Settling a Wisconsin workers compensation claim is complicated and an injured worker should only do so knowing all the issues. This is not an exhaustive list, but here are seven basic topics a worker should be considering before signing away his or her workers comp rights.
For a workers compensation claim is at the time of the injury, the employee is performing service growing out of and incidental to his or her employment.
In Wisconsin, the elements of a workers compensation claim are listed in Wis. Stats. Sec. 102.03, which provides that liability for worker's compensation exists under the Act only when the following conditions occur:
Workers compensation laws were passed to provide a relatively quick and sure remedy for employees hurt on job in the innovative but dangerous employment conditions wrought by the industrial revolution. Employees did not have to prove negligence, just causation. In return, this grand bargain immunized employers from tort liability to employees in almost all contexts. In addition, while worker's compensation benefits offered medical treatment the wage replacement benefits are limited and there is no noneconomic or pain and suffering compensation.
Workers Compensation started in 1911, when Wisconsin became the first state in the nation to pass a broad, constitutionally valid worker's compensation law. In finding the workers' compensation act constitutional, Wisconsin Supreme Court Chief Justice Winslow explained the motivation behind the law:
In Wisconsin, workers compensation covers two specific categories of losses to an employee. Under Wis. Stats. Sec. 102.01(2)(c) in order to receive worker's compensation benefits, an employee must sustain an injury, a mental or physical harm to an employee caused by a single traumatic accident or an occupational disease over time. Claims for mental or psychological injuries based on stress without physical injury are very limited.
Whether workers compensation can contact your doctor is complicated. Short answer, before the workers compensation company hires its own attorney to defend the claim, the claims adjuster or the nurse case manager can try to talk to the injured worker's doctor about the medical diagnosis and treatment. The doctor does not have to speak to the insurer people, but as a practical matter, most do. It is unclear if the health care providers feel an obligation to do so since the workers compensation insurer is paying their bills, but occasionally they do it before a claim is decided or even in denied claims. In Wisconsin, most workers compensation insurance companies take the position that Wis. Stats. Sec. 102.13 obviates the physician-patient privilege. Another view is that Sec. 102.13 only lets down the privilege "to any condition or complaint reasonably related to the condition for which the employee claims compensation" and engaging the doctor in conversation or even answering written questions may stray afield of such matters. Most adjusters do not interfere with the treatment and are satisfied with access to medical records. The adjusters or nurse case managers who engage the doctor most likely do so to influence the doctor's opinions on causation or extent of disability. Most worker's compensation adjusters and nurse case managers would take issue with this characterization.
Under Wisconsin workers compensation law, last time we talked about who is an employer; today we cover who is an employee under Wis. Stats. Ch. 102. Under Wis. Stats. Sec. 102.07, the following are some of the employees are covered:
For a work injury to be covered by workers compensation, both the injured employee and the employer must be subject to Wisconsin's Worker's Compensation Act, chapter 102 of the Wisconsin Statutes. Then benefits for missed time, temporary total disability, and permanent injury, permanent partial or total disability benefits are payable.
In Wisconsin, workers compensation benefits are paid for an injury or condition only when the following conditions occur, as defined by Wisconsin Statutes Chapter 102: