Workers’ Compensation
Workers Compensation Claims and Benefits
What is workers’ compensation?
Workers Compensation compensates injured workers who are injured while performing service growing out of and incidental to employment.
Can I still apply for workers’ compensation if I had a previous injury, or pain to the same body part, which is the subject of my current potential claim?
You sure can! A condition may be said to be work related if an injury (or work exposure) caused your condition directly or indirectly. That is, if an injury aggravated and accelerated a pre-existing condition beyond the normal rate of progress, then you are still eligible to apply for benefits. An employer accepts an employee “as is.”
What is a traumatic injury?
A traumatic injury is a specific injury at a certain point in time. It typically involves a specific event, which can be attributed to causing or progressing a medical condition.
What are some examples of a traumatic injury?
A few examples of traumatic injuries include:
- Picking up a heavy box and having back pain
- Being struck in the legs with a forklift truck
- Striking a knee on the corner of a desk
- Falling from a roof and landing on your neck
Can I still bring a claim for workers’ compensation benefits if I didn’t have a specific/traumatic work injury?
Absolutely! A claim for an occupational disease may apply to your situation.
What is an occupational disease?
If you perform repetitive work, and that work either caused or aggravated your condition, it is possible to make a claim for benefits arising out of an appreciable period of work exposure.
What are some examples of injuries arising out of an occupational disease?
A few examples of occupational diseases include:
- Developing pain in your hands (e.g. carpal tunnel syndrome) or elbows (e.g. epicondylitis or cubital tunnel syndrome) as a result of typing activities.
- Developing shoulder pain as a result of repetitively reaching, lifting, or working overhead.
- Developing neck pain as a result of repetitively lifting and maneuvering heavy dies.
- Developing a respiratory condition due to repeated exposure to chemicals, such as isocyanates or solder.
How is my injury date determined, in instances of an occupational disease?
The answer to this question is situation-specific. There are two potential injury dates:
- The first day missed from work as a result of the medical condition.
- The last day of work contributed to the condition.
Please contact us for further details.
What can I do to increase my chances of success in obtaining workers’ compensation benefits? Documentation is the key!
The closer in time an injury, or pain, is reported to an employer, the better your chances of success. If a report of injury is not completed in writing, then it does not exist. Don’t count on your employer admitting to a conversation. You should be sure to insist upon completing a report of injury immediately after your work injury. You should also continue to report the history of injury, and ongoing pain/discomfort to your doctors, physical therapists, etc.
Regarding recorded statements/interviews:
A common method of insurance companies is to arrange for a recorded statement shortly after a work injury is reported. While documentation is important (as described above), a recorded statement is not the kind of documentation that is in your best interest. There is no legal requirement to do so. The recorded statement is often utilized by insurance carriers (and their attorneys), in an effort to deny benefits and undermine a claim.
Instead of submitting to a recorded statement, you should submit your responses to questions in writing. Giving information in writing allows you to more completely consider your answers, ensuring the responses are accurate.
Be sure to consult our office if you are being pressured to give a statement!
Accepting offers of work:
Insurance companies will often have their insured (i.e. the employer) offer a position of light duty, in hopes that you will not accept the position. If the offer meets your work restrictions, you should return back to work.
Call their bluff and put the ball back in their court! Accept an offer of light duty, as long as they are within your work restrictions. Document any problems that you may have at work while performing the light duty, and if necessary, have your doctor modify your restrictions as necessary.
Be sure to consult our office if you are being pressured to return to work within a position that exceeds your restrictions! This is a common occurrence when the insurance company’s Independent Medical Examiner (IME) disagrees with the appropriate work restrictions.
If you refuse an offer of work within your work restrictions, you may lose significant Worker’s Compensation benefits, and possibly, your job.
Workers Compensation Benefits Generally in Wisconsin
What are workers compensation benefits?
Injured workers may file a claim for the entitlement to several forms of benefits, including, but not limited to the following:
- Temporary Total Disability (a.k.a. TTD)
- Temporary Partial Disability (a.k.a. TPD)
- Permanent Partial Disability (a.k.a. PPD)
- Loss of earning capacity (a.k.a. LOEC)
- Retraining Program
- Medical Expenses
How is the average weekly wage (AWW) calculated?
The Average Weekly Wage is calculated by using one of two different mathematical formulas:
- Hourly wage x 40 hours/week, or
- Gross earnings 52 weeks prior to injury / 52 weeks
- The higher weekly wage of the two separate equations establishes the average weekly wage.
- The average weekly wage is then utilized for purposes of calculating what Workers’ Compensation
*Restrictions do apply when utilizing the gross earnings method to establish an average weekly wage. Please call for details.
What are TTD benefits?
TTD benefits compensate injured workers for the loss of his/her wages when completely off of work, at the advice of their doctor. The benefits are intended to compensate workers at two-thirds of their average weekly wage. A worker is only eligible for TTD benefits while healing from the effects of their work injury and/or work exposure. It should be noted that the State of Wisconsin has imposed caps on the amount that can be claimed for TTD, dependent upon the year of injury. TTD benefits are typically paid out on a weekly basis.
How are TTD benefits calculated?
TTD benefits are calculated by utilizing the following equation:
- Average weekly wage (a.k.a. AWW) x 2/3=$ benefits/week
- TTD benefits are capped, depending on the year an employee was injured
What are TPD benefits?
Similar to TTD benefits, an employee is eligible for TPD benefits while healing from a work injury. An injured worker is eligible for TPD when his/her work restrictions impact upon their ability to earn their full average weekly wage.
What is the difference between TPD and TTD benefits?
The difference between TPD and TTD is that you must be completely off of work in order to receive TTD benefits. In the event that an injured worker works a partial week, and earns less than their AWW, the TPD benefits will apply.
How are TPD benefits calculated?
TPD benefits are calculated using a more complex formula than its TTD counterpart. The TPD calculation must also factor in any wages earned during the week in question. Please call for further details in relation to this topic.
Is there pain and suffering in workers’ compensation?
Yes and No. Pain and suffering are not specifically compensated. There is no direct compensation available for the financial hardships a work injury may cause, nor for the frustration in dealing with the workers’ compensation carrier, doctor offices, etc. Rather, an injured worker gets compensated for present and future pain, weakness, effects of surgery, etc. by means of an assessment of permanent partial disability (PPD), loss of earning capacity (LOEC), or by means of a retraining program.
What are PPD benefits?
Permanent Partial Disability benefits are awarded to an injured worker who has sustained permanent damage from the effects of a work injury. The amount of benefits to which an injured worker is entitled is determined by a PPD rating. The PPD rating is expressed as a percentage and should be assessed by your treating doctor/surgeon at the point when you have reached a healing plateau from the work injury or work exposure. PPD benefits are typically paid out on a monthly basis (i.e. 4.33 weeks of payments, sent out in one lump sum check each month).
What is a healing plateau?
A healing plateau is another way of describing that you have reached a point in your medical treatment where your condition is no longer improving. It is often referred to as the point of maximum medical improvement (MMI). Generally speaking, a healing plateau is reached when your doctor is ready to release you from his/her care. However, it is still possible to reach a plateau and still be getting treatment. If your treatment is intended to relieve pain, as opposed to improving function (e.g. if you are receiving steroid injections 2 years after a low back fusion procedure), then you are likely treating for a permanent condition.
How are PPD benefits calculated?
Like TTD benefits, PPD benefits are capped. The maximum allowable PPD rate is dependent upon the year of your injury. In addition, the calculation is body part specific and pays out at a lower weekly rate than TTD. The Department of Workforce Development (DWD) assigns a certain number of applicable weeks to various maladies. The percentage of PPD assessed by your treating doctor is then multiplied to the number of weeks applicable to your specific condition, in order to determine the monetary amount of your PPD benefits.
What are some of the more common number of weeks associated with their respective body parts?
- Back: 1000 wks.
- Neck: 1000 wks.
- Respiratory/Lung: 1000 wks.
- Loss of arm at the Shoulder: 500 wks.
- Loss of arm at the Elbow: 450 wks.
- Loss of leg at the Knee: 425 wks.
- The loss of hand at the Wrist: 400 wks.
What are some examples of PPD calculations?
- 8% PPD to the Wrist (2003 Injury Date): $212/wk. x 0.08 x 400 wks. = $6,784.00
- 12% PPD to the Shoulder (1999 Injury Date): $184/wk. x 0.12 x 500 wks. = $11,040.00
- 30% PPD for a respiratory condition (2005 Injury Date): $242/wk. x 0.30 x 1000 wks. = $72,600.00
- 50% PPD for a back condition (2004 Injury Date): $232/wk. x 0.50 x 1000 wks. = $116,000.00
Can I get a higher assessment of PPD if I have had surgery?
In some instances, Yes. The DWD has established minimum PPD assessments for certain forms of surgeries. Surgeries for more minor conditions, such as carpal tunnel, do not have minimum assessments. Others have minimum assessments associated with the body part and form of surgery.
What are some examples of surgical operations associated with minimum PPD ratings?
- Back or Neck Discectomy: 5% PPD
- Knee Meniscectomy: 5% PPD
- Back or Neck Discectomy and Fusion: 10% PPD
- Partial Hip Replacement: 35% PPD
- Total Hip Replacement: 40% PPD
- Partial Knee Replacement: 45% PPD
- Total Knee Replacement: 50% PPD
- Shoulder Replacement: 50% PPD
Workers Compensation Benefits for Loss of Job: Loss of Earning Capacity and Retraining in Wisconsin
Are there benefits available that will compensate me for the loss of my job due to a work injury?
Yes, there are several different options for injured employees who have lost their job due a work injury. The two most common claims are for loss of earning capacity and retraining.
What is a loss of earning capacity (LOEC)?
Loss of earning capacity is an additional benefit designed to compensate injured employees for a loss of a job or reduction in wage, due to his/her work injury and permanent work restrictions. Only injuries to certain body parts, however, are potentially eligible for a loss of earning capacity claim. Like PPD, loss of earning capacity benefits are paid out on a monthly basis (4.33 weeks of benefits paid out in a lump sum monthly), and they are capped at the PPD rate associated with the injury date (unless the loss of earning capacity claim is one for Permanent and Total Disability, which is discussed later in this section).
Am I eligible for loss of earning capacity benefits?
The answer to this question is situation-dependent. You must satisfy certain criteria to be eligible to bring a claim for loss of earning capacity. This criterion includes issues such as the body part injured, the extent of the wage loss, whether permanent restrictions exist, and the circumstances surrounding the job loss.
A loss of earning capacity claim requires the expertise of a vocational expert. Please call for further details.
What benefits am I entitled to if I am permanently unable to remain employed on a reasonable and predictable basis, due to the advice of my doctor?
You may be eligible for a form of loss of earning capacity called Permanent and Total Disability (PTD) if you meet very specific criteria as defined by the Wisconsin Statutes.
Please call us for details.
How does a claim for loss of earnings differ from a claim for permanent and total disability?
Permanent and total disability is simply a more valuable form of a loss of earning capacity claim. Rather than arguing that your permanent work restrictions will have an adverse effect on your ability to earn money in the future (as is the case with a LOEC claim), we are arguing that you are unable to work in fashion due to your work restrictions.
The benefits are paid out for the remainder of your life! In addition, benefits are paid out at the applicable TTD rate (2/3 of your wage when injured – up to the maximum allowable rate), which, in the majority of cases, is significantly higher than the payout for PPD or a loss of earning capacity for anything less than PTD (or 100% LOEC).
How are PTD benefits calculated?
- Weekly PTD benefits are calculated by utilizing the same equation as we use for TTD.
- Average Weekly Wage (a.k.a. AWW) x 2/3= $ Benefits/wk. FOR LIFE!
- TTD/PTD benefits are capped, depending upon the year an employee was injured.
What is a retraining claim?
For injured employees who are so disabled by virtue of their work injury, as to be unable to return to employment for which they are qualified (by way of their employment history and educational background), a potential retraining benefit exists under the Workers Compensation Act. This benefit allows you to receive TTD benefits during the time you are attending school, with the cooperation of the Wisconsin Division of Vocational Rehabilitation.
Please contact us for further details.