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Searching for Articles by Russell W. Wilson
Russell W. Wilson
Attorney
Wausau Office
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Found 29 Results.

Wisconsin Court of Appeals Allows “Stacking” for Revision Prosthetic Procedures

Posted on February 12, 2015, Authored by Russell W. Wilson, Filed under Employment

The Wisconsin Court of Appeals issued its decision on February 4 in a consolidated appeal that allows permanent partial disability benefits to be “stacked” where revision prosthetic surgical procedures were necessary. The effect of the ruling is to double permanent partial disability benefits. Three workers had prostheses resulting from compensable industrial injuries: John Blasius had a knee prosthesis; John Peszko a shoulder prosthesis; and, Terry Gruenberg a hip prosthesis. Each worker was entitled to the minimum permanent partial disability (“PPD”) ratings established in DWD 80.32, i.e. 50% loss of use at the knee, 50% at the shoulder, and 40% at the hip joint, respectively. All three workers required revision procedures. The Labor and Industry Review Commission (“LIRC”) determined that the revision procedures allowed the minimum PPD ratings to be awarded again, i.e. “stacked” upon the earlier awards. The Wisconsin Court of Appeals found LIRC’s decision to be reasonable, and, therefore, controlling. The Court of Appeals found ample support for its decision in existing case law. In DaimlerChrysler v. LIRC, 2007 WI 15, the Wisconsin Supreme Court allowed stacking of PPD benefits following a revision anterior cruciate ligament procedure, and in Madison Gas Electric v. LIRC, 2011 WI App 110, the Court of Appeals had allowed stacking where the second surgery resulted in a total knee replacement. With that precedent, it was not much of a leap for the Court of Appeals to allow stacking in revision prosthetic procedures. This case is significant because its effect is to double PPD payments in revision prosthetic procedures. Total (100%) loss of use of the leg at the knee joint, for example, equates to 425 weeks times the PPD rate in effect at the date of the injury. For the sake of discussion, the maximum PPD rate for an injury in 2015 is $322. So an initial prosthetic procedure would be 212 ½ weeks times the PPD in effect for that injury. If we use the $322 rate as an example, the award for the first procedure would be $68,425. A revision procedure would allow for an additional $68,425 under the “stacking” rule determined by LIRC and found to be reasonable by the Court of Appeals. The case is General Contractor’s Corp. v. Blasius, 2015 WL 44852 (February 4, 2015).

Aggressive Conduct Toward Subordinate Places Sheriff in Jeopardy of Civil Suit Under Wisconsin Law

Posted on September 2, 2014, Authored by Russell W. Wilson, Filed under Employment

Just how threatening and intimidating can a superior or co-employee act toward a subordinate or co-employee without incurring the risk of a civil lawsuit for damages under Wisconsin law? The federal district court in Madison faced that interesting question in a preliminary motion hearing. As a result, the lawsuit against the sheriff of Burnett County will proceed at least through the discovery phase, after which a motion for summary judgment might, or might not, be available. The "exclusive remedy" provision of the Worker's Compensation Act provides near immunity from suit against the employer. That protection from suit likewise applies to individuals (superiors or co-employees), except for a few exceptions. One of those exceptions is an assault with intent to cause bodily harm. Actual bodily harm is not required, but there must be intent to cause bodily harm coupled with an "assault." You might ask: "An assault is bodily harm, right?" Actually, not. Under Wisconsin law, the making and raising of the fist would be an example of an "assault," while the actual physical contact is a "battery." Hence, the term "assault and battery." Under Wisconsin tort law, verbally berating and hounding a co-employee or subordinate in the absence of some degree of aggressive physical behavior would not subject the offending party to suit even if the victim has a nervous breakdown as a result. It is another story if the aggressor strikes the victim. That would remove the protective shield of the worker's compensation exclusive remedy; the aggressor could be sued individually for all of the victim's damages, including emotional injury. What if the aggressor threw a punch, the victim ducked, and the aggressor missed? The law presumes that one intends the reasonably foreseeable consequences of his actions. In that instance a suit against the aggressor would probably proceed to trial because a swing and a miss is strong evidence that the aggressor meant to hit the victim. In a motion to dismiss decided on August 1, 2014 in Nesvold v. Roland (2014 WL 3810899), the amended complaint alleged that the Burnett County Sheriff "rushed" the jail administrator, "pointed his finger" in the administrator's face, "pounded on the windows," "threw boxes at the wall," and "intended to restrain" the administrator so as to cause him to assume a defensive posture. The district judge ruled that these allegations at the pleading stage are enough to get past a motion to dismiss. Whether the sheriff is actually determined to have intended to cause bodily harm will play out in the discovery phase, and possibly, at trial. Not to lose sight of the big picture in this case, federal charges for alleged deprivation of civil rights were not part of the motion to dismiss and will go forward.

Subrogation Under ERISA

Posted on April 25, 2013, Authored by Russell W. Wilson, Filed under Employment

Mary Ellen Schill and I were talking about the e-alert that we posted April 19 on the right of reimbursement for self-insured group health plans under ERISA in light of the US Airways v. McCutcheon case decided by the U.S. Supreme Court on April 16. A couple of points caught our attention. The scope of reimbursement can be as broad as possible so long as the plan is drafted accordingly. If the plan language does not have any gaps, then the Court will not inject a default gap filler based on equity principles. But when there are gaps, the Court will supply a default, which may drastically affect the amount of reimbursement. So drafting is key. Yet, as Justice Kagan describes in her well-written opinion, drafting a reimbursement clause to apply even before deduction of contingent attorney fees and costs could be self-defeating. What personal injury lawyer will agree to take an injury case if the lawyer knows that the contingent fee might be consumed in the right of reimbursement enjoyed by the self-insured group health plan? In that situation, the only manner by which the self-insured group health plan may obtain reimbursement would be to file a separate action in federal court. Having said that, the plan sponsor is at liberty to negotiate from a position of the broadest possible language. Stay tuned for further details!

Rock My World - Geology Field Trip

Posted on January 2, 2013, Authored by Russell W. Wilson, Filed under Community

Russ Wilson is a member of a committee that is developing an outdoor geology exhibit for the Mead Wildlife Center that is owned and operated by the Wisconsin Department of Natural Resources in Wood County. The committee is gathering a variety of rock specimens from a 100-mile radius of the Mead in order to demonstrate the wide variety of geologic activity that has taken place in this neck of the woods over the past 2.8 billion years or so. Russ organized a field trip on April 14, which included retired geology professor Gene LaBerge, who mapped much of the bedrock in northern Wisconsin and who wrote the book on the geology of the Lake Superior region. The specimen shown in the pictures was formed from lava that erupted on the ocean floor in a rifting event. A rift occurs when tectonic plates diverge and basaltic lava flows out with the viscosity comparable to that of olive oil. The lava was very hot, but it cooled quickly when it hit the cold sea water. Much later, about 1.85 billion years ago, tectonic plates converged to form a mountain chain that geologists call the Penokee Range. That range has long since been eroded, buried by sedimentary rock deposited by rising sea levels, and then exhumed when the highland area of northern Wisconsin was raised up about 1.1 billion years ago when a rifting event took place that formed Lake Superior. A small remnant of the Penokee Range remains in Iron and Ashland counties. When the most recent glaciation took place, it moved this rock from some-where in northern Wisconsin to its present location in the terminal moraine that runs east-west north of Highway 64. That glacier receded roughly 12,000 to 10,000 years ago just a blink of the eye in earth time  to reveal the rock.     

Unsigned Legislative Memo: Drastic Changes Planned for Worker’s Compensation?

Posted on January 27, 2015, Authored by Russell W. Wilson, Filed under Employment

Senator Jon Erpenbach’s (D-Madison) office released an unsigned memorandum addressed to “WC Stakeholders.” The memorandum is dated January 15, 2015, and its subject line reads “WC Reorganization.” While the memorandum is unsigned, it is clear that the author is an administrator within the Worker’s Compensation Division of the Department of Workforce Development (DWD). The author states that he or she “learned that the Governor will include a proposal in his 2015-17 budget bill to remove the Division of Worker’s Compensation from the Department of Workforce Development.” There is no doubt as to the point of the memorandum: “In the final analysis, Wisconsin has a superior WC system. No credible explanation has been given as to why a Division that is wholly program revenue funded should be targeted for drastic changes that will clearly have a negative impact on our stakeholders.” As one who has represented the employer’s side in worker’s compensation cases for thirty six years, I find some of the details listed in the memorandum alarming. For instance, under one reorganization scenario, the position of Duty Judge would be eliminated. Having a Duty Judge available to the lawyers for the employee and the employer to clarify a wide variety of practical issues and questions that arise in the hearing and settlement process is invaluable. In my experience those Administrative Law Judges serving the role of Duty Judge have been readily available, responsive, evenhanded, and immensely helpful to processing cases and settlements. To eliminate the position of Duty Judge seems to me to be an assault on the concept of institutional knowledge and memory. Another service the memorandum says would be eliminated is computation of permanent and total disability (“PTD”) calculations. As Wisconsin’s workforce ages and claims for permanent and total disability increase, I think it is in the interest of employers and employees to have a measure of certainty and predictability as to how claims for PTD are valued. A number of variable factors must be taken into account, one of which in many cases is the calculation of the Social Security Disability “reverse offset.” The reverse offset is re-determined on a triennial basis. It is of great service to lawyers on both sides of a case to have the DWD’s reverse offset calculation. It is also beneficial to have the DWD’s standard present value discount rate in place. In my view, the elimination of the PTD calculation service may lead to widely divergent calculations, making it more difficult, if not impossible, to settle cases that are already difficult to settle. I suspect that wide divergence in case valuation will lead to more hearings on cases that ought to be settled. I think the two concerns discussed above apply evenly to the employee side and the employer side. I find the next detail from the memorandum especially alarming for the employer side that I represent. According to the memorandum: “Elimination of remote hearing locations. This will supposedly save money. It may result in hearings being held only in Milwaukee and Madison. This would require extensive travel for many of WC stakeholders.” Holding our clients’ hearings in Milwaukee or Madison would disrupt their operations and impose an enormous additional cost. As I look out the window of our office building here in the quaint “remote location” known as Wausau, I can see the building not two blocks away where WC hearings are held. Even so, our clients must send their HR managers, worker’s compensation managers, production staff, safety personnel, and any number of other witnesses often from considerable distance from Wausau. There being no discovery in worker’s compensation, the employer that is well-prepared for hearing must typically bring everyone to the hearing who might need to testify. If “remote hearing locations” are eliminated, many employers are likely to be “held up” for settlement based on legal expense. Those are the points in the memorandum that alarm me the most, but you can draw your own conclusion. Click here for the memorandum

Wisconsin Worker's Compensation Policy Favors Immunity

Posted on July 21, 2014, Authored by Russell W. Wilson, Filed under Employment

The legal protection to employers in worker's compensation is immunity from lawsuits by employees. Please the check out the following link for a recent case that applies this principle. {CCM:BASE_URL}/legal-updates/wisconsin-workers-compensation-policy-favors-immunity-suit/

Worker’s Compensation Death Benefits: 17-Year-Old Dairy Farm Worker Killed

Posted on March 4, 2015, Authored by Russell W. Wilson, Filed under Employment

This post describes the worker’s compensation aspect of a tragic death—a 17-year-old boy was crushed when he was caught between a gate and a building while herding cows, according to OSHA’s Fatality/Catastrophe Weekly Incident Reports (11/28/2010). The worker, Juan Camacho, had worked at his employer’s dairy farm in Clark County for about two weeks before the accident, according to the Wisconsin Court of Appeals case that determined the outcome of the payment of death benefits, American Family Mutual Insurance Company v. Labor and Industry Review Commission, 2015 WL 789447, issued February 26, 2015. Much less was known about Juan Camacho than was known. He was thought to have had some secondary education in his native Mexico. He was in the United States illegally. After the worker’s compensation insurance carrier made a diligent search, no one who might have qualified as a “dependent” for purposes of worker’s compensation could be identified. The American Family case illustrates two points. First, when an on-the-job injury results in death and where no one who is eligible for receipt of death benefits can be identified and located, death benefits are payable to the State of Wisconsin Work Injury Supplemental Benefit Fund (“WISBF”). In this case the Wisconsin Department of Justice, which represents the WISBF, filed a hearing application for payment of death benefits in the wake of Camacho’s death. There is nothing surprising about this procedure. While American Family did not dispute that death benefits were payable, it did contest the amount of those benefits. As a 17 year old dairy farm laborer, Juan Camacho’s wage rate was low. The Worker’s Compensation Act imposes, however, an important legal presumption. Where employees are under the age of 27, the law (specifically, section 102.11(1)(g)), presumes that the employee’s wage is the wage he or she probably would earn upon attaining the age of 27. Unless the employer is able to establish, by a preponderance of the evidence, the wage the employee would likely earn at age 27, the maximum wage in effect at the time of injury “shall be taken as equivalent” to the projected earnings. In this case the Labor and Industry Review Commission (“Commission”), which adopted the decision of the administrative law judge as the Commission’s own, determined that American Family’s vocational expert’s report failed to overcome the legal presumption by a preponderance of the evidence. The expert’s report observed that Juan Camacho’s projected earnings in Mexico at age 27 would be about $233 per month, which is less than the maximum wage for an injury in 2010 ($433 per month). Finding the expert’s report and the testimony of the employer unpersuasive, the Commission determined that the presumption had not been overcome by the preponderance of the evidence. Accordingly, the Commission awarded death benefits in the maximum amount for an injury in 2010, which totals $244,500, to be paid to the WISBF. The Wisconsin Court of Appeals reviewed the Commission’s decision. The appellate court found that the Commission’s factual determination (that the evidence did not overcome the presumption) was supported by substantial and credible evidence. The appellate court also found that the Commission is entitled to great deference in interpreting section 102.11(1)(g) and that the Commission’s interpretation (that the statute creates a rebuttable presumption in favor of the maximum wage) is reasonable. Accordingly, the court of appeals affirmed the Commission’s ruling. There is nothing surprising about these well-established principles. They illustrate what employers and insurance carriers can expect in the tragic instances of young workers who are killed in work-related accidents.

Third Party Settlements in Worker's Compensation

Posted on August 1, 2014, Authored by Russell W. Wilson, Filed under Employment

When a worker's compensation insurance carrier settles a third party claim, the injured employee is bound by the settlement amount. The full story on the Wisconsin Supreme Court's decision announced on July 22 can be found here.

Inaccurate Background Checks Lead to $2.6 Million Reality Check for One Company

Posted on January 12, 2013, Authored by Russell W. Wilson, Filed under Employment

Wow, the second largest civil penalty obtained by the Federal Trade Commission against a private company for violations of the Fair Credit Reporting Act caused me to take notice. Recently, the FTC for the first time charged an employment background screening firm with violating the federal Fair Credit Reporting Act (the federal law that governs "consumer reports" and "investigative consumer reports" generically referred to as "background checks"). According to the FTC's allegations, HireRight Solutions, Inc. committed "multiple violations" of the FCRA by: (1) failing to use reasonable procedures to assure the maximum possible accuracy of the information it provided; (2) failing to give consumers copies of their reports; and (3) failing to reinvestigate consumer disputes. According to the FTC's allegations, HireRight, in many cases, furnished reports to employers about prospective employees that were not current reports that allegedly did not contain information such as the expungement of criminal records. In other words, according to the FTC, HireRight generated reports that erroneously listed criminal convictions for certain applicants, or that included the records of the wrong person. According to the FTC, HireRight's mistakes caused applicants to be denied employment or other employment-related benefits. The U.S. Department of Justice filed suit against HireRight (in federal court in D.C.), on the FTC's behalf, on August 8, 2012 the case was settled shortly thereafter (the settlement/consent decree is subject to the court's approval). Not that employers need another "gut check" (sorry, I couldn't resist), but the HireRight consent decree is further evidence of the FTC's increased enforcement activity. Like consumer reporting agencies, employers also have obligations under the FCRA which are often misunderstood. I have personally observed many unintended, common employer missteps in this area (e.g., forms that go too far). With the FTC scrutinizing Fair Credit Reporting Act compliance, employers have every reason to be alarmed and should think about revisiting existing documents and procedures.

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