Category Archives: Workers’ Comp

Wisconsin Worker’s Compensation Advisory Council Calls for Department of Hearings and Appeals to End “Hold Open” Practice

By       Daniel M. Pedriana and Justin M. Schuessler

Recently the Wisconsin Worker’s Compensation Advisory Council (WCAC), which includes representatives from both Labor and Management, voted to approve two separate bills that include potentially significant changes to the Worker’s Compensation Act of Wisconsin (Chapter 102), including the administration of the Act.

The primary objectives of the proposed provisions are split between the two bills so as to increase the chances that at least some of the provisions are eventually adopted and signed into law.

I.  First Proposed Bill

The highlights of the first bill include a proposed medical fee schedule. In the absence of either a fee schedule or employer-directed medical care, Wisconsin employers often face the burden of extensive, and arguably, unnecessary medical treatment expenses. The intent of this provision is to keep work-related medical treatment expenses shouldered by employers and their carriers within reason much like the way that group health insurance reduces that burden for personal medical expenses.

Those familiar with the Council’s dealings are aware that it has attempted to achieve a medical fee schedule in the past without success. However, both Labor and Management believe there may be increased willingness by lawmakers to consider such a schedule. Thus, it is, again, included in the first bill.

The other major proposal in the first bill relates to the current presumption of a work-related, non-traumatic mental injury suffered by law enforcement officers, firefighters and first responders. The recognized standard to establish a “non-traumatic mental” injury claim is that an employee must show that he or she was subjected to “unusual stress” that was outside of the expected stressors of their job. School District No. 1 v. DILHR, 62 Wis. 2d 370 (1974).

However, the legislature has previously recognized that some select groups of employees are regularly exposed to such high levels of stress in the ordinary course of their employment that it would be difficult to establish “unusual stress,” and are thus entitled to a presumption that they have sustained a non-traumatic mental injury. That presumption is codified in Wis. Stat. § 102.17 (9) and provides that a mental injury is presumed for a law enforcement officer or firefighter if there has been a formal PTSD diagnosis and the conditions of liability under Wis. Stat. § 102.03 (1) are met by a preponderance of the evidence.

Currently, the presumption applies to law enforcement officers and firefighters. However, the provision in the first bill seeks to expand that presumption to EMS workers, volunteer firefighters and paramedics. Management’s primary concern about such an expansion has been that it may eventually extend to those who do not experience stressors that are peculiar to their jobs.

Finally, the first bill also seeks a cost of living increase for workers who started receiving PTD benefits more than six (6) years ago.

II.   Second Proposed Bill

The main attraction of the second bill is a call to the DWD/DHA to cease its much-maligned practice of holding hearing applications in an “open” status even after a valid compromise agreement has been filed and an order issued. There is no specific language mandating the DWD/DHA dismiss those Applications pursuant to the order that was issued. Thus, the DHA posits it has the authority to keep those Applications in “open” status in the event additional claims are sought at a later date.

This provision seeks an amendment to the Statute that specifically requires the DWD/DHA to dismiss a hearing application where a valid compromise agreement has been filed, accepted and an order has been issued. This will provide both the employee and employer the closure that is often contemplated and sought by both parties when a claim is compromised on a full and final basis.

The second bill also requests an amendment to the Act to allow employers and/or carriers to pay undisputed PPD awards in a lump sum. The intent of this provision is to allow carriers who write worker’s compensation policies in Wisconsin to close their claims expeditiously after an order is issued regarding undisputed PPD. Closing the claim faster will result in a more accurate experience rating for the carrier.

Aside from some updates to current statutory language, per the DWD’s request, the last proposal of the second bill is an $8.00 raise to the current weekly PPD rate for 2024 and then another $8.00 raise in 2025. Thus, if the bills are enacted, the maximum weekly PPD rate for 2024 injuries will be $438.00 and the weekly rate for 2025 injuries will be $446.00.

III.  Remaining Legislative Procedure

The Council’s agreement on the provisions included in these two bills is just the first step in the legislative process. The next step is sending the proposals to the Legislative Reference Bureau for official drafting of the bills. Once the bills are drafted, the Council will reconvene and review the language to ensure its accuracy and make any modifications. If no modifications are made, the bills will go to Madison where they will be introduced by legislators for debate and hearings. Eventually, the bills will need approval by the State Assembly and the State Senate and will be sent to Governor Tony Evers for signature.

The process can be long and arduous, but employers and, to a lesser extent, carriers are able to help ease the process along by simply contacting the local lawmaker in their district and making known their support for the two agreed bills.

If you would like to discuss the agreed bills further, or if you would like more details about how to get involved in the legislative process, please feel free to contact the experienced worker’s compensation team at Lindner & Marsack, S.C.

LINDNER & MARSACK, S.C., WELCOMES WORKER’S COMPENSATION DEFENSE ATTORNEYS ANDERS MCLEOD AND SAM ANDRINGA TO GROWING LABOR & EMPLOYMENT LAW TEAM

Lindner & Marsack, S.C., announced today that Anders McLeod and Sam Andringa have joined the firm. Both attorneys will practice out of Lindner & Marsack’s Milwaukee headquarters in the area of worker’s compensation defense.

A recent graduate of Marquette University Law School, McLeod’s practice is dedicated to defending worker’s compensation claims for insurance industry clients and self-insured employers. While at Marquette, McLeod participated in both the Moot Court Association and the Association for Women Lawyers. She also received an undergraduate degree in Psychology from Denison University. McLeod is a member of the State Bar of Wisconsin.

 

 

 

Andringa focuses his practice on representing and advising insurers in the investigation and defense of worker’s compensation cases. He has experience in hearings before arbitrators and commissioners at the Illinois Workers’ Compensation Commission as well as in appeals to the higher courts of the State of Illinois. After receiving his undergraduate degree from Trinity Christian College, Andringa earned his law degree from The John Marshall Law School in Chicago in 2019. While in law school, Mr. Andringa clerked for an Illinois worker’s compensation firm representing and defending Illinois employers. He is a member of the Illinois State Bar Association and the Illinois Workers’ Compensation Lawyers Association.

 

“As we celebrate our 115th year as a trusted advisor to employers in Wisconsin and beyond, we’re incredibly proud of the reputation and acclaim earned by our worker’s compensation defense division,” says Firm President Oyvind Wistrom. “We’re thrilled to have the skills, talent and dedication that Anders and Sam bring to the table as colleagues and collaborators on our team and, most importantly, in service to our clients.”

2023 NWCDN ANNUAL CONFERENCE

As a founding member of the National Worker’s Compensation Defense Network, Lindner & Marsack, S.C. is pleased to invite you to this year’s fantastic fall conference which will take place on October 19th at the Radisson Blu Aqua Hotel in Chicago.  We are fortunate to have some excellent speakers from around the country presenting very relevant multi-jurisdictional worker’s compensation topics.  Please also join us for a cocktail reception and dinner cruise prior to the conference on the evening of October 18th.  We hope that you are able to make it to both of these exciting events!

Click here and register today!

For any questions, please contact Attorney Chelsie Springstead at cspringstead@lindner-marsack.com or  by phone at (414) 426-9350.

Kids’ Chance of Wisconsin Educational Conference

Kids’ Chance of Wisconsin is holding its annual education conference on Thursday, May 11, 2023, at the Renaissance Milwaukee, Hotel – Wauwatosa. Kids’ Chance is a non-profit organization that provides scholarships to children of seriously injured workers in Wisconsin.

Chelsie Springstead is a Kids’ Chance of Wisconsin Board Member and Doug Feldman is a Past President and current Ambassador.

Whether you are an Attorney, Employer, Safety/HR Manager, Claim Representative, or Nurse Case Manager, this is a must attend event! Please join us for a dynamic half-day seminar and networking opportunity.

If you are interested in attending or sponsoring this event, click here for more information 2023_Kids_Chance_of_WI_Seminar_Registration_Materials.pdf.

 

 

LINDNER & MARSACK, S.C., ANNOUNCES 2022 SUPER LAWYERS AND 2023 BEST LAWYERS DESIGNATIONS

Lindner & Marsack, S.C., today announced team members acknowledged by Super Lawyers magazine. Honorees include Douglas Feldman, Gary Marsack, Daniel Pedriana, Andrew Quartaro and Oyvind Wistrom, along with Melissa Stone and Samantha Wood who were named by the organization as “Rising Stars.”

U.S. News & World Report and Best Lawyers also announced their designations for 2023, which includes Feldman and Wistrom as well as Daniel Finerty and Jonathan Swain.

“Our primary goal is to help employers in Wisconsin and across the country minimize risks and navigate their toughest legal challenges,” said Wistrom, Firm President. “First and foremost, we’re dedicated to advancing the interests and success of our clients. To be recognized for that work by leading industry publications and rankings adds another element of pride and satisfaction for our entire team.”

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.

 

2022 WI Work Comp Forum Registration Now Open!

Please join us for the 20th Anniversary of the Wisconsin Worker’s Compensation Forum on October 5 and 6, 2022, at the Brookfield Conference Center. In addition to programming, the event offers networking, an Exhibitor Hall, attendee giveaways, and the popular Happy Hours!

Our very own Chelsie Springstead is the current President of the WIWC Forum. Additionally, Doug FeldmanOyvind Wistrom and Sally Piefer are presenters at this year’s Forum.

If you are unable to attend in person, a virtual option will be offered again this year. The in-person sessions will be livestreamed and virtual attendees will be eligible for CEUs.

Register early and save! Early bird registration through August 31:

Wednesday Only – $69

Thursday Only – $109

Full Forum In-Person and Virtual (Wed/Thurs) – $139

Regular price (September 1-23):

Wednesday Only – $79

Thursday Only – $129

Full Forum In-Person and Virtual (Wed/Thurs) – $159

If you are interested in attending, click here more information and to register.

PLEASE JOIN US FOR THE 10 YEAR ANNIVERSARY CHARITY GALA FOR KIDS’ CHANCE OF WISCONSIN

Kids’ Chance of Wisconsin is celebrating its 10 year anniversary with a charity gala at Westmoor Country Club on Saturday, September 24, 2022. Kids’ Chance is a non-profit organization that provides scholarships to children of seriously injured workers in Wisconsin.

Chelsie Springstead is a Kids’ Chance of Wisconsin Board Member and Doug Feldman is a Past President and current Ambassador. Doug will be acting as a Live Auctioneer for the evening. In addition, Pat Connaughton of the Milwaukee Bucks will be the keynote speaker.

If you are interested in attending or sponsoring this event, click here for more information https://kidschanceofwi.org/10-year-anniversary-charity-gala/.

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.

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).