The Bill is Dead: Worker’s Compensation Agreed-Upon Bill Fails

Unfortunate news in the world of Wisconsin worker’s compensation: the agreed-upon bill is dead.  A post-mortem can be found at (“Titans clash, worker’s comp changed die“).  It is a near certainty that no changes to the worker’s compensation law will happen this year.

We previously discussed — in this blog–the historical efforts and incredible value that the Worker’s Compensation Advisory Council provides to the comp system in our state.  For four decades, the Council–made up of equal members from labor and management representatives–essentially create a collectively bargained bill that is presented to the legislature regarding potential changes to the worker’s compensation act.  This Council process involves hearings held across the state, and the Council requests and includes input from other affected groups (like medical providers).  Every two years, the Council process results in an “Agreed-Upon” bill that the legislature historically approves without signficant debate.

The sucess of the Council is known throughout our state’s comp system–often recognized as a national model (and even a source of jealousy from practitioners in other states).  The agreed-upon bill process stabilizes the worker’s compensation system, producing a beneficial result for all players in the system.  We hear, time and time again, the value of stability and known costs from employers, insurance companies, and medical providers.

Unfortunately, in 2014, antagonism for the Council process arose from an unlikely source and the agreed-upon bill failed (The bill never made it out of committee and to the legislature for a vote).  While the representatives for injured workers, employers, and insurance companies agreed to the comp law changes, the opponents of the bill largely came from the medical community and medical providers.  The full text of the agreed-upon bill can be found here.  The bill contained a number of benign or historically “normal” changes, like increases in the permananent partial disability (PPD) rate for injured workers and some other procedural fixes.  The bill, however, contained some additional, significant changes to the law.

One provision involved the continuation of an injured worker’s health insurance during a healing period. Currently, there is no obligation for an employer to continue a worker’s health insurance after being off work following a work injury.  The provision would benefit workers (and their families) by keeping health insurance coverage after suffering an injury through no fault of their own.  Additionally, it likely would benefit employers and insurance carriers by allowing a worker to get the necessary medical treatment and back to work quickly, even in disputed claims.  Despite the provision’s benefits, in the current political climate, any suggestion of “mandated” insurance receives a cool reception from certain politicians.  This provision, however, did not kill the bill by itself.

Arguably the biggest change involved a future, potential medical fee schedule in hopes of lowering the cost of medical expense reimbursement.  The drumbeat for change has grown over the years as insurance carriers have noted the rising costs of medical bills in the comp system.  As a colleague noted, about 20 years ago, 2/3 of the benefit payments in a worker’s compensation case went to the employee, with 1/3 to health care providers.  Now, the opposite holds true–with almost 2/3 of every worker’s comp “dollar” going to reimburse medical providers.  The Council process was tasked with addressing the rising costs of medical bills in the system.

Medical provider organizations were present throughout the advisory council process. The organizations were asked to present proposals regarding reining in medical expenses.  The agreed-upon bill resulted in a proposed future medical fee schedule that would be developed by the Worker’s Compensation Department.  The Department would address the details, but in general, the fee schedule would be tied to average group health insurance reimbursement rates plus 10%.  

We will leave the discussion for another day about the nature of the fee schedule and whether it was generous, draconian, or somewhere in between.  Certainly the medical provider community overall rejected the proposal.  Lobbying efforts ensued.  The agreed-upon bill–for the first time in historical memory–was never even presented for a vote.

The future remains uncertain.  Many needed changes for injured workers are collateral damage from the failure to pass the bill.  Rising medical costs will remain an ever-present danger to the viability of the worker’s compensation system.  Presumably, the Advisory Council will reconvene and start the stabilizing process anew–with hopes for better success ahead.




Lawsuit challenges a Hollywood pillar: Unpaid internships

Eric Glatt

Today’s post was shared by The Workers’ Injury Law & Advocacy Group and comes from

Melvin Mar’s entrée to Hollywood was far from glamorous. As an unpaid intern for "Platoon" producer Arnold Kopelson, Mar was responsible for fetching his boss’ lunch of matzo ball soup every day.

Mar calculated to the minute how long it would take to walk from the production company’s Century City offices to the Stage Deli nearby, buy the soup and decant it into a bowl on Kopelson’s desk, still piping hot, at precisely 1 p.m.

Mar parlayed his internship into jobs at DreamWorks and Scott Rudin Productions. Now Mar is a producer for "Bad Teacher" filmmaker Jake Kasdan — and he says he owes a lot to the lessons he learned as a humble Hollywood gofer 15 years ago.

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"The soup — it was about getting it right, the details," said Mar, 35. "It prepared me for everything else."

Uncompensated minions are as central to the movie business as private jets, splashy premieres and $200 lunches. But the Hollywood tradition is under assault.

A class action by former interns on the 2010 film "Black Swan" could radically change the industry’s reliance on unpaid neophytes. The suit seeks back pay, damages and an order barring use of unpaid interns at Fox Searchlight Pictures and other units of Fox Entertainment Group.

A legal victory for the plaintiffs "would bring to a halt the many unpaid internships that offer real value to participants, giving them experiences and opportunities they would not otherwise receive,"…

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Workers’ Compensation May Cover Weight Loss Treatment, Surgery

Gastric bypass is one type of weight loss surgery

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

We are currently unaware of any Wisconsin decisions related to a claim for gastric bypass surgery within the context of a worker’s compensation claim. In Wisconsin, a carrier is responsible for medical treatment that is reasonable and necessary to cure from the effects of the work injury. I could see arguments for and against the compensability of a gastric bypass surgery after a work injury.

Obesity is a disease that affects Americans in many ways.

Workers’ compensation is affected by obesity as well. A work injury or disease, coupled with chronic obesity, frequently becomes much more difficult to deal with. The usual methods of treatment may not be possible for an injured worker living with chronic obesity. 

Thomas A. Robinson, a noted expert on workers’ compensation, recently posted a great discussion on obesity treatment. The well-written article discusses how various state workers’ compensation systems deal with these problems. The short answer is some states award benefits for treating obesity as part of the work injury, and some don’t. Nebraska and Iowa have cases denying gastric bypass surgery based on factual findings that it was not necessary to treat the work injury, but leaving to door open with more proof of medical necessity. 

Our firm has had at least one case where gastric bypass surgery was paid voluntarily when it was apparent the surgery was necessary to enable proper treatment of a serious work injury. A workers’ compensation trial award was entered in early January awarding gastric bypass surgery as necessary to reduce weight so a back surgery could be performed safely. This award reinforces that with proof of medical necessity to treat a work injury, weight loss treatment and surgery may be covered by workers’ compensation in Nebraska.

N.C.A.A. Planning to Address Benefits for Some of Its Players, Officials Say

Today’s post was shared by Gelman on Workplace Injuries and comes from

ARLINGTON, Tex. — For the last few months, football players at Northwestern have been pushing to be recognized as a union, which they hope will eventually force universities to further limit practice time and to provide them with benefits like better medical coverage.

Their efforts have met considerable resistance from the N.C.A.A., which has suggested that an organized labor force would explode the model of collegiate athletics. But some N.C.A.A. leaders now say they are inching closer to changes that would give the athletes at least some of the things they are seeking — which the officials hope will stave off the union effort.

At a news conference Sunday, the day before the men’s basketball championship game here, Mark Emmert, the N.C.A.A. president, and a group of the organization’s leaders discussed the overhaul plan, which is being hashed out. The basic idea, they said, is to give autonomy to the five so-called power conferences in college athletics — the Atlantic Coast, Big Ten, Big 12, Pacific-12 and Southeastern Conferences — allowing them to provide additional benefits to their athletes.

“There are things that need to get fixed,” said Emmert, whose organization has been defending itself against a series of high-profile lawsuits claiming that it did not adequately address head injuries and that men’s basketball and football players should receive a share of the revenue generated by their sports.

The Northwestern…

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Points for Product Placement: N.C.A.A. Cashes In, but Not the Players

Today’s post was shared by Gelman on Workplace Injuries and comes from

Traevon Jackson using a ladder and scissors from N.C.A.A. sponsors as he cut down the net after Wisconsin advanced to the Final Four with an overtime victory against Arizona in Anaheim, Calif.

ARLINGTON, Tex. — The new champions of men’s college basketball, whoever they may be, will cut down a net here Monday night. And when they do, they will climb to the basket on a blue-and-yellow Werner ladder, and they will clip the cords with a pair of orange Fiskars scissors.

They will also probably wear Nike hats and T-shirts, and they might sip from Powerade cups as they cheer on their teammates.

In a tournament that has been packed with upsets and surprises, one of the few mainstays has been the prominence of the logos of corporate sponsors alongside the N.C.A.A.’s. In total, some 19 major partners and corporate supporters are listed in the official fan guide of the Final Four.

The rabid commercialization is hardly new to March Madness and the Final Four — and it is not uncommon in professional sports and at the Olympics. But the N.C.A.A.’s opponents are using it as fresh ammunition with the model for college athletics increasingly under siege.

The N.C.A.A. is facing lawsuits that seek to give players a bigger slice of the billions of dollars in revenue generated by men’s basketball and football. The athletic association is also facing a unionization movement, emboldened by a recent ruling that the Northwestern football team could…

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“No Trauma” Does Not Mean No Injury

I’ve been investigating Wisconsin and national fraud statistics in worker’s compensation to prepare for a national presentation I am making in Cape Cod in July. One fascinating and recurring basis for denial of worker’s comp claims (and potential claims against employees for fraud) stems from an insurance carrier’s review of the initial medical report.

Often the physician or emergency room nurse, physicians assistant or First Responder will ask an injured worker “Did you have any trauma?” If the answer to the question is “no”, the medical records will routinely indicate “no trauma”. This information is translated by the insurance carrier as a denial that an injury occurred. The level of medical sophistication for an injured worker is routinely limited. Most of my clients (and based on inquiries with other workers’ attorneys, their clients as well) believe a trauma is something akin to getting hit by a bus. They do not equate the notion of trauma with lifting a heavy object such as a table or a box. The criteria for traumatic injuries in most states, including Wisconsin, is that a single incident or episode caused the injury or aggravated a pre-existing condition beyond a normal progression. In many cases a lack of “traumatic injury” at the initial medical presentation is not an accurate indication of whether a traumatic injury actually occurred.

The Right to a Safe Workplace

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

Under federal law, every employee has the right to a safe workplace. If you believe your workplace is dangerous and changes in safety policy are ignored, you can request an inspection from OSHA (Occupational Safety and Health Administration).

Workers’ compensation, which is regulated on a state-by-state level, covers medical bills, lost wages, disability and vocational rehabilitation services for employees injured on the job. If you have any questions regarding these benefits, please contact an experienced lawyer in your area.

 If you believe you work in an unsafe work area, here are some tips to be aware of to make sure your workplace is as safe as possible, and you protect yourself from significant injury:

  1.  Know the hazards in your workplace.
  2. While in a seated position, keep your shoulders in line with your hips. Use good form when lifting.
  3. Injuries occur when workers get tired. Take breaks when you’re tired.
  4. Do not skip safety procedures just because it makes the job easier or quicker. Using dangerous machinery is the one of the leading causes of work injuries.
  5. Be aware of where emergency shutoff switches are located.
  6. Report unsafe work areas.
  7. Wear proper safety equipment.

If you are injured due to an unsafe workplace, and you are unsure of the benefits that you are entitled to, contact an experienced attorney in your area.

Proposed House Chemical “Reform” Legislation: A Step Backward for Health and Safety

Today’s post was shared by Gelman on Workplace Injuries and comes from

Today’s post is shared from

Rep. John Shimkus (R-IL) released a draft bill entitled the Chemicals in Commerce Act (CICA) on Thursday, Feb. 27 that provides no significant improvements in protecting public health and the environment from toxic chemicals. Many of the provisions in the draft bill maintain the already deficient approaches to health protections now included under the 1976 Toxic Substances Control Act (TSCA), our nation’s outdated and ineffective chemical safety law. Even worse, aspects of the legislation would weaken TSCA and undercut current protections provided by states that have adopted more stringent chemical laws.

Many of the problems posed by provisions of S. 1009, the Chemical Safety Improvement Act (CSIA), are also apparent in CICA. Among many deficiencies, the bill would prevent states from regulating chemicals classified by the U.S. Environmental Protection Agency (EPA) as “low priority” risks, as well as preempt the ability of states to adopt requirements for “high priority” risk chemicals that are more protective than those established by EPA. CICA continues the existing law’s perverse approach to establishing safety standards, in which the burden of proof falls on the EPA to prove a chemical poses an “unreasonable” health risk, rather than on chemical companies to prove the safety of their products.

Other shortcomings of CICA include:

  • The bill provides no deadlines for the EPA to assess the potential risks of…

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