Radosevich, Mozinski, Cashman & Olson, Workers Compensation attorneys Manitowoc WI

WORKER'S COMPENSATION:

How Does the System Work in Wisconsin?

Attorney Steve Olson

For additional information: link to Radosevich, Mozinski, Cashman & Olson LLP

The concept of worker's compensation coverage laws originated in Wisconsin in the early 1900s. Wisconsin was one of the first states to enact a worker's compensation program. Prior to Wisconsin doing so, a worker who was injured on the job basically had no remedy. For example, before worker's compensation existed, an injured worker could only sue the fellow employee who may have caused his injury. In addition, the injured worker would have to prove that he, himself, was completely blameless. Even if the injured worker could do so, in most instances the fellow employee did not have sufficient assets to compensate the injured worker.

Over the past 100 years, the legislature has attempted to fine tune the worker's compensation code into a fairly simple and straightforward process. Although this has occurred in many areas, in others the legislature has only had limited success.

For the most part, all Wisconsin employers except farmers with less than six employees are subject to the Worker's Compensation Act. This means the employer must either carry worker's compensation insurance to cover its employees or must be specifically exempted by the Wisconsin Worker's Compensation Division. Exemptions are only granted when an employer can show it has sufficient resources to cover possible claims.

An injured worker is entitled to worker's compensation benefits under much broader circumstances than, for example, someone who was injured in a car accident. In a car accident, in order to be compensated for injuries, a plaintiff must show someone else is as fault. That is not the case with worker's compensation. All the injured worker must show to be entitled to worker's compensation benefits is that the injury happened on the job due to something which was job related. Notably, the legislature has struck a balance between the rights of employees and employers in this regard. While the injured worker is entitled to benefits under much broader circumstances, the benefits are far more limited than would be the case for someone injured in a car accident. The non-work related car accident victim is entitled to full repayment for lost wages, medical bills, pain and suffering, emotional distress, and, if they have a spouse, their spouse may be entitled to an award for loss of society and companionship. By contrast, under the Worker's Compensation Act, the injured worker is only entitled to what are known as disability benefits and payment of their medical bills.

If a worker is injured on the job and unable to return to work, during the healing period the worker is entitled to temporary total disability (TTD) benefits. TTD is calculated as two-thirds of the worker's normal wage. However, since TTD benefits are not taxed, the TTD benefit will probably be fairly close to what the injured worker's take home pay would have been. If the injured worker is released to return to work, however, is not physically able to perform their job, the employer may offer the injured worker a light duty, lesser paid job. If the employee's wage is significantly less, the injured worker then may be eligible for temporary partial disability (TPD) benefits until they are able to return to work.

Wisconsin's worker's compensation scheme also offers the possibility of permanent partial disability (PPD) and permanent total disability (PTD) benefits. Both PPD and PTD benefits are calculated as a percentage of the injured worker's salary, however, are limited based on legislative salary caps and are not indexed to inflation.

If an employee is injured, he or she must report the injury as soon as possible to the employer. The employer will then forward that claim to the worker's compensation insurance company. Unless the insurance company is told of facts making it reasonably likely the injury did not occur on the job or there is information within the employee's medical records indicating the injury was not work related, the worker's compensation insurance company must pay the claim. However, if the insurance company has doubts, it is entitled to require the injured worker to see a doctor hired by the insurance company, or have the injured worker's records reviewed by such a doctor. If the insurance company-paid doctor gives an opinion that the injury is not work related, then the insurance company may stop payments. Should this happen, the injured worker must apply for a hearing before an Administrative Law Judge employed by the Wisconsin Department of Workforce Development's Worker's Compensation Division. Once the worker's compensation insurance company has found grounds it can use to deny a claim, it then becomes the injured worker's burden to prove that his or her injury was work related and he or she is entitled to benefits.