A work related workers compensation injury entitles an injured worker to workers compensation benefits, if an employee sustains an injury, defined in section 102.01(2)(c) as “mental or physical harm to an employee caused by accident or disease … .” Some injuries caused by mental stress without trauma are excluded. An injury or condition is work-related if it was caused by a traumatic incident or accident at work or by job duties over time.

An accident is “a fortuitous event, unexpected and unforeseen by the injured person.” John H. Kaiser Lumber Co. v. Industrial Comm’n, 181 Wis. 513 (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 (1974).

Causation by job duties over time is called an occupational disease, which is a mental or physical harm that results from occupational exposure but is not so sudden or traumatic as to fit within the definition of an accident. A work exposure as short as one day has been held legally sufficient. Gumieny v. County Concrete Corp., WC Claim No. 2004-017501 (LIRC July 11, 2006). Wisconsin has not statutorily enumerated or excluded any occupational disease from its worker’s compensation benefit provisions. Nor has any appellate court excluded any potential occupational disease from consideration. The Labor and Industry Review Commission (LIRC, or the commission) has ruled that an employee’s permanent sensitization to cigarette smoke as a result of workplace exposure is a compensable occupational disease. Kufahl v. Wisconsin Bell, Inc., WC Claim No. 88-000676 (LIRC Dec. 11, 1990).

In Shelby Mutual Insurance Co. v. DILHR, 109 Wis. 2d 655 , 327 N.W.2d 178 (Ct. App. 1982) , the concept of occupational disease was broadened to include a series of work-related accidental back injuries that had occurred over many years. The employee’s disability had not been medically apportioned among the injuries, and the insurer that was on the risk on the injured employee’s last day of work was found responsible for the entire disability.

A work related job duties injury or condition 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, 288 Wis. 2d 206. The date of injury for occupational diseases is the date of disability or, if all employment that contributed to the disability ceases before that date, the last day of work for the last employer whose employment caused the disability. Wis. Stat. § 102.01(2)(g)2.

McCormick Law Office attorneys are in Milwaukee, Wisconsin. Believe in better.