Author Archives: Sam Liverseed

Who Is Your Doctor?: Choice of Doctor Under Worker’s Compensation

A common dilemma faced by many injured workers: where to seek treatment following a work injury. Some employers force injured workers to a designated medical provider and many times the injured worker continues treatment with that provider. Workers often assume they cannot switch or see their own physician (which is not correct). Treatment at the employer-designated provider continues until the injured worker is sent back to work, even if the injured worker has not fully healed, which can lead to further injury or employment consequences.

Workers can receive treatment from their own doctor following a work injury.  An injured worker in Wisconsin has a right to two “choices” of treating practitioners. What constitutes a “choice” is defined in Wisconsin Statute §102.41(2)(a) and includes any physician, chiropractor, psychologist, dentist, physician assistant, advanced practice nurse practitioner, or podiatrist. The important aspect of physician choice is that referrals from one doctor to another do not exhaust a choice.    

We frequently receive calls from injured workers who believe that a referral from their primary care doctor to an orthopedic doctor is the second choice. But that is not how the law works.  Only if the injured worker leaves the referral chain do they use their “second choice.” 

A referral from a primary care physician to an orthopedic doctor is a single choice. If the orthopedic doctor refers to a pain management physician, again, it is a single choice. The injured worker has now seen three doctors (Primary Care, Orthopedic, Pain Management), but is still within the same “choice.”  Doctors within the same practice count as a single choice. 

Injured workers need to be aware of their options. Insurance companies may designate a referral to an Orthopedic doctor as the “second opinion” and therefore, the second choice, when really this is still only a single choice. This crucial distinction affords the injured worker the opportunity to receive quality care. 

What happens in an emergency? The employer may arrange for emergency treatment after which the injured worker can choose their own doctor without using a choice. This common-sense provision allows employers to direct emergency care without sacrificing the worker’s choice of quality care in the future. 

The best advice for injured workers is to always obtain a referral from a treating doctor to any other doctor or specialist.  In Wisconsin, the injured worker – not the employer or the worker’s compensation insurance company – controls treatment.

Am I Being Paid Enough?

Injured workers commonly ask whether they are being paid the correct amount of workers’ compensation benefits.  The question usually pertains to the weekly lost time benefits paid during while healing after an injury.  It is a question I take seriously as the weekly benefit is crucial to the injured worker and their family.  This blog post outlines how the weekly benefits are calculated.  If an injured worker has questions about benefits, they should reach out to an experienced workers’ compensation attorney. 

The starting point for calculations is the worker’s Average Weekly Wage. Specifically, when an injured worker is under restrictions by a treating physician following an injury and the employer cannot provide work, or when the injured worker is taken off work completely by a physician, the insurance company owes “temporary total disability” (also referred to as “TTD”).  Temporary total disability is paid at 2/3 of the injured worker’s “average weekly wage” (also referred to as “AWW”). 

For most workers, the average weekly wage is calculated in two ways under Wisconsin law, and the injured worker is entitled to the higher of the two calculations: 

  1. Hourly Rate x 40:

    The first option is the employee’s hourly wage at the time of the injury multiplied by the hours regularly scheduled to work (usually, full-time, or 40 hrs/week).  For example, an employee making $10 an hour, who usually works 40 hours a week, has an average weekly wage of $400 ($10 x 40).

    There are additional considerations for this equation.  For example, shift differentials (especially important to those in the medical field) should be considered as should overtime if the injured worker was regularly scheduled to work overtime hours.  Also, if the employee works alternating shifts from week to week, this needs to be taken into account.  If any of these apply, it is a good idea to reach out to an attorney to discuss whether the amount being paid is correct.  In my experience, insurance companies will ignore overtime payments and shift differentials when calculating the average weekly wage, which reduces the amount owed to the injured worker.

  2. Average Earning in the Year Before the Injury.

    The second option is the actual gross earnings during the 52 weeks before the injury divided by the number of weeks worked during that period.  For example, if an employee earned $52,000 in the 52 weeks before the work injury, their average weekly wage is $1,000.  The number of weeks worked includes any weeks the employee was being paid, including paid vacation or paid sick leave.

    In addition, all taxable earnings must be included when calculating the gross earnings, including overtime, incentive pay, profit sharing, and bonuses.  Other things of value, including meals, rooms, utilities, rent remission, may also be part of the gross earnings.

The injured worker receives the higher of the two calculations.  The AWW is an essential to a claim–affecting all other workers’ compensation benefits.  An injured worker should ensure they are paid the correct amount.  The Worker’s Compensation Act is designed to protect the worker and provide these wage loss benefits.  If you are injured and question the amount paid, contact an attorney.