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February 2016 Archives

Statute of Limitation? How Long to File a Workers Comp Claim?

The workers compensation statute of limitation (SOL) in Wisconsin, states an injured worker is unable to proceed against the employer and insurance carrier if an application for hearing is not filed within 12 years from the date of injury, death, or the last payment of compensation (not medical bills). Wis. Stat. § 102.17(4).   For death benefits, under Wisconsin Statutes Sec. 102.46 , the 12-year statute of limitation begins to run at the date of the worker's death and not at the date of injury.  For traumatic injuries, meaning a single accident as opposed to job duties over time, the 12 years is reduced to 6 years starting with injuries occurring after February 2016.

Negligent For Being There in a Car Accident?

Am I negligent for being there in a car accident?  This is a question people have especially after the insurance adjuster tells you the insurance company is reducing your property damage or personal injury recovery be a percentage because you are at fault just for being there.  This is not correct.  There is no law in Wisconsin that says a driver is negligent or partly responsible for an auto accident just for being there.

Facet Joint Pain

The facet joint, also called the zygapophysial joint, is often involved in an automobile accident or work injury.  Facet joints are the articulating or moving connections between the vertebrae in our spine.  Facet joint pain is generally localized to the affected area, whether in the neck (cervical spine) or the low back (lumbar spine).  The pain does not radiate down the arm or leg because a nerve root is not directly involved.  Of course, facet joint degeneration or arthritis can advance to where it implicates a nerve root and radicular pain would ensue.

Workers Compensation Permanent Partial Disability Benefits

In Wisconsin PPD or permanent partial disability benefits are paid an injured employee when he or she reaches the end of healing and the doctor states there is a permanent work-related injury.  The end of healing period is the time when, as stated in Larsen Co. v. Industrial Commission, 9 Wis. 2d 386 (1960), "[a]n employee's disability is no longer temporary when the point is reached that there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence."  The end of healing is when the condition has become stationary.

Car Accident Neck Pain

Car accident neck pain is caused by the sudden extension of the cervical spine (backward movement of the neck) and flexion (forward movement of the neck). This type of trauma is also referred to as a cervical acceleration-deceleration (CAD) injury or whiplash injury. Rear-end or side-impact motor vehicle collisions are the number one cause of whiplash with injury to the muscles, ligaments, tendons, joints, and discs of the cervical spine.

Workers Comp Benefits Temporary Total Disability

In Wisconsin workers comp benefits called TTD or temporary total disability benefits are paid an injured employee while he or she is in the healing period.  The healing period is the time while an injured worker is both convalescing from the injury and submitting to active treatment; it is the time before the medical condition becomes stationary.

Workers Comp Healing Period Wage Loss Payments

Workers comp healing period wage loss payments are made while the injured worker is unable to work due to a work-related injury or condition and is in his or her healing period.  Healing period is not defined in the statutes, but the courts explained it to mean "the period prior to the time when the condition becomes stationary." Knobbe v. Industrial Comm'n, 208 Wis. 185 (1932). The court explained that during that period, "the employee is submitting to treatment, is convalescing, still suffering from his injury, and unable to work because of the accident. The interval may continue until the employee is restored so far as the permanent character of his injuries will permit."  The court later explained in Larsen Co. v. Industrial Commission, 9 Wis. 2d 386 (1960), "[a]n employee's disability is no longer temporary when the point is reached that there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence." The phrase reaching a plateau is often used to mean that the employee is coming to the end of the healing period.

Car Accident Aggravated Pre-Existing Condition

In Wisconsin, aggravated pre-existing conditions in automobile accidents are covered by insurance.  Wisconsin personal injury law follows the traditional eggshell-skull or take your victim as you find him rule of the common law. Anderson v. Milwaukee Ins., 161 Wis. 2d 766 (Ct. App. 1991)  The negligent driver is responsible for damages he caused by aggravating a pre-existing condition.

Workers Compensation Lumbar Fusion Spine

Workers compensation posterior lumbar fusion is the most common type of fusion surgery for the low back. A fusion is a surgical procedure that joins two vertebrae together into one solid bone. It's called a posterior fusion because the surgeon works on the back side of the spine.

Workers Comp Pain and Suffering in Wisconsin?

There are no workers comp pain and suffering benefits in Wisconsin workers' compensation law.  Wis. Stats. Ch. 102.  The injured employee's exclusive remedy against the employer, co-employees and the worker's compensation insurance company are worker's compensation benefits. Wis. Stat. Sec. 102.03(2).

Car Accident Lost Wages

Car accident lost wages involves several types of automobile collision settlement money.  Injured drivers or passengers are entitled to past wage loss and future loss of earnings due to the accident. The courts have described it as lost time, lost wages, or loss of earnings. Future lost wages is often called loss of earning capacity.

Antonin Scalia, Great American, Flawed Justice

Setting aside for the moment political and ideological considerations, it is with honor and reverence to note the passing of Justice Antonin Scalia, a Great American who died Saturday after serving on the United States Supreme Court for 30 years.  For better or worse, and often in dissent, Justice Scalia had as large a mark on the court and on American law and politics as any justice since Earl Warren, Charles Evans Hughes and John Marshall.  As a constitutional originalist and a statutory textualist, Justice Scalia opposed much of the social and political progress of the late 20th century.  Ostensibly, Justice Scalia did not believe the constitution is a living document to be interpreted in the context of current times.  He felt that if it needed updated to accommodate modern thinking or even technology, that it should be amended by the representatives of the people.  Unfortunately, Justice Scalia's legal decisions had cold, hard consequences for too many people, and this is despite the fact that personally he was a warm, caring and gregarious human being - close friends with his ideological opposite, the notorious RGB, Justice Ruth Bader Ginsburg. But its not that simple.  As with most people, Justice Scalia did let his values infuse his decisions.  He used his originalist methodology as a shield which he could deftly drop in order to launch an argument that suited his conservative philosophy.  A flawed, but Great American, perhaps he could have rounded his rough edges if he had real world experience representing living, breathing clients with real legal problems.

Workers Compensation Laminectomy Lumbar Spine

Workers compensation lumbar laminectomy is a surgical procedure to relieve pressure on the spinal nerves. Degeneration, or wear and tear, in the parts of the spine from job duties over time may narrow the spinal canal. This puts pressure on the nerves in the canal. This condition is called spinal stenosis. A laminectomy involves removing a section of the bony covering over the back of the spinal canal taking pressure off the spinal nerves.

Does Workers Comp Pay for Medical Bills

Workers comp pays for medical bills in Wisconsin under Wisconsin Statutes Sec. 102.42 "as may be reasonably required to cure and relieve from the effects of the injury" whether medical, surgical, chiropractic, psychological, podiatric, dental or hospital treatment, including treatment by physician assistants and advanced practice nurse prescribers.  If the workers' compensation insurance company denies treatment, the injured employee must prove the work-relatedness of the treatment by expert medical testimony. Wisconsin Tel. Co. v. Industrial Comm'n, 263 Wis. 380 (1953).

Car Accident Medical Bills

In Wisconsin, car accident medical bills may include all accident related medical, hospital, and related expenses.  The accident settlement should include all past medical bills incurred from the date of the injury to the date of the settlement and any future medical bills that will be incurred after the date of settlement.  Any past or future medical bills must be reasonably and necessarily incurred as a result of the car accident or automobile collision.  Leitinger v. DBart, Inc., 2007 WI 84, ¶ 51, 302 Wis. 2d 110.

Workers Comp Lumbar Discectomy

Lumbar discectomy is a surgical procedure to remove part of a problem disc in the low back. The discs are the pads that separate the vertebrae. This procedure is commonly used when a herniated, or ruptured, disc in the low back is putting pressure on a nerve root.

Personal Injury Pain and Suffering

Pain and suffering are one of the three types of damages available in personal injury or automobile accident cases, but are very difficult to define.  Pain and suffering is unitary concept for which a plaintiff may recover for physical pain and for fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal. It has also been said that the term "pain and suffering" covers disfigurement and deformity, depression due to inability to work or labor, anxiety or worry proximately attributable to an injury, and mental distress caused by impairment of the enjoyment of life. Pain and suffering need not be physical but may be psychological as well.  Of course, the judge or jury has to be convinced by the burden of proof that the pain and suffering is real.

Workers Comp Lumbar Fusion

Workers comp lumbar fusion treats disc herniation, which occurs when the nucleus in the center of the disc pushes out of its normal space. The nucleus presses against the annulus, causing the disc to bulge outward. Sometimes the nucleus herniates completely through the annulus and squeezes out of the disc.  This happens with a single lifting incident at work, often following years of repetitive job duties of lifting, twisting and turning.

Can I Get Workers Comp Benefits and Social Security Disability

Yes, an injured worker can receive both workers compensation benefits and social security disability benefits, but there is an offset of the workers comp benefits in Wisconsin.  In some states, the SSD is reduced not the workers comp, but every state has a reduction of one or the other.  Under Wisconsin Statutes Sec. 102.44, workers comp benefits are reduced when the combined worker's compensation and Social Security Disability Income (SSDI) benefits exceed 80% of the employee's average current earnings (ACE) as determined by the Social Security Administration.  This ACE calculation is recalculated upward on January 1 of the third year following entitlement to SSDI and every three years thereafter. Indexing greatly diminishes the offset and typically eliminates it after six to nine years.

Personal Injury Damages and Public Policy

Once liability for personal injury damages is established, the court must determine as a matter of public policy whether to impose liability.  This public-policy consideration can insulate a defendant from liability, even when that defendant's conduct was a substantial factor in causing the harm, if the liability would shock the conscience of society.

Workers Comp for Herniated Disc

What is workers compensation herniated disc in the lumbar spine?  Although people often refer to a disc herniation as a slipped disc, the disc doesn't actually slip out of place. Rather, the term herniation means that the material at the center of the disc has squeezed out of its normal space.  Lumbar or low back herniated disc injuries are common in workers who do physical jobs.

Hurt on the Job, Can I Sue My Employer

You cannot sue your employer for getting hurt on the job in Wisconsin.  Workers compensation is the only recovery against the employer.  However, you may have what's called a third-party case against any other person (the third-party) who contributed to your injury, such as a landlord, maintenance company, general contractor, subcontractor, machine manufacturer or anyone else who is not your employer.

What is My Accident Claim Worth?

Your accident claim in Wisconsin is for compensatory damages, which is money to compensate an injured party for the injuries sustained and to make good or replace the loss caused by the negligent driver.  Compensatory damages are what a jury awards for the losses.  Cases settle based on what the defendant insurance company and the injured person's attorney believe a jury would do under the circumstances.

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