Wisconsin Worker’s Compensation Advisory Council Calls for Department of Hearings and Appeals to End “Hold Open” Practice

By       Daniel M. Pedriana and Justin M. Schuessler

Recently the Wisconsin Worker’s Compensation Advisory Council (WCAC), which includes representatives from both Labor and Management, voted to approve two separate bills that include potentially significant changes to the Worker’s Compensation Act of Wisconsin (Chapter 102), including the administration of the Act.

The primary objectives of the proposed provisions are split between the two bills so as to increase the chances that at least some of the provisions are eventually adopted and signed into law.

I.  First Proposed Bill

The highlights of the first bill include a proposed medical fee schedule. In the absence of either a fee schedule or employer-directed medical care, Wisconsin employers often face the burden of extensive, and arguably, unnecessary medical treatment expenses. The intent of this provision is to keep work-related medical treatment expenses shouldered by employers and their carriers within reason much like the way that group health insurance reduces that burden for personal medical expenses.

Those familiar with the Council’s dealings are aware that it has attempted to achieve a medical fee schedule in the past without success. However, both Labor and Management believe there may be increased willingness by lawmakers to consider such a schedule. Thus, it is, again, included in the first bill.

The other major proposal in the first bill relates to the current presumption of a work-related, non-traumatic mental injury suffered by law enforcement officers, firefighters and first responders. The recognized standard to establish a “non-traumatic mental” injury claim is that an employee must show that he or she was subjected to “unusual stress” that was outside of the expected stressors of their job. School District No. 1 v. DILHR, 62 Wis. 2d 370 (1974).

However, the legislature has previously recognized that some select groups of employees are regularly exposed to such high levels of stress in the ordinary course of their employment that it would be difficult to establish “unusual stress,” and are thus entitled to a presumption that they have sustained a non-traumatic mental injury. That presumption is codified in Wis. Stat. § 102.17 (9) and provides that a mental injury is presumed for a law enforcement officer or firefighter if there has been a formal PTSD diagnosis and the conditions of liability under Wis. Stat. § 102.03 (1) are met by a preponderance of the evidence.

Currently, the presumption applies to law enforcement officers and firefighters. However, the provision in the first bill seeks to expand that presumption to EMS workers, volunteer firefighters and paramedics. Management’s primary concern about such an expansion has been that it may eventually extend to those who do not experience stressors that are peculiar to their jobs.

Finally, the first bill also seeks a cost of living increase for workers who started receiving PTD benefits more than six (6) years ago.

II.   Second Proposed Bill

The main attraction of the second bill is a call to the DWD/DHA to cease its much-maligned practice of holding hearing applications in an “open” status even after a valid compromise agreement has been filed and an order issued. There is no specific language mandating the DWD/DHA dismiss those Applications pursuant to the order that was issued. Thus, the DHA posits it has the authority to keep those Applications in “open” status in the event additional claims are sought at a later date.

This provision seeks an amendment to the Statute that specifically requires the DWD/DHA to dismiss a hearing application where a valid compromise agreement has been filed, accepted and an order has been issued. This will provide both the employee and employer the closure that is often contemplated and sought by both parties when a claim is compromised on a full and final basis.

The second bill also requests an amendment to the Act to allow employers and/or carriers to pay undisputed PPD awards in a lump sum. The intent of this provision is to allow carriers who write worker’s compensation policies in Wisconsin to close their claims expeditiously after an order is issued regarding undisputed PPD. Closing the claim faster will result in a more accurate experience rating for the carrier.

Aside from some updates to current statutory language, per the DWD’s request, the last proposal of the second bill is an $8.00 raise to the current weekly PPD rate for 2024 and then another $8.00 raise in 2025. Thus, if the bills are enacted, the maximum weekly PPD rate for 2024 injuries will be $438.00 and the weekly rate for 2025 injuries will be $446.00.

III.  Remaining Legislative Procedure

The Council’s agreement on the provisions included in these two bills is just the first step in the legislative process. The next step is sending the proposals to the Legislative Reference Bureau for official drafting of the bills. Once the bills are drafted, the Council will reconvene and review the language to ensure its accuracy and make any modifications. If no modifications are made, the bills will go to Madison where they will be introduced by legislators for debate and hearings. Eventually, the bills will need approval by the State Assembly and the State Senate and will be sent to Governor Tony Evers for signature.

The process can be long and arduous, but employers and, to a lesser extent, carriers are able to help ease the process along by simply contacting the local lawmaker in their district and making known their support for the two agreed bills.

If you would like to discuss the agreed bills further, or if you would like more details about how to get involved in the legislative process, please feel free to contact the experienced worker’s compensation team at Lindner & Marsack, S.C.