Monthly Archives: September 2012

Should Same-Sex Survivors Be Entitled To Death Benefits?

In Alaska, a woman is seeking worker’s compensation death benefits after her same-sex partner was murdered at work (See article in Business Insurance.)  Ordinarily and in most states, the dependent spouse of a worker killed on the job is entitled to monetary compensation as a “death benefit.” Here, the surviving same-sex woman is arguing that is unconstitutional to prevent her from collecting death benefits that she would have been awarded had she been able to marry her same-sex partner. The resolution of this issue should be interesting.

In Wisconsin, same-sex domestic partners are allowed to collect depending death benefits under the Wisconsin workers’ compensation law if certain criteria are met. If an injury causes death, an individual wholly dependent on him or her for support (e.g., live-in spouse, dependent child under the age of 18) is eligible for a death benefit that is equal to four times the worker’s annual wages. Effective July 1, 2009, amendments to the Worker’s Compensation Act include dependent’s death benefits for same sex domestic partners, as defined a new Chapter 770

This does not mean that same-sex partners living with each other or in long-term committed relationships are automatically entitled to a death benefit. Same-sex partners must actually register as “domestic partners” with the government. Specifically, to be a dependent for purposes of worker’s compensation, eligible domestic partners must do the following: (1) Satisfy all the criteria for forming a domestic partnership contained in §770.05; and (2) Sign and file a declaration of domestic partnership with the office of the registrar of deeds of the county where they reside. The criteria for forming a domestic partnership contained in §770.05 includes: the individuals must be 18 years old, the individuals must be of the same sex, not married or in a domestic partnership with anyone else and have the intent of sharing a residence.

Therefore, if the Alaska case occurred in Wisconsin and the same-sex partners had registered as “domestic partners,” the surviving partner would be entitled to death benefits under Wisconsin workers’ compensation law.

Wacky Worker’s Comp Week. Stripper Denied Worker’s Comp Benefits

The South Carolina Supreme Court found that an exotic dancer was an “Independent Contractor,” not an employee.

What a wacky week in the world of worker’s compensation.

We found that a stripper who was seriously injured by a bullet fired at the club where she was working was not entitled to worker’s compensation benefits because the South Carolina Supreme Court found she was not an employee, but rather a “Independent Contractor.” She had serious intestinal, liver, pancreas, kidney, and uterus injuries, and had her kidney removed – which rendered her unemployable as an exotic dancer. She claimed she was an employee because the club controlled her activities, including telling her when to dance, what music to dance to, and required her to strive to get VIP dances.

In Wisconsin, an employer’s inclination to mis-categorize an employee as an “Independent Contractor” can be tempting: avoidance of payment of worker’s or unemployment compensation premiums, payroll and Social Security taxes, and other employee benefits.

The Court of Appeals disagreed, indicating she decided the manner in which she performed her dances to satisfy the Boom Boom Room Club customers. In Wisconsin, an employer’s inclination to mis-categorize an employee as an “Independent Contractor” can be tempting: avoidance of payment of worker’s or unemployment compensation premiums, payroll and Social Security taxes, and other employee benefits. For many years the Courts and the Commission wrestled with the legal distinction between Independent Contractors and employees. Workers who maintained a separate business and held themselves out to render service to the public were Independent Contractors, if not employers themselves; all other workers were employees.

The legislature clarified the test for determining Independent Contractors status, indicating an Independent Contractor must maintain a separate business with his or her own office equipment, materials and other facilities, and hold or apply for a Federal Employer Identification Number. Seven other specific criteria apply. Any single criterion that rules out many Independent Contractors like the absence of a Federal I.D. Number or filing self-employment tax returns makes alleged “Independent Contractors” employees and covered under worker’s compensation in Wisconsin. Many employers including trucking companies, temporary help agencies, and up to and including exotic dancers are asked to sign Independent Contractor contracts when in fact they really are employees under worker’s compensation.

Long Hours Linked To Health Problems And Lower Productivity

Providing employees a chance to work in teams, and socialize during breaks actually increases productivity.

Today’s post comes from guest author Deborah Kohl from Deborah G. Kohl Law Offices.

In Wisconsin, mental disability claims have to meet a higher standard–an extraordinary stress test. Thus, these claims are more difficult to pursue in Wisconsin, but the suggestions about a better workplace are beneficial.

Today, we have a guest post from our colleague Deborah Kohl of Massachusetts. Many people are surprised to learn that mental disability claims due to workplace stress are compensable by workers’ compensation. Unfortunately, claims like these are on the rise as people work longer hours and feel the pressure of an increasingly competitive working environment. Recent studies on mental health and the workplace have led researchers to discover that, over time, conditions such as extended working hours and long periods of solitary workcan lead to decreased productivity, anxiety, and even major depression.

Employers can create conditions that are more supportive of mental health by taking simple steps like allowing workers to take breaks where socializing is permitted.

While it may seem initially counter-intuitive, studies show that in the long run, policies like these can lead to a more productive workplace. Here are a few tips workers can use to stay mentally healthy at work:

  • Form friendships in the workplace. A positive relationship with even a single colleague can make a big difference in combating loneliness and depression. A friend at your office could provide an ear when you really need to release some steam or just take a mental break from an intense task.
  • That said, make a distinction between work and leisure, and make time for social activities outside the workplace. Continue reading

If My Employer Paid My Salary, Why Do I Still Need To File A Claim?

Today’s post comes from guest author Matthew Funk from Pasternack Tilker Ziegler Walsh Stanton & Romano.
While this post deals with NY law, the recommendation on filing is appropriate for WI cases as well.

QUESTION: My employer paid my salary while I was injured and out of work. Do I still have to file a workers’ compensation claim?

ANSWER: Yes. There is more to a claim than payment while out of work.

Joe’s boss, Mike was a great guy. In fact, when Joe got badly hurt at work and was out for weeks, Mike paid Joe’s salary every week. When Joe got back to work, he hesitated filing a Workers’ Compensation Claim. After all, Mike had paid his salary the weeks he was out. And Joe didn’t want to appear ungrateful or greedy. What should he do? File, Joe!! File!!!

If Mike drew Joe’s salary paid from Joe’s accrued sick or vacation time, Joe would not get that time back unless he filed a claim. That means the eight weeks of vacation and sick time Joe had coming to him had been put toward the time he spent recuperating at home. Unless Joe submitted a claim, he’d have to start from scratch to build up vacation and sick time.

“Aside from the monetary award, there is lifetime medical coverage for a Workers’ Compensation Claim.”

The payment of wages is only a small portion of a Workers’ Compensation Claim and NOT the only thing Joe is entitled to. In an earlier column, an injured worker can make a claim for a schedule loss of use if an extremity is injured even if salary was paid. More importantly, Continue reading

The “As Is” Rule: Disabled Workers Get Hurt More Often

A pre-existing weakness does not disqualify the worker from worker’s compensation benefits

A study by the Center for Injury Research and Policy (CIRP) found that workers with disabilities were more than twice as likely to experience occupational injuries than those without disabilities. The study was based on data obtained by the National Health Interview Survey (NHIS) which used computer-assisted personal interviews to collect information about injuries. The researchers were part of an institute at Nationwide Children’s Hospital and the Ohio State University. The study was published online in the American Journal of Public Health. The study also found that people with disabilities experienced non-occupational injuries more than three times those for workers without disabilities. The author of the study noted that increases in occupational injuries to workers with disabilities showed the need for better accommodation and safety programs in the workplace.

In most States, as in Wisconsin, a basic principle of law is that the presence of a pre-existing weakness does not disqualify the worker from worker’s compensation benefits.

From a worker’s compensation perspective, disability and lost work time stemming directly from a work accident presents a straightforward assessment on causation. The circumstances of an accidental injury superimposed on a pre-existing, progressively deteriorating condition is a trickier question. In most States, as in Wisconsin, a basic principle of law is that the presence of a pre-existing weakness does not disqualify the worker from worker’s compensation benefits. This approach is not unique to worker’s compensation.  It has always been a basic principle of Continue reading

Injuries Arising Out of Employment – Is the Concept Shrinking?

A headline article noted the following: “Virginia Court: Waiter’s choking on quesadilla did not arise out of employment.” The Virginia Court of Appeals ruled a waiter who was injured while working attempting to swallow a piece of quesadilla too big for his esophagus cannot collect worker’s compensation benefits. The injury caused an esophageal perforation and collapsed lung. The Court, however, found the injury was not as a result of an actual risk of employment. The claimant worked as a host and waiter at a local T.G.I. Friday’s restaurant and part of his work responsibilities was to make food recommendations. T.G.I. Friday’s conducted food tasting demonstration programs to introduce menu items to its staff so the staff could describe the taste to customers and recommend these items. The tastings were provided free to the employees and while the employees were on the clock. T.G.I.Friday’s required attendance but no employee was forced to eat anything they did not want to eat. The Worker’s Comp Commission found that since the worker was not required to taste anything, the injury did not arise out of an actual risk of his employment.

A causal connection must exist between employment and the risk of harm, demonstrating it would be more probable that the injury would not have occurred under normal circumstances of every day life outside the employment situation.

The Wisconsin Worker’s Compensation Division and courts would likely have come to a different result. The very first case I ever tried in the 1970s concerned a firefighter who broke a tooth on a cherry pit while eating dinner at the fire house. To be compensable in Wisconsin, the accident or disease causing an injury must arise out of the employee’s employment. While the “course of employment” deals with the time, space, and intent, “arising out of employment” is related to the origin or cause of the accident so the risk of a particular accident might have been contemplated by a reasonable person when entering the particular employment. Establishing a causal connection between the injury and employment is an essential element of compensability. A causal connection must Continue reading

Why Are Worker’s Comp Claims Down

The number of worker’s compensation claims has dropped dramatically

The Wisconsin Association of Worker’s Compensation Attorneys (WAWCA) just held its tenth annual worker’s compensation seminar in Madison, Wisconsin. (I presented the annual case law update.)  A report on the economic health of Wisconsin worker’s compensation (presented by a colleague on the defense side, Paul Riegel) noted reported worker’s compensation claims have dropped from 55,000 in 2001 to less than 35,000 in 2011.  Based upon the first five months of 2012 reporting, 30,000 reported claims are anticipated to be made in 2012.

Applications for hearing on those claims have also diminished, from 7,000 in 2001 to about 5,500 in 2011.  Again based upon projections, the 2012 number of Applications for Hearing will be about 5,600.

Several potential explanations for this drop were provided including:

  1. The days of asbestosis, silicosis, and similar disease may have ended due to the aging population of those of exposed before the implementation of OSHA in 1970 and the lessening amounts of these substances in the workplace.
  2. Employers argue that workplaces are simply safer, resulting in lesser claims.
  3. The safer workplaces argument is rebutted by employee and Union data that fewer people are willing to make claims in a depressed economy for fear of losing their jobs.  While Wisconsin law assesses a “one year’s wages” penalty against an employer who fires or refuses to rehire an injured worker, in tough economic times, that may not be a risk an injured worker is willing to make.  Anecdotal evidence from a variety of sources indicates viable claims, specifically for “wear and tear” type injuries are simply not being made.
  4. The impact of extending Unemployment Compensation benefits from its initial 26 weeks through multiple extensions may diminish worker’s compensation claims since another “safety net” exists.  Additionally, the availability of Social Security may diminish worker’s compensation claims.  General employment trends also suggest Continue reading

Do I Need To Miss Work To Have A Claim?

Today’s post comes from guest author Matthew Funk from Pasternack Tilker Ziegler Walsh Stanton & Romano. In Wisconsin, a doctor’s assessment of permanent partial disability triggers permanency benefit payments.



Joe was working a plumbing job at a construction site. He was tightening a connection to an S pipe when the wrench slipped and so did his wrist. Lucky for him, it was only a fracture. The ER was quiet and empty and two hours Joe was back on site, supervising Mike on pipe installation and making sure the job got done. Sure he would have to do some physical therapy on his wrist but that would happen on the weekends. He wouldn’t lose a day of work as he healed.

As he and Mike finished up their day’s work, Mike mentioned to Joe that he should file a Workers’ Comp claim. “But why?” asked Joe. “I was only gone for two hours and the physical therapy will happen on Saturday. Don’t you have to be out for like weeks to file a claim? Nah… I’m not going to file.”

File, Joe! File!! You don’t have to miss a day of work in order to file a successful claim. Continue reading