Gregory Krohm
December 2, 2015

Wisconsin enjoys
• few disability claim greater than 1 week
• 37 out of 45 states in rank on average cost of claims
• lowest duration of TTD
• lower average WC insurance rates than any neighboring state
• relatively little litigation and swift hearings

• The Advisory Council (AC) negotiation of any change to the workers’ compensation system has a 50+ year tradition
• Last budget bill eroded the authority of the AC
• AB 501 circumvents the agreed bill process
• Modifying negotiate law changes
• Inserting changes that were rejected by labor
• Introducing “out of the blue” law changes that had no previous public discussion with the WCAC process

Very Similar Provisions in Both Similar Goal but Differences in Approach/Details
Numerical trigger for coverage
Definition of local government
Administrative review of cases
Judicial review of cases
Electronic medical records
Supplemental PT benefit
Eliminate TTD for lawful discharge
Misrepresentation and claim denial
PPD minimums
Physician dispensing of drugs
TTD during vocational training reduced for hours worked >24/week
Self-insurance and assessments for local govt.
Rehab benefit max for part time
Rehab interlocutory orders permitted

Strangely, some provisions that could reduce cost to employers
(marked with *) were omitted from AB 501
• Eliminates all compensation for injury after violating employer drug/alcohol policy*
• Maximum fee for final report ($100)*
• PPD maximum increase ($322 to $342 injuries before 1/2017)
• Coverage for those providing long term care for defined entities
• Apportionment of permanent disability to causes outside of work*

• Social Security Retirement Offset
• Wellness claim defense added*
• Health care fee dispute duty for DWD*
• Employee misrepresentation of physical condition*
• Claim denial in other state*
• Elimination of stacking of concurrent state benefits
• Three year review of PPD impairment*
• Diminished compensation from employee negligence*
Note: * indicates a lack of public stakeholder testimony for the provision

Diminish compensation for negligence of employee
Employer choice of provider
Social Security Retirement Offset
Wellness activity claims
Constitutional?
Major shift in exclusive remedy concept
No performance and quality standards for networks
Referral procedure undefined
What about employees who do not participate in employer plan?
Choosing the provider constrains the course of treatment
Constitutionality?
Meaning and test for “available for work”
Added criterion may hamper defense of claims
3 yr review of PPD impairment Few cases with significant reductions after 3 yrs?
Inexplicably leaves out Perm Total
“final award” seems to exclude interlocutory orders
Obtaining contracts may be a problem, expertise needed Fee dispute review by WC Division
Eliminating minimum PPD ratings
Denial of claim in another state
“Unimpaired” is not defined
Could any rating less than the minimum default to the minimum?
Rare situation; unnecessarily punative
Concurrent benefits in another state Not common; does not change existing practice
Employee misrepresentation on app.
Not common to ask for physical condition (unrelated to job duties)

Stakeholders generally agree that AB 501 would create much new litigation, especially for:
• Asserting negligence
• Proving lawful discharge for misconduct/substantial fault
• Determining “availability for work”
• Defending new employer rights will be costly:
• would involve more hearings and more complex evidence at hearing
• new case law would be developed
• constitutional challenges on some provisions seem probable

• The agreed bill (AB) was the product of labor-management negotiation
• This year’s bill had many more “pro-employer” concessions than past years
• AB 501 substantially same for 14/20 provisions in the agreed bill
• No obvious grounds for some of the minor deviations
• Some important elements from AB were left out of AB 501
• AB 501 adds several provisions that were not in the AB
• These additional elements are fraught with legal uncertainty
• Part of the uncertainty is poor drafting and part due to unpredictable court interpretations