Generally, in Wisconsin, when it comes to workers compensation injury claims, the concept of fault is not relevant, meaning if an employee clumsily trips over a box on the floor and blows out their knee, workers compensation benefits cannot be denied because they were negligent. Yet, there is a category of claims in workers compensation where the concept of “fault” is punishable and that is with Penalty Claims against employers and insurance carriers under Chapter 102.
Client R.S. hired Mays Law Office to represent him in the recovery of workers compensation benefits due to a work injury to his shoulder that occurred in January 2022 while working for a home food delivery service. Attorney Pierobon Mays litigated the claim and it successfully settled. With this, the parties entered into a written Compromise Agreement under Wisconsin Chapter 102 which governs workers compensation claims and benefits in Wisconsin. The assigned judge approved the Agreement and issued an Order dated June 15, 2023. Under Wisconsin law, the workers compensation insurance carrier has 21 days to issue payment to the injured worker. Meaning, the check must be dropped in the mail by Day 21, which in this case was July 5, 2023. Payment of the monies set forth in the June 15, 2023 Order was not received by R.S. within the 21 days prescribed in the Order. Always advocating for her clients, Attorney Lisa Pierobon Mays filed two penalty claims on behalf of Client R.S. The first was Delay in Payment which under Wisconsin Statute 102.22 reads:
If any sum that the department or the division (Office of Worker’s Compensation Hearings) orders to be paid is NOT PAID WHEN DUE, that sum shall bear interest at the rate of 10%
In addition, Attorney Pierobon Mays also filed for Bad Faith which under Wisconsin Statute sec. 102.18 reads in relevant part:
If the division determines that the insurance carrier failed to make payments as a result of malice or bad faith. The division may include a penalty in an award to an employee for each event or occurrence of malice or bad faith. The division may award an amount that the division considers just, not to exceed the lesser of 200 percent of total compensation due or $30,000 for each event or occurrence of malice or bad faith.
Attorney Lisa Pierobon Mays alleged both Bad Faith and Delay In Payment due to the workers compensation carrier’s failure to timely pay the monies per the Order of June 15, 2023. Remember, payment was due to be issued no later than July 5, 2023 but the insurance carrier did not issue payment until July 14, 2023 – 10 days past the 21-day deadline, which only occurred because Attorney Pierobon Mays hounded the insurance carrier for payment. What angered Attorney Pierobon Mays was the fact that the Attorney for the workers compensation carrier received the issued Order in plenty of time for payment to be made. Attorney Lisa Pierobon Mays even sent a courtesy reminder e-mail prior to the deadline reminding him of such Order and encouraged communication of the deadline by him to his client! Yet, to Attorney Pierobon Mays’ dismay, the check was still not issued timely, and more time passed despite Attorney Pierobon Mays inquiring as to the late issuance of them. To date, the only explanation that has ever been provided by opposing counsel was that R.S’s file was transferred from one office to another office, which might have caused the delay but such is unknown.
Ultimately, the workers compensation carrier knew they were in a no-win situation by being hit with both penalty claims and needed to save face with the Division for their bad behavior, so they conceded (waved the white flag) and accepted responsibility for the Delay in Payment Penalty of 10% for the amounts owed under the Order to R.S.
While this was good for R.S, Attorney Pierobon Mays was not going to take her foot off the insurance company’s neck. She demanded more for R.S. under the second penalty claim, Bad Faith. In Wisconsin, Bad Faith will be found when the insurance carrier lacks a reasonable basis for the suspension/delay of benefits. Meaning administrative mistakes can be made and forgiven without penalty, but there must be some credible evidence in favor of giving an insurance company the benefit of the doubt in their error. Attorney Pierobon Mays needed to demonstrate that the insurance carrier acted with an absence of honest, intelligent action or consideration based upon a knowledge of the facts and circumstances. So bad faith cannot be unintentional.
In this case, considering the facts and circumstances, the worker’s compensation carrier was represented by competent legal counsel who had timely written notice of the dated Order. In addition, Attorney Pierobon Mays even communicated the on-coming deadline with their legal counsel. Claiming an absence of an honest intelligent error on the part of the insurance carrier was not likely where they had an attorney advising them.
Ultimately, the worker’s compensation carrier decided to settle the Bad Faith Penalty claim rather than pay on-going legal fees to its legal counsel to fight a losing claim that could cost them as much as $30,000. Attorney Lisa Pierobon Mays encouraged Client R.S. to accept the settlement, who was pleased considering he was only delayed his original monies by 10 days. Moreover, he did not incur any financial hardship over the 10-day delay. The expression “a bird in the hand is better than one in the bush” rings true as litigation can take months to resolve, and it can never be predicted what a Judge might do at a hearing with an insurance company claiming all sorts of reasons for an honest error.
Mays Law Office never stops advocating for their clients. Attorney Lisa Pierobon Mays is involved from the first to the last phone call. She knows the law and holds the workers compensation insurance carrier to it. She has no fear when it comes to holding insurance companies accountable to her client’s. Perhaps this is another reason why Mays Law Office has a 5-Star rating with their clients for satisfaction of representation. If you feel that you have been unfairly treated in the timeliness and recovery of benefits, then call Mays Law Office. Attorney Lisa Pierobon Mays will speak directly to you and is happy to offer a free consultation to answer all of your questions and review your workers compensation injury claim.