If I can’t return to work after a workers compensation injury there are at least two good options available in Wisconsin. Under Wisconsin statutes chapter 102, the workers’ compensation law, an injured worker can get loss of earning capacity benefits and/or vocational retraining benefits. In order to qualify for loss of earing capacity or vocational retraining benefits the injured worker’s doctor or surgeon must have assigned work-related permanent restrictions, which prevent the employee from being able to return to work after his injury has healed. Then if the employer confirms it is unable to accommodate the work-related, permanent restrictions, we can go for loss of earning capacity benefits or refer an injured worker to the Division of Vocational Rehabilitation.
In order to be eligible for workers compensation loss of earning capacity benefits in Wisconsin, an injury must be unscheduled. Scheduled injuries are found in Wisconsin statutes section 102.52 and generally involve the arms and legs. Scheduled injuries do not qualify for loss of earning capacity benefits, regardless of the injury severity or its impact on a person’s actual ability to earn a living. If a person with a scheduled injury can’t return to work after injury, for example a laborer who has a permanently disabled right wrist, all he can do is get permanent partial disability benefits and possibly vocational retraining benefits.
On the other hand, unscheduled injuries, which are a permanent injury not covered by the schedule, Wisconsin statutes section 102.44, then loss of earning capacity benefits are available. The majority of unscheduled workers compensation injuries involve the low back, neck and head, including psychological or mental injury. The theory behind not allowing loss of earning capacity benefits for scheduled injuries is that it would be too difficult to verify the vocational impact of a scheduled injury and the presumption that most scheduled injuries would not permanently impact an employee’s return to work. Of course there are exceptions such as a plumber with a severe knee injury so he cannot return to work as a plumber.
With a younger worker especially, an unscheduled, permanent injury that prevents a return to work, will require that vocational retraining benefits be attempted before a loss of earning capacity will be available. If a retraining claim is not mandated, then a loss of earning capacity claim will in most cases be more valuable to an injured worker than a vocational retraining claim.
McCormick Law Office attorneys in Milwaukee, Wisconsin analyze unscheduled injuries for loss of earning capacity and vocational retraining benefits. The first step is determining if the treating physician or surgeon has assigned permanent, work-related physical restrictions that prevent an injured worker from returning to work after an injury.