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Healing Period: Who Determines When This is Reached and When is TTD Owed?

Jul. 2017

In its recent decision in Wittmann v. Consolidated Lumber Co., et al, the Wisconsin Court of Appeals determined that the weight and credibility of medical evidence, as applied to worker’s compensation and employment matters, is to be determined by the Labor and Industry Review Commission (LIRC), not by the reviewing courts.  The court expressly adopted LIRC’s determination of factual findings and conclusions of law regarding a disputed healing period and disability benefits determination.

This is a significant decision, given the recent budget proposals advocating the minimization of LIRC regarding worker’s compensation matters.  Additionally, this decision provides clear guidance on the interpretation of compensability of injuries as they relate to salaried employees who do not require work restrictions, as well as on disputed end of healing determinations.

The court based its decision on the on the Brakebush Bros decision (210 Wis. 2d at 630), stating “the weight and credibility of medical evidence are to be determined by LIRC, and not by the reviewing court.”  The Court of Appeals expressly adopted the findings of LIRC, not the Circuit Court citing the above case.  The Court stated LIRC’s findings regarding healing period determinations when supported by substantial evidence in the record, are to be given weight, even when continued treatment is sought for other problems regarding the same body part, although separate from the claimed injury.

Further, it determined that when no work restrictions are imposed and there are no lost wages during the healing period, a claim for disability benefits based outside the healing period is not a sustainable argument.  The mere fact that an employee continues to seek treatment after the healing period ends, is not a sufficient eligibility determination for temporary total disability benefits.