Revocación de la libertad condicional

Revocación de la libertad condicional

En lo que es cada vez más difícil para los abogados de defensa criminal en estos días, el abogado Stephen Mays y Mays Law Office, LLC prevaleció - finalmente - en una audiencia de revocación de la libertad condicional contra el Departamento de Correcciones (DOC) y un oficial de libertad condicional muy molesto y persistente y su supervisor.

En abril de 2023, en el condado de Dane, el cliente de MLO fue condenado (mientras representado por otro abogado) de Operar un Vehículo Motorizado Bajo la Influencia (OWI) como cuarta ofensa, un delito grave. En la sentencia, el tribunal retuvo la sentencia y ordenó tres años de libertad condicional, con algún tiempo de cárcel condicional.

Casi dos años más tarde, en enero de 2025, esta misma persona llamó a la policía porque su casa se estaba incendiando. El ahora cliente de MLO, que estaba en la escena cuando el oficial llegó y se identificó a través de su tarjeta de identificación estatal. El agente obtuvo información del cliente MLO, que declaró que estaba siguiendo el protocolo en relación con los incendios de estructuras. Primero preguntó si había algo inflamable en o cerca del edificio, aparentemente por razones de seguridad, antes de pasar a preguntar sobre cualquier objeto de valor que pudiera haber en la residencia. En cuanto a la primera cuestión, el cliente de MLO declaró que habría munición en la residencia, junto con otros artículos potencialmente inflamables o explosivos. Cuando se le preguntó por los objetos de valor, el cliente de MLO declaró que había armas en un cobertizo exterior no adosado.

En total, las fuerzas del orden recuperaron cinco armas largas (rifles o escopetas) de un cobertizo situado a más de 150 metros de la casa incendiada. No se localizaron ni incautaron pistolas, otras armas de fuego ni armas de ningún tipo. Basado en la presencia de esos artículos y el estado de libertad condicional del cliente MLO, fue detenido por ser un delincuente en posesión de armas de fuego. El cliente de MLO se mostró conforme al ser detenido, pero se lamentó de que tal vez no debería haber dicho a los agentes lo de las armas, ya que nunca las habrían encontrado.

El DOC entonces buscó revocar la libertad condicional de OWI del cliente de MLO por la violación de posesión de un arma de fuego por un criminal - un cargo que también fue traído por separado por la oficina del Fiscal de Distrito y lleva un potencial de 10 años en la prisión.

En la vista de revocación, el cliente de MLO declaró que había dicho a la policía que estaba en libertad condicional y que no debía estar en posesión de armas de fuego. También declaró que miembros de su familia y otras personas tenían acceso al edificio para guardarlas. No se recuperó ningún arma de fuego de la residencia. El agente testificó que el cliente de MLO se mostró cooperativo y comunicativo a lo largo de sus interacciones y que probablemente no se habría dado cuenta de la presencia de ningún arma de fuego, si el cliente de MLO no hubiera sido honesto y sincero con ellos. De hecho, el agente declaró que, en general, se sintió mal por tener que detener al cliente MLO debido a las infracciones, dado que se mostró tan comunicativo y colaborador con las fuerzas del orden.

En la vista, el cliente de MLO admitió que las armas de fuego estaban en su cobertizo. También admitió que su condición de delincuente convicto le prohibía específicamente poseer armas de fuego u otras armas. El único delito grave por el cual el cliente de MLO había sido condenado anteriormente era el delito grave subyacente de OWI 4to. El no tenia historia criminal fuera de OWI y ofensas relacionadas con trafico. No obstante, al poseer armas de fuego como delincuente, el cliente de MLO había violado su libertad condicional.

Con esto, el Juez de Derecho Administrativo (ALJ) determinó que el DOC había cumplido con su carga de probar una violación de la libertad condicional. Nunca se demostró que el cliente de MLO hubiera manejado él mismo las armas de fuego en ningún momento después de ser condenado y convertirse en delincuente y estar sujeto a sus normas de supervisión. Sin embargo, existió una violación. La siguiente cuestión era si la violación justificaba la revocación de la libertad condicional.

Al revocar la libertad condicional de una persona, dicha revocación sólo está justificada si, basándose en el delito original y la conducta interviniente, el ALJ considera que:

(1) el confinamiento es necesario para proteger al público de nuevas actividades delictivas por parte del cliente; o

(2) el cliente necesita un tratamiento correccional que puede proporcionarse de la forma más eficaz si está recluido; o

(3) depreciaría indebidamente la gravedad de la infracción si no se revocara la supervisión; y no existen alternativas apropiadas a la revocación (ATR).

Esto se conoce como los factores "Plotkin", basados en el caso State ex rel. Plotkin v. Dep't of Health & Soc. Servs., 63 Wis.2d 535, 544-45, 217 N.W.2d 641 (1974), Wis. Admin. Code § HA 2.05(7)(b)3.

Al dictar su decisión de no revocar la la libertad condicional del cliente de MLO, el ALJ observó que el cliente de MLO tenía 57 años y estaba en libertad condicional por OWI - la ofensa que resultó en su estado como un criminal. Sin embargo, el delito subyacente no comparte ningún nexo significativo con la violación en el procedimiento de revocación. No se alegó, ni siquiera se sugirió, que el cliente de MLO había consumido alcohol o cualquier otra sustancia en o alrededor del momento del incendio o sus interacciones con la policía. No hay alegaciones de OWI u otras alegaciones relacionadas con vehículos de motor.

La libertad condicional del cliente de MLO comenzó en abril de 2023. Desde su liberación a la comunidad, no hubo violaciones previas de sus reglas de supervisión comunitaria. Por el contrario, el cliente de MLO cumplió con la supervisión, se comprometió positivamente con su agente, y reflejó un ajuste general positivo mientras estuvo en libertad condicional. Tuvo una vivienda estable durante todo su tiempo en la comunidad, al menos hasta que el incendio se cobró su casa. También tenía un empleo estable, en la misma empresa desde hacía unos diez años. No tenía compañeros ni asociaciones antisociales. El Departamento de Libertad Vigilada no tuvo ningún problema con él durante su periodo de libertad condicional, incluido el consumo de alcohol o drogas. No planteó ninguna preocupación y había completado la evaluación de alcohol ordenada por el tribunal. De hecho, el Departamento de Libertad Vigilada declaró que había obtenido tan buenos resultados en el período de libertad condicional que solicitó al tribunal que se le concediera la libertad condicional anticipada, seis meses antes de lo previsto.

El ALJ prosiguió en su decisión afirmando lo siguiente al abordar los factores Plotkin antes mencionados:

  • "En general, el hecho de que un delincuente esté en posesión de un arma de fuego es una situación sumamente peligrosa que crea innumerables posibilidades de que se produzcan daños. Debido a la seriedad y naturaleza peligrosa de esa conducta, la revocación es ampliamente justificada como necesaria para no depreciar indebidamente la seriedad de la violación y para proveer protección pública de daño o riesgo de daño. También se observa que [cliente MLO] no tiene ninguna necesidad aparente de tratamiento en este momento; por lo tanto, no hay apoyo bajo Plotkin que la revocación se justifique para proporcionarle el tratamiento que sería más eficaz en un entorno confinado.

En última instancia, sin embargo, este es un caso muy singular y un conjunto de circunstancias que no justifica revocación of [MLO client’s] probation.  [He] has been completely compliant with the department and his rules of supervision while in the community for over two years and on probation for nearly three.  The only exception to this statement is the instant violation wherein [he] had been in possession of several long guns for an apparently extended period of time, while on probation.  He was aware that he was not to possess firearms; however, it appears that he did not fully understand or appreciate the full extent of what it meant to possess those items.  [MLO client’s] ignorance of the law or his rules of supervision is not a defense or mitigating consideration in this matter, but it is relevant to this decision. That is because [he] has been entirely forthcoming and cooperative with law enforcement and the department in regard to the violations.  That he contested them here is not viewed as avoiding consequence, as he did not particularly contest any of the facts alleged in the report or by the department. In fact, [he] essentially self-reported the violation to … law enforcement [who] would not likely have been aware of the presence of firearms on the premises {MLO client] volunteering that information.  After doing so, he remained compliant with law enforcement.   While [MLO client’s] conduct is serious and he has at least been referred to new felony charges of being a felon in possession of a firearm, revocation is not necessary in this matter.

By the time this decision is final, [he] will have been in custody awaiting revocation for approximately four months.  That period of time is a sufficient sanction for the proven conduct, if not in excess of what may be necessary to impart the severity of the offense on [him]. This was his first violation of any rule of community supervision.  His adjustment was otherwise impeccable and stable over the course of years.  He was honest to his own detriment but has appeared to be understanding of why the department has sought revocation.  It does not appear that this incident is cause for concern regarding his ongoing relationship with the department or [his agent].

Finally, as previously mentioned, revocation is not supported by any treatment need that [MLO client] may have that is not being adequately addressed in the community.  The conduct does not justify a lengthier term of incarceration for any need, much less treatment.  [He] has not been directed to treatment by the department during his period of supervision and has not received any alternatives to revocation, based at least partially upon his lack of treatment needs.  [He] should not be penalized with a term of confinement because, at least in part, he does not have an easily identifiable treatment need that he can be connected to services on.

It is therefore ORDERED that the probation of [MLO client] Dane County case 22CF*** is not revoked.”

However, as is becoming par for the court in revocation hearings in which the DOC loses, the DOC filed a barely one-page appeal seeking to overturn the above decision not revoking probation.  This act, alone, kept MLO client in jail – on the continued probation hold – for at least another 21 days.

Then, 28 days after the DOC’s appeal was filed – and Attorney Mays filed a rebuttal to the DOC’s appeal the day the DOC appealed – the Administrator for the Division of Hearings and Appeals filed this brief decision.

“After review of this appeal pursuant to Wis. Stats. § 301.035, the Decision and Order of the Administrative Law Judge (ALJ) is Sustained for the following reasons:

  • The Department of Corrections (DOC) appeals the underlying decision not revoking [MLO client’s] probation supervision.  The sole allegation was proven.  To wit, on January 9, 2025, [MLO client] possessed firearms.  They were discovered by law enforcement responding to a fire at his residence, at which time [MLO client] disclosed that there were rifles in his shed when asked whether there were any potentially flammable items nearby.  Emphasizing [MLO client’s] previous excellent adjustment to probation and lack of evidence that he actually handled or used the long guns while on probation, the ALJ did not revoke probation, which would have returned [MLO client] to court for sentencing after revocation on the underlying offense of OWI (4th).

On appeal, the DOC requests reversal, emphasizing the danger of [MLO client] maintaining the firearms in an unlocked shed on his property.  It submits that not revoking would unduly depreciate the seriousness of a felon in possession of firearms.  In reply to the appeal, [MLO client’s attorney, Stephen Mays] argues that the underlying decision must be sustained.  [Attorney Mays] notes the mitigating factors, including no violent criminal history, his truthfulness with the authorities to his own detriment, and his otherwise impeccable performance on probation to the point that the DOC had petitioned to discharge him early.  On this de novo review, the record supports the decision.

This case presents unique circumstances making revocation unnecessary.  In addition to the mitigating factors listed above, [MLO clients] is likely to have penal consequences as a result of being charged criminally for possessing the firearm, and he has now been in custody for nearly four months.  Further, the violation bears no nexus to his underlying offense or criminal history.

Notably, OWI-related offenses constitute his only criminal history.  The decision [not to revoke probation] is well-reasoned and supported by the record. It is sustained.”

So, while justice sometimes takes some time, if you have the right attorney, who is knowledgeable and well-versed in both the law and the criminal procedure, and is willing to fight on your behalf, justice can ultimately prevail as it did for her.

Should You File for Workers’ Compensation After an On-the-Job Injury in Wisconsin?

Should You File for Workers’ Compensation After an On-the-Job Injury in Wisconsin?

File for Workers Compensation

You were injured on the job. Should you file for workers’ compensation? This is an extremely common question. On-the-job injuries happen all the time, and most workers are not familiar with their rights under Wisconsin law.

While the answer to this question ultimately depends on your specific circumstances, it will be a clear, “Yes,” in many cases. Most workers in Wisconsin are eligible to file for benefits when they get injured on the job. Keep reading to learn more about your legal rights in Wisconsin—and then contact us for a free, no-obligation consultation about your claim for benefits.

7 Important Facts About Filing for Workers’ Compensation in Wisconsin

What do you need to know about your legal rights if you were injured on the job? Here are seven important facts about filing for workers’ compensation in Wisconsin:

1. If You Are an Employee, You Should Be Covered

First and foremost, if you are an employee, you should be covered. In Wisconsin, employers are required to provide workers’ compensation coverage if they pay gross wages of $500 or more in any calendar quarter. This covers essentially all employers in the state. It covers out-of-state employers with employees in Wisconsin as well.

There is a distinction between employees and independent contractors—and, while employees are generally covered, independent contractors generally are not. If you are classified as an independent contractor, you may not be eligible for workers’ compensation benefits, although it may still be worth talking to a lawyer to make sure you have been classified appropriately.

2. If You Are Covered, You Have the Right to File for Benefits

If you are covered under your employer’s workers’ compensation plan, you have the right to file for benefits. The workers’ compensation system exists specifically to protect employees who get injured on the job, and your employer cannot try to prevent you from asserting your legal rights.

Importantly, this does not necessarily mean that your employer will accept your claim. In many cases, employers will dispute their employees’ claims in an effort to protect their bottom lines. The risk of facing issues with your claim is one of several reasons why it is important to have an experienced workers’ compensation lawyer on your side.

3. Your Employer Cannot Legally Retaliate Against You for Seeking Benefits

Just as your employer cannot try to prevent you from asserting your legal rights, it also cannot retaliate against you for seeking benefits. This is clear under Wisconsin law. If your employer retaliates against you illegally, your lawyer may be able to help you recover additional compensation.

Retaliation can take many forms; and, as an employee, it is important to know when you are (or might be) a victim. Firing you, demoting you, reassigning you, and reducing your pay are all examples of actions that could constitute retaliation. If you experience any of these after filing for benefits without a seemingly valid justification, you will want to discuss your options with your lawyer promptly.

4. Workers’ Compensation Covers Your Medical Costs Right Away

In Wisconsin, workers’ compensation covers your medical costs from the day you get injured. You have the right to choose your own doctor under Wisconsin law—your employer cannot tell you were to go. If you are not satisfied with the doctor you choose, you can change your doctor once without your employer’s approval. But, after the first change, “any further change may be made only by mutual agreement between the employee, employer and insurance carrier.”

A challenge that many injured workers face is deciding when to return to work. As the Wisconsin Department of Workforce Development (DWD) explains:

“If you have been advised by the doctor to return to work, an attempt should be made to return to the job even if you may not feel 100% up to it. By returning to work as directed by your doctor, you will be in a stronger position to obtain additional benefits if you attempted to return than if you refused an offer of work.”

Of course, returning to work too soon can be risky—as it can potentially lead to additional costs, pain, and complications that could (and perhaps should) have been avoided. If you have questions about whether you should return to work, your lawyer can help you make an infor

Common Misconceptions About Workers Compensation in Wisconsin

Common Misconceptions About Workers Compensation in Wisconsin

Common Misconceptions About Workers Compensation in Wisconsin

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.

Delays, Denials & More: Potential Issues When You File for Workers’ Compensation in Wisconsin

Delays, Denials & More: Potential Issues When You File for Workers’ Compensation in Wisconsin

Workers’ Compensation Claim Issues in Wisconsin

When you have a workers’ compensation claim in Wisconsin, your employer (or its insurance company) is supposed to pay the benefits you are owed. You are supposed to be treated fairly, and you are not supposed to have to fight for the benefits you deserve.

Unfortunately, this doesn’t always happen.

Injured and sick employees routinely run into issues when filing for workers’ compensation benefits in Wisconsin. Issues can arise at all stages of the process—from when you try to file your claim to when you are going through the recovery process. If you are dealing with a work-related injury or illness, keep reading to learn more.

5 Potential Issues When You File for Workers’ Compensation

Here are five examples of issues that can arise when you file for workers’ compensation in Wisconsin:

1. Denial of Your Workers’ Compensation Claim

Many employees who have valid workers’ compensation claims nonetheless find themselves dealing with a denial. Some examples of common reasons for denying employees’ claims for workers’ compensation benefits include:

  • Your injury or illness isn’t work-related
  • The insurance company can’t determine the cause of your injury or illness
  • You didn’t report your injury or illness on time
  • You don’t qualify for benefits because you were intoxicated when you got injured
  • You don’t qualify for benefits because you faked your injury or intentionally injured yourself

While all of these can potentially be valid justifications for denying a workers’ compensation claim, wrongful denials are far too common. With this in mind, if you have received a denial and believe that you are entitled to benefits, you should not give up on your claim. Instead, you should promptly consult with an experienced Madison workers’ compensation attorney who can help you make informed decisions about your next steps.

2. Delays that Leave You Without the Benefits You Need

Unnecessary delays are common as well—and, sometimes, it can be difficult to tell whether you are dealing with a delay or a denial. If you are like most people, when you are dealing with an injury or illness that requires medical attention, you cannot afford to wait any longer than necessary to receive the benefits to which you are legally entitled.

When you have a workers’ compensation claim, your employer (or its insurance company) is supposed to process your claim efficiently. It is supposed to investigate your claim in good faith, and it is supposed to inform you of any issues with your claim so that you can address them promptly. If you have been waiting weeks to receive benefits or have questions you can’t get answered, you should consult with a Madison workers’ compensation attorney in this situation as well.

3. Denial of Disability Benefits Because You Should Be Able to Work

In Wisconsin, there are two main categories of workers’ compensation benefits: (i) medical benefits; and, (ii) disability benefits.

Medical benefits cover the costs of treating a work-related injury or illness, and eligible employees are entitled to these benefits regardless of whether they need to miss time from work. However, disability benefits are only available to those who need to miss work for at least three days.

Sometimes, employees will receive medical benefits but have their claims for disability benefits denied. If your employer (or its insurance company) says you should be able to work but your doctor says otherwise, this is another scenario in which you may need legal representation for your claim.

4. Underpayment of Disability Benefits

Along with disability benefit denials, underpayment of disability benefits is a common issue as well. Employers (and their insurance companies) may underpay injured employees’ disability benefits for various reasons—some of which reflect honest mistakes and some of which do not.

Calculating disability benefits is complicated; and, depending on the severity of your on-the-job injury or illness, you may be entitled to various different types of disability benefits (including temporary partial (TP), temporary total (TT), permanent partial (PP), and permanent total (PT)). If you do not believe that you are receiving the full disability benefits to which you are legally entitled, an experienced Madison workers’ compensation attorney can determine if you are entitled to more.

5. Premature Termination of Medical or Disability Benefits (or Both)

Even if your workers’ compensation claim is successful initially, you could still find yourself facing financial challenges if your employer (or its insurance company) terminates your benefits prematurely. This is a common issue as well; and, as an injured or sick employee, it is critical to make sure you know when your workers’ compensation benefits should end.

So, when should they end? Generally speaking, you should be able to continue receiving medical benefits until you get better or reach your “maximum medical improvement.” You should be able to continue receiving disability benefits for as long as you are unable to work (or limited in your ability to work)—though there are additional steps involved in transitioning from temporary to permanent disability benefits.

How to Deal with These Issues and Seek the Workers’ Compensation Benefits You Deserve

Let’s say you have a workers’ compensation claim in Wisconsin. What can you do to make sure you receive the benefits you deserve?

If it’s not already too late, it’s best to work with an experienced Madison workers’ compensation attorney from the beginning of the process. Your attorney will be able to explain everything you need to know and handle your workers’ compensation claim for you while you focus on your recovery.

If you filed for workers’ compensation and are now struggling to obtain full benefits, this is also a scenario in which an experienced attorney may be able to help. Your attorney can work to determine what has gone wrong and why, and then your attorney can use this information to determine what next steps he or she may be able to take on your behalf.

Need Help With Your Workers’ Compensation Claim? Contact Us for a Free Consultation Today

Do you need to know more about your right to workers’ compensation benefits in Wisconsin? If so, we invite you to get in touch. To schedule a free consultation with a Madison workers’ compensation attorney at Mays Law Office, please call 608-291-7609 or contact us online today.

Ignition Interlock Requirements in Wisconsin

Ignition Interlock Requirements in Wisconsin

As a defense attorney, representing clients charged with DUI or OWI (Operating While Intoxicated) offenses in Wisconsin requires a deep understanding of not only the legal and procedural aspects of these cases but also the impact of certain penalties, such as the installation of ignition interlock devices (IIDs). Ignition interlocks play a critical role in the sentencing phase of DUI cases, and it’s crucial for both defense attorneys and their clients to fully comprehend the requirements and potential consequences. Let’s take a closer look at the ignition interlock requirements in Wisconsin.

What Is an Ignition Interlock Device?

An ignition interlock device (IID) is a breathalyzer system installed in a vehicle to prevent an individual from starting the car if their blood alcohol content (BAC) exceeds a preset limit, which is .02 in Wisconsin. The device requires the driver to blow into it before starting the car, and in some cases, while driving. If an alcohol level is detected above the determined preset, the vehicle will either fail to start or prompt a rolling retest, requiring the driver to blow again during the journey.

From a defense attorney’s point of view, understanding when and why an IID is mandated is critical for advising clients about the potential consequences of a DUI conviction.

When Are Ignition Interlocks Required?

Under Wisconsin law, ignition interlocks are often a mandatory penalty for individuals convicted of DUI Lawyer or OWI offenses, particularly those with higher BAC levels or repeat offenders. It is important for a defense attorney to understand the specific scenarios in which an IID will be required, as this can have significant implications for their client’s driving privileges, financial situation, and overall lifestyle.

  1. First-Time Offenders with a High BAC:
    • If a first-time offender has a BAC of 0.15 or higher, an IID is mandated as part of their sentencing. This requirement generally lasts for a minimum of one year after the individual’s license is reinstated.
    • As a defense attorney, it is important to inform clients that even for a first offense, if their BAC is high, they may face the installation of an ignition interlock device, which can be both financially and logistically burdensome.
  2. Repeat Offenders:
    • For individuals with prior DUI or OWI convictions, ignition interlocks are required for all subsequent offenses. In cases of repeat offenders, the court often mandates longer IID installation periods, sometimes for several years.
    • A defense attorney should be proactive in negotiating possible reductions in the period of IID installation, especially for repeat offenders who may have made efforts toward rehabilitation or who are facing significant hardships.
  3. Drivers Who Refuse Chemical Testing:
    • Wisconsin imposes strict penalties for individuals who refuse to submit to chemical testing during a DUI stop. A refusal may lead to the mandatory installation of an ignition interlock device, in addition to other consequences like extended license revocations and alcohol education or treatment requirements.
    • Defense attorneys must thoroughly examine the circumstances surrounding the chemical test refusal and explore whether there are legitimate grounds for challenging the refusal in order to avoid the IID requirement.

Understanding the Duration and Cost of Ignition Interlocks

Once an ignition interlock device is installed, the duration of its use depends on the specifics of the case. For first-time offenders with a BAC above 0.15%, the duration of the order is exactly one year, no more, no less. For repeat offenders or those involved in felony DUI offenses, the installation period can extend up to several years. In common practice, for repeat offenders, the IID requirement is for the same duration as the license revocation. However, by statute, in any case the IID requirement can be as low as one year.

From a defense attorney’s standpoint, the client should be made fully aware of the financial burden posed by the installation and maintenance of the ignition interlock. The monthly costs associated with IIDs can range in a monthly average from $70 to $150 per month, which consists of both the installation and ongoing maintenance, including calibration and monitoring. However, different vendors apportion installation fees and rental fees differently.

While an IID is installed to ensure compliance with DUI regulations, there are strict guidelines that must be followed to avoid further penalties. Clients must understand that the ignition interlock requires regular breath tests, not only before starting the vehicle but also periodically while driving. Failure to comply with these rules can result in significant consequences. In particular, tampering with an IID is a criminal offense subject to jail time, as is failing to install an IID that is operated by an individual subject to an IID order.

A defense attorney’s role is to help ensure that clients fully understand their obligations under the court’s order.

Legal Options for Challenging or Modifying IID Requirements

As a defense attorney, it is critical to look for every possible avenue to help your client avoid unnecessary or overly harsh penalties. In cases where an IID is required, there may still be room for negotiation or legal challenges:

  1. Negotiating a Reduced IID Period: In some cases, especially for first-time offenders, it may be possible to negotiate with the prosecution for a reduced IID installation period or for alternative sentencing options. As mentioned above, even where the revocation period ordered by the Court may be as much as 36 months, the mandatory minimum IID period remains 12 months. And for first-time offenders with a BAC over .15, firm negotiations may result in the parties formally stipulating to a BAC of .149 or below, thereby avoiding the IID requirement altogether. In the case of particularly intransigent prosecutors unwilling to enter into such an agreement, an aggressive defense advocate can request a trial specifically on the issue of whether the client’s BAC actually was above .15 at the time of driving, versus the time of operation, due to post-operation absorption of recently consumed alcohol. The attorneys at Mays Law Office have enjoyed great success with all three approaches.
  2. Challenging the IID Requirement: In certain situations, a defense attorney may be able to challenge the requirement of an IID altogether, particularly if there are valid concerns regarding the circumstances of the DUI charge or the client’s eligibility for certain exemptions.
  3. Seeking Payment Assistance: Wisconsin offers a payment assistance program for those unable to afford the cost of the device. As a defense attorney, ensuring your client is aware of this program and helping them apply can significantly reduce the financial strain caused by an IID requirement.
  4. Assisting with Compliance: In Wisconsin, the IID requirement applies to any vehicle owned or operated by the subject of the order. This means that in order to obtain any form of driver’s license, IIDs must be installed not only on the vehicle that the subject intends to drive, but also on any vehicle titled in his or her name. In other words, often spouses’ or children’s vehicles, company vehicles, collector vehicles in storage, or even vehicles that may have been scrapped or totaled years or even decades ago and never retitled. It can be a seemingly overwhelming situation to face, and the assistance of a skilled and experienced attorney is critical for making sure you can get back on the road with as little delay as possible.

Conclusion

In order to achieve the best possible outcome for your case, it is critical for your defense attorney to understand the specific situations in which an IID is required, the challenges it presents for clients, and strategies and techniques for mitigating or eliminating this requirement. From negotiating the duration of the IID to seeking potential vehicle exemptions or payment assistance, it is our goal at Mays Law Office to advocate for the best possible outcome for our clients, minimizing the impact of DUI penalties and helping them regain their driving privileges with as few complications as possible.

LLAMAR AHORA