A claim denied by the workers compensation insurance company requires that it let the injured worker know of his or her right to a hearing with the Department of Workforce Development. Wis. Admin. Code § DWD 80.02(2)(g)2. The worker should also receive a copy of any independent medical examiner or IME report. In serious cases, it is almost never practical or advisable for the worker to file for a hearing on his own. The insurance company and the employer have trained and experience professionals dedicated to defeating the claim for workers compensation benefits.
The injured worker’s attorney will investigate and determine whether jurisdiction, liability, and extent of disability can be proved. The attorney will collect and review all relevant medical records. The next step is to secure helpful medical opinions based on the medical and employment evidence. Then the attorney will file the claim with the DWD on an application for hearing, which is similar to a civil summons and complaint. The application identifies the matters in dispute and the benefits claimed, to the extent known. The comp carrier and employer are entitled “to seasonably know the charges or claims proffered.” Bituminous Cas. Co. v. DILHR, 97 Wis. 2d 730, 734, 295 N.W.2d 183 (Ct. App. 1980). The application should also specify when the claimant expects to be prepared for a hearing and where the hearing should be held. See Wis. Admin. Code § DWD 80.12(2) . The DWD will obtain service on the employer and the insurance carrier.
The insurance carrier is required to file an answer to the application with the DWD and with the injured worker or his or her attorney within 20 days after service of the application. See Wis. Admin. Code § DWD 80.05(2). The purpose of the answer is to inform the applicant and the department exactly which issues are in dispute. The insurance company attorney will usually file the IME report or if none has been created, ask the injured worker to attend an IME appointment. The comp attorney will also file additional medical records it deems helpful to its case.
The department will not schedule a hearing until a Certification of Readiness is filed. The certificate of readiness cannot be filed until the injured worker’s attorney has the proof necessary to prove the worker’s claim. This includes not only medical opinions but vocational opinions as well for any retraining or loss of earning capacity claim. Most cases do not settle until shortly before or at the hearing.
McCormick Law Office in Milwaukee, Wisconsin prepares its claim denied cases for hearing and we do go to hearing on a regular basis, although most cases settle if prepared well.
