Various changes to the worker’s compensation law, granting rule-making authority, making an appropriation, and providing a penalty. (FE)

Supplemental benefits for permanent total disability Under current law, supplemental benefits are payable to an injured employee in cases of permanent total disability or continuous temporary total disability for an injury occurring before January 1, 2003. This bill does the following:

1. Extends the availability of supplemental benefits to injured employees with injuries before January 1, 2020, including certain employees who had preexisting injuries and receive compensation for permanent and total disability under what is commonly referred to as the second injury fund.

2. Raises the amount of benefits available so that the benefits correspond to the benefits in effect for the year 2020.

3. Indexes the benefits so that, on each January 1, the supplemental benefit rate is raised to correspond with the benefit rate that was in effect for the next year.

4. Requires insurers requesting reimbursement for supplemental benefits to do so through electronic means.

Compromise agreements The bill provides the following with respect to agreements to compromise worker’s compensation claims:

1. That payment pursuant to a compromise agreement, including the full amount of any lump sum payment, may be made directly to an injured employee and need not be paid into an account at a financial institution.

2. That amounts paid under a compromise agreement are not to be considered advance payments. Current law allows DWD to direct an advance payment of unaccrued worker’s compensation benefits in certain cases.

3. A requirement that, when DWD issues an order approving a compromise agreement, DWD include a dismissal of the pending application for hearing and formally close the case.

Statute of limitations Current law provides for a statute of limitations for bringing claims for worker’s compensation. In the case of occupational disease, the statute of limitations is 12 years from the date of the injury or from the date that worker’s compensation was last paid or, in the case of traumatic injury, six years from that date. However, this statute of limitations does not apply in the case of occupational disease or in the case of certain traumatic injuries, including traumatic injuries causing the need for an artificial spinal disc or a total or partial knee or hip replacement. The bill does the following with respect to these statute of limitations provisions:

1. Adds traumatic injuries causing the need for a shoulder replacement or a reverse shoulder replacement to the list of injuries for which there is no statute of limitations.

2. Expressly provides that the 12-year statute of limitations under the worker’s compensation law may not be tolled, as further specified in the bill.

“Stacking” of disability ratings Current law requires DWD to promulgate rules establishing minimum permanent disability ratings for amputation levels, losses of motion, sensory losses, and surgical procedures resulting from injuries for which permanent partial disability is claimed. The bill provides that, for purposes of calculating permanent partial disability under those rules, when an employee undergoes the same surgical procedure a second or subsequent time on the same limb for which permanent partial disability is due pursuant to those rules, the employee’s permanent disability rating with respect to those procedures shall be determined by health care providers and not by aggregating (stacking) the ratings from those procedures. The bill reverses DaimlerChrysler v. LIRC , 2007 WI 15, in which the Wisconsin Supreme Court upheld a cumulative minimum permanent partial disability rating for multiple ligament repair procedures.

Claim and hearing process The bill makes various changes regarding the hearing and dispute resolution process for disputes for claims for worker’s compensation as follows:

1. The bill provides all of the following with respect to a medical diagnosis of an injured employee, the necessity of the treatment for the employee, and cause and extent of the employee’s disability:

a. That certified reports by physician assistants and advanced practice registered nurses are admissible as evidence of the diagnosis, necessity of the treatment, and cause and extent of the disability. Current law provides that certified reports by physician assistants and advanced practice registered nurses are admissible as evidence of the diagnosis and necessity of treatment but not of the cause and extent of the disability.

b. That certified reports by licensed audiologists are admissible as evidence of the diagnosis, necessity of treatment, and cause and extent of hearing loss.

2. The bill provides that if, after a party submits an answer or otherwise notifies DWD regarding a pending application on a claim for compensation, DWD determines that an application does not present a justiciable dispute or controversy, DWD must enter an order dismissing the claim without prejudice.

3. The bill provides that if at any time DWD determines that there is no dispute or controversy regarding a pending hearing application for which the parties to the claim are seeking a determination, DWD must enter an order dismissing the claim without prejudice.

4. The bill specifies that certain changes regarding the claims and hearing process that were made in 2023 Wisconsin Act 213 apply retroactively to all claims, regardless of the date of injury.

5. The bill provides that records prepared under the vocational rehabilitation program may be admitted into evidence at worker’s compensation hearings without requiring that a Division of Vocational Rehabilitation counselor be present to authenticate the records.

Medical treatment The bill provides that, in the case of an inpatient hospitalization of an employee, a health care provider may not restrict the employer’s or insurer’s case management personnel from access to records and participation in discharge planning when required to ensure that an injured worker with a disability has appropriate housing and transportation.

Coverage; liability Coverage for PTSD for firefighters, emergency medical responders, and emergency medical practitioners Under current law, if a law enforcement officer or full-time firefighter is diagnosed with PTSD by a licensed psychiatrist or psychologist, and the mental injury that resulted in that diagnosis is not accompanied by a physical injury, that law enforcement officer or firefighter can bring a claim for worker’s compensation benefits if the conditions of liability are proven by a preponderance of the evidence and the mental injury is not the result of a good faith employment action by the person’s employer. Also under current law, liability for such treatment for a mental injury is limited to no more than 32 weeks after the injury is first reported.

Under current law, an injured emergency medical responder, emergency medical services practitioner, or volunteer firefighter who does not have an accompanying physical injury must demonstrate a diagnosis on the basis of unusual stress of greater dimensions than the day-to-day emotional strain and tension experienced by all employees, as required under School District No. 1 v. DILHR , 62 Wis. 2d 370, 215 N.W.2d 373 (1974), in order to receive worker’s compensation benefits for PTSD. Under the bill, such an injured emergency medical responder, emergency medical services practitioner, or volunteer firefighter is not required to demonstrate a diagnosis on the basis of that standard, and instead must demonstrate a diagnosis on the basis of the same standard as law enforcement officers and firefighters. Finally, under the bill, an emergency medical responder, emergency medical services practitioner, or volunteer firefighter is restricted to compensation for a mental injury that is not accompanied by a physical injury and that results in a diagnosis of PTSD three times in his or her lifetime irrespective of a change of employer or employment in the same manner as law enforcement officers and firefighters.

Penalties for uninsured employers Under current law, DWD must assess an administrative penalty against an employer who requires an employee to pay for any part of worker’s compensation insurance or who fails to provide mandatory worker’s compensation insurance coverage. If the employer violates those requirements, for the first 10 days, the penalty under current law is not less than $100 and not more than $1,000 for such a violation. If the employer violates those requirements for more than 10 days, the penalty under current law is not less than $10 and not more than $100 for each day of such a violation.

The bill provides the following penalties for such violations: 1) for a first violation, a penalty of $1,000 or the amount of the insurance premium that would have been payable,whichever is greater; 2) for a second violation, $2,000 or two times the amount of the insurance premium that would have been payable, whichever is greater; 3) for a third violation, $3,000 or three times the amount of the insurance premium that would have been payable, whichever is greater; and 4) for a fourth or subsequent violation, $4,000 or four times the amount of the insurance premium that would have been payable, whichever is greater.

Under current law, if an employer who is required to provide worker’s compensation insurance coverage provides false information about the coverage to his or her employees or contractors who request information about the coverage, or who fails to notify a person who contracts with the employer that the coverage has been canceled in relation to the contract, DWD must assess a penalty of not less than $100 and not more than $1,000 for each such violation.

The bill provides that the penalty for violations occurring after the third such violation is $3,000 per violation, and $4,000 for violations occurring after the fourth such violation.

Also under current law, an uninsured employer must pay to DWD an amount that is equal to the greater of the following: 1) twice the amount that the uninsured employer would have paid for worker’s compensation coverage during periods in which the employer was uninsured in the preceding three years or 2) $750 or, if certain conditions apply, $100 per day.

The bill provides that the amounts an uninsured employer must pay to DWD for a determination of a failure to carry worker’s compensation insurance are as follows:

1. For a first or second determination, the amounts specified in current law.

2. For a third determination, the greater of the following: a) three times the amount that the uninsured employer would have paid for worker’s compensation coverage during periods in which the employer was uninsured in the preceding three years or b) $3,000.

3. For a fourth or subsequent determination, the greater of the following: a) four times the amount that the uninsured employer would have paid for worker’s compensation insurance during the periods in which the employer was uninsured in the preceding three years or b) $4,000.

Application and premium fraud Under current law, if an insurer or self-insured employer has evidence that a worker’s compensation claim is false or fraudulent, the insurer or self-insured employer must generally report the claim to DWD. If, on the basis of the investigation, DWD has a reasonable belief that criminal insurance fraud has occurred, DWD must refer the matter to the district attorney for prosecution. Also under current law, DWD may request assistance from the Department of Justice to investigate false or fraudulent activity related to a worker’s compensation claim. If, on the basis of that investigation, DWD has a reasonable belief that theft, forgery, fraud, or any other criminal violation has occurred, DWD must refer the matter to the district attorney or DOJ for prosecution.

The bill extends these requirements to insurers that have evidence that an application for worker’s compensation insurance coverage is fraudulent or that an employer has committed fraud by misclassifying employees to lower the employer’s worker’s compensation insurance premiums.

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