Court Faults Commission for Reversing Firing of Injured Forklift Operator
- The Wisconsin Court of Appeals, District III, ruled Oct. 20 in Menard, Inc. v. Floriana that the Labor and Industry Review Commission did not adequately explain why it rejected an administrative law judge’s credibility findings when it found Menards’ firing of an injured worker was retaliatory. The court said the inadequate explanation denied the parties due process, and it reversed the LIRC finding.
- Michael Floriana hurt his back operating a forklift at Menards, missed work, then returned. He was disciplined four times over nine months for safety violations, including failing to wear a seatbelt, throwing a rock near a coworker and twice dropping products while operating a forklift, before he was fired. The ALJ found Menards had reasonable cause to terminate him under Wis. Stat. § 102.35(3).
- LIRC reversed, finding Menards’ stated reasons were pretextual, relying mainly on testimony from Floriana and a former Menards employee. The court said LIRC did not justify preferring Floriana’s witnesses or explain why it disregarded testimony about the safety violations, progressive discipline and reasons for termination. It also found the former employee’s testimony insufficiently contextualized, given his different supervisors and uncertainty about when he left.
Texas Captive Insurance Market Grows
- The Texas Department of Insurance (TDI) reported 106 licensed captive insurers at the Texas Captive Insurance Association’s Oct. 13-14 conference in San Antonio, up from 94 in 2025 and 84 in 2024. Gross premiums rose from about $11.3 billion in 2024 to $17.3 billion in 2025, and assets under management grew from about $37.8 billion to $43.4 billion.
- TDI identified examination findings involving dividend approvals, affiliated loan agreements and material changes to plans of operation. A session on artificial intelligence governance highlighted written governance programs, testing, documentation, accountability and oversight of third-party vendors, reflecting the National Association of Insurance Commissioners’ AI Model Bulletin.
- Panelists stressed coordination among risk management, treasury, finance and legal teams, with clear operational accountability. They said expansion opportunities should be weighed against their cost and complexity, and that financial strength ratings should serve a defined business purpose. Employee benefits drew interest but requires careful attention to program structure and ERISA requirements.
- Husch Blackwell advises companies considering a captive to identify coverage gaps and retained risks, assess long-term costs and operational requirements, and put governance and compliance frameworks in place early.
Workers’ Comp Coverage Expanded to Cover Heat-Related Illnesses
- The Philippines’ Department of Labor and Employment has issued guidelines clarifying that more heat-related illnesses may be compensable under the Employees’ Compensation Program, in addition to heatstroke, heat cramps and heat exhaustion, which are already covered.
- The added conditions are heat syncope (fainting and dizziness), heat rash, rhabdomyolysis (muscle injury), dehydration causing kidney injury and neurological disorders. Labor Secretary Francis Tolentino signed Labor Advisory No. 19 on Oct. 23.
- The guidelines apply to workers covered through the Social Security System and the Government Service Insurance System who are exposed to excessive heat, outdoors or indoors. Factors in deciding whether an illness is work-related include the nature of the work, workplace conditions, duration and intensity of heat exposure, protective equipment and preventive measures. Heat index classifications from the national weather agency, PAGASA, may serve as supporting evidence.
- Employers must keep records of work-related heat illnesses, help affected workers or their beneficiaries file claims and submit a work accident/illness report when required. Supporting evidence can include workplace temperature measurements, work schedules, workload and work-rest records, documentation of preventive measures and witness statements.