By: Matthew Kurudza
Assembly Bill 11 was passed in the Senate on February 16, 2021 and presented to Governor Evers on April 22, 2021. This bill, now known as 2021 Wisconsin Act 29 (Act), was signed by Governor Evers on April 27, 2021. This bipartisan bill was passed to allow public safety officers – including law enforcement and firefighters – who have been diagnosed with post-traumatic stress disorder (PTSD) under certain conditions to receive worker’s compensation benefits without having to prove that the injury was caused by extraordinary stress.
Since the mid-1970’s, Wisconsin has recognized non-traumatic mental injuries in worker’s compensation. Specifically, in the School District No. 1 v. DILHR decision, the Wisconsin Supreme Court established the “extraordinary stress” standard for compensability. This decision provided that a “mental injury non-traumatically caused must have resulted from a situation of greater dimensions than the day-to-day emotional strain and tension which all employees must experience.” This standard was clarified in the Spink v. Farm Credit Services decision, where the court found “the amount of stress in the applicant’s occupation and field … served as the benchmark for comparison with the stress that the applicant claims entitles him or her to worker’s compensation.” Later, the Jenson v. Employer’s Mutual Court further clarified the test stating the stress was “measured not by its effects on the victim, but by the unusual nature of the occupational stress itself.” These onerous standards often prevented employees in high-stress jobs – such as public safety officers, from prevailing on a claim for PTSD.
The Act itself makes a few important changes, most notably by relaxing the existing “extraordinary stress” standard discussed above, along with setting caps on liability. These changes are discussed in detail below:
First, the Act allows payment of worker’s compensation benefits if a public safety officer, such as law enforcement or firefighter, is diagnosed with PTSD by a licensed psychologist or psychiatrist, and the mental injury is not accompanied by a physical injury if proven by a preponderance of the evidence and the mental injury is not a result of a result of a good faith employment action by the employer. Wis. Stat §102.17(9)(b).
Second, the Act limits the liability for treatment of such injuries and claims to no more than 32 weeks after the injury is first reported. Wis. Stat §102.42(1p).
Third, it restricts the ability to claim compensation for such injuries and diagnoses to three times within an individual’s lifetime, regardless of a change in employment status. Wis. Stat §102.17(9)(c).
In short, this legislation eases the process of claiming a mental injury and obtaining covered treatment, and expenses for public safety officers by altering the previous standards for compensable non-traumatic mental injuries.
For more information about these changes, please contact your Lindner & Marsack, S.C. attorney at (414) 273-3910.