Absent the lucky few, most Wisconsin workers are considered “at-will” employees. This means absent exceptions for unlawful discrimination (e.g. race, gender, age, religion, etc.), a worker can be fired for any reason, or no reason at all.  However, worker’s compensation injuries are another exception to this “at-will” presumption that makes a work injury a protected category.

Under Wisconsin’s workers’ compensation law, Wis. Stat. § 102.35(3), an employer (at time of injury) who terminates, or unreasonably refuses to rehire, an employee after a work injury is subject to a penalty of up to one year’s lost wages. The purpose behind this law is to dissuade discrimination against employees who have been injured on the job and, assuming there is work available within the worker’s restrictions, make sure the injured worker gets back to work with his former employer. This is yet another outgrowth of the bargain struck between workers and employers under Wisconsin’s worker’s compensation regime:  workers do not get to sue their employers or co-workers for injuries, but they are entitled to a system of no-fault benefits and job protections.

When returning to work, there is a distinction between returning while still healing with temporary physical restrictions versus returning to work with permanent physical restrictions. An employee must provide notice to their employer of any temporary (as well as permanent) restrictions. If the employer can provide work within the temporary restrictions at the same rate of pay, no temporary disability is owed; if the employer can only provide work at lower wages or less hours, the worker is owed temporary partial disability; and, if the employer cannot provide any work, the employee is owed temporary total disability. If an employer terminates a worker while they are still healing, the worker has an unreasonable refusal to rehire claim.

When an injured worker reaches an end of healing or “healing plateau,” the treating physician may assign permanent physical restrictions along with any permanent disability percentage. If the worker is provided permanent work restrictions, they must provide the same to their employer. Under Wis. Stat. § 102.35(3), the employer must offer “suitable employment…within the employee’s physical and mental limitations.” If the worker’s permanent restrictions allow return to their same job at the time of injury, they should be offered it. However, the employer must offer any suitable position available even if different than the position the worker had at the time of the injury. Only when there is truly no work available within the worker’s restrictions can the employer refuse to rehire the injured worker. The employer, not the employee, bears the burden of proving the lack of suitable employment.

The above is not meant to suggest that there is an absolute unassailable right to return to work for the same employer following a work injury. When determining whether there is “suitable employment,” the statute allows for consideration of “the continuance in business of the employer.” This gives rise to the employer’s argument that the nature of business or economic situation dictated its refusal to rehire the injured worker, not the work injury.

Unsurprisingly, these are highly fact-dependent issues and claims. Moreover, unreasonable refusal to rehire penalties are paid by the employer, not the work comp insurance company, which means they are hotly contested and litigated. The above is only a brief snapshot and is not meant to cover all the variations that accompany return-to-work decisions after a work injury; if you have questions, do not hesitate to reach out to one of our worker’s compensation or employment law attorneys.

 

Those who have the terrible misfortune of being injured in a car wreck involving a drunk driver or a hit and run driver, often find themselves having to navigate the criminal justice system as well as the civil justice system. Since the former almost always takes place before the latter, accident victims face potential pitfalls by giving an early statement to the at-fault insurance company.

Any attorney will tell an accident victim not to speak with the at-fault insurance company after an accident for a myriad of reasons. These reasons include:
1. The conversation will be recorded.
2. It is always very soon after the crash before any investigation is complete or the victim has seen the crash report.
3. The victim does not yet know the full extent of their injuries or prognosis.
4. The victim does not have a lawyer present to assist them.
All these reasons also apply to a criminal court proceeding that may follow an accident.

Last spring, Wisconsin voters passed an amendment to Wisconsin’s constitution expanding crime victims’ rights, commonly referred to as “Marsy’s Law.” While the amendment included numerous provisions, one provision included the right “to be heard in any proceeding during which a right of the victim is implicated, including release, plea, sentencing, disposition, parole, revocation, expungement, or pardon.”

This amendment expanded victim involvement and statements to earlier phases of the criminal proceeding. Judges are specifically asking at early stage hearings, such as bond hearings or initial appearances, if there are any victims present who want to provide statements. These hearings take place soon after the accident and often before the victim has retained counsel for the case. The accident victim, justifiably, is angered that they have been injured and want the judge to know. However, the circumstances of these early statements give rise to many of the same concerns that attorneys have with accident victims talking to the at-fault insurance company soon after the accident.

First, the statements are being recorded by the court reporter, and while not under oath, there is an implied solemnity to statements made to the Court. Second, the victim has likely not seen the crash report or does not know the results of the investigation of the crash. Just like a statement to the insurance company a few days after the crash, no one wants to be locked into what happened with incomplete facts. Third, at this early juncture, the victim will have just started to treat for their injuries and will not know the full extent or diagnosis. What is a neck strain at the ER following an x-ray may turn out to be a disc protrusion needing surgery once an MRI is performed a month later.

In a civil accident case, the insurance company will likely learn about any statements the victim has made to the Court, obtain the transcripts, and use them to impeach and discredit. None of this will be because anyone was dishonest; instead, they simply did not yet have the full picture of the crash and injuries. Just as a recorded statement taken mere days after the crash can be a goldmine for the insurance company, a court transcript recorded mere days after the crash can provide the same.

Importantly, this is not a suggestion that accident and crime victims avoid invoking their right to be heard at criminal proceedings. Rather, this is another illustration of why it is important to get counsel involved soon after a crash so they can help navigate both the civil and criminal justice system and make sure justice is obtained in both. 

 

Any regular reader of our newsletter, or attendee of our seminars, has heard the repeated importance about having enough underinsured motorist coverage (UIM) to protect yourself if you’re injured in an auto collision.  UIM coverage provides a pot of money to compensate you for injuries sustained in a crash if the at-fault driver does not have enough insurance to fully compensate you for your injuries.  In other words, once the at‑fault liability insurer pays its policy limit, your own insurance company steps into their shoes with its underinsured motorist coverage to pay you for any remaining uncompensated damages.

Unlike liability coverage or uninsured motorist coverage, a Wisconsin driver is not required by law to have underinsured motorist coverage.  However, if accepted (and you should), the lowest limit that can be provided is $50,000 per person / $100,000 per accident.  Considering the extremely low cost of UIM coverage, we strongly encourage that drivers get as high of limits as possible.  For example, my personal auto policy has $500,000 per person UIM coverage and it costs $26 per year.  Having sufficient UIM coverage is especially important in light of the fact that whatever your UIM policy limit, whether it is $50,000 or $500,000, is a dollar amount that you will never be able to recover the amount from your insurance company.

Current Wisconsin law allows insurers to define underinsured motorist by a “limits to limits” comparison.  The result is you will only be eligible for UIM coverage if your UIM policy limit is greater than the at-fault liability policy limit.  Similarly, current Wisconsin law allows insurers to reduce what it has to pay under its UIM coverage by whatever is recovered from the at-fault driver and his or her insurance company, often called a “reducing clause.”  This combination means no Wisconsin driver can actually recover the dollar amount of the UIM he or she purchased.

Hopefully, an example will help.  Joe is severely injured in a car wreck.  The at-fault driver has a $100,000 liability policy limit that the insurance company pays out to Joe.  This payment from the liability insurer does not fully compensate Joe for his injuries, and he turns to his own insurance company, with whom he has a $100,000 UIM policy.  Unfortunately, because both the liability insurance and UIM insurance have the same limit, $100,000, it means that there isn’t actually any underinsured motorist coverage available to Joe.  Because of the limits to limits comparison, only when the UIM policy limit is higher than the liability policy limit would Joe’s UIM coverage kick in.

To illustrate the reducing clause, lets change the above example to say that Joe has $250,000 in UIM coverage.  The at-fault insurance company still pays its $100,000 to Joe.  Now, because the $250,000 UIM limit is higher than the $100,000 liability limit, Joe is entitled to UIM coverage under his policy.  However, he is not entitled to $250,000 in UIM; instead he is only entitled to $150,000 because of the reducing clause ($250,000 – $100,000 = $150,000).

Regardless of what your policy says the UIM limit is, by virtue of the limits to limits comparison definition of underinsured motorist and reducing clauses, no Wisconsin driver actually knows how much UIM he or she will have available until after the accident and after he or she knows how much liability insurance the at-fault driver has.  As such, when you hear me or my colleagues harping about having plenty of UIM coverage, it is because if you have low limits of UIM, there is a good chance you will never get to use it, and if you do end up using it, it will always be less than the dollar amount you purchased.

 

If you were trying to get yourself to sleep by perusing the Wisconsin Statutes on Insurance Contracts, you may run across Wis. Stat. § 631.83(1)(a) – statutory periods of limitation on fire insurance.  The section states: “An action on a fire insurance policy must be commenced within 12 months after the inception of the loss.  This rule also applies to riders or endorsements attached to a fire insurance policy covering loss or damage to property or to the use of or income from property from any cause, and to separate windstorm or hail insurance policies.”  This is a sneaky statute that can have huge implications for homeowners and should be known by all.

First, “fire insurance” means a whole lot more than just “fire.”  In fact, Wisconsin courts have said that “fire insurance” is merely a “generic term” that “covers indemnity insurance for losses to property caused by many other perils than fire.”  Villa Clement, Inc. v. Nat’l Union Fire Ins. Co., 120 Wis. 2d 140 (Ct. App. 1984).  “Fire insurance” is broad enough to include perils such as fire, lightning, hail, tornado and even theft.  Considering the many possible causes of property damage that have nothing to do with actual fire, it is crucial to know that this 12-month statute of limitation applies “to any suit to recover for loss from any peril covered by the policy.”  Id. at 145-46.

Second, fire insurance’s statutory limitation of 12 months is much shorter than many commonly known statutes of limitation in Wisconsin, such as three years for most negligence actions or six years for most contract disputes.  Also, the limitation is 12 months “after the inception of the loss,” not the discovery of the loss.  Wisconsin courts have ruled that “inception of the loss” unambiguously means the date on which the loss occurs.  It does not matter when the owner-insureds discover the damage.  In other words, it is the date of the storm that is important, not the date you discovered the hail damage.

As such, if you are unable to reach an agreement with your insurance company on your property damage, it is crucial to act fast, getting counsel or filing suit yourself, to avoid having your claim completely time-barred by this sneaky 12‑month cutoff.