Understand the Process

How claims start

When you are injured at work, you need to understand the process for filing a claim for worker’s compensation benefits, or contesting a denial of benefits. While your employer is responsible for notifying the insurance carrier of your accident and/or injury, you must complete certain steps in order to ensure your claim is properly filed and to maximize the benefits you receive.

  • The first thing you should do is report the work injury to your employer, whether it is a traumatic injury (workplace accident) or an occupational injury (work activities over time). Your employer must complete an injury report and submit it to their worker’s compensation insurance carrier.
  • If your employer does not report the work injury to the carrier, you can find out who the carrier is here. You can contact the carrier and report the claim yourself, although it is always preferable for your employer to provide them with the injury report.
  • Once the worker’s compensation carrier is informed of a work injury, they will contact you. If you miss work or have a wage loss due to a light duty assignment, the carrier must pay you benefits or set up an examination with a doctor of its choosing – called an “Independent Medical Examiner” or “IME” – within 30 days. If the insurance carrier does not follow through on your claim, a penalty may be assessed against the carrier by the Wisconsin Worker’s Compensation Division. If the carrier has a defense to your claim that does not involve an independent medical examination, it will not pay you benefits or schedule an IME. Contact us right away if your claim has been denied.
  • You have the right to see your own doctor. The claims adjuster may tell you to see a certain doctor or clinic, but you do not have to go to that provider or facility unless it is an IME appointment. Your doctors can give you referrals to as many other doctors as necessary to treat your injury. You can go to one (1) other clinic system or doctor for a second opinion without a referral from your existing doctors, but you can only do that once during your claim. That other clinic system or doctor can also refer you to as many doctors as necessary to treat your injury.
  • The claims adjuster may send a nurse case manager to go with you to medical appointments and talk with your doctors. You do not have to allow this person to be in the room at medical appointments, and you can instruct the nurse case manager to only communicate with your doctors in writing. You also do not have to tell the nurse case manager any of the details of your visit with the doctor.
  • There is no pre-approval of medical treatment in Wisconsin worker’s compensation claims. This is unlike many other states’ worker’s compensation systems, and it is unlike health insurance. A worker’s compensation carrier is not required to pre-approve any treatment, but they may do so as a courtesy. See the medical treatment section for further information on the denial of medical expenses.
  • You should provide your employer with all work and activity restrictions imposed by your doctor or medical provider. It is your employer’s responsibility to offer you work within your restrictions if it is available. If your employer offers you work within your restrictions, you must take it unless the offer is unreasonable. If you do not accept your employer’s reasonable offer of work within your restrictions, worker’s compensation benefits may not be payable to you for lost wages.
  • Do not quit your employment following a work injury. If you quit and your employer later says it would have accommodated your restrictions but you chose to quit, benefits may not be payable to you for lost wages. Always let your employer make the decision on accommodating your restrictions or terminating your employment.

Disputed Claims

  • If your employer refuses to report the work injury to the worker’s compensation carrier, you can obtain the identity of the carrier here. You can contact the carrier and report the claim yourself, although it is always preferable for your employer to provide them with the injury report.
  • Worker’s compensation carriers must pay benefits unless they have a valid defense. A defense is usually one of the following:
    • A factual defense:
      • Coworkers or your employer dispute that the injury occurred the way you said it did
      • There was a delay in your reporting of the injury
    • A medical defense:
      • Your doctor did not put in his/her note that the condition is work-related, or did not comment on the work injury
    • An “Independent Medical Exam” or “IME”, which is a doctor hired by the carrier, disputes the nature of your injury and/or that you injury or medical condition is work-related. There is nothing independent about those doctors. They are hired by the insurance company to provide opinions that minimize the insurance carrier’s obligation to pay benefits under the law

There can also be legal defenses to a claim, although this is less common. Examples are that you were not acting within the course and scope of your employment at the time of the injury, or that you were not performing work activities at the time of the injury.

  • Once the carrier has a defense – and particularly when they have a medical defense – it is very difficult, if not impossible, to get them to start paying worker’s compensation benefits again anytime soon. This is unlike health insurance, where you can appeal a health insurance denial and likely get a decision quickly. With a worker’s compensation denial, no further payment will be made until the case is either settled or decided by a worker’s compensation judge.
  • Defenses can be asserted by a worker’s compensation carrier at any time. Even if the carrier has been paying for months, or years, nothing in the law prevents them from raising a defense saying that they no longer need to pay benefits, or that they should have never paid benefits from the start. Just because a carrier has paid benefits does not mean that their defense – most commonly an IME – will fail. You will need an experienced, qualified worker’s compensation attorney to contest the denial and to respond to any defense raised by the insurance carrier.
  • If your claim has been denied and you still require medical treatment, we advise most of our clients to continue the medical treatment according to what your doctors tell you and bill your health insurance. However, each situation is different and you should contact us right away to discuss your rights.
  • If the carrier obtains an IME, your employer may offer work within that doctor’s restrictions (often no restrictions at all). We advise most of our clients to follow their own doctor’s restrictions to minimize the chance of making your injury or condition worse. However, your situation may be different and you should contact us right away to discuss your rights and obligations under the law.
  • Regardless of the reason for a denial by the worker’s compensation carrier, it is always a good idea to contact a qualified worker’s compensation attorney for advice. Contact us today for a free consultation. In addition to medical treatment, you may have the right to many other types of benefits depending on your situation, wage loss, and permanent damage that results from the work injury, and we can help you receive those benefits.

Medical Treatment

  • Medical treatment is one of the most contested issues in worker’s compensation claims. There is no pre-approval of medical treatment in Wisconsin worker’s compensation. Instead, you must seek appropriate medical treatment and, upon being told that your injury or medical condition is work-related, your medical clinic will submit the bill to the worker’s compensation carrier. The carrier must pay your medical bills unless it has a valid defense to your claim. If it does not pay your medical expenses within 90-180 days without a valid defense, a penalty may be imposed against the carrier.
  • Worker’s compensation carriers can assert a defense to a claim at any time. Just because the carrier has paid worker’s compensation benefits to you, that does not mean that it is admitting liability for your injury or illness. It is actually common for worker’s compensation carriers to obtain defenses from their paid doctors – called “Independent Medical Exams” or “IMEs” – many months after an injury, and particularly when surgery has been scheduled.
  • Your doctors must support the work-related nature of your injury in their notes and in your medical record. If your doctors do not discuss the work injury, or do not say that you need the treatment because of the work injury, the carrier can deny the claim. It is common for your doctors to only discuss your condition and planned treatment in the medical records, such as “Patient presents to the emergency room with low back pain, here is my recommended treatment.” When you seek treatment for any work-related injury or illness, you must clearly state that the condition was caused by your work and you must emphasize to your doctors how important it is to put the facts of your work injury in their notes.
  • Worker’s compensation carriers can take more than 90 days to pay for medical expenses. In addition, if a medical provider submits a bill that is larger than the average charge for a particular service, the carrier can ask the Wisconsin Worker’s Compensation Division to resolve the dispute, which may take even longer. But, if you have unpaid medical bills more than 6 months into a claim, that may be grounds for a penalty against the carrier. You should contact us to discuss if you have large medical bills that have not been paid by the worker’s compensation insurance carrier more than 6 months after treatment.
  • For every injury, your doctors have to determine an end of healing. This means that you have recovered to the point where your condition is as good as it will be for a while. The medical term for this is Maximum Medical Improvement, or a healing plateau. The worker’s compensation carrier must pay all medical expenses, unless they have a defense, prior to the end of healing. After the end of healing period, the carrier must still pay medical expenses that are required to maintain your health. You can also have a renewed healing period, where your condition worsens to the point you need extensive additional care. The carrier is also responsible for those medical expenses after the end of healing, unless they have a valid defense.

Wage Loss Benefits

If you have medical restrictions that cause a wage loss – you are completely off work or are earning less while on light duty – you are entitled to temporary disability benefits while you are in the healing period.

  • Wage loss benefits are based on your Average Weekly Wage, which is your gross wages at the time of the injury. It is the higher of two calculations: 1) your regularly scheduled hours multiplied by your hourly rate (plus overtime rate multiplied by overtime hours if you regularly work overtime), or 2) the amount you earned in the 52 weeks prior to the injury divided by the number of weeks you worked in the 52 weeks prior to the injury.
  • If you are completely off work while in the healing period, you are entitled to 2/3 of your Average Weekly Wage. This is called Temporary Total Disability (TTD) benefits.
  • If you are earning less while on light duty, you are entitled to 2/3 of the difference between your earnings while on light duty and the Average Weekly Wage. This is called Temporary Partial Disability (TPD).
  • No wage loss benefits are payable after the end of healing unless you can claim permanent total disability benefits.

Permanent Disability Benefits

Once you are assessed at the end of healing by your treating doctors, you may be entitled to permanent disability benefits.

  • If you have permanent damage to the injured body part, you may be given a permanent partial disability (PPD) rating by your doctor. This is paid according to a formula. Payments are made regardless of your work status, and typically come in monthly checks from the worker’s compensation carrier.
  • If you receive PPD payments from the worker’s compensation carrier, this is not a “settlement.” The PPD payments must be made unless the carrier has a valid defense to your claim. Your worker’s compensation claim is left open for at least 6 years after you receive the last PPD check. You can cash the PPD checks and still claim more benefits. In other words, cashing the checks does not mean you accept that this is all you are entitled to.
  • If you have permanent restrictions that prevent you from returning to work at your employer, or if you have a wage loss because of your permanent restrictions, you may be entitled to loss of earning capacity benefits or permanent total disability benefits. This is different from the PPD rating.
  • Contact us right away if you are assessed with PPD by your doctor and the worker’s compensation insurance company does not pay the full benefits. Also contact us right away if your permanent restrictions cause a wage loss after the end of healing.

Retraining (Schooling) Benefits

  • If you have permanent restrictions that prevent you from returning to work at your employer, or if you have a wage loss because of your permanent restrictions, you may be entitled to benefits from the worker’s compensation carrier for schooling, if you are under the age of 55.
  • Retraining benefits provide money for tuition, books, meals, mileage, and TTD while you are in school. However, you must follow a certain procedure before being able to claim retraining benefits. Contact us today if the worker’s compensation carrier refuses to pay for your schooling benefits.
  • Your employer has 60 days after being presented with permanent restrictions to offer you a job with less than a 10% wage loss compared to your earnings prior to the injury. If you have more than a 10% wage loss or if your employer lets you go (terminates your employment), you can claim schooling benefits. You can claim schooling benefits even when you remain employed at the employer with more than a 10% wage loss. Your employer cannot retaliate against you for claiming these benefits.
  • You can work part-time up to 24 hours per week and still claim the full retraining benefit from the worker’s compensation carrier.
  • You must begin the process of claiming retraining benefits within a certain period of time after the end of healing. Contact us today if your permanent work restrictions caused more than a 10% wage loss or if you are terminated because of your permanent restrictions

Loss of Earning Capacity Benefits

  • You may be eligible for loss of earning capacity benefits if you have permanent restrictions because of an injury to your back, neck, head or torso, and if your employer either terminates your employment or brings you back to work with more than a 15% wage loss compared to your earnings prior to the injury.
  • Your employer has 60 days after being presented with permanent restrictions to offer you a job with less than a 15% wage loss. If you have more than a 15% wage loss or if your employer terminates you, you can claim loss of earning capacity benefits. You can claim loss of earning capacity benefits even when you remain employed at the employer, as long as you have more than a 15% wage loss. Your employer cannot retaliate against you for claiming these benefits.
  • Loss of earning capacity benefits are payable in addition to TTD and PPD benefits that you have received. You can still claim loss of earning capacity even after accepting the TTD and PPD benefits.
  • Loss of earning capacity benefits are paid at the PPD rate for a certain number of weeks. Often, these benefits are payable for many years into the future if you qualify.
  • Claiming loss of earning capacity benefits is not easy. It requires expert analysis and careful presentation of your case. Worker’s compensation carriers do not pay loss of earning capacity without a fight. Contact us today if you have permanent restrictions because of a work injury to your back, neck, head or body as a whole, and you sustain a wage loss or cannot return to your former job.

Permanent Total Disability Benefits

  • Permanent total disability (PTD) benefits – also known as worker’s compensation disability for life – are payable if you have permanent restrictions because of an injury to your back, neck, head or torso (body as a whole) that prevent you from ever working again. These benefits are paid at the TTD rate for life.
  • Typically, PTD benefits can be claimed if you have permanent restrictions of part-time sedentary work, or if you have permanent restrictions that prevent you from performing the kind of work you have been doing your entire life and you are over a certain age. Most of the time, a jobs expert will need to provide an opinion that you are permanently totally disabled, although a doctor can specifically say you are permanently disabled from work in certain rare circumstances.
  • Claiming permanent total disability benefits is not easy. It requires expert analysis and careful presentation of your case. If you have a permanent injury to your back, neck, head or torso that is very disabling but is not completely obvious (like being in a wheelchair), worker’s compensation carriers do not pay PTD without a fight. Contact us today if you have permanent restrictions because of a work injury to your back, neck, head or body as a whole, and you sustain a wage loss or cannot return to your former job.
  • PTD benefits are usually paid without a fight only if you have very serious, obvious injuries such as being rendered a quadriplegic or paraplegic, a clearly disabling head injury, complete amputation of both legs, both arms, an arm and a leg, and other similar amputations. In addition to PTD benefits for such injuries, you may still be able to claim money for home health care, nursing care, assistants, medical devices such as ramps, wheelchairs, beds, and other modifications to your home or car. A salary may also be claimed for your family members who take care of you. Contact us today if you have home health needs that are not being paid by the worker’s compensation carrier.

Independent Medical Exams and Record Reviews

  • Worker’s compensation insurance carriers often hire “Independent Medical Examiners” or “IME” doctors to dispute your claim for benefits. There is nothing “independent” about those doctors. They are hired guns.
  • The carriers must obtain these IMEs if you have doctor’s notes supporting your work injury, ongoing treatment, and a work-related disability. The carrier usually cannot deny benefits if your doctor supports the claim unless they have a contrary opinion from an IME.
  • Sometimes the IME doctor will agree with you and your doctors but most of the time they do not, otherwise they would no longer be used by insurance carriers. Many of these IME doctors earn a lot of money examining, and disputing, dozens of worker’s compensation claims every month.
  • If you see an IME doctor, the appointment often lasts somewhere between 5 and 15 minutes. Then, later, you get a report about 10-20 pages long stating that you had a strain or minor injury that resolved within a few weeks, or that you do not require any more treatment. The IME doctor can also say that your current problems are due to a pre-existing condition that was not aggravated by, or is independent from, the work injury, or say that you are no longer disabled as a result of the work injury.
  • You may not even see the IME doctor, and instead the doctor may review your records and provide a written opinion on your condition without ever examining you. This is called an “Independent Record Review” or “Medical Record Review.” The worker’s comp insurance company can obtain your medical records without an authorization once you claim a work injury (HIPAA privacy laws protecting your medical records do not apply once you make a claim for worker's compensation).
  • If your claim has been denied by an IME doctor or as a result of a record review, contact us right away. The good news is that most worker’s compensation judges know the score on these doctors and understand how these “examinations” can interfere with an injured worker’s rights to benefits. However, that doesn’t mean you will win. You will need to present the best possible case against the insurance company, and you will need an attorney to deal with your doctors to counter the IME or record review.

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