Monthly Archives: March 2012

NFL Concussion Suits Barred by “Exclusive Remedy”? Why can’t I sue my employer?

We get calls every day from angry injured workers who want to sue their employer for negligence. It could be an employer removing a guard on a machine, a foreman ignoring a safety rule, or an injury caused by an employer’s failure to train an employee. Many employees are genuinely and bitterly disappointed when we explain a worker cannot sue his employer for negligence and that his only “exclusive” remedy is through worker’s compensation.

Aaron Rodgers concussionIn liability suits filed by hundreds of former pro football players who suffer from concussion-related injuries, the players claim the league negligently mislead them about the dangers of concussions. Attorneys for the injured players indicate it is likely the NFL will argue that football players should be covered exclusively by worker’s compensation.

The deal cut by employers and workers in Wisconsin in 1911 still stands: Employers give up the right to common law defenses (contributory and co-employee negligence, assumption of risk) for a fixed schedule of benefits; employees give up the right to sue their employer in tort (and to recover tort-like damages) in return for worker’s compensation benefits. No matter how nefarious the employer or Continue reading

Beware Part Time Employment

Workers' Compensation will only cover you for the specific job on which you got hurt.

Wisconsin pays worker’s compensation benefits based only on the job on which an employee works, even if the employee’s injury makes it impossible for him to work in his regular job. In these difficult economic times, many workers are forced to take a second part time job to supplement their incomes. Unfortunately if the worker is hurt at the part time job, only the wages earned from the part time job will be used to calculate worker’s compensation benefits, even if an injury on the part time job means the worker will not be able to return to his full time job.

For example, a cook re-hired at a former wage by the restaurant where he was hurt could not claim a Loss of Earning Capacity based on his inability to return to his second job as a cab driver. Continue reading

Workplace Stress Can Make You Sick

Today’s article is a guest post by our colleague Jon Rehm of Nebraska.

In this economy where hirings are seldom and lay-offs are frequent, the American workplace is becoming a tough territory to navigate. The Centers for Disease Control (CDC) and Prevention research says that Americans now work more hours than both Japanese and Western European workers.

And this is a serious concern, because workplace stress has been established to have a clear and direct link to negative health consequences.

A recent European study showed that people who work long hours(11+) are more than twice as likely to experience major depression than those who work 7-8 hours a day. In a different study, scientists discovered that the risk of heart diseases among stressed workers are 67% greater.  Meanwhile, Continue reading

Overtime Counts Towards Workers’ Compensation Awards

Workers who regularly work overtime get their time-and-a-half rates figured in the computation for disability benefits.

An Oregon Court of Appeals recently ruled that a claimant’s regular work includes overtime for purposes of determining worker’s compensation benefits.  For Wisconsin workers, this issue was settled decades ago.  Regularly scheduled overtime counts towards calculating the employee’s average weekly wage, which is the basis for payment of workers’ compensation benefits.

Workers in Wisconsin are entitled to two-thirds of their gross average weekly wage before taxes.  All workers’ compensation benefits are tax free.  The idea of paying two-thirds was to reflect most workers’ average take home pay, so they would suffer no significant wage loss during a period of injury.


Computation for Wisconsin Workers’ Benefits

For Wisconsin workers, the average weekly wage is the higher of the employee’s hourly wage multiplied by the hours regularly scheduled to work at the time of injury or, the actual gross earnings during the 52 week period before the injury divided by the number of weeks worked during that period.  The higher value is the employee’s average weekly wage for benefit calculation purposes.

When an employee is injured, the employer routinely submits a WKC-12 report to the worker’s compensation insurance company, which specifically declares the   injured worker’s average weekly wage. I often see reports that omit overtime from the calculation.


Worker’s Regular Schedule

Computation for injury benefits should be based on a worker’s regular schedule. A regular schedule refers to the typical work schedule designed by the employer for employees doing the injured worker’s type of work  for at least a 90-day period prior to the date of the injury.  This means that overtime hours may or may not be part of the regular schedule.

If the injured worker was regularly scheduled to work overtime hours (with the corresponding premium pay – usually at time and a half) for at least a 90 day period prior to the injury, then the hourly rate including the overtime premium pay, must be used to calculate the average weekly wage.

For example, if an employee has an hourly rate of $10, then his workers’ compensation benefits should be computed based on a $400 average weekly wage. However, if the same employee has a regularly scheduled 45-hour work week at least 90 days before he incurred his injury, then he has an average weekly wage of $475.00 (earning $10 per hour plus time and a half after 40 hours= $10 x 40 plus $10 x 15). This amount, not the $400 basic wage, should be used to compute for his benefits, thus yielding an additional $50 per week in Temporary Total Disability benefits.

Additional items of value are also included as part of the average weekly wage.  Specifically, these include incentive pay, shift premium pay, tips, profit sharing, and bonuses.  Additional things of value include employer-paid room and board, free meals, rent remission, and housing or apartment costs including utilities.  Unfortunately for Wisconsin workers, fringe benefits like employer-paid health insurance and employer contributions to 401(k) investment plans are not part of the average weekly wage calculation (Theuer v. LIRC 2001, Wi 26).



Photo Credit: graur razvan ionut /

Injuries to In-Home Care Providers: Compensable?

Home care providers may or may not be considered to be employees of the person they are caring for.

A growing segment of the workforce involves individuals providing in-home medical care and assistance to private individuals. The assistance can range from a few hours per day, to 24/7 medical and domestic care for incapacitated individuals.

If the in-home care provider gets hurt while performing work duties, does this entitle the care provider to worker’s compensation benefits?

In a previous blog post, we discussed nannies, baby-sitters and domestic servants. “Home care providers” are treated differently (though an argument could be made that the care recipients from a nanny or from an in-home care provider are equally dependent — a baby and an elderly individual often have similar needs). The Commission held that persons providing personal/medical care to an “invalid” are not domestic servants (and thus, not statutorily exempt from the Act’s coverage). (Ambrose v. Harley Vandeveer Family Trust, WC Claim No. 86-39393 (LIRC Feb. 28, 1989); Winkler v. Vivian Smith, WC. Claim No. 1998059089 (LIRC Jun 29, 2000))

The Department generally considers that persons hired in a private home to give primary care to an individual whose duties involve assisting  in walking, bathing, preparing meals and special diets, supervising use of medications and exercise therapy and other duties commonly associated with the meaning of primary-care giver, meet the definition of home-care provider.

 If the domestic servant exemption does not apply, the question is: are home care providers to be considered as employees of the cared-for individual?

Interestingly, another statutory exception which may apply involves that of the cared-for individuals enterprise, as the person providing personal/medical care does not perform these services as part of the trade, business, occupation or profession of the cared-for individual (102.07(4)(a)2). Since the cared-for individual is not in the business of providing in-home care, there would be no worker’s compensation coverage, unless the cared-for individual elects to award these. Thus, the Department, based on this statutory exception, suggests that no employer-employee relationship exists under the Act.

As the Commission has left this issue largely undecided in the case of a private cared-for individual hiring their care provider, arguments exist both for and against coverage. Alternatively, if a county referred the home care provider to the individual and the county set the provider’s rate of pay, the county is the employer for worker’s compensation purposes. (See Cobb v. County of Barron, WC Claim No. 2006-043003 (LIRC Dec. 11, 2008); Nickell v. Kewaunee County, WC Claim No. 94064155 (LIRC Sept. 24, 1996)).


Nannies, Baby-Sitters, and Comp Coverage: Yes, Wisconsin Still Has “Domestic Servants”

Today’s post has been co-authored with my colleague Nathan Hammons.

Most families in Wisconsin have hired a baby-sitter or nanny to watch their children. The pay generally is in cash for a defined period of time. Does the situation create an employer-employee relationship, entitling an injured baby-sitter to worker’s compensation benefits?

Under the Worker’s Compensation Act, most employers in the state are required to provide worker’s compensation coverage for their employees. Employers of ‘domestic servants’, however, are completely exempt from the requirement. (Wis. Stat. §102.07(4)(a)1.) Unfortunately, neither the Act or Wisconsin courts provide a definition. So, what exactly is a domestic servant?

Significantly, the Department appears to treat the prevalent positions of in-home baby-sitter or nanny as exempt from the Act, which could expose the in-home “employers” to general negligence claims.

The name ‘domestic servant’ is antiquated. It brings up old images of butlers, maids, and other people toiling away in the mansions of royalty and the wealthy. Indeed, search Wikipedia for ‘domestic servant’ and you’ll be directed to ‘domestic worker’, the modern term and one that doesn’t imply inequality in the workplace. Without citation or authority, a Department publication indicated that it has “consistently ruled that persons hired in a private home to perform general household services such as nanny, baby-sitting, cooking, cleaning, laundering, gardening, yard and maintenance work and other duties commonly associated with the meaning of domestic servant, meet the definition of domestic servant intended by the Act.” Significantly, the Department appears to treat the prevalent positions of in-home baby-sitter or nanny as exempt from the Act, which could expose the in-home “employers” to general negligence claims.

Consequently, nannies Continue reading

Leading Causes of Workplace Injuries in Wisconsin, and in the US

Employers who invest in ergonomic chairs for the office may be on to something: back injuries are, to date, the most significant liability exposure.

Five leading causes of workplace injuries account for nearly ¾ of the nation’s worker’s compensation costs.  Research compiled by the Liberty Mutual Research Institute for Safety, using data collected on injuries causing at least six missed work days, listed the following causes of workplace injury:

  1. Overexertion, injuries caused by lifting, pushing, pulling, holding, and carrying;
  2. A fall onto the same surface (16% of the total injury cost);
  3. Falls from a height;
  4. Bodily reaction (injuries from bending, climbing, reaching, standing, sitting, slipping);
  5. Being struck by an object.

Rounding out the top ten are: (6) injuries caused by highway incidents; (7) body parts caught in machines, or (8)body parts struck against an object; (9) repetitive motion injuries; and (10)workplace assaults.

The Wisconsin Division of Worker’s Compensation Research and Statistic Bureau categorizes injuries by the body part and nature of injury (amputation, burn, strain, for example).  According to their statistics, strains and lifting injuries regularly represent the most prevalent type of injury.

Injuries involving the lower back area outstrip any other body part in Wisconsin followed by knees, shoulders, and fingers.  In terms of causation, lifting, pushing, pulling and straining are the most prevalent causes.

Back injuries represent a significant liability exposure to employers, primarily because Continue reading

How does Wisconsin “Rank” in Workers' Comp?

Wisconsin scored a B for Workers' Comp, but only because the study did not consider benefit level and ease of obtaining legitimate claims.


On a scale of A to F, Wisconsin scored a B on a list of 2011 State report cards released by the Work Loss Date Institute (WLDI).  For the last ten years , the Institute has tracked trends and gives each of the states a grade and a tier ranking based on their performance.

The State report cards are based on data from OSHA forms 300 and 200, on which employers report incidents of injury and illnesses.  The OSHA reports form the basis for state by state rating of workers’ compensation performance, which help employers, insurance carriers, State governments, and workers’ compensation departments to assess and analyze their own programs.

The State report cards emphasize one primary measure of outcome: whether workers get better and go back to work.   One shortcoming of the report is that it does not track medical costs.  Five different outcomes  are measured and compared among the states for each year.

  1. Incidents rates;
  2. Cases missing work;
  3. Median disability durations;
  4. Delayed recovery rate; and
  5. A key condition, or Low back strain

With over ten years of data, the WLDI has enough information over a long enough time frame to differentiate states adequately.  The best performing states were Utah, Arkansas, and Minnesota (graded A).  The worst: Kentucky and New York, with a grade of F.  Wisconsin ranks in the middle tier, graded a B.  States surrounding  Wisconsin include Iowa with a B, Minnesota with an A, Michigan with a B, and Illinois with D.  State ranking can be viewed here.


Note: The study is limited in that it does not grade by benefit level or by the difficulty or ease of obtaining workers’ compensation benefits. On this criteria Wisconsin ranks fairly high.  It provides benefits for injuries and illnesses using a “more probably than not”  medical causation standard..  It also provides for mental injuries and does not deny benefits for injuries involving alcohol or drug use, both of which are denied in many states.



Photo Credit: Maggie Smith /