Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.
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%).