OFTEN UNAWARE OF BENEFITS AVAILABLE
In 1911, Wisconsin became the first State to enact Workers' Compensation Laws. Before the Workers’, Compensation Laws were adopted, an employee who was injured while he or she was working could only obtain compensation by suing the employer. When an employee did sue the employer, the employee still would not be compensated unless he or she was able to prove that the employer was negligent in causing the injury.
When the Workers’ Compensation system was adopted, it eliminated the need for injured works to sue their employers in order to obtain compensation. The laws also eliminated the requirements that injured workers prove that their employer was negligent as a condition of recovering. In exchange for eliminating the requirements that an employee sue the employer and prove negligence, employees gave up the right to recover damages for their pain and suffering. Benefit to injured workers were paid only for economic losses (primarily lost wages and medical expenses) and modest limits were placed on the amounts of the benefits which were payable.
The system was designed in principle to work without lawyers. Today, in many cases, employees are still able to receive all of the Workers' Compensation benefits to which they are entitled, without the assistance of an attorney.
The Workers’ Compensation benefit system is relatively simple. When an individual is injured in the course of his employment, and is forced to miss work, the employee is entitled to be paid two-thirds of his average weekly wage from the date of injury until the employee reaches a healing plateau. There is a cap or ceiling on these benefits, known as temporary total disability benefits, which is usually adjusted upward annually.
In addition to being paid lost time benefits, 100% of all reasonable and necessary medical expenses are paid by the employer or Workers' Compensation insurance carrier.
Where the employees does not make a complete recovery and is left with some permanent disability, the employee is paid an additional benefit. The amount of the benefit payable for this permanent disability is determined by a rather complicated formula under the Workers’ Compensation Laws.
If an employee is left with a significant disability, which prevents him from returning to his former job, and the injured employee has no job skills to earn comparable pay in another line of work, the employee may be eligible for a retraining program, which is designed to restore the employee's earning power. A worker in this position applies for assistance from the Wisconsin Division of Vocation Rehabilitation.
When a partially disabled worker is accepted for a retraining program, the State normally pays for all books and tuition for the schooling program.
In addition to having the individual's books and tuition paid by the State, the employee is also entitled to collect temporary total disability benefits during the period that the employee is in school. These are paid by the employer or insurance carrier. The employee is also paid for all necessary mileage for travel to from school and compensated for the cost of meals consumed while at school.
With certain types of physical disabilities, some injured workers are entitled to additional compensation over and above the State formula, based on a loss of earning capacity.
For example, take the case of an employee who was engaged in heavy construction work, earning $30.00 per hour at the time of a moderate back injury. If, at the end of the healing period, his doctor indicates that his disability is rated as 5% of the whole body, he is paid for 50 weeks of compensation at the permanent partial disability rate in effect on the date of the injury. Now, however, assume that because of his injury and disability he is unable to return to the construction work he previously did. Even after this employee completes a program of Vocational Rehabilitation, we find that he still is able to earn a maximum wage of $15.00 per hour. Since this employee could earn $30.00 per hour before the accident, he has sustained a 50% loss of earning capacity. This raises his permanent disability payment form 50 weeks, based on his doctor's disability rating, to 500 weeks at the same rate in effect at the time of the injury-a ten times larger benefit!
Finally, there is a small class of workers who become totally disabled and unable to perform any gainful work activity for the remainder of their lives. Employees in this situation are entitled to collect what are called permanent total disability benefits. These workers are paid a weekly benefit, just like temporarily disabled workers. Benefits are payable for the injured employee's life.
In theory, the Workers’ Compensation system works well. However, over time, insurance companies have developed strategies and tactics which are employed to limit the amount of Workers' Compensation benefits paid to injured employees. Under the law, the insurance carriers or employers have a right to have an employee examined by a doctor of their choice. There are a number of doctors who devote a substantial portion of their practice to examining injured workers at the request of the insurer and then writing medical reports for the insurance carrier or employer. If the insurance company's doctor indicates that the employee should be able to return to his job, the insurance company can stop making the weekly temporary disability benefits. This is true, even when the employee's own treating physician indicates that the employee should not be working.
With respect to permanent disability benefits, the treating physician normally assigns a percentage disability rating. Frequently, a physician hired by the employer or insurance carrier will indicate that the injured employee has either no permanent disability a substantially smaller percentage of permanent disability than indicated by the treating doctor. These insurance company doctors also typically say that the workers' disability is not the result of the work injury, but rather is the "mere manifestation of a pre-existing condition" and is not work-related.
Many injured workers find their temporary disability benefits cut off after a visit to one of these doctors. Many workers in his position are unaware of their right to file a claim for ongoing disability benefits up until the time that the treating doctor indicates the employee is able to return to work or has reached a healing plateau. The injured employee also has the right to make a claim for the full amount of permanent disability indicated by the treating doctor or chiropractor.
Many workers, who are unable to return to their former jobs, are not aware of their option of pursuing a retraining program through the Division of Vocational Rehabilitation. Most injured workers who have suffered a loss of earning capacity are also unaware of their right to pursue a claim for this additional compensation.
An injured worker has no need to hire a lawyer as long as he or she is receiving all temporary and permanent disability benefits indicated by the treating doctor or chiropractor. It is only when a dispute develops as to the insurer's responsibility to pay additional disability benefits or pay for additional medical expenses that injured employees need the assistance of an attorney.
Most attorneys who handle Workers’ Compensation claims agree to see individuals for consultation without charge. Normally these cases are handled on a contingent-fee basis, which means that no attorney's fees are payable unless the case is won or a satisfactory settlement is obtained.
Workers’ Compensation disputes do not go through the regular court system. Instead a request for a hearing is filled with Workers’ Compensation Division of the Department of Workforce Development. The hearing will be set before an Administrative Law Judge who will decide the case.
Many cases are settled before reaching the Hearing with the Administrative Law Judge. If the injured worker and the insurance company agree on a settlement, it still must be approved by an Administrative Law Judge before it becomes final.
The Hearing process is relatively inexpensive. Instead of having a to pay a doctor to come to court and testify at considerable expense, the employees have the option obtaining a simple report form from their treating doctor and filing the report at the hearing, instead of offering the doctor's testimony.
The length of time it will take to resolve a case with the Workers’ Compensation Division will vary, depending on the backlog of cases at the time a Hearing application is filed. Typically, it is six to eight months before a case is resolved.
This article is intended only as an overview of the Workers’ Compensation system in Wisconsin. If a reader believes that he or she may have a claim for additional Workers’ Compensation benefits, it is strongly recommended that the reader consult with an attorney who is experienced in handling Workers' Compensation cases.
Patrick R. Griffin has been handling Workers' Compensation cases success fully since 1978. He is well known and respected by the Judges who decide Workers’ Compensation cases. Just as importantly he is also known and respected by the attorneys who represent the Workers’ Compensation insurance companies. As a result, most of his cases are settled with having to go through a Hearing.
Griffin Law Center provides free telephone and office consultations. No attorney's fees are charged unless your case is won or settled.
Call 262-306-2999
GRIFFIN LAW CENTER, LLC
Serving the Legal needs of the Injured and Disabled
E-mail: griffinlawcenter@westbendlawyer.com
