Carbon Monoxide Poisoning at Work

Today’s post comes from guest author Anthony L. Lucas, from The Jernigan Law Firm.

Hundreds of individuals have been exposed to dangerous levels of carbon monoxide while at work, including 150 employees at Middleville Tool and Die in Michigan when a hi-lo vehicle malfunctioned emitting carbon monoxide and hydrogen sulfide fumes, and 3 construction workers in Berkley, California who were operating a gas power washer inside a building. Carbon monoxide poisoning is a dangerous risk for workers.

Carbon monoxide is a colorless, odorless, tasteless, and poisonous gas that results from the incomplete burning of natural gas, gasoline, kerosene, oil, propane, coal, and other carbon-containing materials. Workers may be exposed to harmful levels of carbon monoxide in boiler rooms, warehouses, petroleum refineries, steel production, blast furnaces and coke ovens.

Initial symptoms of carbon monoxide poisoning include headache, fatigue, dizziness, drowsiness, nausea, chest pain. Within minutes and without warning, large amounts of carbon monoxide can cause loss of consciousness, suffocation, and death. If caught early, carbon monoxide poisoning can be reversed; however, there may be permanent brain and heart damage from the lack of oxygen to the organs during the exposure.

There are several measures employers can take to prevent carbon monoxide poisoning including installing effective ventilation systems that remove carbon monoxide from work areas and installing carbon monoxide monitors with audible alarms. To be safe, employees should report any situation to their employer that might cause carbon monoxide to accumulate and be alert to any ventilation problems.

If you or someone else is experiencing symptoms of carbon monoxide poisoning move to an open area with fresh air and call 911. For more information on carbon monoxide poisoning, read the U.S. Department of Labor Occupational Safety and Health Administration’s Carbon Monoxide Poisoning Fact Sheet.

Elimination of Appeals Commission: More Updates

As indicated, Wisconsin’s current Budget proposal (now being considered by the state’s Joint Finance Committee in the legislature) proposes a sweeping change to the stability of the state’s workers’ compensation system.

The proposal axes the independent appeals commission, known as the Labor and Industry Review Commission.  The Commission, or LIRC, handles appeals from workers’ compensation, equal rights, and unemployment insurance cases.

An insightful article about this proposal–from the perspective of unemployment– can be found here.  This article (LIRC’s Elimination) is from one of the state’s foremost experts on unemployment, and it offers a deep dive into some of the potential reasoning behind this proposal. I’d encourage all interested stakeholders to take a look at this article in detail.

Opt-Out Act in Oklahoma… and Beyond?!

Today’s post was shared by WC CompNewsNetwork and comes from www.workerscompensation.com

Oklahoma City, OK (WorkersCompensation.com) – In September of 2016, the Oklahoma Supreme Court ruled that the 2013 revision to the state’s workers’ compensation laws contained the Opt-Out Act, which violated the Oklahoma Constitution. Under this Act, an employer could opt out of participating in the Oklahoma workers’ compensation system and instead establish an employee benefit plan, which would be governed by federal law under the Employee Retirement Income Security Act (ERISA).

In the case of Vasquez v. Dillards, the claimant, Jonnie Vasquez, alleged an injury to her shoulder that occurred as a result of lifting boxes in the Dillard’s store where she worked. Dillard’s initially provided benefits but then stopped because it alleged she had a pre-existing condition. The claim was slated to go to a hearing before the Oklahoma Workers’ Compensation Commission, and that’s where the Opt-Out Act became important.

Dillard’s argued that the claim should be heard in federal court as it has jurisdiction over ERISA matters. The federal court in Oklahoma disagreed and sent the case back to the Commission, which held that the Opt-Out Act violated the state constitution in part because it provided for different remedies (federal court vs. state employment commission) for claims.

Dillard’s appealed to the Oklahoma Supreme Court, which agreed with the Commission’s conclusion and held that the Opt-Out Act “creates…

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Employer Work Comp Fraud

Employer fraud exists in worker’s compensation.   Despite propaganda about worker alleged “fraud,” most fraud in the system is actually in the form of employer premium fraud–misclassying employees to avoid paying insurance premiums (especially in certain fields).   Employers can falsely label an employee as an independent contractor or pay them in cash, and then effectively keep them off the books for insurance premium purposes.  

This fraudulent behavior affects not only the specific insurance company with lost premium dollars, but the system and insurance industry as a whole by creating faulty rates. 

A recent article shows the prevalence of employer fraud in Louisiana, as well as the significant amount of money recouped from prosecuting bad behaving employers.

Wisconsin now has greater ability to proscecute fraudulent employers.  As of 2016, a new statute allows for criminal prosecution, by the state Department of Justice, to investigate and prosecute fraud committed by employers and insurance carriers. 

2016-2017 Treatise Edition Available!

The latest and greatest edition of our treatise Wisconsin Workers’ Compensation Law is available.  To order the 2016-2017 edition directly from West publishing, follow this link.   

Legislative enactments changed the substance and structure of Wisconsin’s workers’ compensation system.  The 2016-2017 edition of Wisconsin Workers’ Compensation Law highlights these significant changes and their potential impact, including:

  • Wisconsin’s 2015-2017 Budget Bill (2015 Wis. Act 55) altered the organizational structure involved with the Workers’ Compensation Act.  These changes are treated in this edition. 
  • The statute of limitations for traumatic injuries was reduced from 12 years to six (6) years for injury dates on/after March 2, 2016.  The statute of limitations for occupational exposure claims remained at 12 years.
  • If a worker suffers a traumatic injury (after March 2, 2016) resulting in a permanent partial disability rating (PPD), a physician’s report on PPD must include an opinion regarding the approximate percentage of disability caused by the traumatic injury and, if applicable, the percentage of disability caused by “other factors” before or after the injury.
  • All indemnity benefits are barred if an employee violates an employer’s consistently enforced policy concerning alcohol and drug use when the violation is “causal to” the worker’s injury.  Previous law allowed a potential reduction of a worker’s benefits by 15% if the injury was the result of intoxication or use of controlled substances.
  • For injuries on/after March 2, 2016, temporary total disability benefits can be suspended when an employee is released to limited duty post-injury and subsequently suspended/terminated for “misconduct” or “substantial fault” as defined under the unemployment insurance law.

Why Immigration Policy Changes Will Probably Impact Workers Compensation

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore in Nebraska. Very interesting read for potential impact on Wisconsin workers and employers.

In theory, the changes to immigration policy proposed by President Trump shouldn’t impact workers compensation in Nebraska. Workers compensation laws are state laws and Nebraska, like most states, awards workers compensation benefits regardless of immigration status.

But theory is one things and reality is another.

Mike Elk of Payday Report recently ran an article detailing that workplace deaths among Latinos were the highest in 2015 than they had been since 2007. This spike was attributed in part to aggressive immigration enforcement by the Obama administration which immigrant advocates believed made workers afraid to speak out about working conditions over fear of deportation.

During the Obama administration tougher immigration policies were at least coupled with tougher and even innovative workplace safety enforcement by OSHA. In the Trump era, workplace safety enforcement is expected to be curtailed and new OSHA rules are poised to be rolled back.

Immigration and workers compensation is often thought of in the context of Mexicans and central Americans working in industries like meatpacking and construction. This is a misconception, the meatpacking industry in Nebraska and elsewhere employs an uncounted but significant number of Somali workers. Somalis are one of seven nationalities banned from entering the United States under President Trump’s order. Ironically Somalis were recruited heavily into meatpacking work after raids during the Bush administration lead to the deportation of Latino meatpacking workers. Somalis had refugee status so there were few questions about their immigration status or eligibility to work legally. Under the new executive order, their immigration status is less secure and they may be less likely to speak out about working conditions.

A smaller but growing number of Cubans are coming to Nebraska for meatpacking work as well. Like Somalis, Cubans are deemed to be refugees so their ability to work lawfully is not a question for employers. However in the waning days of Obama administration, President Obama ended automatic refugee status for Cubans in an effort to normalize relationship with the Castro regime. There was little public outcry over this order like there was for the so-called Muslim Ban. However because of an executive order, Cuban nationals working in Nebraska may be less inclined to speak out about working conditions or claim workers compensation benefits due to newfound uncertainty over their immigration status.

Gorsuch, Chevron and Workplace Law

Judge Gorsuch

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

Employers and their attorneys are widely hailing President Trump’s nomination of 10th Circuit Court of Appeals Judge Neil Gorsuch to the U.S. Supreme Court. Part of the reason that management-side lawyers are praising Gorsuch is his position on Chevron deference. Gorsuch’s views on Chevron could affect how workplace laws are interpreted and how they apply to workers.

Chevron deference is a legal rule that a court will give the benefit of the doubt about the interpretation of the law to how the executive agency charged with enforcing that law understands the law. Gorsuch has criticized Chevron on separation of powers basis, stating that Chevron deference gives too much power to the executive branch at the expense of the legislative and judiciary branches. Recently, government agencies have been interpreting employment laws in a way that is more favorable toward employees. Recent rules issued by the Equal Employment Opportunity Commission regarding the Americans with Disabilities Act are a prime example.

Many workers who get hurt on the job are told that they must come back to work with no restrictions. Chevron deference could be a powerful legal tool for workers faced with such policies. The new EEOC regulations on the ADA outlaw 100-percent-healed policies or policies that require plaintiffs to return to work without restrictions. In the EEOC guidance on the issue, the EEOC cites Kaufman v. Peterson Health Care VII, LLC 769 F. 3d 958 (7th Cir. 2014) as an example of policies that they believe to be unlawful under ADAAA. This case represents a subtle but real shift from current 8th Circuit law as stated in Fjellestad v. Pizza Hut of America, 188 F. 3d 949, 951-952 (8th Cir. 1999) where the 8th Circuit joined other federal circuits that held that failure to engage in an interactive process in accommodating a disability was not per se discrimination, and that there was no duty to engage in the interactive process. The EEOC’s interpretations of the new regulations still require that a plaintiff be able to perform the essential functions of the job with or without reasonable accommodation.

But as indicated by Kaufman, courts may be less likely to dismiss cases before trial, or in legal terminology, to grant summary judgment, on the issue of whether a plaintiff could perform the essential functions of the job with or without accommodation if the defendant does not engage in an interactive process or summarily decides that an employee should not be allowed to return without restrictions.

The fact that there is a split between regional appellate courts, a so-called circuit split, over “100 percent healed” policies increases the chances that the U.S. Supreme Court will decide whether 100-percent-healed policies violate the ADA. Another issue where there is a circuit split that the U.S. Supreme Court will decide is the legality of mandatory arbitration clauses in employment agreements.

Many workers unwittingly give up their rights to have employment-law disputes heard in court when they agree to mandatory arbitration clauses as a term of employment. In D.R. Horton Inc., 357 N.L.B. No 184 (2012) the National Labor Relations Board ruled that mandatory arbitration clauses prohibited Fair Labor Standards Act collective action cases because they interfered with protected concerted activity under 29 U.S.C. §157 and 29 U.S.C. § 158. In Lewis v. Epic Systems, 823 F. 3d 1147, 1154 (7th Cir. 2016), the 7th Circuit struck down a mandatory arbitration clause partly based on giving Chevron deference to the NLRB’s decision in D.R. Horton. The 9th Circuit agreed with the 7th Circuit in Morris v. Ernst and Young, LLP, No 13-16599 (Aug. 22, 2016). Unfortunately for plaintiffs, the 8th Circuit disagreed with the D.R. Horton decision in Owen v. Bristol Care, 702 F. 3d 1050 (8th Cir. 2013).

If confirmed, Gorsuch would be unlikely to give much weight to the opinions of the EEOC or NLRB in interpreting employment laws. Chevron deference is an unpopular concept with pro-business conservatives. Recently, the GOP-controlled House of Representatives passed legislation that, if enacted, would abolish Chevron deference.

Conversely, Chevron deference is a popular concept with progressive employee and civil-rights advocates, as it allowed the Obama administration to expand employee protections in the face of a hostile Congress. But with the advent of the Trump administration and his immigration policies, progressives have a newfound appreciation for separation of powers.

Also, employee advocates probably will not like many of the new rules and regulations issued by Trump appointees such as Labor Secretary nominee Larry Puzder. A prospective abolition of Chevron could be helpful to challenging rules made by a Trump administration. An example from the last Republican administration is instructive. In 2007, the U.S. Supreme Court in Long Island Care at Home Ltd. v. Coke, 551 U.S. 158 (2007) gave Chevron deference to Bush administration rules to exclude home health aides from coverage under the FLSA. It was nine years later that the rule was overturned, giving Chevron deference to Obama administration rules regarding home health aides and the FLSA.

MORE changes to Work Comp: Elimination of Court Reporters & Appeals Commission?

Budget Bill Proposes Eliminating Court Reporters

Wisconsin’s Governor recently proposed significant changes to Wisconsin’s best-in-nation worker’s compensation system.  For the second budget cycle in a row, the Governor’s Budget Bill wants to drastically change the structure of worker’s compensation cases.

The Budget Bill, revealed on February 8, 2017, proposes two main changes : (1) the elimination of court reporters in litigated worker’s compensation trials; and (2) the elimination of the independent body that reviews judge decisions.

A base level concern exists, again, because these proposals were made outside the stabilizing force of the Wisconsin Worker’s Compensation Advisory Council.   As mentioned at length in this forum, the Advisory Council, with its balanced membership of labor and management representatives, has produced reasoned, incremental changes historically–creating a beneficial system for all stakeholders.  Hopefully the Advisory Council will weigh in on the other potential effects of the unveiled Budget Bill proposals.

Each of the proposals significantly impact the state’s work comp system:

Elimination of Court Reporters:

The Budget proposes eliminating the use of statutorily-required stenographic court reporters in worker’s compensation trials.  The specific proposal is to eliminate necessary court reporters (who ensure decorum in the court room, properly manage exhibits, make sure parties do not talk over each other, and create an accurate and legitimate transcript) in exchange for some type of ill-defined audio recording equipment.

Employers and carriers in our state—facing six to seven figure exposures—will have concerns about facing such liability based on questionable audio technology.  Imagine if at a critical point in trial, a witness talks to softly or inaudibly, resulting in a blank area in the transcript.  No stakeholder wants this, and our live court reporters ensure that it does not.

Also, the circuit court (and further appellate courts) want an accurate, undisputed transcript of the lower trial proceedings.   If the audio is poor, unclear or inaccurate, we may be forced to re-litigate the trial.  A redo will increase system costs.  Further, if court reporters are eliminated, the private parties will bear the costs by hiring their own court reporters.  We then may face disputes about the “real” transcript between the state’s audio recording (which will need to be transcribed for appeals) and the privately-hired court reporter transcript.

Wisconsin is not alone in its use of court reporters in worker’s compensation trials, as an informal poll revealed the use of court reporters in IN, PA, CT, IA, NC, MT, NE, WY, SC, CA, MA, GA, KS, IL, LA, NY, WA…and the list goes on.

Near universal opposition exists to this unnecessary proposal to eliminate live court reporters.  The State Bar litigation section board voted unanimously to oppose this proposal.  Moreover, all of the three main groups of attorneys that represent clients in worker’s compensation proceedings oppose this proposal.   The Wisconsin Defense Counsel (defense attorneys), the Wisconsin Association of Justice (injured worker attorneys), and the Wisconsin Association of Workers’ Compensation Attorneys (bi-partisan group) jointly drafted a letter to the Governor voicing their opposition (PDF link).

All parties to litigation want a fair and accurate depiction of the trial proceedings, and court reporters help secure that justice.  This proposal faces stiff opposition.

Elimination of the Appeals Commission

Traditionally, the Labor and Industry Review Commission (LIRC) is an independent body of three political appointees that rule on worker’s compensation, unemployment, and equal rights appeals.  The cases are litigated in front of administrative law judges and then the appeal is to LIRC, who have a virtual de novo review.  The appeal from LIRC is direct to circuit court, which has a very deferential standard and will uphold the LIRC decision if there is any “credible and substantial evidence.”  Barring a legal issue, the circuit court upholds the factual and credibility findings of LIRC.

LIRC has been in existence in some form since the inception of the worker’s compensation act in 1911.  LIRC actually serves to define much of the worker’s compensation case law—for over one hundred years.  When I look at our treatise, I’d guess 80% of the cited cases are LIRC cases.  Judges use the LIRC decisions in making determinations.

The current Budget proposal is the complete elimination of LIRC.  However, as opposed to a direct appeal from a judge determination to circuit court, the proposal is to substitute the Division Administrator for LIRC.  Thus, litigants would trial cases to the administrative law judge, with an appeal to the state Division of Hearings and Appeals Administrator (currently Brian Hayes) as the intermediate level of appeal.  Appeal from the Administrator’s decision would be to circuit court–with no apparent change in the standard of review by circuit court.

The upshot is to give much authority and discretion back to the actual administrative law judges–the ones who actually observed the witness and heard the evidence.  One of the statutory proposals indicates that the “findings of fact” by the judge “shall, in the absence of fraud, be conclusive.” That appears to give even less discretion to the Administrator’s ability to review judge decisions.

There is much ambiguity about the reasoning behind these proposals, as well as the potential impact.  I’ve already heard from a number of individuals that the proposal comes from issues within the unemployment insurance arena (and unemployment appeals fill up the majority of LIRC’s docket).  If true, worker’s compensation appeals are being swept up with the issues within unemployment.

However, if implemented, the practical effects are drastic.  Presumably, the Division Administrator would likely be more deferential to the sitting administrative law judges (i.e., approve more ALJ decisions) and probably produce a faster appeal turnaround time than the current LIRC process.   The catch is that it remains unknown how the Adminstrator would handle the influx of worker’s compensation appeals. Would there need to be additional staff?  (if so, budgetary costs need to be considered).  If no new staff, the simple time constraints lead to the likelihood of rubberstamping judge determinations.

In the future though, the Administrator position changes.  Future appointees could have their own political proclivities that could impact the system.  Also, the proposal may have just eliminated 100 years of case law as guidance for future judicial determinations.  The budget is devoid of what happens to the precedential value of past LIRC decisions.

Accordingly, further details really need to be revealed about the proposed plan before the stakeholders can weigh in.

One further item is known, based on the intersection of the two proposals.  If the system eliminates LIRC and provides more deference to the underlying judge determination, the value of court reporters increases exponentially.  If the judge factual determination is conclusive, a reviewing circuit court certainly wants an accurate, credible, and decipherable transript of those all-important findings.

We will explore the further Budget process and these proposals as they progress…

For further information:

The full statutory text of the Budget Bill (2017 Assembly Bill 64/ 2017 Senate Bill 30) can be found here, with a summary found here.