Category Archives: Workers’ Comp

National Worker’s Compensation Defense Network Seminar – September 26, 2019 in Chicago

Lindner & Marsack, S.C. is well recognized both locally and nationally for its workers’ compensation defense practice. Our work injury defense team routinely represents many of the state’s largest employers and insurance carriers and has developed a reputation of excellence throughout the workers’ compensation industry. Lindner & Marsack is one of the founding members of the National Workers’ Compensation Defense Network (NWCDN) and Douglas Feldman, the managing partner of our workers’ compensation practice, sits on the Board of Directors of the NWCDN. Additionally, two of our partners, Chelsie Springstead and Melissa Stone, serve as members of the planning committee for this year’s seminar, which features cutting edge topics geared towards helping your companies manage your workers’ compensation programs. More information on this highly respected industry organization can be found by visiting their website at www.NWCDN.com.

The NWCDN is pleased to announce its 2019 Fall seminar, returning this year on September 26, 2019, to beautiful downtown Chicago, Illinois. Join us at our cocktail reception on September 25, 2019 from 6:00 p.m. – 8:00 p.m. at The Intercontinental Hotel (located at 505 N. Michigan Avenue). The seminar kicks off on September 26, 2019, also at the Intercontinental Hotel, with registration at 8:00 a.m. As always, our topics are geared towards the practical realities of claims management with a focus on implementing best practices and learning from experienced professionals. Topics this year include:

– The Ethical Challenges of Anti-Engagement

– Exploring Advocacy-Based Claims Management

– The Impact of Medical Marijuana

– The Guo Technique: Thread Carpal Tunnel Release

– Our famous “break-out” sessions with state-specific panels focused on challenges and trends in 2019

There is no cost for attending this exciting event but space is limited so we encourage you to register early. Please visit the website to REGISTER NOW for the conference at www.nwcdn.com. Don’t miss out on this opportunity to obtain current state-by-state information from workers’ compensation attorneys throughout the country. 

For more information on Lindner & Marsack’s Work Injury Defense team, feel free to contact any member of our practice group. We look forward to seeing many of you at this exciting upcoming industry event.

EMPLOYEE NOT ENTITLED TO FURTHER WORKER’S COMPENSATION BENEFITS BECAUSE HER DISABILITY-CAUSING SURGERY WAS NOT RELATED TO A COMPENSABLE WORK INJURY

By:      Daniel M. Pedriana and Claudia R. Harke

On August 28, 2018, District I of the Wisconsin Court of Appeals held that the Plaintiff was not entitled to further worker’s compensation benefits because her disability-causing surgery was not related to a compensable work injury.

In Theresa Payton-Myrick v. LIRC, Theresa Payton-Myrick was diagnosed with arthritic changes and degenerative disc disease in her spine. Payton-Myrick was employed as an administrative assistant at the University of Wisconsin-Milwaukee. On July 21, 2009, she fell out of her desk chair and sustained several muscle strains. She subsequently received opinions from several doctors, one of whom recommended a spinal fusion surgery.

Despite conflicting medical opinions, Payton-Myrick underwent surgery, which resulted in multiple procedures and left her “arguably disabled.” Payton-Myrick applied for worker’s compensation benefits. The UW System denied her benefits, which caused Payton-Myrick to file a worker’s compensation claim.

An administrative law judge concluded that Payton-Myrick had “suffered a work-related injury that aggravated Payton-Myrick’s back condition beyond its normal progression” and that “the treatment, including surgery, was necessary and reasonable.”

The Labor and Industry Review Commission (“LIRC”) reversed the ALJ and found that Payton-Myrick’s muscle strains were from a compensable work injury, however, the work injury had healed and did not aggravate her pre-existing condition enough to necessitate surgery. LIRC also made several factual findings including that Payton-Myrick’s disability causing surgeries treated her pre-existing condition, not her compensable work injury.

The Court of Appeals upheld LIRC’s denial of further benefits based on a holding from the Wisconsin Supreme Court in Flug v. LIRC. In Flug, the Supreme Court ruled that Wis. Stat. § 102.42(1m), which states that if an employee who has sustained a compensable injury undertakes treatment in good faith that is medically acceptable, but unnecessary, the employer shall pay for all disability incurred as a result, only applies if the unnecessary, but acceptable surgery is to address the workplace injury.

Since LIRC made a factual finding that Payton-Myrick’s two spinal surgeries were focused on her pre-existing disc problems, not the workplace injury, the Court of Appeals upheld LIRC’s denial of further benefits.

This Decision does not drastically change the law surrounding whether an employee is entitled to further worker’s compensation benefits, however, it reinforces that Wis. Stat. § 102.42(1m) only applies if the unnecessary-but-acceptable surgery was done to address the workplace injury. However, it will be important to have treating and independent doctors specifically note the reason for an employee undergoing an unnecessary-but-acceptable surgery, as that will determine whether they are owed additional benefits.

The time to appeal this decision has passed and the decision remains unpublished.

If you have questions about this decision, please contact Daniel M. Pedriana by email at dpedriana@lindner-marsack.com or Claudia R. Harke by email at charke@lindner-marsack.com or any other attorney with whom you have been working with at Lindner & Marsack, S.C.

REGISTER NOW! ANNUAL COMPLIANCE/BEST PRACTICES REVIEW

WHEN: May 23, 2018

8:00 a.m. – 12:00 p.m.

WHERE: Sheraton Milwaukee Brookfield Hotel

375 South Moorland Road

Brookfield, WI

Registration and a continental breakfast will be served beginning at 7:30 a.m.  Click here to register.

This COMPLIMENTARY half-day event will address the latest labor and employment topics impacting employers including:

  • Legal Updates – Labor, Employment and Worker’s Compensation
  • In Search of the Truth for Workplace Investigations: What are the Legal Pitfalls?
  • The Role of Human Resources in Protecting Company Information Before, During and After the Employment Relationship
  • Best and Worst Practices: Common Corporate, HR and Employment Policies that Hinder Employers’ Work Comp Claims and Create FMLA and Disability Law Nightmares
  • Stump the Chumps: Our panel of experts will address all of your burning employment questions

2018 Worker’s Compensation Gamble

Lindner & Marsack’s worker’s compensation defense practice is well recognized as an industry leader in providing work injury defense services to many of Wisconsin’s largest employers and insurance carriers.

Doug Feldman heads the Firm’s highly regarded work injury defense team and is a founding Board Member and current President of Kids’ Chance of Wisconsin.  Kids’ Chance is a non-profit organization that provides college scholarships to children of seriously injured workers in Wisconsin.

Kids’ Chance of Wisconsin is presenting a complimentary half-day worker’s compensation seminar on March 8, 2018 at Potawatomi Hotel and Casino, followed by a networking cocktail hour and raffle.  This year’s conference will focus on the opiate crisis in this country and its impact on workers compensation claims.  Funds raised at the event will directly support the Kids’ Chance mission of providing financial support, in the form of scholarships, to children of parents who have been seriously injured at work.

We encourage you to attend this dynamic and thought provoking conference. If you are interested in attending this event, click Kids’ Chance of WI – Here’s The Deal Seminar – March 8, 2018 for more information.

Lindner & Marsack owes much of its success to its good friends and clients in Wisconsin and is proud to support this worthy endeavor and give back to the community in such a meaningful way. We hope you will consider joining us for this educational opportunity.

 

Employers Who Utilize Temporary Or Loaned Employees Are Now Potentially Liable For Third Party Claims Brought By An Injured Employee

By:  Daniel Pedriana, Joseph Birdsall and Claudia Harke

On January 9, 2018, District III of the Wisconsin Court of Appeals decided that Wis. Stat. § 102.29(6)(b)1 allows an injured temporary employee to choose between filing a worker’s compensation claim and suing the temporary employer for tort damages.

In Rivera v. West Bend Mutual, Carlos Rivera and two other individuals died in a single-vehicle accident. Rivera was survived by five children, two of whom were minors at the time of his death. At the time of the accident, Rivera was a passenger in a vehicle owned by Alpine and insured by West Bend. Rivera was employed by Alex Drywall, which, in turn, had provided him to perform work for Alpine. Alpine paid Alex Drywall for Rivera’s services and Alex Drywall paid Rivera for his work.

In February 2016, Rivera’s two minor children and the special administrator of Rivera’s estate commenced a wrongful death lawsuit against Alpine and West Bend. The Estate had not filed a claim for worker’s compensation under the Act. A Milwaukee County Circuit court judge granted summary judgment for Alpine and West Bend, concluding that because Rivera was an employee of a temporary help agency (Alex Drywall), the Estate was prohibited from bringing a tort action against Alpine.

On appeal, the Wisconsin Court of Appeals reversed the circuit court, ruling that the exclusive remedy provision of the Worker’s Compensation Act does not bar a temporary employee from bringing tort claims against a third party.  The Court found that Alex Drywall was Rivera’s employer, and therefore, the exclusive remedy provision prohibited the Estate from bringing a tort claim against Alex Drywall, but it did not prohibit the Estate from pursuing tort claims against Alpine and West Bend, which the Court found to be third parties in this case.

The Court concluded that Wis. Stat. § 102.29(6)(b)1 only bars tort claims from temporary employees who make claims for worker’s compensation. In this case, it was undisputed that the Estate had not made a worker’s compensation claim. As a result, the Estate was not barred from pursuing tort claims against Alpine and West Bend—the temporary employer and its insurer.  The Estate was still barred from suing Rivera’s primary employer, Alex Drywall, which the Court treated as a temporary help agency in this case.

The Rivera decision is significant because it exposes certain Wisconsin employers to tort liability that they were previously sheltered from. Under the Decision, if a temporary employee is injured, the temporary employee may pursue tort claims against the employer that they are placed with or they may file a worker’s compensation claim against their primary employer—the temporary employment agency.

Employers who compensate temporary employment agencies for the services of employees primarily employed by the temporary help agencies should be concerned about tort liability in the event of an injury. Even if other employers do not advertise themselves as temporary help agencies, they may fit the definition of temporary help agency under the statute like Alex Drywall did in the Rivera decision. Furthermore, the Rivera decision indicates that loaned employees under Wis. Stat. §102.29(7) produce the same tort liability as temporary employees who are primarily employed by a temporary help agency.

This decision is currently unpublished, but was recommended for publication by the Third District of the Wisconsin Court of Appeals. The parties have 30 days to file a petition for review to the Wisconsin Supreme Court. This 30 day period will expire on February 8, 2018. As of January 24, 2018, no petition has been filed.

If you have questions about this material, please contact Daniel M. Pedriana (dpedriana@lindner-marsack.com), Claudia R. Harke (charke@lindner-marsack.com), or Joseph D. Birdsall (jbirdsall@lindner-marsack.com) or any other Lindner & Marsack, S.C. attorney.

 

Laurie Petersen Recognized by the Wisconsin Law Journal as a 2017 Women in the Law Honoree

Lindner & Marsack, S.C. is pleased to offer enthusiastic congratulations to Laurie Petersen, who is being recognized by the Wisconsin Law Journal as a 2017 Women in the Law honoree. Petersen, who has been with the firm since 1990, is a shareholder and member of its Board of Directors. Her extensive labor and employment law experience covers a broad spectrum of matters for diverse business organizations in a range of industries. She frequently lectures on critical employment law topics for a variety of human resource and training organizations, and holds an adjunct faculty position at Marquette University Law School where she teaches employment discrimination law.

“For 27 years, Laurie Petersen has been an integral member of our dedicated team of attorneys,” said Firm President Thomas Mackenzie. “Our clients are fortunate to have her at their side during litigation but, perhaps more importantly, she has dedicated her career to helping clients create proactive, cost-effective legal strategies to achieve their business goals while minimizing the risk of litigation.”

The 14th annual Women in the Law recognition event will take place Wednesday, June 7, at Milwaukee’s Discovery World. For more information about the event and a full list of this year’s honorees, visit http://wislawjournal.com/women-in-the-law/.

Register Now! Annual Compliance/Best Practices Seminar

WHEN: May 11, 2017

8:00 a.m. – 12:00 p.m.

WHERE: Sheraton Milwaukee Brookfield Hotel

375 South Moorland Road

Brookfield, WI

Registration and a continental breakfast will be served beginning at 7:30 a.m.  Click here to register.

This COMPLIMENTARY half-day event will address the latest labor and employment topics impacting employers including:

  • Annual Employment Law Update (including recent developments in immigration, the Affordable Care Act and white collar overtime regulations)
  • Social Media Pitfalls and Best Practices
  • FMLA Update – A Best Practices Review
  • Drafting, Enforcing and Litigating Confidentiality, Non-Solicitation and Non-Competition Agreements
  • Navigating the ADA, FMLA and Worker’s Compensation

GOVERNOR WALKER PROPOSES TO ELIMINATE THE LABOR AND INDUSTRY REVIEW COMMISSION

By:  Jonathan T. Swain

February 13, 2017

In his recently published proposed biennial budget for fiscal years 2018 and 2019, Governor Walker has proposed to eliminate the Wisconsin Labor and Industry Review Commission (LIRC).  LIRC is an independent three member commission appointed by the Governor that currently handles all appeals of Administrative Law Judge (ALJ) decisions for unemployment compensation cases, worker compensation claims, as well as state fair labor standards cases and fair employment cases in the Equal Rights Division and public accommodation cases.  LIRC would be phased out over the next three fiscal years.

Presently, LIRC has the authority to affirm, overturn and remand ALJ decision in these areas.  LIRC decisions are appealable to the State’s circuit courts.

Under Governor Walker’s proposal, Worker Compensation ALJ decisions will be reviewable by the State Department of Administration, while jobless claims and Equal Right Division decisions will be Agency administrators.  In his budget statement, Governor Walker stated that the proposed elimination of LIRC will eliminate “an unnecessary layer of government” and will make this second layer of review decisions occur much more quickly.

Of course, this is a proposed budget and, as such, is subject to negotiation with the legislature and subsequent amendment.  Further, stakeholders in the business, labor and legal community have yet to weigh-in on the Governor’s proposal.  As this issue advances, we will keep you up to date and informed.

2017 Worker’s Compensation Gamble

Lindner & Marsack’s worker’s compensation defense practice is well recognized as an industry leader in providing work injury defense services to many of Wisconsin’s largest employers and insurance carriers.

Doug Feldman heads the Firm’s highly regarded work injury defense team and is a founding Board Member and current President of Kids’ Chance of Wisconsin.  Kids’ Chance is a non-profit organization that provides college scholarships to children of seriously injured workers in Wisconsin.

Kids’ Chance of Wisconsin is presenting a complimentary half-day worker’s compensation seminar on March 9, 2017 at Potawatomi Hotel and Casino, followed by a networking cocktail hour and raffle.  This year’s presenters include many of the top administrators from the Worker’s Compensation Division and Labor & Industry Review Commission.  Funds raised at the event will directly support the Kids’ Chance mission of providing financial support, in the form of scholarships, to children of parents who have been seriously injured at work.

If you are interested in attending this event, click Kids’ Chance of WI – Here’s The Deal Seminar – March 9, 2017 for more information.

Lindner & Marsack owes much of its success to its good friends and clients in Wisconsin and is proud to support this worthy endeavor and give back to the community in such a meaningful way. We hope you will consider joining us for this educational opportunity.

Governor Walker Officially Proclaims November 14-18 Kids’ Chance Awareness Week

Kids’ Chance of Wisconsin, a non-profit organization that provides scholarships to children of seriously injured workers in Wisconsin, got a nod from Governor Scott Walker’s office with the official proclamation of November 14-18 as Kids’ Chance Awareness Week in Wisconsin.

Lindner & Marsack, S.C., along with other partners, helped establish Kids’ Chance in Wisconsin in 2013. Lindner & Marsack shareholder Douglas Feldman is a founding board member and Kids’ Chance of Wisconsin president. “When the family of a child in Wisconsin is affected by a serious workplace injury, we work to ensure that child is still able to pursue and achieve their educational goals,” Feldman says.

Kids’ Chance Wisconsin is the statewide affiliate of the national Kids’ Chance organization. Kids’ Chance Awareness Week is designed to increase visibility through special outreach events that help spread the word about Kids’ Chance scholarship opportunities. For more information about Kids’ Chance Wisconsin visit http://kidschanceofwi.org/.