WORKERS COMPENSATION ATTORNEY LISA PIEROBON MAYS RECOVERS MONEY FOR PARENTS DUE TO THE DEATH OF THEIR ADULT SON

The New Year started up with a bang for Mays Law Office with a significant settlement for parents, Mr. & Mrs. T, who received a sizable amount due to the death of their 29-year-old son.

Son died in 2022 in a fiery crash while traveling to a worksite.  In Wisconsin, when a death occurs at work, the workers compensation carrier for the employer must pay a death benefit equal to four times the employee’s average annual earning, subject to a maximum amount.  This money is paid to the Dependent(s) of the injured employee who died.  The law is clear, according to Wis. Stat. sec. 102.51(2)(a):

No person shall be considered a dependent unless that person is a spouse, a domestic partner [under Wis. Stat. ch. 77], a divorced spouse who has not remarried, or a lineal descendant, lineal ancestor, brother, sister, or other member of the family, whether by blood or by adoption, of the deceased employee

If Total Dependency cannot be established (often the case seen for parents of adult children), the surviving parent(s), if not estranged from the deceased employee, are automatically entitled to a benefit of at least $6500 Wis. Stat. sec. 102.48(1).  In addition, if the deceased employee contributed at least $500 in support to the parents in the 52 weeks before the death then they also may claim further benefits through either Total or Partial Dependency.

In the matter of Mr. and Mrs. T, their 29-year-old Son passed away at the age of 29 without a wife or child.  At the time of his death, he lived with his parents sleeping in his childhood bedroom to help his parents with the house and Wisconsin family farm.  Son’s help was greatly needed because his father, Mr. T, is an amputee with other ailments and Mrs. T was recovering from cancer.

Son’s contributions to the house and farm were significant.  While he never directly contributed monies to his parents, he contributed by providing machinery, labor, and goods to the house and farm business.  Son was more skilled than most farm laborers, in his ability to weld, farm equipment maintenance, concrete pouring, car maintenance, etc.  His contributions were significant, but never recorded, or itemized with documentation in writing, such as receipts, payments proven by bank account deposits, journaled, or memorialized making their credibility difficult to prove beyond verbal assertions.  However, it was clear that there was some level of dependency Mr. & Mrs. T had on their son in the 52 weeks leading up to his death.

Testimony from several witnesses would have been offered to establish son’s support and efforts in shoveling snow, pressure washing, farm labor, home chores, improvement projects, lawn and field care, and vehicle maintenance.   Son’s contributions to the house and farm were unique and invaluable.  He was literally second hand to Mr. T on the farm, which included skilled tasks, such as concrete pouring, machinery repair, welding, and electrical.  Around the house, he did all the car maintenance, landscaping, Spring and Fall clean-up.  Son also contributed to purchasing tools, equipment, machinery, and a truck to be used on the farm business.  But again, no written documentation could actually prove it, such as in a Leasing Agreement.  The only proof was testimony and receipts of son’s purchases, however the hours that such machinery was used/borrowed by the farm was no more than a best guess estimate so the valuation of such was dubious at best.

Regardless of such proof problems, the workers compensation carrier was still required to pay 4x of the son’s annual earnings, but the money would be held by the Wisconsin Injury Supplemental Benefit Fund (WISBF) until the issue and extent of partial dependency was established.  So, Attorney Lisa Pierobon Mays filed for Hearing naming the State of Wisconsin Department of Justice as Respondent as they were charged with defending the Fund’s disbursement, holding, and use of the money.  WISBF is a fierce zealot in protecting its money, so in response, WISBF/DOJ asserted that the son provided no more than what a grown son would be expected to do for his parents.  An insulting defense and one where Attorney Pierobon Mays retorted back that adult children have their own busy lives to lead with family, job, and social commitments of their own to take care of.  While an adult child generally does help with some basic household chores, Mr. and Mrs. T’s son’s contributions, for the 52 weeks preceding his death, went above and beyond what an adult child would reasonably be expected to do.  This son was an exceptional human being according to all that knew him.

The WISBF also defended that Mr. and Mrs. T’s claim was excessive in the amount they demanded considering no documentation was available to prove all of son’s contributions.  The WISBF claimed that the death benefit money is better disbursed to widows and orphans of deceased workers, rather than Mr. & Mrs. T.  Attorney Lisa Pierobon Mays pointed out that Wis. Stat. sec. 102.48(2) does not give priority, under a partial dependency claim, to unrelated widows and orphan children where partial dependency is alleged.

At Mediation, the WISBF/DOJ relented and conceded that partial dependency of son to Mr. and Mrs. T did exist, and a sizable offer was made to settle the claim shy of a Hearing.

Now, Attorney Pierobon Mays did not stop advocating for Mr. and Mrs. T because she had also filed a Penalty claim against the employer’s workers compensation insurance carrier for failing to properly handle the file right after their son’s death.  Think back to the beginning of this article when you read that if no Total Dependency by wife or child is found, then a portion of the death benefit (4x average annual earnings) goes to the non-estranged parent(s) of the deceased employee.  Non-estranged parents are automatically entitled to a benefit of at least $6500 under Wis. Stat. sec. 102.48(1).  The significant word is “automatically.”

Despite demands by Attorney Lisa Pierobon Mays to the workers compensation carrier to make an automatic payment of $6500 to Mr. and Mrs. T, the carrier and their attorney ignored and refused to do so.  In response, Attorney Lisa Pierobon Mays filed a penalty claim against them forcing their hand to make payment.  However, the damage had been done in not doing so sooner.

At Mediation, this Penalty was also pursued and payment in the amount of $3000 (almost ½ of the =$6500) was offered to resolve the claim shy of a Hearing. Attorney Pierobon Mays and her clients agreed that this was enough of a stinging slap on the wrist so that this type of misconduct would hopefully not happen in the future to other grieving parents.

The workers compensation insurance adjuster is not being reasonable and now I need to go to a Hearing to have a judge decide my benefits? What should I expect?

Attorney Lisa Pierobon Mays represents only Wisconsin injured workers.  Every client scheduled to go to Hearing is litigated by Atty. Pierobon Mays.  Prior to the hearing, Lisa will thoroughly prepare her client for the Hearing.  She meets with them a few days prior to the hearing and works with them over several hours to get them prepared and ready to give testimony – basically telling the Administrative Law Judge with the Office of Workers Compensation Hearings the details of the injury and how it has impacted the injured worker.  Attorney Pierobon Mays’ clients always feel well-prepared for a Hearing.  Lisa believes the more prepared her clients are to give testimony, the more confident they will feel at the Hearing.  Another way she prepares her client is to take the mystery out of it, here is what occurs at a Hearing.

WHERE WILL MY WORKERS COMPENSATION HEARING BE HELD?

Hearings are scheduled at various locations throughout the state of Wisconsin.  In general, the geographical location for the Hearing is determined by the location of the employee’s residence, or where the injury occurred.  The greatest travel convenience for the injured worker (also called the Applicant) is the priority city for the scheduling of a Hearing.  The biggest city closest to such will be selected.  So, for example. an Applicant who resides in Baraboo will have their Hearing scheduled in Madison.    

After a Hearing date is set, all parties are notified by a written, blue-colored notice. The Notice of Hearing is usually mailed to the parties eight to ten weeks in advance, but hearings can be scheduled with as little as ten days’ notice in emergency cases.

WHO ATTENDS THE HEARING?

The parties required to attend the Hearing is the Applicant (injured workers), her Attorney, the Attorney (called Opposing Counsel) for the workers compensation insurance company, a representative for the insurance company or employer, if desired by them.  Also, all relevant witnesses, the Judge, and the Court Reporter.

HOW LONG DOES THE HEARING TAKE?

The Office of Worker’s Compensation Hearings schedules Hearings in 4-hour time slots, starting at 8am and finishing at Noon.  Or, starting at 1pm and finishing at 4pm.  If the parties run out of time, then a continued hearing will be scheduled, usually within a few months, as the Scheduler needs to coordinate to ensure that all parties, including the judge, are available.

WHAT DOES THE JUDGE DO AT A HEARING, WILL SHE QUESTION ME?

At Hearing, the Administrative Law Judge is actively involved and in charge of handling all the preliminaries.  The Judge is responsible for making sure that all the necessary parties are present, that the issues of the claim are mutually understood.  The Judge is responsible for protecting the record of the claim by allowing testimony and evidence to be pursued by all the parties.  Any objections to such are resolved by the Judge with a ruling on the record.  The Judge swears in all witnesses who promise to give truthful testimony. The Judge is also protective of the Court Reporter, who transcribes/stenographs testimony and marks exhibits, by making sure that she can properly hear and see the live testimony. 

Hearings are intended to be somewhat informal, and the Judge will often interrupt when the injured worker (Applicant) is giving testimony for clarification or to ask her own questions of the Applicant.  Keep in mind, the Judge wants to make a well-informed and thorough decision so anything that the Judge feels is confusing or not explored, then she will follow-up on. 

WHAT DOES IT MEAN TO GIVE TESTIMONY AND THE BURDEN OF PROOF?

At Hearing, the injured worker (Applicant) has the burden to prove that he is entitled to monetary benefits because a work injury caused lost time/wages, medical expense, and permanent disability.  Such issues are proven by the Applicant testifying as to the details of the injury such as who, what, where, when, and why details of their injury.  As to the medical questions, a physician generally does not come to the hearing to testify but instead answers a series of questions on a 2-page form approved by the State of Wisconsin Division of Hearings and Appeals. 

Applicants should be prepared to testify and know what questions are going to be asked of them on direction examination.  Simple rules should be followed by the Applicant such as always speak with audible words.  Nodding or shaking of the head to respond Yes or No is not allowed because the Court Reporter only transcribes verbal words.  Also, “Uh uh” or “Uh huh” means nothing to the Court Reporter and should never be uttered by any witness when testifying.  Other Do’s and Don’ts when testifying, tantamount to winning and losing at Hearing, are taught at Mays Law Office.  Attorney Lisa Pierobon Mays always prepares her client’s a few days before the Hearing so that they are ready and confident to give testimony at the Hearing.

WILL OPPOSING COUNSEL BE MEAN TO ME ON CROSS EXAMINATION?

Workers’ Compensation Hearings are generally amicable.  Contentious behavior at a Hearing is deemed unproductive and Judges will be protective of a witness being treated with disrespect.  However, Cross-Examination questions feel different than those on direct.  For instance, a witness who is asked, “What is the weather like outside today?” is given broad freedom to answer the question.  On Cross-Examination, the questions will not be so open-ended, instead the same question will be asked “Isn’t is true that the weather is cloudy and cold today?”  A simple is suggested in the question, that answer being a “Yes” or “No”.  Applicants often feel cornered by questions on Cross-Examination because they are unable to break free and speak their own words.  Attorney Lisa Pierobon Mays always prepares her clients for this type of questioning.  She reminds them that she always gets the last word with her client on Redirect Examination where she can circle back to any questions asked on Cross-Examination that need further detail or explanation.

CAN I BRING A FRIEND OR SPOUSE TO THE HEARING?

Absolutely Yes you can bring someone to support you at the Hearing.  Attorney Lisa Pierobon Mays encourages a supporting person come to the Hearing.  A Workers Compensation Hearing can be intimidating with the presence of a Judge, Court Reporter and Opposing Counsel.  Nervous feelings are expected so Lisa tells her clients that if they are feeling nervous when giving testimony then their support person will be seated in a visible spot where they can see a friendly face supporting them. 

If your support person is also going to be a witness, then the Opposing Counsel will likely make a Motion to Sequester your witness which means that the witness needs to remain out of the Hearing room until it is time for him to give testimony.  Once the testimony is done then they can stay and watch the rest of the Hearing.   

DOES THE JUDGE DECIDE WHETHER I GET BENEFITS AT THE CONCLUSION OF THE HEARING?

No, the Administrative Law Judge has a lot to consider after the Hearing.  They like to thoroughly review all the Exhibits, read portions of the testimony transcript, and allow the parties a few weeks to follow-up on anything that was discussed but not resolved at the hearing, such as updated medical records or billing itemizations.  Once the record is closed then the Judge should have a written decision in 90 days, however this is not mandatory, just suggested.

CAN MY CLAIM SETTLE AFTER A HEARING?

Workers Compensation claims often do settle after the Hearing.  A Hearing gives both sides the opportunity to see the strengths and weaknesses of their case.  An Applicant who testifies well at Hearing and if very little damaging evidence is presented by Opposing Counsel, then it is a good sign that the claim will likely go in favor of the Applicant.  In those cases, Opposing Counsel will go back to their client, the Worker Compensation Insurance Carrier, to update and advise them of such and encourage them to reinitiate settlement discussions.  Attorney Lisa Pierobon Mays always keeps her clients updated on all settlement discussions, patiently answering all questions, and addressing all concerns that her client’s may have.

A Wisconsin injured worker should never feel forced to settle their workers compensation claim.  It is their right to have a Hearing decided by an Administrative Law Judge.  When hiring a Wisconsin workers compensation attorney, the injured worker needs to choose carefully who they want as their advocate.  Too many attorneys want to just settle claims and move on to the next client.  Attorney Lisa Pierobon Mays never stops advocating for her client.  She always keeps the client’s best interest as a priority.      

Check out what our clients have said about our representation on Google and see our perfect 5 Star Google Rating.

I HAVE BEEN HURT AT WORK – WHAT SHOULD I DO TO PROTECT MYSELF?

You have been hurt at work, you are scared and do not know what to do or who to listen to.   Mays Law Office hears this question every single day.   Attorney Lisa Pierobon Mays talks to injured workers daily – free of charge.  Every story varies but the emotions are always the same – fear, confusion, uncertainty, and even anger.  No one wakes up and thinks “Oh Boy, I sure hope I get hurt at work today.”  Accidents causing injuries at workplaces happen daily and fault, for the most part with certain legal exceptions, is not a factor in Wisconsin.  So, let’s say you slip and fall because a puddle of water was left on the floor, or you are walking too fast and miss a step running up the stairs and you blow out your knee.  In those kinds of situations, blame and fault is not a factor to be considered and not a reason to be denied workers compensation benefits.

So, what is the process once a Wisconsin worker injures himself?  The first question is whether the injury is serious enough that medical treatment is required?  Obviously, any injury involving broken bones, stitches, serious pain, difficulties with mobility should be medically treated immediately.  All work injuries should be reported to the employer so that an Incident/Accident Report can be timely completed by you and your supervisor.  Work comp claims can and have been denied for failure to report them timely to the employer; by not doing so raises suspicion and puts the injured workers credibility and honesty at risk.  With such information, your employer is responsible for notifying their workers compensation insurance carrier so that a claim can be opened, an investigation started, and benefits for lost time and medical treatment paid.

Once a workers compensation claim is filed, everyone has responsibilities.  The Employer is responsible to comply with any requests for complete, truthful, and timely information made by the workers compensation carrier.  The Workers Compensation Insurance Carrier is responsible to diligently investigate the claim, respond to the employer’s reporting of the claim, talk to witnesses, get a statement from the injured worker as to the details how the work injury occurred.  The insurance carrier should also be reviewing medical records and sending out medical authorizations for the injured worker to sign for the review of their relevant medical records.  All of this is necessary for the workers compensation carrier to make a timely decision to either accept or deny, in good faith, the workers compensation claim.

The Injured Worker is responsible to give true and accurate statements as to how the injury occurred to their employer, the workers compensation insurance carrier, and their doctors.  Every statement of recollection must be consistent as to date, time, details, witnesses, and pain symptoms.  Any inconsistency can, and likely will, be used against the injured worker to deny the claim.  The injured worker must maintain a good relationship with their medical providers.  Meaning, do not miss doctor’s appointments.  Do not disregard your doctor’s advice, treatment, and recommendations.  Keep in mind that your doctor will not be keen to support your claim if you have been a difficult patient.  Doctors like patients that follow their treatment, listen to their recommendations, and appear to want to get better.  Maintaining integrity with your doctors is of utmost importance because your comments and behavior is being documented in your medical records with every single communication that you have with them and their medical office staff, meaning their medical assistants, nurses, and even receptionist.  Also, the injured worker must keep their employer informed of their physical restrictions and availability to work.  Don’t just do this verbally.  It should be done by phone, text, email, and in writing so that the employer does not claim that you abandoned your job by failing to communicate after the injury.

Remember, an Injured Worker must never be seen doing anything that would be considered inconsistent with their injury.  Stay away from posting on social media as pictures can be damaging and misunderstood.  For instance, an injured worker suffering from a sore knee should not be posting pictures with their volleyball club team in a competitive setting.  It is only logical to assume that an injured worker with a knee injury would not be able to play volleyball.  Likewise, keep in mind that insurance companies hire investigators to conduct surveillance so be watchful as to how you appear to others, in public and even in your own yard, garage, porch, and deck!

HOW LONG DOES IT TAKE TO GET MY WORKERS COMPENSATION BENEFITS?

If the workers compensation insurance company does not make payment of your benefit within 14 days of receiving notice of the injury, then they must notify you that they are still in the process of investigating your claim.  If the insurance company denies your claim, then they must inform you within 7 days of its decision.  If these timelines are violated, call Attorney Lisa Pierobon Mays for her guidance and potential involvement.

CAN MY EMPLOYER FIRE ME FOR GETTING HURT AT WORK?

In Wisconsin, employers are not allowed to penalize you for claiming an injury or filing a work injury.  Being terminated will not preclude the injured worker from receiving their workers compensation benefits.  The employer’s carrier will still be responsible for covering lost time benefits and medical bills.  In those situations, Attorney Pierobon Mays will advise you how to discuss the employer’s behavior with the insurance adjuster because employers who behave this badly are likely not being honest with their insurance companies about you and your work injury.

CAN I CHOOSE WHAT MEDICAL DOCTOR TREATS ME?

The injured Wisconsin worker has the sole right to choose their own doctor.  If you want a second opinion, you must notify the workers compensation carrier of such.   In an emergency, the employer may arrange for your treatment until you are able to choose for yourself.  Employers and their workers compensation carriers will try to persuade you to see “the company doctor.”  Letting the employer dictate who and where you get medical treatment is never going to be in your best interest because the company doctor, employer, and insurance carrier are all sleeping in the same bed and their interests are aligned against yours.

When it comes to medical treatment, the injured worker has the right to every type of treatment which is reasonable and necessary to cure you if it is prescribed by your doctor.  This includes clinic visits, tests and imaging, therapy, hospitalizations, and prescriptions.  Reimbursement for your travel/mileage to receive such treatment is also paid to you at .51 cents a mile.  Keep receipts and provide such to the insurance adjuster assigned to your claim.

DO I HAVE TO LET THE WORKERS COMPENSATION NURSE CASE MANAGER INTO MY APPOINTMENTS?

Wisconsin workers feel that their privacy is being violated when the workers compensation nurse shows up at her medical appointment and insists on going into the examination room and participates in the medical appointment by asking questions of the doctor.   Attorney Pierobon Mays cautions every injured worker to deny such access and forbid this intrusion.  All that is required of the injured worker is to sign medical authorizations that allow the nurse case manager access to the medical records and doctor.  The nurse can always request to speak to the doctor about the injured worker’s medical care and treatment.  Whether the doctor is willing to have such discussions is up to him or her.

DO I GET MY FULL SALARY FOR BEING OFF WORK DUE TO PHYSICAL RESTRICTIONS?

While in a healing phase, the Wisconsin worker gets only 2/3 of their average weekly wage up to a determined maximum rate for the year of injury.  It is 2/3 because it is tax free.  Payment is based on a 6-day work week, regardless of the number of days per week that you worked.   So, your daily payment is 1/6 of your weekly payment.  The Wisconsin Department of Workforce Development can determine, if in doubt, whether your benefit payment is accurate. Your first lost time disability (referred to as “TTD”) check should be paid to you within 14 days of your last workday due to the injury.    You can cash your check without any concern of waiving your legal rights.

DO I HAVE TO RETURN TO WORK WHEN I AM ON PHYSICAL RESTRICTIONS?

The simple answer is Yes but only if the kind of work being offered is truly accommodating within the injured workers doctor mandated physical restrictions.  The employer knows that offering an injured employee accommodating work keeps the exposure of lost time benefits low.  Moreover, good employees are an asset and every company knows that it is better to work with their employees rather than lose them.  Every employee lost is a loss to the business in terms of productiveness, efficiency, skills, profit, and morale.

If the employee refuses truly accommodating work then their lost time benefit, also known as temporary total disability will be waived.  Never refuse work.  If doubt, call Attorney Lisa Pierobon Mays so that she can review the circumstances of your claim to better advice.

THE WORKERS COMPENSATION WANTS ME TO SEE THEIR DOCTOR, CALLED AN INDEPENDENT MEDICAL EXAMINER – DO I HAVE TO GO?

Oftentimes, Attorney Lisa Pierobon Mays gets calls from an injured worker because they have been instructed that they must go see a workers compensation insurance doctor, termed “Independent Medical Examiner” or an “IME.”  Ironically, there is nothing independent about these doctors.  These doctors are hired by the workers compensation insurance companies with a bent toward denying benefits.  These doctors do not offer medical treatment.  They see the injured worker for 15-30 minutes, usually at a rented facility, ask a few questions, all in the hopes that the worker will say or do something inconsistent to give them a bit of information to use against the worker.  Like, when one injured worker told the doctor that, before the injury, he enjoyed weightlifting.  The alleged Independent Medical Examiner then used this information of weightlifting against the injured worker claiming that the injury was not caused by the lifting of the 100-pound machine which caused the worker to drop to his knees screaming in pain because he herniated a disk in his back.

The quick answer is that the injured workers does have the attend the independent medical examination, but it is essential that they call Attorney Pierobon Mays so that she can prepare you on how to behave, suggest that you take a witness, what to document, and what to say and not say at this appointment.  Also, the carrier is required to pre-pay your roundtrip mileage before, not after, the appointment.  If not, there are consequences for the insurance carrier.  Also, if time is lost from work to attend the appointment, then the carrier needs to reimburse the injured worker accordingly.

WHAT HAPPENS IF MY WORKERS COMPENSATION CLAIM IS DENIED?

If your claim is denied by the workers compensation carrier/handler then you can request a formal hearing with an administrative law judge at the Wisconsin Department of Workforce Development.  An application for hearing must be completed to get this process started.  Also necessary is medical proof in the form of a document called “Practitioner Report of Injury in Lieu of Testimony” which needs to be completed properly by your treating physician, specialist, or surgeon.  In this form, your medical provider will describe your diagnosis and prognosis and give an opinion as to whether he/she agrees that such injury is work-related.  These forms can be obtained on the State website at dwd.wisconsin.gov/wc.  You can represent yourself at a hearing, however it may be best to hire an attorney as the paperwork and legal process gets complicated, confusing, and difficult to complete.   Moreover, injured workers often feel overwhelmed and intimidated having to communicate with the judge and attorney representing the workers compensation carrier.  The playing field is equalized when each side has an attorney.

Mays Law Office, Attorney Lisa Pierobon Mays has been successfully representing and winning for Wisconsin injured workers for over 25 years.  She understands the workers compensation system and will pursue every single benefit for the injured worker.  Injured workers are relieved when they learn that they do not have to pay her anything upfront for her representation.  Attorney Pierobon Mays gets paid when she gets money for the injured worker.  The recovery attorney fee is 20% of such recovery, plus reimbursement for claim expenses.

WHAT DOES IT MEAN TO HAVE A PERMANENT PARTIAL DISABILITY (PPD) BENEFIT?

Once you are healed, or deemed at a healing plateau by your doctor, permanent disability will be considered.  If your injury has resulted in a permanent disability, then you will receive a monthly check, often described as PPD.  This is not paid in a lump sum but over a period of weeks/months, depending on the location of your injury.  Each part of the body has a different number of weeks assigned.  For instance, if you doctor assesses 10% permanent disability to your shoulder, this is equal to 10% of 500 weeks or 50 weeks.  Very serious injuries like those injuries to the back or head are compensated differently if it involves future wage loss.  These types of complex injuries should always involve an attorney representing the injured worker.  Attorney Lisa Pierobon Mays at Mays Law Office has handled many of these types of complex injury claims.

WHAT IF MY WORK INJURY IS SO SEVERE THAT I CANNOT RETURN TO MY OCCUPATION?

Call Attorney Lisa Pierobon Mays if your injury is so severe and you have concerns that you will never be well enough to return to the same type of employment.  Wisconsin law includes benefits that consider scenarios like this called vocational claims.  If your injury causes permanent physical restrictions that prevent you from returning to work making the same rate of pay then a claim for retraining, or in some situations, loss of earning capacity may apply.  These are valuable but complex claims that require an attorney’s assistance.

WHEN SHOULD I HIRE A WORKERS COMPENSATION ATTORNEY?

While the Wisconsin Workers Compensation System was originally developed to relieve the injured worker from the cost of hiring an attorney, that only applies in a perfect world where the work injury claim has been fully conceded/accepted and the worker is getting ALL the benefits that he is entitled, without argument, delay, or hassle from the workers compensation insurance carrier.

Sadly, rarely does this “Perfect World” happen when a Wisconsin worker is injured.  The workers compensation insurance carrier always has an eye out looking for an opportunity to deny the claim, lessen its exposure and responsibility.  With that mindset, the insurance company looks for any reason to not pay, delay and ultimately find a reason to deny the claim.  These carriers have many tricks up their sleeves to either never pay or stop benefits.  They may claim that the injury never occurred at work, or that the injury is personal to the worker, and therefore not related to what happened on the job.  Or, they may claim that the worker did not report the injury timely, or that the factual rendition of how the injury occurred is not true.  Sometimes, the carrier just ignores the workers and does not even respond to the report of injury and just hopes that the worker will just go away.

Mays Law Office has seen and heard it all from workers compensation insurance carriers.  When hiring an attorney, the injured worker needs to make sure that they are choosing an attorney who has years of experience representing injured workers and aggressively advocates to ensure that the worker is getting every benefit they are entitled to under the law.

Even if you are not quite ready to hire an attorney, at the very least, make a call to Mays Law Office for a free consultation to discuss with Attorney Lisa Pierobon Mays if you are being treated lawfully by the insurance company and getting every monetary benefit under the law.

I HAVE NEVER HIRED AN ATTORNEY BEFORE, WHAT SHOULD I EXPECT WHEN MEETNG WITH A WORKERS COMPENSATION ATTORNEY?

Keep in mind that every work injury is different, unique, and requires it owns customized approach.  If the timing and circumstances of your claim calls for it, then Attorney Lisa Pierobon Mays will invite you to come to her Middleton/Madison office, if convenient, to discuss your claim further.  This in-person meeting is still part of the free consultation provided by Mays Law Office.  The meeting will last about an hour and half so that all the details of your denied claim can be thoroughly discussed and documented.  At the end of this meeting, a well-developed plan will be formalized as to how your workers compensation claim will be pursued.  Attorney Pierobon Mays will detail everything that you can expect and will be involved in the injury claim EVERY STEP OF THE WAY.  Your claim will NEVER be assigned to another attorney or a paralegal.  Every email, phone call, and correspondence will involve Attorney Pierobon Mays.

Attorney Pierobon Mays has been representing Wisconsin injured workers since 1997 – that’s over 25 years of experience fighting and winning.  Attorney Lisa Pierobon Mays is not intimidated by any Wisconsin employer or workers compensation insurance carrier.  See her actual results by doing a simple Google review search.  You will see 5 Stars ratings from her actual clients who have found her effective, respected, and aggressive in achieving positive results for them.

Mays Law Office knows that suffering a work injury is scary and intimating but Attorney Lisa Pierobon Mays is only a phone call away from answering all of your questions and easing your concerns.

THE WORKERS COMPENSATION INSURANCE IS DENYING MY WORKERS COMPENSATION BENEFITS CLAIMING IT IS IDIOPATHIC

You were hurt at work and the workers compensation insurance company is denying your benefits claiming that you suffered an IDIOPATHIC injury.  What does this mean?

In Wisconsin, the workers compensation system under Chapter 102 of the Wisconsin Statutes provides benefits such as lost time, medical treatment expense, medical mileage reimbursement, and permanent disability to Wisconsin workers who are injured on the job.  This system is considered a no-fault system, which means that the injured worker does not need to prove that anyone was at fault for their injuries to receive benefits.  Nevertheless, workers compensation insurance companies come up with all kinds of reasons to deny a claim and one of the more common reasons is to claim that the injury is “idiopathic.”

WHAT IS AN IDIOPATHIC INJURY?

Webster Dictionary defines Idiopathic as “arising spontaneously” or “from an unknown cause.”

Some examples of idiopathic injuries are if an employee faints, suffers a seizure or blacks out due to a personal condition, the resulting injury could be an idiopathic injury.  For instance, if an employee’s leg gives out while normally walking or standing at work this might result in an idiopathic injury.  Also, if an employee slips and falls while on the job, where there is no object, or residue on the floor to cause the slip, the employee might have sustained an idiopathic injury, which would not be compensable.

While it may be fun to play with this word, and name call it right back on the IDIOT-PATHETIC insurance adjuster who is denying your workers compensation benefits, but in serious, this office is seeing this defense being used more and more against injured Wisconsin workers in the denial of workers compensation benefits.

Perhaps, a better term for this defense is to call it an “unexplained injury” which arises from purely a personal cause, like a disease, physical disability, or a condition personal to the injured worker.  To recover workers’ compensation benefits, the employment must place the employee in a position that somehow increases the dangerous effects of a fall.    

HOW DOES WISCONSIN TREAT IDIOPATHIC INJURIES?

In the Wisconsin workers compensation setting, idiopathic or unexplained injury cannot be due to a force completely personal to the employee.  The easiest example of an idiopathic injury is a heart attack suffered at work.  Only under very special circumstances of extreme stress endured on the job, would a heart attack suffered at work be considered a compensable work injury because heart attacks are caused by heart disease, not work events or exposure.

Many Wisconsin injured workers ask how it can be that a fall on-the-job, on their employer’s premises, causing injury excuse the employer’s workers compensation insurance carrier from the responsibility of covering medical treatment and lost time?  Such a premise just feels wrong and unfair.  Unfortunately, Wisconsin is in the minority of states that does not allow compensation for unexplained or idiopathic falls.

In Wisconsin, slipping on a clean, unobstructed cement/hard floor will not be considered a special hazard of employment and will be deemed idiopathic. However, in Attorney Lisa Pierobon Mays’ experience, slip and fall injuries are always more involved than that.  Hazards exist that can render what appears idiopathic explainable, such as elevators, stairs, ladders, scaffolds, sharp edges, corners, and water to name a few.  Sometimes injured workers do not know or remember what caused their fall and resulting injury because falls happen so fast.

Claims involving potential idiopathic injuries are fact intensive and fact specific, so it is very important for the injured worker to reflect on and timely investigate their fall before documenting or completing an Incident Report of the injury requested by their employer.  The workers compensation insurance carrier will use a statement of “I do not know what happened” against the injured worker as a basis to claim Idiopathic injury to deny workers compensation benefits.

HOW TO OVERCOME THE DEFENSE OF IDIOPATHIC?

In Attorney Lisa Pierobon Mays’ experience, a denial of benefits under the idiopathic defense can be overcome when the Wisconsin worker sustains an idiopathic injury that was aggravated or accelerated due to work-related activities. Examples are:

• Slip and Fall Due to Seizure: An employee with epilepsy experiences a seizure while on a ladder at work and falls, causing injury. While the seizure may be idiopathic, the fall and resulting injury were related to the work environment and activities (being on the employer’s ladder), so the injury might be covered.
• Injury During Diabetic Event: A diabetic employee experiences a drop in blood sugar, causing them to faint. In the process, they hit their head on a machine, causing a severe head injury. The injury from the fall could be eligible for workers’ compensation (hitting the head on the employer’s machine), even though the fainting spell was due to a personal health condition.
• Injury Exacerbated by Work: An employee with a pre-existing back condition injures their back further while lifting heavy equipment at work. Even though the initial back condition is idiopathic, the worsening of the injury due to work activities (lifting the employer’s heavy equipment) could make the case eligible for workers’ compensation.

As you can see every injury is fact specific so after a fall that results in an injury, the injured employee should try to document the fall and consider their recollection carefully.  Steps to take are:

*Build a timeline and consider your actions and activities before the injury occurred,

*Revisit the scene, take pictures, request surveillance footage,

*Speak to witnesses,

*Retrace your steps to try and determine why and how the fall occurred are all ways to combat a defense of idiopathic injury.

In doing so, the injured worker might learn the reason for their fall.  For instance, slippery surfaces caused by spills or leaks, footwear required by the employer, objects on the floor or in the way, fast walking due to rushed work effort or response to an emergency, along with uneven surfaces are often the reason for the fall.  Workers without preexisting disabilities generally do not just fall on a clean, dry, smooth surface.  There is always more to the story that needs to be flushed out when explaining the circumstances of the injury to the employer and their workers compensation insurance carrier.   Moreover, the details of the fall need to be consistent, especially when describing it to medical providers because this is another source of credible documentation.

CALL MAYS LAW OFFICE FOR A FREE CONSULTATION

Lastly, call Attorney Lisa Pierobon Mays so that she can explore the facts and circumstances with you to give further suggestions.  Mays Law Office offers free consultations to all Wisconsin injured workers.  Mays Law Office has the coveted 5 Star Google rating from their former clients proving that they get results.

In Wisconsin, when a worker is injured and claims compensation for workers compensation benefits, the workers compensation insurance carrier has the right to send the injured worker to see their “Independent Medical Examiner” under Wis. Stat. Sec. 102.13(1). This type of medical examination can only take place with a physician, chiropractor, psychologist, dentists, podiatrist, physician assistant, or an advanced nurse practitioner. To be clear, these medical appointments are better described as an adverse medical examination because medical treatment is not being rendered. What is being rendered by this doctor is a written medical report that will offer medical opinions as to the cause, extent of the injury, medical diagnosis and prognosis, and reasonableness of medical treatment. Often, the medical report is created solely for the workers compensation carrier with a desired outcome to deny workers compensation benefits. Ultimately, the insurance carrier is hoping for a medical opinion from their Examiner that gives a medical opinion that will allow them to deny the injured worker benefits.

How Should the Injured Worker Behave at The Examination?

In Wisconsin, these appointments are selected and scheduled by the workers compensation carrier, not the injured worker.  Again, medical treatment is not going to be rendered to the injured worker at these appointments.  This appointment will generally not last longer than 20 minutes.  The injured worker should be aware that they are being watched carefully from the moment that they enter the parking lot.  It has been said that some doctors will even wait in their vehicle so that they can see the injured worker arrive, park, exit their vehicle, and walk across the parking lot and into the building hoping to see any inconsistencies in pain symptoms and physical restrictions.  Creepy and bizarre?!  Absolutely yes!  In turn, Attorney Lisa Pierobon Mays suggests that the injured worker be a good observer too.  Take pictures of anything that seems unprofessional, like a dirty examination room.  Also, the injured worker is permitted by law to bring a witness into the examination.  The injured worker should never be chatty with the Examiner.  Be polite but cautious, be respectful but not friendly, be cooperative but not overly talkative because the more you say, the more what you say can and will used against you.

What Will the Adverse Examiner Do at The Appointment?

The biggest thing that the Examiner wants is to get you talking.  They will ask specific questions of you, like:

• What is the date of the injury?
• How did the injury occur?
• Do you have pain symptoms and describe the pain?
• Describe/recite your medical treatment;
• Describe prior injuries and similar symptoms before the work injury occurred;
• What alleviates the pain?
• What aggravates the pain?

These are fair and appropriate questions so be prepared with accurate, complete answers.  Remember, you are the best historian of your injury so if you do not know simple things, like your pain symptoms or how the injury occurred in detail, then you will not appear credible to the Examiner and he/she will use this against you in their report that will ultimately be reviewed by the Judge at a potential hearing.

Will the Adverse Examiner Touch Me?

It is very likely that the Adverse Medical Examiner will perform a physical examination of your body so be prepared by wearing appropriate clothing. Wear loose clothing, do not wear tight-fitting clothes, like jeans. Do wear tank tops and shorts under your main clothing because if you are asked to remove your shorts or pants you have a full undergarment on. Never agree to disrobe completely and wear a paper gown. This is an intimidation tactic and completely unnecessary for this type of an examination. Again, keep your witness in the examination room with you so that you do not feel vulnerable and alone with the Examiner who is a stranger to you.

During the physical examination, the Examiner will ask that you sit on an exam table and request to inspect the part of your body that is injured. The Examiner will lightly palpitate, which means examine you with light touching/pressing on the injured area. Verbalize to the Examiner if any touching hurts you. The Examiner will then ask you to perform some movement exercises to test your range of motion. Again, describe truthfully any pain that you experience with such movement. You may be asked to lay on the table on your back, side, and then on your belly for more palpation or range of motion testing. You will be continuously asked if any of the touching/palpation or movements hurts. Be honest and do not exaggerate any pain as the Examiner is looking for such inconsistency or exaggeration of pain to attack your credibility.

When the examination is over, remember that you are being watched as to how you get off the examination table, move, and leave the examiner’s parking. Again, the Examiner and his staff are hoping to see and document anything that puts the truthfulness of the work injury in question. So, if you are restricted from climbing stairs due to a knee injury, then use the elevator, and not the stairs when exiting.

Attorney Lisa Pierobon Mays is Proud to Have Been Involved in Changing Wisconsin Law in Favor of Protecting Wisconsin Injured Workers During Adverse Examinations.

In the past, Wisconsin law allowed the Examiner to meet with the injured worker, male or female, alone and without any observation from a witness, such as a spouse, parent, other family member, or even a friend. This policy was obviously problematic, especially where it was a male doctor examining female injured workers. Often, these adverse medical examinations require a certain level of disrobing and a hands-on physical exam of the injured worker. Such a situation is intimidating, and downright creepy, where a trusted doctor-patient has NOT been selected or even established.

Attorney Pierobon Mays initiated awareness with the Wisconsin Worker’s Compensation Advisory Council pushing for a change to be made in the workers compensation legislation. The Council on December 13, 2021 approved such a change and the agreed upon bill, passed by the Wisconsin Legislature, now allows observers to be present, chosen by the employee, during such examination.

Lastly, the best course of action for the Wisconsin injured worker who is asked to submit to an “Independent Medical Examination” coordinated by the workers compensation insurance carrier is to call Attorney Lisa Pierobon Mays at (608)257-0440 so that she can remind you of these Do’s and Don’t’s and get you properly prepared. Initial consultations are always free.

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.