State News : Wisconsin

NWCDN Wisconsin Worker’s Compensation Legal Update:

This year, the Wisconsin Legislature made some significant changes to existing law that altered the Worker’s Compensation landscape in multiple ways.  The changes are discussed below:

The Wisconsin Legislature Increased the Weekly Permanent Partial Disability Rate for the first time since 2017.

On April 8, 2022, Wisconsin Governor Tony Evers signed into law 2021 Wisconsin Act 232 (the Act).  The Act, which was sponsored by the bipartisan House Labor and Integrated Employment Committee, increased the weekly permanent partial disability rate (PPD).  As stated above, Wisconsin had not raised the weekly PPD benefit rate since 2017.  The Act changed the benefit rate to $415 for injuries occurring on or after April 10, 2022.  The Act further increased the weekly PPD benefit to $430 for injuries occurring on or after January 1, 2023.

The Wisconsin Legislature also made changes to the Average Weekly Wage Calculation for Part-Time Employees.

Prior to April 8, 2022, a Claimant-Employee needed to meet four conditions to be considered “part of a class” under the Act to have their average weekly wage (AWW) calculated using less than 40 hours.  To be “part of a class” the Claimant-Employee had to meet the following conditions:

·         All class members needed to perform the same type of work at the same location;

·         The class of part-time employees needed to represent a minimum of 10% of all employees doing the same type of work;

·         The claimant needed to have a regular schedule that did not vary more than five hours from week to week, in the 13 weeks before the injury; and

·         At least one other employee needed to be in the same class as the Claimant-Employee.

If the Claimant-Employee met all of these conditions, their hours would reflect the hours actually worked or expanded to the statutory minimum of 24 hours.  If the Claimant-Employee did not meet all of the conditions demonstrating a regularly scheduled class of part-time employees, their hours would be expanded to reflect a full-time schedule of 40 hours.

Per the new law, Sections 102.11(1)(am) & (f)1., Wis. Stats., were repealed and § 102.11(1)(ap), Wis. Stats., was created to eliminate wage expansion for employees working part of a class.

Wages will be expanded only when the injured worker is employed by another employer or worked less than full-time for less than 12 months before the date of injury.

Wage expansion for those who worked less than full-time for less than 12 months may be rebutted when there is evidence to show an employee chose to restrict employment to part-time.  You can use a self-restricting statement or job application as evidence.

If wage expansion does not apply, you use the following to calculate the part-time wage.  The wage is the greater of the two:

(1)               Divide the total wages earned in the 52 weeks prior to the injury date by the actual number of weeks worked in that period; or

(2)        Multiply the employee’s hourly rate by the average number of hours worked per week in the 52 weeks prior to the injury date.

In each equation, the number of weeks worked in the 52 weeks prior to injury does not include weeks in which no work was done.

This applies to injuries occurring on and after April 10, 2022.

Observers are now allowed at independent medical examinations

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.

The Wisconsin Legislature updated the definition of Employer

The definition of "employer" is amended to clarify that every person who at any time employs three (3) or more employees in Wisconsin is subject to Ch. 102, Wis. Stats., (Wisconsin Worker's Compensation Act) on the day on which the person employs three (3) or more employees in this state. §§ 102.04(1)(b)1. & 2., Wis. Stats.

Farmers will have the same statutory authority to withdraw from subjectivity to Ch. 102, Wis. Stats., as other employers who have had no employee in the previous two (2) years. § 102.05(3), Wis. Stats.

Public Safety Officers can now Bring a Claim for PTSD without having to Prove Extraordinary Stress.

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-1970s, Wisconsin has recognized non-traumatic mental injuries in worker’s compensation.  Specifically, in the School District No. 1 v. DILHR (215 N.W.2d 373) 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 (WC Claim No. 87-32662 LIRC Dec. 11, 1989) decision, where the Labor and Industry Review Commission found “the amount of stress in the Claimant-Employee’s occupation and field … served as the benchmark for comparison with the stress that the Claimant-Employee claims entitles him or her to worker’s compensation.”  Later, in Jenson v. Employer’s Mutual (468 N.W.2d 1), the 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 Claimant-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 requirements for claiming and obtaining worker’s compensation benefits for a mental injury asserted by a public safety officer by altering the previous standards for compensable non-traumatic mental injuries, but also limits the employer’s liability for such injuries.

Wisconsin Supreme Court issued an important decision regarding the Exclusive Remedy Provision.

On May 20, 2021, the Wisconsin Supreme Court published its decision in Graef v. Continental Indemnity Company (959 N.W. 2d 628).  The issue before the Court was whether the Exclusive Remedy Provision of the Wisconsin Worker’s Compensation Act (the Act) barred a tort action for the Claimant-Employee's alleged injuries.  The Court found the Exclusive Remedy Provision did apply to the claimed scenario and remanded the matter to the Circuit Court to grant Summary Judgement.

By way of background, in a deal cut in 1911, Employers gave up the right to common law defenses (contributory negligence, co-employee negligence, assumption of risk, etc.,) and Employees gave up the right to sue their employer in tort (and recover tort like damages) in return for a fixed schedule of “guaranteed” benefits.  This portion of the original negotiations remains in place today and is referred to as the Exclusive Remedy Provision.  This is the basis of the litigation that led to the above-referenced Supreme Court decision.

In this matter, the Claimant-Employee sustained a compensable work injury in November 2021, which resulted in physical and psychological injuries.  He was prescribed an antidepressant as a result of these injuries.  On two different occasions, the Insurer denied the initial request for payment related to refills of the antidepressant.  The first denial occurred in May 2015, but the Insurer subsequently paid for the prescription after it was contacted by the Pharmacy.  Then, in June 2015, the Claimant-Employee again tried to refill his antidepressant prescription and encountered the same issue.  This time, he left before the Insurer could be contacted and the prescription was not filled.  Two months later, the Claimant-Employee attempted suicide and sustained a self-inflicted gunshot wound.  He survived and subsequently filed a tort action in Circuit Court against the Insurer.  The Claimant-Employee alleged the self-inflicted gunshot wound was the result of the Insurer’s negligence; specifically, that the Insurer was negligent for failing to approve the June 2015 refill, and as a result of the Insurer’s negligence, the Claimant-Employee attempted to take his own life.  The Insurer moved for Summary Judgement stating that the Act provided an exclusive remedy for the Claimant-Employee’s injuries.

Initially, the Circuit Court concluded that the Exclusive Remedy Provision did not bar the claim because the Insurer would not concede the Claimant-Employee’s claim would prevail if it was filed as a Worker’s Compensation Claim.  The Court of Appeals reversed this decision, and the matter was brought before the Supreme Court of the State of Wisconsin.

The Wisconsin Supreme Court found:

·         The Act provides an exclusive remedy for the alleged injuries, upholding the Exclusive Remedy Provision for work-related injuries.

·         The Court also said the allegations made by the Claimant-Employee, if proven, would satisfy the conditions of liability under the Act, further supporting the applicability of the Exclusive Remedy Provision.

The Court’s decision makes it clear that an Insurer’s reservation of its right to litigation in the proper forum (i.e. under the Act) and its dispute of underlying factual information surrounding a claim is not grounds for bypassing the Exclusive Remedy Provision.