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  • March 01, 2023

    The Importance of Date of Injury in Occupational Injury Workers’ Compensation Cases

    Wisconsin workers' compensation allows for two ways to establish liability: traumatic and occupational and both may use different dates of injury. Matthew Lein explains the significance of an occupational wear and tear injury and the date of injury to use.

    Matthew C. Lein

    Life can turn on a dime. An injury sustained due to the nature of your occupation can set life-changing ripples in motion and cause you to take steps back physically, mentally, and financially.

    While we all know that it is possible to attain an injury due to our occupation, we also never take a job expecting that to be the result. Knowing that your employer carries workers’ compensation insurance can give injured workers some peace of mind.

    However, it is essential to understand the type of injury you have according to Wisconsin law, the related time limits regarding filing notice to your employer, and timing considerations regarding filing the claim itself.

    For workers who do find themselves suffering from an occupational injury, it becomes crucial to understand the pivotal task of determining the “date of injury” that will apply in their case. This article briefly discusses the different types of injury recognized under Wisconsin law, why determining a date of injury for occupational injuries is tricky, and why it is of the utmost importance to ensure you get it right.

    What Should Be Considered in Filing a Claim?

    Workers suffering from an occupational injury have a lot that needs tending to. It may seem overwhelming to think about starting the process when you have so much else that needs to be managed.

    However, time limits for filing a claim (or statutes of limitation) are in place. While these limitations exist for many reasons, it does emphasize the importance of filing your claim as soon as practicable.

    Wisconsin employs two separate sets of rules regarding collecting workers’ compensation insurance claims. The time you have to file a claim will depend on whether you suffered a traumatic injury or are afflicted with an occupational injury. These two categories of claims are discussed in Zabkowicz v. Industrial Comm. (1953), which states that an accidental injury results from a definite instance, while an occupational disease is acquired as a result of employment over a period of time.

    Traumatic Injury

    Those suffering from what qualifies as an accidental or traumatic injury generally have six years to file a claim.

    Many of these kinds of injuries are what one thinks of as “typical” workplace injuries. Items such as slipping off a ladder, falling into a piece of machinery, or obtaining burns in an explosion are all usually single-event injuries. It is generally pretty simple or straightforward to identify the appropriate date to apply to the statute of limitations equation (determining when the cutoff date is for filing a claim) since the injury is tied to a specific event that happened on a particular date.

    Occupational Injury

    Unlike the traumatic injuries listed above, occupational injuries and diseases are those acquired as a result of employment over time. A few examples could include issues such as hearing loss, asthma, and musculoskeletal disorders.

    Think, for instance, of a worker at an ice cream shop who develops chronic carpal tunnel or tendinitis in the wrists after working as the ice cream scooper-server for 15 years. No one would be able to point to a specific date or instance where the individual obtained their injury. Instead, it is, arguably, the continued exposure to damaging, repetitive body movements required by the workplace that progressively led to the onset of the injury.

    Other examples of occupational injury include a construction worker or coal miner with a lung condition that has developed after enduring years of dust inhalation on the job.

    The statute of limitations for these kinds of injuries is 12 years. This means that an employee can file a claim against their employer or the employer’s insurance company within 12 years of the date of injury or the last date the employee received compensation.

    Matthew C. Lein Matthew C. Lein, Marquette 2011, is a partner with Lein Law Offices in Hayward, where he practices in personal injury, bankruptcy, consumer, and workers’ compensation law.

    When to Report

    In order to establish a workers’ compensation claim, you must first report the injury to your employer, giving them notice that a claim is forthcoming. This notice should be given within 30 days of an injury.

    However, a notice of an occupational disease claim can be given, instead, within 30 days of when the employee knew about the disability and the link between the disability and their employment. If this notice is not given within those 30 days, it can still be possible to give notice within two years of the date of injury, the onset of disease, or the date on which the employee first realized that their employment had caused their affliction.

    Date of Injury for Occupational Injuries

    As explained above, unlike a slip and fall or other injury resulting from a specific accident on a specific day, there is no specific date that can be pointed to as the onset of injury with occupational injury claims. However, determining this date is crucial for various reasons, including determining whether the claim is filed within the time period allowed by the statute of limitations.

    It may also be necessary to determine which employer is liable for the claim. Wisconsin workers’ compensation statute, Wis. Stat. section 102.01(2)(g), states that, for these kinds of occupational injuries, the date of injury is generally considered to be the date of disability or, if that date is after the worker has stopped working in the employment that caused injury, the last day of work for the last employer that caused the injury.

    Case law has been developed to help provide further clarification in determining a date of injury in occupational injury cases. Virginia Sur. Co. Inc. v. WI Labor and Industry Rev. Comm'n (2002), for example, states that in occupational disease cases, the date of injury is understood to be when an employee first suffers wage loss as a result of the condition due to the disease symptoms. Therefore, in accordance with this case precedence, the date of disability might be the last day the employee worked for a specific employer.

    Subsequent Injuries are New Incidents

    In cases where the disability is partial or temporary, the individual may recover, go back to work, and have a subsequent injury occur. In that scenario, the individual may invoke workers’ compensation benefits again for the subsequent injury, but this second claim will be treated as a separate incident with a separate date of injury (and, potentially, a separate employer could be responsible) than the first instance.

    This article was originally published on the State Bar of Wisconsin’s Litigation Section Blog. Visit the State Bar sections or the Litigation Section webpages to learn more about the benefits of section membership.

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    Litigation Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Matthew Lein and Heather L. Nelson and review Author Submission Guidelines. Learn more about the Litigation Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2024 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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