What is workers comp total disability in Wisconsin? In most cases this means an injured worker has a work-related unscheduled or nonscheduled injury to the head, neck or back resulting in permanent restrictions preventing the man or woman from working. If a worker’s compensation judge rules an injured worker is permanently totally disabled, under Wis. Stats. Sec. 102.44 the worker is entitled to temporary total disability or TTD benefits for as long as the disability lasts, up to lifetime benefits. There is also a death benefit that may be available to the dependents upon the worker’s death.
A worker may be medically totally disabled if a treating physician puts down 100% inability to work. Except in obvious cases, the credibility of a physician’s determination of vocational disability is questionable. Attorneys will take the doctor’s opinion, ask him or her to expand on it by delineating actual permanent physical or mental restrictions, and then have a trained vocational expert make the determination of vocational disability.
There are two types of non-schedule permanent total disability with a vocational expert. First are the DWD 80.34 factors: age, education, mental capacity, training, and work experience considerations that may show a person cannot work given their restrictions. Sometimes, despite the restrictions there may be jobs that the injured worker can technically do. The second PTD basis comes into consideration, ‘odd lot’ doctrine. Odd lot applies when a worker is so injured that he can perform no jobs other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist. Balczewski v DILHR, 76 Wis. 2d 487 (1977). Once the injured worker’s vocational expert gives an opinion of odd lot, then the burden shifts to the workers’ compensation insurance company to show that there are in facts jobs the worker can do. Generally the insurance companies hire a vocational expert who does a labor market survey and comes up with actual such jobs that are open. The injured worker and his or her attorney must carefully review these proffered jobs to see if they actual exist and are really within the injured worker’s restrictions. Often they are not. With either 80.34 factors or odd lot, a worker may be well-advised to try a legitimate job search so as mitigate his damages.
In most PTD cases, causation is at issue, meaning if the worker loses on causation he or she gets nothing. Consequently, negotiated settlements are often made based on the present day value of the PTD claim discounted by the risk of losing on causation. In Milwaukee, Wisconsin McCormick Law Office attorneys have handled many workers comp total disability cases to successful conclusion.
