Worker's Compensation Update

WDC Journal Edition: December 2001
By: Civil Trial Counsel of Wisconsin

Through the efforts of ALJ Tom McSweeney, a new organization has been created that appears to focus on the practice of worker's compensation. While there have not been any meetings of this new organization, my impression is that it is not going to be focused on either the applicant's or the respondent's side, but rather will encompass both sides.

Recent Cases

Fleishman v. Rehm, et al., Court of Appeals file number: 00-1493
This case discusses an interpretation of an automobile insurance policy involving a 102.29 claim. The policy contained language requiring the court to interpret whether the phrase "legally entitle to recover" allowed the carrier to discount the recovery since the claimant was necessarily limited in recovery by 102.29. The court interpreted the policy so as to not allow for the reduction as a result of the potential proceeds distribution under 102.29.

Thompson v. LIRC, Court of Appeals file number: 00-2236
The applicant was originally denied benefits. It was alleged that LIRC denied benefits despite the fact that medical evidence in the record was unrefuted. The court discussed the standards to be utilized by LIRC with regard to the review of evidence. The Court of Appeals relied extensively on Liest v. LIRC, 183 Wis. 2d 450, 515 N.W. 2d 268 (1994).

Begel v. LIRC
This case presents an interesting and thorough discussion of 102.03, and in particular, whether the act grows out of and is incidental to the employment of the worker. There is a significant dispute as to whether the worker was on a private errand or was still in the course of his employment. The worker was performing duties on the construction of a home at the time of the injuries. The home belonged to his employer who was a faculty member at the University of Wisconsin where the worker was a research assistant for the homeowner/faculty worker. The court ultimately determined that the worker was in the course of his employment.

Hayes v. LIRC, Court of Appeals file number: 00-0949
This decision represents a short and non-published discussion of the nature and extent of legitimate doubt. The court determined that LIRC had a sufficient basis for a finding of legitimate doubt which ultimately lead to the denial of benefits.

Diel v. LIRC, Court of Appeals file number: 00-1834
This case discusses the credibility of an applicant and the powers inherent with LIRC with regard to judging that credibility. The applicant appears to have been less than credible and as such, was ultimately denied benefits.

*As a side note, this author currently has a case before the court of appeals in which LIRC determined that an applicant was not credible and a legitimate doubt existed as to benefits, but only those benefits above 10% loss of earning capacity. The issue confronting the court of appeals is whether Wisconsin law allows LIRC to determine both that a legitimate doubt exists as to benefits and yet award some benefits, thereby imposing an arbitrary line between those benefits based on credible evidence and those benefits that are not.