Can workers comp be sued in Wisconsin by an injured worker generally not in court. However, an injured worker can make a bad faith claim under the workers’ compensation law and receive increased workers compensation benefits if successful.
If the workers comp company denies payment it must have a reasonable basis to deny, suspend or terminate benefits, whether for medical bills or time off work. A reasonable basis for denial means the claim is fairly debatable based on credible evidence. The ‘credible evidence’ is often a medical report from a treating physician stating there is not a work-related injury or an independent medical examiner or IME report stating no work-related injury. A claim is fairly debatable if a reasonable employer or worker’s compensation insurer would have denied or delayed payment. Wis. Stats. Sec. 102.18(1)(bp) and Wis. Admin. Code Sec. DWD 80.70(2). This statute allows an injured worker claimant to make a bad faith claim against the employer or insurer but he must prove 1) the insurer had no reasonable basis for denying benefits and 2) the insurer knew it did not or had a reckless disregard for whether there was a reasonable basis for denying the claim. Reasonable basis has been further defined as: whether the insurer conducted a proper investigation and were the results of the investigation were subject to a reasonable evaluation and review. Usually a hearing on bad faith occurs after a hearing on the merits of the claim. The workers compensation judge may award an amount that it considers just, not to exceed the lesser of 200 percent of total compensation due or $30,000 for each event or occurrence of malice or bad faith. The department may assess the penalty against the employer, the insurance carrier or both.
There is also a delay in payment penalty under Sec. 102.22(1). If any insurer inexcusably delays payment for more than 14 days after an employee leaves work due to an injury, the payments due may be subject to a 10% penalty. In addition, if an insurer inexcusably delays making a the first payment for more than 30 days after the employee leaves work, the payments due shall be increased by 10%.
Another penalty of up to one year’s lost wages is refusal to rehire under Sec. 102.35(3) is when an employer has a position available to a returning injured worker within restrictions but does not offer it. Refusal to rehire is usually inconsistent with a substantial loss of earning capacity or vocational retraining claim.
Attorneys at McCormick Law Office in Milwaukee we represent injured workers in claims that include penalties for bad faith, delay in payment and unreasonable refusal to rehire.