AB1074,,22An Act to renumber and amend 102.17 (9) (a) 1. and 102.44 (2); to amend 102.03 (4), 102.13 (2) (c), 102.16 (1m) (a), 102.17 (9) (b) (intro.) and 102.18 (1) (bg) 1.; and to create 102.16 (2) (i), 102.17 (9) (a) 1e., 102.17 (9) (a) 1g., 102.423 and 102.44 (2) (a) 2. of the statutes; relating to: various changes to the worker’s compensation law, extending the time limit for emergency rule procedures, providing an exemption from emergency rule procedures, and granting rule-making authority.

This bill makes various changes to the worker’s compensation law, as administered by the Department of Workforce Development and the Division of Hearings and Appeals in the Department of Administration.

This bill requires DWD, by July 1, 2025, to establish a schedule of the maximum fees that a health care provider may charge an employer or insurer for health services provided to an injured employee who claims worker’s compensation benefits. Under the bill, DWD must, when that schedule is established, send a notice to the Legislative Reference Bureau, and the LRB must publish that notice in the Wisconsin Administrative Register. The reasonableness of the health service fee dispute resolution process under current law does not apply to health services provided on or after the date specified in the notice. The liability of an employer or insurer for a health service included in the fee schedule is then limited to the maximum fee allowed under the schedule for the health service as of the date on which the health service was provided, any fee agreed to by contract between the employer or insurer and health care provider for the health service as of that date, or the health care provider’s actual fee for the health service as of that date, whichever is less.

The bill requires DWD, in determining those maximum fees, to divide the state into five regions based on geographical and economic similarity, including similarity in the cost of health services, and, for each region, to do the following: 1) determine the average payment made by insured and self-insured group health plans, and the average copayment, coinsurance, and deductible payment made by persons covered under those plans, for each health service included in the schedule and 2) set the maximum fee for each health service included in the schedule at 110 percent of the sum of that average payment and that average copayment, coinsurance, and deductible payment.

The bill also requires DWD to adjust those maximum fees annually by the change in the consumer price index for medical care services and, no less often than every two years, to redetermine the average payment made by group health plans for the services included in the schedule and revise those maximum fees based on that redetermined average.

The bill provides, however, that DWD may not implement the initial fee schedule or a revised fee schedule unless the schedule or revised schedule is approved by the Council on Worker’s Compensation.

Under current law, subject to certain exceptions, the amount of an injured employee’s worker’s compensation benefits is determined in accordance with the law that is in effect as of the date of injury, regardless of the length of time that has elapsed since that date. For permanent total disability benefits, the amount of benefits is determined based upon the employee’s average weekly earnings, up to a maximum that is determined based upon 110 percent of the state’s average weekly earnings. This determination of the state’s overall average weekly earnings is revised each calendar year.

This bill provides for the indexing of the weekly benefit for permanent total disability resulting from an injury that occurs on or after January 1, 2024. Specifically, under the bill, the benefits for an injured employee who is receiving worker’s compensation for permanent total disability resulting from an injury that occurs on or after January 1, 2024, are, beginning with the sixth anniversary of the date of injury and then annually thereafter, increased to a corresponding higher rate for that year.

This bill makes changes to the conditions of liability for worker’s compensation benefits for emergency medical responders, emergency medical services practitioners, and volunteer and part-time fire fighters who are diagnosed with post-traumatic stress disorder (PTSD).

Under current law, if a law enforcement officer or full-time fire fighter is diagnosed with PTSD by a licensed psychiatrist or psychologist, and the mental injury that resulted in that diagnosis is not accompanied by a physical injury, that law enforcement officer or fire fighter can bring a claim for worker’s compensation benefits if the conditions of liability are proven by the preponderance of the evidence and the mental injury is not the result of a good faith employment action by the person’s employer. Also under current law, liability for such treatment for a mental injury is limited to no more than 32 weeks after the injury is first reported.

Under current law, an injured emergency medical responder, emergency medical services practitioner, or volunteer or part-time fire fighter who does not have an accompanying physical injury must demonstrate a diagnosis based on unusual stress of greater dimensions than the day-to-day emotional strain and tension experienced by all employees as required under School District No. 1 v. DILHR, 62 Wis. 2d 370, 215 N.W.2d 373 (1974), in order to receive worker’s compensation benefits for PTSD. Under the bill, such an injured emergency medical responder, emergency medical services practitioner, or volunteer or part-time fire fighter is not required to demonstrate a diagnosis based on that standard and instead must demonstrate a diagnosis based on the same standard as law enforcement officers and full-time fire fighters. Finally, under the bill, an emergency medical responder, emergency medical services practitioner, or volunteer or part-time fire fighter is restricted to compensation for a mental injury that is not accompanied by a physical injury and that results in a diagnosis of PTSD three times in his or her lifetime irrespective of a change of employer or employment in the same manner as law enforcement officers and full-time fire fighters.