Monthly Archives: August 2011


Is “icing and heating” the new “donning and doffing”?

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This is the first post by guest writer Jon Rehm of Rehm, Bennett & Moore in Nebraska, who will be appearing on our site from time to time.

Today I received a call from a union official at a local packing plant asking me if the company could force injured employees to apply ice and heat to their injuries during break.

I answered it depends on whether the company or the employee receives the predominant benefit of the icing. The predominant benefit analysis is the framework for deciding “donning and doffing cases.” In donning and doffing cases, the issue is whether taking off and putting on safety equipment before and after a shift as well as during meal and break times should be paid. Continue reading »

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Reflections on 100 Years of Workers’ Compensation in Wisconsin

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My first lecture each semester in the Workers’ Compensation course at Marquette University Law School in Milwaukee centers on the “great trade-off” between workers and employers that forged the nation’s first constitutional worker’s compensation system in 1911: Workers gave up the right to sue employers for workplace injuries in return for a “no fault” compensation system with assurance of timely but limited benefit payments, adequate and competent medical services, and prompt and sufficient rehabilitation.

The system was designed to provide a means of “guaranteed” compensation for a legitimate injury and disability.

Employers received immunity from tort suits in return for compulsory provision of a scheduled benefit.  Continue reading »

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Concealed Carry: Increased Danger (and Work Comp Claims) in the Workplace?

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Wisconsin's Concealed Carry LawWisconsin’s “concealed carry” bill was signed into law on July 8, 2011, which allows qualified state residents to carry concealed weapons. The bill becomes effective November 1, 2011.

The ability to carry weapons includes places of employment, with the exception of certain public places (like courthouses).

This potential influx of weapons in the workplace has the potential to increase workplace danger and accidents—meaning the possibility of more worker’s compensation claims in Wisconsin. Unless the employee was injured through a force purely personal to them (for example: a jilted boyfriend tries to shoot his girlfriend at work), victims of gun violence at work would usually be covered under the Wisconsin worker’s compensation law.

Continue reading »

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Mental Injuries in Workers’ Compensation

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 From time to time, headline stories appear in the national news about workers claiming compensation benefits for “mental stress” injuries.  Most recently “former professor claims years of mistreatment by colleagues cause mental health breakdown – denied benefits”.  These stories often add fuel to the fire that workers are filing claims that do not have merit. Since objective standards such as x-ray and MRI do not exist in work-related mental injury cases, establishing causation has always been problematic, provoking some skepticism from the courts.

Wisconsin is one of a handful of States that recognize mental injury in all its forms: physical trauma causing mental injury (“Physical—Mental”), non-traumatic mental stimulus causing mental injury (“Mental—Mental”) and mental stimulus causing physical injury (“Mental—Physical”).  Continue reading »

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Compensation for Secondary Smoke Inhalation

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Secondary Smoke

Secondary Smoke is Dangerous

Recent article indicates some public health departments are offering incentives to create smoke-free policies in buildings. The idea is to reduce the exposure to second-hand smoke.

While substantial strides have been made in many states to provide both smoke-free public places and smoke-free workplaces, the dangers of secondary smoke inhalation remain. Continue reading »

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Workers’ Comp Benefits Off the Work Site: Work At Home, Travel

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A whole host of “Course of Employment” issues accompanies the increased prevalence of work done at home, enhanced significantly by computer technology.

Does an accident in the employee’s kitchen or bathroom fit into the course of employment under the “Personal Comfort” doctrine that routinely applies to employer premises?

Many employees contract with their employers to work frequently or exclusively from their homes. Does an accident in the employee’s kitchen or bathroom fit into the course of employment under the “Personal Comfort” doctrine that routinely applies to employer premises?  The Court’s time-honored criteria for whether work performed at home is considered to be in the course of employment may require alteration for “telecommuters” in the post-computer era. Continue reading »

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