Category Archives: Workers’ Comp

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.

Take a Break from Covid: Back to Basics (Part 1 of 3)

 

Register Now for the Upcoming Complimentary Webinar on August 13, 2020

 

The National Workers’ Compensation Defense Network (NWCDN) invites you to attend a webinar on August 13, 2020 at 10:00 am (CST). NWCDN lawyers from four adjacent midwestern states, Minnesota, Michigan, Wisconsin and Iowa are partnering to present a three part series of webinars entitled “Back to Basics.” Attorney Melissa Stone from our office will be among the presenters in this first part of three webinars.  Look for parts two and three coming up in September and October.

With most adjusters handling claims from multiple jurisdictions, this series is a must. The first webinar will focus on the front end of a claim with tips on forms, penalties, investigation, IMEs, surveillance, social media and more. The speakers will compare and contrast the differences and similarities in these states.

Lindner & Marsack is proud to be a founding member of the National Workers’ Compensation Defense Network (NWCDN) where our own Doug Feldman serves as the current Treasurer.  In an effort to provide up to date legal information addressing workers’ compensation law across the nation in this ever-changing environment, NWCDN teamed up with WorkersCompensation.com to offer complimentary webinars.

Registration is complimentary.  Click here now to reserve your spot!

 

Wisconsin’s COVID-19 Response Bill Signed By Governor Evers

By: Daniel Finerty and Melissa Stone

After Assembly Bill 1038 passed on April 14, 2020 and was quickly taken up and passed by the State Senate the following day, Governor Evers took swift action to sign the legislation, known as the COVID-19 Response Bill. 2019 Wisconsin Act 185 (Act) became effective April 16, 2020. The bipartisan bill was passed to ensure Wisconsin is eligible for the federal CARES Act Pandemic Unemployment Assistance by making necessary changes to Wisconsin’s Unemployment Insurance Law, Worker’s Compensation Act and others changes to Wisconsin law.

Unemployment Insurance

One-Week Waiting Period

Historically, an employee filing for unemployment insurance benefits (UI) needed to wait one week after becoming eligible to receive UI benefits before the benefits could be received for a week of unemployment.

However, the Act suspends the application of the one-week waiting period for benefit years that began after March 12, 2020, and before February 7, 2021. See 2019 WI Act 185, Section 38 (creating Wis. Stat. § 108.04(3)(b)). The Act also directs the Department of Workforce Development (DWD) to seek the maximum amount of federal reimbursement for benefits that are, during this time period, payable for the first week of a claimant’s benefit year as a result of the suspension.

Initial Claims

The Act requires DWD to determine whether a claim for UI or a work-share plan is related to the COVID-19 public health emergency declared by the Governor on March 12, 2020. See 2019 WI Act 185, Section 50 (creating Wis. Stat. § 108.07(5)(bm)). If a claim is related to the public health emergency, the Act provides that the regular benefits for that claim for weeks occurring after that date, and before December 31, 2020, will not be charged to an employer’s unemployment insurance reserve account, as is normally the case provided the employer does not fail to “timely and adequately provide any information required by the Department.” As a result, it is critical for employers to respond to UI requests for information to document the claim is related to the public health emergency in order to ensure the financial health of the employer’s UI reserve account.

While there are a number of exceptions, for employers that pay the quarterly payroll taxes, UI benefit charges related to the public health emergency will be charged to the balancing account of the unemployment reserve fund. This fund is the pooled account financed by all employers that pay contributions and is used to pay benefits that are not chargeable to any employer’s account. However, in the case of employers that instead reimburse DWD for benefits directly, the UI benefits are to be paid in the manner specified under current law for certain other circumstances involving benefits chargeable to reimbursable employers. The exceptions to this charging rule include that it only applies those benefits paid through the state UI program; it does not apply to any federal share of CARES Act extended benefits; and it does not apply to work-share program benefits and other exceptions.

The Act also directs the DWD Secretary, to the extent permitted under federal law, to seek advances to the state’s unemployment reserve fund from the federal government, to ensure that all UI tax rates can remain the same through the end of the year.

Changes to Work-Share Program

Under prior law, an employer could utilize a “work-share” structure to keep workers employed who would otherwise be laid off. The program used partial unemployment benefits combined with continued, but reduced, work hours to insulate employees from lay off.

The Act creates a more accessible, modified workshare program for employers to access their unemployment insurance reserve account instead of laying off employees. The Act outlines the following changes to work share plans submitted between April 16, 2020, the Act’s effective date, and December 31, 2020, which will not have to follow the traditional elements of a Work Share Program outlined in our prior E-Alert:

  • Work-share plans must cover at least 2 positions that are filled on the effective date of the work-share program, rather than at least the greater of 20 positions or 10 percent of employees in a work unit under prior law. See 2019 WI Act 185, Section 48 (creating Stat. § 108.062(20)(b)).
  • The maximum reduction in working hours under a work-share program may be either 60 percent of the normal hours per week of the employees included under a work-share plan, or the maximum percent reduction of normal hours per week permissible by federal law, whichever is greater, rather than the 50-percent limitation on reduction of hours under prior law. See 2019 WI Act 185, Section 48 (creating Stat. § 108.062(20)(f)).
  • Work-share plans may cover any employees of the employer instead of being limited to a particular work unit of the employer as provided in the prior law. See 2019 WI Act 185, Sections 41, 48 (amending Stat. § 108.062(1)(b); creating Wis. Stat. § 108.062(20)).
  • Under prior law, if in any week there were fewer than 20 employees included in a work−share program of any employer, the program would terminates on the 2nd Sunday following the end of that week; however, that provision no longer applied to a work− share program that has been approved or modified under the Act. See 2019 WI Act 185, Sections 46 (amending Stat. § 108.062(15)).
  • Employers with an existing work-share plan that was approved by the DWD prior to April 16, 2020 are allowed to submit a plan modification under the modified program requirements. See 2019 WI Act 185, Sections 43m (creating Stat. § 108.062(3r)).

Employers that have existing work-share plans may want to consider requesting a modification to comply with the new requirements, which permit greater flexibility in terms of reductions of hours, can include a smaller number of employees, and are not limited to a particular work unit. Employers looking to apply for a work-share program should ensure their application is in compliance with these changes.

Compliance with Requests for Personnel Files

With regard to any request for an employee’s personnel file, received on or after March 12, 2020, the date of the Governor’s original Emergency Declaration, an employer is not required to provide an employee’s personnel records within 7 working days after an employee makes a request to inspect his or her personnel records, and an employer is not required to provide the inspection at a location reasonably near the employee’s place of employment during normal working hours. See 2019 WI Act 185, Section 35 (creating Wis. Stat. § 103.13 (2m)).

In light of this likely temporary amendment to the personnel record requirement, employers can provide copies of personnel files by mail to ensure social distancing in a reasonable period of time and may charge an employee reasonable costs for copying the file, which may not exceed the actual cost of reproduction.

Worker’s Compensation

Under prior Wisconsin worker’s compensation law, in order for a COVID-19 claim to be found compensable, medical and factual evidence must be provided that documents by a “preponderance of the evidence” that the employee contracted the COVID-19 virus while at work, as opposed to some other community source. This means that there are facts strong enough to prove the probability that the virus, parasite or bacteria claims arose out of employment.  The compensability of COVID-19 cases should be decided on a case-by-case basis following an investigation of the relevant factual background. In the absence of this preponderance of evidence, it cannot be concluded that that the employee sustained an injury while performing services arising out of or incidental to employment, and the claim may be denied.

However, the Act created new conditions of liability for COVID-19 claims as it relates to “First Responders” only. See 2019 WI Act 185, Section 33 (creating Wis. Stat. § 102.03(6)). That section provides the following changes:

  • “First Responders” are defined as an employee or volunteer employee that provides fire-fighting, law enforcement, or medical treatment of COVID-19, who have regular, direct contact with, or are regularly in close proximity to, patients or members of the public requiring emergency services within the scope of the “First Responders” work for the employer. See 2019 Act 185, Section 33 (creating Stat. § 102.03 (6)(a)).
  • If the “First Responder” is exposed to persons with confirmed cases of COVID-19 in the course of employment, there is now a rebuttable presumption in favor of the employee that the COVID-19 injury is caused by the employment and is work-related. See 2019 Act 185, Section 33 (creating Stat. § 102.03 (6)(b)).
  • The “First Responders” injury must have occurred between March 12, 2020 and ending 30 days after termination of Governor Evers’ Public Health Emergency Order, which, as a result of an subsequent Order, is now set to continue past from April 24, 2020 until May 26, 2020, or until a superseding order is issued. See 2019 Act 185, Section 33 (creating Stat. § 102.03 (6)(b)).
  • The “First Responders” injury must be supported by a positive COVID-19 test or by a specific diagnosis by a physician. See 2019 Act 185, Section 33 (creating Stat. § 102.03 (6)(c)).
  • This is a rebuttable presumption. If an employer or insurer has credible evidence that the “First Responder” was exposed to COVID-19 outside of the work for the employer, the compensability of the claim may be challenged. See 2019 Act 185, Section 33 (creating Stat. § 102.03 (6)(d)).

This change to Wisconsin worker’s compensation law only applies to “First Responders,” as defined in the Act. It does not apply to all employees classified as “essential” during the crisis. The Act creates a presumption that whenever a “first responder” on the front line of the State’s COVID-19 response gets COVID-19, the injury is work-related. The burden is then on the employer and insurer to present credible factual evidence to rebut the new statutory presumption in order to deny liability for the claim.

The Act contained a second amendment to the Worker’s Compensation Act. Under existing worker’s compensation law, there is an additional benefit of up to $13,000.00 available to an employee that sustains injury as a result of exposure in the workplace over a period of time to toxic or hazardous substances or conditions. See Wis. Stat. § 102.565. Under the Act, this additional benefit does not apply to a “First Responder” who claims presumed injury under the other changes outlined by the Act. See 2019 Act 185, Section 33 (creating Wis. Stat. § 102.565 (6)).

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

Wisconsin Worker’s Compensation In-Person Hearings, Prehearings and Mediations Suspended!

By: Chelsie Springstead

Per the OWCH COVID-19 Notice from State of Wisconsin, Division of Hearings and Appeals, issued on Friday, March 13, 2020, as of next Monday, March 23, 2020, the Office of Worker’s Compensation Hearings will stop conducting in-person hearings, prehearings and mediations.  This is expected to continue through April 20, 2020.

Hearings will be converted to telephonic settlement conferences.  Prehearings and mediations will be conducted telephonically, as well.  Revised notices will be sent out to all parties with call-in instructions.

Please note that Hearings scheduled for this week, March 16-20, are still being held in-person.  However, the parties can contact the Administrative Law Judge assigned to the file if they would like to convert any hearings this week to telephonic settlement conferences.

If you have any questions, please feel free to contact Chelsie Springstead or any member of the Lindner & Marsack worker’s compensation team.  We will continue to provide you with email updates as things change.

 

 

LINDNER & MARSACK, S.C., ANNOUNCES DANIEL PEDRIANA’S NOMINATION AS A FELLOW OF THE COLLEGE OF WORKERS’ COMPENSATION LAWYERS

Lindner & Marsack, S.C., today announced that Daniel Pedriana has been nominated as a Fellow of the College of Workers’ Compensation Lawyers.

According to the College’s Board of Governors, who approved Pedriana’s nomination, election as a Fellow represents the recognition by your colleagues that you have distinguished yourself as an outstanding professional. It recognizes that an attorney has made a sustained contribution to the field and meets the College’s standards of integrity, professionalism and character.

“I’m honored to be recognized by the highly-regarded College of Workers’ Compensation Lawyers,” says Pedriana. “In addition, I’m humbled by the company I’ll join as a Fellow of the College – attorneys who demonstrate the highest level of professional expertise as well as a strong commitment to ethical standards, integrity and leadership.”

Pedriana is a shareholder and member of the Board of Directors of Lindner & Marsack. His practice primarily focuses on defending workers’ compensation claims for the insurance industry and self-insured employers. He also frequently handles related employment and subrogation issues. Pedriana lectures and speaks on workers’ compensation law, along with related labor and employment law and subrogation topics, in Wisconsin and throughout the United States.

A special induction ceremony and dinner for new Fellows will be held at the Westin New Orleans Canal Place Hotel on Saturday, March 28, 2020.

LINDNER & MARSACK, S.C., ANNOUNCES SIGNIFICANT EXPANSION OF WORKER’S COMPENSATION DEFENSE PRACTICE WITH TWO NEW FIRM OFFICES OPENING IN MADISON AND MANITOWOC

Lindner & Marsack, S.C., today announced the opening of two new firm offices in Madison and Manitowoc. The offices, which will each be staffed by a lead attorney as well as additional support staff, represent a significant expansion of the firm’s lauded worker’s compensation defense practice.

Andrew J. Quartaro will head Lindner & Marsack’s new Madison office located on the Capitol Square. In Manitowoc, the firm welcomes James W. Goonan to lead that office. Both Quartaro and Goonan formerly practiced with vonBriesen & Roper as well as Peterson, Johnson & Murray.

Quartaro has been repeatedly recognized by The Best Lawyers in America and Super Lawyers and was awarded an AV Preeminent Peer Review Rating by Martindale-Hubbell, the highest rating possible.

He is a frequent author and presenter on worker’s compensation issues and is a member of the State Bar of Wisconsin and the Civil Trial Counsel of Wisconsin.

Goonan serves on the Board of Directors of the Wisconsin Association of Worker’s Compensation Attorneys and is a frequent presenter on Wisconsin worker’s compensation issues. He has been recognized as a “Rising Star” by Super Lawyers and is a member of the State Bar of Wisconsin.

“We are committed to doing whatever we can to deliver our very best results to every client, every day,” says Oyvind Wistrom, Firm President. “Having two top-notch attorneys join our well-regarded worker’s compensation defense team gives us additional depth and expertise, while two new office locations offer a higher level of service and convenience for our clients.”

Both offices officially opened January 2, 2020. For more information, please call (414) 273-3910 or visit www.lindner-marsack.com.

 

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