The Unknown Perils Facing Visiting Nurses and Third-Party Claims

David McCormick

A new situation confronts all those visiting nurses or health care providers (HCP) that work outside the traditional hospital and/or clinic setting. Since many HCP’s conduct patient home visits, and basically work out of their cars, you are now outside the traditional workplace environment of your employer.

Typical injuries facing these HCP’s are car crashes and slip and fall injuries at a patients residence. In these types of injury situations many people wonder if they have a worker’s compensation claim or a personal injury claim. The short answer is you can make both claims.

For those HCP’s injured during these home visits, the differences between a worker’s compensation claim and a personal injury claim could amount to tens of thousands of dollars. Why? It is because of how these two systems work.

As I previously outlined worker’s compensation in Wisconsin is a formula based system where your entire body (from head to toe) is divided up into a number of weeks. Your employer cannot allege that your negligence caused your injuries in an attempt to reduce your benefits. Further, when your injuries force you to miss work, you are paid temporary total disability (TTD) benefits. TTD benefits are tax free, but calculated at 2/3rds of your average weekly wage and capped at $936/week (2016 injuries). If you make more than $936/week you cannot make a claim for these additional dollars in a worker’s compensation claim. Further, your permanent partial disability (PPD) rate is also fixed by the State of Wisconsin.

The following example describes how the process works — if you lost an arm in a work-related injury in 2016, your benefits would be as follows: Loss of an arm at the shoulder is 500 weeks multiplied by the 2016 permanent partial disability rate of $342/weeks totals $171,000. Also, if you were off work for 50 weeks for the loss of your arm and the applicable TTD rate was $936/week, your TTD benefits would be calculated as follows: 50 weeks x $936 equals $46,800. Now, assuming that with the loss of your arm you can no longer work as a HCP, or have to move to a lower paying job. Under this scenario you cannot make a loss of earning capacity claim. The last major components of a worker’s compensation claim are the claims are heard before an administrative law judge and not a jury, your spouse cannot make a loss of consortium claim, and you cannot make any pain and suffering claims.

On the other hand, personal injury claims are not governed by these formulas. This enables an injured worker to file a third-party personal injury lawsuit. In a lawsuit for personal injuries you are now able to make a claim for your actual wage loss, pain and suffering and loss of earning capacity. Also, your spouse and/or minor children may be able to make additional claims as well. Lastly, a personal injury lawsuit is heard by a judge and/or jury.

For any injured HCP involved in a third-party case, there is one unique twist that involves the potential repayment of all monies paid to you by the worker’s compensation carrier. In Wisconsin all workers’ compensation insurance companies have a legal right, subject to a specific formula, to get paid back if you receive any money in a third-party personal injury case. This is called subrogation. The formula that controls what, if any money the workers’ compensation insurance company gets back is as follows (assumes no spousal consortium claims or claims for minor children were made):

  • Attorney’s fees and costs are subtracted from the total settlement;
  • The next 1/3rd goes to the injured HCP;
  • The workers’ compensation insurance company gets the rest; and
  • If there is money left over it goes to the injured HCP and the workers’ compensation insurance company gets to claim this amount of money as a future offset against any monies they may owe you in the future.

Given the legal complexities involved in third-party worker’s compensation claims, talking with an attorney soon after your injury will help your case in the long run. To assist you in getting full compensation for your claim, retaining an experienced attorney, early on, is very important.