Category Archives: Government

Trump Dumps Workplace Safety

When FBI Director James Comey calls President Trump a liar, the world takes notice, but when Trump lies about workplace safety, the world takes little notice.  Trump’s administration has recently provided significant “relaxation” in the government’s approach to occupational safety.  The administration recently delayed action on a rule that would require the employer to electronically report workplace injuries so they can be posted for the public.  OSHA has also put off enforcement of an Obama-era standard for silica, a mineral linked to a disabling lung disease and cancer.  I’ve dealt with many silica exposure claims in Wisconsin particularly coming from the Kohler Corporation in Kohler, Wisconsin where silica is a necessary ingredient in many bathroom fixture manufacturing processes.  The administration has also proposed changes in beryllium exposure limits.  After 40 years of development a new rule under the Obama administration was set to lower workplace exposure to beryllium a mineral linked to a lung disease estimated to kill 100 people annually.  The nation’s largest beryllium producer had agreed to back the new restrictions.  A few weeks ago as the rule was going into effect the new administration proposed changes that many expect may exempt major industries from this tougher standard. 

When asked about the Trump administration’s approach to workplace safety a White House spokesman said “The President and his administration care very much about worker safety…”  Yet another lie.  See also Under Trump, Worker Protections Are Viewed With New Skepticism

Trump’s Budget Cuts and Social Security Disability: Is “Fraud Suspicion” Underlying the Cuts?

Budget Director Mick Mulvaney echoed the mantra of many conservative Republicans who suspect that folks who are Social Security Disability recipients are fraudulent.  “If you are on disability insurance and you’re not supposed to be, you are not truly disabled, we need you to go back to work.”  This conservative trope reflects, without any evidence to substantiate it, the same kind of misinformation about employee fraud that pervades perceptions of workers’ compensation fraud. 

As I have often written about in the past, the public’s perception of injured individuals (whether collecting workers’ compensation or Social Security Disability benefits) is vastly overinflated.  The statistics indicate only about one-sixth of one percent of injured workers in Wisconsin are fraudulent.  That’s about 2 in 10,000.

The Trump administration budget proposed up to $64 billion in cuts to Social Security Disability Insurance expenditures, directly contradicting Trump’s campaign promises not to cut Social Security.  The cuts stem mostly from new program rules and processes, and requirements for mandatory participation by program applicants to move disabled beneficiaries from SSDI to work.

While returning to work is always a laudable goal (for both workers’ compensation and Social Security Disability), the last eight times that budget proposals have initiated programs to promote return to work “none of the findings reported to date show they would likely lead to a substantial reduction in case load sizes.”  http://www.researchondisability.org/docs/default-document-library/ssa-back-to-work-06-2012.pdf?sfvrsn=2

Through their contributions to Social Security, workers earn a measure of protection against disability retirement and death.  (Disability insurance protects a worker against loss of earnings due to a significant work limiting impairment, and workers earn this protection by having worked and contributed to Social Security.)  Many of my work-injured employees ultimately end up on Social Security Disability and this protection is particularly important to older Americans.  Most people receiving Social Security Disability benefits are in their 50s or early 60s and most had only unskilled or semi-skilled jobs.  Without a college degree, benefits are not significant (averaging about $1,200 per month).  However, over half of Social Security beneficiaries rely on these benefits for 75% or more of their total income. 

The proposed budget cuts to Social Security are another slap in the face to injured workers.

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.

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.

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.

NEW LAW: Wisconsin Enacts Worker’s Compensation Changes

It’s official. The Wisconsin legislature and Governor recently approved amendments to the worker’s compensation system in our state. We have a new law.

The bill arose from the Wisconsin Worker’s Compensation Advisory Council—the historically stabilizing group, consisting of members of labor and management.  The Advisory Council bill produced common sense reforms and improvements to the worker’s compensation system. A competing bill (informally known as the “work comp destruction bill”) never even received a hearing. In stark contrast, the legislature demonstrated support for the Advisory Council recommendations by unanimously passing the bill (Senate vote was 32-0 and Assembly vote was 97-0), and Governor Walker continued that support by swiftly signing the Council recommendations into law.

The new changes are 2015 Wisconsin Act 180. The bill is effective March 2, 2016.

Importantly, the new bill does not alter the underpinnings of the worker’s compensation “grand bargain”, whereby employees gave up the right to sue in court in exchange for scheduled, fixed benefits without having to prove fault.  Additionally, the new law does not affect an employee’s right to choose their own medical doctor and care, nor does the law impose any type of major medical fee schedule.

The Advisory Council bill was a compromise, as per usual, with provisions that benefit workers and employers. Among the major highlights of the new law:

  • Increased PPD Benefits. An injured worker’s maximum weekly benefits for permanent partial disability (PPD) will increase $20 to $342/week for injuries on/after March 2, 2016, and to $362/week for injuries in 2017.
  • Greater Access to Retraining Benefits. Injured workers with permanent limitations that do not allow a return to the time-of-injury employer can pursue academic retraining benefits (weekly maintenance benefits while in school, along with tuition, books, meals, and mileage). Traditionally, a hearing could not be held until the worker actually was enrolled and taking classes, which could be financially prohibitive when a worker is off work with no income. The new law allows a Judge the authority to issue prospective orders for future retraining benefits before the worker is in school.
  • Allowance for Working while in School. A worker pursuing an academic retraining program will be allowed to work up to 24 hours/week without those wages reducing any weekly worker’s compensation maintenance benefits.
  • Statute of Limitations Reduction for Traumas.  The statute of limitations, running from the date of injury or date of last compensation payment, for traumatic injuries only is reduced from 12 years to six (6) years. The statute of limitations for occupational exposure claims is not changed—remaining at 12 years.
    We anticipate that the traumatic injury statute of limitations change does not apply retroactively, meaning the new 6 year statute of limitations applies to traumatic injuries beginning March 2, 2016.
    The impact of this change will play out in the future. The potential for increased litigation exists as workers file hearing applications to protect their medical treatment expense benefits. For example, if a worker has a knee injury in April 2016 with arthroscopic surgery one month later, all disability benefits paid by the end of 2016, and that worker continues to have periodic difficulties ultimately resulting in a proposed knee replacement in 2023, they may be time-barred if no hearing application was filed within 6 years (or the end of 2022). If barred, those expenses are shifted to the worker, group health insurance, or the government.
  • PPD Apportionment. If a worker suffers a traumatic injury resulting in permanent partial disability (PPD), a physician’s report on PPD shall include a determination of the approximate percentage of PPD caused by the work injury along with the percentage attributable to “other factors” before or after the work injury. A worker, upon request, shall disclose any/all previous findings of permanent disability or impairments that are relevant to the work injury. The provision does not apply to occupational exposure injuries and does not mandate that a physician must find some percentage attributable to other factors (i.e., the entire functional PPD percentage can be attributable to the traumatic work event).Heavy litigation is likely given the provision’s ambiguity. By intent, it appears the language is restricted to functional PPD. The provision should not upset the “as is” rules on legal causation of an injury itself. Additionally, it does not appear the provision would affect liability for temporary total disability, medical expenses, retraining benefits, or potential loss of earning capacity or permanent total disability benefits.Litigation likely will occur over the type of competent evidence necessary to constitute “other factors” apportioning a PPD award. With the worker disclosure requirement, one could argue that only documented, ratable disability findings can be used, as opposed to a doctor’s speculation regarding pre-existing condition (e.g., a worker’s complaint of pre-existing sporadic low back pain is different than a pre-injury accident that resulted in a lumbar fusion procedure with a paid 10% PPD).
  • Lost Time Benefit Denial for Misconduct Terminations. Previous law, under the Brakebush case doctrine, allowed a worker to receive lost time benefits (Temporary Total Disability, or TTD) during a healing period even if they had been terminated for misconduct or allegedly valid reasons by the employer. The new law effectively puts an end to components of the Brakebush doctrine.Temporary disability benefits can be suspended when an employee is released to limited duty post-injury and subsequently is suspended/terminated for “misconduct” or “substantial fault,” as defined under the unemployment insurance law (Chapter 108). Based on the statutory language, TTD benefits, however, are still payable if a worker is completely off work in the healing period, per their physician.These terms “misconduct” and “substantial fault” were recently included in the unemployment laws with specific statutory definitions:
    • “Misconduct” is conduct evincing such willful or wanton disregard of an employer’s interests as is found in (1) deliberate violation or disregard of standards of behavior that an employer has a right to expect of his or her employees; or (2) carelessness or negligence of such degree or recurrence as to manifest culpability, wrongful intent, or evil design in disregard of the employer’s interests or to show an intentional and substantial disregard of an employer’s interests or of an employee’s duties and obligations to his or her employer.
    • “Substantial Fault” equals acts or omissions of an employee over which the employee exercised reasonable control that violate reasonable requirements of the employee’s employer, but not including minor infractions, inadvertent errors, or failure to perform work due to insufficient skill, ability, or equipment.
    With the worker’s compensation act now referring to the unemployment rules for the definitions of both terms, the possibility exists for the worker’s termination to result in the cessation of both worker’s compensation and unemployment benefits.
    The exact interpretation of these terms and the legitimacy of terminations will play out through litigation—and presumably a significant amount of litigation.
  • Benefit Denial for Alcohol/Drug Violation. All indemnity benefits are precluded if an employee violates an employer’s consistently enforced drug policy concerning alcohol or drug use when there is a direct causation between the violation and the worker’s injury. The worker, however, can still recovery/pursue medical treatment expenses.Previous law allowed a potential reduction of a worker’s benefits by 15% if an injury was the result of intoxication or the use of controlled substances.Notably, the new provision is a large injection of “fault” concepts into the otherwise no fault system undergirding the grand bargain of worker’s compensation.
  • Fraud Prevention. Worker’s Compensation Department (at DWD) will fund one Department of Justice position to assist in investigating and prosecuting any “fraudulent” claim or “fraudulent activity” on the part of any player in the worker’s compensation system (insurance carrier, employer, employee, or health care provider)
  • Electronic Medical Records. The cost for certified medical records in “electronic format” is fixed at a maximum of $26 per request.
  • Physician Drug Dispensing. Prescription drug dispensing outside of a licensed pharmacy (i.e., physician dispensing) are limited to the existing pharmacy fee schedule and pharmacist dispensing fee.
  • Review of Minimum PPD Ratings. The new law requires the Department to create a medical advisory committee, consisting of various areas of medical specialization, to review and revise the minimum functional PPD ratings found in the Administrative Code every eight years.

Change can mean uncertainty. A number of the statutory enactments and effects will be seen over time and through the litigation process. The key is that the Advisory Council process worked, continuing its vital role in Wisconsin’s beneficial and efficient worker’s compensation system.