Author Archives: Thomas Domer

Recent Changes in Workers’ Comp Around the Country: Where Does Wisconsin Stack Up?

One of the benefits of participating in National organizations such as the Workers’ Injury Law and Advocacy Group (WILG) and the National College of Workers’ Compensation Lawyers is finding out how your State stacks up against the rest. Some recent cases suggest a basis for comparison.

Wisconsin was the first constitutional workers’ compensation enacted in 1911 and many other states look to Wisconsin as a progressive beacon protecting the rights of injured workers. The wattage on the beacon has been diminished by the Scott Walker administration by dividing the Workers’ Compensation Division into two administrative agencies (in an alleged move at efficiency rather than duplicity, efforts to introduce fault into a “No- Fault” system, apportioning Permanent Partial Disability to ill-defined “other factors” such as diabetes, obesity, etc. and denying workers’ compensation claims for employee misconduct.)

Some recent events around the country suggest some trends that we may see in Wisconsin. Arkansas, for example, is considering a workers’ compensation “Opt Out” bill, which would allow employers to provide less strict “alternative” medical treatment and benefits for injured workers. Similar attempts have been made in Florida, Tennessee, and South Carolina. Wisconsin, due to its Republican controlled governorship and Senate and Assembly, was also on the “hit list” of states that might be susceptible to opt out.  As of right now (and especially given the failings of “opt out” in Oklahoma, there appears to be no Wisconsin appetite for opt out).

Other quick hitting, interesting comparisons/trends from around the country:

  • An injured undocumented worker in Kansas has been awarded workers’ compensation benefits. The woman’s employer argued she should be denied workers’ compensation because she falsified employment documents. Currently in Wisconsin, undocumented workers are allowed almost all workers’ compensation benefits (expect for vocational rehabilitation benefits since there is a federal benefits component to those claims).
  • A worker in Illinois who lost his finger in a workplace accident could not sue the workplace where he was placed by his temporary staffing firm. (Wisconsin has a similar provision protecting the “borrowing” employer that contracts with a temporary staffing agency.)
  • In Alaska, three companies working an a multi-employer construction site were cited almost a million dollars for safety violations on a power plant expansion project. Since these were “willful” violations, the penalties were quite high. These findings again emphasize the extent to which employers, rather than employees, are most likely violating safety rules. In Wisconsin an employer who violates a safety rule resulting in a work injury for an employee pays a 15% penalty on top of the employee’s workers’ compensation benefits capped at $15,000.
  • In Ohio, current and retired firefighters suffering from various cancers will be able to collect workers’ compensation benefits based upon a presumption that the cancer is caused by their work exposure. Wisconsin has a similar provision for its employees regarding heart, lung, and other cancers (so long as the firefighter is not a smoker).
  • In Montana, a bill under consideration would bar benefits if the worker knowingly fails to disclose medical conditions pertinent to their job requirements. A similar provision was recently passed in Wisconsin, requiring disclosure of any pre-existing disabilities or impairments.
  • In Colorado, a bill was just introduced allowing first responders to seek benefits for PTSD without a corresponding physical injury. Wisconsin has a similar provision but the standard of “extraordinary stress” must be met for a non-traumatic emotional or mental injury.
  • In Pennsylvania, a man disabled following Legionnaires disease, which he said was caused by exposure to contaminated water while performing his job was entitled to workers’ compensation and medical benefits.
  • Wisconsin has no specifically enumerated diseases which are automatically compensable, but where the occupational exposure causing disability is a material contributory causative factor is compensable (one of the cases handled years ago by the Domer Law firm “quantified” the component of occupational exposure at less than 5%).

Attorney Fees and Incentives in Workers’ Compensation

Abe Lincoln said it best “The matter of fees is important far beyond the mere question of bread and butter involved.  Properly attended to, justice is done to both lawyer and client. . . when you lack interest in the case, the job will very likely lack the skill and diligence in the performance.”

Three states have recently addressed the issue of attorney fees in workers’ compensation cases, most recently in Alabama, where an attorney fee cap of 15% on already-low benefits was found unconstitutional. It took a judge in Alabama who had been a carpenter for 15 years and then a lawyer before he took the bench, to recognize that an attorney fee cap at 15% of a $220 weekly Permanent Partial Disability benefit would not provide sufficient incentive for attorneys to be involved in workers’ compensation claims for Permanent Partial Disability in Alabama, depriving injured workers of their constitutional rights.  Judge Pat Ballard gave the legislature in Alabama four months to cure the deficiencies in the Alabama Code.

Judge Ballard found persuasive the Florida Supreme Courts reasoning in Castellanos v. Next Door Company where the Court indicated the inflexible nature of Florida attorney fee statute made that law unconstitutional.  He also agreed with the reasoning of the Utah Supreme Court, which found its workers’ compensation attorney fee caps unconstitutional.

An attorney’s determination to take a workers’ compensation case has to do with both the merits of the case and potential for recovery of attorney fees.  In Wisconsin attorneys are not paid on any portion of the medical expenses and fees are capped at 20% of the Temporary Total and Permanent Partial Disability benefits obtained for the injured worker.  In Permanent and Total Disability claims, fees are capped at ten years of benefits.  (Routinely benefits that are further offset by the injured worker’s receipt of Social Security Disability and Long Term Disability benefits.)  As Abe Lincoln indicated long ago, “When you feel you are working for something, you are sure to do your work faithfully, and well.”  (Notes to the Ohio State Law School Graduating Class of 1858.)

Trump Lifts His Middle Finger to Injured Workers

It didn’t take long for Trump to deceive injured workers.  Despite campaign promises to help “middle class” workers,  Trump signed legislation relaxing the reporting requirements for employers when workers get hurt or ill due to their jobs.  Trump and the Republicans rolled back a rule issued by former President Barack Obama.  By ending the rule, Trump and Republicans effectively shortened the amount of time employers in dangerous industries have to keep accurate records of worker injuries – from five years to just six months.  The Republican-controlled Congress used a little-known legislative tool known as the Congressional Review Act to repeal the Obama regulation last month.  Democrats were incensed.  By signing the bill, Trump can legally prevent the Occupational Safety and Health Administration (OSHA) from requiring a similar rule in the future.

Labor leaders and workplace safety experts warn that the rollback of the OSHA recordkeeping rule will allow unscrupulous companies to cheat on their injury data and conceal ongoing hazards from OSHA regulators.  That concealment could make it harder for OSHA to identify recurring problems at certain employers and industries.  Debbie Berkowitz, a former OSHA policy adviser and advisor to the Workers’ Injury Law and Advocacy Group (WILG), now with the National Employment Law Project, indicated “This will give license to employers to keep fraudulent records and to willfully violate the law with impunity.” 

It was only a matter of time before Trump showed his disdain for injured workers and his true allegiance to business.

The Cancer Presumption in Workers’ Compensation

What is a legal presumption? 

Can a legal presumption be rebutted by sufficient contrary evidence?

Wisconsin workers’ compensation law contains many presumptions. For example, for firefighters, it is presumed that if a firefighter has cancer, the cancer is employment-related. The Statute applies to any State, County, or Municipal firefighter who has worked for ten years with at least two-thirds of the working hours as a firefighter who has cancer of the skin, breast, central nervous system, or lymphatic, digestive, hematological, urinary, skeletal, oral, or reproductive systems. For that firefighter whose disability or death is caused by cancer, the cancer diagnosis is presumptive evidence that the cancer was caused by employment. However, no presumption exists for firefighters who smoke cigarettes or use tobacco products for claims after January 2001. (Wis. Stat. §891.455 Presumption of Employment Connected Disease: Cancer)

Other presumptions in Wisconsin law include a presumption that a youthful worker (under age 27) is presumed to be able to earn the maximum wage rate by the time he reaches age 27, for purposes of Permanent Partial Disability, disfigurement, or death. For example, a McDonalds burger-flipper earning $10 per hour who has a severe burn is presumed (instead of the $200 or $300 he actually earns per week) to be earning $1,400 per week under the Youthful Age Presumption. Evidence of the worker’s likely inability to earn the maximum wage (due to cognitive or academic deficiency or similar lower earning work history) can be used to rebut the presumption and therefore limit the maximum Permanent Partial Disability or disfigurement award.

In a recent cancer case, the Pennsylvania workers’ compensation board found a firefighter cannot receive workers’ compensation benefits for prostate cancer because he failed to show his cancer was work-related despite a statutory presumption for firefighters. The firefighter began working for the City of Philadelphia in the 1970s and retired in 2006 after a diagnosis of prostate cancer. He filed a workers’ compensation claim saying his cancer stemmed from carcinogens he was exposed to while working as a firefighter, such as diesel fumes from fire trucks, second hand tobacco smoke from co-workers, and smoke from burning debris he encountered while fighting fires. Note he also acknowledged he smoked an average of a half pack of cigarettes daily since the 1960s. His doctor’s testimony that his carcinogen exposure caused the prostate cancer was rebutted by the City’s physician indicating that prostate cancer is typically more of a “disease of aging than it is of external influence.” The Judge, in denying the claim, noted “Any elevated risks for prostate cancer among firefighters might also be explained by other factors, such as detection bias, ethnicity and geography.”

The cancer presumption in Wisconsin (for non-smoking firefighters) would be more difficult to rebut, but factors such as family history may prove the “other evidence” necessary to rebut the presumption.

The High Cost of Fat

A recent study in the Journal of Occupational and Environmental Medicine, the official publication of the American College of Occupational and Environmental Medicine, in September 2016 reported that obese and overweight workers are more likely to result in higher costs related to workers’ compensation claims, especially for major injuries.

In a study analyzing 2,300 workers in Louisiana, Dr. Edward Bernacki of the University of Texas—Austin found that workers’ compensation costs and outcomes for obese workers (defined as a Body Mass Index of 30 or higher) incurred higher costs related to their workers’ compensation claim. This study noted that after three years about 10% of claims for significant injuries were still open, meaning the worker had not yet returned to work. Obesity and overweight did not play a role in the delayed return to work. However, for workers with major injuries, overweight was associated with higher workers’ compensation costs. In the group with the higher Body Mass Index, costs averaged about $470,000 for obese workers, $270,000 for overweight workers compared to $180,000 for normal weight workers (with a Body Mass Index between 25 and 30). The study made adjustments for other factors including the high cost of spinal surgeries and injections and, after making the adjustment for these factors, obese or overweight workers with major injuries were twice as likely to incur costs of $100,000 or more. Significantly, Body Mass Index had no effect at all on costs for closed claims or less severe injuries.

Previous studies (including a study in the Journal of Occupational and Environmental Medicine in 2015 linked obesity to a higher rate of workplace injuries and a longer time off. However, the cost effects were not studied until this recent assessment. The new results indicate obesity is a significant risk factor for higher costs in major workers’ compensation injuries.

One significant finding in the study was that more than three-fourths of the workers’ compensation claimants were overweight or obese. Further studies are planned. Previous studies include those from the National Council on Compensation Insurance, Inc. (NCCI) “How Obesity Increases the Risk of Disabling Workplace InjuriesEditor’s Note:  According to most studies, there is a strong correlation between Body Mass Index and injuries such as ankle fracture severity and increase risk of osteoarthritis. For workers’ compensation practitioners, one wonders whether these studies are a prelude to an assault on the “as is” doctrine. Each of us in our own practice can recognize some of the wide-ranging effects in costs of obesity, from special procedures for hospital treatment of obese patients such as open MRIs and more extensive surgical procedures to a reduced fuel economy in commercial vehicles due to fat drivers. Additionally, the cost of treatment for obese patients with work-related injuries increases the work-related injury potential to medical staff (lifting, transferring, etc.). Increasing admissions of severely obese patients leads to a corresponding increase in medical workplace injuries related to lifting and maneuvering obese patients. Workers’ compensation practitioners may see obesity as yet another “pre-existing condition” to surmount in future causation and extent of disability battles.

Disclosure Bias In Workers’ Compensation

Dr. Sunita Sah

I read most things through the narrow prism of a lawyer representing injured workers and a Law Professor teaching Workers’ Compensation. I read with fascination Dr. Sunita Sah’s (M.D., MBA, Ph.D., Cornell University Professor) recent article in the New York Times (07/10/16) on “Disclosure Bias,” one of her research interests. Her theory: Although bias disclosure is supposed to act as a warning (to consumers, advisees, clients), it often has the opposite effect, making advisees more likely to follow biased advice.  For example, doctors view their own specialties as delivering more effective treatment than others to recommend treatment options. (chiropractors use hands, surgeons like scalpels, physiatrists prefer needles).

Dr. Sah’s research found that even (and especially) when the doctor discloses her bias, patients are more likely to follow the advice since the disclosure “creates increased pressure to follow the advisor’s recommendation.”  This increased pressure runs the gamut from recommendations on prostate cancer treatment to financial conflict.

In the workers’ compensation world, even though I disclose my lawyer’s preference when I advise clients on  things like choice of venue (Milwaukee or Madison), type of claim (occupational or traumatic), kind of treatment (surgery or pain clinic), or even case tactics (settle or go to trial), Dr. Sah’s research cautions against the unintended consequences of disclosure bias.  Since clients do not want to signal distrust to their advisor, or indicate I may be biased, the disclosure itself may become a burden on clients.  (One more thing to worry about. . . )

Fault: Creeping Back Into Workers’ Compensation

Workers’ Compensation is a compromise. As originally crafted in 1911 and as interpreted, Wisconsin Workers’ Compensation is a compromise in which both employers and employees surrender certain advantages in order to gain others that are deemed more important. Employers give up the immunity that would otherwise apply in cases where they were not at fault and employees surrender their former right to full damages in the few instances when they could recover under tort law and instead accept more modest assured benefits for injuries and deaths (without having to prove fault).

The concept of negligence should play no role whatsoever in the workers’ compensation system. The doctrine of liability without fault is part of the compensation system; the 1911 legislature attempted to guarantee payments by the employer for injuries arising out of and in the course of employment. The economic burden shifted from the employee to the consuming public.  

Traditionally, the only vestiges of fault and negligence that remained in Wisconsin involved penalties involving employer or employee safety violations. If an employee was hurt because of the employer’s safety violation, the benefits to which the worker was entitled were increased by 15% and paid directly by the employer. Similarly, if the employee committed a safety violation causing injury, benefits from the insurance carrier or self-insured employer could be reduced by 15%. 

Recent revisions in the law, effective March 2, 2016, chip away at the “Grand Bargain,” the legislative deal made in 1911 where workers surrendered all rights to sue their employers for negligence in return for which the employer paid for work-related injuries regardless of fault. 

An employee who had sustained a work-related injury and would return to work for an employer has always received the protection of the Workers’ Compensation Statute. Even if the employee was terminated for good cause during a post-injury healing, he was entitled to continued receipt of Temporary Total Disability benefits (2/3 of time-of-injury wages). However, effective March 2, 2016, a new Statute now states that if an employee is discharged or suspended for misconduct or substantial fault, as these terms are defined by the Unemployment Compensation statutes, the employee’s Temporary Total Disability benefits could be suspended. The legal standard for what constitutes “sufficient grounds for termination for misconduct” and “substantial fault” will be defined by the Unemployment Compensation Law (These are employer-friendly changes that were implemented in the UC system in 2014). 

Going forward, administrative hearings in both the Unemployment Compensation and Worker’s Compensation forums will occur. The issue of whether a decision binding on one forum will be binding on another remains to be seen.  A worker could face the “double whammy” of being denied benefits in both the workers’ compensation and unemployment compensation case.

Additionally, the new law indicates that an employee who violates an employer’s drug and alcohol policy at the time of injury (where the violation is causal to the injury) is not entitled to anydisability benefits under the Workers’ Compensation system. This harsh 100% penalty is a substantial change from the now pedestrian 15% diminution that formerly applied to injuries before March 2, 2016.

Lastly, the new law allows apportionment of Permanent Partial Disability in cases of traumatic injuries between that permanency caused by the work injury and that “caused by other factors.” The statute is silent as to the meaning of the term disability, or “other factors,” and the problems raised by the possible interpretations of these terms will be determined in subsequent court decisions.

The net result will clearly be more disputes in the supposedly “no fault” compensation system—likely resulting in more litigation and potentially raising the cost of workers’ compensation for all stakeholders.


1. 2015 Wis. Act 180 (effective March 2, 2016) made significant changes to the workers’ compensation law—for employers and employees.  This blog will explore those changes in a series of upcoming posts.

Getting Workers’ Comp and Social Security Disability–Is it Really “Double-Dipping?”

double dippingAn injured worker’s receipt of Social Security Disability (SSD) benefits can produce an offset from workers’ compensation (WC) payments.  A workers’ compensation recipient who is also collecting SSD cannot receive, in combined benefits, more than 80% of his average current earnings (ACE).  Wisconsin is one of nine “Reverse Offset” states whereby any offsets are taken on WC benefits rather than Social Security benefits.  Under Wisconsin statutes, for each dollar that the total monthly workers’ compensation benefits (excluding attorney fees and costs) plus the monthly benefits payable under the Social Security Act for disability exceed 80% of the employee’s ACE as determined by Social Security, the workers’ compensation benefits shall be reduced by the same amount, so that the total benefits payable do not exceed 80% of the employee’s ACE.

In most states, under Social Security law, a recipient’s SSD benefits are reduced when the total of the recipient’s disability payments plus workers’ compensation (WC) benefits exceed 80% of the ACE.  The reduction is taken against the recipient’s monthly SSD, not WC. In Wisconsin, however, just the reverse is true and the workers’ compensation insurance carrier’s liability is reduced.

In Wisconsin, the maximum age for ending the Social Security offset has been 65 since the offset went into effect in 1980.  However, since Congress amended the Social Security Act in 2013 by the incredibly-titled “Achieving a Better Life Experience (ABLE) Act,” the amendment extends the workers’ compensation Social Security offset to the full retirement age (essentially age 66 for those born between 1943 and 1954, and age 67 for those born after 1960).  The revised law provides that the offset continues until an employee attains full retirement age.  The way this works out practically, for example, for a worker with a $600 monthly Average Weekly Wage ($400 in Temporary Total Disability), or about $30,000 in average current earnings (ACE), 80% ACE would be $24,000 per year or $2,000 per month.  If SSD pays $900 per month, WC would be limited to the 80% ACE figure ($2,000) so the WC carrier liability would be limited to $1,100 instead of its $1,720 ($400 TTD rate x 4.3) monthly liability absent the SSD.

The purposes of the two systems—SSD and WC—differ substantially. WC applies the principle that, irrespective of fault, projected costs of injuries can be secured in advance through insurance. Eligibility for SSD benefits requires an employee to build equity in the program through earning income credits.  The employer has paid a premium for the worker’s injury not based on any offset, and the employee has paid into Social Security for the entirety of his work life.  The rationale for the “offset” is loosely based on a “double dipping” assessment, much the same as the “Moral Hazard” rationale for not providing a full pay check to workers who are injured (in order to reduce the incentive to remain off work).

Wisconsin experimented historically with the percentage of Permanent Partial Disability payable for Temporary Total Disability (from 70% to the current 66.66%), based on the notion that the worker should be no better off disabled than if he were working, the 33% diminution assessed as an amount relatively close to his taxation rate.  This rationale does not, of course, hold for those workers who exceed the maximum (currently $1,380) wage rate.  The “Moral Hazard” rationale for reduction of benefits is based on the theory that an injured worker should not be “better off”  because of his injury.  In over 40 years’ representing injured workers, I’ve yet to see a worker actually better off because of his work injury.