Published: March 1, 2008
Author: Troy Thompson
Employment Law of the Month
Under the Wisconsin Worker's Compensation Act, an employee can make a claim for worker's compensation benefits when the employee sustains injury as a result of a single traumatic event or when an appreciable period of workplace exposure constitutes a material contributory causative factor in a condition's onset or progression over an extended period of time. When an employee pursues an occupational disease claim, there is frequently a dispute among worker's compensation insurance carriers as to which one of the insurers, if any, should be responsible for defending against the claim and paying any benefits which are found due and owing.
When a single employer has had multiple worker's compensation insurers over the years, the full liability for an occupational disease is generally imposed upon the last insurer whose policy was in force as of the occupational disease "date of injury." The Wisconsin Supreme Court has stated that the occupational disease date of injury is the date the occupational disease ripened into a disabling affliction. In this regard, the Court has explained:
An occupational disease is a process, usually extending over a considerable span of time. It has a beginning, relevant on the issue of causation. It has a progression but this can vary in individual cases. There can be a steady deterioration, swift or slow, but uninterrupted. There can be improvement and relapse. There can be recovery and re-occurrence. There can be recovery, period. On a claim for benefits for permanent disability, the most important is the question, "when did the occupational disease ripen into a disabling affliction?"
In other words, no occupational disease date of injury will be found until the condition has ripened sufficiently into a "disabling condition." At that time, the insurer on the risk as of the occupational disease date of injury is generally liable for all occupational exposure that contributed to the occupational disease.
An employee who suffers from an occupational disease can make claim for the full panoply of benefits under the Act. Those benefits may include: (1) temporary total and/or partial disability benefits to replace lost wages; (2) permanent partial disability benefits to compensate for a permanent injury; (3) medical treatment and mileage expense; (4) in some cases, loss of earning capacity benefits; and (5) in some cases, vocational rehabilitation benefits. Other benefits may be available to employees under certain circumstances.
For example, an injured employee is generally entitled to temporary disability benefits for so long as the employee is restricted from working while in the "healing period." The healing period is the period prior to the time when the injured employee's condition becomes "stationary," and it ends when there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence (i.e. until an end of healing). Conversely, an injured employee is not entitled to temporary disability benefits while in the healing period when the employer offers light duty work within the employee's temporary work restrictions. Therefore, many employers and insurers are aggressive in seeking to provide injured employees with light duty work within their temporary work restrictions. Other employers are unwilling to create light duty work for an injured employee and would prefer that the employee stay home while temporarily disabled from working by virtue of an occupational disease.
There are several ways in which employers and their insurers can defend against occupational disease injury claims:
In all cases, employers should timely report all alleged work injuries to their worker's compensation insurance carriers, irrespective how large or small. Employers should also communicate to their insurers any concerns they may have about claimed injuries in order that the insurers can complete a full investigation into the claims.
- Develop a medical causation defense through an independent medical record review and/or independent medical examination. Under this defense, the independent medical examiner opines that the work at issue was not a cause of the employee's medical condition. Alternatively, the examiner may opine that the occupational disease "ripened" into an occupational disease before or after a particular insurer went on/off the risk.
- Identify significant errors or omissions in a treating health care provider's medical records which suggest the physician had a misunderstanding of the injured employee's pre-injury health history or post-injury physical activity. A doctor's opinions are only as good as the information provided. If the doctor's opinions are based upon faulty assumptions, then the opinions may very well be unreliable.
- Develop a factual defense through witnesses to the alleged mechanism of injury. For example, coworkers may refute the injured employee's claims as to the physical nature of the work performed.
- Develop a factual defense through pre-accident or post-accident admissions by the injured employee made to witnesses or during a recorded statement. In some cases, an injured employee's story changes. When that occurs, it should call into question the remainder of the employee's statements.
- Develop a factual defense through surveillance of the injured employee that shows the employee is capable of engaging in physical activity in excess of what the employee led the employee's doctors into believing the employee could perform. We have all heard stories of an employee who claimed to be more injured than he or she really is. In many cases, insurers have been able to reduce or avoid significant liability exposure by showing that the employee misled his or her doctors into believing the employee was worse off than he or she really was.
Troy D. Thompson is an attorney with Axley Brynelson, LLP. He can be reached at 608.283.6710 or email@example.com.
This article was featured in the March 2008 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul C. Glazer and published by M. Lee Smith Publishers LLC. Reproduced here with the permission of M. Lee Smith Publishers, LLC.
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