Governor Evers Signs New Amendments to the Wisconsin Workers’ Compensation Act

Apr 28, 2021

 

On April 27, 2021 Governor Evers signed into law SB Bill 11 (now 2021 Wisconsin Act 29) which made important changes to the Wisconsin Workers’ Compensation Act.  The new law reflects the following changes:

Liability for PTSD for law enforcement and fire fighters (public safety officer)

The new law makes changes to the conditions of liability for workers’ compensation benefits for a law enforcement officer or a fire fighter (public safety officer) who is diagnosed with post-traumatic stress disorder (PTSD).  The new law creates a new Section of the Act 102.17 (9).  The new section applies ONLY to those mental injuries which are NOT accompanied by physical injuries.  PTSD claims which arise from no physical injury provides liability under the Act as follows:

1. The mental injury must satisfy all of the following conditions:

  • The diagnosis of post-traumatic stress disorder is made by a licensed psychiatrist or psychologist.
  • The conditions of liability under s. 102.03 (1) are proven by the preponderance of the evidence.

2.  The mental injury may not be a result of any of the following actions taken in good faith by the employer:

  • A disciplinary action.
  • A work evaluation.
  • A job transfer.
  • A layoff.
  • A demotion.
  • A termination.

3.  The diagnosis does not need to be based on unusual stress of greater dimensions than the day-to-day emotional strain and tension experienced by similarly situated employees.

Before the new amendment to the Act, an injured employee who did not have an accompanying physical injury was required to demonstrate a diagnosis based on 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). The new law legislatively overturns this long-standing standard and provides that such an injured public safety employee is not required to demonstrate a diagnosis based on that standard, and instead must demonstrate a diagnosis based on this new more liberal standard.  The new law specifically limits PTSD claims to those claims which are not based on a good-faith employment action by the person’s employer.

The new law also provides further important limitations on the PTSD benefits  as follows:

  • Limits the liability for treatment of such injuries and claims to no more than 32 weeks after the injury is first reported.
  • It provides that no individual may receive compensation for a claim of mental injury under this subsection more than 3 times in his or her lifetime. This limitation applies irrespective of whether the individual becomes employed by a different employer or in a different position with the same employer.
  • It should be noted that the definition of a fire fighter is as follows: “any person employed on a full-time basis by the state or any political subdivision as a member or officer of a fire department, including the 1st class cities and state fire marshal and deputies.” This appears to exclude both part-time fire fighters as well as volunteer fire fighters.

 

Furnishing of billing statements by medical providers

This bill requires a health care provider to furnish to the representative or agent of a workers’ compensation insurer a complete billing statement for treatment of an injury for which an employee claims compensation upon request.  The amendment to section 102.13 (2) (a) now provides : “If the request is by a representative of a workers’ compensation insurer for a billing statement, the physician, chiropractor, psychologist, dentist, podiatrist, physician assistant, advanced practice nurse prescriber, hospital, or health care provider shall, within 30 days after receiving the request, provide that person with a complete copy of an itemized billing statement or a billing statement in a standard billing format recognized by the federal government.”

This is practical and welcome news to adjusters and attorneys alike.  However, it should be noted that this amendment does not specifically suggest any form of penalty for medical provider non-compliance.  We would recommend that this specific section of the statute be referenced in your letters to medical providers requesting medical bills.

Leased employees

Prior to the amendment, employee leasing companies were generally liable for injuries to their leased employees under the workers’ compensation law. The new amendment provides that a client of an employee leasing company may instead assume the liability for leased employees under an employee leasing agreement. The amendment also provides that if a client of an employee leasing company terminates or otherwise does not provide workers’ compensation insurance coverage for the leased employees, the employee leasing company is liable for injuries to those leased employees under the Act.

Payments in cases of injuries resulting in death to the Supplemental Benefit Fund

The law prior to the current amendment generally provided that, in each case of an injury resulting in death leaving no person dependent for support or leaving one or more persons partially dependent for support, the employer or insurer must pay into the Work Injury Supplemental Benefit Fund (WISBF) the amount of the death benefit otherwise payable. The new law modifies this section as follows:

  • Prior to the amendment, the law requires, in the case of a death leaving no dependents, that the payments must be made in five equal annual installments. Amounts due may now be paid in advance of when they would otherwise be due, including as a single, lump-sum payment. If the employer or insurer makes an advance or lump-sum payment, the DWD will give the employer or the insurer an interest credit, computed as otherwise provided under current law.
  • Prior to the amendment, in the case of a violation of an employer policy against drug or alcohol use, neither the employee nor the employee’s dependents could receive any compensation under the workers’ compensation law for that injury, other than costs for treating the injury, but did not exempt the employer or insurer from the payment to WISBF. The new amendment provides that: “In the case of a violation of an employer policy against drug or alcohol use that is causal to an employee’s injury resulting in death who leaves no person dependent for support or leaving one or more persons partially dependent for support, no payment is required to be made to WISBF.”

 

Statute of limitations

This amendment clarifies that for workers’ compensation claims, the statute of limitations applies to an individual’s employer, the employer’s insurance company, and any other named party.  Before the amendment, the section of the Act only referred to the employee, the employee’s legal representative, or dependent.

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. 

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-Larry Collins, Senior Director, Risk Management Marriott Claims Services, Chicago

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