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That's Not Fair!

"That's not fair!"

I continually receive this response when I tell an injured worker that they cannot sue their employer based on their work injury and its effects. Despite the media barrage many workers equate worker's compensation with personal injury law. The concept of fairness and fault quite frankly have no real place in the worker's compensation system.

As discussed in prior posts, the worker's compensation system is based on a "deal" between employers and employees, dating all the way back to 1911 in Wisconsin. Workers, in effect, gave up the right to sue in Circuit Court, along with their right to a jury trial and verdict, in exchange for certain, guaranteed, and lesser payments, regardless of having to prove fault. Employers give up the right to their common law defenses (assumption of risk, co-employee negligence, and contributory negligence) and avoided the uncertainty of high jury verdicts, while simultaneously accepting liability (and requirement of worker's compensation insurance) for all work-related injuries.

For most employees, the system works very well. This is because generally only 10% of work-related injuries have provable "fault." These statistics were from a recent seminar I attended through the Worker's Injury Law and Advocacy Group. This means that-on average-only 10% of work injuries could an injured worker arguably claim was based on negligent or intentional acts of the employer or a co-worker. Thus, for the other approximately 90% of workers, the worker's compensation system is a huge beneficial safety net. Without the worker's compensation system, these workers could be off work, without any type of income or medical bill payment. It is helpful to remind injured workers of this incredibly relevant statistic.

When asking injured workers to actually define who could have been responsible (if this was a personal injury system) for their injury, the responses generally are difficult. In most instances, there is no one to blame-it was an accidental injury. This is a reminder to injured workers of the true benefits of our stable and beneficial worker's compensation system in Wisconsin.

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Domer Law
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Milwaukee, WI 53211

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