I.                   Supreme Court

 Society v. LIRC, 326 Wis. 2d 444 (Supreme Court, July 8, 2010)

Facts: The Applicant sustained a work related injury in 1982 that required amputation of his right leg below the knee.  He received various disability benefits from the workers compensation insurer, Society.  The last payment was paid out on June 12, 1990.  In 2002, the statute of limitations ran.  The Applicant filed an additional claim in 2004, which Society directed to be filed with the Work Injury Supplemental Benefit Fund.  However, the Fund relied on the 2006 amendment to §102.17(4), which suspended the statute of limitations for traumatic injuries. 

Issue:  Whether retroactive application of Wis. Stat § 102.17(4) and 102.66(1), which would place the burden on Society rather than on the Fund, is unconstitutional?

Holding: The retroactive application of the 2006 amendments are unconstitutional in regards to Society because it violates their due process rights and substantially impairs their contractual obligation.  The application would cause increased exposure to Society without the ability of Society to recoup losses through an increased premium.

Madison Gas & Electric v. LIRC, No. 2010AP1849 (Ct. App. June 16, 2011)

Facts:  In 1997, the Applicant suffered a left knee injury and underwent a medial meniscectomy.  The treating doctor assessed the statutory minimum 5% permanency to the knee, which the employer paid.  In 2007, the Applicant underwent a total knee replacement, which was a result of the original work injury.  The treating physician assessed the statutory minimum 50% permanency.  The employer paid 45%, taking a credit for the 5% previously paid.  The Applicant contends he is owed a total of 55% permanency.  The ALJ and LIRC agreed, awarding 55%; the circuit court reversed. 

Issue:  Whether “stacking” of permanency is appropriate in cases of joint replacements?

Holding:  The carrier argued that total joint replacements eliminated the disability that resulted from the first surgery.  The Court of Appeals saw the argument as a direct challenge to DiamlerChrysler v. LIRC, 2007 WI 15.  However, because the Court awarded controlling weight deference, and the prior DiamlerChrysler court had no basis for its decision other than its deference to the Commission, the Court similarly found it was not unreasonable for LIRC to add the minimum permanency for both surgeries. 

 

 

  1. II.                Court of Appeals

 

Tower Automotive Milwaukee, LLC v. Samphere, No. 09AP1043 (Ct. App. Feb. 9, 2010) unpublished

 

Facts: Applicant retired on June 30, 2003, and later asserted that his work for the employer was the cause of his knee condition and need for his left knee replacement in May, 2006.  He was also seeking a prospective order for a right knee replacement.  Following his left knee replacement, the Applicant’s doctor opined that he was “permanently” unable to work from July 1, 2003 forward because of “knee pain” and “disability.”  The ALJ concluded that Applicant’s work activity was the cause of his knee conditions.  LIRC and the circuit court affirmed.  Respondents argued that the Applicant withdrew from the labor market when he retired, so TTD should not have been awarded because he was not suffering an actual wage loss.

 

Issue: Whether the Applicant withdrew from the labor market when he retired, which would preclude his claim for TTD because he did not suffer an actual wage loss?

 

Holding: The Court affirmed LIRC’s finding that the Applicant would have continued working for the employer had it not been for his knee problems.  LIRC also inferred from the medical evidence that Applicant’s knee problems had been an ongoing, major factor in his failure to obtain employment since his retirement.  Even though the Applicant retired from his employment with the employer due to his knee injuries, he did not withdraw from the labor market, so awarding TTD benefits was appropriate.

Deboer Transportation Inc. v. Swenson, 2010 WI App 54 (March 25, 2010)

Facts:  After several months off due to a work related injury, the Applicant sought to return to his work as a truck driver.  The employer and Applicant had gone through several steps in the rehire process.  The process halted at the “check ride” step, which required being observed on a drive away from home.  The Applicant refused to participate in an overnight trip contending his normal job did not require overnight stays.  The employer refused to accommodate and the Applicant failed the rehiring process.  LIRC concluded that the employer failed to show reasonable cause for not rehiring the Applicant.

Issue:  Whether the employer unreasonably refused to rehire the Applicant under Wis. Stats. §102.35?

Holding:  The Court of Appeals reversed the prior decision and concluded that the statute does not require employers to deviate from a facially reasonable and uniformly applied policy.  Further, it does not require employers to explain why it would be burdensome to accommodate. Reasonable cause is present here in the employer’s uniform application of his longstanding safety procedure, as well as the absence of evidence that the refusal to rehire was based on the injury.

County of Barron v. LIRC, 2010 WI App 149 (October 19, 2010)

Facts:  A quadriplegic was a recipient under a long term support community options waiver program (COP-W), which the Applicant served as his in-home care provider.  The Applicant was injured while performing services for the COP-W recipient.  The recipient was required to have a fiscal agent manage government-provided funds and the Applicant’s wages came from a fiscal agent account.  The amount of wages was established by the County.  The County routinely checked in with the recipient regarding his needs and the quality of service.  However, the recipient directed the Applicant’s daily tasks and had the power to terminate her. 

Issue:  Whether the Applicant had an employer-employee relationship with the County?

Holding:  The recipient of the services had no control over the compensation of the Applicant.  The County developed a service plan and periodically reviewed it with the recipient.  A social worker monitored the care given.  The evidence inferred that the County was in control of the COP- W program.  Thus, the Applicant was an employee of the County.

Aurora Consolidated Health Care v. LIRC, 2010 WI App 173 (November 30, 2010)

Facts:  The Applicant underwent surgery from when he slipped on ice while making a delivery in 2001.  He also underwent hip replacement surgery in 2006, which was unrelated to work and his previous surgery.  Also, in 2006 he applied for additional workers compensation benefits related to his 2001 injury.  The ALJ appointed their own doctor to perform a medical assessment.  The doctor expressed that 100% of the Applicant’s disability was related to the back injuries he sustained in 2001.  LIRC found the Applicant was permanently and totally disabled due to the work injury.  Aurora argues it was denied due process because it was not allowed to cross examine the tie-breaking physician. 

Issue:  Whether the carrier was entitled to cross examine the tie-breaking physician?

Holding:  The ALJ provided the parties an opportunity to have their own experts review the report and submit rebuttal testimony.  Nothing in the statute allows cross-examination of an IME physician.  

Oshkosh Corporation v. LIRC, 2011 WI App 42 (December 2, 2010)

Facts: The Applicant was injured while on the job in 2002.  The ALJ found the surgeries on his knee left him with permanent work restrictions.  In 2006, he was fired for sleeping on the job.  He brought a claim for vocational rehabilitation benefits, which the employer denied because the Applicant did not have physical restrictions as assessed by the Independent Medical Examination physician; he was offered work; and he was fired for just cause.  LIRC awarded vocational rehabilitation benefits. 

Issue:  Whether the Applicant was entitled to vocational rehabilitation benefits?

Holding:  The Applicant is entitled to receive vocational rehabilitation benefits because the evidence showed the Applicant had permanent work restrictions from the injury based on the treating doctor’s opinion.  Further, an injured employee that has been terminated is entitled to disability benefits; nothing in the law allows an employer to deny benefits because the individual was terminated for just cause. 

City of Kenosha v. LIRC, 2011 WI APP 51 (March 16, 2011)

Facts: The Applicant was a firefighter that was injured playing basketball while on active duty.  The firefighters were encouraged to engage in physical activity while on duty.

LIRC found the claim was compensable.

Issue:  Whether basketball was a “wellness program” and therefore, rendering the injury not compensable?

Holding:  The well-being activity exclusion was not applicable because the Applicant was being compensated by the City to stand ready at the fire station.  The City argued that the statute requires additional compensation for a wellness program to be considered “compensation” under the exception; the Court found such a narrow reading would produce absurd results.  

 

 

  1. III.             LIRC

 

Pelletier v. Technology Plus Inc., WC Claim No. 2009-012283 (LIRC, 6/8/2010)

Facts:  Applicant was a temporary help employee injured in an automobile accident.  The injury happened nine days into his first assignment.  The work was on an as-needed basis, despite a contract indicating the work would last 5-6 months.  Prior to the accident the Applicant intended on renting an apartment.  Additionally, the Applicant was reimbursed for food and lodging, and the employer agreed to allow the Applicant one expense paid trip home a month. 

Issue:  Whether the Applicant was a traveling employee when he suffered injuries in an automobile accident?

Holding:  The Applicant was a traveling employee based upon the fact that other employees had been transferred after training, so there was no guarantee the work would last 5-6 months.  The Commission also relied on the fact he received a per diem and one paid trip home per month, which was indicative of a traveling employee

 

 

Busse v. Norco Windows Inc., WC Claim No. 1992-021488 (LIRC, 6/23/2010)

Facts: The Applicant submitted a medical note from her doctor dated July 14, 2009, for her one day of missed work on November 13, 2008.

Issue: Whether post-dated medical notes are sufficient to show “disability”?

Holding:  The physician note indicated the Applicant missed work to treat with him; there was no indication that she could not work.  For payment of disability, there must be an actual physical incapacity to work.  Treatment alone does not mean the Applicant is incapable of working.  Payment of temporary disability was denied.  

 

 

Huppert v. Dane County Sheriffs Dept, WC Claim No. 95-017617 (LIRC, 6/30/2010)

Facts:  The Applicant was injured while working on February 18, 1995.  She received workers compensation benefits for the injury with the final lump sum paid on June 11, 1996.  In 2007, the Applicant had surgery and received sick pay and holiday pay.  Her doctor claimed that it was due to the 1995 accident.  The carrier obtained an IME and denied benefits on the basis that treatment was unrelated to the prior injury.  The Applicant filed a hearing application on July 21, 2008, which was 12 months and 5 weeks after the last workers compensation payment. 

Issue:  Whether sick pay and holiday pay may be deemed payment of wages and toll the statute of limitations under Wis. Stat. 102.17(4)?

Holding:  Sick leave and holiday pay paid by an employer are not “wages,” and therefore the claim is barred by the statute of limitations.

 

 

Bailey v. KAE Development Corp, WC Claim No. 2003-018597 (LIRC, 10/25/2010)

Facts:  The Applicant was injured while attempting to repair a piece of machinery for KAE and Mr. Mews.  On the day of injury, he was asked by Mr. Mews to help fix the equipment with a member of KAE.  The equipment was owned by KAE.  Neither Mr. Mews nor KAE had worker’s compensation insurance.

Issue:  Whether the Applicant was performing services as an employee at the time of injury and, if so, whose employee was he?

Holding:  Because of Mr. Mews’ control over the Applicant’s work, the use of Mr. Mews or KAE’s equipment, and the fact Mr. Mews exercised his right to hire/fire, the Applicant was an employee.  He regularly performed work under Mr. Mews’ direction. 

The work the Applicant was doing at the time of injury was as an employee of both Mr. Mews and KAE Development.  The two acted together in the development of property and the ownership of construction machines used to develop property.  Additionally, the record showed that they shared in profits.  Thus, the Applicant was in the service of a joint venture when he was injured.

 

Lynn v. Stoughton Trailers LLC, WC Claim No. 2009-015770 (LIRC, 11/30/2010)

Facts:  Applicant injured herself while walking from her car parked on the street into work.  She fractured her elbow when she fell on a public sidewalk.  However, because her head fell on the employer’s property, she argues that she was on the premises when injured, therefore making her claim compensable.

Issue:  Whether the Applicant was coming and going or within the course and scope of employment at the time of the fall?

Holding:  An employee injured upon abutting property can fall into the scope of recovery where an employer exercises full control over property that is not owned by the employer.  Here, the control the employer took upon the property (i.e. snow removal) was required by city ordinances, which was not enough to constitute control.  Further, although the Applicant’s head landed on the employer’s property, the Applicant did not establish that the elbow was injured after her head struck the property.  Thus, it is not compensable.

 

Mentor v. PB Design Build Co Inc., WC No. 2009-017348 (LIRC, 12/27/2010)

Facts:  The Applicant was injured with a hammer drill supplied by the PB Design, which did not carry worker’s compensation insurance.  The respondent argues that the Applicant was an independent contractor. 

Issue:  Whether the Applicant was an independent contractor when he was injured?

Holding:  The Applicant did not meet all of the eight requirements for an independent contractor pursuant to Wis. Stat. § 102.07(8)(b).  Specifically, he did not use his federal identification number for the project, he was paid wages based on his time, and the respondent directed his work.  Thus, the respondent was his employer.

Martens v. Village of Allouez, WC Claim No. 2009-024590 (LIRC, 1/20/2011)

Facts:  The Applicant, a firefighter, suffered a myocardial infarction while working. The ALJ found that there was legitimate doubt that it was caused by his work activities.

Issue:  Whether the firefighter presumption applies in worker’s compensation claims?

Holding:  Under Wis. Stat. § 40.65(2) and Wis. Stat. § 891.45 a presumption would arise that coronary disease is related to employment.  However, this case falls under Wis. Stat. Ch. 102 where there is no presumption.

 

Nofzinger v. City of Appleton, WC Claim No. 2009-009564 (LIRC, 1/27/2011)

Facts:  The Applicant injured his shoulder while performing push ups in his basement in preparation for the employer fitness test approaching in 11 days.  The collective bargaining agreement required employees hired on or after January 1, 1980 to participate in a fitness test twice a year and to maintain a rating of adequate or better.  Those employees with high scores were provided cash and retirement incentives. 

Issue:  Whether the shoulder injury sustained while preparing for a fitness test for work falls into the scope of employment?

Holding:  Five factors have been considered by courts: whether the injury occurred during working hours; whether the injury occurred on the employer’s premises; whether the employer initiated the employee’s exercise program; whether the employer exerted any control or direction over the employee’s exercise program; and whether the employer stood to benefit from the employee’s exercise program.

Here, the injury fell into the scope of employment.  The collective bargaining agreement required employees to be involved in a physical fitness program for six months proceeding the fitness test.  The Commission noted that the incentives were linked to the success of the fitness test and participation was linked to a mandatory fitness program.  Furthermore, he was performing the same exercise at home that he was to be tested on when he was injured.

 

Schwenk v. Waukesha Electric, WC Claim No. 2000-041047 (LIRC 1/31/2011)

Facts:  In 1999, the Applicant suffered a work injury and underwent rotator cuff repair.  He was laid off from the employer due to a reduction in work force in June, 2003.  In 2008, he underwent surgery for a re-tear in his previously-repaired shoulder.  The respondent argued that the Applicant was retired and therefore, he was not entitled to TTD following surgery.  However, he had applied to work with other employers and had remained self employed up until the time of the surgery, though he did not pay himself actual wages.

Issue:  Whether the Applicant’s claim is a theoretical loss of wages or represents actual wage loss?

Holding:  A worker remains eligible for temporary disability after being laid off for economic reason because their ability to work remains impaired.  This is more than a theoretical loss of wages as the Applicant had tried to find work and his ability to earn wages was impaired by the work injury.  Specifically, he was forced to hire an employee to do the work on his rental property when he was convalescing.

Gantt v. Marten Transport Ltd, WC Claim No. 2007-000778 (LIRC, 1/31/2011)

Facts:  The Applicant injured her ankle in 2006 while working as a truck driver.  After treatment she went to work for a different employer.  In 2008, she resumed treatment after she started experiencing pain from walking at her new place of employment.  Expert testimony expressed that the Applicant’s diabetes and weight contributed to the re-injury, but that the current injuries were a direct cause of the prior injury.

Issue:  Whether the symptoms and disability in 2008 were caused by the 2006 work injury?

Holding:  Re-injury is compensable if it is caused by the weakened condition of a worker or if the work related injury made the worker more vulnerable to re-injury.  While the Applicant’s work at her subsequent employer caused an aggravation of her condition, she would not have suffered the same injury to the same extent had she not previously suffered the injury in 2006.  Therefore, the employer at time of the 2006 injury must pay TTD.