Tag Archives: Wisconsin

“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.

 

Domer Law Listed In Best Law Firms by U.S. News-Best Lawyers®

Domer Law was recently listed in Best Law Firms by U.S. News-Best Lawyers®

Domer Law was recently listed in the 2013 Best Law Firms by U.S. News-Best Lawyers®.  The firm was listed in the top tier (Tier 1) in Milwaukee, Wisconsin for Workers’ Compensation Law – Claimants.  According to U.S.News – Best Lawyers® , the “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. 

Both Tom Domer and Charlie Domer are listed in Best Lawyers for their continual advocacy for injured workers.  At Domer Law, we are honored by this recognition, and we will continue to fight daily for the rights of Wisconsin’s injured workers.

WCRI: Wisconsin Injured Workers Motivated to Return to Work (Part 1)

Injured workers in Wisconsin are more motivated to return to work-- thanks to the state's workers' compensation system.

With unemployment numbers high, injured workers face increasing challenges in returning to work.  A study by the Workers’ Compensation Research Institute (WCRI) titled “Factors Influencing Return to Work for Injured Workers: Lessons From Pennsylvania and Wisconsin” indicates that those two states have reported better return- to- work outcomes compared to other states, even during economic downturn.

This study focuses on “long term unemployed injured workers” (defined as workers who have been out of work for three months or more). These workers, unlike the vast majority of injured workers highly motivated to return to work after an injury, face particular challenges in returning to work – challenges that are even greater considering economic hard times.

The study tried to identify which worker’s compensation systems features facilitated return to work for long-term unemployed injured workers, and which features serve as barriers to return to work for these workers.

 

The Wisconsin Scenario

Earlier research done by WCRI indicated that workers in Wisconsin have higher rates of return to work, and workers tend to return to work sooner than in other states.  The reason: Employer and injured worker motivation to return to work, as well as multiple Wisconsin workers’ compensation system features.

One of the features which encourages return to work  in Wisconsin is the transition between temporary disability and Permanent Partial Disability benefits. Wisconsin encourages incentives for both the worker and the employer to return workers with permanent restrictions to work, and for injured workers to accept offers of legitimate employment.

 

“The Healing Plateau”

 Unlike many other states, Wisconsin’s clear standards for terminating temporary disability benefits encourages return to work.  As they are effectively communicated by employers and insurers, and well understood by injured Continue reading

100 Years! – Today.

Wisconsin workers' compensation celebrates its 100th birthday

Wisconsin workers' compensation celebrates its 100th birthday

Today marks 100 years of protection for Wisconsin’s workers under the Worker’s Compensation Act.  Wisconsin led the nation in this progressive push for employee rights.  In 1911, the Wisconsin legislature passed the first effective Worker’s Compensation law in the country.   A test case was brought before the Wisconsin Supreme Court, and one hundred years ago, today, the Court, in Borgnis v. Falk, 147 Wis. 327, 133 N.W. 209 (November 14, 1911), upheld the constitutionality of the Act—ushering in the very first, valid worker’s compensation law in our country.

The “grand compromise” in our state has served both sides for the entire century.  Employees gave up the right Continue reading