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Why care about workers’ comp?

Charles F. Domer exclusively practices Wisconsin worker's compensation law, representing only injured workers. His advocacy earned him recognition in Best Lawyers in America and in Wisconsin Super Lawyers. He is co-author, with his law partner & father Tom, of West’s treatise Wisconsin Workers’ Compensation Law.

Charles F. Domer practices Wisconsin worker’s compensation law, representing only injured workers. He is co-author, with his law partner and father, Tom, of West’s treatise Wisconsin Workers’ Compensation Law and is a member of the Wisconsin Association of Justice.

I practice workers’ compensation law. I represent injured workers.

Those are my words when inevitably asked “what do you do?” at any business meeting or social gathering. And I’m proud of that response.

Proud to help my injured clients. Proud of the workers’ compensation system in our state.

I want that pride to continue, but the worker’s compensation system faces an uncertain road ahead.

Not everyone fully understands worker’s compensation and its significance both in history and to business. In 1911, Wisconsin became the first state in the nation to place a broad, constitutionally valid worker’s compensation system into operation.

It was founded on the “grand bargain,” through which employees gave up their right to sue in court in exchange for the receipt of specific benefits without having the burden of proving fault. Employers, in turn, were protected from sometimes costly jury awards, and workers’ compensation claims became a stable, predictable business expense.

This no-fault administrative dispute-resolution process has become an effective alternative to protracted civil litigation, swiftly resolving work-injury disputes between employees and employers. Since its inception, Wisconsin has been a national leader in workers’ compensation — and is generally viewed as setting the gold standard.

So why does this matter? Why should we protect our workers’ compensation system? The reason is that it affects everyone in our state, including the entire labor force and all employers. Employers are affected because they are the ones who purchase worker’s compensation insurance in order to pay for our highly efficient system.

That is why low and stable premiums are invaluable for small businesses here; known costs are preferable over uncertainty and concerns about large jury awards. Also, injured workers receive swift access to quality medical care and quickly return to work—a scenario that benefits employers and employees alike.

If work injuries are not dealt with and paid for through the workers’ compensation system, those “costs” are shifted to taxpayers (e.g., if lost time benefits are not covered, an injured worker turns to Social Security Disability; if medical expenses are not covered, Medicare, Medicaid or group health may be paying inappropriately).

Thus, a stable, functional workers’ compensation system benefits all Wisconsin citizens.

Our system, however, is under attack. Wisconsin — like many other states around the country — is contending with deconstruction efforts and deforming legislation.

A number of national news stories have begun to shed light on nasty legislation that is making its way around the country. The proposed changes range from large reductions in the statute of limitations, to compressing eligibility rules, to tightening medical causation standards.

There is also a movement — paid for primarily by massive retail chains—to pass “opt out” legislation, which would enable employers to operate their “own” loosely regulated worker’s compensation plan.

The predictable results of such efforts are diminished claim values, benefits reductions, and the blatant shifting of a substantial burden to taxpayers.

As a member of a national worker’s compensation organization — the Worker’s Injury Law and Advocacy Group — I hear about these horror stories occurring elsewhere. Other state systems have to endure or crumble under wild legislative swings depending on the makeup of their statehouse.

Wisconsin has historically avoided such partisan swings — confidently producing a stable system that is the envy of other states. Much of the credit for our stability stems from the Worker’s Compensation Advisory Council, a body composed of labor and management members who in effect “collectively bargain” (yes, that’s a good thing!) for biennial changes and common-sense improvements to the system.

Through the advisory council’s work, a great worker’s compensation system has come into being in Wisconsin. We have long enjoyed low and stable employer premiums.

Insurance companies must like to do business here: We have more 300 private sector WC insurance carriers collecting premiums and earning profits.

We have faster return-to-work rates than most states — in one study, the fastest rates in the nation. We also have incredibly low litigation costs and low litigation rates (only 10 percent to 15 percent of work injuries even require the use an attorney).

Unfortunately this year, for the first time in historical memory, Wisconsin saw competing worker’s compensation bills. One bill came directly from the historically stabilizing Worker’s Compensation Advisory Council (AB-724), and the “other” non-advisory-council bill (AB-501) came about without any influence from the council. The council bill, thankfully, carried the day.

The council bill was unanimously approved by members of labor and management — which included Wisconsin Manufacturers & Commerce. As in past years, the advisory council produced common-sense reforms and improvements of the worker’s compensation system.

The bill benefits injured workers by increasing permanent-disability rates in coming years, as well as by giving them greater ability to pursue and collect on vocational-retraining claims. The council bill also includes some employer-friendly provisions, such as one that would deny benefits if an injury is caused by a violation of alcohol or drug policies, one that would put more money toward prosecuting alleged fraud, and one that would eliminate lost-time benefits for workers who lose their jobs because of misconduct.

The non-advisory-council bill, meanwhile, became known as the “worker’s compensation destruction bill.” This bill included ill-conceived provisions that were not vetted by the stabilizing forces of the advisory council.

In a startlingly unprecedented provision, the bill would have allowed reduction of benefits by the amount of employee negligence—introducing the notion of fault into a “no fault” system and effectively blowing up the century-old “grand bargain” of worker’s compensation.

Additionally, the bill would have eliminated injured employees’ ability to choose a medical provider and created a draconian two-year statute of limitations, among its more egregious provisions. The non-advisory-council bill would have torn down the system by exponentially increasing litigation, hindering access to medical care and recovery and possibly creating a slippery slope to unlimited jury awards.

After a period of uncertainty regarding the two separate worker’s compensation bills, the Wisconsin legislature — in both the Senate (SB-536) and Assembly (AB-724) — unanimously passed the advisory council bill. The council bill now heads to Gov. Walker, who is expected to sign the worker’s compensation changes into law shortly.

The non-advisory-council bill never even received a public hearing — signaling legislative support that any worker’s compensation changes first go through the advisory council’s vetting process. The unanimous support for the council bill shows a profound appreciation for how our advisory council has helped make our state’s worker’s compensation system the best in the country.

The advisory-council bill does what it always has done — modifies and improves on the Worker’s Compensation Act for all stakeholders.

I’m proud of the worker’s compensation system. And I hope that continues.

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