There are no workers comp pain and suffering benefits in Wisconsin workers’ compensation law. Wis. Stats. Ch. 102. The injured employee’s exclusive remedy against the employer, co-employees and the worker’s compensation insurance company are worker’s compensation benefits. Wis. Stat. Sec. 102.03(2).
Generally, the only exceptions to co-employee immunity are for intentional assault, indemnification of the co-employee by a governmental unit pursuant to a collective bargaining agreement or local ordinance, and operation of a motor vehicle not owned or leased by the employer. Wis. Stat. Sec. 102.03(2).
Pain and suffering damages are available in a successful lawsuit against any responsible third party, in other words, not the employer or co-employee. Wis. Stats. Section 102.29(1). Also, the worker’s compensation insurance carrier that paid any benefits under the Ch. 102 can bring the suit. The employee and insurance carrier must give each other notice and an opportunity to join in any third-party action. Wis. Stat. Sec. 102.29(1).
If the injured employee recovers in his third-party suit, the worker’s comp carrier is entitled to get paid back under a statutory formula. A three-element test must be met for section 102.29(1) to apply: (1) the action must be grounded in tort; (2) the action must be one for the employee’s injury or death; and (3) the injury or death must be one for which the employer or its insurer has or may have liability. Johnson v. ABC Ins. Co., 193 Wis. 2d 35 (1995).
All third-party settlements must be approved by the court or the workers comp department. Wis. Stat. Sec. 102.29(1). The Third Party Proceeds Distribution Agreement states that after deducting attorney fees and costs, one-third of the balance must go to the injured employee. Wis. Stat. § 102.29(1). Next, the worker’s compensation insurance carrier is reimbursed for all benefits that it paid or is required to pay. Any residue goes to the employee, subject to the insurance carrier’s right to a set-off against further liability. This remaining balance is referred to as a cushion.
McCormick Law Office attorneys in Milwaukee, Wisconsin file third party negligence case to obtain pain and suffering money for settlement of work injuries if there is a responsible third-party. Many personal injury law firms do not practice worker’s compensation law. A worker injured on the job, say in a car accident while working, should get advice concerning both worker’s compensation benefits and personal injury damages, and their interrelationship. There are significant reimbursement issues and future medical bill coverage issues, especially if the injured worker is on Medicare or Medicare is likely in the near future. Pain and suffering from work accidents is only available from third-parties, not the employer in most situations.
