Tag Archives: Wisconsin

Walker’s Workers’ Compensation in Wisconsin

Mark my words, Scott Walker will use his attempts to revamp and revise Wisconsin’s workers’ compensation system in his national campaign for the presidency in 2016. 

He will tout attempts at “increased efficiency” and cost cutting when, in fact, these efforts are patently false.  His recent assault on workers’ compensation prompted me to revisit a review I wrote of the Center for Justice and Democracy Study “Workers’ Compensation: A Cautionary Tale,” now a decade old. When objective observers corroborate your own instincts, it is gratifying. The study on workers’ compensation, undertaken by the Center for Justice and Democracy, concluded that since workers struck their bargain with employers early in the 20th Century, legislators and administrators have cut benefits and ushered many injured workers completely out of the system. 

Particularly insidious has been the workers’ compensation insurance carrier’s malicious, relentless campaign to advance the notion of employee fraud. In Wisconsin, the aggressive insurance media blitz prompts a response (when I say that I represent injured workers) at every social gathering, wedding, birthday, or cocktail party, about  employees “ripping off” the workers’ compensation system. This, in the face of irrefutable statistical evidence that employee fraud is infinitesimally small is a boil on the butt of the workers’ compensation system.

On the other hand, employer fraud dwarfs employee fraud. Under-representing payroll, mischaracterizing heavy-lifting laborers as clerical workers or independent contractors, and forcing injured workers to claim work injuries against their health insurance is fraud, but not as “media-sexy” as filming an alleged injured worker bowling or rock climbing.

This media barrage of employee fraud has created a milieu in which some workers, legitimately injured, do not even report injuries. For immigrants with an already tenuous status in America, the Center’s study reports that just six in ten workers hurt on the job report their injuries for fear or retaliation. The Center’s study reports alarming national trends that I see in my practice daily, resulting in denials and delays of legitimate claims. These include stricter criteria for proving a workplace injury and insurance company efforts terminating benefits at age 65 (despite increasing evidence that the retirement age is increasing). 

Lastly, ubiquitous adverse medical examiners’ reports assigning causation to some pre-existing condition corresponds to an alarming alteration in the standard for causation. Legislation requiring “substantial” or “major contributing” cause or replacing “contributing” with “prevailing” factor makes workers jump over higher hurdles to obtain compensation more than ever before. Those of us who represent injured workers will continue to try to give injured workers a boost, despite Governor Walker and Republican legislators’ efforts to the contrary.

Article Published: Wisconsin and Minnesota Workers’ Compensation Claims Comparison

Tom Domer just published an article “A Comparison of Wisconsin and Minnesota Workers’ Compensation Claims” in the William Mitchell Law Review.

The article was prompted by calls from Minnesota colleagues asking whether Wisconsin or Minnesota jurisdiction would be appropriate for work injuries.  The article compared a hypothetical injury from Ole a 58 year old truck driver hired in Minnesota by a corporation registered in Minnesota and Wisconsin, who worked half time in Minnesota and half time in Wisconsin.  In route to Milwaukee for a delivery, he tripped in a pot hole at a sex shop in Wisconsin after stopping for lunch and drinking six beers.  He injured his neck, leaving a scar on his forehead, underwent neck fusion surgery with resulting permanent work restrictions.

The article compares Wisconsin and Minnesota on liability, the involvement of alcohol, whether the injury arose out of employment and was in the course of employment.  It further compared benefits in Wisconsin and Minnesota including Temporary Total Disability, permanency benefits, vocational rehabilitation, Loss of Earning Capacity, disfigurement, Permanent Total Disability, and whether there was a Social Security offset for workers’ compensation benefits.

While some benefits were better in Minnesota, overall the likelihood for recovery was better in Wisconsin.

Alternatives to Workers’ Comp: Paranoia or Possibility

I joined a national organization of lawyers representing injured workers (the Work Injury Law and Advocacy Group) twenty years ago when it was first formed. Then, I heard horror stories about legislators messing with an otherwise stable workers’ compensation system after every election cycle. My colleagues in other states were constantly fighting battles over workers’ compensation “deform.” 

I thought we were insulated in Wisconsin because we had a workers’ compensation advisory council composed of labor and management who every two years fought out a compromise bill and submitted it to the legislature, which automatically rubber-stamped the proposed bill without changes. That changed in Wisconsin in 2014. For the first time in nearly 50 years, the Republican legislature rejected the “agreed upon” bill proposed by the workers’ compensation advisory council, despite the approval of the bill by management members.

Governor Scott Walker’s most recent budget contains a provision to dismantle the workers’ compensation system as we know it. Those of us representing injured workers (and those rational members on the management side) are busy lobbying to remove the workers’ compensation dismantling provisions from the budget.

It is no secret that many major corporations dislike workers’ compensation, despite statistics indicating premiums are at their lowest for employers, and profits at their highest for insurers. However, nearly two dozen major corporations including Wal-Mart, Nordstrom’s and Safeway are behind a multi-state lobbying effort to make it harder for workers hurt on the job to collect workers’ compensation benefits. The companies have financed a lobbying group the Association for Responsible Alternatives to Workers’ Compensation (ARAWC) that has already helped write legislation designed to have employers “opt out” of a State workers’ compensation system. ARAWC has already helped write legislation in Tennessee. That group’s executive director Richard Evans told an insurance journal in November that the corporations ultimately want to change workers’ compensation laws in all fifty states. Lowe’s, Macy’s, Kohl’s, SYSCO Food Services, and several insurance companies are also part of the effort. The mission of ARAWC is to pass laws allowing private employers to opt out of the traditional workers’ compensation plans that almost every state requires businesses to carry. Employers who opt out would still be compelled to purchase workers’ compensation plans, but would be allowed to write their own rules governing when, for how long, and for which reasons an injured employee can receive medical benefits and wages. Two states, Texas and Oklahoma, already allow employers to opt out of State-mandated workers’ comp. In that state, for example, Wal-Mart has written a plan that allows the company to select the physician and the arbitration company that hears disputes. A 2012 survey of Texas companies with private plans found that less half the companies offered benefits to seriously injured employees or the families of workers who died in workplace accidents. 

Oklahoma passed an opt out measure in January 2014 and the oil and gas industry along with major retailers such as Hobby Lobby pushed hard for the change. ARAWC wants to take that Texas and Oklahoma model nationwide. Seeing the workers’ compensation provision in Wisconsin’s budget bill as part of this overall “scheme” may seem paranoid, but the history of recent “deform” legislation suggest the connection is at least a possibility. 

See the complete article at http://www.motherjones.com/politics/2015/03/arawc-walmart-campaign-against-workers-compensation.

“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.

Why Injured Workers (and their lawyers) Should Care About Unemployment Compensation Changes

Eligibility for Unemployment Compensation in Wisconsin will change substantially in 2014.  For more than 70 years, an employee would only be found ineligible for Unemployment Compensation if he quit a job or was found guilty of “misconduct”.  Misconduct was defined under a 1941 case as “willful or wanton disregard of an employer’s interest.”  Mere inefficiency or unsatisfactory conduct or failure in good performance as a result of an inability to meet job expectations was not misconduct.

As a result of the aggressive efforts of Republican lawmakers (who ignored “agreed-upon” bill proposed by the non-partisan Unemployment Compensation Advisory Council) many workers will be deemed ineligible for Unemployment Compensation benefits. 

A new basis for disqualifying workers from receiving Unemployment Compensation benefits will be called “Substantial Fault” which may include a series of inadvertent errors made by the employee and violations of work requirements after the employer warns the employee about the infraction.

In addition, a series of situations in which a voluntary resignation would not disqualify a worker from benefits have been severely restricted. 

In the worker’s compensation arena, if an employer terminates an employee because of a work injury, or unreasonably refuses to rehire the employee after a compensable work injury, a penalty of up to one year of wages applies.  The purpose of the statute is to prevent discrimination against employees who have previously sustained injuries, and if there are positions available within the injured employee’s restrictions, to assure that the injured person goes back to work with his former employer.  This statutory protection is an exception to the general rule of “at will” employment in Wisconsin – where an employer can hire, fire, and make employment decisions for any reason or no reason at all except for a discriminatory reason defined by law (like race, gender, religion).  Under the Wisconsin Worker’s Compensation Law, a work injury is essentially an additional protected category.  The worker’s compensation Labor Industry and Review Commission has held that refusal to rehire benefits are not “back pay for Unemployment reimbursement purposes.” 

Under Unemployment Compensation law, no finding of fact or law made with respect to liability under the UC provisions is binding in an administrative proceeding under the Worker’s Comp law.  As such, the Unemployment decision generally is inadmissible in a worker’s compensation hearing.  However, some litigants attempt to use an Unemployment Insurance file for other purposes – beyond the findings of fact and conclusions of law – in a worker’s compensation hearing.  A finding in the Unemployment Compensation arena by an initial Unemployment Compensation deputy, for example, may prove admissible in the worker’s compensation arena on the issue of misconduct, thus providing the employer in a worker’s compensation claim a defense to a refusal to rehire claim.

Mental Stress Claims: Time for the Higher Standard to Go?

Workplace stress is unavoidable. From continual deadlines to unreasonable employers to difficult co-workers, most everyone experiences levels of stress and frustration in their daily job. What if the “normal” situation escalates? An incessant, berating boss. A direction to engage in unethical or fraudulent activities.  Witnessing a crime—or even a death—on the job. Any of these events could cause significant psychological difficulties, medical treatment, and lengthy work absences. Is worker’s compensation available?

Wisconsin does recognize these non-traumatic mental stress claims (so-called “mental-mental” claims), although they are subjected to a higher standard than physical work injuries. (Note: psychological conditions arising from an underlying physical workplace injury—“physical-mental” claims—are handled differently). Under the rules established by the Wisconsin Supreme Court, “mental-mental” claims are subjected to an “extraordinary stress” test for compensability:

mental injury non-traumatically caused must have resulted from a situation of greater dimensions than the day-to-day emotional strain and tension which all employees must experience. Only if the fortuitous event unexpected and unforeseen [the accident or accidental result] can be said to be so out of the ordinary from the countless emotional strains and differences that employees encounter daily without serious mental injury will liability … be found. (School Dist. No. 1, Village of Brown Deer v. DILHR, 62 Wis. 2d 370, 215 N.W.2d 373 (1974)).

Despite litigation and statutory changes over the years, the School District No. 1 “extraordinary stress” standard remains the governing law of the land. One of the main underpinnings for the higher standard was the Court’s hesitancy in granting compensation for mental injuries. The restrictive standard reflected the Court’s worry that Continue reading

Worker Privacy Concerns : Employers’ Access to Employees’ Prior Worker’s Compensation Claims

Republican legislators are feeling their oats these days. Throughout the Midwest, legislators are depriving workers of collective bargaining rights and trying to restrict workers’ rights in workers’ compensation claims.

In Missouri, workers’ compensation legislation was recently proposed that would have permitted an employer to provide a potential hire’s name and Social Security number so an employer could identify the potential employee’s prior workers’ compensation claims and the status of those claims. The Missouri Division of Workers’ Compensation estimated an online data base that would include over a half million claim records with over 10,000 records added each year.

To his credit, Democratic governor Jay Nixon vetoed this proposed online data base which would allow businesses to check a prospective employee’s workers’ compensation claims. He said it was “an affront to the privacy of our citizens and does not receive my approval.” As expected, supporters of the workers’ compensation data base (employers primarily) said the legislation would speed the hiring process and help bosses and workers. Regularly, information about workers’ compensation claims is available by written request and takes about two weeks to arrive.  Supporters of the legislation indicated the law was “preventing workers’ compensation abuses.”

Wisconsin’s workers’ compensation records are subject to Wisconsin public records law, except for records identifying an employee’s name, injury, medical condition, disability, or benefits – which are confidential.  Authorized requestors are limited to parties of the claim (the employee, the employer, and the insurance carrier), an authorized attorney or agent, a spouse or adult child of a deceased employee. Workers’ Compensation Division staff may provide limited confidential information regarding the status of claims to a legislator or government official on behalf of a party. In addition, workers’ compensation staff are not permitted by law to conduct a random search to determine if other injuries have been reported.

If the requestor is the same employer or insurance carrier involved in a prior injury, then access will be allowed. If the requestor is a different employer or insurance carrier but they make a reasonable argument that the prior injury and the current injury are related, access may be allowed. For example, the Department considers injuries “reasonably related” if the two injuries involve the same body areas. 

Simply put, in Wisconsin, at least for the present, claimant information is confidential and not open to the public, other than to the parties to a current claim.

Wisconsin Prescription Drug Monitoring Program Goes Live April 1st

Today’s post is courtesy of the Injured Workers Pharmacy.

The following is the timeline for the rollout of the Wisconsin Prescription Drug Monitoring Program (PDMP), which goes live on April 1st, 2013

January 1, 2013: Dispensers begin collecting data about monitored prescription drugs dispensed to patients.

  • On January 1st, regulations creating the PDMP became effective and dispensers were required to begin collecting information regarding their dispensing of monitored prescription drugs.
  • This information must be submitted to the PDMP beginning April 1, 2013.

March 25, 2013: Dispensers will be able to create “upload accounts” to begin submitting test data to the PDMP database.

  • In early March the Implementation Guide was made available to dispensers explaining the data submission requirements. The Implementation Guide is available on the website by clicking on the Dispenser Portal.
  • On March 25th, dispensers were able to create their PDMP Upload Account utilizing the instructions provided in the Account Creation section of the Implementation Guide.
  • Health Information Designs, LLC (HID) developed and hosts the Wisconsin PDMP database and beginning April 1st, HID will open the link for dispensers to begin submitting test files and required prescription data.

April 1, 2013: Dispensers will be able to begin submitting dispensing data to the PDMP Database. After April 1st, dispensers will need to:

  • Submit information regarding controlled substances dispensed in Schedules II, III, IV or V by state and federal law that require a prescription in order to be dispensed and Tramadol.
  • Submit within 7 days of dispensing a monitored prescription drug.

April 29, 2013: Dispensers must be fully compliant with the PDMP data submission requirements.

  • Dispensers will also have until April 29th to submit the retroactive data collected between January 1st and March 31, 2013.

June 1, 2103: Healthcare professionals and other authorized people will be able to create accounts to obtain PDMP data.

The purpose of the PDMP is to improve patient care and safety and to reduce the abuse and diversion of prescription drugs in Wisconsin. Beginning June 1st, prescribers and pharmacists will have secure, 24/7 access to the PDMP database to review patient prescription histories.

 

Injured Workers Pharmacy is a pharmacy service that helps people injured in accidents return to a productive life by collaborating with the legal, medical, and insurance communities.