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Can't Win PTD? .... Think Again! LIRC Affirms Perm Total Award

Justice.jpgIn a wake-up call to work comp insurance companies, the Labor and Industry Review Commission (LIRC) just affirmed a permanent and total disability award for an injured worker! [Click for LIRC Decision] Domer Law represented a truck driver/dock worker whose job duties were a material contributory causative factor in the progression of his low back condition, resulting in a failed low back surgery and permanent restrictions that precluded a return to work.

Times are a-changin' in Wisconsin, and injured workers now have a legitimate chance of receiving fair and just compensation for severe workplace injuries.

Permanent Total Disability

Under Wisconsin law, if a worker's serious injury results in permanent total disability (PTD), they receive 2/3 of their wages (tax free) for their lifetime, along with payment for related medical treatment expenses. The focus is on "vocational" disability, meaning the injury's impact on the ability to earn wages. Specifically, a worker can be deemed "odd lot" permanently and totally disabled, when they are so injured that they can perform no jobs other than those which are so limited in quality, dependability, and quantity that a reasonably stable labor market does not exit.

Recent Experience

In recent years, however, the prospects for a PTD award appeared slim based on decisions from the Commission. The three-person Commission was made up of all Governor Scott Walker appointees, with a corresponding employer-friendly drift. Indeed, a news article from 2017 highlighted the difficulties injured workers faced when appealing cases to the Commission. An applicant attorney colleague was quoted:

"What they did between that period of time has really tilted the scales in favor of the insurance companies and employers in a very significant way," said Luke Kingree, a worker's compensation attorney who practices in Eau Claire and Madison who did the study covering decisions between 2014 and 2016.

Based on this track record, many defense attorneys and adjusters actively told us that "you can't win perm total!"--resulting in attempts at lower settlements or pushing cases to court. That time is (maybe) over now.

Current Decision

The winds of change are in the air. There is a new Commissioner appointed by Governor Evers. More importantly, in the most recent LIRC Decision affirming permanent total disability, all three current Commissioners ruled unanimously in favor of the injured worker's claim.

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