Monthly Archives: May 2012

Nannies, baby-sitters, and comp coverage: Yes, we still have “domestic servants”

Today we have a guest blog from our colleagues Nathan Hammons and Charlie
Domer of Wisconsin. While this post contains many references to Wisconsin law, we think it is a valuable examination of the topic of domestic servants as employees who are protected by workers’ compensation.

Most families in Wisconsin have hired a baby-sitter or nanny to watch their children. The pay generally is in cash for a defined period of time. Does the situation create an employer-employee relationship, entitling an injured baby-sitter to worker’s compensation benefits?

Under the Worker’s Compensation Act, most employers in the state are required to provide worker’s compensation coverage for their employees. Employers of ‘domestic servants’, however, are completely exempt from the requirement. (Wis. Stat. §102.07(4)(a)1.) Unfortunately, neither the Act or Wisconsin courts provide a definition. So, what exactly is a domestic servant?

Significantly, the Department appears to treat the prevalent positions of in-home baby-sitter or nanny as exempt from the Act, which could expose the in-home “employers” to general negligence claims.

The name ‘domestic servant’ is antiquated. It brings up old images of butlers, maids, and other people toiling away in the mansions of royalty and the wealthy. Indeed, search Wikipedia for ‘domestic servant’ and you’ll be directed to ‘domestic worker’, the modern term and one that doesn’t imply inequality in the workplace. Without citation or authority, a Department publication indicated that it has “consistently ruled that persons hired in a private home to perform general household services such as nanny, baby-sitting, cooking, cleaning, laundering, gardening, yard and maintenance work and other duties commonly associated with the meaning of domestic servant, meet the definition of domestic servant intended by the Act.” Significantly, the Department appears to treat the prevalent positions of in-home baby-sitter or nanny as exempt from the Act, which could expose the in-home “employers” to general negligence claims.

Consequently, nannies Continue reading

What Happens If My Spouse Dies From A Work Accident Or Occupational Disease?

Today we have a guest post from our colleague Brody Ockander of Nebraska.

If a worker dies from a work accident or occupational disease, his surviving family members are entitled to death benefits under Nebraska workers’ compensation.

However, proving the death was work-related is sometimes complicated in situations where there is not a clear accident. For example, there are no death benefits for a worker who dies at work from natural causes simply because he died at work. Instead, it must be shown that work or something that happened at work somehow played a role in the death.

If your spouse dies due to a work-related injury or illness, you are entitled to workers' compensation benefits.

In situations that are not necessarily clear, especially when the insurance company tries to blame the death on some other reason or on natural causes, you will probably want to get a lawyer to help establish how the work or work exposure caused the death of your loved one. If you are able to show that the work contributed to the death, the worker’s family may be entitled to the following benefits:

Benefits for the surviving spouse:
If it can be established that work caused the death, the worker’s surviving spouse is entitled to workers’ compensation benefits every week at 2/3 of the worker’s average weekly wage at the time of death. This potentially lasts for the spouse’s life or until remarriage. If the spouse later remarries, then he/she is entitled to a lump sum payment for two years of benefits.

Benefits for surviving spouse with children:
If the deceased worker had dependent children and a spouse at the time of death, the surviving spouse is entitled to 60% of the worker’s average weekly wage plus 15% for each child. If the children don’t live with the surviving spouse, the spouse is entitled to 55% of the average weekly wage.

Benefits for dependent children:
If the worker is survived by dependent children, work comp benefits are paid to those children (in equal share) for their dependency or until age 19 (or age 25 if full-time student or the child is physically or mentally incapable of self-support).

Benefits for other family members:
There may also be benefits available for parents, brothers, sisters, grandparents, and grandchildren if it can be shown that they were dependents of the deceased worker. If dependency can be established, these types of dependents would be entitled to 25%.

Funeral Expenses:
The employer is responsible for funeral and burial expenses up to $6,000 whether or not the deceased worker had a spouse or any dependents. This was recently raised to $10,000 by the Nebraska Legislature in 2012.

Read This Before You Go To An Insurance Medical Examination

Insurance medical exams may seem like regular doctor visits, but these docs are not on your side.

Today’s guest post comes to us from our colleague Matt Funk of New York.

Many times insurance medical examinations are considered by injured employees to be the same as Independent Medical Examinations (IMEs). There is nothing farther from the truth. These examinations are bought and paid for by the insurance company and for their benefit.

The insurance carrier doctor is no friend to an injured worker. He or she is a private consultant paid for by the carrier.

You should be prepared for these examinations by knowing your rights and how to protect them:

1) You have the right right to bring a family member or friend with you to the examination.
You can bring your spouse into the examination room during the examination. This is important because it allows for a witness to testify at court about the validity of the examination and to dispute tests that the doctor claims to have done.

2) You are permitted to audiotape or videotape the examination.
And there is nothing in the law that requires you to tell the insurance company doctor that you intend to tape the examination.

3) You should Continue reading

More Surgeries = More Benefits

Today’s post is from our colleague Charlie Domer of Wisconsin.

The law provides mandatory minimum ratings of disability benefits for injuries and surgical procedures

Surgeries are commonplace after a work injury.  When an injured worker in Wisconsin has a post-injury surgery, that worker is ordinarily entitled to a minimum percentage of permanent disability.

Permanent partial disability (PPD) generally represents a physician’s assessment of a worker’s functional loss. PPD is payable at a weekly rate equal to two-thirds of the employee’s average gross weekly earnings at the time of the injury, subject to a maximum rate (the rate in 2011 and 2012 is $302/week).

Administrative rules relevant to the Worker’s Compensation Act (Section DWD 80.32) provide mandatory minimum ratings of PPD for injuries to various body parts and surgical procedures. For example:

  • A laminectomy (removal of disc material) at one level of the lumbar spine (e.g., L4-5) carries a minimum 5% disability;
  • A spinal fusion at the same level (e.g. L4-5), results in a minimum 10% disability;
  • Total hip replacements carry a minimum 40% PPD (while a partial hip replacement results in 35% PPD);
  • A total knee replacement has a minimum PPD of 50% (partial knee replacement is 45%);
  • An anterior cruciate ligament (ACL) repair is 10% PPD minimum; and
  • A knee meniscectomy results in 5% PPD minimum.

If a worker has one of the listed procedures, they receive the minimum PPD percentage.  To calculate the value, we look to the applicable percentage, based on the number of weeks the body part is “worth” under the statutes.  For example, a knee is worth 425 weeks under the statutes, so the 20% PPD to the knee is 85 weeks (20% of 425) at the $302/week rate for a 2011 injury, which amounts to $25,670.


Image: taoty / FreeDigitalPhotos.net

NFL Concussion Suits Barred by “Exclusive Remedy”? Why can’t I sue my employer?

Today we have a guest post from our colleague Tom Domer or Wisconsin.

We get calls every day from angry injured workers who want to sue their employer for negligence. It could be an employer removing a guard on a machine, a foreman ignoring a safety rule, or an injury caused by an employer’s failure to train an employee. Many employees are genuinely and bitterly disappointed when we explain a worker cannot sue his employer for negligence and that his only “exclusive” remedy is through worker’s compensation.

Aaron Rodgers concussionIn liability suits filed by hundreds of former pro football players who suffer from concussion-related injuries, the players claim the league negligently mislead them about the dangers of concussions. Attorneys for the injured players indicate it is likely the NFL will argue that football players should be covered exclusively by worker’s compensation.

The deal cut by employers and workers in Wisconsin in 1911 still stands: Employers give up the right to common law defenses (contributory and co-employee negligence, assumption of risk) for a fixed schedule of benefits; employees give up the right to sue their employer in tort (and to recover tort-like damages) in return for worker’s compensation benefits. No matter how nefarious the employer or Continue reading

The Job: Insufficient Sleep Is A Compensable Condition


Today’s post comes to us from our colleague Jon Gelman of New Jersey.

The National Sleep Foundation recommends that U.S. adults receive, on average, 7–9 hours of sleep per night; however, 37.1% of adults report regularly sleeping <7 hours per night. Persons reporting sleeping <7 hours on average during a 24-hour interval are more likely to report unintentionally falling asleep during the day at least 1 day out of the preceding 30 days (46.2% compared with 33.2%) and nodding off or falling asleep at the wheel during the previous 30 days (7.3% compared with 3.0%). Frequent insufficient sleep (14 or more days in the past 30 days) also has been associated with self-reported anxiety, depressive symptoms, and frequent mental and physical distress (4).

Even short term sleep duration is linked with:

  • Increased risk of motor vehicle accidents
  • Increase in body mass index – a greater likelihood of obesity due to an increased appetite caused by sleep deprivation
  • Increased risk of diabetes and heart problems
  • Increased risk for psychiatric conditions including depression and substance abuse
  • Decreased ability to pay attention, react to signals or remember new information

Such findings suggest the need for greater awareness of the importance of sufficient sleep. Further information about factors relevant to optimal sleep can be obtained from the National Sleep Foundation (http://www.sleepfoundation.org) and CDC (http://www.cdc.gov/sleep).