2015 - 2016 LEGISLATURE
January 8, 2016 - Introduced by Senator Nass, cosponsored by Representative
Spiros, by request of Department of Workforce Development. Referred to
Committee on Labor and Government Reform.
1An Act to renumber
46.2897; to renumber and amend
102.125, 102.18 (1) (b), 2
102.23 (1) (a), 102.28 (2) (c) and 102.28 (7) (b); to amend
20.445 (1) (ra), 46.27 3
(5) (i), 46.2897 (title), 101.654 (2) (b), 102.01 (2) (d), 102.03 (4), 102.04 (1) (a), 4
102.04 (2m), 102.07 (1) (a), 102.07 (1) (b), 102.07 (3), 102.07 (7) (a), 102.07 (10), 5
102.11 (1) (intro.), 102.125 (title), 102.13 (2) (b), 102.13 (2) (c), 102.17 (1) (a) 3., 6
102.17 (4), 102.18 (3), 102.18 (4) (b), 102.21, 102.23 (1) (c), 102.23 (1) (cm), 7
102.28 (2) (a), 102.28 (2) (b) (title), 102.28 (2) (c) (title), 102.28 (2) (d), 102.28 (7) 8
(a), 102.29 (1) (b) 2., 102.31 (2) (b) 2., 102.315 (2), 102.425 (3) (a) (intro.), 102.425 9
(3) (a) 1., 102.425 (4m) (b), 102.43 (5) (c), 102.44 (1) (ag), 102.44 (1) (am), 102.44 10
(1) (b), 102.58, 102.75 (1), 102.75 (2), 102.75 (4), 102.81 (1) (a), 108.10 (4) and 11
165.60; and to create
46.27 (5m), 46.275 (4m), 46.277 (3r), 46.281 (1k), 46.2897 12
(1), 46.2897 (2) (title), 46.2897 (3), 46.995 (3), 102.07 (20), 102.125 (2), 102.175 13
(3), 102.28 (2) (bm), 102.28 (2) (c) 2., 102.28 (2) (e), 102.28 (7) (bm), 102.28 (7) 14
(d), 102.29 (12), 102.425 (1) (cm), 102.43 (9) (e) and 102.44 (4m) of the statutes;
1relating to: various changes to the worker's compensation law, granting
2rule-making authority, and making an appropriation.
Analysis by the Legislative Reference Bureau
This bill makes various changes to the worker's compensation law, as
administered by the Department of Workforce Development (DWD) and the Division
of Hearings and Appeals (DHA) in the Department of Administration.
Local governmental units
This bill changes the term "municipality" to "local governmental unit" for
purposes of the worker's compensation law and redefines that term to mean a
political subdivision of this state; a special purpose district or taxing jurisdiction in
this state; an instrumentality, corporation, combination, or subunit of any of the
foregoing; or any other public or quasi-public corporation. Under current law, cities,
villages, towns, and counties are political subdivisions of this state; special purpose
districts include school districts, sewer districts, drainage districts, and other
districts created for special purposes; and taxing jurisdictions are entities, not
including the state, that are authorized by law to levy property taxes.
Long-term care providers
This bill provides that an individual who is performing services for a person
receiving long-term care benefits under certain long-term care programs
administered by the Department of Health Services, including the Community
Options Program, the Community Integration Program, Family Care, the Family
Care Partnership Program, a self-directed program commonly referred to as IRIS,
or the Children's Long-Term Support Home and Community-Based Medicaid
Waiver Program, on a self-directed basis and who does not otherwise have worker's
compensation coverage for those services is considered to be an employee of the entity
that is providing financial management services for the person who is receiving the
benefits. As such, the financial management services entity is liable for any injury
sustained by the individual while performing those services and is required to insure
payment of that liability either by purchasing insurance from an insurer authorized
to do business in this state or, if permitted by DWD, by self-insuring for that liability.
The bill also prohibits an individual providing long-term care services who is
considered an employee of a financial management services entity for purposes of
worker's compensation coverage and who files a claim for worker's compensation
from bringing an action in tort against the person who received the long-term care
services from which the claim arose.
Payment of benefits
Violations of employer drug or alcohol policies
This bill provides that if an employee violates an employer policy against drug
or alcohol use and such violation is causal to the employee's injury, then neither the
employee nor the employee's dependents may receive, under the worker's
compensation law, any compensation, including the death benefit, relating to that
injury. The bill specifies, however, that this provision does not reduce or eliminate
an employer's liability for the cost of treating the employee's injury. Under current
law, if an employee is injured as a result of intoxication by alcohol, controlled
substances, or controlled substance analogs, the compensation, including the death
benefit, is reduced by 15 percent.
Employees suspended or terminated for misconduct or substantial fault
This bill provides that an employer is not liable for temporary disability
benefits during an employee's healing period if the employee is suspended or
terminated from employment due to misconduct, as defined in the unemployment
insurance law, or substantial fault, as defined in the unemployment insurance law,
by the employee connected with the employee's work.
The unemployment insurance law defines "misconduct" as action or conduct
evincing such willful or wanton disregard of an employer's interests as is found in
1) deliberate violation or disregard of standards of behavior that an employer has a
right to expect of his or her employees; or 2) carelessness or negligence of such degree
or recurrence as to manifest culpability, wrongful intent, or evil design in disregard
of the employer's interests or to show an intentional and substantial disregard of an
employer's interests or of an employee's duties and obligations to his or her employer.
The unemployment insurance law defines "substantial fault" as acts or
omissions of an employee over which the employee exercised reasonable control that
violate reasonable requirements of the employee's employer, but not including minor
infractions, inadvertent errors, or failure to perform work due to insufficient skill,
ability, or equipment.
Apportionment of permanent disability
This bill provides that if an injured employee has incurred permanent
disability, but a percentage of that disability was caused by an accidental injury
sustained in the course of employment and a percentage of that disability was caused
by other factors, whether occurring before or after the time of the accidental injury,
the employer is liable only for the percentage of permanent disability that was
caused by the accidental injury. If, however, previous permanent disability is
attributable to occupational exposure with the same employer, the employer is also
liable for that previous permanent disability.
Maximum weekly compensation for permanent partial disability
This bill increases the maximum weekly compensation rate for permanent
partial disability from $322 to $342 for injuries occurring before January 1, 2017, and
to $362 for injuries occurring on or after that date.
This bill provides that an injured employee who is receiving the maximum
weekly benefit in effect at the time of the injury for permanent total disability or
continuous temporary total disability resulting from an injury that occurred before
January 1, 2003, is entitled to receive supplemental benefits for a week of disability
beginning after the effective date of the bill in an amount that, when added to the
employee's regular benefits, equals $669. Under current law, supplemental benefits
are payable only for an injury occurring prior to January 1, 2001, and the maximum
supplemental benefit amount for a week of disability is an amount that, when added
to the employee's regular benefits, equals $582.
This bill provides that an application for worker's compensation for a traumatic
injury filed more than six years after the date of injury or date that worker's
compensation was last paid is barred by the statute of limitations and that, for
traumatic injuries for which there is no statute of limitations, benefits or treatment
expenses for traumatic injury becoming due six years after the date of injury or the
date that compensation was last paid are paid by DWD from the Work Injury
Supplemental Benefit (WISB) fund, if that date is before April 1, 2006.
Under current law, an application for worker's compensation that is not filed
within 12 years from the date of the injury or from the date that worker's
compensation was last paid is barred by the statute of limitations and, in cases in
which there is no statute of limitations, benefits or treatment expenses for traumatic
injury becoming due 12 years after the date of injury or the date that compensation
was last paid are paid by DWD from the WISB fund if that date is before April 1, 2006.
This bill eliminates an April 30, 2014, sunset date for a provision under which
compensation for temporary disability on account of receiving vocational
rehabilitation services is not reduced on account of any wages earned for the first 24
hours worked by an employee during a week in which the employee is receiving those
services and only hours worked in excess of 24 during that week are offset against
the employee's average weekly wage in calculating compensation for temporary
disability. Generally under current law, all hours worked by an employee who has
incurred partial disability are offset against the employee's average weekly wage in
calculating compensation for temporary disability.
Prescription drug treatment
This bill specifies that the current law that limits the liability of an employer
or insurer for the cost of a prescription drug to the average wholesale price of the
prescription drug, as quoted in the Drug Topics Red Book (average wholesale price),
applies to a prescription drug dispensed outside of a licensed pharmacy.
The bill also provides that DWD may use an alternative nationally recognized
prescription drug pricing source for determining average wholesale prices of
prescription drugs if the Drug Topics Red Book is discontinued and becomes
Minimum permanent partial disability ratings
This bill requires DWD, at least once every eight years, to review and revise the
minimum permanent partial disability ratings that DWD has promulgated by rule
for certain amputation levels, losses of motion, sensory losses, and surgical
procedures resulting from injuries for which permanent partial disability is claimed.
Before revising those ratings, DWD must appoint a medical advisory committee,
composed of physicians practicing on one or more areas of specialization or treating
disciplines within the medical profession, to review those ratings and recommend
revisions of those ratings, based on typical loss of function, to DWD and the Council
on Worker's Compensation.
Hearings and procedures
Health care records in electronic format
This bill permits a physician, chiropractor, psychologist, podiatrist, dentist,
physician assistant, advance practice nurse prescriber, hospital, or health service
provider, upon request by an injured employee, employer, insurer, or DWD, to
provide that person with any written material that is reasonably related to an injury
for which the employee claims worker's compensation in electronic format upon
payment of $26 per request. Current law requires those practitioners to provide that
material to those requesters upon payment of the actual cost of providing those
materials, not to exceed the greater of 45 cents per page or $7.50 per request, plus
the actual costs of postage, but does not address providing those materials in
Final practitioner's report
This bill prohibits DWD from requiring a treating practitioner to submit a final
report to DWD if 1) an injured employee has a period of temporary disability of more
than three weeks or a permanent disability, has undergone surgery to treat an injury,
other than surgery to correct a hernia, or sustains an eye injury requiring medical
treatment on three or more occasions off the employer's premises; 2) the employer
or insurer denies the employee's claim for worker's compensation in its entirety; and
3) the employee does not contest that denial. Current law prohibits DWD from
requiring submission of a final report under those circumstances, but does not
specify that the employee's claim for compensation must be denied in its entirety.
The bill also requires a treating practitioner to complete a final report on a
timely basis and permits a treating practitioner to charge no more than $100 for
completing a final report.
Prospective vocational rehabilitation training orders
This bill permits DHA to include in an interlocutory or final award or order an
order directing the employer or insurer to pay for a future course of instruction or
other rehabilitation training services provided under a rehabilitation training
program. Current law specifically permits DHA to include in an interlocutory or
final award or order an order directing the employer or insurer to pay for any future
treatment that may be necessary to cure and relieve an injured employee from the
effects of the employee's injury, but does not specifically permit DHA to include in
such an order or award an order directing payment for a future course of instruction
or other services provided under a rehabilitation training program.
Administrative review of a worker's compensation decision
This bill requires the Labor and Industry Review Commission (LIRC) to
dismiss a petition for review that is not filed within 21 days after DWD or DHA
mailed a copy of the examiner's findings and order to the petitioner's last-known
address unless the petitioner shows that the petition was filed late for a reason that
was beyond the petitioner's control. Currently, LIRC must dismiss a petition for
review that is not "timely" filed unless the petitioner shows probable good cause that
the reason for failure to timely file the petition was beyond the petitioner's control.
The bill also allows LIRC to set aside a decision for further consideration within
28 days after the date of the decision, not within 28 days after the date of its mailing
as under current law.
Judicial review of a worker's compensation decision
This bill requires LIRC to identify in an order or award made by LIRC the
persons that must be made parties to an action for judicial review of the order or
award. The bill also requires the summons and complaint in the action to name those
persons as defendants. In addition, the bill permits the circuit court to join as a party
to the action any other person determined necessary for the proper resolution of the
action, unless joinder of the person would unduly delay the resolution of the action.
Investigation and prosecution of fraudulent activity
This bill permits DWD to request the Department of Justice (DOJ) to assist
DWD in an investigation of a false or fraudulent worker's compensation claim or any
other suspected fraudulent activity on the part of an employer, employee, insurer,
health care provider, or other person related to worker's compensation. If, based on
the investigation, DWD has a reasonable basis to believe that theft, forgery, fraud,
or any other criminal violation has occurred, DWD must refer the matter to the
district attorney or DOJ for prosecution.
Election by governmental employer to self-insure. This bill codifies into
statute certain DWD rules that permit the state or a local governmental unit to
self-insure its worker's compensation liability without further order of DWD.
Specifically, the bill permits the state or a local governmental unit that has
independent taxing authority (governmental employer) to elect to self-insure its
worker's compensation liability without further order of DWD if the governmental
employer agrees to report all compensable injuries and to comply with the worker's
compensation law and the rules of DWD. Under the bill, a local governmental unit
that elects to self-insure its liability for the payment of worker's compensation must
notify DWD of that election in writing before commencing to self-insure that
liability, must notify DWD of its intent to continue to self-insure that liability every
three years after that initial notice, and must notify DWD of its intent to withdraw
that election not less than 30 days before the effective date of that withdrawal.
Revocation of governmental employer election to self-insure. This bill
permits DWD to revoke an election by a governmental employer to self-insure its
liability for worker's compensation, without seeking the advice of the Self-Insurer's
Council, if DWD finds that the governmental employer's financial condition is
inadequate to pay its employees' claims for compensation, that the governmental
employer has received an excessive number of claims for compensation, or that the
governmental employer has failed to discharge faithfully its obligations under the
worker's compensation law and the rules of DWD. Under the bill, once such an
election is revoked, the governmental employer whose election is revoked may not
elect to self-insure its liability for the payment of worker's compensation unless at
least three calendar years have elapsed since the revocation and DWD finds that the
governmental employer's financial condition is adequate to pay its employees' claims
for compensation, that the governmental employer has not received an excessive
number of claims for compensation, and that the governmental employer has
faithfully discharged its obligations under the worker's compensation law and the
rules of DWD.
Self-insured employer assessments. This bill requires an initial assessment
for the self-insurer's fund, which is a fund that is used to pay the worker's
compensation liability of self-insured employers that cannot pay that liability, to be
prorated on the basis of the gross payroll for this state of the self-insured employer,
as reported to DWD for the previous calendar year for purposes of unemployment
insurance. Current law requires subsequent assessments for the self-insurer's fund
to be so prorated and requires an initial assessment for that fund to be equal to the
amount assessed upon each other self-insured employer.
The bill also clarifies that governmental employers are not covered under the
self-insurer's fund. Specifically, the bill prohibits DWD from 1) requiring a
governmental employer that elects to self-insure its liability for the payment of
worker's compensation to pay into the self-insurer's fund; and 2) making payments
from that fund for the liability under the worker's compensation law of such an
employer, whether currently or formerly exempt from the duty to insure.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
(ra) Worker's compensation operations fund; administration.
the worker's compensation operations fund, the amounts in the schedule for the 5
administration of the worker's compensation program by the department,
6assistance to the department of justice in investigating and prosecuting fraudulent
7activity related to worker's compensation,
for transfer to the uninsured employers 8
fund under s. 102.81 (1) (c), and for transfer to the appropriation accounts under par. 9
(rp) and s. 20.427 (1) (ra). All moneys received under ss. 102.28 (2) (b) and 102.75
shall be credited to this appropriation account. From this appropriation, an amount 2
not to exceed $5,000 may be expended each fiscal year for payment of expenses for 3
travel and research by the council on worker's compensation, an amount not to 4
exceed $500,000 may be transferred in each fiscal year to the uninsured employers 5
fund under s. 102.81 (1) (c), the amount in the schedule under par. (rp) shall be 6
transferred to the appropriation account under par. (rp), and the amount in the 7
schedule under s. 20.427 (1) (ra) shall be transferred to the appropriation account 8
under s. 20.427 (1) (ra).