Sometimes a claim for workers’ compensation in Wisconsin goes smoothly – a relatively minor injury or ailment in which employer signs off on necessary and reasonable medical payments and requested wage loss reimbursements — and the employee returns to work soon thereafter.
However, as our workers’ compensation attorneys in Hayward and Winter know happens far too often, disputes can arise that necessitate a more complex process to secure benefits rightfully owed. This can include dispute claim hearings and appeals. A work injury lawyer should be involved to help you gather the appropriate evidence and prepare to fight a workers’ compensation dispute. When contacted soon after a work injury, an experienced law firm can often make the process proceed more quickly, and can help victims avoid common errors and omissions that typically result in delays and denials.
Although Wisconsin workers’ compensation is an expressly no-fault system (meaning you don’t have to prove your employer was negligent or that you weren’t comparative negligent), workers’ compensation denials are most commonly based on some of the following grounds:
- Worker is not an employee, as defined in Wis. Stat. §102.07, but rather an independent contractor, as outlined in Wis. Stat.§ 102.07(8), as well as in the nine-part test explained by the state Department of Workforce Development.
- Injury or illness does not meet the criteria outlined for eligibility in Wis. Stat. §102.03 because, employer argues, worker was not performing a service growing out of and incidental to his/ her employment (it wasn’t work-related). This could mean, for instance, that the injury was incurred while employee was commuting (specifically excluded for coverage except in limited circumstances) or on a personal errand (i.e., lunch), or that the injury was personally self-inflicted. (Note: employees attending to personal needs during the workday, such as using the restroom or smoking, are generally covered by workers’ compensation.)
- Injury was not related to specific work accident, but in fact was a pre-existing disability/ condition that was not accelerated by this new incident, as outlined in Wis. Stat. § 102.59.
- Injury was not as severe/ require the benefits requested or as indicated necessary by claimant’s physician.
- Claimant in workers’ compensation death benefit claim is not eligible to receive benefits having not been closely-enough related or dependent upon the victim.
- Claim is time-barred, either because worker failed to give initial timely notice of a work injury or because the worker failed to file the claim within the statutory limit of 6 years for traumatic injuries or 12 years for occupational disease. (In cases where a claim is solely barred by the statute of limitations, Wis. Stat. § 102.66 may still allow for some supplemental payments.)
In addition to these, disputes can also arise after benefits have been awarded, when an employer moves for a finding of maximum medical improvement (the point at which employee’s injury won’t improve and the claim moves from temporary to permanent benefits), denial of payment for a certain requested treatment, or an ending of benefits on the grounds treatment is no longer medically necessitated. Employer may also challenge a full benefits award.
Our workers compensation attorneys in Wisconsin know the tactics used to reduce benefits or eliminate them entirely, and we know the strategies most effective in countering such challenges.
If a dispute in a workers’ compensation claim does arise, both sides may want to do what they can to avoid a lengthier/ more expensive hearing and appeal process. In those cases, one may opt for a stipulation of fact agreement or compromise agreement.
A stipulation agreement can be attained after denial. This is when an insurer may agree to pay for part of the claims in dispute (i.e., medical bills or temporary total disability) but the rest remains open for further dispute. Workers won’t be able to pursue further claims on the issues outlined in the stipulation, but they will be able to pursue additional claims later, so long as such claims fall within the statute of limitations.
A compromise settlement, as outlined by the DWD, is one that partially or completely closes the workers’ claim for injuries. (Compromise settlements are considered final, so you’ll have trouble re-opening them unless you can show fraud, duress, mutual mistake, important new evidence or inequity.) These often take a longer time for approval because administrative law judges often aren’t convinced of all relevant evidence. Sometimes there is a limited compromise agreement on a single issue, such as future medical bills. In most cases, a claim closed by compromise and release can’t be reopened later.
Process of Disputed Claims
Disputed claims are those that happen when a worker or surviving spouse/ dependent believes they should receive workers’ compensation, but the employer/ insurer denies liability to pay the claim.
In some cases, the insurer/ employer may be grasping at straws not to have to pay a claim (particularly a substantial one), but some cases do stem from an honest difference of opinion where there is conflict in witness accounts or physician medical testimony. Absent a stipulation or compromise agreement, the claim will then be weighed by a workers’ compensation administrative law judge.
The ALJ’s duty is to resolve the dispute by weighing pertinent facts (i.e., testimony of all parties, medical reports, patient testimony, other evidence). More often than not, the insurer/ employer will retain an expert witness (which generally means it’s a good idea to retain one of your own to counter that expert’s opinion). It’s also almost unheard of for workers’ compensation insurers or employers to represent themselves in the ALJ hearing. You should follow suit and protect yourself with the aid of a Wisconsin workers’ compensation lawyer. (Most workers are represented by legal counsel. Workers’ compensation attorneys representing an employer in such a hearing are by statute entitled to up to 20 percent the total amount of benefits in dispute, or if no net gain, a maximum $250.)
In most cases, disputes are resolved in a single hearing, the process for which will go much like this:
- Employee/ employer submits an application for hearing with a WKC-7 form.
- The ALJ will respond with a questionnaire to both sides. This is usually filled out by a lawyer. If you are representing yourself, know that the ALJ can’t advise you on how to file that form or act as your legal representative to help you through the process.
- Pre-hearing conference. This is where both parties will informally present the ALJ with the claim. The ALJ will then get both sides to mutually agree to which documents and reports are going to be introduced at the hearing. The ALJ will also do his or her best to try to whittle down the number of issues that are in dispute, if possible getting both sides to reach an agreement at that time of their own accord so the hearing isn’t necessary.
- Hearing date is scheduled. You will be notified at least 10 days in advance of the hearing date. If you aren’t ready, you/ your attorney must notify the division right away. All exhibits, documents, etc. are sworn in and entered formally into the record.
- Physician or other expert medical testimony reports must be submitted 15 days prior to the hearing. Although these professionals can be brought to the hearing to provide testimony, know it may be cost-prohibitive to do so, particularly when a practitioner report in lieu of testimony will suffice. Workers are responsible for paying for their doctor’s appearance – and this isn’t considered part of treatment that can be compensated.
- ALJ Award. Once the ALJ has gathered all relevant facts, a judge may decide to order an exam of physicians unconnected to the case, if necessary. With all information compiled, the ALJ will issue a decision, confirming or denying the claim.
- Appeals may follow. Initial appeals are made to the Labor and Industry Review Commission, with further disputes considered by the Circuit Court, Court of Appeals and finally the Wisconsin Supreme Court.
- Labor and Industry Review Commission (LIRC);
- Circuit Court;
- Court of Appeals; and
- Wisconsin Supreme Court.
Only cases that are exceptional will make it to those higher courts. Having an experienced workers’ compensation attorney is critical to both building a case for benefits to the ALJ judge, and documenting and preserving your rights to appeal.
If you have been notified that your claim for benefits has been denied, you should investigate an appeal. Schedule a free consultation with an attorney at Lein Law Offices by calling our Winter and Hayward workers’ compensation attorneys in Wisconsin toll-free at 1-800-944-3949 or reach out by email. We can advise you of your rights and your options.