Governor Evers Signs Act 232 Bringing Substantial Changes to Wisconsin Workers’ Compensation

Governor Evers signed 2021 Wisconsin Act 232 into law on April 8, 2022. This Act made changes to the Wisconsin Workers’ Compensation Act which was sponsored by the bipartisan House Labor and Integrated Employment Committee. The Act made important changes to Permanent Partial Disability calculations, allows for observers at independent medical evaluations and changes in the way the average weekly wage is calculated for part-time workers in Wisconsin.

The Act increases the maximum weekly PPD benefit to $415.00 (from $362.00) for injuries occurring on or after April 10, 2022 and increases the maximum PPD benefit to $430.00 for injuries occurring on or after January 1, 2023. This is the first increase in the maximum PPD benefit rate since 2017.

Another important change is that Section 102.13(1)(b), Wis. Stats., was amended to allow an employee who appears at an examination directed by employers and worker’s compensation insurance carriers to have an observer present at the examination. While we fully expect that there may be guidance published at some point by the DWD on this issue, we recommend that letters informing the employee of the independent medical evaluation now include a statement indicating the employee has the right to an observer present at the examination.

For claims on or after April 10, 2022, wage expansion for employees that are part of a regularly scheduled class of part-time employees to 24 hours for purposes of calculating their AWW has been eliminated.

Sections 102.11(1)(am) & (f)1., Wis. Stats., were repealed and Section 102.11(1)(ap), Wis. Stats., was created to eliminate wage expansion for employees working part of a class for those injuries occurring on and after 4/10/2022. Under this new statutory provision, part time wages (when the employee works less than 35 hours per week) will be expanded to 40 hours per week for wage calculation purposes:

1. when the injured worker is employed by another employer or;
2. when the injured worker worked less than full-time for less than 12 months before the date of injury.

This wage expansion may still be rebutted by the employer when there is evidence to show an employee chose to restrict employment to part-time.  Such evidence may include a voluntary written statement signed by the employee or an employment application indicating an hour or shift preference.  It is important to remember that if the employee is employed by another employer, you still do not use wages from the other employer in any way as part of your wage calculation.

If an employee has worked at a part-time job for twelve months or more and does not have another part-time job, AWW is determined in conjunction with Wis. Stat. § 102.11(1)(ap)(1)(a) or (b), whichever is greater. This would therefore be:

1. the actual average weekly earnings for the 52 calendar weeks prior to their injury, excepting any weeks in which no work was performed, or;
2. the injured worker’s hourly rate multiplied by the average hours worked in the 52 weeks prior to their injury, excepting any weeks in which no work was performed.

Remember, for part-time workers under the age of 27 pursuant to Wis. Stat. § 102.11(1)(g), you still must use the maximum PPD rate.

It should be noted that there were several other changes made pursuant to this Act including:

1. The definition of “employer” under the Act was clarified.
2. Payment of proceeds of claims against third parties when payments were made from the DWD due to the employer being an uninsured employer.
3. Clarifies coverage liability under the Act for farm employers.
4. Clarification as to the Acts application to long-term care providers.
5. Allows the DWD, DHA, or the Labor and Industry Review Commission to share certain confidential records to certain government agencies.

Finally, there were also various other changes regarding the administration of the workers’ compensation law, including:

1. Granting explicit rule-making authority to the DWD to carry out the workers’ compensation law.
2. Expressly providing that the DWD may conduct alternative dispute resolution activities for certain cases.
3. Transferring from the DWD to the DHA the authority to grant licenses for non-attorneys to appear in workers’ compensation cases.

The DWD is working to update all relevant forms impacted by the above changes.

The NBKL blog is provided for informational purposes; we are not giving legal advice or creating an attorney/client relationship by providing this information.  Before relying on any legal information of a general nature, you may consider consulting legal counsel as to your particular facts and applications of the law.