What Happens if You Suffer a Serious Injury at Work, and Can No Longer Continue Your Profession?

David McCormick

If a worker suffers an on-the-job injury and is unable to continue in their profession because of that injury, whether or not there is a claim for their diminished ability to earn wages in the future hinges on how the injury is defined.  Wisconsin worker’s compensation law distinguishes injuries as either “scheduled” or “non-scheduled.” This is an important distinction as only “non-scheduled” injuries allow an injured worker to make a “loss of earning capacity”.

A “loss of earning capacity” claim seeks to compensate an injured worker for their diminished ability to earn wages when they can no longer perform their job duties because of that work-related injury, their employer refuses to accommodate their permanent work restrictions, and the employer fails to pay them at least 80% of their wage at the time of the injury.  This type of claim is onlyavailable for “non-scheduled” injuries. “Non-scheduled” work injuries occur to the torso, neck or head, including psychological or mental injuries. For example, if a worker suffers a low back injury this would be described as a “non-scheduled” injury. Once defined as a “non-scheduled” injury, the injured worker can make a claim for their diminished ability to earn wages. If that injured worker cannot return to their profession because of their low back injury, they potentially have a claim for a loss of earning capacity that can be valued in the hundreds of thousands of dollars. A “scheduled” injury occurs to body parts outside the torso, neck or head. The Wisconsin Legislature has devised a statutory “schedule” assigning compensation benefits for different body parts. (See, Wis. Stat. § 102.52)  Let’s look at some examples:

Sarah is a nurse at a hospital in Milwaukee, Wisconsin.  Sarah is on a shift and is helping a 200 lbs. patient out of his wheelchair. Sarah has done this hundreds of times; however, this time the patient loses his balance.  Instinctively, Sarah extends her arms and successfully catches the patient and the patient avoids injury.  However, Sarah was not as lucky, as she immediately experiences severe right shoulder pain caused by the stress of catching a 200 lbs falling patient.  Sarah reports her injury to her employer, and receives medical treatment for her right shoulder injury, which included a surgery.  At the end of treatment, Sarah’s treating physician determines Sarah’s torn ligaments in her right shoulder has resulted in her losing 10% functional disability rating for that shoulder due to her lack of strength and mobility.  According to the 2015 statutory schedule, her 10% permanent partial disability rating entitles her only to $16,100. Unfortunately, a worker who suffers a “scheduled” injury is ineligible to make a loss of earning capacity claim and only has a potential retraining claim available.

Let’s take the same fact scenario, but suppose Sarah suffered a low back injury, reports it to her employer, and follows up with a doctor to treat her symptoms.  A month passes and Sarah’s low back symptoms continue to deteriorate and she develops radiculopathy extending into her leg.  Sarah is sent for an MRI, which shows she has 2 herniated discs in her lumbar spine that are putting pressure on her nerve roots.  Sarah than undergoes a laminectomy to remove disc material.  Months of rehabilitation later, Sarah’s low back pain and right leg numbness have not resolved.  Sarah then undergoes a two level lumbar fusion surgery.  At the end of treatment, Sarah’s treating physician determines that she will have to live with ongoing low back pain and has significant permanent restrictions of no lifting more than 10 lbs.  Sarah is referred to a vocational rehabilitation consultant, whom determines that she is permanently and totally disabled.  According to Wisconsin’s worker’s compensation law, if Sarah is found permanently and totally vocationally disabled she would be entitled to indemnity benefits of 2/3 of her average weekly wage for the rest of her lifetime.  Assuming Sarah is 50 years old and is a maximum wage earner, Sarah’s accumulated lifetime benefit payout could be in excess of $1,000,000.

There are many law firms around the state that refuse to represent injured workers who suffer a “scheduled” injury. This is because compensation for a “scheduled” injury does not yield as much compensation as a “non-scheduled” injury. However, The Previant Law Firm accepts all types of worker’s compensation claims and would never turn an injured worker away simply because they have a “scheduled” injury.

Worker’s compensation claims can be stressful and permanently impair your ability to return to your job. At The Previant Law Firm, we understand how devastating a work injury can be and are here to help you at any stage of your claim.  We are available to answer your questions and if your claim is denied, we will fight for you and appeal the denial of your benefits.  If you have questions on worker’s compensation, personal injury, or social security disability, please feel free to call The Previant Law Firm, S.C. at (414) 240-1185.