State News : Wisconsin

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.  


Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.


Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.


Wisconsin

LINDNER & MARSACK, S.C.

  414-273-1986

Supreme Court

Exclusive Remedy - Graef v. Continental Indemnity Company, 959 N.W. 2d 628 (Wis. 2021)

Facts:  The Applicant sustained a compensable work injury in November 2012, which caused physical and psychological injuries.  He was prescribed an antidepressant.  On two different occasions, the Insurer denied the initial request for payment related to refills.  The first was in May 2015, and the Insurer paid after being contacted by the pharmacy.  Then, in June 2015, the Applicant left before the Insurer could be contacted and did not refill the medication.  Two months later, he attempted suicide and sustained a gunshot wound.  Two years after the suicide attempt, he filed a tort action in Circuit Court against the Employer’s worker’s compensation carrier, alleging the self-inflicted gunshot wound was a result of the Insurer's negligence.  Specifically, he argued that the Insurer was negligent in failing to approve payment of the refill in June 2015 and, as a result of that negligence, the Applicant attempted suicide.  The Insurer moved for summary judgment stating the Worker’s Compensation Act (the Act) provided the exclusive remedy for the Applicant’s injuries.

Procedural History:  The Circuit Court concluded the exclusive remedy provision did not bar the claim because the Insurer would not concede that the Applicant’s claim would prevail if it was filed as a worker’s compensation claim.  The Court of Appeals reversed this decision, and the matter was brought before the Supreme Court of the State of Wisconsin.

Issue:  Does the Exclusive Remedy Provision bar a tort action for the alleged injuries?

Finding:  The Supreme Court affirmed the Court of Appeals' determination that the Act provides an exclusive remedy for the alleged injuries and remanded the matter to the Circuit Court to grant summary judgement.  Further, the Court said the allegations in the Applicant’s complaints, if proven, would satisfy the conditions of liability under the Act.

 

Court of Appeals

Unreasonable Refusal to Rehire - Anderson v. LIRC, 398 Wis.2d 668 (Ct. App 2021)

The Applicant began working for a car dealership in 2010.  He sustained an injury in October of 2014 that resulted in surgery.  The Applicant was off work after the surgery and the dealership struggled to find a temporary replacement for his position.  Due to staffing issues, the dealership hired a permanent replacement in November of 2014.  The dealership told the Applicant to return when he felt better and he would be placed in a sales position that was less physically demanding.  The Applicant reached an end of healing from the work injury in October of 015.  He was given permanent restrictions that were inconsistent with the 70-pound lifting requirement needed for his pre-injury position.  The Applicant never reported back to the dealership, nor did he inform them of his permanent lifting restrictions.  Instead, the Applicant contacted DVR to find a new job.  He did not find new employment.  In January of 2016, the Applicant filed an Unreasonable Refusal to Rehire claim against the dealership.

Procedural History:  The Administrative Law Judge (ALJ) denied the claim.  The Labor and Industry Review Commission (LIRC) affirmed the denial, as did the Circuit Court.

Issue:  Can the Applicant meet their burden of proof for an Unreasonable Refusal to Rehire claim if they did not attempt to return to work for the date of injury employer?

Finding:  The Court of Appeals affirmed the decision, stating that an employee must prove they applied to be rehired to establish a prima facie case for Unreasonable Refusal to Rehire.  Despite the Applicant arguing that his position was terminated while he was in a healing period, the Court determined the dealership had a reasonable basis to terminate the Applicant because he could no longer perform his pre-injury job.  Further, the Court said the Applicant had an obligation to express to the employer his interest in returning to  work in a different position given that the injury prevented him from returning to his pre-injury position.  In its decision, the Court also mentioned that the Applicant failed to advise the dealership of his permanent restrictions.

 

Labor and Industry Review Commission (LIRC)

Safety Violation - Natera v. City of Madison, 2014-004948 (LIRC January 27, 2022)

Facts:  The Applicant sustained a left knee injury when he slipped on ice outside the Employer’s building.  He was walking to his vehicle.  The area where the sidewalk met the curb had sunk approximately one inch and water would pool in that area.  The Employer was aware of this and kept buckets of salt and sand near the area.  On the date of injury, the area had not been salted or sanded.  18 months after the injury occurred, the Employer replaced the sidewalk, allegedly to comply with Handicap Access.  The Applicant alleged entitlement to a 15% increase in compensation due to an Employer’s safety violation.  The ALJ denied the Applicant’s claim.

Issue:  Does failure to replace the sidewalk before the injury occurred constitute a failure to address unsafe conditions and, thus, entitle the Applicant to increased compensation?

Finding:  LIRC found the Employer knew of the unsafe condition and, despite providing salt and sand, did not take measures to address the unsafe condition for an extended period of time.  Simply put, the Employer’s failure to replace the sidewalk to eliminate the hazard, along with the failure to ensure regular salting, meant they did not take sufficient measures to address an unsafe condition.  Thus, awareness of a hazard and a lack of active steps to alleviate that hazard can result in increased compensation stemming from a safety violation penalty.

 

Unexplained Injury - Fox v. A. W. Oaks & Son, 2017-023569 (LIRC July 13, 2021)

Facts:  Applicant worked as a skid steer operator.  The Applicant was found lying outside of his truck on the pavement in a McDonald’s parking lot after leaving work that day.  He was picked up by an ambulance and the Applicant denied any injury when questioned by the EMT, but later said there was a minor accident while operating his skid steer.  At the hospital, the doctor noted there was some trauma to the left lateral chest while operating construction equipment.  The Applicant passed away while at the hospital.  The Sheriff's Department and OSHA conducted independent investigations, but neither uncovered any evidence of a work injury.  Likewise, there were no witnesses.  A co-worker did have a conversation with the Applicant prior to the Applicant leaving on the date of injury, but did not observe the Applicant to be injured or in pain.  The Applicant’s wife filed a claim for death benefits, relying on a medical record review report that concluded the Applicant sustained fatal injuries while operating his skid steer.  The ALJ denied the claim.

Issue:  Can a compensable injury be found in the absence of a reported or witnessed injury when the Applicant is no longer alive to provide a statement?

Finding:  LIRC affirmed the denial stating the MRR opinion was inconsistent with the absence of reported or witnessed injuries, the absence of damage to the skid steer, and the fact that the Applicant would have had to have finish his shift after being crushed by a skid steer as if nothing happened.  Therefore, when the evidence presented clearly points to an unexplained injury, it cannot be found compensable or arising out of employment.

 

Permanent Total Disability - Fisher v. REM Wisconsin II, Inc., 2008-022049, 2015-014979, 2016-018345 (LIRC June 10, 2021)

Facts:  The Applicant alleges numerous work injuries at multiple employers.  She also alleges she is permanently and totally disabled.  She based this claim on the opinion of her vocational expert that said she was “odd-lot” permanently and totally disabled.  The Respondent's vocational expert said she could work in various positions within her permanent restrictions and she would be a viable candidate for retraining.  However, the Respondent’s expert did not include any specific information as to the positions available at the time of their report.  The ALJ found the Applicant’s expert more credible and awarded permanent and total disability benefits. 

Issue:  Can an employer overcome a prima facie case of “odd-lot” permanent and total disability without specific examples of suitable employment?

Finding:  LIRC found the Applicant clearly established the prima facie case of “odd-lot” permanent and total disability based on the evidence.  The only rebuttal evidence offered by the Respondent was the vocational opinion without specific reference to available employment at the time of the evaluation.  There was no labor market survey or identification of actual jobs.  Thus, the Respondent had not met their burden and LIRC affirmed the ALJ’s opinion.

 

Intervening Cause - Tiedeman Jr. v. County of Dane, (LIRC February 18, 2021)

Facts:  The Applicant sustained a compensable left shoulder injury, reached an end of healing, and took a new job at a different employer.  The Applicant claimed to have subsequently sustained a right shoulder injury while working at his home.  He alleged that the initial left shoulder injury caused his subsequent right shoulder condition due to overuse because he was worried about re-injuring his left shoulder.  The claim was denied by the ALJ.

Issue:  When does the causation chain from a conceded work injury cease to exist?

Finding:  LIRC found that the act of moving logs at his home and the decision to use his right arm to do so were intervening acts that interrupted the chain of causation between the initial left shoulder work injury and the subsequent off-the-job right shoulder injury.  The Applicant’s decision to use his right arm, despite knowledge of pre-existing conditions in his right shoulder, made his conduct negligent and intentional.  He did not have to participate in this activity as part of treatment for his left shoulder and it was solely his decision to perform the activity.  No emergency or urgency prompted the use of the right arm.  Therefore, the Applicant’s unreasonable decision under the circumstances broke the chain of causation. 

 

Loss of Earning Capacity - Topp v. Frank Bros., 2016-019066 (LIRC February 18, 2021)

Facts:  The Applicant worked as an equipment operator.  He alleged an injury when he was thrown from a machine he was loading onto a trailer and the machine subsequently fell on him.  He sustained a left acetabular fracture, a pelvis fracture, a left shoulder injury, and a low back injury.  He was given a 30% permanency rating to his hip, 25% to his left shoulder, and 5% to his low back by his treating doctors and underwent an FCE that provided permanent restrictions.  The Applicant obtained a vocational opinion that said he was permanently and totally disabled because he was 52 years old and had not obtained a high school degree or the equivalent.  The Respondent also obtained a vocational opinion that said, although the Applicant may need some “remediation” to obtain his GED, retraining was possible and a technical school program would restore his earning capacity.  It was also noted that the Applicant had not made any attempt to re-enter the labor market since the claimed date of injury.  The ALJ found the claim compensable and awarded permanent and total disability benefits.

Issue:  Does the Applicant need to explore retraining before making an “odd-lot” permanent and total disability claim?

Finding:  LIRC found that the issue of loss of earning capacity was “premature” without information bearing upon the Applicant’s eligibility for services from the Division of Vocational Rehabilitation (DVR).  LIRC remanded the matter and instructed the Applicant to apply with DVR and determine if services are available, and, if so, to follow through on those recommendations.

 

For any questions regarding the above cases or any Wisconsin worker’s compensation issues, please contact Attorney Matthew Kurudza at mkurudza@lindner-marsack.com or Attorney Chelsie Springstead at cspringstead@lindner-marsack.com, or by phone at 414-273-3910.

 

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The Wisconsin Worker’s Compensation Advisory Council was created to advise the Department and Legislature on policy matters concerning the development and administration of Wisconsin’s worker’s compensation system. The Advisory Council is comprised of an equal number of voting members from labor and management, along with non-voting representatives from the insurance industry, a representative from the Department and liaisons from the medical community. In 2014, for the first time in the history of the Advisory Council, the agreed-upon bill that it submitted to the Legislature did not pass.

On July 12, 2015, Governor Walker enacted the 2015 Budget Bill which included the transfer of 18 worker’s compensation administrative law judges from the Department of Workforce Development to the Department of Administration.  This was the first change to the worker’s compensation field that has occurred without the Advisory Council’s input.  Since that time there have been many rumors regarding the intent of various groups to circumvent the Advisory Council and introduce bills directly to the Legislature that would significantly change the landscape of Wisconsin’s worker’s compensation system.

The Advisory Council recently met last Wednesday, October 21, 2015, and authored a draft bill that has been negotiated and agreed upon by both labor and management to be introduced in the 2015-2016 session. Per notes taken at the most recent meeting, below are some of the main items that are set to be listed in the final agreed-upon bill that is scheduled to be drafted and submitted to the Legislature later this year. As you will see, the changes proposed appear to favor employers and insurance carriers.

  • Reduce the statute of limitations for traumatic injuries from 12 years to 6 years (the SOL for occupational injuries remains unchanged)
  • Allow apportionment of permanent partial disability – require employees to disclose all previous permanent disabilities or impairments to the alleged injured body parts so that liability for employees’ conditions can be apportioned between the prior impairments and the injuries resulting from the alleged work event.  Employers/carriers would then only be held liable for the portion of the condition directly caused by the work event or occupational exposure.
  • Update the permanent partial disability minimum ratings to reflect medical advancements (i.e. lower minimum ratings for joint repairs and total joint replacements)
  • Eliminate wage escalation so temporary disability benefits are paid based upon actual earnings at time of injury rather than an escalated rate
  • Eliminate benefits to workers who violate an employer’s drug and alcohol policy if the use of the drugs/alcohol are shown to be the cause of the injury
  • Allow the employer/carrier to deny benefits if a worker is brought back to work on light duty and they subsequently are fired for good cause
  • Increase the maximum permanent partial disability benefits by $20 in 2016 to $342 and $20 in 2017 to $362 weekly
  • Allow prospective orders for vocational retraining
  • Fund a position at the Department of Justice to fight worker's compensation fraud

In addition to the Advisory Council’s agreed-upon bill, Representatives Spiros (R-Marshfield) and Knodl (R-Germantown) and Senator Stroebel (R-Saukville) circulated a reform proposal last week which includes many provisions that are even more employer-friendly than those in the agreed-upon bill.  Highlighted below are some of the most significant changes included in this recent bill:

  • Bar recovery of work comp benefits to an employee who knowingly falsifies their physical condition on an employment application if the employer relies upon this false information to hire the employee and there is a causal connection between the injury and the false information<
  • Allow for reduction of benefits if an injury is caused by negligence attributed to the employee
  • Allow for an offset of benefits by old-age social security income, not just social security disability income
  • Allow for the denial of benefits during a healing period if an employee is brought back to work light duty and they are subsequently suspended or terminated for misconduct or substantial fault, as defined by unemployment insurance law
  • Eliminate the escalation of wages during a renewed period of disability and, instead, use the date of injury wage to calculate benefits owed
  • Eliminate minimum permanent partial disability ratings when it is shown that no actual impairment resulted from the procedure or injury
  • Allow prospective retraining orders
  • Require employees who the Department have found suffered permanent partial disability to resubmit to a medical re-examination every three years at which time the Department will re-evaluate the case and issue a new order as to permanent partial disability based upon the updated medical opinion
  • Require employers with health benefit plans to provide employees covered by the plan their choice of practitioner within the plan
  • Allow employers to direct care for employees not covered by an employer health benefit plan

This bill is set to be introduced to the Legislature jointly by Rep. Spiros and Sen. Stroebel on October 29, 2015, to be voted on yet this year.

At this time, it is yet to be seen whether either bill will be adopted by the Legislature in its entirety or in part.

Please feel free to contact Chelsie Springstead by email atcspringstead@lindner-marsack.com, or any member of the Lindner & Marsack Worker’s Compensation Defense Practice with any questions.

______________________________________________________________________________

ABOUT THE AUTHOR

Chelsie Springstead is an attorney at Lindner & Marsack, S.C., a law firm located in Milwaukee, Wisconsin that is dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases, along with all facets of labor, employment and employee benefits law. The firm is a member of The National Workers’ Compensation Defense Network (NWCDN), which is a national network of reputable law firms organized to provide employers and insurers access to quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Wisconsin workers’ compensation issues in general, please feel free to contact the author atcspringstead@lindner-marsack.com, or (414) 273-3910.

Governor Walker, as part of his budget bill that was released on February 3, 2015, proposed removing the Worker’s Compensation Division from the Department of Workforce Development (DWD) and moving the functions to the Department of Administration – Office of Hearings and Appeals (DOA) and to the Office of Commissioner of Insurance (OCI). There has been a lot of commotion within the worker’s compensation community regarding what effect, if any, these proposed changes would have on our current system - the day-to-day handling of claims, hearings and settlements.

Many groups have formed on both sides of this issue to lobby their legislators to either pass or shut down these proposed changes. Professional lobbyists have been hired by some groups and many legislators have been flooded with letters and requests for meetings in an attempt to educate them as to how the proposed changes may change the worker’s compensation system, either for the better or the worse. It is rumored that the initial proposal underwent some revisions and is now being considered by the legislators, however nothing has been confirmed to date.

The Governor had stated that he would like the budget bill to be resolved by June 1, 2015, but to date it has not been approved.  We continue to monitor this issue closely and will provide an update once a decision has been confirmed as to whether the proposed changes are being passed in whole, in part, or not at all.

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. 

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.  

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.