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More Changes on The Way for Worker’s Compensation Claims in Wisconsin

By Attorney Jennifer Augustin

Once again, there may be some big changes coming to worker’s compensation claims in Wisconsin; and once again they are coming from the Governor rather than the Worker’s Compensation Advisory Council. On February 8, 2017, the Governor submitted his 2017-2019 budget recommendations, which have been presented to the Legislature as Assembly Bill 64 and Senate Bill 30. The bills contain a couple of proposed changes to the statutes affecting worker’s compensation claim procedure in Wisconsin.

First, and most sweeping, is the elimination of the Labor and Industry Review Commission (LIRC). Under the current law, decisions of the administrative law judges relating to unemployment insurance, employment discrimination, and worker’s compensation can be appealed to LIRC. The new law would provide for administrative review of these decisions. Decisions of administrative law judges on worker’s compensation matters would be appealed to, or reviewed by, the administrator of the Division of Hearings and Appeals (DHA). Currently, that position is held by Brian Hayes, who is an active member of the Wisconsin State Bar Association, although that is not necessarily a requirement of the position.

So far, the chatter about this proposal among the worker’s compensation bar is that it is largely applicant-friendly. The three commissioners at LIRC are each appointed by the Governor and serve staggered six-year terms. Thus, the commission’s leanings (liberal versus conservative) will swing up and down depending on which party holds the office of Governor. With Republican Scott Walker currently in office, the commission is viewed as more conservative and respondent-friendly than in years past. In contrast, the administrator of the DHA is not a political appointee. Many applicant-attorneys are pleased to hear that the conservative commission may soon be a thing of the past for them, and respondent-attorneys are not so happy to hear that they may lose some of their bargaining power if LIRC is no longer a threat to applicants.

The other change affecting worker’s compensation claims in Wisconsin is the elimination of court reporters for worker’s compensation hearings. The current law provides that all testimony at any hearing shall be taken down by a stenographic reporter. The proposed revisions provide that all testimony shall be taken down by a stenographic reporter or recorded by a recording machine. While the law does not actually require the elimination of court reporters, the administrator of the DHA has announced that his budget plan is to terminate all but a few of the court reporters currently on salary at DHA in order comply with required budget cuts. The remaining few court reporters will no longer sit in on hearings, but instead, will be tasked with creating hearing transcripts from the recordings.

It seems both sides of the worker’s compensation bar are less than thrilled about the elimination of the court reporters. The fear seems to be that transcripts will not be as accurate when they are transcribed by someone who was not present at the hearing. In fact, many attorneys have already talked about hiring private court reporters for their hearings at the expense of their client. In reality, these errors can be minimized as long as attorneys and administrative law judges adapt their hearing techniques to the new law. All those present at a hearing will need to take more precautions to ensure there is only one person talking at a time while on the record, and to make sure that witnesses speak clearly and loudly. To the extent, there are moments on the record wherein two people inadvertently talk at the same time, or when a witness is less than clear, attorneys would be well-advised to take a moment and create an accurate record by restating the testimony.

Currently, these proposals remain just that, proposals. They will now be put before the Joint Finance Committee which will hold public hearings around the state and prepare its own version of the budget. This version will then be debated by the houses of the Legislature until there is a compromise version of the bill to be voted on by each house. From there, the Governor gets the final review where he can make line-item vetos, meaning he can make certain changes to the bill that can only be overridden by a two-thirds vote of both houses. Thus, between now and the final review of the Governor, which is supposed to occur by July 1, 2017, there can be many changes made. Stay tuned to find out which changes take effect and when.