Category Archives: Wisconsin

WORKER’S COMPENSATION LEGAL UPDATE: WISCONSIN LEGISLATURE INCREASES WEEKLY PPD RATE; CHANGES AVERAGE WEEKLY WAGE CALCULATION FOR PART-TIME EMPLOYEES

By: Daniel Pedriana and Vanja Pemac

On April 8, 2022, Governor Evers signed into law 2021 Wisconsin Act 232 (The Act). The Act, sponsored by the bipartisan House Labor and Integrated Employment Committee, was passed to increase weekly permanent partial disability (PPD) benefits in addition to changing the way that the average weekly wage (AWW) for part-time employees is calculated.

Wisconsin has not raised the weekly PPD benefit rate since 2017. The Act changes the weekly PPD benefit to $415.00 for injuries occurring on or after April 10, 2022. The Act further increases the weekly PPD benefit to $430.00 for injuries occurring on or after January 1, 2023.

The new default rule in Wisconsin is that part-time work (work below 35 hours per week) is expanded to 40 hours per week for purposes of calculating the average weekly wage (AWW). The Wisconsin legislature recognizes that an injury at a part-time job can often have full-time vocational effects for employees, as an injury at one part-time job may hinder an employee’s ability to participate in other part-time job. Thus, the default expansion to a 40 hour workweek may remediate the vocational impact of a work injury.

Previously, a claimant needed to meet four conditions to be considered “part of a class” and have their hours set below 40:

  1. All class members needed to be performing the same type of work at the same location;
  2. The class of part-time employees needed to represent a minimum of 10% of all employees doing the same type of work;
  3. The claimant needed to have a regular schedule that did not vary more than five hours from week to week in the 13 weeks before the injury; and
  4. At least one other employee needed to be in the same class as the claimant.

If the claimant met all of these conditions, their hours would reflect the hours actually worked or expanded to the statutory minimum of 24 hours. If the claimant did not meet all of the conditions demonstrating a regularly scheduled class of part-time employees, their hours would be expanded to reflect a full-time schedule of 40 hours.

Now, the “part of a class” section of the law is eliminated. Any claimant who is engaged in part-time work and injured on or after April 9, 2022, will be considered full time if they worked at the part-time job for twelve months or less. If the claimant had another part-time job, they would be considered full time.

If an employee has worked at a part-time job for twelve months or more and does not have another part-time job, AWW is determined in conjunction with Wis. Stat. § 102.11(1)(ap)(1)(a) or (b), whichever is greater. Subsection (a) provides that AWW will be determined by analyzing actual average weekly earnings for the 52 calendar weeks before the injury, except for the weeks in which no work was performed. Subsection (b) provides that AWW will be determined by the employee’s hourly earnings on the date of the injury multiplied by the average weekly hours worked, except for the weeks in which no work was performed. Both calculations shall be computed and the higher of the two shall be used as the employee’s AWW.

The Act does not affect the ability of the employer to argue that the claimant is self-restricted to part-time work. An employer may rebut the default expansion to a 40 hour workweek for AWW determination by showing proof that the employee chose to work less than full time. Such evidence may include a signed statement by the employee limiting their work hours or other documentation showing an hour or shift preference. Any rebuttal by the employer does not affect the statutory minimum of a 24 hour workweek for AWW calculation.

If you have questions or need assistance, please contact the Lindner & Marsack attorney with whom you regularly work. We will continue providing updates as we learn more about the new Act.

PUBLIC SAFETY OFFICERS CAN NOW BRING A CLAIM FOR PTSD WITHOUT HAVING TO PROVE EXTRAORDINARY STRESS

By: Matthew Kurudza

Assembly Bill 11 was passed in the Senate on February 16, 2021 and presented to Governor Evers on April 22, 2021.  This bill, now known as 2021 Wisconsin Act 29 (Act), was signed by Governor Evers on April 27, 2021.  This bipartisan bill was passed to allow public safety officers – including law enforcement and firefighters – who have been diagnosed with post-traumatic stress disorder (PTSD) under certain conditions to receive worker’s compensation benefits without having to prove that the injury was caused by extraordinary stress.

Since the mid-1970’s, Wisconsin has recognized non-traumatic mental injuries in worker’s compensation.  Specifically, in the School District No. 1 v. DILHR  decision, the Wisconsin Supreme Court established the “extraordinary stress” standard for compensability.  This decision provided that a “mental injury non-traumatically caused must have resulted from a situation of greater dimensions than the day-to-day emotional strain and tension which all employees must experience.”  This standard was clarified in the Spink v. Farm Credit Services decision, where the court found “the amount of stress in the applicant’s occupation and field … served as the benchmark for comparison with the stress that the applicant claims entitles him or her to worker’s compensation.”  Later, the Jenson v. Employer’s Mutual Court further clarified the test stating the stress was “measured not by its effects on the victim, but by the unusual nature of the occupational stress itself.”  These onerous standards often prevented employees in high-stress jobs – such as public safety officers, from prevailing on a claim for PTSD.

The Act itself makes a few important changes, most notably by relaxing the existing “extraordinary stress” standard discussed above, along with setting caps on liability.  These changes are discussed in detail below:

First, the Act allows payment of worker’s compensation benefits if a public safety officer, such as law enforcement or firefighter, is diagnosed with PTSD by a licensed psychologist or psychiatrist, and the mental injury is not accompanied by a physical injury if proven by a preponderance of the evidence and the mental injury is not a result of a result of a good faith employment action by the employer. Wis. Stat §102.17(9)(b).

Second, the Act limits the liability for treatment of such injuries and claims to no more than 32 weeks after the injury is first reported. Wis. Stat §102.42(1p).

Third, it restricts the ability to claim compensation for such injuries and diagnoses to three times within an individual’s lifetime, regardless of a change in employment status. Wis. Stat §102.17(9)(c).

In short, this legislation eases the process of claiming a mental injury and obtaining covered treatment, and expenses for public safety officers by altering the previous standards for compensable non-traumatic mental injuries.

For more information about these changes, please contact your Lindner & Marsack, S.C. attorney at (414) 273-3910.

WISCONSIN SUPREME COURT STRIKES DOWN STATEWIDE MASK MANDATE

By: Samantha J. Wood and Sally A. Piefer

On Wednesday, the Wisconsin Supreme Court struck down Wisconsin’s statewide mask mandate, holding that Governor Evers exceeded his legal authority by issuing multiple emergency orders under Wis. Stat. § 323.10.   The court emphasized that the question was “not whether the Governor acted wisely; it [was] whether he acted lawfully.”  Section 323.10 specifies that no state of emergency may last longer than 60 days unless “the state of emergency is extended by joint resolution of the legislature.”  Absent legislative approval, the Governor is precluded from proclaiming repeated states of emergency.  Because Governor Evers extended the orders declaring a state of emergency on several occasions without legislative approval, his extensions were and are invalid.

Although Wisconsin’s statewide mask mandate has been struck down by virtue of the Supreme Court’s decision, employers must keep several other laws in mind in determining their next steps:

  1. Several municipalities have issued their own mask mandates, including Dane County, Milwaukee County, the City of Milwaukee, Wauwatosa and various other townships and villages. These mandates are enforceable if enacted by the municipality’s governing body. Employers should check with their local municipality and county before eliminating a mask requirement.
  1. Employers still maintain responsibilities under OSHA’s “General Duty” clause. OSHA’s General Duty clause requires an employer to furnish to its employees employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm.  Employers can be cited for a violation of the General Duty clause if a recognized hazard exists in the workplace and the employer does not take reasonable steps to prevent or abate the hazard. OSHA prepared guidance in March 2021 that encourages employers to require face coverings. That guidance can be found here.
  1. Employees may be eligible to receive worker’s compensation benefits as a result of contracting COVID-19 in the workplace if the employee can establish that the employee contracted the virus while performing services growing out of and incidental to that employment.

In determining whether to lift an employment mask requirement or policy, employers should consider the above-referenced legal considerations, as well as analyze the risks in their workplace, other sanitization or safety procedures in place, and whether, if a mask requirement will remain in place, the employer will consistently enforce a mask policy and issue corrective action to employees who violate the policy.

LINDNER & MARSACK, S.C., WELCOMES ATTORNEY MATTHEW KURUDZA TO WORKER’S COMPENSATION DEFENSE TEAM

Lindner & Marsack, S.C., announced today that Attorney Matthew Kurudza has joined the firm as an Associate on their Worker’s Compensation Defense team. Kurudza will practice out of Lindner & Marsack’s Milwaukee headquarters.

Kurudza’s practice focuses on defending worker’s compensation claims throughout Wisconsin. He comes to Lindner & Marsack with wide range of experience, having previously represented major corporations, small businesses, insurance companies and self-insured employers. In addition to his work experience, Kurudza recently served on the Board of Director for the Milwaukee Insurance Adjusters Association. He has frequently written and presented on current developments in the area of Worker’s Compensation.

“Our Worker’s Compensation Defense team is widely recognized for its depth of experience and the excellent results we achieve for our clients,” says Firm President Oyvind Wistrom. “Matthew will be a great asset to that team as we continue to deliver on our promise of providing top quality labor and employment representation and work injury defense to our clients.”

Kurudza received his law degree from Marquette University Law School in 2014 and his Bachelor of Business Administration in Marketing from the University of Wisconsin-Whitewater in 2009. He is licensed to practice in the State of Wisconsin and is a member of the State Bar of Wisconsin and the Wisconsin Association of Worker’s Compensation Attorneys (WAWCA).

LINDNER & MARSACK, S.C., ANNOUNCES 2020 SUPER LAWYER AND BEST LAWYER DESIGNATIONS

Lindner & Marsack, S.C., today announced five attorneys acknowledged by Super Lawyers magazine. Honorees include Douglas M. Feldman, Thomas W. Mackenzie, Gary A. Marsack, Jonathan T. Swain and Oyvind Wistrom. All were also recognized as Best Lawyers by U.S. News & World Report, along with Daniel J. Finerty. The firm itself has also once again been selected as a Best Law Firm (for 2021) in the U.S. News & World Report rankings.

“Our team never missed a beat, despite the challenges faced in 2020 by law firms and clients alike,” said Wistrom, President of Lindner & Marsack. “We’re especially honored that the dedication and tenacity of these attorneys has shone through and been acknowledged by their peers by Super Lawyers and by U.S. News & World Report.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. Attorneys are selected using a rigorous, multi-phase rating process in which peer nominations and evaluations are combined with third party research. The objective of the program is to create a credible, comprehensive, and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.

Similarly, Best Lawyers rankings are based on a rigorous process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process.

“This recognition highlights the accomplishments of several individual attorneys as well as the quality of work provided by the entire firm,” said Wistrom. “Every single day, we pride ourselves on helping employers in Wisconsin and across the country minimize risk and navigate their toughest legal challenges.”

Workers’ Compensation in a Post COVID World

Lindner & Marsack, as the Wisconsin firm member of the National Workers Compensation Defense Network, would like to invite you to this year’s NWCDN virtual annual conference. This year’s conference is “Workers’ Compensation in a Post COVID World.”  The day-long program will focus on both COVID and COVID inspired topics with presenters including a Director from the CDC, the Senior Contributing Editor for the AMA Guides, leaders of industry, the Plaintiffs’ bar and the judiciary from all over the country.

 

This free daylong seminar features not only the main stage speakers, but a second stage that includes panel discussions comprised of law firms from all over the country providing both COVID and non COVID state specific updates.  Click the registration link below and we look forward to “seeing” you on November 12, 2020.

 

Thursday, November 12, 2020,

COMPLIMENTARY VIRTUAL SEMINAR

from 10:00 a.m. to 6:00 p.m. EST

 

Click here to Register Now!

Court Extends Temporary Restraining Order Blocking Wisconsin Governor From Releasing Names of Companies with Positive COVID Cases

By: Sally A. Piefer

Last week we reported that Governor Evers planned to release the names of more than 1,000 businesses who have had 2 or more employees test positive for COVID-19. The Wisconsin Manufacturers & Commerce (WMC) reported that it had been regularly urging the Governor to keep this information confidential. WMC claimed that a letter was sent to the Governor in July 2020 describing the legal implications of releasing the names of businesses who had COVID-positive cases among its employee ranks. WMC says that it reached out again to the Governor’s office, but received no response before it alerted its membership of the impending information release. On October 1, the WMC, along with two local chambers of commerce, filed suit and obtained a temporary restraining order (TRO) blocking the release of this information.

This morning a court hearing was conducted by Zoom. Based on the arguments of counsel, the Court decided to extend the TRO until the parties have had an opportunity to fully brief the issues and for the Court to make an informed decision. The next hearing is scheduled for November 30, 2020 at 2:00 p.m. The parties, along with the Milwaukee Journal Sentinel, who intervened in the case, will be filing a variety of briefs between October 9th and November 6th.

We will continue to provide updated information as it becomes available. Should you have any questions, please feel free to contact Sally Piefer or your normal contact at Lindner & Marsack.

COURT ISSUES TEMPORARY RESTRAINING ORDER PREVENTING WISCONSIN GOVERNOR FROM RELEASING NAMES OF BUSINESSES EXPERIENCING COVID CASES

By Sally Piefer

Yesterday we reported that, despite repeated requests from the Wisconsin Manufacturers & Commerce (WMC), Wisconsin’s Governor Evers was set to release to the public the names of Wisconsin businesses who have had at least 2 employees test positive for COVID. The release of business names was scheduled for Friday, October 2, 2020.

Yesterday, the WMC, along with two other local Chambers of Commerce, filed a lawsuit in Waukesha County Court on the issue. The WMC and the Chambers also sought a temporary restraining order (TRO), asking the Court to immediately prevent the Governor’s office from taking the proposed action.

The Waukesha County judge granted the TRO request late on Thursday afternoon. The Order reads:

Upon the motion of Plaintiffs Wisconsin Manufacturers and Commerce, Muskego Area Chamber of Commerce, and New Berlin Chamber of Commerce and Visitors Bureau, pursuant to Wis. Stat. § 813.025 and for good cause shown;

It is hereby Ordered that Defendants Tony Evers, Andrea Palm, and Joel Brennan, and their officers, agents, and employees (collectively referred to as “Defendants”), are temporarily restrained from releasing any information relating to businesses whose employees have tested positive for COVID-19 or who contract tracing has shown close connections.

This Order shall remain in effect for 5 days unless extended after notice and hearing.

The Court will likely be scheduling a hearing on the request for a preliminary injunction either next week or the week after. Typically, TRO’s can be in effect for up to 5 days, unless extended by agreement of the parties. We will continue to keep you abreast of further developments on this issue. Should you have any questions, please feel free to contact Sally Piefer or your normal contact at Lindner & Marsack.

Wisconsin Manufacturers & Commerce Reports Wisconsin Governor to Release Names of Companies with Positive COVID Cases

By: Sally A. Piefer

Yesterday afternoon, the Wisconsin Manufacturers & Commerce (WMC) notified its members that Governor Evers plans to release the names of more than 1,000 businesses who have had 2 or more employees test positive for COVID-19. The release is reportedly scheduled to occur tomorrow, Friday, October 2, 2020.

During the summer, Governor Evers said publicly that his administration would not release business names where employees tested positive for COVID because it was “information that’s not public.” In addition, during a September press event, Governor Evers is reported to have acknowledged that releasing the information could pose privacy issues.

The WMC has been regularly urging the Governor to keep this information confidential. WMC retained legal counsel who wrote a letter to the Governor in July 2020 describing the legal implications of releasing the names of businesses who had COVID-positive cases among its employee ranks. WMC says that it reached out again to the Governor’s office yesterday, but received no response before it alerted its membership of the impending information release.

We will continue to provide updated information as it becomes available.

If you have questions, please contact Sally Piefer or your normal Lindner & Marsack attorney.

WI Work Comp Forum – October 8, 2020

The Wisconsin Worker’s Compensation Forum (WIWC) invites you to attend an all-virtual, one-day educational event on October 8, 2020.  You can expect the same quality speakers and topics as you would normally see during our annual conference, but now you can enjoy them from the comfort of your own home!  Additionally, we are offering opportunities for giveaways and social interaction with our sponsors.  With panel discussions and sessions on a variety of current worker’s compensation topics, this is a seminar you won’t want to miss!

Register now, as the first 300 people to do so will receive a goodie bag filled with swag from some of our sponsors.  Spots are filling up fast so register today!

General Attendees – $45

Attorneys (with included CLEs) – $80

Lindner & Marsack is proud to be a founding member of the Wisconsin Worker’s Compensation Forum where our own Chelsie Springstead serves as the current President.