Tag Archives: Wisconsin

The Cancer Presumption in Workers’ Compensation

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

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.

LEGISLATIVE ALERT: Worker’s Compensation Destruction Bill?

Today’s post comes from guest author Charlie Domer, from The Domer Law Firm.

Time to wake up Wisconsinites! In a short timeframe, the current administration and legislature in Wisconsin has altered the landscape of our state in ways too numerous to count. Well, now we face another attempt to make-over and deform a progressive era landmark: Wisconsin’s Worker’s Compensation System.

A recent bill (LRB 1768) proposes direct and major changes to our state’s nationally recognized model worker’s compensation (WC) system. The proposed changes would dramatically alter and potentially devastate the stability of the system for all stakeholders. We urge all legislators not to support LRB 1768. Instead, there will be a separate, reasoned bill produced by the Worker’s Compensation Advisory Council.

Current System Works for All Stakeholders

Under the grand bargain of Wisconsin’s first-in-the-nation WC system from 1911, injured workers gave up the right to court lawsuits in exchange for timely, lesser, defined benefits without having to prove fault. Employer, in turn, are protected from unknown jury damage awards. Employers purchase WC insurance for this administrative dispute resolution process. The system safeguards the concept that work injury expenses appropriately are an employer’s cost of doing business rather than costs shifted to taxpayers through public assistance such as disability payments and Medicare and Medicaid.

The current system is highly effective for all stakeholders—making our system the gold standard compared to the rest of the country. Wisconsin traditionally has low and stable employer premiums. We have over 300 private section WC insurance carriers collecting premiums (in excess of $1.7 billion). We have faster return to work rates than in most states. We have incredibly low litigation costs and low litigation rates (only 10-15% of work injuries).

Work Comp Advisory Council (WCAC) is the bedrock of Wisconsin’s WC system 

Much of the credit for the beneficial metrics in our national model is from the stability offered by the Worker’s Compensation Advisory Council (WCAC). This Council, composed of voting members of labor and management (including the Wisconsin Manufacturers and Commerce, WMC), has typically produced a biennial “agreed upon” bill for approval by the Legislature. The WCAC produced reasoned, incremental changes that maintained the stability of the system for all stakeholders—employers, carriers, and workers. The WCAC generally has immunized the substance of the Wisconsin WC system from partisan politics and election cycle swings commonly found in other states.

Importantly, the WCAC successfully produced a reasoned Agreed Upon bill in the past weeks! (more details below).

The Proposed GOP Bill (LRB 1768) Would Decimate Worker’s Compensation in Wisconsin

A recent video highlights the egregious nature of the proposed bill:

 

 

The bill proposed by GOP legislators was not from or considered by the Advisory Council—it is an end-run around the stability-producing model.  LRB 1768 is a direct legislative attack on the WC system, introducing dramatic and foreign concepts to our system. Among the more outlandish proposal are the following:

  • Reducing WC benefits by amount of employee negligence!
    • This proposal eviscerates the “grand bargain” of WC, whereby a worker who suffers an on-the-job injury receives lower, defined benefits without regard to fault and employers, in turn, are protected from unknown jury damage awards.
    • It would force employees to prove the injury was not their fault while still protecting employers with the WC exclusive remedy (and with no corresponding change in benefits for employer negligence/fault)
    • Also, without any method provided for determining negligence, there would be a massive increase in uncertainty, litigation, and claims costs/premium. 
  • Employer-Directed Medical Care
    • Currently, workers have the right to medical providers of their choosing—creating a system where workers have access to timely, specialized medical care. This quality, unrestricted medical care produces great results: faster return to work rates than most states in the country!
    • Proposed employer-directed medical care allows the employer to choose a specific practitioner for an injured worker (e.g., a podiatrist could be designated to address work injuries, including a back claim). As such, a worker may not receive the appropriate specialized medical care, like physical therapy, chiropractor, psychology, or orthopedic specialist.
    • Employer directed medical care likely means a race to the bottom, focusing on which doctors best minimize WC benefits. The focus should be on swift access to quality medical care.
  • Harsh Reduction from 12 year to Two (2)-Year Statute of Limitations (SOL)
    • WC injuries can result in lengthy healing periods and long-term medical care.
    • A 2 year SOL directly cost-shifts the burden for WC injuries to the taxpayers (Medicaid, Medicare, SSDI).  Taxpayers should not be left holding the bag for the cost of work injuries.
    • A 2 year SOL will result in exponential litigation of WC claims.  WC attorneys will be forced to file applications on any/all claims to preserve the SOL.  Wisconsin could turn into Illinois (!) where litigation rates are 80-85%, versus our current 10-15% rate.
  • Elimination of PPD ratings
    • Current law utilizes minimum permanent partial disability ratings, established by an independent panel of physicians decades ago.
    • The GOP proposed bill would eliminate PPD minimums.  Further explosion in litigation would result as previously uncontested claims would now result in disputes between worker and adverse physician ratings.
    • Notably, the recently-produced WCAC bill provided a reasoned approach to any concerns over PPD ratings, by recommending an independent physician panel review of the ratings.
  • Elimination of benefits if misrepresentation on employment application
    • This ill-considered provision precludes benefits if an employee lied about physical condition on employment application.
    • Such a provision introduces potentially discriminatory quizzing of prospective employees.  It further introduces more litigation issues into this no fault system

The cumulative effect of the GOP bill provisions were not adequately deliberated. The result would be an exponential increase in litigation and a destabilizing effect on the WC system—meaning increased litigation costs, lengthy delays in claims, and increased employer premiums. Any crack in the grand bargain could open the floodgates to potential unlimited damages in personal injury liability lawsuits. One major injury could result in significant jury awards (See http://nypost.com/2014/12/18/injured-construction-worker-gets-record-62m-single-plaintiff-award/)

In stark contrast is the recent WCAC bill ….

WCAC Successfully Produced a Reasoned Reform Bill

The Advisory Council, on October 26, 2015, successfully produced an Agreed-Upon WC Bill. This reasoned WCAC bill was agreed to by labor and management—including the Wis. Manufacturers & Commerce (WMC), who sit on the Council. All stakeholders should get behind this Advisory Council bill. The full statutory language will be available in the upcoming weeks.

As opposed to the GOP bill (LRB 1768), the Advisory Council bill creates WC changes that benefit all stakeholders, especially the employers of our state. Some “employer-friendly” provisions include the following:

  • Worker’s violation of alcohol or drug policy (if related to injury) denies benefits.
  • No lost time benefits (TTD) if terminated for good cause (using recent unemployment standards)
  • A reasonable and manageable reduction in statute of limitations from 12 to 6 years  (vs a 2 year SOL which would drastically alter the system).
  • Establishing DOJ position for investigating/prosecuting WC fraud.
  • Apportionment of functional PPD payments, so employers not responsible for pre-injury disability amounts.

Thus, the Advisory Council produced a bill that addressed many management/employer concerns about the WC system. The Advisory Council listened and—as it has done for decades—successfully produced reasoned changes to the system. The stability of the system is preserved for all stakeholders. The WCAC Agreed-Upon Bill should be supported.

Work Comp Advisory Council Officially Produced an Agreed-Upon Bill

Today’s post comes from guest author Charlie Domer, from The Domer Law Firm.

As anticipated, on December 22, 2015, the Worker’s Compensation Advisory Council (WCAC) approved its Agreed-Upon Bill.  The official statutory language and bill summary can be found here The bill now goes to the Wisconsin legislature for consideration and, hopefully, passage.

Production of this Agreed-Upon bill underscores the success and stabilizing hand of the Advisory Council.  The WCAC, composed of members of labor and management (including the Wisconsin Manufacturers and Commerce), typically produced a biennial “agreed upon” bill for approval by the Legislature. The WCAC produces reasoned, incremental changes that maintain the stability of the system for all stakeholders—employers, carriers, and workers.  The WCAC immunized the substance of the Wisconsin WC system from partisan politics and election cycle swings commonly found in other states.

 The Advisory Council bill deserves full support of all Wisconsinites that care about our nationally respected worker’s compensation system.  There is, however, lone wolf legislation floating about.  We previously talked about a bill (being pushed by Rep. John Spiros, head of the Trucking Industry Defense Association) that is properly seen as the “worker’s compensation destruction bill.” These ideas in the Spiros-led bill (AB-501) were NOT considered or vetted by the Advisory Council.  The Council protects against just this sort of unchecked effort—protecting against random or crackpot ideas from severely damaging the reputable system. 

In stark contrast, the Advisory Council carefully considered changes and produced a reasoned bill that improves or system and benefitsall stakeholders, especially the employers of our state.  Indeed, some “employer-friendly” provisions include the following:

  • A worker’s violation of alcohol or drug policy (if causally related to the injury) denies benefits.
  • No lost time benefits (TTD) if terminated for good cause (using recent unemployment standards)
  • A reasonable and manageable reduction in statute of limitations from 12 to 6 years.
  • Establishing a Dept of Justice position for investigating/prosecuting WC fraud.
  • Apportionment of functional PPD payments, so employers not responsible for pre-injury disability amounts.

Workers also have some incremental, important benefits in the Agreed-Upon bill.  The permanent partial disability payments receive slight annual increases.  Workers also will be allowed to work a certain amount of hours while pursuing academic retraining without having a decrease in work comp benefits, and workers will be allowed to ask a judge for “prospective” retraining claims (benefitting a worker who does not have the financial ability to enroll in school unless the work comp carrier will be paying). 

The Advisory Council bill maintains the stability of Wisconsin’s first-class worker’s compensation system.  Lone wolf legislation should be dismissed. We urge the Wisconsin legislature to whole-heartedly endorse the reasoned Advisory Council bill.

Alternatives to Workers’ Comp: Paranoia or Possibility

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

I joined a national organization of lawyers representing injured workers (the Work Injury Law and Advocacy Group) twenty years ago when it was first formed. Then, I heard horror stories about legislators messing with an otherwise stable workers’ compensation system after every election cycle. My colleagues in other states were constantly fighting battles over workers’ compensation “deform.” 

I thought we were insulated in Wisconsin because we had a workers’ compensation advisory council composed of labor and management who every two years fought out a compromise bill and submitted it to the legislature, which automatically rubber-stamped the proposed bill without changes. That changed in Wisconsin in 2014. For the first time in nearly 50 years, the Republican legislature rejected the “agreed upon” bill proposed by the workers’ compensation advisory council, despite the approval of the bill by management members.

Governor Scott Walker’s most recent budget contains a provision to dismantle the workers’ compensation system as we know it. Those of us representing injured workers (and those rational members on the management side) are busy lobbying to remove the workers’ compensation dismantling provisions from the budget.

It is no secret that many major corporations dislike workers’ compensation, despite statistics indicating premiums are at their lowest for employers, and profits at their highest for insurers. However, nearly two dozen major corporations including Wal-Mart, Nordstrom’s and Safeway are behind a multi-state lobbying effort to make it harder for workers hurt on the job to collect workers’ compensation benefits. The companies have financed a lobbying group the Association for Responsible Alternatives to Workers’ Compensation (ARAWC) that has already helped write legislation designed to have employers “opt out” of a State workers’ compensation system. ARAWC has already helped write legislation in Tennessee. That group’s executive director Richard Evans told an insurance journal in November that the corporations ultimately want to change workers’ compensation laws in all fifty states. Lowe’s, Macy’s, Kohl’s, SYSCO Food Services, and several insurance companies are also part of the effort. The mission of ARAWC is to pass laws allowing private employers to opt out of the traditional workers’ compensation plans that almost every state requires businesses to carry. Employers who opt out would still be compelled to purchase workers’ compensation plans, but would be allowed to write their own rules governing when, for how long, and for which reasons an injured employee can receive medical benefits and wages. Two states, Texas and Oklahoma, already allow employers to opt out of State-mandated workers’ comp. In that state, for example, Wal-Mart has written a plan that allows the company to select the physician and the arbitration company that hears disputes. A 2012 survey of Texas companies with private plans found that less half the companies offered benefits to seriously injured employees or the families of workers who died in workplace accidents. 

Oklahoma passed an opt out measure in January 2014 and the oil and gas industry along with major retailers such as Hobby Lobby pushed hard for the change. ARAWC wants to take that Texas and Oklahoma model nationwide. Seeing the workers’ compensation provision in Wisconsin’s budget bill as part of this overall “scheme” may seem paranoid, but the history of recent “deform” legislation suggest the connection is at least a possibility. 

See the complete article at http://www.motherjones.com/politics/2015/03/arawc-walmart-campaign-against-workers-compensation.

“No Trauma” Does Not Mean No Injury

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

I’ve been investigating Wisconsin and national fraud statistics in worker’s compensation to prepare for a national presentation I am making in Cape Cod in July. One fascinating and recurring basis for denial of worker’s comp claims (and potential claims against employees for fraud) stems from an insurance carrier’s review of the initial medical report.

Often the physician or emergency room nurse, physicians assistant or First Responder will ask an injured worker “Did you have any trauma?” If the answer to the question is “no”, the medical records will routinely indicate “no trauma”. This information is translated by the insurance carrier as a denial that an injury occurred. The level of medical sophistication for an injured worker is routinely limited. Most of my clients (and based on inquiries with other workers’ attorneys, their clients as well) believe a trauma is something akin to getting hit by a bus. They do not equate the notion of trauma with lifting a heavy object such as a table or a box. The criteria for traumatic injuries in most states, including Wisconsin, is that a single incident or episode caused the injury or aggravated a pre-existing condition beyond a normal progression. In many cases a lack of “traumatic injury” at the initial medical presentation is not an accurate indication of whether a traumatic injury actually occurred.

Why Injured Workers (and their lawyers) Should Care About Unemployment Compensation Changes

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

Eligibility for Unemployment Compensation in Wisconsin will change substantially in 2014.  For more than 70 years, an employee would only be found ineligible for Unemployment Compensation if he quit a job or was found guilty of “misconduct”.  Misconduct was defined under a 1941 case as “willful or wanton disregard of an employer’s interest.”  Mere inefficiency or unsatisfactory conduct or failure in good performance as a result of an inability to meet job expectations was not misconduct.

As a result of the aggressive efforts of Republican lawmakers (who ignored “agreed-upon” bill proposed by the non-partisan Unemployment Compensation Advisory Council) many workers will be deemed ineligible for Unemployment Compensation benefits. 

A new basis for disqualifying workers from receiving Unemployment Compensation benefits will be called “Substantial Fault” which may include a series of inadvertent errors made by the employee and violations of work requirements after the employer warns the employee about the infraction.

In addition, a series of situations in which a voluntary resignation would not disqualify a worker from benefits have been severely restricted. 

In the worker’s compensation arena, if an employer terminates an employee because of a work injury, or unreasonably refuses to rehire the employee after a compensable work injury, a penalty of up to one year of wages applies.  The purpose of the statute is to prevent discrimination against employees who have previously sustained injuries, and if there are positions available within the injured employee’s restrictions, to assure that the injured person goes back to work with his former employer.  This statutory protection is an exception to the general rule of “at will” employment in Wisconsin – where an employer can hire, fire, and make employment decisions for any reason or no reason at all except for a discriminatory reason defined by law (like race, gender, religion).  Under the Wisconsin Worker’s Compensation Law, a work injury is essentially an additional protected category.  The worker’s compensation Labor Industry and Review Commission has held that refusal to rehire benefits are not “back pay for Unemployment reimbursement purposes.” 

Under Unemployment Compensation law, no finding of fact or law made with respect to liability under the UC provisions is binding in an administrative proceeding under the Worker’s Comp law.  As such, the Unemployment decision generally is inadmissible in a worker’s compensation hearing.  However, some litigants attempt to use an Unemployment Insurance file for other purposes – beyond the findings of fact and conclusions of law – in a worker’s compensation hearing.  A finding in the Unemployment Compensation arena by an initial Unemployment Compensation deputy, for example, may prove admissible in the worker’s compensation arena on the issue of misconduct, thus providing the employer in a worker’s compensation claim a defense to a refusal to rehire claim.

Worker Privacy Concerns : Employers’ Access to Employees’ Prior Worker’s Compensation Claims

Today’s post comes from guest author Tom Domer, from The Domer Law Firm.

Republican legislators are feeling their oats these days. Throughout the Midwest, legislators are depriving workers of collective bargaining rights and trying to restrict workers’ rights in workers’ compensation claims.

In Missouri, workers’ compensation legislation was recently proposed that would have permitted an employer to provide a potential hire’s name and Social Security number so an employer could identify the potential employee’s prior workers’ compensation claims and the status of those claims. The Missouri Division of Workers’ Compensation estimated an online data base that would include over a half million claim records with over 10,000 records added each year.

To his credit, Democratic governor Jay Nixon vetoed this proposed online data base which would allow businesses to check a prospective employee’s workers’ compensation claims. He said it was “an affront to the privacy of our citizens and does not receive my approval.” As expected, supporters of the workers’ compensation data base (employers primarily) said the legislation would speed the hiring process and help bosses and workers. Regularly, information about workers’ compensation claims is available by written request and takes about two weeks to arrive.  Supporters of the legislation indicated the law was “preventing workers’ compensation abuses.”

Wisconsin’s workers’ compensation records are subject to Wisconsin public records law, except for records identifying an employee’s name, injury, medical condition, disability, or benefits – which are confidential.  Authorized requestors are limited to parties of the claim (the employee, the employer, and the insurance carrier), an authorized attorney or agent, a spouse or adult child of a deceased employee. Workers’ Compensation Division staff may provide limited confidential information regarding the status of claims to a legislator or government official on behalf of a party. In addition, workers’ compensation staff are not permitted by law to conduct a random search to determine if other injuries have been reported.

If the requestor is the same employer or insurance carrier involved in a prior injury, then access will be allowed. If the requestor is a different employer or insurance carrier but they make a reasonable argument that the prior injury and the current injury are related, access may be allowed. For example, the Department considers injuries “reasonably related” if the two injuries involve the same body areas.

Simply put, in Wisconsin, at least for the present, claimant information is confidential and not open to the public, other than to the parties to a current claim.