Meet our new paralegals; from L to R: Taylor Adel, Felix Rosa, and Maya Gamrat.
Meet our new paralegals; from L to R: Taylor Adel, Felix Rosa, and Maya Gamrat.
On July 30, 2020, Governor Evers issued a mandate requiring all Wisconsin residents to wear a face covering, starting August 1, 2020, while indoors until September 28, 2020. The penalty for failure to comply is $200.
The mandate require all individuals age five and older to wear a face covering if:
Both of the above conditions must be met for the mandate to apply. However, the order says masks are “recommended” outdoors when social distancing is not possible.
The term “enclosed space” is defined as a confined space, open to the public, where individuals congregate, including but not limited to outdoor bars, outdoor restaurants, taxis, public transit, ride-share vehicles, and outdoor park structures.
The mandate also discourages the use of N95 masks or other medical-grade supplies in order to preserve the limited supplies for health care professionals.
The full act can be read here: Face Covering Mandate.
Continue to follow our blog for updates as more information becomes available.
As of June 2, 2020, the Office of Worker’s Compensation Hearings will allow Worker’s Compensation Hearing to be conducted via video by the request of both parties. This is not a permanent change, but one we will need to navigate for the foreseeable future. Below is a copy of the full announcement:
Happy June! Here are a few updates:
1) Our firm has a new attorney. Maxx Forti has been working as a law clerk, and is now a 2020 Graduate of Marquette University Law School. Maxx is a 2017 Graduate of Elon University in North Carolina majoring in Sports Management with a minor in Business Associations. While in law school, Maxx was an investigative intern for the Rhode Island Commission for Human Rights. Maxx took and did well in Marquette’s worker’s compensation course, which was co-taught by Attys Tom Domer and Bill Sachse. We are happy he is here.
2) As Wisconsin continues to open up, it is very important to consider:
a) Some employers have remained closed, some are partially opened, and some are opened completely. Thus, you will need to determine on a case-by-case basis whether TTD benefits need to continue.
b) You may see an uptick in COVID-19 cases, you need to monitor these closely. To assist:
i) Make sure you have a positive test before agreeing to accept a case as WC.
ii) The test should tell you whether the person currently is sick or has the antibody (meaning he/she already had Covid-19). There are two different kinds of tests. One test just provides a positive/negative diagnosis, and the other test will tell you if the antibody is present. The test for the antibody is a blood draw test. The test that will provide a positive/negative result is a molecular test – nose or throat swab. You may want to request both tests. If you need more information: How do COVID-19 antibody tests differ from diagnostic tests?
iii) Make sure to take a detailed recorded statement including when symptoms began, any other jobs, all activities (gyms, churches, etc. are reopening), places visited, who are their household members and whether they are working, have been sick or exposed, etc. There are plenty of other questions to ask or situations that may create special questions. Call if you want to discuss a particular case.
iv) Make sure you talk to the employer about any work exposures, when the employee worked (so you can compare it to the symptoms, test date, etc.), whether the employee made any statements, and/or are there any co-workers or witnesses you should talk to.
c) Here is DWD’s link to COVID-19 claims: Worker’s Compensation COVID-19 Public Information. Their answer to Question #1 is helpful to show that just because someone has COVID-19, it does not mean it is a work injury:
i) “For coronavirus to be covered by worker’s compensation it must be established that contracting the disease was work-related. In other words there must be evidence to prove that contracting coronavirus arose out of your employment while you were performing services growing out of and incidental to your employment.”
3) OWCH still has not stated when they plan to re-start hearings.
4) ALJ Stanley Michelstetter (Madison) will retire on June 1, 2020, and ALJ Nancy Schneiders (Milwaukee) on June 15, 2020. OWCH has posted an ad to hire additional judges.
5) IME provider Dr. William Merrick passed away. Here is his obituary: Merrick, William Andrew “Bill”.
LIRC, decided March 12, 2020
The Claimant-Employee (Claimant) worked for the City of Green Bay (Employer), beginning in 1987. She worked in multiple departments, including in the sanitation department, public works, and the sewage department. She alleged a left thumb injury due to occupational exposure beginning on October 25, 2017.
Her last position in the sewage department was as a truck driver, which required her to press a toggle stick controlling a hose reel, for between three and five hours per day. Claimant alleged her left thumb symptoms began toward the end of her work in the sewer department. In 2015, Applicant transferred back to the sanitation department. Her new duties included driving a recycling truck, which required her to operate a toggle switch between 20% and 80% of the time. She said this work aggravated her left thumb symptoms.
Claimant began treating with Dr. Metz on June 20, 2017, before her alleged date of injury. In his note, Dr. Metz said claimant “denied any significant injury” and the records showed she did not tell Dr. Metz this was a work-related injury. She was diagnosed with CMC joint arthritis.
When Claimant reported the alleged injury on October 24, 2017, she did not mention the toggle switch referenced above. Her claim was subsequently denied by the Employer.
Claimant then began treating with Dr. Brian Klika, on November 9, 2017. He also diagnosed CMC arthritis. At the November 21, 2017 appointment, she told Dr. Klika she was “not sure if she hurt the thumb at work, but that her symptoms became more bothersome the more she used the thumb”. She underwent surgery on November 24, 2017.
After the surgery, Claimant returned to work on December 6, 2017, and worked light duty with full pay. She continued to work until her retirement on March 16, 2018. Post retirement, Claimant continued to experience left thumb symptoms including weakness and problems with pinch/grasp tasks.
Dr. Klika completed a WKC-16-B on February 26, 2018. The mechanism of injury referenced was Claimant’s duties as a garbage truck driver and the repeat use of a toggle switch. He said her work exposure precipitated, aggravated, or accelerated her preexisting left thumb condition beyond its natural course. He also said Claimant was still healing.
He completed a second WKC-16-B on November 15, 2018. He reiterated his causation opinion, and said Claimant reached an end of healing on February 15, 2018. He rated 7% PPD to the left wrist based on deficits in range of motion and grip strength. He also said Claimant’s prognosis was good and she did not need future treatment.
Respondents obtained an IME with Dr. Bax. He said Applicant’s left thumb condition was idiopathic and cited Applicant’s age and gender as causative factors. Regardless of cause, Dr. Bax rated 5% PPD to the left thumb.
Applicant’s claimed was dismissed by the ALJ based on inconsistencies in her testimony and inconsistencies in the medical records. LIRC reversed the ALJ decision stating Applicant was not as careful as she should have been when documenting the details of her work-related injury. The Commission elaborated, stating Applicant is “not a physician or a lawyer and could not have known with certainty that she was dealing with a worker’s compensation claim”.
The ALJ determined at hearing that Claimant’s testimony was not credible. LIRC, however, decided her testimony was credible despite admitting “Applicant was not a good historian”. Instead, they deemed she had been honest in this matter. Thus, Dr. Klika’s opinion was found credible.
Is LIRC’s decision in this matter at odds with the Smith v. Zielles Tree Serv., Inc., decision from October 2019?
As a reminder, in the Smith v. Zielles Tree Serv., Inc., decision, LIRC found that Claimant’s doctor’s opinion not to be credible because the doctor relied on an inaccurate or incomplete information/medical histories.
The opinion in the Orsted decision may be at odds with the Smith decision. Specifically, it appears the Orsted decision says opinions based on inaccurate or incomplete medical information may be deemed credible if the Claimant’s inaccuracies are because they were “not a careful or conscientious historian, but at some point honestly sought treatment for a [left thumb] condition” Orsted v. City of Green Bay and subsequently realized they “had a worker’s compensation claim related to that condition”. Id.
Additionally, LIRC said the failure to include the toggle switch operation on the First Report did not diminish the Claimant’s credibility because she “credibly testified” Id., that she did not think about it at the time she filed the claim.
This opinion muddies the waters regarding the credibility of not only doctor’s opinions based on inaccurate or incomplete information , but also claimant credibility. Moreover, it appears that inaccurate or incomplete information, when provided by claimants early in the treatment course, will not be viewed with as much scrutiny, if they were not aware or did not plan to file a worker’s compensation claim at that point.
Additionally, the opinion suggests that failure to include relevant information when reporting the injury can be overcome by the claimant at hearing, as long as the claimant gives “credible testimony” justifying the omission of the relevant information.
Lastly, the Orsted decision shows LIRC can and will reverse a ALJ’s credibility assessment despite not hearing actual testimony. This also appears to conflict with the recent decision in Oja v. M.A.D. Enterprises, which states an opinion on the credibility of testimony cannot be made by a party who did not hear the testimony firsthand and a new hearing must be conducted in order to determine whether a claimant credibly testified.
On May 13, 2020, in a 4-3 decision, the Wisconsin Supreme Court ruled Wednesday afternoon that DHS Secretary-Designee Andrea Palm’s Emergency Order 28 was “unlawful, invalid, and unenforceable”.
The ruling is effective immediately, and essentially forces the Legislature, the Governor, and health experts to come together and form a new plan or forge ahead with no plan at all.
The Republican led Legislature had ask for a six-day stay of the order after the ruling to allow for negotiations, but the Court would not allow it. Instead, the Court said, “responsibility for the future-law making is with the Legislature and DHS where it belongs”.
Additionally, local government leaders have the ability to put local rules in place, specifically addressing the needs of their communities. As of this morning, May 14, 2020, the Cities of Milwaukee and Racine and Milwaukee County already issued their own orders. We expect other localities to do the same.
We will continue to follow this decision and update the blog with developments, along with their impact on businesses statewide.
Court of Appeals, decided April 16, 2020
Per Curiam – Per Curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Rule 809.23(3). Stats.
The Claimant-Employee (Claimant) worked as a line cook for a restaurant (Employer). Claimant alleged he was subjected to multiple instances of offensive racial epithets that, despite reporting them to the Employer, did not stop. Claimant subsequently, voluntarily quit his employment and filed a claim for unemployment benefits. It should be noted multiple employees were reported to have used the offensive racial epithets and management/ownership held a full-staff meeting to address appropriate workplace conduct. The alleged behavior reportedly continued after the meeting. Unemployment denied his claim because of the voluntary nature of him quitting and said there was no good cause for the termination that was attributable to the Employer.
To clarify, the Division defines good cause as “a valid, substantial reason for which the employer is responsible and which leaves the employee with no reasonable alternative but to quit”. Sec 108.04(7), Stats.
Claimant appealed the decision. The ALJ who heard the matter reversed the Division’s decision stating Claimant’s decision to quit was reasonable because he perceived the racial insensitivity would not end.
The Employer appealed. LIRC said it was Claimant’s burden to prove his quitting was for good cause attributable to the Employer. LIRC determined the alleged exposure to the insensitive racial epithets did not meet this burden because the alleged incidents did not consistently come from one employee and ownership held a meeting to discuss appropriate workplace conduct after Claimant reported the multiple incidents. Likewise, Claimant did not pursue reasonable alternatives to resolve the issue prior to voluntarily terminating his employment.
Claimant appealed to the Circuit Court of Wood County. The Circuit Court added the Unemployment Division as a Defendant, and then, confirmed LIRC’s decision. Claimant then appealed to the Court of Appeals.
When an employee voluntarily terminates their employment, who has the burden of proving/disproving whether that employee is disqualified from receiving benefits? What subject matter is included in this proof/disproof?
What constitutes good cause attributable to the employer?
The Court of Appeals (CoA) discussed multiple issues in their discussion. The most pertinent findings include:
The CoA noted Claimant did not need to pursue reasonable alternatives to resolve the alleged issues (racial misconduct) prior to quitting because the language of Sec. 108.04(7)(b), Stats., only states pursuit of alternatives prior to quitting may be a factor taken into consideration when analyzing whether benefits may be allowed, but does not create a statutory requirement.
Additionally, the CoA cited multiple LIRC decisions inconsistent with the decision involved here. Specifically, they cited Greenwald v. CUNA Mutual Insurance Society, stating “the use of racial epithets is misconduct and grounds for dismissal without warning”. They also cited Knoll v. S & P Midwest Carriers Inc., stating “harassment also may provide good cause attributable to the Employer to cause an employee to quit”. Basically, the CoA stated there did not need to be a progressive discipline plan in place when racially based harassment is alleged and the employer has the burden of investigating and taking action on these types of allegations.
Further, the fact that the Employer had a meeting to discuss the allegations and discourage future behavior was not sufficient to resolve the situation based on the fact that the behavior continued after the meeting. The CoA specifically referenced that handout given to the employees at that meeting that said, “persistent behavior was grounds for termination”. The CoA said this implied that as long as Claimant wanted to remain employed, he would have to be subjected to offensive racial epithets as long as they were not “persistent”.
Even further, the CoA said the unemployment statute required the Employer to either pay unemployment benefits or take steps to not subject Claimant to offensive racial language. Failure to do so would be deemed an omission or failure to act and attempts to correct are ineffective unless actual change is demonstrated; thus, Claimant’s voluntary quit would be with good cause attributable to the Employer.
The CoA also said LIRC failed to consider the “appalling nature of the language, the number of events, and the effect on Claimant as reasonably perceived by him,” Whittlesey v. LIRC. Therefore, the combination of the racial epithets, the ineffective corrective actions, and the omissions of the Employer to establish “good cause attributable to the Employer” with regards to Claimant’s voluntary termination and benefits should be allowed.
A copy of the full decision can be read here: Whittlesey v. LIRC
If you have any questions on how this impacts your business or want to discuss other issues with this decision, please contact our office.
On Monday, April 20, 2020, Governor Evers announced the Badger Bounce Back Plan (the Plan) to begin to re-open Wisconsin’s economy. The plan is based on the similar guidelines issued by President Trump last week. The Plan is broken into three phases. Each phase of the Plan is intended to be “incrementally less restrictive on businesses and individuals while protecting the public from COVID-19.
Phase One: Allows for mass gatherings of up to 10 people. Restaurants are able to open with social distancing measures in place. This also includes the removal of certain retail restrictions for Essential Business and Operations. Additionally, K-12 schools are able to resume in-person operations along with child care operations.
Phase Two: Allows for mass gatherings of up to 50 people. Restaurants can resume full operations and bars can re-open with social distancing restrictions. Non-essential business can resume full operations, but need to enforce social distancing. Post-secondary education institutions may resume operations.
Phase Three: Resume all business activity and gatherings. Minimal protective and preventative measures will be in place to protect the general public. There will be increased protective measures for the more vulnerable populations.
No timetable has been established and the Department of Health Services will determine when it is appropriate to advance to the next phase. Criteria for progression includes “a downward trajectory of influenza-like illnesses reported within a 14-day period,” and a “downward trajectory of COVID-19 like syndromic cases reported in a 14-day period.”
You can read the full text of the Plan here: Badger Bounce Back Plan
Governor Evers made it clear that Wisconsin has not reached Phase One yet. Thus, the extension of his “Safer-At-Home” order remains in effect until 8:00 a.m. on May 26, 2020. See our April 17, 2020 post (https://mil-law.com/safer-at-home-extended) discussing that plan for more details.
We will continue to provide you with information as this situation continues to evolve. If you have any questions on how this impacts your business or your clients, please contact our office to discuss.
On March 30, 2020, the Worker’s Compensation Ratings Bureau released its Circular Letter addressing new issues that impact Wisconsin Worker’s Compensation Insurance Carriers and Employers. One specific issue we felt should be highlighted is how premiums paid by Employers would be impacted by wages paid to employees who were furloughed during the state-wide emergency orders issued by Governor Evers. Basically, these wages will not be included when the worker’s compensation premium determination is made during a subsequent policy audit. Employers should keep separate records that identify whether it is payroll for furloughed employees or for employees who are still working to prevent future issues when determining their worker’s compensation premium.
A link to the circular letter can be found here: WCRB 2020 Circular Letter
On April 16, 2020, Governor Evers extended his “Safer at Home” order through May 26, 2020. The previous order was set to expire next week, on April 24, 2020.
The extension also included some changes, these include:
Additionally, the extension outlined safe business practices for essential businesses and operations, these include:
The order will remain in effect until 8:00 a.m. on May 26, 2020.
You can view the full text of the order here: EMO28-SaferAtHome