What if My Employer is “At Fault” for My Work Injury?
As discussed in a recent blog post, Wisconsin’s worker’s compensation system is essentially a no-fault system. However, there are situations when an employer will be penalized for being “at fault” for the employee’s work injury. This blog post addresses the increased compensation provided in Wis. Stat. § 102.57 for an employer’s safety violation.
Increased Compensation is Available When an Employer’s Violation of a Safety Rule Contributes to a Work Injury
If an employer fails to comply with any state statute, administrative rule, or order of the Wisconsin Department of Workforce Development, and the compliance failure caused the work injury, the employer must pay a 15% penalty as supplemental compensation to the employee. The total penalty cannot exceed $15,000. An example of a case when an injured employee would be entitled to a 15% increase in his or her compensation is if management has failed to repair a machine that has a known malfunctioning safety feature or has not taken that malfunctioning machine out of service, and an employee is injured as a result.
Since this penalty is against the employer itself, the employer is primarily liable for this 15% (up to $15,000) increase in employee compensation. However, if the employer does not pay any portion of the penalty, the insurance company is responsible for paying the injured worker the remaining amount.
How OSHA and Other Safety Laws Interact with Wisconsin Worker’s Compensation Employer Penalties
Experienced worker’s compensation attorneys are equipped to determine when an employer is likely liable for a safety violation. In assessing the merits of a safety violation claim, it is important to understand how this provision interacts with other safety-related workplace laws. This is so because, under Wisconsin law, the Worker’s Compensation Act is the “exclusive remedy” against the employer, co-employees, and the worker’s compensation insurance company (with extremely limited exceptions) for a compensable work injury. And although the federal Occupational Safety and Health Act (OSHA) provides for government enforcement of safe working conditions, there is no private right of action for a violation of OSHA. This means that an employee cannot bring a claim in court against his or her employer if the employer violates OSHA. However, an OSHA violation that leads to a work injury may mean that the employer is liable for a safety violation penalty under Wisconsin’s worker’s compensation law.
Understanding OSHA is useful in a worker’s compensation case because OSHA violations provide evidence of a violation of the so-called “safe-place” statute. The “safe-place” statute imposes a broad duty on employers to provide safe working environments and protect the health of their employees. And a violation of the “safe-place” statute that is a substantial factor in the cause of the work injury constitutes a violation of Wis. Stat. § 102.57 (safety penalty). In other words, a violation of OSHA’s safety standards likely is enough to show a safety violation under the worker’s compensation law and thus provide for a 15% increase in compensation for the injured worker. You can learn about how to file a complaint with OSHA at this website: https://www.osha.gov/as/opa/worker/complain.html.
Hawks Quindel Attorneys Work with Injured Wisconsin Employees to Obtain Additional Compensation for Unsafe Working Conditions and to Enforce Safety Rules
The attorneys at Hawks Quindel are committed to advocating for safe working conditions. The safety penalty provision of the Wisconsin Worker’s Compensation Act provides one mechanism for our worker’s compensation attorneys to improve safety in the workplace and to provide additional compensation for our clients who were injured due to the “fault” of their employer.
If you have been injured at work and would like to discuss the specific details of your situation, please contact an experienced Wisconsin worker’s compensation attorney at Hawks Quindel for a free consultation.