Renewed Importance of Occupational or “Overuse” Injuries in Wisconsin Worker’s Compensation Cases
Occupational exposure injuries have become increasingly important in Wisconsin worker’s compensation law due to recent changes in state statute. For those unfamiliar with how worker’s compensation claims work in Wisconsin, state law recognizes two basic types of work injuries demonstrated by the following examples.
Traumatic Injury Example
A worker falls off a ladder and breaks his arm. This is called an “accidental” or “traumatic” injury.
Occupational Injury Example
A worker performs stocking work a number of months, requiring repeated, heavy, overhead lifting, and develops a shoulder condition requiring surgery. This is called an “occupational disease” or sometimes an “overuse” or “repetitive motion” injury.
Both of these injuries are equally compensable under Wisconsin’s workers compensation statute. Sometimes the decision about whether an injury should be characterized as a traumatic injury versus an occupational exposure injury is very straightforward. For other cases, however, it may be possible to bring the same claim under either theory. Deciding which approach to take requires consideration of an individual’s work history, medical history, and other evidence that may come into play at a worker’s compensation hearing. (For a more detailed discussion, see this thorough blog post describing occupational exposure claims).
Two changes to Wisconsin’s worker’s compensation law that took effect this year added another layer to the analysis when deciding whether an occupational exposure claim is most appropriate for a given injury.
Change to the Statute of Limitations
The first change to WI worker’s compensation law shortened the statute of limitations for traumatic injuries from 12 years to 6 years from the date of injury or the last date indemnity benefits were paid (indemnity benefits meaning benefits paid to the worker for things other than medical expense, like wage replacement or permanent disability). The statute of limitations for occupational exposure claims, however, remains at 12 years. It is worth noting that the reduced statute of limitations for traumatic injuries should only apply to dates of injury on or after March 2, 2016.
The change has a number of implications. First, injured workers and their attorneys will want to consider filing an application for a hearing to “toll” or put the statute of limitations on hold. Second, workers who have a case that could have previously proceeded as a traumatic or occupational exposure claim, but are beyond the new six year statute of limitations, only have the option of an occupational exposure claim. Third, cases filed as occupational exposure claims may have the added protection of a longer statute of limitations.
Apportionment of Permanent Disability
The second change to WI worker’s compensation statutes says that when assessing the permanent partial disability (PPD) resulting from a traumatic work injury, doctors must breakdown what PPD was caused by the work injury, and what PPD was caused by the “other factors’ impacting the injured body part, whether before or after the work injury. The worker’s compensation carrier is not liable for any PPD attributed to “other factors.” The new law fails to define what constitutes “other factors,” creating a great deal of ambiguity. For example, can a back condition that was completely asymptomatic before the work injury constitute an “other factor” that reduces PPD for a workplace back injury? Questions like this will almost certainly produce a lot litigation in the coming years. Attorneys for injured employees will likely argue that something has to qualify as a “disability” before the work injury to constitute an “other factor.” Attorneys for the insurance companies, on the other hand, will likely push for a definition of “other factors” that takes any possible health condition into consideration. However, the new apportionment provision does not apply to occupational exposure claims, presenting a potential advantage for occupational exposure over traumatic injury claims. The new law also states that any preexisting disability caused by occupational exposure with the same employer is compensable and will not be treated as an “other factor.” Thus, the new apportionment provision may also encourage worker’s to bring a claim as both traumatic and occupational, when possible, to avoid having PPD reduced under the new apportionment provision.
A Worker’s Compensation Attorney Can Advise You
Determining whether an occupational exposure claim is the best way to proceed requires analyzing the unique facts of each potential worker’s compensation claim. If your worker’s compensation claim has been denied, or you believe you need assistance proceeding with your worker’s compensation claim, please contact the workers compensation attorneys at Hawk Quindel for a free consultation.
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