State News

NWCDN Wisconsin Worker’s Compensation Legal Update:

This year, the Wisconsin Legislature made some significant changes to existing law that altered the Worker’s Compensation landscape in multiple ways.  The changes are discussed below:

The Wisconsin Legislature Increased the Weekly Permanent Partial Disability Rate for the first time since 2017.

On April 8, 2022, Wisconsin Governor Tony Evers signed into law 2021 Wisconsin Act 232 (the Act).  The Act, which was sponsored by the bipartisan House Labor and Integrated Employment Committee, increased the weekly permanent partial disability rate (PPD).  As stated above, Wisconsin had not raised the weekly PPD benefit rate since 2017.  The Act changed the benefit rate to $415 for injuries occurring on or after April 10, 2022.  The Act further increased the weekly PPD benefit to $430 for injuries occurring on or after January 1, 2023.

The Wisconsin Legislature also made changes to the Average Weekly Wage Calculation for Part-Time Employees.

Prior to April 8, 2022, a Claimant-Employee needed to meet four conditions to be considered “part of a class” under the Act to have their average weekly wage (AWW) calculated using less than 40 hours.  To be “part of a class” the Claimant-Employee had to meet the following conditions:

·         All class members needed to perform the same type of work at the same location;

·         The class of part-time employees needed to represent a minimum of 10% of all employees doing the same type of work;

·         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

·         At least one other employee needed to be in the same class as the Claimant-Employee.

If the Claimant-Employee 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-Employee 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.

Per the new law, Sections 102.11(1)(am) & (f)1., Wis. Stats., were repealed and § 102.11(1)(ap), Wis. Stats., was created to eliminate wage expansion for employees working part of a class.

Wages will be expanded only when the injured worker is employed by another employer or worked less than full-time for less than 12 months before the date of injury.

Wage expansion for those who worked less than full-time for less than 12 months may be rebutted when there is evidence to show an employee chose to restrict employment to part-time.  You can use a self-restricting statement or job application as evidence.

If wage expansion does not apply, you use the following to calculate the part-time wage.  The wage is the greater of the two:

(1)               Divide the total wages earned in the 52 weeks prior to the injury date by the actual number of weeks worked in that period; or

(2)        Multiply the employee’s hourly rate by the average number of hours worked per week in the 52 weeks prior to the injury date.

In each equation, the number of weeks worked in the 52 weeks prior to injury does not include weeks in which no work was done.

This applies to injuries occurring on and after April 10, 2022.

Observers are now allowed at independent medical examinations

Section 102.13(1)(b), Wis. Stats., was amended to allow an employee who appears at an examination directed by employers and worker's compensation insurance carriers to have an observer present at the examination.

The Wisconsin Legislature updated the definition of Employer

The definition of "employer" is amended to clarify that every person who at any time employs three (3) or more employees in Wisconsin is subject to Ch. 102, Wis. Stats., (Wisconsin Worker's Compensation Act) on the day on which the person employs three (3) or more employees in this state. §§ 102.04(1)(b)1. & 2., Wis. Stats.

Farmers will have the same statutory authority to withdraw from subjectivity to Ch. 102, Wis. Stats., as other employers who have had no employee in the previous two (2) years. § 102.05(3), Wis. Stats.

Public Safety Officers can now Bring a Claim for PTSD without having to Prove Extraordinary Stress.

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-1970s, Wisconsin has recognized non-traumatic mental injuries in worker’s compensation.  Specifically, in the School District No. 1 v. DILHR (215 N.W.2d 373) 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 (WC Claim No. 87-32662 LIRC Dec. 11, 1989) decision, where the Labor and Industry Review Commission found “the amount of stress in the Claimant-Employee’s occupation and field … served as the benchmark for comparison with the stress that the Claimant-Employee claims entitles him or her to worker’s compensation.”  Later, in Jenson v. Employer’s Mutual (468 N.W.2d 1), the 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 Claimant-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 requirements for claiming and obtaining worker’s compensation benefits for a mental injury asserted by a public safety officer by altering the previous standards for compensable non-traumatic mental injuries, but also limits the employer’s liability for such injuries.

Wisconsin Supreme Court issued an important decision regarding the Exclusive Remedy Provision.

On May 20, 2021, the Wisconsin Supreme Court published its decision in Graef v. Continental Indemnity Company (959 N.W. 2d 628).  The issue before the Court was whether the Exclusive Remedy Provision of the Wisconsin Worker’s Compensation Act (the Act) barred a tort action for the Claimant-Employee's alleged injuries.  The Court found the Exclusive Remedy Provision did apply to the claimed scenario and remanded the matter to the Circuit Court to grant Summary Judgement.

By way of background, in a deal cut in 1911, Employers gave up the right to common law defenses (contributory negligence, co-employee negligence, assumption of risk, etc.,) and Employees gave up the right to sue their employer in tort (and recover tort like damages) in return for a fixed schedule of “guaranteed” benefits.  This portion of the original negotiations remains in place today and is referred to as the Exclusive Remedy Provision.  This is the basis of the litigation that led to the above-referenced Supreme Court decision.

In this matter, the Claimant-Employee sustained a compensable work injury in November 2021, which resulted in physical and psychological injuries.  He was prescribed an antidepressant as a result of these injuries.  On two different occasions, the Insurer denied the initial request for payment related to refills of the antidepressant.  The first denial occurred in May 2015, but the Insurer subsequently paid for the prescription after it was contacted by the Pharmacy.  Then, in June 2015, the Claimant-Employee again tried to refill his antidepressant prescription and encountered the same issue.  This time, he left before the Insurer could be contacted and the prescription was not filled.  Two months later, the Claimant-Employee attempted suicide and sustained a self-inflicted gunshot wound.  He survived and subsequently filed a tort action in Circuit Court against the Insurer.  The Claimant-Employee alleged the self-inflicted gunshot wound was the result of the Insurer’s negligence; specifically, that the Insurer was negligent for failing to approve the June 2015 refill, and as a result of the Insurer’s negligence, the Claimant-Employee attempted to take his own life.  The Insurer moved for Summary Judgement stating that the Act provided an exclusive remedy for the Claimant-Employee’s injuries.

Initially, the Circuit Court concluded that the Exclusive Remedy Provision did not bar the claim because the Insurer would not concede the Claimant-Employee’s claim would prevail if it was filed as a Worker’s Compensation Claim.  The Court of Appeals reversed this decision, and the matter was brought before the Supreme Court of the State of Wisconsin.

The Wisconsin Supreme Court found:

·         The Act provides an exclusive remedy for the alleged injuries, upholding the Exclusive Remedy Provision for work-related injuries.

·         The Court also said the allegations made by the Claimant-Employee, if proven, would satisfy the conditions of liability under the Act, further supporting the applicability of the Exclusive Remedy Provision.

The Court’s decision makes it clear that an Insurer’s reservation of its right to litigation in the proper forum (i.e. under the Act) and its dispute of underlying factual information surrounding a claim is not grounds for bypassing the Exclusive Remedy Provision.

Two Separate Statute of Limitations in One Claim – Medical and Indemnity SoLs Run Independently

Wynne v. Liberty Trailer & Death & Permanent Total Disability Tr. Fund, 2022 Ark. 65, 641 S.W.3d 621

The court held that under the plain reading of the statute, the statute of limitations on a request for additional benefits commences with the last payment, whether for disability or medical benefits, is made. The court then went on to overrule Kirk v. Cent. States Mfg. to the extent that the case held that the statute of limitations on a claim for additional benefits commences upon last payment of a specific type of benefits sought, rather than from the date of the last payment of compensation.

Cosner v. C&J Forms & Labels Co., 2021 Ark. App. 453 (Ct. App.)

In applying the decision in Wynne v. Liberty Trailer & Death & Permanent Total Disability Tr. Fund, the Arkansas Court of Appeals found the Worker's Compensation Commission incorrectly ruled that claim for additional PPD benefits was barred by the statute of limitations under Ark. Code Ann. § 11-9-702(b) because the claim was filed within one year of the last payment in the form of medical-treatment benefits. There was no requirement that the benefits that had been paid be the same type of benefits being sought.

Slaughter v. City of Fayetteville, 2022 Ark. App. 139, 643 S.W.3d 809 (Ct. App.)

The Arkansas Court of Appeals clarified that the applicable date for the purpose of the statute of limitations is the date of the furnishing of medical services, not the payment therefor, that constituted payment of compensation regarding a claimant's medical benefits. Additionally, the Court held voluntary payments do not revive a claim in which the statute of limitations has run.

In Nebraska, an employer is liable for all reasonable medical, surgical, and hospital services which are required by the nature of the injury, and which will relieve pain or promote and hasten the employee’s restoration to health and employment. Neb. Rev. Stat. § 48-120. This includes  plastic or reconstructive surgery and the furnishing of appliances, supplies, prosthetic devices, and medicines as needed. Simmons v. Precast Haulers, Inc., 288 Neb. 480, 849 N.W.2d 117 (2014). It also may include chiropractic care, home alternations, 24-hour in-home medical services, and moving expenses to a more accessible home. Simmons, supra; Rodgers v. Sparks, 228 Neb. 191, 421 N.W.2d 785 (1988); Hoffart v. Fleming Companies, 10 Neb. App. 524, 634 N.W.2d 37 (2001). Alternatively, an employer is not obligated to provide surgery, appliances, and devices for purely cosmetic reasons. Every year, the compensation court is asked to determine whether somewhat nontraditional “medical treatment” is compensable under the Act. This blog discusses some of those cases.

Pilates Sessions.  In 2020, Judge Hoffert was asked to determine whether Pilates sessions were compensable medical treatment. In that case, the employee’s treating physician opined that private Pilates sessions were “required to facilitate the [employee’s] medical rehabilitation” as it would “decrease the ongoing muscle tightness” from the work injury. The employer argued that such sessions were not reasonable and necessary, albeit they put forth no evidence from a medical provider regarding the same. Ultimately, largely due to the lack of evidence submitted by the employer, Judge Hoffert agreed that the employee had met her burden of proof to show that the Pilates sessions would relieve pain and hasten the employee’s restoration to health and employment, and the employer was required to pay for the medical treatment. Because of the Covid pandemic, Judge Hoffert further held that it was reasonable for the employee to have private sessions.

Massage Therapy. The issue presented to Judge Fitzgerald in December of 2020 centered on whether massages were “medical care” under § 48-120. The evidence offered at the hearing showed that the employee’s treating physician had previously said that the treatment that helped the employee most was “message therapy.” However, when the employee restarted message treatment at her own expense, the employer wrote to the treating physician and asked his opinion on whether that massage therapy was reasonable and necessary. To that, the doctor wrote, “She does have a chronic myofascial component to her pain. We are not in agreement with routine massage therapy but are happy to refer her to a trained physical therapist for myofascial techniques.” At trial, the employee testified that she attended physical therapy but received little benefit, nothing like the relief she received from massage therapy. Additionally, because the treating physician would not say that massages were medically necessary, the employee sought an opinion from her primary care provider. Without elaborating, the primary care provider opined that massages were necessary medical treatment. After citing the beneficent purpose of the Act and the fact that the treating doctor agreed that message treatment would help temporarily, Judge Fitzgerald held there is no requirement under § 48-120 that treatment provide a benefit that last a long period of time. The Court therefore awarded the message therapy treatment.

Brand New Home. In cases where employees suffer injuries requiring prosthetics or wheelchairs, the issue of home modifications frequently arise. The Nebraska Supreme Court has already stated that residential modifications fall within the purview of § 48-120. Simmons v. Precast Haulers, Inc., 288 Neb. 480, 849 N.W.2d 117 (2014).  However, in 2020, Judge Martin was asked to determine whether § 48-120 would require the employer to provide a custom-built accessible home for the employee if modifications to a current residence alone would not be sufficient. In Lewis v. MBC Construction Co., the employee’s work-related accident resulted in his leg being amputated. He required a wheelchair or prosthetic for most of his mobility. The parties did not disagree that the employee’s mobility challenges required him to have a “handicap accessible home.” However, after being evicted from his apartment (for reasons unrelated to his injury), the employee demanded that the employer build him a $400,000.00 home which included four bedrooms and a three-car garage. At trial, Judge Martin recognized that certain home accommodations would be necessary for the employee including wider doors, flooring without raised edges, and lower cabinet heights. Initially, Judge Martin ruled that the employer would have 45 days to find suitable housing that satisfied a number of requirements, or that it must alternatively build the employee an accessible home. That decision was ultimately appealed to the Nebraska Supreme Court which remanded the case back to Judge Martin for a more detailed order regarding the employer’s obligations to build or buy a new home. In the September of 2021 Order, Judge Martin changed her decision to say that Plaintiff had failed to meet his burden of proof that he was entitled to the $400,000.00 house and she therefore dismissed his Motion entirely (meaning she did not require the employer to do any home modifications). The issue has not yet been readdressed by the parties with a further hearing.

As medical treatment evolves and less traditional forms of treatment become more popular, disputes about what constitutes “medical treatment” under § 48-120 will continue to occur. The operative question in these cases is whether the treatment will “relieve pain or promote and hasten the employee’s restoration to health and employment.” Importantly, when disputes like these arise, the employer should seek contrary evidence via expert medical providers. The issue then becomes one of fact for the compensation court to determine.

If you have questions about a medical care issue, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.

The Commonwealth Court of Pennsylvania revisited the voluntary withdrawal from the workforce argument in a recent decision, Hi Tech Flooring, Inc. v. WCAB (Santucci), issued on 08/09/22.  This case dealt with a work injury of 08/28/14, which was recognized as a right knee contusion.  A subsequent decision on a termination petition found the Claimant injury led to progressive degenerative changes of the knee.  In a 12/10/18 Decision, the workers’ compensation judge denied a subsequent petition to terminate compensation benefits but granted a suspension of benefits based upon a voluntary withdrawal from the workforce.  The WCAB reversed this decision via opinion circulated 12/03/19. 

The primary facts that led to the Judge’s decision were that the Claimant had been receiving a disability pension since 10/01/17 and social security disability benefits effective 10/07/15, was found capable of working and had not sought any work.  Accordingly, the Judge found the Claimant was withdrawn from the workforce. It should be noted that the Claimant receipt of these other benefits was for conditions beyond the work injury.  His pension application listed the conditions of right shoulder pain, neck pain and right facet arthropathy.  His SSD award was for herniated discs with constant pain – cervical; lumbar spine condition with constant pain; prior right knee surgery with remaining pain; left knee impingement undiagnosed; arthritis of both ankles; numbness of the left arm; carpal tunnel; gout; high blood pressure; and high cholesterol” as well as “lumbar and cervical disc disease, status post C5- 6 cervical discectomy and fusion; bilateral knee degenerative osteoarthritis, status post bilateral arthroscopic procedures; right hip degenerative joint disease; and status post total hip replacement.”

The Court applied the leading precent, City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson) (Robinson II), 67 A.3d 1194 (Pa. 2013), noting that an employer may seek a suspension of benefits if the employer can establish, by the totality of the circumstances, that the claimant has chosen to not return to the workforce, but that “[t]here is no presumption of retirement arising from the fact that a claimant seeks or accepts a pension[;] rather, the acceptance of a pension” only creates a permissive inference of such.  The Court found with the Board that these circumstance, with there being not Notice of Ability to Return to Work having been issued or job referrals made, did not arise to a voluntary withdraw under the totality of these circumstances. Simply receiving SSD and a disability pension and not looking for work, when those other benefits were based, in part, on the work injury, did not rise to a voluntary withdrawal from the workforce.  

While this decision seems to limit the voluntary withdrawal from the workforce argument, it also shows that this can be a viable means to get a case into litigation and to actually prevail, as was done before the Workers’ Compensation Judge.  This can create leverage to obtain a favorable resolution.  However, more is most likely needed than just evidence of retirement, ability to work and lack of following through on job offers. We typically recommend combining this argument with a labor market survey/earning power assessment as then the Claimant is provided with a Notice of Ability to Return to Work explaining he may have an obligation to look for work.  The EPA/LMS provides the Claimant with positions that are open and available within his/her physical and vocational capabilities, to which they typically do not apply.  Of course, should they apply, that may prove detrimental to the bringing of such an argument. However, combining such additional evidence hopefully will be found to demonstrate a voluntary withdrawal from the workforce under these totality of circumstances and may provide for a suspension of benefits rather than just a modification that could occur based upon the LMS/EPA, depending upon the amount of wages the located positions may pay.   

Maybe It's Late, But Just Call Me………

We have learned that, effective September 1, 2022, ombudsmen are now required to place a call to a Claimant who fails to timely call or Zoom into a benefit review conference. While we have yet to see a formal memo or bulletin confirming this new policy, we think it a good one which may avoid needless delay in the dispute resolution process resulting from an unrepresented Claimant’s forgetfulness or inability to negotiate the Zoom platform. Rather than simply resetting the proceeding to a later date, we think a call from the ombudsman to the non-appearing Claimant may salvage the BRC setting and result in productive mediation of the parties’ disputes.
 

Copyright 2022, Stone Loughlin & Swanson, LLP

Effects of Inflation Seen in New State Average Weekly Wage/Maximum and Minimum Weekly Benefits

The Division has announced the State AWW and maximum/minimum weekly benefits for the period from October 1, 2022 through September 30, 2023 as follows:

State Average Weekly Wage:                       $1,111.55
Maximum Temporary Income Benefits:        $1,112.00
Minimum Temporary Income Benefits:         $   167.00
Maximum Impairment Income Benefits:       $   778.00
Minimum Impairment Income Benefits:        $   167.00
Maximum Supplemental Income Benefits:   $   778.00
Maximum Lifetime Income Benefits:            $1,112.00
Minimum Lifetime Income Benefits:             $   167.00
Maximum Death Benefits:                            $1,112.00
 

Copyright 2022, Stone Loughlin & Swanson, LLP

Proposed Amendments to 28 TAC §102.11(b)(1)

The Division is accepting public comments on amendments to Rule 102.11(b)(1). The proposed rule was published in the September 23, 2022 issue of the Texas Register and on the TDI website. Comments may be submitted through 5:00 p.m. on October 24, 2022. 

Insofar as the amended rule simply corrects and updates the address of the Division website providing specific data requirements, data set transactions, data mapping, data edits and fees per record to the correct current domain, we expect few comments will be received. 

The proposed changes direct the public to www.tdi.texas.gov/wc.

A copy of the proposed rule may be accessed here:

http://www.tdi.texas.gov/wc/rules/2022rules.html

Copyright 2022, Stone Loughlin & Swanson, LLP 

Division of Workers’ Compensation Moving

We reported back in April, 2021 that the Division would be relocating its Austin headquarters to the new Capitol Complex at 1601 Congress Avenue in the summer of 2022.

In May of this year, however, we reported that plans had changed and operations, including hearings, would continue at the current Metro Center Drive location through the summer of 2022. The move date to the new location would be announced when finalized.

Although we have seen no formal announcement, we now understand that the Austin Field Office will move to the new Barbara Jordan State Office Building at 1601 Congress Avenue on October 10. Director of Media Relations for the Division, Kate Sidora, advises that there are still a few items to work out but nothing that will change the move-in date. We are not yet certain where system participants with business in the field office will be required to park but will update readers in the near future.
 

Copyright 2022, Stone Loughlin & Swanson, LLP 

12-Year Battle Revisited

Readers may recall our report in the March, 2022 installment of The Compendium that Dr. Clinton Battle of Arlington Occupational and Medical Clinic had been sentenced to 12 years in federal prison following his conviction for conspiracy to distribute controlled substances and distribution of controlled substances. Dr. Battle also pled guilty to conspiracy to commit mail fraud. 

The U.S. Department of Justice advised in September, however, that Dr. Battle’s scheduled release date has been changed to September 26, 2030. He is not eligible for parole and will be 77 years old when released from prison. 

Dr. Battle is also required to pay $376,368.00 in restitution and will be under supervised release for three years after his imprisonment.
 

Copyright 2022, Stone Loughlin & Swanson, LLP 

Chiropractic for Babies?
Early Engagement in the Battle Against Subluxation 

Chiropractors play a vital role in the Texas workers’ compensation system. Therefore, we like to keep our readers apprised of the latest developments in the field of chiropractic. 

We don’t know much about TikTok; however, we understand this social media platform, which enables subscribers to create and share short videos, is “blowing-up” over a controversial new trend: chiropractic treatments for babies….babies as young as 6 days old. 

Proponents claim that the gentle “baby adjustments” are effective treatment for a variety of baby ailments including colic, constipation, reflux, musculoskeletal issues, and even the trauma experienced in childbirth. 

Although manual treatments to address spinal conditions in adults were reportedly used by Hippocrates around 400 B.C. and by Buddhist monks dating back over 2,000 years, chiropractic as a “modern” profession began in 1895 when Daniel David Palmer adjusted the spine of a deaf janitor which, Palmer claimed, restored the janitor’s hearing. The primary issue, we understand, is subluxation. Subluxations, or misalignments of the spinal vertebrae, are thought by chiropractors to compromise and influence the function and health of the nervous system in general and the various organ systems in the body. Proponents argue that adjustments by a trained, qualified, and knowledgeable practitioner to correct subluxation therefore promote proper nervous and organ system function and health in general. 

But for babies?

As you might expect, many physicians have expressed concern that spinal manipulation of babies places them at greater risk for injury to their soft developing bones and over-stretching of their looser joints. According to an article in the Washington Post, one orthopedic surgeon at Children’s National Hospital in Washington D.C., Dr. Sean Tabaie, commented that there is no way one would achieve improvement in a newborn from manipulation. “The only thing you might possibly cause is harm.”

On the other hand, a recent study of 58 colicky babies in Spain found that light touch therapy resulted in a significant reduction of crying in those babies receiving the treatment. The parents of the babies were aware of the treatment, however, which can cause biased reporting of results. 

And following a 2021 study in Denmark of 185 colicky babies, researchers indicated data suggested that babies receiving chiropractic treatment “seemed” to cry less; however, the findings were deemed not to be statistically significant. 

Call us old-fashioned, but we think we would opt for the extended 3:00 a.m. car ride to soothe a colicky baby.

Copyright 2022, Stone Loughlin & Swanson, LLP