Tag Archives: workers’ compensation

Opioid Task Force, Recent Studies, and CDC Opioid Recommendations

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

Wisconsin’s Worker’s Compensation Advisory Council is also looking at the issue of opioid use.

The North Carolina Industrial Commission recently joined many other states (i.e. Massachusetts) in tackling the issue of opioids in the workers’ compensation cases by creating a Workers’ Compensation Opioid Task Force. The goal of the task force is to “study and recommend solutions for the problems arising from the intersection of the opioid epidemic and related issues in workers’ compensation claims.” According to the Chair, “[o]pioid misuse and addiction are a major public health crisis in this state.” 

As of last June, a study by the Workers’ Compensation Research Institute (WCRI) noted “noticeable decreases in the amount of opioids prescribed per workers’ compensation claim.” From 2012 – 2014, “the amount of opioids received by injured workers decreased.” In particular, there were “significant reductions in the range of 20 to 31 percent” in Maryland, Massachusetts, Michigan, Oklahoma, North Carolina, and Texas. 

Additionally last March, the Centers for Disease Control and Prevention (CDC) issued new recommendations for prescribing opioid medications for chronic pain “in response to an epidemic of prescription opioid overdose, which CDC says has been fueled by a quadrupling of sales of opioids since 1999.” 

Currently, the CDC’s recommendations for prescribing opioids for chronic pain outside of active cancer, palliative, and end-of-life care will likely follow these steps:

1.  Non-medication therapy / non-opioid will be preferred for chronic pain.

2.  Before starting opioid therapy for chronic pain, clinicians should establish treatment goals and consider how therapy will be discontinued if benefits do not outweigh risks.

3.  Before starting and periodically during opioid therapy, clinicians should discuss with patients known risks and realistic benefits of opioid therapy. 

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.




Domer Law Named Best Lawyers’ 2014-15 Milwaukee Workers’ Compensation Law Claimants “Lawyer of the Year”

Domer Law is proud to have been selected by its peers for inclusion in the 21st Edition of The Best Lawyers in America in the practice area of Workers’ Compensation Law – Claimaints. The firm was named the Best Lawyers’ 2014-15 Milwaukee Workers’ Compensation Law – Claimants “Lawyer of the Year.” Only a single lawyer in each practice area, in each community is being honored as a “Lawyer of the Year.”

Inclusion in Best Lawyers is based entirely on peer-review. Their methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. Best Lawyers employs a sophisticated, conscientious, rational, and transparent survey process designed to elicit meaningful and substantive evaluations of the quality of legal services.

Both Tom Domer and Charlie Domer are listed in Best Lawyers for their continual advocacy for injured workers. At Domer Law, we are honored by this recognition, and we will continue to fight daily for the rights of Wisconsin’s injured workers.

The SMART Act and Workers’ Compensation

Today’s post comes from guest author Leila A. Early from The Jernigan Law Firm.

            Medicare should not pay medical bills that are the primary responsibility of a third party.  When they do, they want to be reimbursed, and all parties understand that concept, but the problem is the lengthy delays and lack of due process. The SMART Act, which was signed into law by President Obama on January 10, 2013, amends and reforms the Medicare Secondary Payer Act to improve the reimbursement process. It is located in Title II of H.R. 1845 and entitled “Strengthening Medicare Secondary Payer Rules.”

            Section 201 requires CMS to maintain a secure web portal with access to claims and reimbursement information. Payments for care made by CMS must be loaded onto the portal within 15 days of the payment being made. The portal must also provide supplier or provider names, diagnosis codes, dates or service, and conditional payment amounts. Moreover, the portal must accurately identify that a claim or payment is related to a potential settlement, judgment or award. After several steps, the parties may download a final conditional payment amount from the website. If there is a dispute over the conditional payment amount, CMS must respond/resolve the dispute within 11 days or the proposed resolution by the claimant/applicable plan will be deemed accepted. In terms of appeals, CMS must draft regulations that give applicable insurance plans limited appeal rights to challenge final conditional payment amounts. This process will go into effect around April of 2013. 

            Section 202 states that by November 15th of each year (beginning in 2014), CMS is required to calculate and publish a threshold for liability claims. If an amount owed is under that threshold amount, CMS is barred from seeking repayment.  Section 205 states the statute of limitations for conditional payment recovery by CMS is three years after the receipt of notice of a settlement, judgment, award, or other payment made.

            The SMART Act applies to workers’ compensation cases, so it is important to understand the law and how it will be applied in the future. Read it and follow its implementation closely.

Overtime Counts Towards Workers’ Compensation Awards

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

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

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


Computation for Wisconsin Workers’ Benefits

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

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


Worker’s Regular Schedule

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

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

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

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



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