Injured workers face higher compensation hurdles

¦ Appeals are up and study shows more
by Elias Radtke
& Dee J. Hall


RICHARD DECKER worked for more than 35 years for Kohler Co. before a brain injury sustained at work in 2010 forced him to stop working. Decker, seen here with his wife, Cathy, has problems with short-term memory and severe pain. Kohler has refused to provide him with longterm support under worker's compensation for the injury, and a state commission sided with the company. — Photographed May 5, 2017 at the Deckers' home near Cedar Grove RICHARD DECKER worked for more than 35 years for Kohler Co. before a brain injury sustained at work in 2010 forced him to stop working. Decker, seen here with his wife, Cathy, has problems with short-term memory and severe pain. Kohler has refused to provide him with longterm support under worker's compensation for the injury, and a state commission sided with the company. — Photographed May 5, 2017 at the Deckers' home near Cedar Grove Wisconsin Center for Investigative Journalism

Richard Decker’s job involved heavy lifting and standing in conditions that were sometimes too hot for his co-workers at the Kohler Co. But Decker did not mind. He loved to work.

Decker’s 36-year career as a manual caster at the kitchen and bath fixtures company in Kohler, Wisconsin, ended after a workplace accident in which an 80-pound commercial-grade toilet fell on his head, knocking him unconscious and causing a brain injury.

For months after the Sept. 15, 2010 incident, Decker tried to return to work. But dizziness, excruciating headaches and neck and back pain made it impossible. By January 2012, Decker’s specialist, neurosurgeon Dr. Spencer Block, found he was unable to perform any meaningful work.

Another physician who examined Decker, neurologist Dr. John Broderick, wrote that he was “likely the most dedicated patient I have met as far as working towards returning to his work place.” Nevertheless, Block, Broderick and two other doctors he was referred to by his primary care physician concluded Decker had suffered permanent physical, neurological and psychological effects from the 2010 accident that keep him from working.

These days, Decker, 63, takes morphine to ward off bouts of excruciating pain. He stutters, often struggling to remember what he was talking about. He cries at the least provocation. Decker said he is often too embarrassed to leave the home near Cedar Grove in Sheboygan County that he shares with his wife, Cathy, who also worked at Kohler for nearly 20 years.

And while he receives Social Security disability payments — less than half of his former pay at Kohler — the state of Wisconsin has denied Decker worker’s compensation for the ongoing symptoms. Decker could have received a portion of his pay plus health care related to his injury for the rest of his life from Kohler.

After a 2013 hearing, an administrative law judge found Decker “credible,” ruling in 2015 that he was permanently and totally disabled. But in 2016, Gov. Scott Walker’s threemember Labor and Industry Review Commission denied worker’s compensation beyond Dec. 15, 2010 — three months after the accident — siding with Kohler and the doctors it hired to examine him.

Physicians on both sides of the case agreed Decker had suffered from post-concussion syndrome. But the Kohler-hired doctors disputed the severity of his injuries, contending after examinations in 2012 that he had fully healed. Any problems, they argued, had stemmed from a 2005 back injury and surgeries. Those doctors concluded Decker’s continuing symptoms were primarily in his mind.

After nearly six years, the commission awarded Decker money for the 2005 back injury — but not the 2010 blow to the head.

“Not in a million years did we think it would get overturned, not after what he went through,” Cathy Decker said. “He was in a brain treatment center for five months, for cripes’ sake.”

In a report to the Deckers’ attorney, Charles Domer, Broderick called Kohler’s denial of worker’s compensation benefits “disheartening and shameful.”

The company said in a statement to the Wisconsin Center for Investigative Journalism that Decker was treated fairly.

“Kohler has acknowledged Mr. Decker’s worker’s compensa- tion claim and provided him with an appropriate and fair level of benefits per state of Wisconsin statutes,” the statement read.

There are some indications that injured workers like Decker are losing ground. One lawyer’s study concluded that decisions overwhelmingly favored employers after appointees of Wisconsin’s pro-business Republican governor took full control of the Labor and Industry Review Commission in late 2013.

“What they did between that period of time has really tilted the scales in favor of the insurance companies and employers in a very significant way,” said Luke Kingree, a worker’s compensation attorney in Eau Claire and Madison who examined decisions between 2014 and 2016.

And a Center review of agency statistics shows the percentage of administrative law judges’ decisions appealed to the LIRC has more than doubled over 10 years, from 29 percent in 2007 to 60 percent in 2016.

LIRC Chairwoman Georgia Maxwell responded in an email that “there is no ‘appropriate’ or ‘fair’ distribution of results between applicants and respondents in worker’s compensation cases, nor should anyone attempt to divine one. Each case rises and falls on its individual merits, after due consideration of the factual record and the law applicable to the case.”

Yet Kingree’s findings align with a prediction by William Sachse, a Milwaukee attorney who represents employers. He told a business group in 2013 that the addition of the Walker appointees to the LIRC “could make its decisions friendlier to employers.”

For Decker, the decision denying him worker’s compensation feels like a betrayal.

“I just really deeply thought in my heart that if something would ever happen, that they would take care of good workers. I really honestly believed that.”

‘Grand bargain’ protects workers, employers

Wisconsin has a long history when it comes to worker’s compensation, becoming the first state to have a worker’s compensation program upheld by its state Supreme Court in 1911.

Worker’s compensation is often called “the grand bargain” in which employers assume responsibility for workplace injuries. In exchange, workers in most cases cannot sue for damages — such as pain and suffering — that go beyond medical expenses. The insurance carrier or self-insured employer is supposed to cover not only medical expenses but also wages lost during the time the worker is injured.

In Wisconsin, private companies provide worker’s compensation insurance to employers. DWD’s function is to mediate disputes that arise, make sure workers and employers follow the law and help applicants navigate the system.

The agency receives about 30,000 worker’s compensation claims per year. Roughly 5,000 are contested and scheduled before an administrative law judge, according to DWD spokesman John Dipko.

All but a few hundred cases each year are settled before the case gets to a hearing, usually “at the courthouse steps,” said B.J. Dernbach, former administrator for the DWD’s Division of Worker’s Compensation who now is the administrator of the agency’s operations division.

In 2016, Wisconsin saw 5,184 injured workers apply for hearings to mediate disputes. Of those, 93.4 percent were settled, DWD said. Wisconsin’s high settlement rates have earned it a top spot among states nationally, meaning the system is working well, Dernbach said.

And unlike 33 states that have chipped away at worker’s compensation benefits — in part to keep down employers’ insurance premiums — Wisconsin actually slightly increased wage replacement for injured workers in recent years, according to a 2015 ProPublica and NPR investigation.

Study: Panel employer-friendly

Kingree studied whether the LIRC, which handles worker’s compensation appeals, tended to favor employers since Walker appointees took control in late 2013. He reviewed 252 case decisions issued by the LIRC between July 2014 and June 2016 — many of them, he said, by employers seeking to reduce or overturn benefits awarded by judges.

These 252 cases raised 181 “significant” issues, Kingree said, including whether the injury was caused at work, the extent and duration of the injury and the benefits to which the worker is entitled.

Focusing on those issues, Kingree said he found the commission reversed rulings by judges that favored employers just 1 percent of the time while reversing decisions favoring workers 38 percent of the time. Among them were 15 to 20 cases that “almost broke my heart to read them,” said Kingree, who used to represent employers’ interests but now works exclusively for injured workers.

Meanwhile, Wisconsin is taking a harder line against suspected worker’s compensation fraud.

Beginning in 2016, DWD partnered with the state Department of Justice to add a dedicated prosecutor for worker’s compensation cases. According to Dipko, the prosecutor focuses on all types of fraud and abuse, ranging from workers “faking injuries” to doctors overbilling the system.

DWD also has made it easier for the public to report suspected fraud through its website. Dipko said he believes these measures have a deterrent effect on cheating.

Case highlights gap in coverage

In late June, the state Supreme Court denied an appeal from a Chippewa Falls Walmart employee injured at work in 2013. Tracie Flug said she relied on her doctor’s advice to get spinal surgery after she strained her right arm and shoulder while scanning items on a high shelf.

After the surgery, Walmart’s physician — who never examined Flug — contended the procedure was designed to fix not the strain but a pre-existing back condition. The spinal fusion left Flug with a permanent partial disability. Her efforts to qualify for worker’s compensation had been denied by the LIRC.

A split Wisconsin Supreme Court upheld those decisions.

“In the general scheme of the program, medical expenses and disability benefits are payable only when they are attributable to a qualifying injury,” said Justice Daniel Kelly, writing for the 4-3 majority.

But dissenters, including Chief Justice Patience Roggensack, said the majority ignored the portion of the law requiring that when an injured worker receives treatment “in good faith” — and the treatment is “unnecessary” yet “medically acceptable” — the employer must pay worker’s compensation for any resulting disabilities.

Flug’s attorney, Jeff Klemp, said his client is back at work at Walmart, has gotten a promotion and prefers not to talk about the case.

Klemp said he had at least two other cases in which the LIRC sided with employers, ignoring important medical evidence presented by his clients’ personal physicians. In one case, he said, a woman was fired from her job of 25 years and could not afford the treatment she needed to correct the workplace injury.

‘Bad faith’ findings rare

Dixon Gahnz, president of Lawton and Cates law firm in Madison, said there is not enough deterrence to keep insurance companies from taking advantage of injured workers by unfairly denying their claims.

The penalty for so-called “bad faith” denials by an insurer is $30,000 for each instance, or three times the amount owed to the injured employee, whichever is less. Dipko said among the roughly 30,000 worker’s compensation claims in 2016, 25 insurance carriers and employers in the state were penalized a total of $303,000 for bad faith denial of coverage.

Gahnz said worker’s compensation insurance carriers can afford to drag out cases until claimants run out of money.

“I know that there is a lot of crowing that this is one of the better systems in the country,” Gahnz said, “but you’re not going to hear that from the injured workers.”

Kay Templin is one of them. Templin was a kitchen worker at St. Francis Xavier School in Appleton when she slipped and fell at work in October 2014.

She was diagnosed with a torn meniscus and had surgery in August 2015, after which she filed for worker’s compensation to cover “several thousand dollars” in medical costs and lost wages.

Soon after, Templin was told to get a second opinion from a Madison physician approved by the insurance company. This second doctor determined the injury was not work related, and that the meniscus tear was from a pre-existing condition.

For the Templins, who represented themselves before an administrative law judge, no settlement was offered.

“If the system is designed to be fair and equitable to injured employees,” Bob Templin said, “it fails miserably, in my opinion.”

Reporters Cara Lombardo and Eden Foster contributed to this story, which was produced as part of an investigative reporting class in the University of Wisconsin-Madison School of Journalism and Mass Communication under the direction of Dee J. Hall, the Wisconsin Center for Investigative Journalism’s managing editor. The nonprofit Center (www.WisconsinWatch.org) collaborates with Wisconsin Public Radio, Wisconsin Public Television, other news media and the UW-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

This report is part of Broken Whistle, a series that explores Gov. Scott Walker’s attack on waste, fraud and abuse and the dwindling protections and incentives for whistleblowers in Wisconsin. The series was reported by the investigative reporting class at University of Wisconsin-Madison’s School of Journalism and Mass Communication taught by Dee J. Hall, managing editor of the Wisconsin Center for Investigative Journalism.


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