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.
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