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.
On March 22, 2024, Governor Tony Evers signed into law 2023 Wisconsin Assembly Bill 1073, now 2023 Wisconsin Act 213 (the Act), which was originally introduced by the Committee on Labor and Integrated Employment on February 8, 2024. The Act’s effective date was March 24, 2024.
Most notably, the Act provides amendments to Chapter 102 regarding: (1) the weekly permanent partial disability (PPD) rate for the remainder of 2024 and 2025, (2) the statute of limitations run date after compromise agreement approval, and (3) voluntary advancements in PPD.
I. Weekly PPD Rate
The Act increases the maximum weekly PPD rate to $438 (previously $430) for injuries occurring on or after the effective date of the Act through December 31, 2024. The Act also increases the weekly PPD rate to $446 for injuries occurring on or after January 1, 2025.
Therefore, all PPD benefits for injuries occurring on or after March 24, 2024, need to be paid at the rate of $438. Further, all PPD benefits for injuries occurring on or after January 1, 2025, need to be paid at the rate of $446.
II. Statute of Limitations
Previously, Wis. Stat. §102.17(4) was silent regarding the effect of a compromise agreement on the statute of limitations. This Act provides clarification regarding when the statute of limitations (12 years for occupational injuries and 6 years for traumatic injuries) begins to run, stating that it “begins to run on the date an order is issued by the division approving a compromise agreement.”
Previously, the Division had the ability to hold open claims that were settled on a limited basis, thereby halting the statute of limitations, potentially indefinitely. The new language in the Act changes that practice, ensuring that the Division’s holding of claims has no effect on the statute of limitations. This is a welcome change for all employers and workers’ compensation carriers as it guarantees that the statute of limitations will continue to run even if a claim is resolved on a limited basis.
III. Advancements in PPD
It remains that the department or the division has the authority to direct an advance on the payment of unaccrued compensation for permanent disability or death benefits if it is determined to be in the best interest of the injured employee or employee’s dependents; the employer or insurer shall be given a 5% interest credit in such situations. Now, the Act also allows advancements on PPD to be made voluntarily by an employer or insurer, without DWD authority, if the claim is undisputed. If an employer or insurer decides to voluntarily advance unaccrued PPD, the employer or insurer cannot impose any interest credit.
This additional provision allows employers and insurers to pay out “lump sum” PPD awards in full, prior to their accrual. This way, employers and insurers can close their files rather than continue to pay out benefits over the accrual period. Nevertheless, it is important to note that opting for advancement in PPD payments will not affect the statute of limitations, as the statute of limitations is based on the date the last PPD payment should have been made, if paid as it accrues. In other words, paying PPD in a lump sum will not speed up the statute of limitations.
SK Management, LLC v. King et al., No. 2021AP490, unpublished judge authored (Wis. Ct. App. Aug. 23, 2022 (White, J.)
The applicant, Donald King, was injured while working on a demolition project at a building owned by SK Management. SK Management was not insured, so the Uninsured Employers Fund (UEF) covered the claim. UEF then sought to recover the payments it made from SK Management. SK Management filed a reverse hearing application, claiming it was not King's employer.
King worked on a crew that was brought to the SK Management jobsite by Brian Schweinert. Background regarding the history of this relationship includes that Tim Olson, SK Management's operations manager, began hiring Schweinert, and his sole proprietorship, Mr. Phixitall, to do work such as demolition, maintenance, snowplowing, and lawn mowing at various properties managed by SK Management in 2015. Schweinert asked Olson if he could bring helpers, and Olson said he did not care. Olson generally relayed what jobs needed to be done through Schweinert, though occasionally Olson would "appear at jobsites and direct the workers himself.”
Although Schweinert brought some of his own tools to the jobsites, SK Management supplied "equipment including dumpsters, garbage bags, painter’s uniforms, dust masks, safety glasses, and gloves.” King himself brought no tools to the jobsite.
Although some early jobs were performed on a bid basis, after 2015, SK Management paid Schweinert and all of the workers procured by Schweinert, on an hourly rate set by Olson. Olson approved any merit hourly wage increases after consultation with Schweinert, and if Olson was dissatisfied with a worker’s performance, he would tell Schweinert not to bring the worker back and Schweinert would comply.
Each week, SK Management issued one check to Schweinert, encompassing all of the hours worked by Schweinert and the other workers. Schweinert cashed the check and distributed the pay appropriately. Schweinert retained $1 per hour from the other workers’ pay to cover supplies and certain tools on the jobsite.
The ALJ and the Commission both found that King was SK Management's employee, and dismissed SK Management's reverse application. The circuit court affirmed.
On appeal to the Court of Appeals, SK Management did not dispute that it was an "employer" within the meaning of Wis. Stat. § 102.04(1)(b). However, SK Management argued that it was not the employer of Schweinert or King. Instead, SK Management asserted that Schweinert was an independent contractor excluded from the definition of "employee" under Wis. Stat. § 102.07(8)(b). It also asserted that King and SK Management did not have an employer-employee relationship under the Kress Packing test. It argued that Schweinert, not SK Management, was King’s employer.
The Court of Appeals first agreed with the Commission that it was permissible to segregate the demolition work that King performed from other work—lawn mowing, snowplowing, auto repair—that Schweinert did through his independent contractor business. The Court then affirmed the Commission's finding that, with respect to the demolition work, Schweinert met only two of the nine conditions necessary to be an excluded independent contractor rather than an employee under Wis. Stat. 102.07(8)(b).
SK Management argues that even if Schweinert is not an excluded independent contractor, he was still King’s employer under the meaning of Wis. Stat. § 102.04(1)(b). The Court of Appeals rejected that argument, noting:
…because Schweinert is an employee of SK Management—which we established above when we concluded Schweinert worked for SK Management and was not an independent contractor— he cannot be an employer of another person within the performance of those same duties for SK Management. See Whittingham, 305 Wis. 2d 613, ¶¶9-10.
The Court saw the threshold issue as whether King’s employment fell under a contract for hire with SK Management. It noted that there need not be direct communication between prospective employer and prospective employee to establish the employment relationship, adding, however, that some authorization, express or implied, is needed to establish a subsequent contract of hire. The Court went on to concluded that the Commission's analysis that King worked under a contract for hire with SK Management was supported by substantial and credible evidence. It observed:
King was not hired until Olson authorized Schweinert to do so. Olson controlled how much King and Schweinert were paid. Because the record supports that Schweinert was an employee of SK Management, SK Management need not expressly hire King. It is sufficient that SK Management had actual notice of King’s work on the demolition work, as shown by Olson speaking directly to King and directing his work on occasion. Therefore, we conclude that a contract for hire was established.
The Court then turned to the issue of whether there was an employer-employee relationship between SK Management and King. It noted the Kress Packing test is applied to determine whether a person is an employee under Wis. Stat. § 102.07(4)(a).
The Court went on to conclude that King had an employee-employer relationship with SK Management, as the record reflected that SK Management, through Olson, had the right to control the details of King’s work. Olson generally relayed the details of a demolition project through Schweinert, but Olson also appeared at jobsites and directed the workers himself. Olson discussed work to be performed with King directly at some points. Olson had the final say over whether a demolition project was completed satisfactorily and would direct Schweinert and other workers to return to the jobsite as necessary to complete the work. And, SK Management, by Olson, could fire King.
Murff v. LIRC, No. 2021AP1155, unpublished judge authored (Wis. Ct. App. Aug. 23, 2022) (Brash, C.J.)
Murff began working for Aurora in at St. Luke’s Medical Center in June 2008. She worked full time as a third shift housekeeper. Murff asserts that she sustained a work injury on April 9, 2010, in a reaching/lifting incident in she felt a "pop" in her lower back.
Murff advanced three theories for recovery in her worker’s compensation claim: (1) that the work incident in April 2010 was a direct cause of her back problems; (2) that if not a direct cause, it was probable that the work incident precipitated, aggravated, and accelerated a preexisting degenerative condition beyond its normal progression; or (3) that Murff’s job duties while working for Aurora were a material contributory causative factor of her back condition’s onset or progression.
The Commission denied compensation. It had found credibility issues with the opinions of the treating physicians—none of whom testified—who related Murff’s back problems to the work incident. For example, one doctor inaccurately described the work injury. Another doctor's report contained no information relating to Murff’s job duties, nor any information relating to how those duties could have resulted in an occupational work injury. The Commission also noted problems with the IME’s opinion. However, the Commission ultimately determined that Murff had not met her burden of proving her claim.
Murff argued that her doctors had made a prima facie case of a compensable injury, which the Respondent failed to rebut because the Commission did not credit the IME's opinion either. Murff's argument relied in part on Beecher v. LIRC, 2004 WI 88, 273 Wis. 2d 136, 682 N.W.2d 29, with its burden shifting analysis in odd lot cases. However, as the court noted, Murff was not asserting an odd lot claim. Instead, Murff's case simply involved a matter of the Commission "choosing what to believe and what not to believe, and it did not believe the treating doctors."
On this point, the Court noted the "legitimate doubt" standard under which it is "‘an elementary principle’ that the claimant has the burden of proving beyond a legitimate doubt all the facts essential to the recovery of compensation." Leist v. LIRC, 183 Wis. 2d 450, 457, 515 N.W.2d 268 (1994). Still, however, the Commission "cannot reject a medical opinion unless there is something in the record to support its rejection." While it may not rely solely on its "cultivated intuition," it is not "require[d] … to provide countervailing medical expert opinions to support a legitimate doubt." Leist, 183 Wis. 2d at 460-62.
The Court went on to note that "[a] legitimate doubt comprises ‘some inherent inconsistency ... or conflict in the testimony,’" citing Kowalchuk, 234 Wis. 2d 203, ¶8. That is, there just needs to be "something in the record" to support its rejection of a medical opinion. Leist, 183 Wis. 2d at 460. In this case, the Commission explained what caused it to doubt the veracity of the opinions of the doctors who had indicated the work incident was a cause of Murff’s back problems. Indeed, the Court concluded, these findings were "simply a matter of credibility," citing E.F. Brewer, 82 Wis. 2d at 639.
Take-away Point: The Commission may deny a claim if the Commission identifies inconsistencies in the Applicant's expert medical opinions sufficient to establish legitimate doubt, regardless of the Respondent’s defenses to the claim.
Gregory Mallet v. LIRC, No. 21AP1263, unpublished per curiam (Wis. Ct. App. June 28, 2022)
Pro se applicant, Gregory Mallet, claimed injuries to his spine that involved four appeals through the Court of Appeals on three different dates of injury: an accidental injury of April 1981, occupational exposure to December 1983, and more occupational exposure from January to April 1984. This case involved the last periods of work exposure. The Commission denied the claim, crediting the IME doctor, Richard Karr, M.D., who opined that Mallett's ongoing complaints of midback and low back pain were partly due to the normal progression of non-work-related spondylosis and partly due to behavioral factors. The Commission also noted the treating doctors' notes focused largely on the earlier dates of injury and only mentioned the last period of work exposure in pre-printed response to letters sent to them by the Applicant in 2015.
The Court of Appeals affirmed the Commission decision, noting the following:
The Court noted that that Mallett cites to Miron Construction Co. v. Kampfer, 215 Wis. 2d 323, 572 N.W.2d 902 (Ct. App. 1997)4, for the proposition that an IME doctor must make a definitive diagnosis in order to be deemed credible by LIRC. The Mallett court first noted that the Miron Construction case was a per curiam opinion, so it has no precedential value and may not be cited for its persuasive value. Further, the Court noted that the Miron Construction's holding in that case does not stand for the premise advanced by Mallett.
In an actual reported case, Molinaro v. Industrial Comm., 273 Wis. 129, 133 (1956). In that case, Court stated if a medical report offered by a respondent raises a credible legitimate doubt as to whether work caused disability, it is not necessary for the respondent to go further and prove that the disability is instead caused by an off-duty accident or exposure.
Take-away Point: Prior unpublished per curiam decision in Miron Construction should not have been cited and did not support proposition that an IME doctor must make a definitive diagnosis in order to be deemed credible by LIRC.
NWCDN Wisconsin Worker’s Compensation Legal Update:
This year, the Wisconsin Legislature made some significant changes to existing law that altered the Worker’s Compensation landscape in multiple ways. The changes are discussed below:
The Wisconsin Legislature Increased the Weekly Permanent Partial Disability Rate for the first time since 2017.
On April 8, 2022, Wisconsin Governor Tony Evers signed into law 2021 Wisconsin Act 232 (the Act). The Act, which was sponsored by the bipartisan House Labor and Integrated Employment Committee, increased the weekly permanent partial disability rate (PPD). As stated above, Wisconsin had not raised the weekly PPD benefit rate since 2017. The Act changed the benefit rate to $415 for injuries occurring on or after April 10, 2022. The Act further increased the weekly PPD benefit to $430 for injuries occurring on or after January 1, 2023.
The Wisconsin Legislature also made changes to the Average Weekly Wage Calculation for Part-Time Employees.
Prior to April 8, 2022, a Claimant-Employee needed to meet four conditions to be considered “part of a class” under the Act to have their average weekly wage (AWW) calculated using less than 40 hours. To be “part of a class” the Claimant-Employee had to meet the following conditions:
· All class members needed to perform the same type of work at the same location;
· The class of part-time employees needed to represent a minimum of 10% of all employees doing the same type of work;
· The claimant needed to have a regular schedule that did not vary more than five hours from week to week, in the 13 weeks before the injury; and
· At least one other employee needed to be in the same class as the Claimant-Employee.
If the Claimant-Employee met all of these conditions, their hours would reflect the hours actually worked or expanded to the statutory minimum of 24 hours. If the Claimant-Employee did not meet all of the conditions demonstrating a regularly scheduled class of part-time employees, their hours would be expanded to reflect a full-time schedule of 40 hours.
Per the new law, Sections 102.11(1)(am) & (f)1., Wis. Stats., were repealed and § 102.11(1)(ap), Wis. Stats., was created to eliminate wage expansion for employees working part of a class.
Wages will be expanded only when the injured worker is employed by another employer or worked less than full-time for less than 12 months before the date of injury.
Wage expansion for those who worked less than full-time for less than 12 months may be rebutted when there is evidence to show an employee chose to restrict employment to part-time. You can use a self-restricting statement or job application as evidence.
If wage expansion does not apply, you use the following to calculate the part-time wage. The wage is the greater of the two:
(1) Divide the total wages earned in the 52 weeks prior to the injury date by the actual number of weeks worked in that period; or
(2) Multiply the employee’s hourly rate by the average number of hours worked per week in the 52 weeks prior to the injury date.
In each equation, the number of weeks worked in the 52 weeks prior to injury does not include weeks in which no work was done.
This applies to injuries occurring on and after April 10, 2022.
Observers are now allowed at independent medical examinations
Section 102.13(1)(b), Wis. Stats., was amended to allow an employee who appears at an examination directed by employers and worker's compensation insurance carriers to have an observer present at the examination.
The Wisconsin Legislature updated the definition of Employer
The definition of "employer" is amended to clarify that every person who at any time employs three (3) or more employees in Wisconsin is subject to Ch. 102, Wis. Stats., (Wisconsin Worker's Compensation Act) on the day on which the person employs three (3) or more employees in this state. §§ 102.04(1)(b)1. & 2., Wis. Stats.
Farmers will have the same statutory authority to withdraw from subjectivity to Ch. 102, Wis. Stats., as other employers who have had no employee in the previous two (2) years. § 102.05(3), Wis. Stats.
Public Safety Officers can now Bring a Claim for PTSD without having to Prove Extraordinary Stress.
Assembly Bill 11 was passed in the Senate on February 16, 2021, and presented to Governor Evers on April 22, 2021. This bill, now known as 2021 Wisconsin Act 29 (Act), was signed by Governor Evers on April 27, 2021. This bipartisan bill was passed to allow public safety officers – including law enforcement and firefighters – who have been diagnosed with post-traumatic stress disorder (PTSD) under certain conditions to receive worker’s compensation benefits without having to prove that the injury was caused by extraordinary stress.
Since the mid-1970s, Wisconsin has recognized non-traumatic mental injuries in worker’s compensation. Specifically, in the School District No. 1 v. DILHR (215 N.W.2d 373) decision, the Wisconsin Supreme Court established the “extraordinary stress” standard for compensability. This decision provided that a “mental injury non-traumatically caused must have resulted from a situation of greater dimensions than the day-to-day emotional strain and tension which all employees must experience.” This standard was clarified in the Spink v. Farm Credit Services (WC Claim No. 87-32662 LIRC Dec. 11, 1989) decision, where the Labor and Industry Review Commission found “the amount of stress in the Claimant-Employee’s occupation and field … served as the benchmark for comparison with the stress that the Claimant-Employee claims entitles him or her to worker’s compensation.” Later, in Jenson v. Employer’s Mutual (468 N.W.2d 1), the Court further clarified the test stating the stress was “measured not by its effects on the victim, but by the unusual nature of the occupational stress itself.” These onerous standards often prevented Claimant-Employees in high-stress jobs, such as public safety officers, from prevailing on a claim for PTSD.
The Act itself makes a few important changes, most notably by relaxing the existing “extraordinary stress” standard discussed above, along with setting caps on liability. These changes are discussed in detail below:
First, the Act allows payment of worker’s compensation benefits if a public safety officer, such as law enforcement or firefighter, is diagnosed with PTSD by a licensed psychologist or psychiatrist, and the mental injury is not accompanied by a physical injury, if proven by a preponderance of the evidence and the mental injury is not a result of a result of a good faith employment action by the employer. Wis. Stat §102.17(9)(b).
Second, the Act limits the liability for treatment of such injuries and claims to no more than 32 weeks after the injury is first reported. Wis. Stat §102.42(1p).
Third, it restricts the ability to claim compensation for such injuries and diagnoses to three times within an individual’s lifetime, regardless of a change in employment status. Wis. Stat §102.17(9)(c).
In short, this legislation eases the requirements for claiming and obtaining worker’s compensation benefits for a mental injury asserted by a public safety officer by altering the previous standards for compensable non-traumatic mental injuries, but also limits the employer’s liability for such injuries.
Wisconsin Supreme Court issued an important decision regarding the Exclusive Remedy Provision.
On May 20, 2021, the Wisconsin Supreme Court published its decision in Graef v. Continental Indemnity Company (959 N.W. 2d 628). The issue before the Court was whether the Exclusive Remedy Provision of the Wisconsin Worker’s Compensation Act (the Act) barred a tort action for the Claimant-Employee's alleged injuries. The Court found the Exclusive Remedy Provision did apply to the claimed scenario and remanded the matter to the Circuit Court to grant Summary Judgement.
By way of background, in a deal cut in 1911, Employers gave up the right to common law defenses (contributory negligence, co-employee negligence, assumption of risk, etc.,) and Employees gave up the right to sue their employer in tort (and recover tort like damages) in return for a fixed schedule of “guaranteed” benefits. This portion of the original negotiations remains in place today and is referred to as the Exclusive Remedy Provision. This is the basis of the litigation that led to the above-referenced Supreme Court decision.
In this matter, the Claimant-Employee sustained a compensable work injury in November 2021, which resulted in physical and psychological injuries. He was prescribed an antidepressant as a result of these injuries. On two different occasions, the Insurer denied the initial request for payment related to refills of the antidepressant. The first denial occurred in May 2015, but the Insurer subsequently paid for the prescription after it was contacted by the Pharmacy. Then, in June 2015, the Claimant-Employee again tried to refill his antidepressant prescription and encountered the same issue. This time, he left before the Insurer could be contacted and the prescription was not filled. Two months later, the Claimant-Employee attempted suicide and sustained a self-inflicted gunshot wound. He survived and subsequently filed a tort action in Circuit Court against the Insurer. The Claimant-Employee alleged the self-inflicted gunshot wound was the result of the Insurer’s negligence; specifically, that the Insurer was negligent for failing to approve the June 2015 refill, and as a result of the Insurer’s negligence, the Claimant-Employee attempted to take his own life. The Insurer moved for Summary Judgement stating that the Act provided an exclusive remedy for the Claimant-Employee’s injuries.
Initially, the Circuit Court concluded that the Exclusive Remedy Provision did not bar the claim because the Insurer would not concede the Claimant-Employee’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.
The Wisconsin Supreme Court found:
· The Act provides an exclusive remedy for the alleged injuries, upholding the Exclusive Remedy Provision for work-related injuries.
· The Court also said the allegations made by the Claimant-Employee, if proven, would satisfy the conditions of liability under the Act, further supporting the applicability of the Exclusive Remedy Provision.
The Court’s decision makes it clear that an Insurer’s reservation of its right to litigation in the proper forum (i.e. under the Act) and its dispute of underlying factual information surrounding a claim is not grounds for bypassing the Exclusive Remedy Provision.
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.
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.
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:
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.
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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.
