2016 Update To Wisconsin Workers' Comp Law: The Good, The Bad And The Unknown
Nicolet Law Office, S.C.

2016 Update To Wisconsin Workers' Comp Law: The Good, The Bad And The Unknown

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In 1911, Wisconsin became the first state in the nation to implement a workers' compensation system. This system has remained in place for more than a century by being adaptable and changing with the times as needed. Recently, changes were made to the Workers' Comp Act, as generally happens on a bi-yearly basis.

We have looked through the act and highlighted the changes that are most relevant to working Wisconsin residents in four sections below. If you have additional questions about workers' compensation or the state of the Workers' Comp Act, please contact us.

The Good

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Increased Weekly Benefit Rate: Permanent partial disability (PPD) benefits were increased to $342 per week for injuries suffered between March 2, 2016, and December 31, 2016. These benefits will increase by another $20 in 2017 to a rate of $362 per week.

Cost Of Medical Records Becomes Fixed: Obtaining an electronic copy of medical records was fixed at $26 per request. This will keep the cost of medical records constant.

Retraining Benefits More Easily Accessible: In the past, if you were hurt on the job, unable to return to your previous employer and in need of retraining, you couldn't ask for retraining benefits until you had already enrolled in a new training program. That was obviously problematic, as you would have to put money upfront before you even knew if you could obtain the benefits. Recent changes to the workers' comp law switch things around so they make more sense; now, you can request retraining benefits and permission for these benefits can be granted before you begin retraining.

Working During Retraining Period: Closely related to the previous change, this new provision allows those who are pursuing retraining to work up to 24 hours per week without having the income earned during those hours count toward a reduction of workers' comp benefits. Previously, those wages would have reduced workers' comp benefits and essentially served to either de-incentivize working while retraining or to penalize those who wanted to work hard and earn a living while getting their education. That will no longer be the case, and workers now have every incentive to stay productive while going through retraining.

Cost Of Physician's Final Report Becomes Fixed: Reports from treating physicians (or other providers) now "must be provided on a timely basis" and the maximum charge for these reports is $100. This keeps the cost of obtaining these reports down and ensures that they can be obtained with minimal delay.

The Bad

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Statute Of Limitations Reduced: The previous statute of limitations for traumatic injury claims was 12 years. The new law cut that timeline in half, and now you have only six years to file a traumatic injury claim.

Benefits Denied Based On Employee Fault/Misconduct: In the past, workers were able to receive temporary disability benefits even if they were eventually released due to post-injury misconduct. This was a longstanding tradition in Wisconsin law known as the Brakebush doctrine. This doctrine existed because it was thought that any misconduct by an employee after a work-related injury should not affect the employee's ability to receive benefits from an injury that was suffered while the employee was in good standing. Now, if an employee is able to do light/limited duty work after an injury, the employee's benefits can be denied if the employee is terminated or suspended due to "misconduct ... or substantial fault ... connected with the employee's work." This introduces the concept of fault into Wisconsin's workers' comp law and dismantles part of a well-established provision of the law that protected workers post-injury.

Reduction Or Denial Of Benefits For Drug And Alcohol Violations: Previous versions of the Workers' Comp Act allowed workers' comp benefits to be reduced by 15 percent if a violation of an employer's drug and alcohol policy was part of the cause of an employee's injury. Now, all benefits (other than medical expenses) can be denied in this same scenario. This shift from 15 percent benefit reduction to 100 percent benefit denial is too severe, and this additional introduction of the concept of employee fault into the workers' comp system directly contradicts the intent and tone of the past 115 years of Wisconsin workers' comp law.

The Unknown

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Fighting Workers' Compensation Fraud: The Department of Workforce Development will create a position to look into claims of workers' compensation fraud. This position will investigate not only workers' comp applicants, but also employers, medical providers and insurance carriers.

Creation Of PPD Ratings Committee: The Department of Workforce Development is also required to assemble a committee of medical advisers to analyze and make suggestions about the minimum ratings for permanent partial disability (PPD) every eight years. This appears to be a good change (in theory), but due to the long timeline between when this committee will convene and when the effects of its decisions can be assessed, the true extent of this committee's influence on workers' comp in Wisconsin cannot be adequately determined.

Permanent Disability Apportionment: After an on-the-job accident is treated, the treating physician's report must now include a section that approximates what percentage of PPD was caused by the work injury. Any percentage that was not caused by the work injury will be considered to be caused by other factors. The amount of PPD benefits awarded may be reduced based on these findings. However, this provision is fairly ambiguous, so substantial litigation related to its language is likely. As such, the full impact of this change is unknown at this time.

The Future

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This was the first year in which two competing workers' comp bills were introduced in the Wisconsin Legislature. Historically, the Workers' Compensation Advisory Council (WCAC) works with interests on all sides to submit a balanced, nonpartisan bill related to proposed changes. This year, a bill that was not endorsed by the WCAC and that was created without consulting the WCAC was introduced as well. Although the WCAC-approved bill was the one the Legislature eventually accepted, the introduction of the competing bill should worry Wisconsin residents and businesses.

The provisions of this second bill were so anti-worker that the bill was nicknamed the "workers' comp destruction bill." The proposed bill would have so fundamentally changed Wisconsin's workers' compensation that even the powerful, business-oriented Wisconsin Manufacturers and Commerce group retracted its support. Although the bill was defeated this time, its sponsor has said that he plans to bring up the issue again. He has cited possible inclusions in the next bill as an opt-out clause for employers, even though provisions such as that have been so anti-worker that they have been ruled unconstitutional in some states that have implemented them.

Learn More And Take Action!

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For more information on this topic, we encourage you to read the ProPublica series "The Demolition of Workers' Comp." This series, which ProPublica debuted last year, shows what happens when workers' compensation systems are gutted in the name of "cost savings" and being "business-friendly." The short version - those who have been injured and need help the most end up paying the cost for these cuts and are left without much needed medical care.

We also encourage you to contact your state representatives and tell them that you oppose any cuts to the workers' compensation system. Tell them you do not want partisan politics to influence a system that is a vital part of our lives today and a proud part of Wisconsin's heritage.

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