By Amanda Luedtke,

Administrative Law Judge

Wisconsin Division of Hearings

Milwaukee, WI

 

Does your State have a “no-fault” standard, whereby employees are allowed to collect workers’ compensation benefits regardless of their actions while employed? If not, do you regularly see defendants/respondents’ asserting misconduct defenses? Please take the survey at the bottom of this article (results will be posted in the next Lex & Verum).

If you are sitting there reading this and wondering what states have no-fault standards, if any, look no further than Wisconsin prior to 2015 Wisconsin Act 180, which created Wis. Stat. s. 102.43(9)(e).

Wis. Stat. 102.43(9)(e) was enacted on February 29, 2016, and it specifically states that temporary disability benefits shall not be payable to an employee if “the employee’s employment with the employer has been suspended or terminated due to misconduct, as defined in s. 108.04 (5), or substantial fault, as defined in s. 108.04 (5g) (a), by the employee connected with the employee’s work[1].”

Prior to the statute’s enactment, the Wisconsin Supreme Court in Brakebush Bros., Inc. v. LIRC, 210 Wis. 2d 623, 563 N.W.2d 512 (1997), made it clear that benefits were not to be denied to injured employees, regardless of whether they were considered “good” or “bad” employees. Specifically, the Wisconsin Supreme Court stated:

The purpose of worker’s compensation disability benefits is to compensate employees who have lost the ability to work, temporarily or permanently, due to a work-related injury, regardless of whether they are good or bad employees. It contravenes public policy to allow an employer to avoid paying disability benefits to a disabled employee without evidence that the employee’s activities are inconsistent with his or her injury. Without such a requirement, the law would leave employees suffering from legitimate work-related injuries in grave danger of being left both unemployed and unable to work due to their work-related disability, without compensation and potentially with a lower earning capacity.” Id. 636-37.

However, Wisconsin was not a complete no-fault state prior to 2016, as there were still penalties put in place if an employee violated a safety provision of the employer or were injured while intoxicated. The outcomes of these types of cases were heavily fact-dependent and provided for intriguing results.

An example of such an “intriguing” case is Friend. v. John Fink Trucking, Inc and Liberty Mut’l Fire Ins. Co. WC No. 96031784 (LIRC Nov 6, 1997.) In this case, the employee was delivering and unloading grain for a customer when he was injured. The customer stated the employee smelled like alcohol and a blood-alcohol test showed the employee BAC was at .1222 after the incident. Additionally, during testimony, the applicant stated he had between 12 and 24 beers the night before but stopped drinking that night by 10:30 p.m. The Commission held the injury was work-related but due to the employee being intoxicated there would be a reduction of 15 percent to the employee’s temporary disability benefits. I do believe if this case were decided today, the outcome would be different given the enacted statutes above.

However, right now in Wisconsin, there is not a lot of guidance from case law in regard to worker compensation benefits and misconduct. As such, our ALJs have found it beneficial to reiterate through CLEs and presentations what is needed for such defenses and what benefits can be suspended/denied due to misconduct. In order to meet our specific misconduct statute, an Employer may need to submit various pieces of evidence, such as a drug and alcohol policy, an attendance policy, and previously documented warnings for employee violations. I would love to know via the survey link below, how your state deals with misconduct and worker compensation benefits. I will post the results in the next Lex & Verum.

https://www.surveymonkey.com/r/2YLC3N5

 

[1] Wis. Stats 108.04(5) and 108.04(5g)(a) are the Wisconsin Unemployment Statutes that are well establish regarding misconduct and substantial fault.