Category Archives: Workers’ Compensation

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.

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.

Oklahoma Commission Says Workers’ Comp “Opt Out” Not OK

Today’s post comes from guest author Kristina Brown Thompson, from The Jernigan Law Firm.

Ever since Oklahoma employers were allowed to “opt out” of the workers’ compensation system in 2013, nearly 60 big employers have chosen the “opt out” path. By opting out, these large corporations (like Wal-Mart and Big Lots) are no longer constrained by the requirements of the Oklahoma State workers’ compensation laws. Instead they are allowed to create their own internal workers’ compensation system playing under their rules and definitions.

According to a NPR study these opt out plans “ . . . provide fewer benefits, make it easier for employers to deny benefits, give employers control over medical assessment and treatment, and leave appeals in the hands of employers, and force workers to accept lump-sum settlements.”

However, just last week, the Oklahoma Workers’ Compensation Commission unanimously declared two sections of the “Oklahoma Employee Injury Benefit Act” (a/k/a Oklahoma’s Opt Out law) unconstitutional. According to the Commission, the Opt Out provisions deprived injured workers of equal protection and access to the court. The Oklahoma Workers’ Compensation Commission called the opt out plans “a water mirage on the highway that disappears upon closer inspection.”

Here is a link to the Oklahoma Workers’ Compensation opinion filed 26 February 2016. The ruling will likely be appealed and we can expect to hear much more about these Oklahoma opt-out plans in the near future.

 

 

 

Tips on Your Workers’ Compensation Claim

I just returned from New Orleans where I made a presentation to about 150 workers’ compensation lawyers (both for workers and for employers) on “Case and Client Evaluation In Workers’ Compensation”.

Since many in the audience represented insurance companies and employers, I paid particular attention to their response to my presentation. As one would expect, their best chance to win a case on behalf of the employer and insurance carrier occurs when several items come into play:

  1. When there is no actual report of the injury. [Worker’s Tip: No matter how small the work injury, make sure it is reported in some fashion – cell phone, voice recording, or Accident Report and the worker keeps a copy (BEST).]
  2. Failure to report that a work injury occurred to the first treating practitioner (whether Emergency Room, employer-directed medical facility, hospital, or primary care physician). The single most difficult hurdle in a workers’ compensation claim involving a traumatic injury occurs when no report of the injury is found in the initial medical record.
  3. In “Occupational Exposure” cases, no discussion with the doctor about work duties or prior incidents. (In Wisconsin, a worker can recover for workers’ compensation in one of two ways: 
    1. A traumatic injury where a single incident has caused the disability (lifting a box, falling, etc.)
    2. Occupational Exposure, where the wear and tear of a worker’s job causes the disability over time. In this latter category, workers routinely do not indicate with any kind of specificity the type of work they perform when they see the doctor.

These three tips can help us as workers’ compensation lawyers win claims, more so than any “Clarence Darrow” court room techniques or strategies.