Category Archives: Workers’ Compensation

Tips on Your Workers’ Compensation Claim

I just returned from New Orleans where I made a presentation to about 150 workers’ compensation lawyers (both for workers and for employers) on “Case and Client Evaluation In Workers’ Compensation”.

Since many in the audience represented insurance companies and employers, I paid particular attention to their response to my presentation. As one would expect, their best chance to win a case on behalf of the employer and insurance carrier occurs when several items come into play:

  1. When there is no actual report of the injury. [Worker’s Tip: No matter how small the work injury, make sure it is reported in some fashion – cell phone, voice recording, or Accident Report and the worker keeps a copy (BEST).]
  2. Failure to report that a work injury occurred to the first treating practitioner (whether Emergency Room, employer-directed medical facility, hospital, or primary care physician). The single most difficult hurdle in a workers’ compensation claim involving a traumatic injury occurs when no report of the injury is found in the initial medical record.
  3. In “Occupational Exposure” cases, no discussion with the doctor about work duties or prior incidents. (In Wisconsin, a worker can recover for workers’ compensation in one of two ways: 
    1. A traumatic injury where a single incident has caused the disability (lifting a box, falling, etc.)
    2. Occupational Exposure, where the wear and tear of a worker’s job causes the disability over time. In this latter category, workers routinely do not indicate with any kind of specificity the type of work they perform when they see the doctor.

These three tips can help us as workers’ compensation lawyers win claims, more so than any “Clarence Darrow” court room techniques or strategies.

NEW LAW: Wisconsin Enacts Worker’s Compensation Changes

It’s official. The Wisconsin legislature and Governor recently approved amendments to the worker’s compensation system in our state. We have a new law.

The bill arose from the Wisconsin Worker’s Compensation Advisory Council—the historically stabilizing group, consisting of members of labor and management.  The Advisory Council bill produced common sense reforms and improvements to the worker’s compensation system. A competing bill (informally known as the “work comp destruction bill”) never even received a hearing. In stark contrast, the legislature demonstrated support for the Advisory Council recommendations by unanimously passing the bill (Senate vote was 32-0 and Assembly vote was 97-0), and Governor Walker continued that support by swiftly signing the Council recommendations into law.

The new changes are 2015 Wisconsin Act 180. The bill is effective March 2, 2016.

Importantly, the new bill does not alter the underpinnings of the worker’s compensation “grand bargain”, whereby employees gave up the right to sue in court in exchange for scheduled, fixed benefits without having to prove fault.  Additionally, the new law does not affect an employee’s right to choose their own medical doctor and care, nor does the law impose any type of major medical fee schedule.

The Advisory Council bill was a compromise, as per usual, with provisions that benefit workers and employers. Among the major highlights of the new law:

  • Increased PPD Benefits. An injured worker’s maximum weekly benefits for permanent partial disability (PPD) will increase $20 to $342/week for injuries on/after March 2, 2016, and to $362/week for injuries in 2017.
  • Greater Access to Retraining Benefits. Injured workers with permanent limitations that do not allow a return to the time-of-injury employer can pursue academic retraining benefits (weekly maintenance benefits while in school, along with tuition, books, meals, and mileage). Traditionally, a hearing could not be held until the worker actually was enrolled and taking classes, which could be financially prohibitive when a worker is off work with no income. The new law allows a Judge the authority to issue prospective orders for future retraining benefits before the worker is in school.
  • Allowance for Working while in School. A worker pursuing an academic retraining program will be allowed to work up to 24 hours/week without those wages reducing any weekly worker’s compensation maintenance benefits.
  • Statute of Limitations Reduction for Traumas.  The statute of limitations, running from the date of injury or date of last compensation payment, for traumatic injuries only is reduced from 12 years to six (6) years. The statute of limitations for occupational exposure claims is not changed—remaining at 12 years.
    We anticipate that the traumatic injury statute of limitations change does not apply retroactively, meaning the new 6 year statute of limitations applies to traumatic injuries beginning March 2, 2016.
    The impact of this change will play out in the future. The potential for increased litigation exists as workers file hearing applications to protect their medical treatment expense benefits. For example, if a worker has a knee injury in April 2016 with arthroscopic surgery one month later, all disability benefits paid by the end of 2016, and that worker continues to have periodic difficulties ultimately resulting in a proposed knee replacement in 2023, they may be time-barred if no hearing application was filed within 6 years (or the end of 2022). If barred, those expenses are shifted to the worker, group health insurance, or the government.
  • PPD Apportionment. If a worker suffers a traumatic injury resulting in permanent partial disability (PPD), a physician’s report on PPD shall include a determination of the approximate percentage of PPD caused by the work injury along with the percentage attributable to “other factors” before or after the work injury. A worker, upon request, shall disclose any/all previous findings of permanent disability or impairments that are relevant to the work injury. The provision does not apply to occupational exposure injuries and does not mandate that a physician must find some percentage attributable to other factors (i.e., the entire functional PPD percentage can be attributable to the traumatic work event).Heavy litigation is likely given the provision’s ambiguity. By intent, it appears the language is restricted to functional PPD. The provision should not upset the “as is” rules on legal causation of an injury itself. Additionally, it does not appear the provision would affect liability for temporary total disability, medical expenses, retraining benefits, or potential loss of earning capacity or permanent total disability benefits.Litigation likely will occur over the type of competent evidence necessary to constitute “other factors” apportioning a PPD award. With the worker disclosure requirement, one could argue that only documented, ratable disability findings can be used, as opposed to a doctor’s speculation regarding pre-existing condition (e.g., a worker’s complaint of pre-existing sporadic low back pain is different than a pre-injury accident that resulted in a lumbar fusion procedure with a paid 10% PPD).
  • Lost Time Benefit Denial for Misconduct Terminations. Previous law, under the Brakebush case doctrine, allowed a worker to receive lost time benefits (Temporary Total Disability, or TTD) during a healing period even if they had been terminated for misconduct or allegedly valid reasons by the employer. The new law effectively puts an end to components of the Brakebush doctrine.Temporary disability benefits can be suspended when an employee is released to limited duty post-injury and subsequently is suspended/terminated for “misconduct” or “substantial fault,” as defined under the unemployment insurance law (Chapter 108). Based on the statutory language, TTD benefits, however, are still payable if a worker is completely off work in the healing period, per their physician.These terms “misconduct” and “substantial fault” were recently included in the unemployment laws with specific statutory definitions:
    • “Misconduct” is conduct evincing such willful or wanton disregard of an employer’s interests as is found in (1) deliberate violation or disregard of standards of behavior that an employer has a right to expect of his or her employees; or (2) carelessness or negligence of such degree or recurrence as to manifest culpability, wrongful intent, or evil design in disregard of the employer’s interests or to show an intentional and substantial disregard of an employer’s interests or of an employee’s duties and obligations to his or her employer.
    • “Substantial Fault” equals acts or omissions of an employee over which the employee exercised reasonable control that violate reasonable requirements of the employee’s employer, but not including minor infractions, inadvertent errors, or failure to perform work due to insufficient skill, ability, or equipment.
    With the worker’s compensation act now referring to the unemployment rules for the definitions of both terms, the possibility exists for the worker’s termination to result in the cessation of both worker’s compensation and unemployment benefits.
    The exact interpretation of these terms and the legitimacy of terminations will play out through litigation—and presumably a significant amount of litigation.
  • Benefit Denial for Alcohol/Drug Violation. All indemnity benefits are precluded if an employee violates an employer’s consistently enforced drug policy concerning alcohol or drug use when there is a direct causation between the violation and the worker’s injury. The worker, however, can still recovery/pursue medical treatment expenses.Previous law allowed a potential reduction of a worker’s benefits by 15% if an injury was the result of intoxication or the use of controlled substances.Notably, the new provision is a large injection of “fault” concepts into the otherwise no fault system undergirding the grand bargain of worker’s compensation.
  • Fraud Prevention. Worker’s Compensation Department (at DWD) will fund one Department of Justice position to assist in investigating and prosecuting any “fraudulent” claim or “fraudulent activity” on the part of any player in the worker’s compensation system (insurance carrier, employer, employee, or health care provider)
  • Electronic Medical Records. The cost for certified medical records in “electronic format” is fixed at a maximum of $26 per request.
  • Physician Drug Dispensing. Prescription drug dispensing outside of a licensed pharmacy (i.e., physician dispensing) are limited to the existing pharmacy fee schedule and pharmacist dispensing fee.
  • Review of Minimum PPD Ratings. The new law requires the Department to create a medical advisory committee, consisting of various areas of medical specialization, to review and revise the minimum functional PPD ratings found in the Administrative Code every eight years.

Change can mean uncertainty. A number of the statutory enactments and effects will be seen over time and through the litigation process. The key is that the Advisory Council process worked, continuing its vital role in Wisconsin’s beneficial and efficient worker’s compensation system.

Why Care About Comp?

Charlie Domer has a recent article in the Wisconsin Law Journal. Why Care About Comp? addresses the status of the worker’s compensation system in our state, as well as the recent legislative machinations. In short order, we should have a signed worker’s compensation bill that modifies and improves on our first-in-the nation worker’s compensation system.

Status of Workers’ Compensation in the United States

For all those concerned about worker’s compensation in our country—which really is all citizens—take a look at this important report on the current status of worker’s compensation systems.  The report, from the Worker’s Injury Law & Advocacy Group (WILG) highlights the scary place where some legislators and big businesses want to take worker’s compensation.

 

WILG - The State of Workers' Compensation In The United States

Click Here For The Report (PDF)

 

Advisory Council Bill Is A Compromise …But The Alternative Is Chaos

Those of us representing injured workers were recently forced into a somewhat difficult decision regarding proposed changes to Wisconsin workers’ compensation law.  As discussed in prior posts, two parallel bills were proposed, one sponsored by the Workers’ Compensation Advisory Council (SB-536 / AB-724) and one sponsored by Republican Representative Spiros (AB-501)  The Spiros bill—aka the worker’s compensation destruction bill —would have completely altered the nature of 100 years of workers’ compensation in Wisconsin, adding the concept of “fault” back into a no-fault system that has been operating based on that premise for a century.  Additionally, the work comp destruction bill would have reduced the Statute of Limitations for filing the claim and claiming medical benefits on the claim from the current twelve years to an incredibly harsh two years. 

The agreed-upon Advisory Council Bill (WCAC bill) also contains benefits for injured workers as well as employer-friendly provisions, some coming at the expense of injured workers. For example, employees who are fired for misconduct or substantial fault could be denied workers’ compensation benefits based upon a definition of misconduct imported from the Unemployment Compensation system. Unemployment Compensation law defines misconduct as a worker showing such a willful disregard of an employer’s interest to be a deliberate violation, or carelessness or negligence showing wrongful intent suggesting an intentional substantial disregard of an employer’s interests. Quite simply, under this provision, injured workers might lose their jobs because of misconduct or substantial fault, thus losing out on both Unemployment Compensation and Workers’ Compensation benefits.

Additional provisions of the WCAC bill would deny benefits to those workers whose injuries have been caused by the use of alcohol or drugs. The Statute of Limitations reduced from twelve to a reasonable six years for traumatic injuries.  Significantly, the workers’ compensation insurance carrier can now ask for medical support to apportion pre-existing disability, which should trigger a substantial increase in litigation. 

Some would suggest that the Advisory Council bill is not “worker-friendly.” It is more appropriately viewed as a COMPROMISE. Labor and management representatives bargained for the changes. The Advisory Council bill is the result of give-and-take compromise and an acknowledgement by labor of the current political reality in Wisconsin.   In any compromise, parties get and give up certain things.  This compromise is the stabilizing force for the successful worker’s compensation system in our state. Lone wolf legislation without consideration by the compromises of the Advisory Council should be rejected. 

Support the Advisory Council process and Agreed-Upon Bill.

Work Comp Advisory Council Officially Produced an Agreed-Upon Bill

As anticipated, on December 22, 2015, the Worker’s Compensation Advisory Council (WCAC) approved its Agreed-Upon Bill.  The official statutory language and bill summary can be found here. The bill now goes to the Wisconsin legislature for consideration and, hopefully, passage.

Production of this Agreed-Upon bill underscores the success and stabilizing hand of the Advisory Council.  The WCAC, composed of members of labor and management (including the Wisconsin Manufacturers and Commerce), typically produced a biennial “agreed upon” bill for approval by the Legislature. The WCAC produces reasoned, incremental changes that maintain the stability of the system for all stakeholders—employers, carriers, and workers.  The WCAC immunized the substance of the Wisconsin WC system from partisan politics and election cycle swings commonly found in other states.

The Advisory Council bill deserves full support of all Wisconsinites that care about our nationally respected worker’s compensation system.  There is, however, lone wolf legislation floating about.  We previously talked about a bill (being pushed by Rep. John Spiros, head of the Trucking Industry Defense Association) that is properly seen as the “worker’s compensation destruction bill.” These ideas in the Spiros-led bill (AB-501) were NOT considered or vetted by the Advisory Council.  The Council protects against just this sort of unchecked effort—protecting against random or crackpot ideas from severely damaging the reputable system.

In stark contrast, the Advisory Council carefully considered changes and produced a reasoned bill that improves or system and benefitsall stakeholders, especially the employers of our state.  Indeed, some “employer-friendly” provisions include the following:

  • A worker’s violation of alcohol or drug policy (if causally related to the injury) denies benefits.
  • No lost time benefits (TTD) if terminated for good cause (using recent unemployment standards)
  • A reasonable and manageable reduction in statute of limitations from 12 to 6 years.
  • Establishing a Dept of Justice position for investigating/prosecuting WC fraud.
  • Apportionment of functional PPD payments, so employers not responsible for pre-injury disability amounts.

Workers also have some incremental, important benefits in the Agreed-Upon bill.  The permanent partial disability payments receive slight annual increases.  Workers also will be allowed to work a certain amount of hours while pursuing academic retraining without having a decrease in work comp benefits, and workers will be allowed to ask a judge for “prospective” retraining claims (benefitting a worker who does not have the financial ability to enroll in school unless the work comp carrier will be paying).

The Advisory Council bill maintains the stability of Wisconsin’s first-class worker’s compensation system.  Lone wolf legislation should be dismissed. We urge the Wisconsin legislature to whole-heartedly endorse the reasoned Advisory Council bill.

States with Opt-Out Workers’ Comp System are Strict on Injured Workers

Dallas attorney Bill Minick (Photo credit Dylan Hollingsworth for ProPublica)

Today’s post comes from guest author Hayes Jernigan, from The Jernigan Law Firm.

Texas and Oklahoma have both adopted an “opt-out” system for Workers’ Compensation. ProPublica along with NPR recently published an in-depth look at the results in these two states. Under this system, employers can opt-out of state mandated workers’ compensation insurance by creating their own policy for injured workers. These employer-written policies give employers 100% control over the terms, the benefits, and even settlements.

Specifically, ProPublica and NPR found that these employer-created policies generally have strict 24-hour reporting requirements or even require an injury to be reported by the end of a shift. This means, if an employee does not report their injury within their shift, or within 24 hours, they are prevented from bringing a claim at all. Period. End of discussion. Employers can also dictate how much benefits will be paid and some employers have capped death benefits for employees who are killed at work at $250,000. Whereas under the State Workers’ Compensation system, if a deceased worker leaves behind minor children, they will continue to receive benefits until they turn 18 (which could easily end up being well over $250,000 when you factor in lost wages until the worker would have been 65). This is potentially detrimental to a young widow or widower who is left with very young children.

This morning we tweeted a recent ABC news article that a worker was killed when he fell at a construction site in Charlotte. I’d hate to think that his or her family would be limited to recovering only $250,000 in the event the worker left behind dependent family members and young children. Money can’t begin to replace someone who is lost to us too early from an accident at work, but $250,000 would hardly cover a lifetime of income that the family will lose, especially if young children are left behind.

 

To read more on how the Opt-Out system is affecting injured workers in Texas and Oklahoma, go to: ProPublica: Inside Corporate America’s Campaign to Ditch Workers’ Comp.

LEGISLATIVE ALERT: Worker’s Compensation Destruction Bill?

Time to wake up Wisconsinites! In a short timeframe, the current administration and legislature in Wisconsin has altered the landscape of our state in ways too numerous to count. Well, now we face another attempt to make-over and deform a progressive era landmark: Wisconsin’s Worker’s Compensation System.

A recent bill (LRB 1768) proposes direct and major changes to our state’s nationally recognized model worker’s compensation (WC) system. The proposed changes would dramatically alter and potentially devastate the stability of the system for all stakeholders. We urge all legislators not to support LRB 1768. Instead, there will be a separate, reasoned bill produced by the Worker’s Compensation Advisory Council.

Current System Works for All Stakeholders

Under the grand bargain of Wisconsin’s first-in-the-nation WC system from 1911, injured workers gave up the right to court lawsuits in exchange for timely, lesser, defined benefits without having to prove fault. Employer, in turn, are protected from unknown jury damage awards. Employers purchase WC insurance for this administrative dispute resolution process. The system safeguards the concept that work injury expenses appropriately are an employer’s cost of doing business rather than costs shifted to taxpayers through public assistance such as disability payments and Medicare and Medicaid.

The current system is highly effective for all stakeholders—making our system the gold standard compared to the rest of the country. Wisconsin traditionally has low and stable employer premiums. We have over 300 private section WC insurance carriers collecting premiums (in excess of $1.7 billion). We have faster return to work rates than in most states. We have incredibly low litigation costs and low litigation rates (only 10-15% of work injuries).

Work Comp Advisory Council (WCAC) is the bedrock of Wisconsin’s WC system 

Much of the credit for the beneficial metrics in our national model is from the stability offered by the Worker’s Compensation Advisory Council (WCAC). This Council, composed of voting members of labor and management (including the Wisconsin Manufacturers and Commerce, WMC), has typically produced a biennial “agreed upon” bill for approval by the Legislature. The WCAC produced reasoned, incremental changes that maintained the stability of the system for all stakeholders—employers, carriers, and workers. The WCAC generally has immunized the substance of the Wisconsin WC system from partisan politics and election cycle swings commonly found in other states.

Importantly, the WCAC successfully produced a reasoned Agreed Upon bill in the past weeks! (more details below).

The Proposed GOP Bill (LRB 1768) Would Decimate Worker’s Compensation in Wisconsin

A recent video highlights the egregious nature of the proposed bill:

The bill proposed by GOP legislators was not from or considered by the Advisory Council—it is an end-run around the stability-producing model.  LRB 1768 is a direct legislative attack on the WC system, introducing dramatic and foreign concepts to our system. Among the more outlandish proposal are the following:

  • Reducing WC benefits by amount of employee negligence!
    • This proposal eviscerates the “grand bargain” of WC, whereby a worker who suffers an on-the-job injury receives lower, defined benefits without regard to fault and employers, in turn, are protected from unknown jury damage awards.
    • It would force employees to prove the injury was not their fault while still protecting employers with the WC exclusive remedy (and with no corresponding change in benefits for employer negligence/fault)
    • Also, without any method provided for determining negligence, there would be a massive increase in uncertainty, litigation, and claims costs/premium. 
  • Employer-Directed Medical Care
    • Currently, workers have the right to medical providers of their choosing—creating a system where workers have access to timely, specialized medical care. This quality, unrestricted medical care produces great results: faster return to work rates than most states in the country!
    • Proposed employer-directed medical care allows the employer to choose a specific practitioner for an injured worker (e.g., a podiatrist could be designated to address work injuries, including a back claim). As such, a worker may not receive the appropriate specialized medical care, like physical therapy, chiropractor, psychology, or orthopedic specialist.
    • Employer directed medical care likely means a race to the bottom, focusing on which doctors best minimize WC benefits. The focus should be on swift access to quality medical care.
  • Harsh Reduction from 12 year to Two (2)-Year Statute of Limitations (SOL)
    • WC injuries can result in lengthy healing periods and long-term medical care.
    • A 2 year SOL directly cost-shifts the burden for WC injuries to the taxpayers (Medicaid, Medicare, SSDI).  Taxpayers should not be left holding the bag for the cost of work injuries.
    • A 2 year SOL will result in exponential litigation of WC claims.  WC attorneys will be forced to file applications on any/all claims to preserve the SOL.  Wisconsin could turn into Illinois (!) where litigation rates are 80-85%, versus our current 10-15% rate.
  • Elimination of PPD ratings
    • Current law utilizes minimum permanent partial disability ratings, established by an independent panel of physicians decades ago.
    • The GOP proposed bill would eliminate PPD minimums.  Further explosion in litigation would result as previously uncontested claims would now result in disputes between worker and adverse physician ratings.
    • Notably, the recently-produced WCAC bill provided a reasoned approach to any concerns over PPD ratings, by recommending an independent physician panel review of the ratings.
  • Elimination of benefits if misrepresentation on employment application
    • This ill-considered provision precludes benefits if an employee lied about physical condition on employment application.
    • Such a provision introduces potentially discriminatory quizzing of prospective employees.  It further introduces more litigation issues into this no fault system

The cumulative effect of the GOP bill provisions were not adequately deliberated. The result would be an exponential increase in litigation and a destabilizing effect on the WC system—meaning increased litigation costs, lengthy delays in claims, and increased employer premiums. Any crack in the grand bargain could open the floodgates to potential unlimited damages in personal injury liability lawsuits. One major injury could result in significant jury awards (See http://nypost.com/2014/12/18/injured-construction-worker-gets-record-62m-single-plaintiff-award/)

In stark contrast is the recent WCAC bill ….

WCAC Successfully Produced a Reasoned Reform Bill

The Advisory Council, on October 26, 2015, successfully produced an Agreed-Upon WC Bill. This reasoned WCAC bill was agreed to by labor and management—including the Wis. Manufacturers & Commerce (WMC), who sit on the Council. All stakeholders should get behind this Advisory Council bill. The full statutory language will be available in the upcoming weeks.

As opposed to the GOP bill (LRB 1768), the Advisory Council bill creates WC changes that benefit all stakeholders, especially the employers of our state. Some “employer-friendly” provisions include the following:

  • Worker’s violation of alcohol or drug policy (if related to injury) denies benefits.
  • No lost time benefits (TTD) if terminated for good cause (using recent unemployment standards)
  • A reasonable and manageable reduction in statute of limitations from 12 to 6 years  (vs a 2 year SOL which would drastically alter the system).
  • Establishing DOJ position for investigating/prosecuting WC fraud.
  • Apportionment of functional PPD payments, so employers not responsible for pre-injury disability amounts.

Thus, the Advisory Council produced a bill that addressed many management/employer concerns about the WC system. The Advisory Council listened and—as it has done for decades—successfully produced reasoned changes to the system. The stability of the system is preserved for all stakeholders. The WCAC Agreed-Upon Bill should be supported.