Workers’ Compensation: Restoring Your Earning Capacity

If you are an injured worker with permanent restrictions, that may mean your company cannot rehire you. If your employer cannot take you back, you are entitled to benefits that will allow you to restore your earning capacity, including loss of earning capacity claim and/or a vocational retraining claim (depending on what body part you injured).

“An injured worker can receive compensation for both permanent functional disability and permanent vocational disability (for certain types of injuries). Functional disability generally is determined by a treating practitioner, while vocational disability is assessed by vocational experts who understand the labor market.” – Attorneys and authors Tom and Charlie Domer, from their book, “Wisconsin Workers’ Compensation Law”

What Happens If You Cannot Go Back To Work?

If your employer is unable to accommodate your permanent restrictions, you may be able to pursue a loss of earning capacity claim (generally for back injuries, neck injuries, head injuries or spine injuries—known as “unscheduled” injuries).   For most injured workers with permanent limitations, trying to find a job in the open labor market can be difficult—resulting in lesser wages.  A loss of earning capacity is a comparison between the wages you were able to earn before the work injury and what an injured worker can earn after the work injury based on a number of factors, including their permanent work activity limitations, age, education, past work history, and job skills.

To assess a loss of earning capacity for a worker with a back, neck, or head injury, Wisconsin law requires the use of a vocational expert (someone who is trained to know and understand the labor market). We can arrange an appointment with a vocational expert who knows the labor market and will assess your loss of earning capacity. We can get you compensation for your lost ability to earn wages.

Unfortunately, there are no loss of earning capacity claims for workers with only limb injuries (for example: the permanent limitations are restricted to the workers knee, or shoulder, or ankle).  This remains an arbitrary distinction under Wisconsin law, as a worker with permanent limitations to their finger (like a carpenter) may have the same loss of earning capacity as a worker with a permanent limitation to their spine.  However, worker’s compensation is defined by the state legislature, and the inability to pursue a loss of earning capacity claim for limb injuries is set by statute.

Returning To School After An Injury

If you cannot return to work with permanent limitations, you may be able to receive retraining benefits that enable you to go back to school. Retraining is available to workers regardless of the body part injured—meaning this is available to workers with limb injuries too.  Accordingly, vocational retraining is a crucial consideration for an individual who has permanent limitations to an injured limb (e.g., shoulder, knee, foot, hand) and cannot return to their time-of-injury employer.

A Division of Vocational Rehabilitation (DVR) counselor or vocational expert will help you with the retraining process if you are motivated to return to school. Along with educational and retraining programs, vocational rehabilitation services include things like career counseling, help with updating your resume, interview coaching and job placements. Before you can take advantage of these services, you must prove eligibility. This generally involves undergoing an assessment to confirm that you cannot return to your old job and that retraining would let you re-enter the workforce.

There is a wide range of retraining programs available for workers with permanent restrictions, including vocational schools and access to community college courses. The type of classes you take depends on the type of new work you are interested in, your current ability level and the job market. These programs last anywhere from a few months to a couple of years. Usually, a vocational counselor will assist you in determining what kind of vocational retraining would be good for you as well as where you can go to school.

The Wisconsin worker’s compensation law has generous vocational retraining benefits for an injured worker. If retraining is an option for you, you still can get paid:

• Weekly benefits (at two-thirds of your injury wages, tax free) while in school;
• Tuition;
• Book expenses;
• Compensation for mileage to/from school;
• Meal expenses (while at school); and
• Parking expenses.

This package of school benefits will allow you to get retrained into a new career to allow you to restore your earning capacity to what it was before the injury.

If you have permanent restrictions, cannot return to work and are motivated to return to school, contact Domer Law. Most insurance companies do not voluntarily pay for retraining or offer these programs. Attorneys with experience in workers’ compensation law can pave the way to a job future you didn’t know you could have.

We Wrote The Book On Wisconsin Workers’ Compensation Law

Wisconsin’s worker retraining program offers a lot of different benefits and opportunities. Without help from a workers’ comp attorney, you could miss out on benefits you are entitled to as you restart your career. At Domer Law, S.C., we wrote the book on workers’ compensation law in Wisconsin. Our lawyers teach workers’ compensation law to law students and other attorneys.

We can help set up an appropriate DVR-sponsored school program to make sure that you get the full workers’ compensation benefits due to you, including retraining or loss of earning capacity benefits.

Contact Us Today

With 80 years of combined experience, we know Wisconsin workers’ compensation law inside and out. Our offices are in Milwaukee and Waukesha, and we represent injured workers throughout Wisconsin. Consultation is free. There are no attorney fees unless we prevail. Call Domer Law, S.C., at 414-279-2647 or contact us online.