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Wisconsin employer safety violation causes workers' compensation penalty

Wisconsin workers' compensation law assesses an employer penalty when the employer's safety violation is a substantial factor in a work injury.

Going to work can be hazardous to your health and even life threatening. In 2013, almost 100 Wisconsin workers died in work-related incidents, according to the U.S. Bureau of Labor Statistics (BLS), with the top two categories being transportation incidents and falls, slips and trips.

The high number of work-related deaths reinforces the need for tight regulation of workplace safety by federal and state laws. For example, Wisconsin has a so-called safe place statute that places a broad responsibility on Wisconsin employers to provide safe workplaces, including the provision of appropriate safety devices and the use of reasonably adequate safety practices.

Accordingly, the state's Department of Workforce Development or DWD has issued extensive administrative regulations imposing safety standards and practices on state employers. On the federal level, the Occupational Safety and Health Administration or OSHA is directed by statute to issue extensive work safety regulations.

Whether or not an employer was "at fault" for a work injury or death, Wisconsin's worker's compensation law provides financial benefits to injured workers. With narrow exception, the workers' compensation award is normally the exclusive legal remedy for work injury - meaning a worker cannot sue their employer.

Wisconsin workers' compensation benefits cover wage replacement for disability, and medical costs (and death benefits in fatal cases). A death benefit (generally equal to four times the worker's annual wage, subject to certain limits) can be payable to the deceased worker's dependents.

The one place where "fault" matters is when a safety violation occurs. While worker's compensation benefits are paid regardless of whether the employer was at fault for the accident or illness, an employer could face a penalty if the harm was caused because of a violation of a federal or state workplace safety statute or regulation, or an order of the state DWD. The penalty can increase the compensation award by 15 percent, capped at $15,000. Thus, even if an employer's safety violation resulted in a worker's death, the maximum penalty amount is $15,000.

For example, in one recent case, a worker was hurt when her hand was pulled into a machine that she was cleaning while it was running, the practice of the employer. The safety violation penalty was applied because the employer was found to have violated federal and state safe shut-down requirements.

Interestingly, the safety violation penalty dates all the way back to 1913, just after Wisconsin's workers' compensation system was established, so it is a longstanding part of state workers' compensation policy.

For the penalty to be assessed, the employee must prove that the employer violated an applicable safety law, regulation or order; that the employer knew or should have known of the safety problem; and that the safety violation was a substantial factor in causing the injury.

Proving the safety violation and collecting the penalty can be legally challenging, so anyone in Wisconsin who believes that his or her injury was caused by an employer safety violation should discuss the situation with an experienced workers' compensation attorney for guidance and advocacy.

In Milwaukee, attorneys Tom and Charlie Domer of Domer Law represent workers' compensation claimants from across the state.

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