1. I was hurt at work, what should I do?

Depending on how seriously you were hurt either immediately seek medical attention and then inform your employer or inform your employer and then seek medical attention. 

Some employers require you to fill out an accident and injury report. If you are required to fill out a report, be as accurate as you can and do not guess or speculate in the report. Before filling out the report it may be beneficial to talk to a WC attorney so you understand your rights. Unless a copy of the signed statement is provided to you “within a reasonable time after the statement is made”, it may not be used in any manner at a hearing. 

2. What is Worker’s Compensation? 

Worker’s Compensation is no fault insurance that grants medical benefits and wage replacement to employees for injuries or diseases caused by work. 

3. What should I tell my doctor? 

Tell your doctor that it is a work related injury and be specific on how you were injured. Ensure your doctor has a firm understanding of the facts related to how you were injured or why you think your injury was caused by work. You may need to provide your employer’s name and address, you job title and duties, and specifics on how you were injured such as weight of item lifted, number of times you do the same motion during the day, etc. If you have more than one appointment, remind the doctor that you are seeing her because of a work related injury. 

4. What benefits am I entitled to?

a. Medical payment – WC pays for medical bills related to your workplace injury

b. Temporary Partial Disability – if due to the workplace injury you cannot earn your average weekly wage then you will be reimbursed about 2/3rds of the difference between your average weekly wage and you lost wages.

c. Temporary Total Disability – if you are unable to work due to your workplace injury WC will pay you about 2/3rds of your average weekly wage.

d. Mileage – to and from medical appointments related to your workplace injury.

e. Permanent Partial Disability – this payment is for loss of use of you injured body part. There is a formula that is used to compute the amount.

f. Disfigurement – if your injury causes a permanent disfigurement that causes a potential loss of wages you may be eligible for compensation not in excess of your maximum annual earning for the year of injury.

g. Loss of Earning Capacity – If you can no longer earn the same amount of money due to limitations from a non-scheduled workplace injury then you may be eligible for payments that off set the loss of earnings.

h. Retraining – if you are no longer able to do your job due to limitations from a workplace injury you may be eligible for compensation to be retrained.

5. I have a pre-existing medical condition; can I receive Worker’s Compensation? 

Worker’s Compensation covers injuries that are caused by the employee’s work. It also covers injuries caused by repetitive stress such as carpal tunnel syndrome, DeQuevain’s syndrome, trigger finger, and thoracic outlet syndrome that are directly cause by the employee’s work. 

You may be eligible for Worker’s Compensation benefits if work caused an aggravation or acceleration of a pre-existing progressively deteriorating or degenerative condition beyond normal progression. Some pre-existing injuries such as degenerative disk disease, degenerative joint disease and other physical problems could be covered by Worker’s Compensation. 

6. How long do I have to file a claim? 

An employee has twelve (12) years from the date of last payment of primary compensation (medical bills, temporary total disability, etc.) or twelve (12) years from the date the employee knew or should have known about the injury if the employer or Worker’s Compensation insurance carrier, within two (2) years of the injury, knew or should have known about the injury. 

7. The WC insurance company wants a statement over the telephone from me, should I do it? 

You are not required to provide a statement but it could help in the investigation of your claim. There is a danger in both providing a statement and not providing a statement. If there are inconsistencies in your statement and/or medical records, your statements may be used to deny your claim. If you refuse to provide a statement then the insurance company could use it as a basis to deny your claim. 

You may want to talk to a WC attorney before providing a statement so you understand your rights. You may request a copy of the transcripts of the recorded statement and it then must be provided “within a reasonable amount of time.”

8. The WC insurance company wants a nurse to accompany me to my doctor appointments, should I let the nurse attend? 

You are not required to have the nurse accompany you to your doctors’ appointments. If you are uncomfortable with a third party observer then you can refuse to have the nurse in the office with you when you are talking to your doctor. You may want to talk to your doctor’s office first to see what their policy is regarding WC nurses attending appointment. Some doctor’s do not let WC nurses attend appointments. If your doctor lets WC nurses attend, it is advisable that either you or your attorney explain to the nurse that she is there only as a passive observer and will not speak, suggest or interfere with you and your doctor’s relationship and/or treatment. If the nurse is agreeable to being only a passive observer then there should be no harm in her attending. If the nurse refuses to be a passive observer or the nurse attempts to become a participant in treatment and/or interferes with your relationship with your doctor then tell her she may not attend the appointments or ask her to leave.

9. Do I have to go to the doctor that my employer/WC insurance company wants me to see?

a. In-house (company) doctor? 

No, you may go to your own doctor. Most in-house or company doctors are paid to get you back to work as soon as possible with the lest amount of treatment as possible.

b. Independent Medical Examiner? 

Yes, you have to submit to an examination by a doctor of the insurance company’s choice. The examination must be done at the WC insurance company’s expense and must be performed at a time and place that is reasonable for you to attend. The WC insurance company hires IME doctors to obtain the history, diagnosis and prognosis it wants in order to minimize or deny your claim. You should be very specific in advising the IME about your injury, medical treatment, and that your injury was directly caused by your work. 

10. Do I have to sign the medical releases the WC insurance company sent me? 

Generally speaking, "yes" as long as the medical releases comply with Wis. Stat. §610.70. Failure to maintain the confidentiality of your medical records is an invasion of privacy and you may seek civil relief.

11. I do not like my current doctor, can I get another? 

Yes, within limitations. Under WC law you are only allowed two doctors but if you are referred to a doctor, the new doctor does not count or if the doctor is part of the same hospital or clinic as your doctor and your doctor is not available, it does not count as other doctor. The two (2) doctor rule is to prevent doctor shopping. It is advisable that you talk to your current doctor and request that either he send you for a second opinion or you may ask him to send you to a doctor of your choice. You will need to provide him the name of the doctor of your choice. In either case, your current doctor should refer you to the new doctor. 

12. How much does it cost hire an attorney?

Attorneys are paid both fees and costs. Fees are for the time the attorney works on your matter. You will only be charged a fee if a recovery is made for you. The State sets the maximum rate an attorney can charge for fees. The current rate is 20% of non-medical benefits recovered due to the attorney’s efforts. The WC division may allow an attorney to charge 20% on medical benefits in special circumstances. 

Costs are for expenses incurred in getting your matter ready for hearing such as obtaining medical records and reports, hiring a vocational expert, and other out of pocket expenses. Most attorneys pay these costs out of their own pocket and expect to be reimbursed at the end of their representation. Some attorneys request that you pay costs as you go along. The State does not set a limit on costs and you may be responsible for costs even if you lose your claim. 

13. Can I sue my employer for pain and suffering? 

No, Worker’s Compensation is the exclusive remedy for work related injuries. See FAQ 3 for types of benefits. 

14. I was hurt by a machine at work; can I sue the manufacturer of the machine?

You may have a claim against a manufacturer, distributor, or seller of the defective machine. This is a third party claim and considered a product liability case. Product liability falls into three categories: breach of warrant, common law negligence and strict liability. In each category you must establish that the product was defective, the defect existed at the time the manufacturer, distributor, or seller relinquished control, and the injury resulted from the use of the product. See FAQ 14 for more information. 

15. I was driving for work and got into an automobile accident, can I sue the other driver that hit me? 

You may have a claim against the other driver. Like product liability claims, this type of claim is called a “third-party” action. A lawsuit must be started in State or Federal court naming the party that injured you and their insurance company. If recovery of damages is made against the third party, your employer and/or WC insurance carrier may be entitled to repayment of some or all of the benefits it paid out in your WC claim. Repayment is normally made by the third party or their insurance company directly to your employer and/or WC insurance carrier. 

16. Does it matter that my employer was not using safe practices?

Yes, you may be eligible for a fifteen percent (15%) penalty payment based upon the primary compensation paid but it will not to be more than $15,000.00. The Department of Workforce Development’s Safety and Buildings Division investigates industrial injuries that were caused by safety violations. After the investigation the DWD will issue a report that will state if it found a violation occurred. OSHA may provide documentation relating to the safety violation. 

17. Can my employer fire me because of my work related injury?

Your employer cannot fire you because of your work related injury unless you are not able to do the essential functions of the job after you have reached your healing plateau or maximum medical intervention. Your healing plateau or maximum medical intervention does not mean you are back to 100% but just that there is nothing more the medical community can do for you and that you are the best you are going to be. The termination of your employment may give rise to a separate legal action under WC law.

If your employer does not have work for you during your healing period within your limitations or you are unable to work, you need to keep your employer abreast of your condition and ability to work periodically (about once per week if the employer does not have a specific policy). Once you are released by your doctor to return to work, it may be beneficial to send a registered letter stating that you can come back to work and what your permanent limitations are, if any. The employer must then make a good faith effort to rehire you.

18. Can my employer make me work outside my work restrictions?

No, your employer cannot make you work outside your work restrictions. You should provide a copy of your work restrictions to your employer and, at work, carry a copy with you at all times. If a supervisor asks you to work outside your restrictions; you can, in a non threatening manner, inform the supervisor of your restrictions and show your copy of your work restrictions to the supervisor. Inform the supervisor whom you provided a copy to so the supervisor knows who to contact for a copy. If the supervisor continues to demand that you work outside your restrictions after you have inform the supervisor of them, do not argue but inform the supervisor that you need to speak to the human resource department or a union steward. If there is no human resource department or union steward, follow the company’s policy for filing a complaint.

Some employers have very strict rules regarding working outside your restrictions and it could be grounds for termination if you do so. Employers have been know to demand employees work outside their restrictions and then fire the person for doing so. This is not acceptable behavior and may be grounds for separate legal action.

Employers can require that you work within your work restrictions at other positions at your place of employment. The jobs assigned within your limitation may be structured to be boring and demeaning but as long as they do not exceed your work restrictions are legal.

19. I want to quit my job but have not reached my healing plateau or maximum medical intervention, should I? 

In general it is a bad idea to quit your job if your Worker’s Compensation case is pending or you have been denied benefits. If available, you may need to take Family and Medical Leave or some other type of leave to protect your job until you can return to work. You may lose out on benefits such as temporary total disability if you quit. If your work conditions are terrible, speak to a WC attorney immediately.

20. My employer did not report the injury to the WC insurance company, what should I do?

Ask your employer who the WC insurance company is and report the injury yourself. If the employer refuses to provide the information to you, contact the Department of Workforce Development’s Worker’s Compensation Division and inform them of your situation. Or you may contact a WC attorney who may be able to help.

You may be eligible for a separate legal action of malice or bad faith if your employer refuses to file a claim. You must prove that there is the absence of a reasonable basis for not reporting the injury and the employer knew of the injury. Damages for failure to report an injury may not exceed 200% of compensation due or $30,000.00, which ever is less.

21. Does my employer have to carry WC insurance?

Most likely, yes. The majority of employers in Wisconsin are subject to the WC act. Employers must carry WC insurance if they employ three (3) or more persons full or part time or if the employer has one (1) or more employees with a gross combined wages of $500.00 or more in a calendar quarter. 

There are special rules for farm labor, domestic servants, and independent contractors. Contact a WC attorney to see if your employer is required to carry WC insurance if you are in one of these categories.

22. The WC insurance company has not paid or is slow paying the medical bills, what should I do? 

Immediately contact the DWD-WCD or your WC attorney so she can contact the DWD-WCD. The DWD-WCD will investigate a delay in payment and if the insurance company fails to provide reasonable excuse, the DWD-WCD will insist on a 10% penalty.

23. My doctor has returned me to work, but I feel cannot do the job any more, what should I do?

You should follow your doctor’s advice and try to go back to your job. The more you make a good faith effort to go back to work and keep a positive attitude, the better it is for your Worker’s Compensation claim. If you experience pain at work immediately inform your supervisor and make an appointment to see your doctor.

24. I can no longer work; can I receive SSDI and WC?

Yes, but here may be an off set between your WC benefits and SSDI benefit.

* DISCLAIMER: All answers to frequently asked questions are hypothetical and provided for informational purpose only. The answers are neither intended to be nor are they legal advice. Changes in the law may affect the answers and your rights. Please contact a Worker’s Compensation attorney at Olson, Kulkoski, Galloway & Vesely, S.C. regarding changes in the law. Olson, Kulkoski, Galloway & Vesely, S.C. is not liable for any errors or inaccuracies contained in the answers or any actions taken in reliance on the answers.