Category Archives: Tort Reform

Injuries Arising Out of Employment – Is the Concept Shrinking?

A headline article noted the following: “Virginia Court: Waiter’s choking on quesadilla did not arise out of employment.” The Virginia Court of Appeals ruled a waiter who was injured while working attempting to swallow a piece of quesadilla too big for his esophagus cannot collect worker’s compensation benefits. The injury caused an esophageal perforation and collapsed lung. The Court, however, found the injury was not as a result of an actual risk of employment. The claimant worked as a host and waiter at a local T.G.I. Friday’s restaurant and part of his work responsibilities was to make food recommendations. T.G.I. Friday’s conducted food tasting demonstration programs to introduce menu items to its staff so the staff could describe the taste to customers and recommend these items. The tastings were provided free to the employees and while the employees were on the clock. T.G.I.Friday’s required attendance but no employee was forced to eat anything they did not want to eat. The Worker’s Comp Commission found that since the worker was not required to taste anything, the injury did not arise out of an actual risk of his employment.

A causal connection must exist between employment and the risk of harm, demonstrating it would be more probable that the injury would not have occurred under normal circumstances of every day life outside the employment situation.

The Wisconsin Worker’s Compensation Division and courts would likely have come to a different result. The very first case I ever tried in the 1970s concerned a firefighter who broke a tooth on a cherry pit while eating dinner at the fire house. To be compensable in Wisconsin, the accident or disease causing an injury must arise out of the employee’s employment. While the “course of employment” deals with the time, space, and intent, “arising out of employment” is related to the origin or cause of the accident so the risk of a particular accident might have been contemplated by a reasonable person when entering the particular employment. Establishing a causal connection between the injury and employment is an essential element of compensability. A causal connection must Continue reading

Newt Wants to Replace Wisconsin’s (and every other State’s) Worker’s Compensation Systems

Newt Gingrich

Basking in the glow of his evangelical-inspired victory in South Carolina’s Republican presidential primary, Newt Gingrich is trying to unify his disparate assembly of Tea Party malcontents, religious moralists, anti-immigrant reactionaries, and most significantly, “anti-government encroachment” fanatics.

Before his candidacy gains any more momentum, we should look back and reflect on the havoc his positions would create in our current State systems. Governor Rick Perry invited Gingrich to speak to the Republican Governors Association after last November’s Republican landslide. Gingrich decried the “leftist political system that has been dominating America since 1932.” Obviously, his attack is leveled at the New Deal, Great Society systems that provide benefits (he calls them entitlements) for so many– Social Security Disability, Medicare, Equal Rights legislation, etc.

More significantly for the worker’s compensation system, he indicated in his 12 Step Program (sound familiar) that he wanted to replace State’s worker’s compensation programs. In an obvious attack on worker’s compensation attorneys, his plan was to “replace litigation-focused worker’s compensation with a rehabilitation and capabilities focused program that maximizes the speed of helping people medically, and focuses on retraining and focuses on what they can do rather than what they can’t do.”

While the medical end of this aim is laudable, Wisconsin’s system (and many others) currently does focus on retraining and what workers can do following their injury. Wisconsin’s vocational rehabilitation Continue reading

Wisconsin Workers Do Not Fake Injuries

I’m tired (and angry) when I read or hear news stories about alleged employee fraud in workers’ compensation cases. At cocktail parties, seminars, and social gatherings, when I say I represent injured workers, a common retort is “How many are faking their claims?” I respond, as calmly as I can, that in my experience with thousands of workers over 35 years, only a handful have not been straightforward, and that, compared to instances of employer fraud (not insuring workers, calling them “independent contractors”, telling them to file injury claims under group health insurance, etc., etc.) employee fraud is a drop in the bucket.

The Department’s six year study of such claims concluded that the public perception of workers’ compensation fraud is exaggerated. The documented level of workers’ compensation fraud is minimal.

Much fanfare (primarily fueled by insurance carrier advertisements) accompanied the mid-1990’s enactment of a fraudulent claims reporting provision in the Wisconsin Worker’s Compensation Act. Since then the statute has required insurers to report suspected fraud to the Department of Workforce Development on their own initiative and, at the request of the Department, to investigate and report on cases of alleged fraud reported to the Department by the general public.

In over 6 years, district attorneys initiated prosecution in 17 cases in Wisconsin, obtaining conviction in 14. 

Most fraud allegations are made anonymously, by telephone (608-261-8486), and from people who identify themselves as former friends or spouses, relatives, co-workers, or neighbors of the person alleged to be committing fraud. According to the Department summary report, “those allegations usually don’t pan out.” Continue reading

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)

Continue reading