Understanding workers’ comp vs personal injury in Wisconsin can be confusing, especially when an injury happens on the job. In this episode of the Groth Gets It! Podcast, we break down how workers’ comp vs personal injury Wisconsin claims work, when they overlap, and what injured workers need to know to protect their rights.
Workers’ Comp vs Personal Injury in Wisconsin: Episode Highlights
- How workers’ comp vs personal injury Wisconsin claims differ
- When an injured worker can have both types of claims
- Common misconceptions about fault and benefits
- Why Spanish-speaking workers face unique barriers
- What injured workers should know before filing a claim
Who Should Watch This Episode
This episode is helpful for:
- Injured workers in Wisconsin
- Employees hurt while driving for work
- Spanish-speaking workers navigating workers’ comp
- Anyone confused about workers’ comp vs personal injury Wisconsin laws
Transcript: Welcome back to the Groth Gets It! Podcast. We have an exciting episode today talking about something that deals or that well I guess people deal with all the time. If you’re working and you get injured, you may have a workers’s comp claim. This is something that I know with the weather outside is something that is more frequent nowadays probably than other times because people are slipping and falling as they’re coming to and from their jobs. I guess we can talk about that and see if those are valid cases or not. Interesting.
Yeah.
Interesting topic.
So we are here to talk about I guess interesting things as they relate to personal injury law and the right now the interplay between workers compensation law and Personal Injury Law. And that’s brings me to attorney Patrick Kern who’s our guest today. So thank you Patrick.
Absolutely. Pleasure to be here.
Excited to have him from the law firm of Hickey and Turim Wisconsin Law Firm.
Do you have any attorneys licensed elsewhere?
We don’t. We just focus on Wisconsin.
Okay. So, just the best state. Good job. Best. All right.
I start my podcast the same way I start my deposition. So, if you could say your name and spell your last name for the record, please.
Certainly. Patrick Kern, K E R N.
And Patrick, I have about maybe three hours worth of questions for you. But we’ll try to get this, going. We’ll probably speed this up. So, the 3 hours will only be an hour. All right. Let’s talk about kind of the hero backstory here, the, you know, the the origin story. I want to get to Spanish speaking because you’re fluent in Spanish, which I think is awesome. And I would encourage, anybody who’s in grade school or high school to take Spanish, and I’m speaking to my kids, you better not change languages. I encourage you to continue with Spanish for my youngest son who doesn’t want to take Spanish in high school. I think it’s a terrible decision. I think he should take Spanish in high school. What’s your opinion on that?
I’d agree. Served me well.
There we go. I agree.
All right. But seriously, so where are you from? are you from Wisconsin? What’s your origin story?
Sure. So I was, born and raised in Wauwatosa. I went to Tosa East High School. After that I went off to University of Minnesota for undergrad. I studied psychology and criminology mostly. Obviously I took a bit of Spanish as well. After that I actually moved to Madison for a couple years to take a little time off from school. There I held a couple different positions with Department of Corrections, Department of Justice, and I also interned for a state rep. And I did that for two years while I was taking the exams for law school. So, sorry, I gotta stop you there.
So, were you a corrections officer?
I was not. I was more so it was a kind of like the it was in Oregon, Wisconsin, and it was anybody that was there was within two years of getting released. So, they focused a lot more on release programs. I was doing kind of they called it teaching modules, stuff about finances, stuff about working, things like that. And I also helped get these individuals out on work release programs.
Okay.
Yeah. So, kind of trying to get them ready for the real world again. So, it really was like a feel good job. I mean, you were oh, it was helping people see that the light at the end of the tunnel.
Yeah. I enjoyed it. And this is how we can get you back into society the best way possible. It was very rewarding.
Oh, that’s awesome. And was that because of your your majors in college?
A little bit. So, why did you choose that?
A little bit based on the majors. A little bit also just trying to get kind of a wide breath of experience. Stuff that I thought would help me perhaps get into a law school. And it was So the DOJ and the DOC were both part-time jobs, so I kind of wanted to fill my schedule a bit, too.
Yeah. Yeah. So, did it work? Sorry, wait a second. So, did it work?
I would say so. I got accepted to Marquette for law school. So, that was great. I got to come back home. I was also the first class in the new facility that they built. That was lovely.
It’s terrible.
Yeah, I know. It’s terrible.
So, I’m jealous. It is reason I’m saying terrible because even though I love my time in sense and Brener Hall, it was very different because you guys had you had a bar, right?
We had a lot going on there.
you had a like this huge fireplace and I was able to walk through during construction. So, I got to see I’m not sure if I’ve been back. Honestly, I’m not sure if I’ve been back since it’s been fully operational.
Oh, yeah. So, I’ve heard the rors about there’s a bar, there’s like this huge fireplace. I know when I was in there during construction, it was it was almost done. So, it looked pretty cool. Sure.
But it was much different tan going in the basement of sensor hall having couches that were probably 30 years old or maybe I’m exaggerating watching the prices right on a old tube TV which was cool for camaraderie and then our lockers were literally probably lockers that you know Senator McCarthy used that when he was in law school at Marquette or something I don’t know but vastly different.
So, it was nice. So, you liked your time at at Marquette. After Marquette, were you right into personal injury law or what’ you do?
Well, I did go right into work comp. And that so there’s a little background story to that. My first year of undergrad, I actually met Josh Tur.
Okay.
Because he was going to school there as well. Didn’t know him before that.
Oh, in Minnesota, correct?
Yes. Okay. Yes. Okay. But but sorry his family is his dad a lawyer in Wisconsin.
Correct. His dad actually started founded Hickey Interm. Hickey.
Gotcha. Okay. So that’s just like is it Kismint or is it just it’s fake? Right.
Yeah. Serendipitous. but we became good friends freshman year of college. He actually transferred after that to go to Wisconsin. But we remained friends. We ended up overlapping a little bit in law school at Marquette as well. And he told me, “If you get a degree, we’ve got a job for you.” So, it’s hard to pass that up.
Yeah. Yeah. So, so you’ve worked in workers comp injury law since day one of being a lawyer.
Yeah. Even before then, I mean, I was I was basically interning for them my last year of law school as well.
Okay. Yeah. Cool. So, how how do you use, if at all, your your undergraduate degrees, including your, bilingual abilities as a workers comp attorney?
Sure. So, my undergrad degrees, psychology, I think, gives me a little bit different kind of, background than what most attorneys have. I think I’m able to kind of view the cases a little differently.
I’m not saying that I’ve got some special ability or anything like that, but I do think it kind of gives me a an ability to step back and kind of see the whole picture, the aspect involved in the case.
And I think that’s a good thing to have. Obviously the Spanish, you know, I always have to say I pat college pats back quite a bit on the foresight of actually taking Spanish and going through with it. Yeah. thinking it was going to help me in the future and now I use it every day of my life.
Yeah. So that’s been fantastic. I really enjoy being able to serve that community because I feel they’re an underserved community.
Well, and just if you’re looking at as a business proposal, how many competitors of yours can speak Spanish fluently?
Yeah. I mean, there’s a few out there, but there’s only a handful. I mean, well, yeah. I mean, most don’t. So, obviously, it’s it’s a nice little niche.
Oh, I think that’s fantastic. Yeah. Right. I know my again going back to my kids wanting to well speak German for example you know or talk about speaking Latin it’s like well first off nobody’s talking Latin and number two Milwaukee we used to speak German a lot but how many people do we have in the city who only speak German and are you know in my world injured in car crashes I think maybe 0.0 O yeah, I don’t think I’ve come across it.
I have never seen it. the one person I did know who had a very what was her first name? Her last name, I’m not going to say, but it was a very German last name.
It was something like Ingred or something, but it was a very German first name. Sure. She spoke English, so she had a very heavy German accent, but she spoke English. So, but Spanish, on the other hand, I think is something that is going to serve you the rest of your life.
Yeah, I have no doubt about it.
Yeah.
Oh, good. so that’s your recommendation. Take Spanish. Join the Spanish home room in high school or whatever you do. I mean, I even in law school, I found out you could take a couple free undergrad classes, so I took a couple Spanish undergrad classes to brush up on it.
Oh, yeah. I didn’t know you could take free undergrad classes at all.
It was like two of them that I took, but it was it helped immensely. I wonder if they still have that program. I don’t know.
Yeah, I’ll have to ask our law clerks and see what they say. Cool.
All right. Boy, we are totally off my agenda here, but we’ll we’ll we’ll try to get back on, I promise. Okay. What the heck is workers compensation laws? So, people call and they say, “I was injured on the job. Can you help me?” but they were injured because somebody else or a Uber car, you know, for example, hits them. Well, that’s a workers’s compensation case, even though they’re driving their own car.
I know that’s not the case, but there seems to be a lot of confusion as to what the heck is workers compensation law versus a personal injury case. So can you tell us maybe the the secret sauce here for so people can understand what actually is a workers’s compensation case?
Sure. So obviously there are there are a few nuances out there that not a lot of people really do understand. But the whole kind of the whole goal is the question is were you injured while performing duties pertaining to your job more or less? And if you are injured, the goal of the system is to make you whole, cover medical expenses, cover loss wages, things along that nature.
Now, where the nuances come in, for example, if you are driving from your house to your job site and you are in a motor vehicle accident, that does not qualify. You’d have to be parked in the employer’s parking lot or in your normal parking spot and walking into the facility. And if an injury occurs there, then it counts or you got to be clocked in doing work for your employer when you’re injured.
So if you’re running errands, that again, nuances. So it depends. As many lawyer, yes, as many answers it always goes, it depends. if you’re running an errand for your employer during normal work hours, it would likely qualify. You can even kind of take little expected breaks and if you’re injured, it could count as workers compensation.
So, for example, if you’re out on a smoke break and you sustain an injury, that’s likely going to qualify as workers compensation.
Okay, so let let’s use this. So, we had some new team members start last week and we had a I think it was Chick-fil-A brought in and one of our team members went to Chick-fil-A, got the 50 pounds of chicken and brought it back. If that person would have been in a car wreck on the way to or from, would workers comp have covered that loss?
Most likely. Yes. Yes. That would likely be a special errand for the employer.
Okay. Yeah. But then I guess in my world, I still would represent that person against the at fault driver if somebody else caused the crash, right?
Yep. And that’s where you have the kind of overlapping work comp and personal injury cases. But if let’s say the person going to pick up the Chick-fil-A caused the crash, would workers comp cover his or her losses even though they’re at fault in that car crash?
So the answer is yes. One of the nice things about our system is it’s a no fault system. That that can be nice. That can also be a little bit of a detriment because basically negligence is not considered in a work comp case.
If you’re injured in the course of your employment, that’s kind of what we’re looking at, not who caused it. So workers compensation, the big takeaway is workers compensation in Wisconsin is no fault.
You could be partially or the majority the cause of your injury and as long as you’re on the job that’s the that’s the grand compromise that you can get compensation pretty much.
I mean there are deductions if you injure yourself and you are it’s found that you had a safety violation that kind of was material in that incident that’s going to result in a deduction of benefits.
Okay. Is it like a percentage deduction or or it how does it work?
Okay. Yeah. percentage and all kind of penalties either add-ons or deductions always have a c cap as well.
Okay. So when your employer tells you or OSHA tells you wear that yellow vest it’s not only because they’re trying to protect themselves but also it’s really going to help you a potentially injured party because if you don’t wear it you’re putting your injury claim on sale.
Absolutely.
Okay. Okay. I think I understand.
What’s the most common misconception in workers comp? What’s something that you’re like, “Okay, you don’t understand.” Like for me, for example, people call all the time and they’ll say, “Well, I know that just because I’m on the road, I’m 10% at fault.”
Well, that’s a lie. Sure. There is no rule. There is no law in Wisconsin that says simply because you’re on the road, you are putting yourself in danger and the insurance company pays you 10% less.
The insurance companies would love people to think that and I think they’re the ones that are pushing this propaganda, but that’s a 100% misconception in our car crash world. How about you?
So I think there’s two things. One, I think most people expect that when they are injured, they are going to be entitled to money for pain and suffering. That’s not a concept in workers compensation.
We do have benefits owed for what’s called permanent partial disability, and that’s kind of a percentage that gets assigned at the end of care, either by the treating physician or statutoily based on a sort of surgery you might have.
So no pain and suffering in work comp. The other one is kind of a a reverse. Most a lot of people I think asse that if there was no specific incident at work, it’s not going to qualify as work comp. But we also have other than the acute injury, we’ve got an occupational exposure injury that qualifies for work comp benefits as well.
So if it’s more of a repetitive injury or just kind of something that you’ve done over time for the employer and it leads to a deterioration that can qualify as work comp.
Okay. That so when you said occupational exposure it makes me think about first off asbestous or lead paint like that kind of exposure or is it just being worn down?
So it can be both those types of things. The kind of catch is that in order for us to make a case out of it, we have to have medical support.
And so that’s going to come from the treating physician. The physician has to say, I believe that this is due to workplace exposure. And so if we can’t get a medical expert on board, we don’t really have a lot of room to work with that case.
Yeah. And again, this is my scrolling on social media. I know it was either on Instagram or Tik Tok or something where I saw a I’m not even sure if they’re a Wisconsin firm, so I’m not going to call them a competitor of yours, but they were talking about workers comp as it rel and I guess this is sad that that’s what’s in my social media feed is other lawyers talking about injury claims. but they were talking about just in essence being tired or worn down or your body being worn down over time and you can make a claim for that and I guess I’ve been a lawyer for 25 years.
I haven’t really seen that before. Is that a new thing in workers comp that that now people are or there’s new doctors who are saying or new new journals that you know articles have been written about that?
Yeah. So I mean the occupational exposure theory has been around for quite some time. I think it’s more so that people are becoming a bit more aware of it.
For a long time we had a big difficulty kind of getting doctors to understand this. Qualifies as a work injury even though there was no specific incident. Now the next question is what are the damages?
Yeah. If there’s if they’re just feeling worn down, there’s not much you’re going to be able to do with that. But if it, you know, if it’s a repetitive type thing that they’re doing for the employer and they need a rotator cuff surgery, that’s certainly something that could qualify.
So, I had gosh, this is probably 20 years ago now. I had a lawyer who I know you you will know extremely intelligent attorney I think he actually has a doctorate too or something.
So then it maybe a hint as to who who you know who it is said that it’s almost impossible to prove a carpal tunnel type injury.
It is a carpal tunnel type injury is that like an occupational exposure kind of injury that you’re using your maybe you’re typing a lot and that’s what caused or you’re using poor poor ergonomics or you have the wrong chair. Is that an occupational injury?
It certainly can be. Again, I think it kind of boils down to whether the treating physician will support that idea. Yeah, but you can I mean, you can get the other evidence like the ergonomic setup of the employees workstation and see if that contributed to the situation. The ergonomic side of things is definitely something more so that the insurance carriers focus on to try to defeat a claim.
Okay. but I’ve seen it before where we certainly want to get the kind of the job duties and see how long they’ve been working the job and that kind of whole picture comes together to make it look like yes, this could be something that is caused by work over time, we might be able to bring that.
Yeah. Okay. All right. So, I think we were starting with with misconceptions. I think that’s where it came from. All right. So I see one of the main differences then really is in PI law the pain and suffering you know personal injury but the injury and how we’re categorizing that is very different than how you’re categorizing it because I’m looking in my claim I’m looking for medical expenses wage loss which is the same our wage loss is 100% of the wage los yours is 2/3 2/3 clearly wage. and I’m looking for your past pain and suffering disfigurement. Future pain and suffering disfigurement potentially if a doctor says that and then future medical expenses or healthcare expenses. So can you get future healthcare expenses in your claim?
You can. And there’s a few future claims that you might be able to include in a case. So there’s the future medical and that’s going to depend on kind of what the treating physicians are saying is going to be necessary for care down the road. If they are specific about it, you can usually include it in settlement discussions. If it’s kind of more Blas non-specific, it’s it’s pretty hard to include it in a settlement.
Okay. Otherwise, we do have claims. So, if the individual ends up with permanent work restrictions and can’t return to the job where they were injured at, you might be able to bring a claim for either future loss wages, which is in our world known as loss of earning capacity, okay?
Or retraining benefits where the individual actually goes to usually it’s a technical college for a year or two. It could be up to four years at a accredited college.
And if found liable, the work comp carrier has to pay for the program itself. Kind of the ancillary costs like the books, meals, and mileage and then they actually have to pay the individual individual loss wages while they’re attending that program.
It’s really a nice thing that work comp has because you’re getting paid to get a degree to do something that you’re supposed to be making the same once you’re out of school and obviously it’s going to be a lot les physically demanding of a job that you get.
So, maybe this is a bad question. There are no bad questions on this podcast, I guess. but how often does that actually happen?
And how often does that happen without a lawyer? I mean, that seems to me would be a pretty steep hill to be able to overcome.
And I’m assing because it’s a lot of money that an insurance company would have to pay. They’re going to fight you tooth and nail. So does it happen?
Have you seen it happen without a lawyer before you even get involved or you’ve turned down a case because they’ve already gotten paid those damages?
Sure. So, I I’ve seen the retraining without an attorney, granted rarely. But more often than not, you are going to need an attorney for those claims. The insurance carrier, the insurance adjuster has no duty to tell you about those potential claims.
Okay? So more often than not, they’re they’re not going to talk about them. So yeah, I mean, generally speaking, you’re going to need an attorney to be able to bring those claims because you have to take certain steps in order to build those claims.
Yeah. So, and and that just got me right there where you’re saying that the insurance carrier has no duty to tell you about the claims. I just think that’s weird because workers comp is very statute based. Right. Right.
And it’s just grand compromise based on whatundome years now of what was Wisconsin the first state maybe to have this kind of well it’s not the first we were one of the first to really create this kind of compromise.
So it’s statutoily based. You have a whole system set up a silo in the government for it. But insurance carriers can still not outright lie.
They can keep secrets about what victim’s rights are and their statutory rights, their legal rights are where like in my world you there are certain things that by the rules we we can’t say to a jury. Sure. You know, so you know, it’s there are there are known things that we’re legally not able to announce, you know, the secrets of Personal Injury Law, but it seems different workers comp law. So, why do you think that is?
And and how does that affect your cases?
Honestly, I I don’t know why that is. That’s a question that hasn’t been discussed too much. I probably but maybe that just me.
And I guess it maybe brings more cases to you because people are like or there are more cases when you’re talking to somebody and they think you’re a genius. Yeah.
Because you’re just you’re you’re opening the book and showing them opening to a page that everybody should be looking at, but the insurance carriers are hiding that page from injured victims. Sure.
And yeah, I think it’s a situation that kind of can cut both ways.
I think we do get additional cases because of those benefits that aren’t voluntarily given by the work comp carrier because they’re not legally required to such as the retraining and future loss wages.
I think also there’s a real potential that there are individuals out there that go through the treatment, get released, have restrictions, employer terminates them because of the restrictions and they don’t ever follow up with an attorney because they think that’s kind of the end of the road for them. Yeah. But they should.
Absolutely. Absolutely.
So if an employer doesn’t follow the rules set forth by a a judge saying that somebody has to live within these restrictions. What can the employer be held responsible for then?
So just to make sure I understand your question, individual gets assigned permanent restrictions.
Employer then says we okay, so let me back up. Yep.
When the permanent restrictions are assigned, then the employee has a duty to turn those over to the employer. Sure.
And the employer then has 60 days to determine whether they can accommodate the restrictions. And as part of that, they would have to pay the individual at least 85% or 90% depending on the type of injury of the average wage at the time of the injury.
So often times that’s kind of a opening to an employer to say based on a business decision we can’t pay you that amount and put you in a role within these restrictions. Okay. So they would legally separate or terminate the employment. So then they can absolutely they can fire and have no repercussions.
Correct.
Okay. Now the work comp carrier might have repercussions if the claims for retraining or future loss wages are brought.
Okay. Employer is okay to do that.
Okay. Yeah. So, what if the employer wrongfully terminates you? You know, they are able to put you into a a job that is within restrictions and they just simply refuse to.
So, we do have a a claim in work comp that we could bring in that type of situation. It’s called an unreasonable refusal of rehire. Okay. Basically, if the individual is released without restrictions and still terminated, that’s a viable claim. Otherwise the situation that you brought up is a little more murky. It’s a little bit more difficult to prove. You would have to have some sort of kind of smoking gun evidence to show that the employer did in fact have a position within the restrictions and meets the pay requirement. And the employer just opted not to. And that’s that’s hard to find. That’s easy for the employer to kind of skirt around in my opinion.
Well, well, here I guess maybe this is a different or this is another difference. Do you have discovery? Can you take depositions of managers, employers, people like that?
So, that’s a good question. There is no discovery process in workers compensation. So, all
So, they could be hiding things from you and you’re like, “Okay, well, we’re just stuck with with with what then?” just your client’s medical records and the doctors.
It’s possible. I mean, generally speaking, it’s a bit more of a cooperative system that we work within until the insurance company hides something. Now, so there’s generally speaking, we’re going to get the employment records and we’re going to get the file from the work comp insurance carrier.
Okay. Now, sorry, generally, do they have to give you then? So, is there a law saying that no matter what the case is, they must produce the employment record?
They don’t. Okay. However, if they didn’t, what we would generally do is we would either Schedule an inperson prehering conference and subpoena them for those records because we could do that or we would request an order from a judge requiring them to release these records. So, there is some discovery because you can do a subpoena a little bit. I I gotcha. And that so that’s very different. And obviously you don’t know what they’re going to consider work product and just not give over to you.
Yeah. Because we I mean on any given week we could be in depositions with Adfall drivers, doctors, you know, vocational experts, talking about loss of earning capacity, liability experts, you know, all these different things, all these u potentially hundreds of hours of depositions in discovery, which is very different than it seems what you’re doing. You’re
It is when when you’re going into a hearing, it’s like the old west then, right? I mean, it’s a it’s been described that way a few times. You’re you’re thinking on your feet. which is awesome. I think that’ll be kind of fun. maybe for a younger me maybe, not for for Mimi, but and then you you just what have your you have your file. They have their file and that’s the case.
Yeah. Yeah, I mean, anything that’s going to be relied on has to be filed with the courts at least 15 days in advance. So, you’ve got a little notice on what’s going to happen. That being said, you don’t know if the defense is going to bring somebody to testify from the employer. They don’t have to notify anybody about that. , if I were to subpoena somebody from the employer to come testify, I would have to file that so people would have notice that this individual is going to be there. Yeah. but yeah, it it can be a little on the cuff.
Yeah. Interesting. that’s another difference from our personal injury world. So and I don’t want to make this sound like it’s suits or law and order and that these trials happen all the time because I’m assing they don’t. In our world, trials happen very infrequently.
Sure.
Because mediations kind of have taken over the world. how about you? How are your trials?
most cases end up in settlement. mediations have been a lot more popular lately for us as well.
So when you’re having trials, are they in a courtroom?
No. So that’s also going back to misconceptions. a lot of people think that, you know, there’s going to be a jury, there’s going to be a judge in a black robe, it’s going to be in the courtroom. That’s really not what it’s like at all. It’s much more of a laid-back process. , generally speaking, it’s in more of like a conference room. , it would be me, my client, the administrative law judge, a court stenographer, the defense attorney, and then if the defense attorney brought any witnesses to testify, that’d be about it.
So years ago, I think it was kind of awkward that I was there, but I had a friend of mine who was a personal injury attorney and then became an administrative law judge and he tipped me off as to when a trial was going to take place because I just wanted to see a trial. I’m just that kind of person that I like watching different kinds of trials, right? , so I went to there was a like the state building maybe downtown Milwaukee. , and the I guess I would describe it as like a 1950s horror movie kind of office where the the the conference room table where the tables were like that beige metal and I don’t know if it was even wood or for mica that was on and it was a pretty small room and it was the opposite of what you’d expect of any legal proceeding.
Yeah. just by the appearance walking into this. it was also I think odd because I didn’t tell anybody I was going even though it’s a public
Yeah. Anybody can go.
Anybody can ..
So I walked in and everybody got freaked out because I’m there like who who is this guy watching? You know it’s like well I just wanted to see how it goes. And it was a fascinating experience because the rules were so maybe non-existent. I’m not quite sure. It was just such a casual kind of setting. Yeah. and it was a testament to how how professional the attorneys were because they they were very forthright. The judge was very forthright. It was almost a pleasure to watch because everybody got along.
Sure. luckily the victim won. but it was a very interesting thing because it was far different than presenting a case to a jury.
Absolutely.
Yeah. Interesting. Yeah. But just the 1950s horror movie was like, “Wow, that was not what I was expecting.” that that is the world we live in. , all right. We are well behind schedule, but I did bring printos. So, we got to talk about these things cuz I I I use my sure my printer for once in a in a month here. So, these are things that I use a lot. So, well, I shouldn’t say use, I see a lot the one and I use a lot the other. So, this is kind of when when when both systems apply. So, there’s this thing called the WKC16B.
Do you know why it’s WKC?
I don’t know exactly why, but I can tell you all the forms in work comp start WKC. So, because workers comp is W and comp is C, right? So, what what’s the K from?
I have no idea. I have no idea. Just some government employee. Yep. 100 years ago probably saying, “I think I want to put a K in there.”
Okay. Is there a WK15?
I don’t know specifically. I mean, the other common one that we’re using on a regular basis is the WKC7, which is the hearing application form.
Okay. So 16 and and seven are definitely the ones that we’re dealing.
Was it the six seven or or the seven?
Oh god, don’t get me started.
Oh, that was awesome. You’re welcome. That was awesome. , all right. So the WK 16B though is something that I see a lot just because if somebody’s let’s say in a car crash and they’re on the job and they go to a doctor and their doctor assigns permanency or relates certain injuries to that on the job crash they’re filling out or the doctor the practitioner’s report on accident or industrial disease in lie of testimony form is filled out. So, , that’s something that I see. I don’t know if I rely on this a lot because it’s really just a check the box kind of form. I prefer more words and less, you know, checks. , but this is something that I guess we both use to some extent because it’s informative as to the causation of a injury and what’s going to happen in the future or the permanent claim, at least for me. So, is this something that you use in in most cases or or how often do you see this docent?
Every single case. Really?
Yeah. We don’t you don’t necessarily need one to initiate the lawsuit as long as you have kind of the supported medical records to show that the injury is being claimed as workrelated. But if you’re going to take that case in front of a judge, you’re going to want that 16B completed by a doctor. And like you said, a lot of it is just checks in boxes. So you may want to take it a step further and actually get a narrative report from the doctor as well where they can really kind of dive in and explain their process.
So you can have both.
Oh yeah, absolutely. You can have this form in addition to u 16page treatis.
Okay. Gotcha. Interesting. And something that a lot of people don’t know about those 16b forms, the attorney can actually complete it and then send it to the doctor and the doctor can sign off on it. you don’t need to rely on the doctor to have the the knowledge to complete that form because a lot of times so there’s three questions on there that basically ask is it a workrelated injury and along those lines kind of what is the theory behind the injury sometimes you’ll get all three boxes checked yes and it’s kind of like okay what do I do with that because that doesn’t say kind of how the injury actually occurred so some doctors just don’t really get it or they don’t want to take the time or whatever it is and that’s fine I get they are very busy people. , so it’s kind of a a thing of convenience for the attorney to complete it, make sure it’s correct, and then send it to the doctor. Doctor reviews it. If they agree with it, they just sign off and date it.
In my world, I would asse that then the doctor would be called and at trial, the defense attorney would ask the doctor, “Did you complete this form or did your lawyer complete this form?”
Sure. So, does that happen in your world?
Rarely does a doctor ever get subpoenaed to testify at a hearing. , how often have you had a doctor testify in a in a hearing in the last 10 years?
I’ve done it once.
Once. Once that you’ve seen it in 10 years, correct?
That’s like shocking. And it was a very It was a very complicated mental injury case.
Oh, yeah. Okay. So, 99% of the time, you’re only relying on this.
Correct. And because there’s no discovery, nobody knows. Yeah. Plus, it’s appropriate, but nobody really knows. Interesting.
Correct. H. I wouldn’t go ahead I wouldn’t go as far as saying like here are my client’s permanent restrictions or here’s the percentage of disability that I’m going to leave blank but it’s like okay here’s the correct theor theory of the injury here’s what happened to cause the injury and if they want to add in additional notes that’s perfectly fine but just kind of to get the basis correct.
Yeah. Okay. So that’s another reason you should really hire a lawyer for this. Yeah. because the you know those those little details that certainly I didn’t know until I just heard them right now. Interesting. all right. So that’s when that applies. The other one that we use all the time is the third party proceeds distribution agreement. , and this is, you know, I’m not going to get into the the details of, you know, when a case should be settled in the middle of a workers’s comp case at the end or before a workers’s comp case begins, whatever, but this is something that a lot of people don’t understand that when you’re, I’ll make it easy for me, involved in a car crash and you’re on the job and workers comp pays all your bills, , you have to give money back to workers comp, right? you know, the money coming from the atfall party goes into a trust for the client and out of that money a portion has to go to workers comp based on this formula.
Yep. And I don’t like this formula. I think this formula is unfair, but this is going back to the compromise. Right. , so is this something that that do you deal with this at all?
So, funny enough, never.
Never. Okay. I as the employees attorney don’t ever figure that formula out. That’s something that the work comp carrier and their attorney is going to figure out.
Yeah. The the thing that I think is unfair is when you’re dealing with they’re saying that this shall constitute a cushion or credit against any additional claim under workers compensation. For me, that means that if we settle a case and workers comp is paid back in full, any additional money goes to the client, but the client has to hold that money if there’s injuries in the future that requires medical care because then that medical care has to get paid out of this cushion, not by the Adfold party or or or by workers. compensation. Do you see that where a client comes to you and says, “Hey, I have this this cushion.”
So, we really don’t too often. I mean, more often than not, I’m dealing with a denied case. So, we’re going to usually end up in a settlement and that settlement is usually going to close the claim against the work comp carrier forever. Yeah. And so, obviously in that situation, the work comp carrier is not going to be making future payments. So, you don’t have to worry about that cushion.
Yeah. But it can it can come into play especially if you go to hearing and you end up winning.
Yeah. Interesting. Yeah. So that’s the third party proceeds distribution agreement because those are my two things that I needed to get because I took the time of printing them. I wanted to talk to them about them. all right. How so how often do you talk with work with other lawyers like and I’ll make it you know not about me but like a social security attorney you know because somebody let’s say they’re they’re injured on the job and they have such horrible injuries that they can never work again. Sure. and then they have to go on social security disability. or well, let’s say it’s they’re killed on the job and it’s it would be death benefits, right? Or or life insurance. and then the easier thing is, you know, an attorney who’s investigating this for a a potential third party claim against somebody not your employer. So, how often do you deal with those kind of lawyers?
A bit. It’s certainly not every case. I would say it’s probably less than the majority of the cases. Yeah. I’d say the biggest overlap is with social security to be honest. , and we do have attorneys that handle social security claims. So, it kind of makes it nice and easy to keep it all compact. , but those do play in. You know, you’re talking about the , worksheet. particularly with social security disability. If you are going to claim social security disability benefits and you get those benefits while you’re going through a work comp case, there’s a good possibility you’re going to create a situation where you’re dealing with an offset that’s going to reduce benefits you can receive. Most states would reduce the social security benefits you can receive, but we’re considered a reverse offset. So, if there’s an offset assessed, it’s going to be against the work comp benefits you can recover.
Okay. So we’re often kind of navigating that with our clients. You know, what’s best for you now? Do you want to get through the work comp case and then seek Social Security to try to avoid the offset? , really it’s a question of how much have you paid into Social Security during your working career. , if you’ve paid enough, then there is no offset. Unfortunately, if you haven’t paid a lot because you haven’t made a lot or you’re injured earlier in life, you’re likely to face that offset. So, there’s really a strategy.
Oh, yeah.
As to when you make your Social Security claim or when you’re ready to try to settle your workers’s comp claim.
Yep. Definitely. , and that’s a conversation that you shouldn’t I guess take lightly.
No. No. It sounds like Okay. It’s an important conversation. , interesting. Okay. And now Social Security is a federal claim. Yep. there I guess there are federal workers comp claims like postal service.
Correct. who else would be in a federal workers comp claim? Well, if you’re working if you’re a clerk at the federal courthouse, that would be a federal workers comp claim, I guess.
Correct. Yep. So, how often do you deal with those?
So, we never do. Okay. It’s a totally different system. We focus only on the Wisconsin work comp system. , I don’t know if I’ve ever met any I remember years ago we had somebody who had a federal workers comp claim and maybe it was an attorney in Michigan that we tried to find to get them to. Okay. But it was so hard to find anybody that dealt with federal workers comp because it’s such a niche, right?
It is. We do see a lot of post office injuries. , but obviously we’re we’re unable to assist with those.
Yeah. Yeah. So So what do they do? I I guess they’re not going to find a Wisconsin lawyer. Probably they’re probably finding a lawyer in a different state.
Yeah, I think most the federal work comp attorneys are outside of Wisconsin.
Yeah, that’s fine. I mean, they can they can handle them and they do federal system. Well, it’s like our vaccine claims. So, we have vaccine injury vaccine injury practice that it’s the US Court of Federal claims in DC. Sure. If you’re injured on a a US base, a military base in Germany, if you get a vaccine in US military base in Germany, you can still hire us. So, I mean, we really have an international practice, I’d say. You know, you just never know. But, so I guess it’s somewhat like that. You could have a attorney in Honolulu handling your Wisconsin postal service delivery person workers comp claim.
Yeah. I mean, same with social security, too.
Yeah. Yeah. Interesting. Okay. , all right. , I promise we’re going to end this soon, even though we have like literally a page and a half to go. , Spanish speaking. , how I guess what what kind of barriers do you see to injured Spanish-sp speakaking clients getting justice?
Yeah, it’s a good question. There’s there’s a few. first and foremost, I think that a lot of Spanish speaking employees if they are undocented, they’re very fearful of bringing a work comp claim because they think perhaps that they’re going to get reported and deported. so I think that’s a big fear out there, but even if you’re undocented, you have the full rights to the work comp system. I’ve knock on wood never had a client deported while going through a work comp case with me. So I think that’s one. The other if the work comp carrier is denying benefits, the individual might not have health insurance. So that can certainly be a barrier to completing treatment. It’s very hard to kind of complete a case if we haven’t completed treatment because we really don’t know what we’re going after. Well, that goes back to your practitioner’s report. If you don’t have a doctor to fill out the report, you don’t know what to do. Okay. More often the doc more often than not, the doctor’s going to complete it at the end of care when they’re in a position to assign permanency.
Yeah. Yeah. well, so that leads a question for not only Spanish speaking, but for anybody in Wisconsin, then how does that work? If if if you’re injured, workers comp denies it and they’re not going to cover. You don’t have health insurance. or there’s a delay in getting health insurance. but you need to have care. where do those clients go? I guess they could go to the ER every time, right?
Yeah. Unfortunately, that’s not going to do much for you. Yeah. if there’s a delay in treatment because of an insurance issue, that’s generally okay. it’s not going to kill the case. Obviously, you don’t want to go years without treatment. , but if it’s a few months gap because insurance dropped, , that’s okay. That’s that’s not going to hurt things. Otherwise, there are certain physician groups that might be willing to do treatment and hold the bills that you can then include in the work comp lawsuit and then reimburse those providers once you either go to court and win or settle the case. Obviously, those providers have to be willing to take on the risk. There’s a possibility that they’re not getting anything if we go to court lose.
Yeah. So, so really those doctors are well being really kind.
Yeah. Holding these bills for maybe what months if not years.
Very much so. does does workers comp have the same kind of I guess write off and adjustment process that that health insurance has?
it’s similar. the work comp reimbursement rates are definitely the highest that I’ve ever seen compared to, you know, your typical Medicare.
Exactly. Oh, Medicare. I mean, it’s not even comparable, but even with like I have Blue Cross, work comp would pay double what my Blue Cross pays. So, that’s the benefit really for a doctor. Okay. We’re going to hold our bill knowing that if it’s a workers’s comp claim, we’re going to get paid back more than Medicare, you know, many times more what what Medicare would have paid or what Blue Cross or Hanana or United Healthcare.
Okay.
Definitely. And in those situations, we’re definitely doing our best to vet the case so that we can confidently say to the doctor, look, we we believe that this is a good case. We believe we can make a good recovery on it. We believe the risk is pretty minimal.
Yeah. Interesting. Okay. , so what’s are there when you’re talking about about not only Spanish speaking but anybody who’s in Wisconsin who may have come from let’s say Ukraine or or or any other country. , how do you talk through what kind of challenges are there for this cultural shift of of workers comp? I’m assing there isn’t this kind of system elsewhere, right?
Yeah. I I can’t say. I don’t know. I’m sure there are some countries out there that have somewhat of a similar system. , but it’s definitely it can create some difficulties. Generally, there’s a family member that’s going to help that can translate if it’s, you know, other than Spanish. but there’s definitely a kind of a breakdown in communication between facilitating what this individual is doing or trying to do for the employer within the restrictions when they don’t speak English and we’ve got to go through maybe the daughter and it’s kind of like this triangle or square where we’re trying to communicate between everybody and like the old telephone game when you’re talking talking, you’re going to miss something.
Yeah. Yeah. So, it can create some some situations that aren’t great for the employee in particular.
Yeah. Well, and that’s where you being able to speak Spanish, at least for those Spanish speaking,
Yes.
gets you a long way.
That does facilitate it quite a bit. Cool. All right. What what can I cut off cut off of my my questioning here? let’s take a break in the midpoint. , it says 54 minutes on this one. So, we’re
Yeah, so let’s just go to this because we tal we kind of talked about when PI clients have workers comp claims and we talk about collaborating, right? We won’t go into that. Let’s talk about day-to-day. I think that’ll be interesting. , and then we’ll go a couple of the quick play around and then we’re done. All right. Okay.
Sorry.
Okay. Well, I just had breaking news that my dog got a shot today. So, now she has a puppy band-aid.
That is We need to stop the presses because that’s extremely important.
All right. she had ear infection. So, she lost like six pounds.
Oh, wow. And she’s a 20 20 pound or 20. She lost 26 pounds. Now she’s 20, which for a dog percentage, right? That’s huge. Anyway, All right, back on. I’m back on.
That’s all recording.
Okay.
Okay. So So going back to, you know, we’re talking about Suits and Law and Order and all those TV shows or The Lincoln Lawyer. Have you seen The Lincoln Lawyer?
I have not.
Oh, it’s good. Like there’s the movie with with Matthew McConna and then there’s the TV show that Well, the Netflix show that’s on Netflix that’s more recent.
Yeah, I was thinking I haven’t seen the show. I have seen the movie, but it’s been a nber of years.
Yeah. The TV show is pretty good. Okay. On Netflix is pretty good. Anyway, but that’s much different than I think what you or I do any given day. So, you know, I I can be sarcastic in some of my responses when people ask, “Well, what do you do for a living?” And I say, “Well, I sit behind the desk and make phone calls.”
Right. Y Okay. That’s that’s my exciting life. , how about you? What’s your dayto-day your average day as a worker’s compensation attorney?
Yeah. I mean, I I gotta agree with you. It’s a lot of at the desk behind the computer. I would say the majority of it is definitely emails, completing forms for cases, talking with new clients, talking with current clients. , so it’s it’s a lot of computer work to be completely honest. But I mean, thankfully, I have a a bilingual parallegal that helps me out quite a bit, too. She does a lot of the followup on kind of the docent requests we’re waiting for, the 16bs we’re waiting for, things like that.
Okay. Yeah. So, you’re are you doing a lot of virtual conversations or do you really have people coming into the office? Have you seen that that change in the past five years?
Definitely seen a change. a lot less in person, a lot more emails and phone calls. , I also do texting with my clients. That’s a pretty convenient way as far as I’m concerned. And I think my clients appreciate that. , but I’ll certainly take the time to meet with an individual if it’s during the case or during intake or as we’re prepping for the hearing. So, there’s opportunities to meet in person. It’s always nice to put a put a face to the name.
Yeah. Yeah. We we text every one of our clients, which I I think is good because that’s what people that’s how people want to communicate now. But you just thinking about that from when texting began 20ome years ago. It’s just shocking to me that now that there’s a system that we can do that and keep track of where all you know the texts are coming from and it’s going into the right file. But yeah, that’s just I just always think of, you know, like Law and Order or those shows that started back in the 1980s or what was that one show with Denny Crane, Boston Legal or something, you know, you think of those shows that that it it would be foreign to them. Yeah. Texting and having that immediate contact with clients because back then it was like faxing or you just send a letter and then wait six days to get a response. says like, “What?” Anyway, all right. So, that’s your day-to-day. what kind of I guess what kind of things do you do you do to keep up on your workers’s compensation law? I I mean, do you certainly lawyers have to go to continuing legal education, but is there a workers comp portion of this?
Yeah. So, we’ve got the organization called WAKA W AWCA. I forget exactly what the acronym stands for.
Yeah.
But they tend to do most of our CLE usually in the Madison area. so I attend those on a regular basis. there’s also the occasional webcast CLE that I might do for my house. Otherwise, you know, I might bone up on reading a little bit. , and definitely just kind of having open communication not only with the attorneys in our office to kind of bounce ideas off one another or questions. , but I talk with attorneys at at other work comp firms that are, you know, technically competition, but they may have a question, I may have a question, and I think getting the outside perspective is is worthwhile sometimes.
Yeah. Well, it’s kind of like us where ultimately it’s us versus the insurance companies. So a rising tide raises all the ships in theory. , cool. , all right. So my next question was about you know your professional collaboration amongst firms which sounds like it’s similar to us where we’re a member of this association and then we can by virtue of that kind of everyone tacitly agrees that we can talk and kind of get share info about this doctor or share info about that judge or you know things like that.
Yeah. Yeah. And I don’t know if you guys have something similar, but we’ve got a Wisconsin work comp list serve where you can email a question and it’ll go out to every work comp attorney that’s part of the list and anybody can answer.
Yeah. That’s nice.
Yeah. Yeah. I know. I I use that. We had depositions down in Kenosha and we sent an email out saying, “Hey, anybody willing to give us your conference room for a half day?” And they’re like, “Oh, sure.” You know, X, Y, and Z. Which is awesome.
Yeah. All right. Now, we’re almost done. I promise. , do you have a go-to song that you listen to on the way into a important meeting or a a hearing or even kind of music? I don’t. Like Andre Belli, you’re listening to opera. Are you a jazz guy?
No, I’m not really. I would say it’s more maybe maybe 90s rock. Google Dolls.
No, I’m not a Goog doll. It’s more like I’m talking Crows, I guess. I’m talking more like, you know, perhaps the Led Zeppelins of the world.
Led Zeppelin’s not 90s rock. That’s it’s what I It’s what I grew up listening to and I was growing up a little bit. A little bit Well, I mean that that will get you going.
Yeah. but I don’t really need the pp up, you know. I’m kind of more of a It’s kind of a switch for me. Yeah. You know, everything is very laid-back and calm usually, and then once I get to the hearing, it’s kind of like Okay. Yeah, your advocacy mode is enabled.
Yeah.
Cool. Cool. Cool. , what’s the most underrated part of being a workers comp attorney?
Being able to help people that need help.
Yeah. You know, I’m sure it’s not considered underrated, but that’s definitely I I knew I always wanted to get into something where I was going to be able to help people. This absolutely fits the bill.
Yeah. Yeah. Well, and I think, you know, hearing what you’re talking about, , when you’re in Oregon, Wisconsin, , helping people as they’re coming out of their their voyage in in in prison.
Yeah.
I think this is something that goes along with it sounds like a lifelong desire just to be a good, helpful person.
Definitely, which is awesome. , what’s your favorite legal movie or show? I know we kind of discussed a couple of them. Do you have a show that you has some kind of legal aspect that you like?
You know, honestly, so my dad was an attorney, too, and I feel like this rubbed off on me. He doesn’t like attorney movies or shows really. And I’ve kind of grown into that same mindset. And I think a lot of it is because you see things that it’s like that’s just not not what would happen. That’s not how it goes. And so it kind of like you just kind of dissect it the whole time rather than it take it in and enjoy it. So I can’t really say that I do. I don’t I don’t really watch too much legal entertainment.
So I’m going to answer the question because I have to say you have to watch a civil action. Okay. With John Travolta. Okay. Not so much for the legal aspect, but there’s a lot of legal aspect. the first five minutes or so where he’s walking down the courthouse hallway with his injured victim and going into trial and he’s to a fault describing the the algebra or the mathematical equations I guess the concepts of an injury case are almost spoton. you know, like, you know, the death of a ch, sadly, the death of a child is worth less in Wisconsin cuz our law says that a dead child is only worth a few hundred grand. That’s horrible. , but that that’s his analysis is is very fascinating. And that goes back to the 1990s, but then it it goes into more of the the business of the law, okay? where you see him over the whole movie going to banks trying to get loans to finance his cases and then you know the staffing and the partners and all that. I think that that’s what I think is interesting. U check that one out. It’s a good movie. A civil action with John Travolta. all right. I don’t know. This is What do you mean we can’t we can’t keep on going? let me do one more thing and then we’re going to get get off. Is there a Spanish phrase that every injured worker should know?
A Spanish phrase that every worker should know.
Where is my attorney? Where’s my attorney?
Okay, there we go. We will end with that. very good. Thank you very much for joining this episode. Thanks for joining the Groth Gets It Podcast!
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