Workers' Compensation: Milwaukee

Showing posts with label Milwaukee. Show all posts

Wednesday, November 13, 2013

Wisconsin Supreme Court Hears Arguments on Collective Bargaining Law

Today's post was shared by Steven Greenhouse and comes from www.nytimes.com

The Wisconsin Supreme Court on Monday heard arguments on the constitutionality of a 2011 law that all but eliminated collective bargaining for most public employees.

The law, which prompted large protests and thrust the Republican administration of Gov. Scott Walker into the national spotlight, has divided the state along partisan lines for more than two years. The latest battle has centered largely on a broad legal question: Can state lawmakers so significantly curtail collective bargaining that union membership is made less desirable?

“I don’t believe the two ships pass in the night,” J. B. Van Hollen, the attorney general of Wisconsin, said when asked by a judge about the dueling legal theories. “I believe they collide.”

Mr. Van Hollen argued that group bargaining was not a constitutional guarantee but rather a “benefit” permitted by lawmakers. He added that he believed state officials had a “bigger ship” and would win in the end.

The law, which led to a failed attempt to remove Mr. Walker from office last year, has been challenged by a teachers union in Madison and by a labor group representing employees of the city of Milwaukee. Both plaintiffs contend that the measure violates freedom of association rights and equal protection of the law by subjecting unionized public employees to burdens not faced by their nonunion colleagues.

“If you are an employee and you choose to associate in this activity, you will be...

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Thursday, October 17, 2013

This Is Your Brain on Toxins

The need for regulation and responsibility is the focus of this very interesting article that appears in The New York Times today. Today's post is shared from nytimes.org

“Lead helps to guard your health.”

That was the marketing line that the former National Lead Company used decades ago to sell lead-based household paints. Yet we now know that lead was poisoning millions of children and permanently damaging their brains. Tens of thousands of children died, and countless millions were left mentally impaired.

One boy, Sam, born in Milwaukee in 1990, “thrived as a baby,” according to his medical record. But then, as a toddler, he began to chew on lead paint or suck on fingers with lead dust, and his blood showed soaring lead levels.

Sam’s family moved homes, but it was no use. At age 3, he was hospitalized for five days because of lead poisoning, and in kindergarten his teachers noticed that he had speech problems. He struggled through school, and doctors concluded that he had “permanent and irreversible” deficiencies in brain function.

Sam’s story appears in “Lead Wars,” a book by Gerald Markowitz and David Rosner published this year that chronicles the monstrous irresponsibility of companies in the lead industry over the course of the 20th century. Eventually, over industry protests, came regulation and the removal of lead from gasoline. As a result, lead levels of American children have declined 90 percent...

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Friday, September 23, 2011

Bad Cases Make Bad Law

Guest Blog by Thomas M. Domer

The Illinois legislature just passed a law in response to a notorious claim in which a Sheriff Deputy, driving more than 100 miles per hour while using his cell phone, crossed a median and slammed into a car, killing two teenage sisters.

The claim drew regional and national attention and ultimately resulted in a revision in Illinois’ workers' compensation claims that would prevent any State employee hurt at work from being eligible for workers' compensation if the injury happened during a forcible felony, an aggravated DUI, or reckless homicide, if any of those crimes killed or injured another person.

The law is much more restrictive than the initial media summaries blaring “State law bars State employees injured while committing crimes from receiving worker’s comp.”

This is another example of bad cases creating bad law. The Sheriff filed a workers' compensation claim for his injuries but an arbitrator concluded that his high speed and cell phone use was a “substantial and unjustifiable risk resulting in gross deviation” barring his claim. The Illinois legislature reacted to the media and public outcry.

In other states, notably Wisconsin, an advisory council meets annually to deal with such perceived excesses, and to change the law accordingly.

A few years ago I represented a worker who, despite his employer’s offer to re-employ him with his disability, chose instead to obtain vocational rehabilitation, which was ordered by a judge and the Commission. His claim seemed to run afoul of the express purpose of worker’s compensation in Wisconsin and other states, which is to restore the injured worker to a job.

After the case was reported, the employer and insurance carrier representatives on Wisconsin’s Advisory Council recommended (appropriately) this perceived loophole be closed, and the new law barred the employer’s liability for vocational rehabilitation benefits if the employer offered a job to the injured worker which was refused.

Since the early days of workers' compensation in Wisconsin the courts have liberally construed “in the course of employment.” Absent evidence of abandonment of employment, it is presumed employment continues, except if a deviation can be proved.

Poor judgment or negligence is not synonymous with deviation and an employee must willfully abandon job duties to be excluded. If an employee is injured while engaging in an activity and disobedience of an order of the employer solely for the employee’s own benefit, workers' compensation benefits will be denied. However, if the disobedient actions were in furtherance of the employer’s interest rather than the employee’s, compensation is granted.

As one workers' compensation veteran judge has noted, “even bad employees get compensation.” The no-fault nature of workers' compensation sometimes produces hard-to-swallow results.

Thomas M. Domer practices in Milwaukee, Wisconsin (www.domerlaw.com). He has authored and edited several publications including the legal treatise Wisconsin Workers' Compensation Law (West) and he is the Editor of the national publication, Workers' First Watch. Tom is past chair of the Workers' Compensation Section of the American Association for Justice. He is a charter Fellow in the College of Workers' Compensation Lawyers. He co-authors the nationally recognized Wisconsin Workers' Compensation Experts.

Wednesday, April 13, 2011

Wisconsin and Workers' Comp "Reform"

Guest Blog by Thomas M. Domer

Headlines screaming for “Workers’ Comp Reform” are blaring in many states (CA,FL, NY, OH, NC, and most recently IL). In Illinois, the state’s much-criticized system is under fire and legislation to totally dismantle the system is proposed. Wisconsin has thus far managed to dodge partisan efforts to scrap the system due in large part to the stabilizing effect of the Wisconsin Workers’ Comp Advisory Council. The Wisconsin Worker's Compensation Advisory Council was created in 1975 to advise the Department and legislature on policy matters concerning the development and administration of the workers' compensation law. The Council aims to maintain the overall stability of the workers' compensation system without regard to partisan changes in the legislative or executive branches of government. The Council provides a vehicle for labor and management representatives to play a direct role in recommending changes in the workers' compensation law to the legislature.

The council, composed of five labor, five management and three non-voting insurance members appointed by the secretary of the Department of Workforce Development and chaired by a department employee, meets regularly at different sites around Wisconsin. It occasionally assigns special topics to study committees on such issues as medical costs, permanent total disability rates and attorney's fees. The medical committee assigned in the mid-1990's to report on minimum permanency percentages for surgical procedures, for example, issued its findings which resulted in the schedule contained in the Administrative Code.

The Council obtains input from various workers' compensation constituents including interested members of the legal, medical, labor, management, insurance and employer communities. Public hearings on proposed changes are held, followed by Advisory Council deliberations. The Council has always produced an “agreed upon bill” which results in annual changes in benefit rates and substantive law. The bill proceeds to the Labor Committees in the Wisconsin Assembly and Senate where, after passage, the Governor signs the bill into law. (Republican Governor Scott Walker’s recent attempt to eviscerate public sector bargaining, which prompted the infamous flight to Illinois of the “Wisconsin 14” Democratic Senators, has had a “spillover” affect even on the Council. Labor members, in response to the Governor’s union-busting efforts, have boycotted the last 2 Council meetings).

Wednesday, March 30, 2011

Drugs, Alcohol and Mauling Bears

Guest Blog by Thomas M. Domer

I’ve received dozens of emails and phone calls from friends and colleagues railing on the Montana court ruling granting workers’ comp benefits to a man high on pot when a grizzly mauled him at a nature park. “How ridiculous, how unfair!” rings the common theme from almost every caller.

In response, I remind folks that the court said grizzlies are ”equal opportunity maulers”, and no proof existed that the man provoked the attack because he was high. I also remind everyone that workers’ comp is a no-fault insurance system, where concepts like “fairness” are all very relative.

Many states, including Wisconsin, hold that if an injury results from intoxication (by alcohol or drugs) benefits are not denied, but reduced (usually by 15%) as an employee safety violation, but intoxication is not evidence of a deviation if the employee is otherwise in the course of employment. The much-heralded “Frozen Fingers” case in Wisconsin confirmed that rule, where a salesman was so drunk he couldn’t open his own door, passed out and has his frostbitten fingers amputated. Benefits were awarded, but reduced by 15%.

Tuesday, March 15, 2011

Worker's Comp, Walker, and Wisconsin’s Wailing

Guest Blog by Thomas M. Domer

What’s the connection between worker’s comp and Wisconsin Governor Walker’s assault on public sector bargaining rights? The immediate effect is that public sector workers will earn less money, and when hurt on the job, get less worker’s comp benefits. Over the longer term, denying the unions’ right to bargain over health benefits and working conditions will have significant effects.

Many public sector workers (cops, firefighters, teachers, city and county workers), will fall into the “no health insurance” heap that affects many private sector employees currently. When their claims are denied by the self-insured employer (the city, county, or school district), employees will not be able to get timely needed medical care for their injuries. And, to be sure, cities, counties and school districts will be under tons of political pressure to tighten their belts and budgets by denying claims with greater frequency. Lastly, since unions won’t be able to bargain over working conditions, safety issues will arise at a predictably larger rate. Workers will be at risk by the “corner-cutting” measures put in place by the budget slashing, no tax increase political mandate the ruling party possesses.

Thomas M. Domer practices in Milwaukee, Wisconsin (www.domerlaw.com). He has authored and edited several publications including the legal treatise Wisconsin Workers' Compensation Law (West) and he is the Editor of the national publication, Workers' First Watch. Tom is past chair of the Workers' Compensation Section of the American Association for Justice. He is a charter Fellow in the College of Workers' Compensation Lawyers. He co-authors the nationally recognized Wisconsin Workers' Compensation Experts Blog.

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Wednesday, November 13, 2013

Wisconsin Supreme Court Hears Arguments on Collective Bargaining Law