The recovery of workers compensation benefits in Wisconsin protects employees who suffer injuries on the job. The system is intended to ensure that an injured worker will receive necessary medical treatment and wage replacement benefits. Unfortunately, many Wisconsin injured workers fail to file injury claims due to widespread misconceptions which can result in injured workers missing out on essential benefits they are legally entitled to. In this article, Attorney Lisa Pierobon Mays will debunk most of the misconceptions surrounding workers compensation in Wisconsin and clarify what the injured worker needs to know.
Misconception #1: If the Injury Was My Fault, I Can’t Get Workers Compensation
One of the biggest misconceptions about workers compensation is that an injured Wisconsin worker cannot receive benefits if they were responsible or “at fault” for their injury. Unlike personal injury claims, Wisconsin’s workers compensation system is No-Fault. Injured workers can still get a remedy (through the payment of benefits) without concern of fault. Monetary benefits are still available regardless of who caused the accident. There are, of course, exceptions, such as injuries that occur due to intentional self-harm or injuries caused by intoxication or drug use. In essence, an injured worker can be distracted by their phone, slip and fall because they did not see a puddle of spilled oil on the floor and still recover workers compensation benefits for their injuries that stemmed from the slip and fall.
Misconception #2: I Can’t File a Workers Comp Claim If My Employer Wasn’t Negligent
Many workers think that they must prove their employer was at fault to receive benefits. This is not the case in Wisconsin. Our workers compensation laws do not require an employee to prove employer negligence to recover benefits. Again, whether the injury resulted from employer negligence, a coworker’s actions, or the worker’s own mistake, the worker is still eligible for benefits. Think of it as social insurance which attempts to maintain employer-employee relations. The concept of negligence by both employers and employee plays no part in our Wisconsin workers compensation system. A Wisconsin injured worker is precluded from bringing a separate tort claim against their employer and co-employees. Many injured workers really struggle with this reality because they want the employer punished with a multi-million punitive dollar lawsuit for allowing or causing the worker to be injured. In worker compensation, it is the insurance carrier, not the employer, who plays the central role in the workers compensation claim.
Misconception #3: Workers Compensation Covers Only Major Injuries
Some Wisconsin workers think that only severe injuries, such as broken bones or traumatic injuries, qualify for workers compensation benefit. This is not true. Wisconsin workers compensation covers a wide range of injuries from head to toe, including repetitive stress injuries (such as carpal tunnel syndrome), back strains, cuts and amputations, and occupational illnesses, such as breathing disorders. Any injury that affects an employee’s ability to work may be entitled to benefits.
It is true, however, that smaller work injuries, if denied by the carrier for benefits, are difficult for the injured worker to find an attorney interested in representing them. Why? Consider a hernia injury. It costs thousands of dollars to surgically repair a hernia, but once the surgery is done the worker is generally back to 100%. Under the Wisconsin Workers Compensation Act, an attorney is not allowed to take more than a 20% fee on the recovery of benefits which EXCLUDES the recovery of any medical expenses. So, what is left when the surgery is 100% successful and the injured worker only lost one or two weeks of work? A 20% attorney fee on $1000 of lost wages makes it difficult for the injured worker to find an attorney willing to take on their claim. Attorney Lisa Pierobon Mays continues to challenge this scenario with the Wisconsin Workers Compensation Advisory Board as the reality of our current law is absolutely devastating for injured workers who only have medical expenses at issue.
Misconception #4: I Will Lose My Job If I File a Workers Compensation Claim
Fear of retaliation prevents many injured workers from filing claims. Attorney Lisa Pierobon Mays hears stories from injured workers that they have witnessed other co-workers being harassed, ridiculed, punished, and ostracized not just by their employer, but their fellow co-workers for seeking workers compensation benefits. This is truly unfortunate. Wisconsin law prohibits employers from retaliating against employees for filing a legitimate workers compensation claim. If an employer retaliates against an injured worker, legal action can be taken against them through the Wisconsin Department of Workforce Development (DWD). However, to be successful, the injured worker needs to thoroughly document such conduct, perhaps by audio recording harassing comments and discussions, especially with supervisors and management. Also pictures of any documentation or overt behavior that can be memorialized is powerful evidence against the employer. Otherwise, such conduct becomes a “he-said, she-said” situation if not preserved.
Misconception #5: I Can’t Choose My Own Doctor
When an injury occurs, many workers experience their medical treatment being directed by their employer. There are on-site or near-site employer medical clinics, such as Concentra, Access, DISA Global Solutions, Bellin Health, associated with the employer and its workers compensation insurance carrier. The employer, insurance carrier, and clinic have a relationship previously established that is not necessarily impartial in treating the injured worker. Often, these clinics try to return the injured worker back to work as soon as possible in order to keep the lost time benefit (called TTD) minimal. However, returning an injured worker back to work too soon can be detrimental to their healing. Under Wisconsin law, sec. 102.42(1), injured workers have their choice of treating doctors. If an employer or insurer tries to restrict this right, the worker can challenge it.
Misconception #6: I Have to Be Injured at the Workplace to Qualify for Benefits
As we know from post-Covid, many Wisconsin employees are permitted to work off-site. With this, not all work-related injuries happen at the office, warehouse, or job site. If a Wisconsin employee is injured while performing work-related duties—such as making deliveries, traveling for work, working at home, or attending a social company event—the injury may still be covered under Wisconsin workers compensation. Compensation is factually driven for injuries sustained during a regular commute to and from work (which are generally not covered) where the worker was performing a work-related task at the time of the commute, such as running an errand for the employer.
Misconception #7: Filing a Claim Means Suing My Employer
Many workers wrongly think that filing a workers compensation claim means that they are suing their employer. With this misconception, some injured workers fear that they are getting their employer in trouble if they file a workers compensation claim. Moreover, some employers will take advantage of this misconception to dissuade their employees from filing the claim. In Wisconsin, workers compensation is an insurance system designed to provide benefits without litigation. By filing a claim, an employee is not suing their employer but simply accessing benefits provided by the employer’s insurance policy. In Wisconsin, businesses are required to have workers compensation insurance. Attorney Lisa Pierobon Mays tells injured workers to think of it like any other insurance claim, such as car insurance. Consider if your friend smashes into your car, most people will not think twice about filing the damage claim against their friend’s insurance company.
Misconception #8: Workers Compensation Benefits Last Forever
While some work injuries may lead to long-term benefits, the Wisconsin Workers Compensation System was not designed to compensate the injured for the true value of their financial and personal loss. Instead, it was generally designed to provide basic or temporary relief until the employee can return to work. The length of benefits depends on the severity of the injury, the employee’s recovery progress, and whether they can return to their previous job or need vocational rehabilitation. The basic benefits available under the Wisconsin workers compensation system includes temporary total disability (TTD), medical expense and mileage reimbursement, and permanent partial disability. In fatal cases, benefits are recovered by the deceased workers’ spouse and minors, along with funeral expenses.
Misconception #9: If My Claim Was Denied, I Have No Other Options
Way too many injured workers think that if their workers compensation is denied then all is lost. Absolutely not! Workers compensation insurance carriers expect that a fair number of injured workers whose claim is denied will be intimidated and walk away from pursuing benefits. Sadly, many do! Many legitimate claims are initially denied due to paperwork errors, missing documentation, discrepancies in medical records, and insurance company tactics. Insurance companies are looking for reasons to deny work injury claims. Injured workers in Wisconsin have the right to appeal a denial through the Wisconsin DWD. A workers compensation attorney, like Atty. Lisa Pierobon Mays, can assist in ensuring that the claim is being fairly handled. Never accept that the denial of your work injury claim is correct. At the very least, call Attorney Lisa Pierobon Mays for a free consultation.
Misconception #10: Workers Compensation Only Covers Medical Bills
While medical expenses are a major component of workers compensation, benefits often extend beyond just covering medical bills. Wisconsin workers compensation may also include wage replacement benefits for lost income, disability benefits if the employee is unable to work, and vocational retraining programs for employees who can no longer perform their previous job.
Misconception #11: If I Work a Desk Job, I Can’t Qualify for Workers Compensation
Many people associate workplace injuries with physical labor jobs, such as construction or manufacturing. However, even office workers can suffer injuries that qualify for workers compensation, such as repetitive motion injuries, back pain from prolonged sitting, and slip-and-fall accidents. For instance, Attorney Lisa Pierobon Mays recovered workers compensation benefits for a data processor who suffered from carpal tunnel syndrome in both hands requiring surgery, substantial lost time from work, and medical treatment expense.
Misconception #12: I Can Wait to Report My Injury
Some injured workers delay in reporting their injury because they believe they have plenty of time or think the injury will heal on its own. While Wisconsin does not have a set deadline to report a work injury to the employer, it is advisable to give notice within 30 days. In the case of an occupational disease, like repeated exposure to harmful substances which cause an injury, it is still possible to give notice anytime within two years of the date the injury occurred, the onset of the disease, or the date the injured worker first realized that such injury or disease was caused by his or her work. Failing to report an injury timely can jeopardize a claim, making it crucial for workers to notify their employer as soon as possible. Insurance carriers are dubious of claims that are not timely filed and will likely be denied. A Wisconsin injured worker should never be talked into waiting to complete an Incident Report of Work Injury to their employer. Moreover, take a picture on your phone of the completed Incident Report for your records and preservation.
Misconception #13: Independent Contractors Can’t Get Workers Compensation
While it is true that independent contractors generally do not qualify for traditional Wisconsin workers compensation benefits, some workers classified as independent contractors may be misclassified as such. It is tempting for employers to describe an employee as an “independent contractor” to avoid premiums for workers, unemployment compensation, and Social Security taxes
In Wisconsin, under sec. 102.07(8) there is a nine-factor test for determining independent contractor status for workers performing services for employers. All nine requirements must be met in order to be deemed an independent contractor so it’s worth consulting with a legal professional to determine eligibility.
Misconception #14: If I Return to Work, My Case Is Over
When an injured worker returns to work, it does not necessarily mean that their workers compensation case is closed. If the injured worker continues to require medical treatment or experiences complications from the injury, they are still entitled to benefits.
In some cases, injured workers return to light-duty or part-time modified work while continuing to receive partial benefits (called TPD). An injured worker will always be entitled to medical mileage reimbursement (.51 cents/mile) for therapy, doctor appointments, and pharmaceutical prescription pick-ups. Injured workers that reach a point of healing (called a “Healing Plateau”), even if they were returned to work with or without restrictions, may have a permanent disability which will give rise to permanency benefits, called permanent partial disability (PPD). This rating is assessed by the treating practitioner and the percentage of disability will equate to a particular sum of money.
Misinformation and misconceptions about workers compensation prevents way too many injured workers from seeking the benefits they deserve. Understanding the truth behind these common misunderstandings empowers workers to take the right steps after a workplace injury.
If you have suffered a work-related injury in Wisconsin, it is important to seek legal advice to ensure that your rights are protected. Mays Law Office offers free consultations and Attorney Lisa Pierobon Mays talks to every injured worker who calls her office. Mays Law Office has the authentic Google 5 Star Rating for client satisfaction. Don’t let misconceptions keep you from getting the benefits you are entitled to under the law.
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