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Basic Requirements for Liability under Section 102.23. Employee sustains an injury.At the time of the injury, the employer and the employee are both subject to the Act.At the time of the injury, the employee is performing services growing out of and incidental to his/her employment.The accident
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1. TEN PRECEDENT SETTING CASES IN THE WORLD OF WORKERS’ COMPENSATION
2. Basic Requirements for Liability under Section 102.23 Employee sustains an injury.
At the time of the injury, the employer and the employee are both subject to the Act.
At the time of the injury, the employee is performing services growing out of and incidental to his/her employment.
The accident or disease that causes the employee’s injury arises out of his/her employment.
3. Process and Procedure from Application through Judicial Review Application for Hearing;
Administrative Hearing;
Administrative Law Judge - Findings and Order;
Petition for Review;
Labor and Industry Review Commission Decision;
Judicial Review (Circuit Court, Court of Appeals, Supreme Court).
4. BROWN v. INDUSTRIAL COMMISSION
5. Facts: Applicant was a 33 year old bricklayer laying a double brick wall which required a great deal of bending and lifting bricks which weighed between 3-5 lbs.
While bending/leaning over the wall, Applicant developed sharp pain in his back.
Aside from the bending and lifting the bricks, there was no single event that precipitated Brown’s pain and discomfort.
Brown’s doctors concluded that he suffered from a low back syndrome with discogenic disease at the right 4th and 5th lumbar space. The doctors further opined that his work activities of frequent bending and lifting caused his already diseased disc to herniate.
The employer’s expert opined that Applicant was doing nothing unusual and that all bricklayers frequently bend and lift bricks. The doctor further concluded that the herniated disc only indicates that Applicant had an already diseased disc which eventually gave out in the course of ordinary work effort.
6. Commission’s Finding: Applicant was doing the usual and ordinary work as bricklayer when he developed his back disability.
Applicant did not “slip, fall or have any accident” and thus did not have any injury within the meaning of sec.102.03
Denied Brown’s application for compensation
7. Supreme Court Reversed the Department.
An injury is accidental whether caused by a usual or unusual exertion when the result is a herniation or breakage.
8. Supreme Court When usual exertion leads to something actually breaking, herniating or letting go, with an obvious sudden mechanical or structural change in the body, the injury is accidental.
9. Supreme Court The fact that an employee has a pre-existing diseased disc which was liable to herniate from even normal work effort as a bricklayer does not relieve the employer from liability. An employer takes an employee “as is” and if he is suffering from disease predisposing to breakage and an exertion required by employment causes the breakage at the moment of exertion, the employer is liable under the Act.
The employee does not have to show that the exertion was in any way unusual to his employment.
10. LEWELLYN v. INDUSTRIAL COMMISSION
11. Facts: Applicant worked on an assembly line for Briggs & Stratton.
Lewellyn’s duties required that she pick up a blower housing (5 lbs. 13 ounces) from her left and place it under a stamping machine which was directly in front of her, and then placing the blower housing on a gasoline engine which was at her right.
12. Facts: While turning and leaning over to pick up the blower housing unit on her left, Applicant felt a severe pain in her back.
Applicant presented to the company doctor on the same day and the doctor’s examination revealed that Applicant had a degenerated disc which became symptomatic and disabling during her work, but the disabling condition was not a result of her work effort. The doctor’s examination and x-rays also revealed no herniation, swelling, or abnormality of any kind.
13. Facts: Nearly one year later, Applicant presented to another physician. This physician did further testing and determined that Applicant had a herniated or ruptured disc.
Hearing examiners determined that Applicant had sustained a compensable injury in the nature of an occupational disease and awarded compensation.
14. Commission’s Finding: Reversed the hearing examiners.
Applicant had a degenerative disc condition which was not caused by or aggravated by her employment. Thus, Applicant did not sustain and injury arising out of her employment.
15. Supreme Court: Affirmed the Commission’s findings and order.
If there is a definite breakage (a letting go) while the employee is engaged in usual or normal activity on the job, and there is a relationship between the breakage and the effort exerted, the injury is compensable regardless of whether or not the employee’s condition was preexisting and regardless of whether or not there is evidence of prior trouble.
16. Supreme Court: If the employee is engaged in normal exertive activity but there is no definite breakage or demonstrable physical change occurring at that time but only a manifestation of a definitely pre-existing condition of a progressively deteriorating nature, recovery should be denied even if the manifestation or syptomization of the condition became apparent during normal employment activity.
If the work injury precipitates, aggravates and accelerates beyond normal progression, a progressively deteriorating condition, it is an accident causing injury or disease and the employee should recover even if there is no definite breakage.
17. SHELBY MUTUAL INSURANCE v. DILHR
18. Facts: Applicant was employed with duties which required heavy lifting and shoveling.
Beginning in 1961, the Applicant suffered repeated injuries to his low back.
19. Facts: Toward the end of 1966, the Applicant was at home on vacation from work when, while carrying a heavy box, he sneezed; the Applicant immediately felt a sharp pain in his back and was unable to return to work.
A herniated disc was diagnosed.
The medical experts opined that the Applicant’s back condition was caused by his heavy labor and series of back traumas. No one trauma was identified as the single cause, and no expert apportioned the condition among the various back traumas.
20. Commission’s Finding: Commission determined that as the result of his repeated work related back traumas, the Applicant had sustained an injury arising out of his employment on an occupational disease basis.
21. Court of Appeals: An occupational disease is a disease which is acquired as the result of an incident of working in an industry over an extended period of time.
Repeated back injuries may also be compensable as an occupational disease.
In cases of occupational disease, the time of injury is the last day of work for the last employer whose employment caused the disability.
22. ZURICH GENERAL v. INDUSTRIAL COMMISSION
23. Facts: Applicant worked for extended period of time in respondent’s chipping room with extreme exposure to dust.
Applicant developed respiratory problems and was ultimately removed from the chipping room into another part of the respondent’s operation that did not have the dust exposure.
Applicant continued working for approximately 4 years until he became permanently and totally disabled.
24. Facts: During the time that Applicant was employed with the respondent, respondent had multiple workers’ compensation insurance carriers.
While employed inside the chipping room, Zurich was the insurance carrier on the risk.
At the time that Applicant quit his employment because of permanent total disability, another carrier was on the risk.
25. Commission Finding: Applicant’s occupational disease was contracted and resulted in disability prior to the time that Zurich was removed from the risk.
Zurich is responsible for entire compensation benefits due.
26. Supreme Court: The “time of accident” for occupational disease cases is when disability first occurs.
The employer in whose employment the injured is and the insurance carrier at that time are liable for the total consequences due thereto.
If the disability is partial and there is a recovery and a subsequent disability with subsequent exposure, the Commission will have to determine whether the subsequent disability arose from a recurrence or is due to a new onset induced by a subsequent exposure.
27. Supreme Court: If the Commission finds that the disability is due to a new onset, the employer and the carrier on the risk at the time the total disability manifests itself shall be liable.
If the Commission finds that there is no subsequent exposure which contributes to the disability and the disability is a recurrence of the former disease then the new employer/insurance carrier shall not be liable.
28. BALCZEWSKI v. DILHR
29. Facts: Applicant was employed by the Mendota Mental Health Institute when she sustained a back injury as a result of a fall down the stairs.
As a result of the back injury, Applicant’s activities were severely restricted.
Applicant enlisted a vocational expert who opined that as a result of her activity restrictions, Applicant was not qualified for any industrial employment.
Applicant’s expert’s opinion was not attacked or questioned during the course of cross-examination.
Employer’s vocational expert opined that the Applicant sustained a loss of earning capacity of 55%.
30. Commission Finding: Awarded loss of earning capacity in the amount of 55%.
31. Supreme Court: Where nonschedule industrial injuries are sustained, the crucial factor in establishing permanent total disability is proof of the total and permanent impairment of earning capacity.
Odd Lot Permanent Total Disability: An employee who is so injured that he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist, may well be classified as totally disabled.
32. Supreme Court: A claimant establishes a prima facie case of Odd Lot Permanent Total Disability, when the claimant establishes that he/she has been injured in an industrial accident and, because of his injury, age, education, and capacity, he/she is unable to secure any continuing and gainful employment.
When a claimant establishes a prima facie case, the burden then shifts to the employer to establish that the claimant is in fact employable and that jobs do exist for the injured claimant.
33. SCHOOL DISTRICT #1 v. DILHR
34. Facts: Applicant was employed as a guidance counselor with the Brown Deer High School.
Applicant discovered a document drafted by the students that recommended that she be terminated from her employment.
Applicant questioned some students causing her to became emotionally upset.
Applicant was diagnosed with a severe neurosis tension state with gastro intestinal signs and symptoms.
35. Commission’s Finding: Applicant sustained an injury in the nature of an acute anxiety reaction that was caused by an accident arising out of her employment.
36. Supreme Court: Reversed the Commission’s decision.
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. Only if the fortuitous event unexpected and unforeseen can be said to be so out of the ordinary from the countless emotional strains and differences that employees encounter daily without serious mental injury will liability be found.
37. BRAKEBUSH BROTHERS v. LIRC
38. Facts: Applicant sustained a compensable workplace injury.
Applicant’s physician determined that as a result of his work injury, the applicant was temporarily disabled from returning to work. The physician further prescribed bed rest.
39. Facts: During the period that the applicant was temporarily disabled from work and receiving TTD benefits, the employer conducted an investigation and discovered that the Applicant was bow hunting and playing pool.
After determining that the Applicant was not being truthful with his physicians regarding his activities, the employer suspended and ultimately terminated the Applicant for “misrepresent[ing] facts or giving false or misleading information regarding a work injury.”
Based upon his termination, the employer ceased making TTD compensation payments.
40. Commission Finding: Applicant was entitled to TTD payments while he was in the healing period despite the fact that he was terminated.
41. Supreme Court: Affirmed the Commission’s decision.
The Workers’ Compensation Act does not provide an exception to an employer’s liability when an employee is terminated for misrepresentations relating to his or her medical condition.
An injured employee who has been terminated is nonetheless entitled to disability benefits because the employee continues to be limited by the work-related injury. It is the injury, not the termination, that is the cause of the employee’s economic loss.
42. PRESSED STEEL TANK v. INDUSTRIAL COMM
43. Facts: Applicant was employed with the respondent employer for approximately 16 years, involving heavy lifting duties.
On March 11, 1944, while performing employment duties, Applicant experienced severe low back pain.
Applicant had had a prior experience of low back pain in 1938.
Applicant’s physician opined that the 1944 incident caused the Applicant’s back condition and that the Applicant was 5% PPD. However, at the time that he rendered his opinion, he was not aware of the 1938 event.
44. Commission Finding: Commission adopted the Applicant’s physician’s opinions and awarded the Applicant benefits including 5% PPD
45. Facts: In 1944 Applicant was performing work for his employer when he experienced severe pain in his low back.
46. Supreme Court: When it appears that the assumed facts do not exist or are not proven, the opinion based thereon must be disregarded.
The burden of showing facts essential to compensation by substantial evidence is on the claimant.
47. BITUMINOUS CASUALTY v. DILHR
48. Facts: Applicant began working for respondent employer, and after approximately 1 ˝ hours, he developed back problems.
Applicant’s physician opined that he was 2% PPD.
49. Facts: Respondent employer conceded the injury and paid TTD and PPD accordingly.
5 years later Applicant applied for additional Compensation benefits.
Employer denied the benefits and sought to get information from the applicant and his attorney regarding the new claims.
No information was forthcoming and the respondent employer sought the assistance of the Department.
50. Facts: The respondent requested that:
The Applicant be compelled to produce medical reports to support his new claim.
A pre-hearing conference be set to flesh out the new claims
The Department denied all of the respondent’s requests, and remarked that if evidence was presented at the hearing that the respondent could not have reasonably anticipated, a continued hearing may be permitted.
51. Facts: At the hearing, Applicant presented medical reports indicating 2-3% functional PPD and also enlisted a vocational expert that testified that Applicant had sustained >50% LOEC.
Respondent requested a continued hearing to address the LOEC issues, and the Department denied the request.
52. Commission Finding: Affirmed the ALJ
53. Court of Appeals: Reversed the Commission.
Respondent was denied due process.
Due process requires fair play.
Right to seasonably know the charges or claims preferred;
Right to meet such charges or claims by competent evidence; and
Right to be heard by counsel upon the probative force of the evidence adduced by both sides and upon the law applicable thereto.
54. CBS, INC. v. LIRC
55. Facts: Applicant was employed with CBS in its coverage of the Winter Olympic Games in Lillehammer, Norway.
On February 27, 1994, CBS gave the Applicant and other members of his crew the day off from work.
Applicant’s supervisor suggested that the crew go skiing as a group and the crew, including Applicant did so.
CBS provided the crew with lift tickets and also transported everyone to the mountain.
56. Facts: While skiing Applicant fell and injured his knee.
57. Commission Findings: Found that Applicant was a traveling employee and thus was entitled to compensation.
58. Supreme Court: Affirmed the Commission.
The burden of proving a personal deviation on a trip is upon the party asserting the deviation.
Traveling employees are given broader protection when their employment caused them to be away from home.
The workers’ compensation law must be liberally construed to include all services that can be reasonably said to come within it.
