WISCONSIN WORKERS’ COMPENSATION STATUTORY UPDATE: 2023 WISCONSIN ACT 213

On Friday, March 22, 2024, Governor Tony Evers signed Assembly Bill 1073 (now 2023 Wisconsin Act 213) into law. 2023 Wisconsin Act 213 is effective as of March 24, 2024, and contains important amendments to Chapter 102, Wisconsin’s statutory home to worker’s compensation law. The changes implemented are based on recommendations made by the Worker’s Compensation Advisory Council (WCAC), who is tasked with advising the Department of Workforce Development and Wisconsin State Legislature on policy regarding worker’s compensation law. Below is a summary of the most relevant changes that will impact claims handling.

First, Wis. Stat. § 102.11(1) was amended to increase the permanent partial disability (PPD) maximum weekly rate to $438.00 for injuries occurring on or after March 24, 2024. For injuries occurring on or after January 1, 2025, the permanent partial disability maximum weekly rate increases to $446.00.

Second, Wis. Stat. § 102.32(6m)(b) was created allow for an employer or its insurer to voluntarily advance lump sum payments of unaccrued PPD in undisputed claims, although with no 5% interest credit. Previously, unaccrued PPD benefits could only be advanced with administrative law judge approval, and if and when that occurred, the employer or its insurer would receive a 5% interest credit on the advanced PPD. Practically speaking, with the ability to advance unaccrued PPD without pre-approval, employers and insurance carriers can choose to avoid the administrative headache of keeping up with monthly PPD payments until all benefits are accrued if they wish. We do not recommend voluntarily advancing PPD in cases where you think you may have a defense at some point, as overpaid indemnity benefits are very difficult to recuperate in Wisconsin. Also, in disputed cases where at least some PPD is conceded, employers and insurance carriers may also be able to utilize a voluntary advancement of unaccrued PPD as a bargaining chip to help facilitate a compromise agreement at their preferred terms.

Third, Act 213 clarifies the duties between the Department of Workforce Development’s Worker’s Compensation (WC) Division and the Department of Administration’s (DOA) Division of Hearings and Appeals (DHA) as it pertains to closing cases. More specifically, Wis. Stat. § 102.18(1)(b) was created and provides that after the Division of Hearing and Appeals/Office of Worker’s Compensation Hearings (OWCH) issues an Order on the merits or regarding a compromise agreement, if there is no further pending action, the Division must return the claim file to the Department within 30 days of the Order being issued. The Department will then perform administrative activities, most importantly including administrative closure of the claim. These changes will serve to promote bureaucratic efficiency and prevent the DHA/OWCH from holding Hearing Applications open indefinitely—which has been a problem the last few years.

Fourth, Wis. Stat. § 102.17(4)(a) was amended to provide for clarity regarding the statute of limitations for claims previously settled under a compromise agreement. For occupational diseases, individuals may not bring a worker’s compensation claim beyond twelve years after the date of injury, death, or the last date that compensation was last paid (aside from treatment or burial expenses), or would have been last payable if no advancement were made, whichever date is latest. For a traumatic injury, the same rules apply, except that a claim cannot be brought beyond six years. Please keep in mind that there are exceptions to both of those general rules. Now, those respective deadlines will begin to run on the date an Order is issued approving a compromise agreement. This means that if a compromise agreement is reached in a traumatic injury case and an ALJ Order approves the compromise, the claimant will have six years from the date of the Order to bring a worker’s compensation claim for additional? benefits not fully resolved by the compromise. In the case of an occupational injury, the subsequent claims will not be time-barred except by the applicable statute of limitations. The amendment to Section 102.17(4)(a) is a welcome change in that it clearly defines the applicable statute of limitations governing the time period in which claimants have to pursue claims, especially in situations involving compromise agreements. This amendment was another step towards dismantling the practice of the OWCH maintaining jurisdiction and indefinitely tolling the statute of limitations by keeping Hearing Applications active on seemingly inactive cases.

Fifth, Wis. Stat. § 102.81, which governs the uninsured employer fund, has been amended and has increased the amount of large uninsured employer fund claims from $1,000,000.00 to $2,000,000.00 that worker’s compensation insurance carriers are required to reimburse.