In Wisconsin, workers compensation covers two specific categories of losses to an employee. Under Wis. Stats. Sec. 102.01(2)(c) in order to receive worker’s compensation benefits, an employee must sustain an injury, a mental or physical harm to an employee caused by a single traumatic accident or an occupational disease over time. Claims for mental or psychological injuries based on stress without physical injury are very limited.
A traumatic accident is “a fortuitous event, unexpected and unforeseen by the injured person.” John H. Kaiser Lumber Co. v. Industrial Comm’n, 181 Wis. 513, 513 , 195 N.W. 329 (1923) . This definition is satisfied “either if the cause was of an accidental character or if the effect was the unexpected result of routine performance of the claimant’s duties.” School Dist. No. 1 v. DILHR, 62 Wis. 2d 370, 375 , 215 N.W.2d 373 (1974).
An employer or employee cannot together or unilaterally alter liability for worker’s compensation coverage. See Epic Staff Management, Inc. v. LIRC, 2003 WI App 143 , 266 Wis. 2d 369 , 667 N.W.2d 765. Keep in mind there is a political effort in some states, including here in Wisconsin, to pass laws allowing employers to “opt out” of the workers’ compensation system.
Different from a traumatic injury, an occupational disease is mental or physical harm that results from the job but is not so sudden or traumatic as to fit within the definition of an accident. A work occupational exposure can be as short as one day. Wisconsin law does not include or exclude any occupational disease from its worker’s compensation benefit provisions, nor has any appellate court excluded any potential occupational disease from consideration.
Occupational disease includes work-related accidental back damage that has occurred over many years. Shelby Mutual Insurance Co. v. DILHR, 109 Wis. 2d 655 , 327 N.W.2d 178 (Ct. App. 1982). If an employee works for several employers, each of which has the type of job duties contributing to the disability and no disability is previously assigned, then the employer that was on the risk on the injured employee’s last day of work contributing to the disability is responsible for the entire disability. A workers’ compensation occupational disease injury may be found to exist even in the absence of any identifiable traumatic injury-causing events. Wisconsin Ins. Sec. Fund v. LIRC, 2005 WI App 242, ¶¶ 9-12, 288 Wis. 2d 206.
McCormick Law Office in Milwaukee, Wisconsin utilizes medical records and expert medical opinions to determine date of injury and theory of causation in neck and back injury cases. Workers compensation can cover a neck or back injury that is a combination of traumatic injury and occupational disease over time.