Robert Dean, Hennessy & Roach

Wisconsin Legal Update
OSI’s WC Conference
April 17, 2014
Presented by Robert W. Dean
Changes to the WC Law
The Advisory Council is composed of an equal
number of voting members from Business &
Council members hold hearings throughout
Council also reviews proposals from all sources
Wisconsin WC Advisory Council submits an
Agreed Upon Bill to Legislature for changes to
Wisconsin WC Advisory Council
To find out addresses for current members
Have suggestions or ideas?
Give them a call or write a letter/email
Ideas from all sides will lead to more consensus
Wisconsin WC Advisory Council
Council also has ex-officio legislative
members who can be contacted for
suggestions (see website for details)
 Latest Agreed Upon Bill was introduced in
the Wisconsin Legislature on January 31,
Assembly Bill 711
 Senate Bill 550
2013 Bills to change WC
Legislative Session ended April 1, 2014
 Both Bills ‘died’ in respective chambers
within referred committees
 However, based on calls to Madison,
another WC Bill will be introduced in the
next session
What Happened to 2013 Bill?
Several proposed amendments created
Medical costs provisions creating a fee structure
Providers could not charge more than 10% above the
average paid by state group health plans
Continuation of Health Coverage
Created a new WC benefit to require WC to pay injured
worker health care insurance premiums during healing
period to avoid loss of coverage
What Happened to 2013 Bill?
Statute of Limitations to drop from 12 to 9 years for
Traumatic Injuries (still 12 years for occupational)
 Vocational retraining could be granted via
interlocutory order
 PPD rate to go up to $337/wk for injuries in 2014
 PPD rate to go up to $352/wk for injuries in 2015
 Other proposed changes regarding appeals
process to Circuit Court to avoid dismissals for
failure to join a necessary party
What Happened to 2013 Bill?
Based on concerns (and lobbying) from
various groups, the legislation stalled
 Since similar amendments will likely be
re-introduced next year, consider getting
involved with the Advisory Council by:
Attending a Meeting
 Writing a letter to a Member
Updated Case Law
Will discuss several topics
 Please note that unpublished decisions
are not binding law
 However, they can be considered for
persuasive legal authority
 Thus, will consider some unpublished
Liberty Mutual Fire Insurance Co.
v. Voight
2013AP198 (Oct. 15, 2013)
(Unpublished Decision)
Limited Compromise Agreements
Facts: Claimed Elbow Injury
Right elbow injury. After elbow surgery, applicant
experienced severe pain and numbness with forearm,
hand and finger pain. Second surgery relieved some
symptoms, but continued to experience hand issues.
Treater issued 20% PPD rating to the right elbow for
chronic pain, weakness, and loss of sensation. IME
doctor found 3% PPD rating at the right elbow for
pain, diminished grip strength, and sensory changes
in the hand and finger.
Facts: Limited Compromise
Agreement: $21,000 for 20% credit toward “any
future claims for permanent partial disability.”
Limited compromise was a full settlement of liability
for indemnity and all expenses through the date the
settlement was executed.
Limited compromise would have “no effect on the
applicant’s ability to seek further benefits” under
workers compensation.
Facts: Claimed Right Wrist Injury
Applicant sought 45% PPD rating for the right wrist.
Respondents denied the claim: 1) claim was
foreclosed by the 2007 limited compromise
agreement; and 2) disability must be rated at the
elbow joint, the site of the occupational injury.
ALJ dismissed the claim finding it was closed out by
the limited compromise agreement.
ALJ rejected the argument that disability must be
rated at the elbow.
Appeal to Labor & Industrial Review
Commission ordered taking of new evidence. Included different IME that
attributed wrist symptoms to unintentional injury sustained during the
work-related elbow surgery. IME concluded no longer any disability at the
elbow, but a 45% PPD rating at the right wrist (consistent with treaters
Commission found that applicant sustained a 45% PPD rating to the wrist
attributable to the effects of the work-related right elbow injury.
Further determined that limited compromise agreement did not represent
a final settlement of applicant’s claim. Agreement did not effect
applicant’s ability to seek further benefits.
Commission awarded the 45% PPD rating. Commission then applied the
offset required by the limited compromise agreement. Awarded a total of
Issue on Appeal
Respondents argued that the 2007 settlement
foreclosed applicant's wrist claim.
 Symptomatic foundations of the two claims
were identical and characterized by right hand
pain and weakness as well as diminished grip
strength and sensation.
 Applicant should be bound by his initial choice
to bring his claim as an elbow injury.
Wisconsin Court of Appeals
Court found that the settlement agreement effectively paid the applicant
$21,000 for “a credit of 20 percent permanent partial disability to the right
elbow toward any future claims for permanent partial disability.”
It further noted that the settlement had a limited scope – covering only the
liability accrued through the agreement’s execution.
Highlighted that the agreement further provided that it would have no
effect on the applicant’s ability to seek further WC benefits and that the
respondents had explicitly reserved all rights and defenses to future claims.
Concluded that the agreement’s language supported the Commission’s
Wisconsin Court of Appeals (cont.)
The Court rejected the argument that ‘downstream’ (distal)
disabilities like the wrist are subsumed by the disability at the
elbow. Noted that the Commission had cited two of its prior
cases to make this determination.
In the cited decisions, the Commission had noted that it was
technically correct to assess separate disabilities separately and
not to combine them. However, in cases where the medical
testimony does not make separate assessment the commission
would merely uphold the most credible of the opinions.
Moral to Story: Speak to your Attorneys regarding scope of
Sohn Manufacturing Inc.
2012AP2566 (Aug. 7, 2013)
Penalties Case
The applicant injured her hand when it was pulled
into a machine she was cleaning.
The employer’s practice at the time of the accident
was to have employees clean the machines while they
were running.
A state investigation concluded that the employer had
not complied with an Occupational Safety and Health
Administration (OSHA) standard related to safe shutdown procedures when servicing machines and WIS.
STAT. § 101.11 – the safe place statute.
Whether the employer is liable for a penalty
payment under WIS. STAT. § 102.57, when it
is found to have violated an OSHA regulation
or state statute.
102.57 provides an extra fifteen percent of the
damages award, capped at $15,000, when
employees’ workplace injuries are caused by their
employers’ safety violations.
The applicant was awarded increased
compensation under a Wisconsin penalty
statute based on the employer’s violation of a
federal safety regulation.
Issue on Appeal
On appeal, the employer raised two arguments:
 (1) that federal work condition law preempts
Wisconsin’s ability to award penalty payments
under WIS. STAT. § 102.57.
 (2) that violations of the safe place statute and
of federal regulations may not form the basis
for an increased compensation award under
§ 102.57.
The Court of Appeals rejected the preemption argument:
Explicit clause in the OSH Act stating the Act shall not
supersede or affect any workmen’s compensation law.
The court also rejected the employer’s argument that § 102.57
constituted an enforcement of federal law:
Statute was plainly a state worker’s compensation law that
allows increased worker’s compensation benefits if found that
the employer also failed to comply with any statute, rule, or
order of the department.
In this case, the employer directly failed to comply with the
Wisconsin’s safe place statute - WIS. STAT. § 101.11
The court also rejected the employers argument that
the OSHA Standard cannot be used to justify an
increased penalty under § 102.57 because the OSHA
Standard is not “a statute, rule, or order of the
Held that the employer’s OSHA violation was not a
law used to establish the increased penalty;
Rather the violation was used as evidence that the
employer violated Wisconsin’s safe place statute - a
valid law for purposes of the state’s increased penalty.
Milwaukee Transport Services Inc.
2012AP2255 (June 4, 2013)
(Unpublished Decision)
Deviation from Employment
The employee, a bus driver, was injured while attempting
to chase an unruly passenger.
The employee had informed the passenger that his
transfer ticket was not valid and asked him to leave. The
passenger cursed at the employee, threw a fake punch,
spit on him and ran.
In response, the employee ran off the bus in pursuit.
Within a few steps, the employee fell, crawled back onto
the bus, and continued his route. The employee was later
diagnosed with a ruptured left Achilles tendon and a right
quadriceps tendon, which were surgically repaired.
Whether the injuries occurred in the scope
of employment.
The administrative law judge found that the employee
was not entitled to worker’s compensation because he
violated several employment rules of the employer in
pursuing the passenger. These violations amounted to a
deviation from his employment.
Though, the ALJ admitted “that I probably would have acted the
same way.”
The Commission reversed the ALJ decision.
The Commission did assume that the employee deviated from
his employment by leaving the bus.
However, the Commission held that the employee’s response
was “unquestionably impulsive” and that the deviation was
The circuit court affirmed the Commission’s ruling.
The court of appeals found that “great weight”
deference applied to the Commission’s decision
because it had been specially tasked with
administering the worker’s compensation statute.
The court affirmed that current Wisconsin case law
maintained that an impulsive, momentary, and
insubstantial deviation would not bar recovery.
Here, considering the events the employee faced, the
court held that the Commission’s ruling was “under
the circumstances of the case, entirely reasonable.”
County of Outagamie
2013AP217 (July 30, 2013)
(Unpublished Decision)
Special Errand
Applicant was a maintenance worker for the county.
County maintenance workers were subject to
rotational “pager duty” which required a worker to
carry and respond to emergency pages on nights and
 Upon
receiving a page, a worker was required to report to
the maintenance building within thirty minutes.
 A worker
was paid overtime from the moment the worker
received the page until the worker resumed the activity he
was doing when he received the page.
Facts: Scope of Employment
On a Sunday night, the applicant, while relaxing at
home, received a page to fix a jail door.
That night, the area was in the midst of an ice storm.
After fixing the door, the applicant drove home and
parked in his garage.
However, to reenter his house, the applicant needed to
step on his driveway, which was glazed with ice. The
applicant slipped on the ice, fell and injured himself.
Primary Issue: Whether the injury occurred
within the course of employment.
The administrative law judge determined the
applicant was injured in the course of his employment
because he was on a “special errand” for the county
that had not yet concluded.
 The ALJ
based his decision in part on the fact that the
applicant was being paid overtime at the moment he was
The Commission and circuit court affirmed.
First, the appellate court conceded that the typical
employee going to or from work is not covered until
he or she reaches the employer’s premises.
However, the court noted that there are exceptions to
this rule, including a “special errand” performed by
the employee for the direct benefit of the employer.
The “special errand” covers an employee from the
time the employee crosses the portal of his home to
the time the employee returns to his home.
The court affirmed the applicant’s coverage because
he was still in the process of returning from his trip
and had not resumed his personal activities.
The court noted:
 The
applicant was relaxing inside his house when he
received the emergency page.
 The page required him to leave the comforts of his home to
travel in the ice storm, and
 After completing the work the applicant was required to
step on the icy driveway in order to reenter his house.
Thus, the applicant had not resumed his personal oncall activities.
Northland Equipment Company,
2012AP580 (March 7, 2013)
(Unpublished Decision)
Subrogation Claims
The employee suffered a spinal cord injury while
plowing snow for his employer—a municipality.
The plow had been repaired and re-sold to the
municipality by a third-party.
The employee brought a personal injury claim
against the company. The employer was joined as a
party because it had paid worker’s compensation
benefits to the employee.
Facts: Compelled Settlement
Prior to trial, the employer moved the court
to compel settlement of the case on the
third-party’s $200,000 offer.
In support of its motion, the employer cited
WIS. STAT. § 102.29(1)(a) which provides
that an employer or worker’s compensation
carrier has the same right as the injured
employee to make a tort claim against a
third-party for the employee’s injury.
Facts: Compelled Settlement
After a motion hearing, the court granted the
employer’s motion to compel settlement.
The court found that the employee had a
difficult case on liability and cause and that the
risk of a no liability jury verdict exceeded the
possibility of recovering more than $200,000.
1) The order violated the employee’s right to a jury
2) The court was required to conduct an evidentiary
hearing prior to compelling acceptance; and
3) The court erroneously exercised its discretion in
determining the settlement was fair.
HOLDING: No, on all three
 The
court of appeals cited case precedent
and § 102.29(1)(a) in holding that the
court, without a jury trial, can pass upon a
dispute where claimants under the statute
cannot agree on the proper prosecution of
a claim against a third-party tortfeasor.
The court further cited Dalka v. American
Family Mut. Ins. Co., 2011 WI App 90, which
held that the constitutional right to a jury trial
is waived by the employee’s acceptance of
worker’s compensation benefits and maintains
the court’s authority to compel acceptance of a
The appellate court also rejected the employee’s appeal for
an evidentiary hearing on the settlement motion.
The court found that the trial court was merely being
asked to resolve a dispute between joined plaintiffs and
was not being asked to decide disputed issues of fact.
Thus, the procedural protections of Due Process did not
entitle the employee to a full evidentiary hearing that
would amount to a mini-trial of the personal injury claim.
The court noted that the employee was given notice of
the motion and a sufficient hearing to advance his
Finally, the court ruled that the trial judge properly
exercised discretion in compelling the settlement.
The court noted there were proof problems on
liability and causation because of a seat belt defense.
Citing Dalka, the court noted that it is appropriate
for the court to inquire into the nature and strength
of the case in deciding whether to compel
acceptance of a settlement.
Here, the ALJ’s decision reflected a “logical
interpretation” of the facts surrounding the
settlement offer.
Thank you!
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