Category Archives: Workers’ Comp’ Basics

The “As Is” Rule: Disabled Workers Get Hurt More Often

A pre-existing weakness does not disqualify the worker from worker’s compensation benefits

A study by the Center for Injury Research and Policy (CIRP) found that workers with disabilities were more than twice as likely to experience occupational injuries than those without disabilities. The study was based on data obtained by the National Health Interview Survey (NHIS) which used computer-assisted personal interviews to collect information about injuries. The researchers were part of an institute at Nationwide Children’s Hospital and the Ohio State University. The study was published online in the American Journal of Public Health. The study also found that people with disabilities experienced non-occupational injuries more than three times those for workers without disabilities. The author of the study noted that increases in occupational injuries to workers with disabilities showed the need for better accommodation and safety programs in the workplace.

In most States, as in Wisconsin, a basic principle of law is that the presence of a pre-existing weakness does not disqualify the worker from worker’s compensation benefits.

From a worker’s compensation perspective, disability and lost work time stemming directly from a work accident presents a straightforward assessment on causation. The circumstances of an accidental injury superimposed on a pre-existing, progressively deteriorating condition is a trickier question. In most States, as in Wisconsin, a basic principle of law is that the presence of a pre-existing weakness does not disqualify the worker from worker’s compensation benefits. This approach is not unique to worker’s compensation.  It has always been a basic principle of Continue reading

What Should I Do If I Receive A Bill From My Workers’ Compensation Doctor?

Put your money back in your wallet. Your employer's insurance carrier is responsible for medical treatment of work-related accidents.

Today we have a guest post from our colleague Amanda Katz of New York.

Question: I received a bill from my doctor for treatment relating to my workers’ compensation claim. Am I responsible for payment?

Answer: You do not have to pay your doctor for treatment resulting from your work-related accident.

There is often confusion about paying doctor bills related to work-related accidents, but the reality is relatively simple. Take for example Joanna. While at work, a heavy box fell on Joanna’s foot. As a result, she was unable to walk and had to immediately go to the emergency room. Following treatment for her broken foot, Joanna received an expensive bill from the hospital. What should Joanna do?

Joanna should not pay the bill!

Under workers’ compensation law, Continue reading

A Word Of Caution On Facebook

A word of caution to injured workers: use Facebook at your own risk. An Arkansas Court of Appeals has held that Facebook photos can be used to deny worker’s compensation to an injured worker. The photos showed a man drinking and partying at a time he claimed he was in excruciating pain. The Appeals Court found there was no abuse of discretion in allowing the photographs into evidence because they had a bearing on his credibility.

Our office routinely cautions injured workers against any Facebook postings after a work injury for just that reason. While clients may feel that this impinges on their “private” life, they need to be aware that the insurance company will scour the internet, past employment histories, and medical records for any information that can be used in defense of a claim. Whether or not the photos are related to the injury or the need for medical care, they can often affect client credibility. In fact, we have dismissed several claims because of Facebook postings—and had to salvage some settlements due to post-compromise social media postings! Tom Domer is one of the editors of the national magazine for the Workers Injury Law and Advocacy Group (WILG) called the Worker’s First Watch. This month’s issue contains an article (starting on page 37) on the dangers of social media and its use against injured workers and worker’s compensation proceedings (the link is to a PDF document).

Temporary Employees Cannot Be Excluded From Workers Compensation

Temporary employees are eligible for workers' compensation benefits.

Today we have a guest post from our colleague Paul McAndrew of Iowa.

According to a recent decision by the Texas Supreme Court, a temporary employee cannot be excluded from an employers’ workers’ compensation policy.

In 2005, Rafael Casados was killed on his third day at work at a grain storage facility owned by Port Elevator-Brownsville L.L.C. Because Casados was a temporary employee of Port Elevator at the time of his death, he was initially awarded a liability ruling of $2.7 million directly from Port Elevator. However, according to the latest Supreme Court ruling, Casados’s family should receive remedy under Port Elevator’s workers’ compensation policy instead. Port Elevator’s insurance provider is liable for Casados’s death benefits, despite the fact that Port Elevator never paid workers’ compensation insurance for any of their temporary employees.

According to the decision: “If Port Elevator’s policy had set out certain premiums solely for temporary workers and Port Elevator had not paid those premiums, Casados would still have been covered under the policy and the failure to pay premiums would be an issue between Port Elevator (their insurance provider).”



Photo Credit:sixninepixels /

My Injury Was My Fault. Does This Mean I Can't Collect Workers' Comp'?

If you were not following your employer's safety rules, you can still collect workers' comp', but staying safe is always your best bet.

Workers’ Comp is “No Fault” (even if it is the worker’s fault).

Workers may be reluctant to file a workers’ comp claim is they feel the injury is due to their own fault. Sometimes they feel that the injury was due to their own violation of a safety rule. In some states, this could bar a workers’ comp, recovery—but not in Wisconsin. An injury caused by the employee’s failure to use a safety device or adhere to a safety rule results in a 15% decrease in workers’ comp benefits, to a cap of $15,000, but the worker can still claim benefits. A worker earning $600/week, with a $400/week disability rate would only lose $60/week.

A worker’s failure to use a safety device causing injury will not reduce benefits if the device isn’t adequately maintained or easily accessible, nor will a worker’s rule violation reduce benefits if the safety rule is unreasonable or not reasonably enforced.

Employers and insurers sometimes deny claims that involve a worker’s intoxication or use of non-prescription drugs. This is inappropriate. However, the benefits can be reduced by 15% if the injury is due to intoxication or drug use.

Does Going Back To Work Ruin My Comp Case?

Today we have a guest post from our colleague Todd Jones of New York.

Does returning to work ruin your workers’ compensation case?

Not at all! This question comes up a lot in workers’ compensation cases. When someone is injured they have to balance their personal and professional obligations while including their injury as a new variable.

This is completely understandable. Often times people want to try to get back to work but are not sure if their body will hold up. This uncertainty can cast a shadow over everything a person has to consider when they have a work injury.

First and foremost you should speak to your doctor and find out what you are physically capable of. While your injury may be improving, you may not be able to return at 100%. If you can only work part-time or in some other lesser capacity, you may be entitled to an award for reduced earnings.

For example, Joe made $900 per week before he was hurt, but because of his injury can only work in a limited capacity and make $600 per week now. If it is found that the injury is the cause of that reduced wage, then Joe may be entitled to 2/3 the difference – or a $200 award – while his injury causes that reduction.

If your doctor clears you to return to work in at least a limited capacity, you should be sure to keep track of the paperwork provided to you by both your doctor and your employer. “If you have questions about reduced earnings, and whether this might be an issue on your case, be sure to consult with an attorney.”

Finally, there are a number of issues that can continue to arise on any claim. One of them is the potential for a “reduced earnings” award that is the result of a person’s returning to work, but not at full duty or full time.

A Return To Work Checklist

  1. Doctor’s note and limitations.
  2. Letter from employer about your return to work.
  3. Paystubs and tax information following your return to work.
  4. Continued reports from your doctor.

And most importantly, if you return to work but find that your condition is getting worse or your symptoms increase, see your doctor immediately and further discuss how you should proceed.

NFL Concussion Suits Barred by “Exclusive Remedy”? Why can’t I sue my employer?

We get calls every day from angry injured workers who want to sue their employer for negligence. It could be an employer removing a guard on a machine, a foreman ignoring a safety rule, or an injury caused by an employer’s failure to train an employee. Many employees are genuinely and bitterly disappointed when we explain a worker cannot sue his employer for negligence and that his only “exclusive” remedy is through worker’s compensation.

Aaron Rodgers concussionIn liability suits filed by hundreds of former pro football players who suffer from concussion-related injuries, the players claim the league negligently mislead them about the dangers of concussions. Attorneys for the injured players indicate it is likely the NFL will argue that football players should be covered exclusively by worker’s compensation.

The deal cut by employers and workers in Wisconsin in 1911 still stands: Employers give up the right to common law defenses (contributory and co-employee negligence, assumption of risk) for a fixed schedule of benefits; employees give up the right to sue their employer in tort (and to recover tort-like damages) in return for worker’s compensation benefits. No matter how nefarious the employer or Continue reading

Beware Part Time Employment

Workers' Compensation will only cover you for the specific job on which you got hurt.

Wisconsin pays worker’s compensation benefits based only on the job on which an employee works, even if the employee’s injury makes it impossible for him to work in his regular job. In these difficult economic times, many workers are forced to take a second part time job to supplement their incomes. Unfortunately if the worker is hurt at the part time job, only the wages earned from the part time job will be used to calculate worker’s compensation benefits, even if an injury on the part time job means the worker will not be able to return to his full time job.

For example, a cook re-hired at a former wage by the restaurant where he was hurt could not claim a Loss of Earning Capacity based on his inability to return to his second job as a cab driver. Continue reading