By: Chelsie D. Springstead

The Wisconsin Worker’s Compensation Advisory Council was created to advise the Department and Legislature on policy matters concerning the development and administration of Wisconsin’s worker’s compensation system. The Advisory Council is comprised of an equal number of voting members from labor and management, along with non-voting representatives from the insurance industry, a representative from the Department and liaisons from the medical community. In 2014, for the first time in the history of the Advisory Council, the agreed-upon bill that it submitted to the Legislature did not pass.

On July 12, 2015, Governor Walker enacted the 2015 Budget Bill which included the transfer of 18 worker’s compensation administrative law judges from the Department of Workforce Development to the Department of Administration. This was the first change to the worker’s compensation field that has occurred without the Advisory Council’s input. Since that time there have been many rumors regarding the intent of various groups to circumvent the Advisory Council and introduce bills directly to the Legislature that would significantly change the landscape of Wisconsin’s worker’s compensation system.

The Advisory Council recently met last Wednesday, October 21, 2015, and authored a draft bill that has been negotiated and agreed upon by both labor and management to be introduced in the 2015-2016 session. Per notes taken at the most recent meeting, below are some of the main items that are set to be listed in the final agreed-upon bill that is scheduled to be drafted and submitted to the Legislature later this year. As you will see, the changes proposed appear to favor employers and insurance carriers.

• Reduce the statute of limitations for traumatic injuries from 12 years to 6 years (the SOL for occupational injuries remains unchanged)
• Allow apportionment of permanent partial disability – require employees to disclose all previous permanent disabilities or impairments to the alleged injured body parts so that liability for employees’ conditions can be apportioned between the prior impairments and the injuries resulting from the alleged work event. Employers/carriers would then only be held liable for the portion of the condition directly caused by the work event or occupational exposure.
• Update the permanent partial disability minimum ratings to reflect medical advancements (i.e. lower minimum ratings for joint repairs and total joint replacements)
• Eliminate wage escalation so temporary disability benefits are paid based upon actual earnings at time of injury rather than an escalated rate
• Eliminate benefits to workers who violate an employer’s drug and alcohol policy if the use of the drugs/alcohol are shown to be the cause of the injury
• Allow the employer/carrier to deny benefits if a worker is brought back to work on light duty and they subsequently are fired for good cause
• Increase the maximum permanent partial disability benefits by $20 in 2016 to $342 and $20 in 2017 to $362 weekly
• Allow prospective orders for vocational retraining
• Fund a position at the Department of Justice to fight worker’s compensation fraud

In addition to the Advisory Council’s agreed-upon bill, Representatives Spiros (R-Marshfield) and Knodl (R-Germantown) and Senator Stroebel (R-Saukville) circulated a reform proposal last week which includes many provisions that are even more employer-friendly than those in the agreed-upon bill. Highlighted below are some of the most significant changes included in this recent bill:

• Bar recovery of work comp benefits to an employee who knowingly falsifies their physical condition on an employment application if the employer relies upon this false information to hire the employee and there is a causal connection between the injury and the false information
• Allow for reduction of benefits if an injury is caused by negligence attributed to the employee
• Allow for an offset of benefits by old-age social security income, not just social security disability income
• Reduce the statute of limitations for traumatic injuries to 2 years instead of 12 years
• Allow for the denial of benefits during a healing period if an employee is brought back to work light duty and they are subsequently suspended or terminated for misconduct or substantial fault, as defined by unemployment insurance law
• Eliminate the escalation of wages during a renewed period of disability and, instead, use the date of injury wage to calculate benefits owed
• Eliminate minimum permanent partial disability ratings when it is shown that no actual impairment resulted from the procedure or injury
• Allow prospective retraining orders
• Require employees who the Department have found suffered permanent partial disability to resubmit to a medical re-examination every three years at which time the Department will re-evaluate the case and issue a new order as to permanent partial disability based upon the updated medical opinion
• Require employers with health benefit plans to provide employees covered by the plan their choice of practitioner within the plan
• Allow employers to direct care for employees not covered by an employer health benefit plan

This bill is set to be introduced to the Legislature jointly by Rep. Spiros and Sen. Stroebel on October 29, 2015, to be voted on yet this year.

At this time, it is yet to be seen whether either bill will be adopted by the Legislature in its entirety or in part. The Lindner & Marsack Worker’s Compensation Defense Team continues to follow these issues closely and will provide additional updates as they become available. Should you have any questions or want additional information regarding these bills and the effect of the potential changes on the worker’s compensation system, please contact any member of the Lindner & Marsack Worker’s Compensation Defense Practice.