Workers Compensation

Worker’s compensation is a no fault system in Wisconsin. An employee who is injured or contracts a disease arising out of employment while the employee is performing service growing out of and incidental to employment is entitled to compensation, regardless of whether anyone was at fault in causing the injury.

There are many possible benefits which are not discussed here. An experienced worker’s compensation attorney should be consulted for a full discussion of all available benefits in any particular case. However, the five most common benefits which are subject to dispute in most cases are: (1) reasonable and necessary medical expenses; (2) temporary total disability while the employee is off work and in the healing period, prior to reaching the healing plateau, payable at the rate of two-thirds the average weekly earnings at the time of the accident; (3) permanent partial disability determined at the time of the healing plateau and payable at a rate set by the state which changes every year; (4) retraining benefits at the temporary total disability rate, as adjusted, for up to 80 weeks or more of schooling in the event the employee cannot return to work for the same employer due to restrictions; and (5) loss of earning capacity benefits in the case of unscheduled injury claims and inability to return to work for the same employer at 85% or more of the old earning rate.

Any or all of the potential benefits can be disputed by the employer or worker’s compensation insurer. The employee must have medical support in the appropriate form to support any claim. The employer or insurer is entitled to an independent medical examination by a doctor of its own choice to re-asses the condition of the employee.

If benefits are denied because of a disagreement between the opposing doctors, the employee may apply for a hearing on entitlement to any of the benefits before the Worker’s Compensation Division of the Wisconsin Department of Workforce Development, formerly known as the Department of Industry, Labor and Human Relations. The time lapse between filing for a hearing and appearance at the hearing often is nine months or more.

Medical expenses are sometimes denied if they are deemed excessive or unrelated to the industrial injury by the employer or insurer. There is a detailed dispute resolution procedure set forth in the statutes for resolution of such disputes.

Temporary total disability benefits are sometimes denied if either the treating doctor or the independent medical examiner fails to authorize time off from work in writing. Sometimes the insurance company’s doctor disagrees with the return to work date or the restrictions suggested by the treating doctor. In that case, the employee might refuse to return to work, and file an application for a hearing, or more practically, return to work and try to stay within his own doctor’s restrictions. The risk of not returning to work is termination. There is a remedy for unreasonable refusal to re-hire under worker’s compensation law which provides for up to one year of back wages, but it is difficult to obtain and there is a long wait for the final result. A judge will ultimately rule on any dispute if the case goes to hearing.

The extent of permanent partial disability is often disputed. Certain injuries and conditions have a minimum percentage of permanent partial disability suggested by the administrative rules. The doctors must evaluate the conditions on a case by case basis and render an opinion on the extent of permanency. The opinions are not always based on objective criteria, and are sometimes quite subjective. There is room for argument in many cases.

Scheduled injuries involve injuries to the extremities, sight and hearing. Nonscheduled injuries involve injuries to the head, neck and torso. The statutes prescribe a maximum number of weeks of disability for each area of the body involved. The appropriate percentage of permanent partial disability, as determined by a doctor, is multiplied times the maximum number of weeks applicable to the area of the body involved, to determine the number of weeks during which the employee is entitled to a weekly benefit. The rate of weekly benefits changes each year.

If the doctors on both sides of the case disagree on the appropriate percentage, an employee is entitled to apply for a hearing so that an administrative law judge can decide the applicable percentage which will determine the benefit amount.

Retraining benefits are paid at the temporary total disability rate, sometimes adjusted for the year of retraining instead of the year of the accident, during the weeks that an employee is enrolled in a program of retraining authorized by the Division of Vocational Rehabilitation. Eligibility depends on the DVR’s preparation of an Individualized Written Rehabilitation Plan following an unsuccessful job search. This benefit is usually but not always limited to 80 weeks of retraining.

The last typical benefit is loss of earning capacity. This benefit is only available for nonscheduled injuries to the head, neck and torso. If the employer refuses to offer the employee a chance to return to work at not less than 85% of the earning rate at the time of the accident, the employee is either ineligible for retraining or has completed retraining, and the employee is not able to obtain new employment which pays as much as the old employment, the employee may consider a claim for loss of earning capacity. This is measured by the percentage difference between the earning capacity at the time of the accident (usually the old wage rate) and the current earning capacity (usually the new wage rate or an earning rate hypothetically determined by a vocational expert). There is a credit for permanent partial disability already paid or conceded. Lawyers are usually involved in these types of cases, to gather the evidence and present it to the judge at a hearing. The selection of a vocational expert and financing of the evaluation is often accomplished by the applicant’s lawyer.