Category Archives: Legislation

Message to Wisconsin Legislators: Hands Off the Advisory Council

For the last 40 years, the Wisconsin Worker’s Compensation Advisory Council advises the Worker’s Compensation Department and the Legislature on policy matters concerning the development and administration of the worker’s compensation law.  Overall, the Council has been an unequivocal success.  Unlike the volatility found in other states, the Wisconsin Council maintains the overall stability of the worker’s compensation system without regard to partisan changes in the legislative or executive branches of government.  The Council provides a vehicle for labor and management representatives to play a direct role in recommending changes in the worker’s compensation law to the legislature.  This year Republican legislators have already muddled up the Unemployment Compensation Advisory Council, making recommendations that have rolled back unemployment compensation standards which have been in place for decades. 

Recent news indicated that Republican legislators are questioning the use of the Council in the worker’s compensation system.  These Republican politicans, including Dan Knodl, the Chair of the Legislature’s Labor Committee, have indicated they plan to send recommendations to the Council on possible cost saving changes.  Those “cost savings” were part of the budget process in which the legislature made changes to the Unemployment Compensation program, reducing benefits to employees without the support of the Labor and Management Advisory Council. 

 

The Worker’s Compensation Advisory Council, composed of five management, five labor, and three non-voting insurance members appointment by the Secretary of the Department of Workforce Development and chaired by a Department employee, meets regularly at different sites around Wisconsin.  The public is welcome at these meetings to offer their concerns.  The Council obtains input from various worker’s compensation constituents including interested members of the legal, medical, labor, management, insurance, and employer communities.  Hearings on proposed changes are held followed by Advisory Council deliberation.  With input from all of these sources, the Council attempts to produce a well-balanced bill.    

As a general rule, business and insurance interests thrive on stability and known costs.  The Council’s work provides this certainty for the players in the worker’s compensation system.  In the interests of appearing “business friendly”, a Republican end run outside of the Council may actually produce the exact opposite effect—uncertain and fluctuating premiums, costs, and legal issues.The Council has always produced an “agreed upon bill” which results in annual changes in benefit rates and substantive law.  The bill proceeds to the Labor Committees and the Wisconsin Assembly and Senate where, after passage, the Governor signs the bill into law.  This process has worked and created stability in Wisconsin for many decades, a system that other states can only envy.  The successful Advisory Council process should not be altered by outside influence from the legislature. 

Making A Difference In Washington – The Medicare Secondary Payer and Workers' Compensation Settlement Agreement Act

Today’s post comes from guest author Catherine Stanton from Pasternack Tilker Ziegler Walsh Stanton & Romano.

In addition to helping our clients receive the benefits they are entitled to through the courts and other adversarial means, we are prooud to work with our elected officials to produce legislation that will benefit working people. A few days ago, a bill we support, the Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act, was formally proposed. We encourage you to call and email your representatives and let them know that you support this law.

The press release with additional background follows:

 

Reps. Reichert and Thompson Introduce Bipartisan Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act

Washington, D.C. – Today, U.S. Reps. Dave Reichert (R-WA) and Mike Thompson (D-CA) introduced the Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act, H.R. 1982 into the House of Representatives.

The legislation aims to protect injured workers whose workers’ compensation claims overlap with Medicare coverage. Far too often, these claims are subjected to lengthy and cumbersome reviews by the Centers for Medicare and Medicaid Services (CMS) to determine appropriate set-aside amounts to pay for future medical costs in which Medicare may have an interest. The delays associated with this review place unfair burdens upon the injured party.

“This is a common-sense measure to ensure that hard-working Americans are not left in limbo because of inefficient bureaucratic procedures,” said Rep. Reichert. “Injured workers must have the confidence that their heath care claims will be processed in a fair and timely manner. By introducing this bill, Rep. Thompson and I aim to do just that: protect our hard-working citizens by making sure our systems serve them and their families.”

“The last thing injured workers should have to worry about is if needless bureaucracy is going to prevent their medical bills from being paid,” said Thompson. “This bill will make sure hard working families’ medical claims are processed efficiently and quickly, it will reduce bureaucratic headaches for businesses, and it will save taxpayers money. I will continue working with Congressman Reichert to get this bipartisan bill signed into law.”

Background

The Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act establishes clear and consistent standards for an administrative process that provides reasonable protections for injured workers and Medicare. It would benefit injured workers, employers and insurers by creating a system of certainty, and allows the settlement process to move forward while eliminating millions of dollars in administrative costs that harm workers, employers and insurers.

The legislation has widespread support from groups such as the American Insurance Association, the American Bar Association, the National Council of Self-Insurers, Property Casualty, Insurers Association of America, UWC-Strategic Services and the Workers Injury Law and Advocacy Group (WILG).

Let OSHA Do Its Job

OSHA is being prevented from fulfilling its mission.

Today’s post comes from guest author Paul J. McAndrew, Jr. from Paul McAndrew Law Firm.

In 1970, Congress passed the Occupational Safety & Health Act (the Act), which created the Occupational Safety & Health Administration (OSHA). Among other things, the Act requires every employer to provide a safe workplace. To help employers reach this goal, OSHA promulgated hundreds of rules in the decade after it was created. OSHA’s rulemaking process has, however, slowed to a trickle since then.  

While the National Institute for Occupational Safety & Health recently identified over 600 toxic chemicals to which workers are exposed, in the last 16 years OSHA has added only two toxic chemicals to its list of regulated chemicals. This is because Congress, Presidents and the courts have hamstrung OSHA. For example, in March 2001 the Bush Administration and a Republican Congress effectively abolished OSHA’s ergonomics rule, a rule the agency had worked on for many years. 

These delays and inactions have caused more than 100,000 avoidable workplace injuries and illnesses.

These delays and inactions have caused more than 100,000 avoidable workplace injuries and illnesses. Workers are being injured and killed by known hazardous circumstances and OSHA can’t act.

Congress and the President need to break this logjam – we need to free OSHA to do its job of safeguarding workers.

Hurrah for the Wisconsin Workers' Compensation Advisory Council

Every time I read an article about the extreme contentiousness between employers and employees that manifests itself in many States’ legislatures concerning worker’s compensation legislation, I am again reminded of the workings of Wisconsin Workers’ Compensation Advisory Council. Recently, the Republican-controlled Washington State Senate passed three contentious measures intended to save businesses money by changing worker’s compensation rules. Essentially, the bills would overhaul compromise settlement agreements, lowering the age of eligibility from 55 to 40, and allow businesses to schedule medical evaluations so that business can move injured workers through rehabilitation more quickly. Republicans took the Senate in Washington.

The Council aims to maintain the overall stability of the workers’ compensation system without regard to partisan changes in the legislature or executive branches of government

The Wisconsin Workers’ Compensation Advisory Council was created in 1975 to advise the Department and legislature on policy matters concerning the development and administration of the worker’s compensation law. The Council aims to maintain the overall stability of the workers’ compensation system without regard to partisan changes in the legislature or executive branches of government (given the contentiousness of recent Wisconsin executive and legislative elections, this is a real blessing for injured workers and for worker’s compensation practitioners). The Council provides a vehicle for labor and management representatives to play a direct role in recommending changes in the worker’s compensation law to the legislature.

The Council, composed of five management, five labor, and three non-voting insurance members appointed by the Secretary of the Department of Workforce Development and shared by a Department employee meets regularly at different sites around Wisconsin. It occasionally assigns special topics to study committees on such issues as medical cost, permanent disability rates, and attorney fees. The medical committee assigned in the mid-1990s to report on minimum permanency percentages for surgical procedures, for example, issued its findings which resulted in the schedule contained in the Administrative Code. The Council obtains input from various worker’s compensation constituents including interested members of the legal, medical, labor, management, insurance, and employer communities. Public hearings on proposed changes are held, followed by Advisory Council deliberation. The Council has always produced an “agreed upon bill” which results in annual changes and benefit rates and substantive law. This system works in Wisconsin and would be a good template for other states as well.

Development of the Worker’s Compensation Act of 1911

This is the third installment in our series on why and how workers’ compensation was established in Wisconsin.

After reaching consensus on the details of the proposed workers’ compensation system, the Industrial Insurance Committee introduced a bill in 1911 that passed both houses of the state legislature. The only significant change made was to restore to employers the assumption of risk defense and fellow servant doctrine in cases where workers elected not to proceed under the new system.

In November of the same year, the first test case was brought before the Wisconsin Supreme Court. The Court affirmed that the legislature had the right to abolish employers’ common law defenses. It also held that the preservation of common law defenses in cases where employees opted out of the new system was based on a reasonable classification which was designed to promote the objectives of the new law and which did not violate the equal protection clauses of the state or U.S. Constitution. The Borgnis case epitomized the reluctance to invoke substantive due process–characteristic of the Court throughout the Progressive Era.

After the Worker’s Compensation Law cleared its constitutional hurdle in Borgnis v. Falk Corporation, it was steadily strengthened and augmented. In 1913, spurred by slow employer acceptance of the law, the legislature provided that any employer who did not explicitly opt out of the law would be presumed to have accepted it. The contributory negligence defense was also added to the list of defenses that employers not electing under the Act were prohibited from invoking. In 1919, the law was expanded to cover all employment-related injuries whether accidental or not, including occupational exposure claims. Finally, in 1931, when workers’ compensation had become a universally accepted part of Wisconsin industrial life, the law was made compulsory for virtually all employers and employees.

“Opting In” to Worker’s Compensation: Wisconsin’s Very Good Idea

Wisconsin Capitol BuildingThis is part 1 of a 3 part series.

Oklahoma recently faced a proposal in legislative session that would have allowed employers to “opt out” of the State’s mandatory worker’s compensation system. The bill ultimately died but it was closely monitored by the business community. Similar bills may soon surface in several other states including Colorado, Kansas, Louisiana, and Tennessee.

Wisconsin’s initial efforts in workers’ compensation led the nation.

With several states proposing to “opt out” of worker’s compensation, it is important to revisit, after 100 years, why Wisconsin “opted in” leading the way for the other 50 states in worker’s compensation. The next several blog entries will tell that story.

Part I. Workers Denied Recovery

Wisconsin’s initial efforts in workers’ compensation led the nation. In 1911, Wisconsin became the first state in the nation to place a broad, constitutionally valid workers’ compensation system into operation.

Prior to 1911, Wisconsin workers who were injured on the job had to overcome three common law obstacles in order to recover from their employer. Under the contributory negligence doctrine, a worker could not recover from the employer if the worker had been negligent in any way and that negligence had contributed to the accident regardless of how negligent the employer may have been.

Under the doctrine of assumption of risk, if a worker knew or should have known of the danger inherent in the task at issue before undertaking it, the employer was not liable for an accident arising from the task even if the employee was not negligent.

Under the fellow servant rule, employers could not be held liable for accidents caused by fellow employees (i.e., co-workers) of the victim.

The combined effect of these common law defenses served to deny workers adequate remedies for their injuries.

Please visit our blog next week for part 2 of our series on states opting out of workers’ compensation.

Injuries to In-Home Care Providers: Compensable?

Home care providers may or may not be considered to be employees of the person they are caring for.

A growing segment of the workforce involves individuals providing in-home medical care and assistance to private individuals. The assistance can range from a few hours per day, to 24/7 medical and domestic care for incapacitated individuals.

If the in-home care provider gets hurt while performing work duties, does this entitle the care provider to worker’s compensation benefits?

In a previous blog post, we discussed nannies, baby-sitters and domestic servants. “Home care providers” are treated differently (though an argument could be made that the care recipients from a nanny or from an in-home care provider are equally dependent — a baby and an elderly individual often have similar needs). The Commission held that persons providing personal/medical care to an “invalid” are not domestic servants (and thus, not statutorily exempt from the Act’s coverage). (Ambrose v. Harley Vandeveer Family Trust, WC Claim No. 86-39393 (LIRC Feb. 28, 1989); Winkler v. Vivian Smith, WC. Claim No. 1998059089 (LIRC Jun 29, 2000))

The Department generally considers that persons hired in a private home to give primary care to an individual whose duties involve assisting  in walking, bathing, preparing meals and special diets, supervising use of medications and exercise therapy and other duties commonly associated with the meaning of primary-care giver, meet the definition of home-care provider.

 If the domestic servant exemption does not apply, the question is: are home care providers to be considered as employees of the cared-for individual?

Interestingly, another statutory exception which may apply involves that of the cared-for individuals enterprise, as the person providing personal/medical care does not perform these services as part of the trade, business, occupation or profession of the cared-for individual (102.07(4)(a)2). Since the cared-for individual is not in the business of providing in-home care, there would be no worker’s compensation coverage, unless the cared-for individual elects to award these. Thus, the Department, based on this statutory exception, suggests that no employer-employee relationship exists under the Act.

As the Commission has left this issue largely undecided in the case of a private cared-for individual hiring their care provider, arguments exist both for and against coverage. Alternatively, if a county referred the home care provider to the individual and the county set the provider’s rate of pay, the county is the employer for worker’s compensation purposes. (See Cobb v. County of Barron, WC Claim No. 2006-043003 (LIRC Dec. 11, 2008); Nickell v. Kewaunee County, WC Claim No. 94064155 (LIRC Sept. 24, 1996)).

 

Hot Coffee: A New Documentary Exposes the Lie of Tort Reform

Today’s guest post comes to us from our colleague Len Jernigan of North Carolina.

Have you heard the story about the woman who ordered some hot coffee from McDonald’s, spilled it on her lap, burned herself, and sued McDonald’s for millions of dollars? Ridiculous, right? It’s the poster story for so-called “frivolous law suits.”

McDonald’s had already received and ignored over 700 reports that their coffee had burned customers.

Well, would you still think the story was ridiculous if you knew these facts?

  • Stella Liebeck, 79 years old at the time, wasn’t driving when the coffee spilled – she was sitting in the passenger seat of a parked car.
  • She suffered 3rd degree burns from the coffee and required 2 years of painful surgeries and skin grafts.
  • Properly brewed coffee NEVER reaches a temperature where it is capable of causing burns like the ones Ms. Liebeck suffered. McDonalds kept their coffee at 185 degrees, which causes severe burns in 3-7 seconds. Home brewed coffee never gets above 150 degrees, which would not cause these kinds of burns.
  • Even before Ms. Liebeck was injured, McDonald’s had already received and ignored over 700 reports that their coffee had burned customers.
  • Ms. Liebeck’s initial request was that McDonald’s pay $20K, the amount of her medical treatment that Medicare would not cover. McDonald’s offered her just $800.
  • After a trial, a jury of 12 ordinary people decided that McDonald’s blatant of disregard for hundreds of complaints about their coffee warranted an award (and penalty) of 2 days’ worth of coffee sales, which in 1994 was $2.7 million.
  • The jury’s award was appealed by McDonald’s and reduced, and then further reduced to less than $600,000 after McDonald’s mounted a multi-year legal battle against Ms. Liebeck.
  • As part of Ms. Liebeck’s settlement with McDonald’s, she was forced to sign a gag order, which prevented her from speaking about the case or the settlement. McDonald’s told its version of story to the press, while she was legally unable to defend herself or tell her side.

Hot Coffee, Susan Saladoff’s gripping and moving new documentary tells the story of Stella Liebeck and other regular Americans like her who have used the U.S. judicial system to fight for justice. It also tells the story of how corporate interests are, bit by bit, taking our right to trial by jury away. (video after the break)

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