Cost Shifting: Worker’s Compensation Dirty Little Secret

Today I taught worker’s compensation “Offsets” in the course I teach at Marquette Law School. The students were aghast at the amount of “cost shifting” that occurs in worker’s compensation: that is, medical costs paid by a variety of sources other than worker’s compensation for medical expenses that should be paid by the worker’s compensation insurer.

We all pay an additional price for medical costs borne by group health insurance carriers, Medicaid, and Medicare that should in fact be paid by worker’s compensation insurers. This “cost shifting” occurs in two significant ways. First, if the claim is denied by the worker’s compensation insurance carrier, medical costs may be paid by the worker’s group health insurance or other private insurance company, or through State Medicaid or federal Medicare programs (the cost of which we all pay in taxes). When those claims are settled, the worker’s compensation insurer routinely saves money by reduced negotiated payment contracts with medical providers, between the provider and the group health carrier, Medicare, or Medicaid (rather than the “full boat” payments that should be paid by the worker’s compensation insurer). If the treatment is deemed work-related after a hearing, the worker’s compensation insurer will pay the other insurer, but at reduced rates.

Second, since only about one in ten cases involves any kind of litigation, workers who are not represented routinely bill their group or other insurance carrier for medical treatment that should be paid by worker’s compensation. Bolstering this notion is a recent article in the Insurance Journal. In the article Jonathan Gruber, Professor of Economics at M.I.T. was quoted indicating that worker’s compensation carriers should see fewer claims as a result of more Americans obtaining health insurance under the Affordable Care Act. He said “As more people have health insurance there is less need for them to have injuries covered by worker’s compensation and this should lower worker’s compensation costs.” Nowhere in this analysis is the notion that the appropriate payor for a worker’s compensation injury should be a worker’s compensation insurer, not health insurance premiums (which are shared by us all) nor Medicare and Medicaid (again shared by us all in the form of taxes).

Workers hurt on the job should have their medical treatment paid by the worker’s compensation insurer, who has received a premium for that risk from the worker’s employer. Cost shifting may increase worker’s compensation profits, but it hurts both the employers’ and the employees’ bottom line.

Workers Without Insurance?: Sign up for ObamaCare!

Enroll in ObamaCare

Worker’s compensation is not a guarantee of health insurance coverage.  At least not under Wisconsin law.  Many injured workers mistake worker’s compensation insurance for health insurance after suffering a work injury.  Not true.  Worker’s compensation is just insurance for the specific body part injured.  It is not general health insurance for any other illiness/sickenss, and it certainly is not insurance for the worker’s family or children.

There is no obligation under Wisconsin law for an employer to continue to pay health insurance premiums or provide health insurance coverage when a worker is out after a work injury.  A recent attempt to require an employer to continue its health insurance coverage while a worker is recovering failed at the legislative level.  Thus, a worker could be off work after an injury and find that their health insurance benefits have been terminated (or that the employer is not paying their premium portion…which could be cost prohibitive).

In many worker’s compensation claims, the worker’s compensation carrier sends an injured worker to an “independent” medical examiner who denies the injury or extent of disability.  The injured worker–still recovering from an injury–is then left without worker’s compensation coverage.  If the employer did not continue health insurance benefits, the worker then takes a double hit–no worker’s compensation covearge and no health coverage.  The injured worker then has limited means to obtain the necessary medical treatment.

As an attorney, we have the ability to file for prospective medical treatment and have a judge order the treatment be paid by worker’s compensation.  That process, however, could take a year or more.

The best practical route is for the worker to obtain the medical treatment through their own health insurance (and we have a claim for reimbursement to the health insurance company).  Thus, if a worker has no health insurance coverage, my advice is: get covered if you can.  In Wisconsin, that means applying for state insurance/Medicaid (eligibility based on income levels).  The alternative, is ObamaCare.

ObamaCare’s open enrollment period begin a few weeks ago and goes until February 15, 2015.  Wisconsin’s governor, Scott Walker, made the short-sighted decision to reject Medicaid expansion or create our own state exchanges, so Wisconsin residents need to obtain ObamaCare insurance on the federal exchanges.   If an injured worker has no health insurance, I strongly encourage them to get coverage.  Apply for ObamaCare right now.  Get covered.






The High Road: Investing in Your Workers

Today’s post was shared by US Labor Department and comes from

Congress still hasn’t answered President Obama’s call to raise the national minimum wage. But states and localities are acting on their own, through legislative action and ballot measure. And across the country, forward-thinking businesses are leading by example. In community after community, I’ve visited with employers who know that paying workers a fair wage isn’t just the right thing to do; it’s also good for business.

boston beer collage
boston beer collage

Nobody would argue that Boston Beer Company founder and chairman Jim Koch doesn’t know what he’s doing. He produces America’s most successful craft beer, Sam Adams, served in bars, restaurants, stores and entertainment venues nationwide. His brewery has won more awards in international beer-tasting competitions that any other. I had the pleasure of meeting with Jim earlier this week, touring the Boston brewery, and learning about how he treats his 1,200 employees. “You can’t have engaged employees if you don’t invest in them,” he says. That’s why Jim offers his employees paid sick leave and starts everyone, including part-time workers, well above the minimum wage.

letter logic
letter logic

Later in Nashville, I met with a handful of small business owners who similarly value their employees, recognizing that the high road is the smart road. Among
them is Sherry Stewart Deutschmann who founded and runs LetterLogic, a company that processes statements, letters and checks for…

[Click here to see the rest of this post]

Health Care Testing: A New Frontier for Worker’s Comp

As a worker’s compensation lawyer, I see many news stories through the prism of how the news event or trend will affect injured workers in the worker’s compensation system. A federal judge in Minnesota has ruled that Honeywell, Inc. can begin penalizing workers who refuse to take medical or biometric tests. 

The EEOC had claimed Honeywell’s policy violated the Americans With Disabilities Act and the Genetic Information Nondiscrimination Act. They filed a lawsuit in Minneapolis on behalf of two Minnesota employees of Honeywell.

The tests Honeywell required their employees to take measured blood pressure, cholesterol, and glucose, as well as signs that employee had been smoking. Employees who declined to take the test could be fined up to $4,000 in surcharges and increased health costs. Honeywell said the program is designed to “encourage employees to live healthier lifestyles and to lower health care costs.” Honeywell says the testing promotes employee well-being. Management also indicated “We don’t believe it’s fair to the employees who do work to lead healthier lifestyles to subsidize the healthcare premiums for those who do not.”

The ramifications of such testing for worker’s compensation immediately come to mind. In any kind of an occupational exposure claim, such tests could be used to help deny worker’s compensation claims for employees who smoke, are overweight, have diabetic condition, claims involving occupational back conditions, carpal tunnel claims, and any kind of respiratory complaints. Another “slippery slope” may be the use of these kinds of testing to actually screen prospective employees, since the employer rationale would be that hiring folks with those pre-existing conditions would cost the employer more money.

Charlie & Tom Domer Named to 2014 Wisconsin Super Lawyers List

Charlie Domer and Tom Domer have both been recognized as 2014 Wisconsin Super Lawyers!  Together, the father and son duo team at Domer Law exclusively practices Wisconsin worker’s compensation law, where they continually strive to maximize the benefits for Wisconsin’s injured workers.  Charlie & Tom are grateful for this recognition and are always happy to answer any questions about worker’s compensation from other attorneys, injured workers, and the general public.

Despite Nationwide Attack on Benefits, Wisconsin Has It Good.

Benefits for injured workers are under attack in many– if not all– states around this country.  As a member of the Worker’s Injury and Law and Advocacy Group (WILG), I attended a national conference recently regarding the status of worker’s compensation systems and benefits around the country.  Sordid tales exist.  Despite the political positive talking point about the benefits from worker’s efforts and labor around the country, the reality is continual political and legislative efforts to undermine worker’s compensation benefits.

Specifically, in the past 20 years, average total benefits to injured workers have declined by 40%.  Running concurrent with the decline in benefits for injured workers over the past two decades are insurance company profits.  Worker’s compensation still remains a hugely profitable industry – generally the second most profitable line of insurance in the country (second only to auto insurance)!  Worker’s compensation insurance companies continually reap profits, while simultaneously, workers’ benefits are being reduced around the country.  There are a host of legislative and statutory mechanisms employed to reduce benefits.  These include capping the amount of weeks of medical treatment, medical fee schedules, limitations on attorney’s fees, “opt-out” provisions, limitations on claims for occupational diseases and mental health claims, limitations on the definition of “in the course and scope of employment”, and limitations on who is or is not an employee…among many other tactics. 

In certain states, like Montana and Georgia, there are now caps on the amount of weeks of medical treatment.  After a certain amount of weeks of medical treatment (example of 400 weeks), there can be a hard cap on medical treatment liability for the worker’s compensation insurance company.  Even if a worker’s medical treatment continues beyond that date, worker’s compensation would have no further liability – which means the health insurance or public taxpayer (through Medicare or Medicaid) ends up holding the bag.  This is a direct example of cost shifting to increase the profits of the worker’s compensation insurance industry. 

So far, Wisconsin has been relatively immune from these ill effects around the country.  Listening to my colleagues around the country, the Wisconsin worker’s compensation system is still in an envious position.  It is a beneficial system for workers, employers, and the insurance industry.  Despite our current stable status, injured workers and their representatives in Wisconsin should remain vigilant of the tales of woe around the country.

As a cautionary tale to any legislators considering changes, a recent court decision in Florida declared the worker’s compensation system in that state unconstitutional because of its failure to adequately provide benefits to injured workers.  Essentially, the “deal” between employers and employees, whereby employees gave up the right to a jury trial in exchange for guaranteed, lesser benefits regardless of fault, had tilted too far to one end, thereby violating due process under the constitution.  If politicians go too far in limiting benefits, the worker’s compensation system could be deemed unconstitutional – thus throwing injury claims back to the uncertainty of a jury trial.  

We have a stable system in Wisconsin–one that generally benefits both workers, employers, and the insurance industry.  Any changes to the “great bargain” of worker’s compensation could have ill effects for all.


That’s Not Fair!

“That’s not fair!” 

I continually receive this response when I tell an injured worker that they cannot sue their employer based on their work injury and its effects.  Despite the media barrage many workers equate worker’s compensation with personal injury law.  The concept of fairness and fault quite frankly have no real place in the worker’s compensation system. 

As discussed in prior posts, the worker’s compensation system is based on a “deal” between employers and employees, dating all the way back to 1911 in Wisconsin.  Workers, in effect, gave up the right to sue in Circuit Court, along with their right to a jury trial and verdict, in exchange for certain, guaranteed, and lesser payments, regardless of having to prove fault.  Employers give up the right to their common law defenses (assumption of risk, co-employee negligence, and contributory negligence) and avoided the uncertainty of high jury verdicts, while simultaneously accepting liability (and requirement of worker’s compensation insurance) for all work-related injuries.

For most employees, the system works very well.  This is because generally only 10% of work-related injuries have provable “fault.”  These statistics were from a recent seminar I attended through the Worker’s Injury Law and Advocacy Group.  This means that–on average–only 10% of work injuries could an injured worker arguably claim was based on negligent or intentional acts of the employer or a co-worker.  Thus, for the other approximately 90% of workers, the worker’s compensation system is a huge beneficial safety net.  Without the worker’s compensation system, these workers could be off work, without any type of income or medical bill payment.  It is helpful to remind injured workers of this incredibly relevant statistic.

When asking injured workers to actually define who could have been responsible (if this was a personal injury system) for their injury, the responses generally are difficult.  In most instances, there is no one to blame–it was an accidental injury.  This is a reminder to injured workers of the true benefits of our stable and beneficial worker’s compensation system in Wisconsin.

Are You Kidding Me? Jimmy John’s Makes Sandwich Makers Sign Non-Compete Agreements

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

I thought I was reading “The Onion” when I read that Jimmy John’s was forcing lowly paid sandwich makers in Illinois to sign non-compete agreements. Unfortunately, this is true, and that is tragic for Jimmy John’s employees and employees everywhere.

If there is a silver lining to this dark cloud for employees, it is that these agreements are generally not enforceable. My reading of Nebraska law leads me to believe that a non-compete agreement for a sandwich maker would not be enforceable. In Nebraska, non-compete agreements are only enforceable if 1) they are not injurious to the public and 2) protect some legitimate interest of the employer and 3) are not unduly harsh and oppressive upon the employee. Obviously these non-competes are unduly oppressive and harsh to employees, but they likely also do not protect a legitimate interest of Jimmy John’s. Employers can be protected from unfair, but not ordinary, competition. What unfair competitive advantage can an $8-per-hour sandwich maker give to another sandwich-making shop? Nebraska has struck down non-compete agreements for much more highly paid workers, like sales professionals whose livelihood depends on building relationships with customers. I cannot see how any court could equate a sandwich maker making the minimum wage with a highly-compensated software or farm-products salesperson.

But such legal reasoning is cold comfort for a low-wage worker who is stuck with one of these agreements. Such treatment of Jimmy John’s and fast-food workers in general explains efforts to unionize Jimmy John’s workers and other fast-food workers. If you are a food worker who receives one of these non-compete agreements, I would be happy to consult with you. I would also encourage you to visit and/or

Also remember that an election is 12 days away in Nebraska, Iowa, and most of the rest of the country. Please get out and vote, and vote for candidates who support employee rights.