- Do I have a claim for worker's compensation ?
You have a claim if you suffered a loss because of a job-related injury.
This means that, to get worker’s compensation, you have to show three things:
First, you have to show that you were injured in the course of your employment – that is, that you were working when you were hurt. For most employees, their work starts the second they drive on to the employer’s premises or parking lot, and work ends when they leave. If you are traveling for the employer, you are covered during the entire trip. If you engage in horseplay at work, you are not in the course of your employment. At all other times, you are.
Second, you must show that your injury happened because of work. Either the work directly caused the injury, or it aggravated some pre-existing condition, or it contributed in some material fashion to the progression of your condition. The mere fact that you were at work when your injury happened is not enough – you must show that the work contributed to the injury.
Third, you must show that you have sustained a loss. This means that you must show that you lost time from work or had some permanent disability or disfigurement. Workers have injuries every day, but to have a claim, you must have sustained either a wage loss or a permanent loss of function so that you have something to claim.
If the employer or insurance company has denied your claim, what they are probably saying is that you have failed to prove one of those elements. If that has happened, contact us and we will identify the problem for you and see if we can help.
- What do I get?
During the time you are off of work and healing from your injury, you will get two thirds (2/3) of your gross weekly wage up to a certain maximum (see chart). This is called the temporary disability benefit. No temporary disability is paid for the first three days after your injury. If you are off of work for more than seven days, you will then get the first three days paid. You will get temporary disability for as long as the doctors say you are healing. If you return to part-time work or less paying work during this healing time, you will receive two thirds of the wages you are losing. There is no limit on how long this healing period may last. It is up to the doctors to determine when you reach the end of your healing.
In addition to temporary disability the insurance company should pay all of your medical bills which are related to your work injury. You should also get mileage expense during your treatment.
When you reach the end of your healing time your doctor will decide if you have any permanent damage from your injury. The doctor must give you a percentage (%) of disability on the injured part of your body. The state has a chart which explains how much each part of your body is worth. You get paid a set number of weeks of permanent disability money for each part of your body.
Permanent injuries to your back, head, neck, skin or lungs are paid differently. With those injuries you may make a claim for more money if the doctor restricts you from going back to your job. Generally the insurance company will not voluntarily pay you this extra money for your future wage loss. You should call us to see if you might have a claim for this additional money.
If you cannot go back to your job because of your injury, you may have the right to go to school to be retrained. The insurance company should pay you temporary disability every week you are in school. You must get this schooling done through the State’s Division of Vocational Rehabilitation. If you cannot go back to work you should contact the DVR immediately or call us and we will help you with that claim.
If you injury makes you unable to work anywhere in the future you will be 100% totally and permanently disabled. You will then get two thirds (2/3) of your weekly wage for the rest of your life. Again this life time money benefit is rarely paid voluntarily by the insurance company. If you are unable to return to work call us to see if you might be able to make a claim for this life time money benefit.
None of the money you receive from worker’s compensation is taxable. You do not need to report your worker’s compensation money when filing taxes. In addition, you have twelve years from the last day that you received any worker’s compensation money to file a claim for more benefits. If you are not sure that you have been paid properly from the insurance company, please contact us and we will be glad to help you.
- Who decides what I get?
If you lose time because of a work-related injury, the insurance company is required by law to pay you two-thirds of your wage loss. The insurance company (or self-insured employer) pays you based on the information they receive about your wage. Many times this information is incorrect, and you should be sure that they are using your actual wage. If they are not, you can ask for a hearing. It is the Wisconsin Worker’s Compensation Division that has the final say on your actual loss.
If you have permanent disability, the insurance company (or self-insured employer) is required by law to pay you in accordance with the medical evidence. Very often we find that, when your doctor finds that you have a permanent disability, the insurance company will send you to a doctor of its choosing to see if its doctor will find less disability or even no disability at all. The insurance company almost always pays the least possible amount.
If you have a permanent disability from work, and the insurance company has sent you to a doctor of its choosing, the chances are great that they are paying you less than you have coming. Again, a Worker’s Compensation judge has the final say in your case. If this happens to you, contact us and we will let you know if you have more coming.
- Should I cooperate with the insurance company and the employer?
Yes, in general, you should cooperate with the insurance company and the employer when you have a work related injury. You should report your injury as soon as possible to your employer. Your employer should then contact its worker’s compensation insurance company. The insurance company will contact you and ask you the details of your injury. You should cooperate by telling them the details of your injury. However, never give a recorded statement to the insurance company or your employer, and never sign any statements that you have given. Even if the insurance company tells you that you will receive no money unless you record or sign the statement, you should not do so. They have no right to not pay you simply because you did not sign or record a statement. The only paper you should sign is an authorization for the insurance company to look at your medical records. They have a right to see your medical records and you should sign that authorization.
- Do I have to go to their doctor?
You have the right to go the doctor of your choice for treatment. You should tell the insurance company what doctor you have chosen. If the insurance company wants to send someone to go with you to your doctor’s appointment you should refuse to let them. You do not have to let anyone else come in to your doctor’s office while you are being treated.
After you are done healing from your injury, you should cooperate with the employer and the insurance company as they try to get you back to work. If the employer offers you a job within the restrictions of a doctor, you should go try the job. If you cannot go back to work for your employer, the insurance company may hire someone to help you find a job. You should cooperate with them in trying to get you back to work. However, at the same time, you should contact the Division of Vocational Rehabilitation to ask their assistance in helping you find a job as well.
You have the right to be treated for your work related injury by any doctor in the State of Wisconsin. If you are not happy with your first doctor, you have the right to go to a second doctor.
You must tell the insurance company that you are going to the second doctor. Any further choice of doctors must be approved by the insurance company.
The employer and the insurance company have no right to tell you where you must be treated. If you are hurt and the employer tells you must be treated by a certain doctor in order to make a worker’s compensation claim your employer is violating the law. Only in case of emergency may your employer decide where you will be treated. Other than that you have complete choice of the doctors who treat you.
The insurance company has the right to have you seen by one of its doctors. This insurance company doctor does not have the right to treat you, but only to examine you for the insurance company. You do not pay for this exam and the insurance company must pay you mileage to get the exam. Again, the doctor who examines you does not have the right to treat you. You do not need to follow the orders of the insurance company doctor, but simply be examined by the doctor. You should answer the doctor’s questions honestly, but do not volunteer any information without being asked for it.
The insurance company will probably follow the recommendations of its doctor. That is, it will follow the opinions of its doctor rather than your doctor concerning your work injury. That may mean that the insurance company will stop paying you money based on its doctor’s opinion even if your doctor still has you off of work. The insurance company has the right to follow its doctor’s opinion. If this happens to you, please call us so that we can let you know what rights you have.
- What do I do if they deny my claim?
If the insurance company or self-insured employer pays you less then you have coming or denies the claim altogether, you have the right to file for a hearing with the State of Wisconsin Workers Compensation Division. At that hearing, you will have to present competent medical testimony and perhaps other evidence to prove your case. A Workers Compensation judge provided by the State of Wisconsin will examine your evidence and the evidence provided by the lawyers for the insurance company, and will decide your case based on all the evidence.
We have found that, when the insurance company denies a claim, it hires the best and most experienced lawyers it can to defend it at the hearing. You should do the same. If your claim is denied, or you think you have more coming, contact us and we will try to help you in every way we can.
- Do I need a lawyer?
The Worker’s Compensation Law does not require an attorney to represent an injured worker at a hearing. If the only dispute is a minor one such as one or two days of compensation or the payment of medical and/or chiropractic bill, then an attorney may not be necessary. If an injured worker applies for a hearing without an attorney, the Worker’s Compensation Division will schedule an informal conference where no testimony is taken and no decision is made, but a Judge tries to work out the differences between the parties on an agreed upon basis.
Sometimes major disputes arise such as: Is there permanent disability? How much permanent disability is there? Is retraining necessary? Has the employer/insurance carrier completely denied the claim? In these types of disputes, a lawyer who concentrates his or her practice in the area of worker’s compensation is not only helpful, but truly a necessity. Think of the need for an attorney in these situations the same way you would think of skilled tradesmen in other situations. You don’t need an electrician to change your light bulb, but you surely need one to bring in a 220 line. You don’t need a plumber to change a washer, but you don’t want to hook up a septic system without one.
If you decide to look for an attorney, look for one who represents only injured workers in worker’s compensation and one who concentrates his or her practice in that area.
Remember, an attorney may not charge more than 20% of the compensation which is in dispute. That means any amount of money that the employer/insurance carrier is paying on a voluntary basis cannot be subject to an attorney fee. Only if the attorney gets you more money than the employer/insurance carrier has agreed to pay, can an attorney charge a fee. If you contact an attorney that agrees to review your case, but wants money up front for investigation, you are in the wrong office. Our firm will always answer questions concerning your rights under the Worker’s Compensation Law. We will not charge you a fee unless we actually agree to take the case, you agree to hire us and we actually get you some money.
- What if they don't have a job for me?
Losing your job because of a work-related injury is a devastating and frightening thing, but the fact is that it can happen. If it happens to you, there are several things you can do about it.
If you lost your job because your injury has left you unable to work anywhere, you have a right to claim permanent total disability. In addition, you would have the right to claim social security disability benefits. These are very difficult claims, and the insurance companies rarely pay them without a big fight. If you think you have such a claim, call us right away.
If you lost your job because of your injury, but feel that you can do some other work, you may be eligible for retraining. If so, you can receive two-thirds of your wages while you are being retrained. To get this, you first need to contact the local office of the Division of Vocational Rehabilitation. The DVR counselors are always ready to help, but the process can be complicated, and the insurance companies often fight such claims. Again, call us and we will let you know what your rights are.
If you lose your job because of your injury, but find other work, you may have a claim for increased permanent disability because of loss of earning capacity. This is only true of certain disabilities, such as back injuries, or lung injuries. This kind of claim requires the use of a vocational expert, and, again, insurance companies rarely pay such claims without a fight. If you think you have such a claim, call us and we will see if we can help.
Finally, it may be that your company does have work for you, but still refuses to rehire you, in which case you have a claim for discrimination. The employer has an obligation to take positive steps to put you back to work, and if they do not, you may have a claim for damages. These are very tricky cases, and different rules may apply. If you think this happened to you, contact us and we will try to get you help.
- Do I get a settlement?
In general, there are no lump sum settlements for a work injury. Temporary disability is paid while you are off of work and then any permanent disability given by the doctor is paid to you on a weekly basis. Your claim for future money and medical treatment stays open for twelve years from the last day money was paid to you. Therefore you should be very careful about "settling" or closing your claim for a lump sum payment. If you do, your claim will be closed forever and you will not be able to ask for any more money or medical coverage in the future.
However, there may be times when a settlement may be in your best interest. For example: If your claim is weak and a judge would give you little or no money on your claim, then it would be wise to settle with the insurance company. This settlement is done by a "compromise agreement." If you are offered a settlement, please contact us before signing off on your claim. We will let you know if that settlement is fair or whether we could get you more money than the insurance company offers you. Remember, if you settle your claim your case will be closed forever.
- What if I have hearing loss from my job?
If you have worked in a noisy environment such as a loud factory setting, most construction sites, or any job area where you have to raise your voice to be heard by a co-worker, then there is a very good probability that any loss of hearing you have was caused by your employment. If your employer takes regular loss of hearing exams, that is very good indication that your work place is sufficiently noisy to cause occupational loss of hearing.
This claim for occupational loss of hearing is normally made upon retirement. There is a formula in the Worker’s Compensation Law which determines whether or not your hearing loss is large enough to make a claim for worker’s compensation benefits. An experienced worker’s compensation attorney will know how to interpret your hearing loss tests and which doctors to use to set up an examination for a hearing loss test. You should contact us immediately upon retirement if you believe you have a hearing loss so that we may investigate your claim and advise you as to what is necessary to proceed to get you some money for your loss of hearing.
- Can I sue my employer? Can I sue anybody else?
An injured worker may not sue his or her employer for an on-the-job injury. Worker’s Compensation is not a lawsuit. No matter how much the employer is at fault for the injury, that employer may not be sued for the injury. According to the Worker’s Compensation Act, an "employer" is not only your employer, but also anyone who works for your employer. This includes co-workers, foremen, supervisors, people in the personnel department, etc. Any co-employee of yours cannot be sued for your on-the-job injury. Your claim for an on-the-job injury against your employer is for Worker’s Compensation benefits only, which is why it is so important to get expert advice as to whether you have received all the benefits you have coming.
If your injury is caused by a third party, there is a possibility of a lawsuit against them. A third party is anyone who is not an employee or your employer, and who has caused the accident – such as a delivery person injured in an automobile accident where the accident was caused by another driver who was not a co-employee. If you are working a different job site than your own employer’s job site and you are injured by another employer’s worker, you might be able to sue the other employer.
Third party lawsuits are very complicated and very expensive, and you should seek experienced help in investigating these claims. Any death on the job, or any serious accident on the job should be investigated for a possible third party action. A personal injury law firm such as ours should be consulted immediately if either of these things occur. We have an experienced staff of lawyers with many years of experience trying third party cases.
Remember – there is no charge for making the call or the investigation. There is only a charge by our firm if we actually take your case and get you some money.
- Can I get Social Security too?
You can collect Workers Compensation benefits and Social Security Disability payments at the same time. In order to collect Social Security Disability, you must be off work for at least five (5) months and have an injury which will keep you off work for more than twelve (12) months. It does not have to be an injury that will keep you out of work for the rest of your life. Generally speaking, you can collect 80% of your average monthly wages between Workers Compensation and Social Security Disability. There is a formula to determine how much you can get, but under all circumstances, you get more money if you are collecting both benefits at the same time.
If you have a serious injury which will keep you off work for more than twelve (12) months, you should contact us and we will advise you how to apply for Social Security Disability. As in Workers Compensation, we cannot charge you a fee for services unless we actually take your case, have a fee agreement with you, and get you on Social Security Disability. Our office regularly advises and represents our clients at Social Security Disability hearings.
- How can I be sure I have been fully compensated?
The only way you can be sure you have gotten everything you have coming because of your work related injury is to ask somebody who is completely familiar with the law and your rights. That person should also be concerned with your rights, not the insurance company’s rights or your employer’s rights under the law.
Do not ask the worker’s compensation insurance representative if you have more coming. Do not ask your company nurse or personnel people if you have more coming. Do not ask your foreman if you have more coming.
Do ask your union representative because if he or she can’t answer your questions they will get you to somebody who can. Do ask somebody who deals with worker’s compensation and represents injured workers on a regular basis.
You have a claim if you suffered a loss because of a job-related injury. This means that, to get worker's compensation, you have to show three things:Read More