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  • Litigation Section Blog
    October 20, 2021

    Wisconsin Workers’ Compensation: Impact of OSHA Safety Violations and Penalties

    The intersection of Wisconsin’s workers’ compensation and safety regulations is more common than you may think. However, less common are those who possess the knowledge to handle the interaction of the two and determine who gets what. Matthew Lein gives the background on the intersection and examples that may help attorneys handle such a situation.

    Matthew C. Lein

    Under Wisconsin’s workers’ compensation regime, if a workplace injury is caused by an employer’s violation of safety rules and regulations – including those of U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) – the injured worker is entitled to additional workers’ compensation benefits.

    The extra benefits are equal to an additional 15% of the allowable benefits with a maximum additional benefit of $15,000, according to Wis. Stat. section 102.57.

    Workers’ Compensation in Wisconsin

    As in most states, Wisconsin has a workers’ compensation regime. In general, workers who are injured on the job are compensated for their injuries through filing for and obtaining workers’ compensation benefits through an administrative process, rather than through general civil court to recover compensation.

    Indeed, workers are almost forbidden from suing their employers for workplace or work-related injuries.

    Matthew C. Lein Matthew C. Lein, Marquette 2011, is a partner with Lein Law Offices in Hayward, where he practices in workers’ compensation, personal injury, consumer, and workers’ compensation law.

    There is an exception for worker injuries caused by an employer’s reckless, intentional, or illegal conduct. But those circumstances are rare, and as noted, an injured worker is primarily limited to bringing a claim under the employer's workers’ compensation insurance policy.

    Generally speaking, workers' compensation is an insurance-driven regime. That is, all Wisconsin employers have workers' compensation insurance either through an insurance company or state fund.

    An injured worker receives compensation for an injury by filing a claim with the employer's workers’ compensation insurance carrier. Disputes between employers and employees over workers’ compensation benefits are handled through administrative proceedings conducted by the Wisconsin Labor and Industry Review Commission.

    Workers’ compensation benefits will cover hospital expenses, medical bills, loss of wages, physical injuries like loss of limb and disfigurement, mental injuries, and disability, but generally will not cover other types of damages such pain and suffering, loss of society, etc.

    With some narrow exceptions, who is "at fault" does not play a role with respect to workers’ compensation. Workers can recover compensation benefits regardless of who is at fault for the injuries. For example, the at-fault party could be the employer, the worker who is injured, or even a co-worker, but regardless of who is at fault, the injured worker can recover compensation.

    Extra Benefits for Employer Safety Violations

    That being said, in Wisconsin, who is at fault can play a role in how much a worker receives in workers’ compensation benefits.

    At a base level, the amount of benefits paid to an injured worker depends mostly on the extent and severity of the injury. But when an employer violates safety laws and regulations, and if the safety violations cause a worker's injury, then a worker is entitled to have an extra 15% or an extra $15,000 added to their compensation, whichever is less.

    An example of a safety violation includes an employer’s violation of any:

    Considering Wis. Stat. Section 102.57

    The 15 percent/$15,000 max penalty is permitted by section 102.57 of the Wisconsin workers’ compensation statute. Section 102.57 provides that:

    If injury is caused by the failure of the employer to comply with any statute, rule, or order of the department of safety and professional services, compensation and death benefits provided in this chapter shall be increased by 15 percent, but the total increase may not exceed $15,000.

    Section 102.57 also defines a "failure to comply" with safety rules as a situation where an employer fails to reasonably enforce compliance by employees with safety rules.

    Note that under Wisconsin rules, the employer must pay the 15 percent/$15,000 max penalty, not the insurance carrier. Why? The policy reason is that 15 percent/$15,000 max payment is a penalty meant to punish an employer's failure to abide by safety regulations. As such, the penalty should be paid for by the employer as punishment and to incentivize the employer and other employers to take their workplace safety obligations seriously.

    Federal Rules Also Apply

    While section 102.57 seems to reference only Wisconsin statutes and regulations, Wisconsin courts have explicitly held that violation of OSHA regulations will trigger the 15-percent/$15,000 max penalty. In Sohn Manufacturing Inc. v. LIRC,1 the court held that the reference to "any statute [or] rule" in section 102.57 means that the penalty is triggered not only by violations of Wisconsin safety statutes and rules, but also by violations of federal safety statutes and rules (like the ones promulgated by OSHA).

    As an example, according to an April 2021 article in Insurance Journal, a water technology company near Milwaukee was recently determined by OSHA to have violated several OSHA safety rules. OSHA fined the company $234,054. According to the article, OSHA found that the company committed at least nine serious violations of OSHA regulations with respect to a 30-foot deep water-testing pit operated by the company at its facility in Pewaukee. The violations include that the company:

    • exposed employees to walking-working surfaces hazards;

    • failed to properly secure hand and guardrails around the water-testing pit;

    • failed to provide employees with fall protection before employees were required to enter water-testing pit; and

    • failed to follow other safety rules with respect confined spaces.

    The safety violations were discovered in an OSHA investigation that began after an employee was injured when a guardrail loosened and he fell into the water-test pit, striking his head on a support beam in the pit.

    You can find a list of OSHA violations that have occurred in Wisconsin on the OSHA website.

    Very likely, the injured employee is entitled to workers' compensation under the employer's workers' compensation insurance. Further, because of the safety violations that have been determined by OSHA, and because the safety violations likely caused the injury, the injured employee will be entitled to the 15 percent/$15,000 max penalties allowed under section 102.57.

    This article was originally published on the State Bar of Wisconsin’s Litigation Section Blog. Visit the State Bar sections or the Litigation Section web pages to learn more about the benefits of section membership.

    Endnote

    1 Sohn Manufacturing Inc. v. LIRC, 838 N.W.2d 131 (Wis. App. 2013).






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    Litigation Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Matthew Lein and Nelson Phillips III and review Author Submission Guidelines. Learn more about the Litigation Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2021 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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