Wisconsin Winters and Workers Compensation – not a great combination. Unfortunately, Winter in Wisconsin involves potentially treacherous conditions and injuries, such as slip and fall injuries. Typically, when employees are injured in the course of their employment, the Workers Compensation insurance carrier handles the claims, including the medical expenses as well as income replacement in the event of lost work time (in the form of temporary disability benefits). In some cases, however, the employee seeks additional damages, known as penalties.  These penalties provide additional benefits in the event the employer fails to perform an obligation under the law related to the employee’s injury.

The most common application of the Workers Compensation penalty provisions is the “refusal to rehire” claim found in Wis. Stat. § 102.35(3). The law requires an employer to return an employee to suitable employment following release to return to work from a compensable injury.  If the employer fails to do so without reasonable cause, the employer may be liable for an amount equal to up to one (1) year of the employee’s wages. Because of this penalty, it is always a good reminder to handle return to work analyses following a Workers Compensation injury very carefully, particularly where the employee is not going to be returned to the same position or not brought back to work at all.

But, there is another, lesser known penalty that can also apply in a Workers Compensation case. The law provides a 15% increase in the value of an employee’s compensation benefits if the injury is “caused by the employer’s failure to comply with any statute, rule, or order of the Department.”. Wis. Stat. § 102.57. The Wisconsin Labor and Industry Review Commission (LIRC) recently issued a decision in which it reversed a decision of the Administrative Law Judge (ALJ) and held the employer responsible for this penalty in the case of an employee injured due to a slip and fall on ice on the employer’s premises. Natera v. City of Madison, 2014-004948 (LIRC, 01/27/2022).[1]

Safe Place Statute Applied to Penalty Analysis

The employee, a city police officer, was injured when he left the police station to go to his squad car and slipped on ice just outside the police station door leading to the parking lot. The officer suffered a significant knee injury in the fall and had to be assisted by other officers after he fell. The fall occurred on the employer’s property and during the employee’s work shift. There was no dispute in the case that the officer was entitled to workers compensation coverage for his medical expenses and lost work time. The sole issue on appeal was whether the employer had failed to mitigate a known hazard so as to trigger the 15% penalty. The penalty is applied, where imposed, on the employee’s recovery for compensation, such as temporary disability benefits, permanent disability benefits, loss of earning capacity, and similar benefits, but not on medical expenses.

The Administrative Law Judge (ALJ) denied the penalty claim finding that the area was known to employees to develop ice in winter conditions, the City regularly warned employees of the hazard, and there was salt and/or sand provided by the City at the doorway that officers were encouraged to use when they noticed the area needed it. The ALJ found that the employer had been diligent in addressing winter-related safety concerns and that employers are “not guarantors of safety for their employees”.

In reversing the decision, the LIRC focused on Wisconsin’s safe place statute, which states in pertinent part:

(1)  Every  employer  shall  furnish  employment  which  shall  be  safe  for  the employees  therein  and  shall  furnish a  place  of  employment  which shall be safe for  employees  therein…and  shall  furnish  and  use safety  devices and safeguards  and  shall  adopt  and use  methods  and processes reasonably  adequate  to  render such  employment  and places  of employment  safe,  and  shall  do  every  other thing  reasonably  necessary to protect  the life,  health,  safety,  and  welfare of  such  employees  and frequenters.

Wis. Stat. § 101.11(1).

Based on this statutory language, the LIRC found that several factors existed which, together, constituted a failure on the part of the City to follow the safe place statute and, accordingly, justified the application of the Workers Compensation penalty provision. Specifically, the LIRC found that the pavement outside the door at issue was cracked and uneven, including an approximate one-inch height discrepancy between sections in one area, which created a pooling area for water to accumulate. In addition, the building did not have gutters immediately above the area which contributed to the pooling. According to the LIRC, the City was aware of this issue but did not address it. In addition, the LIRC noted the duty sergeant testified that he intended to put salt down, but forgot. This suggested to the LIRC that the practice of treating the area was inconsistent. Finally, the record showed that while the parking lot was well lit, the walk area just outside the doors was not lit directly and only received residual illumination from the adjacent parking lot lighting.

On the morning that the officer fell, it had been raining over night and the temperatures had steadily dropped to the point where ice had formed on the sidewalk area outside the police station door. Because of the uneven pavement and the lack of gutters, rainwater had pooled and subsequently froze on the walkway outside the door when the officer, carrying his equipment out to his squad car, slipped and was injured.

The LIRC found that a common Wisconsin experience – rain, turning to freezing rain, and sudden temperature drops creating icy conditions – can expose employers to penalties in the event an employee is injured, even if the injury results from weather conditions. According to the LIRC, the penalty can be assessed if the failure to keep facilities safe is a “substantial factor” in the injury.

This holding ought to give employers some pause for two reasons. First, the LIRC applied the statutory language, (i.e., that an injury must be “caused by the failure of the employer”) to require only that the employer’s failure is a “substantial factor” in the injury. Second, it places strict liability on the employer to make certain that hazards do not exist, not just to put policies in place to manage known hazards. The record in this case was deemed to demonstrate that the City had assigned the task of salting the walk area to the duty sergeant and encouraged all other employees to do their part as well. The duty sergeant forgot and no one else took the initiative, yet the City as the employer was responsible. In other words, assigning a safety task to an employee is not sufficient effort on the part of an employer to avoid potential penalty claims, even in cases where weather events outside the employer’s control play a significant role in the injury.

Employer Takeaways

This case is a reminder both of the general statutory duty all Wisconsin employers have, namely to maintain a safe workplace, and that at least in the workers compensation context, employers have  a heightened level of obligation to assure that winter weather is adequately and immediately addressed. It is worth the effort to take some time to evaluate your risk relative to the hazards inherent with any facility, especially with outdoor surfaces in the Wisconsin climate, and to implement sound practices that assure potential hazards are timely addressed.

[1] There is a similar penalty provision that applies to employees who fail to follow known safety guidelines when doing so causes the employee’s injury. That penalty results in a 15% reduction in the employee’s compensation benefits. Wis. Stat. § 102.58. This provision is not discussed in any more detail in this article.

For questions regarding this article, please contact the author,

or your Renning, Lewis & Lacy attorney.

Geoffrey A. Lacy

Geoffrey A. Lacy

glacy@law-rll.com | 920.283.0704

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