State News : Wisconsin

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.