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Worker’s Compensation Claims Related to Occupational Diseases After Retirement

When a work-related disease develops over time and results in the death or disability of a worker years after his or her retirement, there are often challenging legal questions as to the identity of the liable employer and their worker’s compensation carrier for purposes of filing a claim under the Wisconsin Worker’s Compensation Act. The issue becomes even more complex when a worker has had several employers that contributed to the condition over a long career.

Occupational Diseases & Claiming the Correct Date of Injury

Unlike a work injury resulting from a single traumatic event (e.g. a leg break after falling from a ladder), occupational diseases develop gradually over time due to extended use of a body part or exposure to harmful substances (e.g. asbestos and silica). In order to bring a worker’s compensation claim for an occupational disease, an applicant must identify one date of injury as well as one liable employer and their worker’s compensation carrier. This is easy to do when a worker has been with the same employer for their whole career, or when it is known that only one employer contributed to the condition. But what if several employers contributed to the occupational disease?

Under the occupational disease standard outlined in Wis. Stat. § 102.01(2)(g)2, if the date of disability occurs after the cessation of all employment that contributed to the disability, the date of injury for purposes of bringing a worker’s compensation claim is the worker’s last day of work for the last employer that contributed to the occupational disease. For example, Susan worked for three companies that exposed her to asbestos throughout her career: Employer 1, Employer 2, and Employer 3. Susan’s last exposure to asbestos was with Employer 3, and ten years after retirement she develops an asbestos-related illness. Despite being exposed to asbestos at Employer 1 and Employer 2, Susan may only bring her worker’s compensation claim against Employer 3, because Employer 3 was the last employer that contributed to her asbestos exposure. Susan’s date of injury for purposes of bringing her worker’s compensation claim would be the last day she worked for Employer 3.

If more than 12 years has passed since a worker’s last occupational exposure, the last contributing employer and their worker’s compensation carrier are relieved from liability under the statute of limitations. In this case, a worker may instead file a claim for the same worker’s compensation benefits against the Wisconsin Work Injury Supplemental Benefit Fund. There are no differences in benefits available to injured workers who file their worker’s compensation claim against the Wisconsin Worker Injury Supplemental Benefit Fund as compared to a private worker’s compensation carrier.

Filing for Worker’s Compensation After a Loved One Dies of Occupational Disease

If a worker dies due to an occupational disease and leaves behind a dependent, that individual may be entitled to death benefits under the Wisconsin Worker’s Compensation Act. When an occupational disease causes death, the death benefit is up to four times the worker’s average annual wage during his or her last year with the last employer that contributed to the occupational condition (subject to an annual cap). Under the Worker’s Compensation Act, a “dependent” is a spouse, child, parent, or other close relative that was totally dependent on the affected worker at the time of death. In death benefit cases, the dependent typically takes the form of a surviving spouse.

When it comes to the 12-year statute of limitations in occupational disease death benefits cases there is an important corollary worth noting: the statute of limitations begins running on the date of death, not the date of injury. Said differently, unlike a typical occupational disease case where the statute of limitations begins running on the last day worked for the last contributing employer, the statute of limitations in death benefit claims begins running on the date of death. Nevertheless, even if a claim for death benefits is not brought against the liable employer and worker’s compensation insurer within 12 years following a worker’s death, a claim may still be brought against the Wisconsin Work Injury Supplemental Benefit Fund.

If you or a loved one has been affected by an occupational disease and have questions about your worker’s compensation rights, contact Hawks Quindel’s experienced worker’s compensation attorneys for a free evaluation of your claim.

Brandon Jubelirer

Worker's Compensation Attorney at Hawks Quindel, S.C.
Attorney Brandon Jubelirer represents injured workers in a variety of worker’s compensation matters. Having spent his legal education and work experiences focusing on employment-related issues from the perspective of employees, Attorney Jubelirer fully appreciates the challenges Wisconsin’s workers face while navigating the legal system.