Wisconsin law recognizes two types of on-the-job injuries that are compensable under an employer's workers' compensation insurance policy: accidental injuries and occupational diseases.
State courts have distinguished accidental injuries as those that result from a definite occurrence or mishap. Occupational diseases, on the other hand, have been defined as "a disease...which is acquired as the result and an incident of working in an industry over an extended period of time." (Rathjen v. Industrial Comm., 233 Wis. 452, 460 (1940)).
Occupational diseases can be caused by "exertional factors" or "environmental factors" present in the workplace. Exertional factors refer to injuries that are caused by the amount of physical exertion needed to perform the job. These injuries include repetitive motion injuries, back and neck injuries and carpal tunnel syndrome, for example. Environmental factors refer to the presence of chemicals, dust, fumes, gases and other substances in the workplace that may lead to the development of certain diseases or illnesses. These may include respiratory illnesses and cancer.
Unlike other states,
Wisconsin does not provide a statutory list of recognized occupational diseases that are eligible for compensation. Instead, the courts have determined which conditions qualify as a compensable occupational disease on a case-by-case basis.
Some examples of illnesses and injuries that state courts have determined to qualify include:
-Occupational dermatitis-Cardiovascular disabilities-Heart disease-Occupational lung diseases and respiratory diseases-Occupational cancer, including lung, liver, bladder, bone, kidney and others -Mesothelioma-Latex-related diseases-Back injuries and other orthopaedic conditions-Wrist and elbow tendonitis, arthritis-Carpal tunnel syndrome-Hearing loss and deafness
Proving Causation of the Occupational Disease
A worker is entitled to recover compensation for an occupational disease when the worker's job is:
-The sole cause of the disease or injury-A substantial factor in aggravating, precipitating and accelerating beyond normal progression a pre-existing condition-A material contributory causative factor in the onset or progression of the condition
Proving causation in an occupational disease case can be very difficult. The employer and insurance carrier are likely to claim that outside factors caused the illness. The most common outside source is smoking. However, just because a worker smoked does not mean that the worker is precluded from receiving compensation for an occupational disease, even if the disease is linked to smoking. Establishing causation in occupational disease cases generally requires the use of expert witnesses, including medical experts.
Date of Injury
One of the most important questions in any case for worker's compensation benefits is the date of injury. The date of injury determines which employer and insurance company are responsible for the temporary or permanent disability payments for the occupational disease. It also determines which compensation rates the worker is entitled to receive and how much compensation is owed to the worker.
The date of injury for accidental injuries is much easier to identify than it is for occupational diseases since accidental injuries usually are confined to one specific incident. Conversely, occupational diseases progress over time and normally are not tied to one singular event, making the date of injury much more difficult to discern and much more open to debate.
In Wisconsin, the courts define the date of injury for an occupational disease as one of the following:
-The date the occupational disease ripened into a disability and rendered the worker unable to work or unable to perform his or her current job duties-The last day of work for the last employer whose employment caused the disability if the disability did not develop until after the worker had stopped working
If the worker was employed by more than one employer during the period of time that the occupational disease progressed, the employers are likely to fight over which one is legally responsible for covering the costs of the disease. The same will be true if the worker was employed by the same employer during the relevant time frame, but the employer had more than one insurance carrier during this time.
It is important that workers understand that just because their occupational disease or illness is not tied to one specific date or event does not mean they are precluded from recovering worker's comp benefits -- even if their employer or employer's insurance company has told them differently.
Wisconsin law clearly provides that workers who have occupational diseases have a right to recover compensation for their condition so long as their work caused the disease or was a material contributory factor in causing the disease.
For more information on filing a claim for worker's compensation benefits for an occupational disease or illness, contact an experienced worker's compensation attorney today.
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