Category Archives: Workers’ Compensation

Death Of A Client

The circle of life always moves forward, with death as the single, inevitable constant. Despite that knowledge, I am always taken aback when I receive word that one of my clients has passed away. Unfortunately, this happens on numerous occasions throughout the year.  Some individuals pass away from the effects of a work injury, and of course, others for a variety of causes both known and unknown.

A worker’s passing is always difficult for family and friends, including myself and our office staff who represented the worker. For many workers, our office has a profound and intimate involvement in their case, including a multitude of in-person conversations and phone communications (many involving significant and meaningful conversations related to the individual’s family and health, well-being, and status for the future).

When an injured worker dies, there is some potential relief for that worker’s dependents in the form of a death benefit claim. While no monetary compensation can be sufficient for a worker’s death, the Wisconsin Worker’s Compensation Act does provide the potential for some benefits for those left behind. 

Specifically, if a worker dies from the effects of a work injury or if a permanently totally disabled employee dies, there is the potential for a death benefit equal to four times the worker’s annual earnings. Statutory “total” dependents are determined by the law: a surviving spouse, a domestic partner who lived with the deceased, or a surviving child under the age of 18 years old (or older if physically or mentally incapacitated). Other rules apply if there are no statutory dependents for those deemed “partially” dependent on the deceased injured worker (partial dependency is capped at two times the deceased’s annual salary). 

Other rules apply under the Worker’s Compensation Act if an injured worker – who has permanent partial disability (PPD) left to be paid – dies with some PPD still owing. Unaccrued permanency disability benefits can be payable to dependents as death benefits, as well. 

Additionally, burial expenses (up to $10,000) are payable in all cases where an employee dies from a work injury, regardless of whether or not there are dependents. 

The rules for dependency benefits, admittedly, are convoluted and difficult to decipher. The rules about who is a total or partial dependent can be confusing and difficult to follow. Competent worker’s compensation counsel is necessary to navigate the ability to pursue a death benefit.

Courthouse Door Slammed Shut for Workers

The Wisconsin Supreme Court held that an injured worker can be forced to accept an offer from a third-party if his employer’s worker’s compensation carrier wants to accept the deal, even if the injured worker wants to try to the case in court.

I was interviewed by Work Comp Central regarding that claim.

I labeled the decision a travesty, indicating it diminished the right of all workers in Wisconsin who, for over 100 years had an unfettered right to sue a third party.  This case,  Adams v Northland, reverses that.  I was dismayed because the decision indicates the worker’s compensation insurer can call the shots and take a deal the worker finds unacceptable.  Essentially, the worker’s compensation insurance carrier should stand in the shoes of the injured worker.  This case allows the insurance carrier not only to stand in its own shoes but to throw away the worker’s shoes.

The worker’s compensation insurance carrier had paid about $150,000 to Adams in medical benefits and compensation after he injured himself while driving a snowplow for the Village of Fontana.  He hurt his neck and spine when his head struck the cab ceiling.  He sued the Northland Equipment Company for putting in the wrong shock-absorbing springs on the plow, which he says would have precluded his injury.

Northland offered to pay $200,000 to settle Adams’ claim and the worker’s compensation insurance carrier asked a judge to compel Adams to accept this settlement.  The Judge did so and the Court of Appeals and Supreme Court affirmed that Judge’s decision.  Justices Bradley and Abrahamson dissented, indicating there was nothing in the deal struck in 1911 when workers gave up their right to sue their employers suggesting that workers would also give up their right to sue a negligent third party.  This decision essentially takes away the right of an injured worker to proceed to trial against the negligent third party if the employer’s worker’s compensation insurance carrier wants to settle.

“Coming and Going” Rule Revisited

The Kansas Supreme Court has just reversed a State Appeals Court finding that an oil field worker was not entitled to worker’s compensation benefits after he was injured while riding home from his workplace.  The case is David C. Williams v. Petromark Drilling, LLC and Ace Fire Underwriters Ins. Co.  The Court reasoned that the nature of field work where an employee has no permanent place of employment but must travel from place to place to perform his duties was an exception to the “Coming and Going” rule.  That rule in most State Statutes indicates an employee is not entitled to worker’s compensation while coming to work or going home from work.

In Wisconsin case law and statutory provisions have extended coverage to the employer’s designated parking lot, travel between the parking lot and employer’s premises, injury off premises from a “spilled over danger” and commuting to work in an employer-provided vehicle used from time to time for job duties.  Wisconsin courts have etched away at the “Coming and Going” exclusion.  While a typical commute is not covered until the worker reaches the company parking lot, if the employer pays wages for the travel time or commute (“on the clock”), an injury during the trip is compensable.  The worker is also covered during the entirety of a special errand or overtime trip required by or for the benefit of the employer.  Also, where the use of a company truck was a “substantial part of the employment contract” a worker killed while commuting to work was found to be in the course of employment. An argument can be made that an employee commuting to work should be covered if required by job duties to have access to the car while at work, even if not compensated for the expense of commuting.

Wisconsin’s Commission and Courts have also wrestled with the distinction between a “traveling employee” who receives statutorily broad coverage, and a regular commuter whose trip to work is barred by the “Coming and Going” rule.

What’s the Connection Between Worker Safety, Employer Profit, and Voting?

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

A recent newspaper article about a Nebraska lawyer fighting against imposing OSHA regulations on small businesses and farms that handle grain illustrates an age-old conflict between Worker (human) safety and Business (corporate) profit. The lawyer argued OSHA compliance is too expensive for small businesses and farms.

I couldn’t disagree more. From my point of view, worker safety is immeasurably more valuable to society than business profit. Human beings are the most important component of any activity, including business. Viewing safety as a cost ignores the cost to the human beings who are burned and maimed by grain explosions, whether they happen at a small business/farm or a huge corporate grain facility.

Farms in Nebraska and Iowa are not required to provide workers’ compensation for their employees. This is justified on the grounds that farms can’t survive such government intervention. I find this an interesting argument from businesses that have long received subsidies from the government. It seems that farm profits are more important than the human beings who do the work to earn those profits.

Our society needs more laws to protect human beings from injury and to compensate them if injured for the profit of others. Candidates for public office need to be asked what matters more to them: Is it human beings or profits that matter more?

Justice Louis Brandeis of the U.S. Supreme Court wrote long ago: “We must make our choice. We may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both.”  

If we keep electing representatives who favor the concentrated wealth, then human beings will likely be protected less. These are scary times as the divide between the “haves” and “have nots” continues to grow. Ballots are the only way to tell our representatives that the health and welfare of human beings is paramount. Voting is essential, or we will see more and more concern for profit and less and less concern for human beings.

Transitional ‘Light’ Duty Jobs: What Are They and Do I Have to Take One?

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

This guidance generally applies to Wisconsin workers as well.

When injured at work, your doctor may give you work restrictions that prevent you from returning to your regular job. In these situations, there are three things your employer can do:

  1. Tell you that they have no jobs within your restrictions
  2. Give you a transitional duty (or “light duty”) job within your restrictions
  3. Force you to work your regular job in violation of your restrictions

If it’s #3, call a lawyer immediately and inform your doctor that your employer is not following the doctor’s orders.

If it’s #1, you would be taken off work and you would be entitled to workers’ compensation benefits for temporary disability until you are released back to work or until your employer accommodates your work restrictions.

If it’s #2, it not always clear what the result will be. This “transitional duty” option is when your employer returns you to work but not at your normal job. Instead you are given a different, temporary job while you are on restrictions.

Problems arise with these transitional jobs when your hours are cut, your pay is cut, or you are asked to do a job that is unreasonable. Often, if you refuse to work a transitional duty job that is in your restrictions, you could forfeit your right to obtain work comp payments for temporary disability while you are on those restrictions and off work.

If the transitional duty job that is offered to you cuts your hours, you will probably be entitled to temporary disability payments in an amount to make up (somewhat) for the difference in what you were making before the incident that caused the injury and what you are now making in your transitional job.

Similarly, if your hourly rate or your wages for your transitional job are less than what you would have been earning before you were injured, you would again be entitled to temporary disability payments in an attempt to make up for the shortfall.

Where transitional duty jobs have a gray area is whether they are truly reasonable jobs that are being offered. For example, there are horror stories of employees working in the near dark for 8 hours per day or working in appalling conditions sorting paperclips for transitional duty. Whether or not you have to take a job like these horror stories without forfeiting your right to temporary disability payments depends on the facts of each specific case.

Click the link – it’s about a Walmart guy who had to do “light duty” in the bathroom for 7 hours a day: http://www.aol.com/article/2014/05/27/wal-mart-employee-claims-he-was-forced-to-spend-7-hour-shift-in/20893585/?icid=maing-grid7%7Chtmlws-main-bb%7Cdl28%7Csec1_lnk3%26pLid%3D481058

Generally speaking, however, if you are offered a transitional job within your restrictions, you should probably take that job unless you have a very good reason that you cannot. For example, in at least one Nebraska case, the court held that even having an employee relocate 300 miles for a temporary transitional job was considered a reasonable job offer. Even transitional jobs that are during different shifts than your normal shift may be considered reasonable. If a job is reasonable and you do not have a good reason for not accepting such a transitional job, you could be denied temporary benefits and be left without any pay at all while attempting to recover from your work injury.

If you have a job that sounds unreasonable, and you are contemplating whether or not you are required to accept such a job, contact a lawyer. An experienced lawyer will be able to give you a good idea of whether turning down such a job would allow your employer to deny you temporary disability payments or not.

Medical Care Politics in Worker’s Compensation

The mythology surrounding employee fraud in worker’s compensation is pervasive. Many of my clients begin their conversations with me indicating the following: “I’m not one of those folks faking their worker’s compensation claim.”  The exaggerated media publicity concerning employee fraud has also resulted in outright worker intimidation regarding filing a claim. I had this conversation today with a prospective client.

Attorney: Why didn’t you report the incident?
Client: I didn’t want to have that on my record.  Nobody will hire me if I have a worker’s comp injury.
Attorney: Why didn’t you seek medical treatment?
Client: I do not have insurance.
Attorney: Can you obtain insurance under the Affordable Care Act?
Client: You mean Obamacare?  No way!

Fear of being stigmatized as a complainer, whiner, or simply a recipient of worker’s compensation benefits has prompted many legitimately injured workers from filing a worker’s compensation claim.

The adverse publicity concerning the Affordable Care Act (and its pejorative popular name “Obamacare”) results in many otherwise qualified workers from obtaining the health care they need, especially when denied by a worker’s compensation insurance carrier. 

The politics of medical care intrudes in the worker’s compensation arena daily.

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.

“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.