fund.
The department refused to approve the compromise agreement because it
questioned Pallen’s qualification for a second injury payment under Wis. Stat. § 102.59 because the
1998 compromise agreement indicated that the payment was only for temporary
disability and future medical expense and so there was no showing Of permanent
disability attributable to the 1994 work injury that was in excess of the
conceded 155 weeks of permanent functional disability such that the 200-week, second
injury threshold of Wis. Stat. §
102.59 was not shown to have been reached.
The applicant claims that he did reach the 200-week threshold of permanent
disability attributable to the 1994 work injury by virtue of the alleged fact
that he sustained loss of earning capacity in excess of 20 percent.
The Fund took the position that even if the applicant did sustain a 20 percent
of greater loss of earning capacity attributable to 1994 work injury, the
“permanent disability” reference in Wis. Stat. §
102.59(1) does not include disability payments for loss of earning
capacity.
The ALJ agreed with this argument and dismissed the applicant’s second injury
claim.
Issue
Whether loss of earning capacity can be considered “permanent disability”
for purposes of Wis. Stat. §
102.59.
Holding
Loss of earning capacity is “permanent disability” for all purposes,
including those of Wis. Stat. §
102.59.
Analysis
While there is no specific definition of “permanent disability in the
statues, Wis. Stat. §
102.44(3) refers to “permanent partial disability not covered by 102.52
to 102.56.” Wis. Stat. §
102.52 to 102.56 refer to scheduled disabilities, multiple injury
variations, occupational deafness, and disfigurement disabilities. Loss of
earning capacity is an unscheduled permanent partial disability not covered by
one of the aforementioned statutes, but recognized as a permanent disability by
Wis. Stat. § 102.44(3).
Wis. Stat. § 102.44(3)
is the statute that incorporates unscheduled permanent disabilities, including
loss of earning capacity, in the Wisconsin Worker’s Compensation Act. As a
result, loss of earning capacity has always been an element of all compensation
awarded for permanent disability.
Although Wis. Stat. §
102.59(1) uses the term “permanent disability” but does not use the term
“loss of earning capacity,” Wis. Stat. §
102.44(3) and the case law make it clear that under Chapter 102 every
award for permanent disability includes an allowance for loss of earning
capacity. Chapter 102 does not include any reference to loss of earning
capacity other than by reference to permanent disability in Wis. Stat. § 102.44(3), but
loss of earning capacity is permanent disability and is an integral part of the
Wisconsin worker’s compensation system.
Accordingly, loss of earning capacity is “permanent disability” for all
purposes, including those of Wis. Stat. §
102.59.
Reference:
Case Law Update: The Sobota Report, 32nd Annual Worker’s Compensation
Update, September 26, 2008.
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