Governor Evers signs new work comp bill into law
On April 27, 2021, Governor Evers signed into law 2021 Wisconsin Act 29, which provides limited mental health benefits to police officers and firefighters under the Workers’ Compensation Act. Specifically, past law made it extremely difficult for public safety officers to receive workers’ compensation benefits for mental (non-physical) injuries stemming from their job. Indeed, to qualify for such benefits, a police officer suffering from Post-Traumatic Stress Disorder from a line of duty incident or exposure had to prove they were exposed to extraordinary stress beyond what similarly situated co-workers experience. (This was known as the School Dist No. 1 standard–stemming from a 1974 Wisconsin Supreme Court decision). For decades, this standard proved too high of a hurdle for most officers or firefighters to receive workers’ compensation benefits for mental stress claims that did not involve an underlying physical trauma.
The new bill eases the legal standard and allows public safety officers greater opportunities to receive needed mental health care under the work comp law. Indeed, the new bill provides the following:
- Provides payment of workers’ compensation benefits for a police officer or firefighter that is diagnosed with Post-Traumatic Stress Disorder (PTSD) that a licensed psychologist or psychiatrist opines is causally connected to the worker’s employment.
- The PTSD stems from a “mental-mental” stress claim, meaning it is not accompanied by an underlying physical workplace injury.
- The officer or firefighter does not have to show they experienced extraordinary stress.
- The mental injury cannot be the result of a good faith employment action by the employer (like a discharge, disciplinary action, or transfer).
- The work comp coverage, however, is limited to a period of 32 weeks of “disability.”
- A worker is restricted to bringing such claims to three (3) time in their lifetime, regardless of employment status changes.
The language in the statute likely will prompt further litigation. For example, the bill limits PTSD claims for police officers/firefighters to a “period of disability” that does not exceed 32 weeks after the injury is first reported. (Section 102.44(7)). It remains unclear whether this applies to payment for mental health treatment (i.e., medical bills) or also compensation payments to the worker. For example, if the worker has a 4% Permanent Partial Disability for their PTSD condition, that disability is “worth” 40 weeks of work comp benefits. Are they now limited to only 32 weeks? Or if the PPD was assigned after eight months of medical treatment (going beyond 32 weeks), do they receive nothing for PPD?
Moreover, the initial applicability of the new law is for injuries reported on the effective date of new work comp rate changes (generally October 1st annually). Accordingly, if the worker experienced an incident or incidents in the past that manifest themselves in a PTSD diagnosis after October 1, 2021, can they bring the claim under the new law–given that it was “reported” after the effective date?
Also, the legislature added an arbitrary lifetime cap, preventing workers from pursuing such claims more than three times in their lifetime, regardless of whether they switch jobs or regardless of a worker placing themselves in harm’s way and experiencing challenging situations over time. A police officer and firefighter could faces a multitude (or event thousands) of mentally challenging situations throughout their career, yet this bill arbitrary disallows anything more than three work comp PTSD claims in their lifetime.
While the bill hopefully allows public safety officers needed access to mental health treatment, litigation is bound to occur over the details of this new law.
Not quite the full Advisory Council bill
This new work comp bill faced a convoluted history that was also disrupted by the COVID-19 pandemic. As previous posts discussed, the Wisconsin Workers’ Compensation Advisory Council traditionally proposes a bill (agreed upon between labor and management representatives) that is presented and approved by the legislature. Recent bills have faced hurdles, however, in our Republican-led state legislature. The most recent agreed-upon bill was no exception. While the complete bill was introduced to the legislature in 2019, that bill effectively was discarded. Instead, the legislature utilized a stand-alone bill involving the PTSD benefits for public safety officers and then grafted select provisions from the Council bill onto that stand-alone PTSD bill. That is certainly not the traditional agreed-upon bill process. That legislature-created bill stalled in 2020 with the pandemic raging.
The bill was reintroduced in 2021 (2021 SB 11) with bipartisan support–as the bill tries to establish some access to mental health treatment for the police officers and firefighters of the state. Governor Evers did sign the bill, but his signing statement explicitly acknowledged that the bill being signed was an altered version and not the complete Advisory Council bill. The Governor stated his strong desire that:
[I]n the future, I hope and expect that the next Worker’s Compensation agreed upon bill will reach my desk in its complete form.
The Advisory Council is starting its next round of negotiations for a future Agreed-Upon bill. I share the Governor’s hope that the legislature will be able to assess and approve the new Council bill in its unaltered form.
Other Work Comp Changes in new bill
In addition to the limited PTSD coverage from public safety officers, the legislature placed a few other provisions from the Advisory Council bill into the new law, such as:
- Billing itemization: law now requires any medical provider treating a workers’ compensation patient to provide an itemized billing statement within 30 days after an insurance carrier’s request.
- Professional Employee Leasing Company arrangements: The law makes changes in the requirements for work comp insurance coverage for employee leasing company situations–generally allowing the employers to elect whether the leasing company or the placed employer assumes the work comp coverage.
