Category Archives: Work Comp Changes

Wisconsin Law Changes: Retraining Benefits Made Better

Injured workers now have greater access to vocational retraining benefits. The new law changes, while providing a number of employer-friendly provisions, also contained pro-worker enactments—especially for those injured workers who need to go back to school.

A major public policy goal of the worker’s compensation system is to restore an injured worker’s pre-injury earning capacity, meaning get the worker back to the wages they made before getting hurt. To facilitate that goal, if an injured worker has permanent limitations that do not allow them to return to their injury job, the worker can pursue vocational retraining benefits. Under Wisconsin law, these benefits are meant to compensate a worker during the entire schooling period. The insurance carrier is responsible for weekly maintenance benefits (at 2/3 of the employee’s average weekly earnings) during every week the worker is in school, as well as tuition, book, travel and meal expenses during school. Many retraining programs are for approximately two-year associate degree programs, but, depending on the worker’s pre-injury wages, the paid-for program could involve a bachelor’s degree or beyond.

In a victory for workers, the 2016 new law allows for prospective vocational retraining benefits. Historically, when a vocational retraining claim was “ripe” for presentation at a hearing was uncertain. Some administrative law Judges indicated that a retraining program only became viable and ripe for hearing when the worker actually was attending classes. Unfortunately, many injured workers—who cannot return to their former employment and have no other source of income—do not have the financial ability to go to school on their own. As such, these workers could not enroll in or begin school unless the workers’ compensation insurance carrier was ordered to pay for prospective schooling.

The legislature clarified this issue, and effective March 2, 2016, Judges have the authority to issue prospective orders for vocational retraining benefits (Wis. Stat. § 102.18(1)(b)2., as amended by 2015 Wis. Act 180). Specifically, a carrier can be ordered to pay for a future course of instruction, along with the corresponding vocational retraining benefits/expenses, for either a DVR-sponsored or private rehabilitation counselor program.

Another pro-worker provision of the 2016 law is that injured workers are now allowed to work up to 24 hours per week while undergoing vocational retraining without those earned wages reducing their weekly worker’s compensation maintenance benefits (the 2/3 wages). Previous law required the reduction in work comp benefits for this part-time—thereby creating a disincentive to work. The new law (effective March 2, 2016) acknowledges the practical reality for a worker returning to school. The injured worker now can engage in part-time school and part-time work, maintaining the worker’s connection to the labor market.

Vocational retraining benefits can be difficult for an injured worker to pursue, but the new 2016 law makes it easier.

Unemployment and Worker’s Comp

Interesting take on a provision in the newly proposed Worker’s Compensation Advisory Council (WCAC) bill: 

One of the provisions in the new WCAC bill would allow denial of temporary disability/lost time benefits if a worker is terminated for “misconduct” or “substantial fault.”  These terms will be defined based on unemployment law standards.  Misconduct and substantial fault recently were brought into play with changes to the unemployment insurance laws in Wisconsin.  These legislative changes certainly were employer-friendly, allowing employers a greater ability and opportunity to deny unemployment benefits.

With worker’s compensation poised to adopt this standard for lost time benefit denials, workers definitely could face a rough spot when recovering from a job injury.  If the employer terminates a worker for alleged misconduct or substantial fault, they would be denied unemployment benefits and worker’s compensation benefits–until an administrative hearing is held to determine the legitimacy of the employer’s actions.  The possibility for many worker’s compensation hearings turning into “he said/she said” determinations like in unemployment cases is a strong possibility.

In the bigger picture, all sides must remember that this was a compromised agreed-upon bill by labor and management.  Both sides gained and gave up provisions–this produces the stability in the worker’s compensation system.


Worker’s Compensation Advisory Council Bill Introduced!

The Worker’s Compensation Advisory Council has done what it always does: modifies and improves on the Worker’s Compensation Act.  The Advisory Council once again produced a common sense reform bill that was recently introduced into the legislature.

The Bill (SB-536) is here:  Public hearings are now occurring on the Bill.   This is fantastic news.

Previous posts discussed the relevant provisions of the Advisory Council Bill.  The bill is a compromise–with benefits and concessions for employers and workers. Employers has provisions about addressing fraud in the system, denial of benefits for injuries connected to drug/alcohol violations, and ending of benefits for misconduct terminations.  In turn, workers have some modest increases in annual benefits and easier access to vocational retraining claims and benefits.  These compromises produce common sense reforms and improvements to the work comp system. 

The hope and goal is that the Wisconsin legislature swiftly passes the Council bill.  Passage of the Advisory Council bill preserves the integrity and stability of the worker’s compensation system–a system that is the nation’s gold standard.

Citizens Pushing Back Against Attack on Work Comp System

Citizens are waking up to the potential legislative attack on the Work Comp System: Workers’ Compensation Bill an Attack on Our Rights.  This editorial is from the Wausau Daily Herald–right in the backyard of one of the legislators (Spiros) who has proposed this direct legislative attack.  We previously discussed the proposed legislation in a prior post: Legislative Alert: Worker’s Compensation Destruction Bill?

In Wisconsin, the stabilizing force–the Worker’s Compensation Advisory Council (WCAC)–is set to produce its agreed-upon bill in the upcoming weeks.  The Council is a group of labor and management that effectively “collective bargain” (yes, that’s not a bad phrase !) for biennial changes and common sense improvements to the system.The Council bill was unanimously agreed to by members of labor and management—which includes the WI Manufacturers and Commerce (WMC).

In direct contrast, the opposing bill (also known as the work comp destruction bill) was not considered by the Council.  It is a direct legislative attack on the work comp system.  The non-WCAC bill would tear down the whole system by exponentially increasing litigation, hindering access to medical care and recovery, and potentially creating a slippery slope to unlimited jury awards.

As opposed to the work comp destruction bill, the WCAC bill will do what it always does—improve on the Worker’s Compensation Act.  Citizens are becoming aware.


Worker’s Compensation Legislative Changes in Budget Bill

The recently-passed Budget Bill in Wisconsin contains changes to the structure of Wisconsin’s nationally recognized worker’s compensation system.  We previously discussed the proposed changes in the following blog posts: Let’s Keep Wisconsin’s Worker’s Compensation System the Best in the Nation! and Wisconsin Legislative Update: Major Changes to Administration’s Proposed Break-Up.

After a lengthy Budget process, here’s where the dust settled for work comp:

WC Division staying at DWD: The good news is that Worker’s Compensation Division is not moving; the WC Division will remain with the Department of Workforce Development.  This includes all dispute resolution specialists, wage analysts, and administrative personnel.  It also appears that 6 administrative law judges (ALJs) will remain at the WC Division to deal with “non-litigated” cases.  Maintaining the WC Division at DWD is significant as it retains the culture, policies, and laws related to the WC Division.

  • The Governor signed off on the WC Division remaining at DWD.  When approving the Budget, Governor Walker did nothing to disrupt the structural core of the WC Division remaining at DWD.

Most Judges moving to new agency :The legislative Joint Finance Committee proposed and passed a compromise motion that 18 worker’s compensation ALJs move to the Division of Hearing & Appeals (DHA) in the Department of Administration (DOA) to handle litigated cases. The motion proposed that the transferred Judges devote a minimum of 80% of their time to worker’s compensation issues.  

  • Governor veto related to ALJ transfer.  Governor Walker signed off on the structural work comp changes in the Budget, along with using his powerful veto pen.  Walker specifically crossed-out the provision about 18 ALJs going to DOA and the provision regarding the “80% minimum” amount of time to be spent on worker’s compensation issues.  Thus, an unknown amount of ALJs are to go to DHA to handle “litigated” cases.
  • No limit on ALJ cross-training. With the Governor’s veto, there is no statutory requirement that the existing work comp ALJs handle only or primarily work comp matters.  The new agency could make use of the work comp ALJs to address a wide array of claims handled at the Department of Administration (e.g. probation/parole hearings).

The effective date of the agency transfer is January 1, 2016.

Next Steps:

The future is uncertain.  With the statutory provisions, we know that the Division of Hearings & Appeals at DOA will now handle and provide hearings in litigated worker’s compensation claims.  Presumably, the two agencies will address–as part of the transition–the appropriate policies, procedures, and responsibilities between DWD and DOA for handling non-litigated and litigated worker’s compensation claims.  Roadbumps are certain, but we hope that the DOA will continue to provide a high level of government service in administering litigated claims, scheduling hearings, and holding hearings.

We are hopefully the DOA would consider the following as part of any transition:

  • Utilize Judge expertise: Many larger court systems use specialized judges (e.g. family court, probate court) to increase efficiency and accuracy in decision-making.  Worker’s compensation similarly is a specialized area of the law, with over 100 years of cases, rules, and adminsitrative decisions.  As any insurance company can attest, many claims deal with millions of dollars.  Judges experienced in the area of worker’s compensation should continue to hear and decide these specialized disputes.
  • Maintain existing hearing scheduling system: The current system has an efficient and logical mechanism for scheduling worker’s compensation hearings.  Hearings are held at locations across the state, creating an efficiency and convenience for injured workers and employers alike.  The system also schedules a hearing only when all parties in a disputed claims are “ready” for a hearing, minimizing delays and createing efficient use of judicial time.  Adminsitrative hearings occur very quickly (e.g., 2-3 months) after the parties are ready for a hearing.  The totality of the current system looks like a governement efficiency model–we see limited reason to mess with a good set-up.
  • Ask for any assistance. With the new split-agency responsibilty for worker’s compensation, we’d urge the DOA to consult with the current practitioners in worker’s compensation.  The Division of Hearings & Appeals retains reponsibility for a wide variety of claims.  If there are questions about how to address or handle worker’s compensation issues, the experienced practitioners certainly can provide input.

We will continue to keep the worker’s compensation community informed as more information about the transition becomes clear.