SB665: Bill Text

Lump sum payments in compromise agreements

The bill increases the maximum amount of unaccrued benefits that may be provided to an injured employee as a lump sum in a compromise agreement concerning the employer's liability under the worker's compensation law. Current administrative rules permit an employee and employer to enter into a compromise agreement concerning the employer's worker's compensation liability. The rules limit the amount of unaccrued worker's compensation benefits that may be provided as a lump sum to the injured employee in that compromise agreement to $10,000. Under the bill, that limit is increased to $50,000.

Payment of proceeds of claims against third parties

Current law provides that when an employee sustains a work injury or dies as a result of a work injury and the employee, the employee's personal representative, or other person entitled to bring action maintains an action in tort against a third party for the injury or death, the proceeds of the claim are to be divided pursuant to a formula detailed under current law. Under that formula, after deducting the reasonable cost of collection, one-third of the remainder is in all cases to be paid to the injured employee, personal representative, or other person entitled. Current law also provides that if an injured employee or dependent receives compensation from the employee's employer or a third party in such an action and the employee received payments from DWD due to the employer being an uninsured employer, the employee or dependent must reimburse DWD for the full amount up to the amount recovered from the third party.

This bill modifies the latter provision such that if an injured employee or dependent receives compensation from the employee's employer or a third party in such an action and the employee received payments from DWD due to the employer being an uninsured employer, the employee or dependent must reimburse DWD in accordance with the formula described above.

Requirements and prohibitions for health care providers

Electronic billing

The bill requires any health care provider providing care to an injured employee to use an electronic billing system and be able to receive payments electronically.

Health care records in electronic format

Current law requires a health care 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 paper format upon payment of the actual costs of preparing the certified duplicate, not to exceed the greater of 45 cents per page or $7.50 per request, plus the actual costs of postage, or in electronic format upon payment of $26 per request.

This bill requires such material to be provided in electronic format unless the requester is unable to receive the material in electronic format or otherwise specifically requests the material in paper format.

Dispensing of opiates

The bill prohibits a practitioner from dispensing more than a seven-day supply of an opiate to treat an injury for which an employer or insurer is liable under the worker's compensation law. The bill provides that a supply greater than a seven-day supply dispensed by a practitioner is considered to be unnecessary treatment without the need for a written opinion on the necessity of the treatment.

Opiates and independent medical examinations

The bill requires that if a health care provider conducts an independent medical examination and concludes that an employee has sustained a work-related injury but that opiates that have been prescribed to the employee for the injury are not medically necessary, any report prepared by the health care provider that recommends the cessation of those opiates must include certain information, including a discussion of alternative treatments, a proposed plan of discontinuation of opiate therapy consistent with any applicable guidelines issued by a state credentialing board, and a statement regarding coverage for addiction treatment.

Notice; requirement to post

The bill requires each employer to post, in each workplace, a notice in a form approved by DWD setting forth employees' rights under the worker's compensation law. DWD must include in the notice information to educate injured employees regarding opiate therapies, opiate addiction, and alternative treatments for pain.

Program administration

Confidential records; disclosure to certain agencies

Under current law, subject to a number of exceptions, certain records of DWD, DHA, or the Labor and Industry Review Commission that reveal information about injured employees are confidential and not subject to disclosure under the public records law or a subpoena. The bill creates another exception for records requested by the Department of Health Services, a county department of social services, or a county department of human services, if the request is limited to the name and address of the employee who is the subject of the record, the name and address of the employee's employer, and any financial information about that employee contained in the record.

Coordination regarding pain management

The bill requires DWD to coordinate with the Department of Safety and Professional Services and its attached credentialing boards and to educate injured employees about treatments and about devices approved by the federal Food and Drug Administration for chronic pain related to injuries compensable under the worker's compensation law that, in lieu of or in combination with medication, may reasonably be required to cure or provide relief from injured employees' pain and about the fact that such treatments and devices may constitute covered medical expenses under the worker's compensation law.

Hearing loss calculation

The bill requires DWD to conduct an analysis regarding the methods of calculation of hearing loss under the worker's compensation law in this state and how they compare to the methods of calculation used in the worker's compensation laws of other states, as well as an analysis of how improvements in technology should guide future decisions regarding how to calculate hearing loss for worker's compensation purposes in this state. DWD must, within six months after the effective date of the bill, issue a report of its findings to the Council on Worker's Compensation.

Minimum permanent partial disability ratings

The bill requires DWD to report to the Council on Worker's Compensation on DWD's progress in carrying out its duties related to reviewing and revising 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.

Other changes

The bill makes various other changes regarding the administration of the worker's compensation law, including:

1. Changes regarding the financing of the worker's compensation law, including creating a separate appropriation to pay for certain reimbursements for supplemental benefit payments.

2. Giving DWD authority to take certain actions under the worker's compensation law with respect to which DHA has authority under current law, including allowing DWD to issue orders or take other action in certain cases.

3. Allowing DWD to conduct alternative dispute resolution activities for certain cases.

4. Granting explicit rule-making authority to DWD to carry out the worker's compensation law.

5. Transferring from DWD to DHA the authority to grant licenses for non-attorneys to appear in worker's compensation cases.

6. Prohibiting DHA from promulgating rules that conflict with DWD's rules and requiring DHA to comply with DWD's rules.

General coverage

Employers subject to worker's compensation law

Under current law, every person who usually employs three or more employees for services performed in this state is subject to the worker's compensation law. This bill provides that every person who at any time employs three or more employees for services performed in this state is subject to the worker's compensation law and specifies that a person becomes subject to that law on the day on which the person employs three or more employees for services performed in this state.

Long-term care providers; clarification

The bill makes clarifications regarding individuals who perform services for persons receiving long-term care benefits under certain long-term care programs and who do not otherwise have worker's compensation coverage for those services to confirm that they are considered to be employees, for worker's compensation purposes, of the entities providing financial management services for the persons receiving the benefits.

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:

SB665,1 Section 1. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated: - See PDF for table - See PDF for table - See PDF for table - See PDF for table

SB665,2 Section 2. 20.445 (1) (ra) of the statutes is amended to read:

SB665,8,4 20.445 (1) (ra) Worker's compensation operations fund; administration. From the worker's compensation operations fund, the amounts in the schedule for the administration of the worker's compensation program by the department, for assistance to the department of justice in investigating and prosecuting fraudulent activity related to worker's compensation, for transfer to the uninsured employers fund under s. 102.81 (1) (c), and for transfer to the appropriation accounts under par. (rp) and s. 20.427 (1) (ra). All moneys received under ss. 102.28 (2) (b) and 102.75 (1) shall be credited to this appropriation account. From this appropriation, an amount not to exceed $5,000 may be expended each fiscal year for payment of expenses for travel and research by the council on worker's compensation, an amount not to exceed $500,000 may be transferred in each fiscal year to the uninsured employers fund under s. 102.81 (1) (c), the amount in the schedule under par. (rp) shall be transferred to the appropriation account under par. (rp), and the amount in the schedule under s. 20.427 (1) (ra) shall be transferred to the appropriation account under s. 20.427 (1) (ra).

SB665,3 Section 3. 20.445 (1) (rc) of the statutes is created to read:

SB665,8,10 20.445 (1) (rc) Worker's compensation operations fund; supplemental benefits. From the worker's compensation operations fund, the amounts in the schedule for providing reimbursement to insurance carriers paying supplemental benefits under s. 102.44 (1) (c). All moneys received under s. 102.75 (1g) shall be credited to this appropriation account.

SB665,4 Section 4. 20.445 (1) (sm) of the statutes is amended to read:

SB665,8,18 20.445 (1) (sm) Uninsured employers fund; payments. From the uninsured employers fund, a sum sufficient to make all moneys received from sources identified under s. 102.80 (1m) for the purpose of making the payments under s. 102.81 (1) and to obtain reinsurance under s. 102.81 (2). No moneys may be expended or encumbered under this paragraph until the first day of the first July beginning after the day that the secretary of workforce development files the certificate under s. 102.80 (3) (a).

SB665,5 Section 5. 46.27 (5m) of the statutes is amended to read:

SB665,8,25 46.27 (5m) Worker's compensation coverage. An individual who is performing services for a person receiving long-term care benefits under this section on a self-directed basis and who does not otherwise have worker's compensation coverage for those services is considered, for purposes of worker's compensation coverage, to be an employee of the entity that is providing financial management services for that person.

SB665,6 Section 6. 46.275 (4m) of the statutes is amended to read:

SB665,9,7 46.275 (4m) Worker's compensation coverage. An individual who is performing services for a person receiving long-term care benefits under this section on a self-directed basis and who does not otherwise have worker's compensation coverage for those services is considered, for purposes of worker's compensation coverage, to be an employee of the entity that is providing financial management services for that person.

SB665,7 Section 7. 46.277 (3r) of the statutes is amended to read:

SB665,9,14 46.277 (3r) Worker's compensation coverage. An individual who is performing services for a person receiving long-term care benefits under this section on a self-directed basis and who does not otherwise have worker's compensation coverage for those services is considered, for purposes of worker's compensation coverage, to be an employee of the entity that is providing financial management services for that person.

SB665,8 Section 8. 46.281 (1k) of the statutes is amended to read:

SB665,9,21 46.281 (1k) Worker's compensation coverage. An individual who is performing services for a person receiving the Family Care benefit, or benefits under Family Care Partnership, on a self-directed basis and who does not otherwise have worker's compensation coverage for those services is considered , for purposes of worker's compensation coverage, to be an employee of the entity that is providing financial management services for that person.

SB665,9 Section 9. 46.2897 (3) of the statutes is amended to read:

SB665,9,25 46.2897 (3) Worker's compensation coverage. An individual who is performing services for a person participating in the self-directed services option and who does not otherwise have worker's compensation coverage for those services is considered, for purposes of worker's compensation coverage, to be an employee of the entity that is providing financial management services for that person.

SB665,10 Section 10. 46.995 (3) of the statutes is amended to read:

SB665,10,9 46.995 (3) An individual who is performing services for a person receiving long-term care benefits under any children's long-term support waiver program on a self-directed basis and who does not otherwise have worker's compensation coverage for those services is considered, for purposes of worker's compensation coverage, to be an employee of the entity that is providing financial management services for that person.

SB665,11 Section 11. 73.0301 (1) (d) 3m. of the statutes is amended to read:

SB665,10,13 73.0301 (1) (d) 3m. A license or certificate issued by the department of workforce development under s. 102.17 (1) (c), 103.275 (2) (b), 103.34 (3) (c), 103.91 (1), 103.92 (3), 104.07 (1) or (2), or 105.13 (1).

SB665,12 Section 12. 73.0301 (1) (d) 15. of the statutes is created to read:

SB665,10,16 73.0301 (1) (d) 15. A license issued by the division of hearings and appeals under s. 102.17 (1) (c).

SB665,13 Section 13. 73.0301 (1) (e) of the statutes is amended to read:

SB665,10,25 73.0301 (1) (e) “Licensing department" means the department of administration; the division of hearings and appeals; the department of agriculture, trade and consumer protection; the board of commissioners of public lands; the department of children and families; the ethics commission; the department of financial institutions; the department of health services; the department of natural resources; the department of public instruction; the department of safety and professional services; the department of workforce development; the office of the commissioner of insurance; or the department of transportation.

SB665,14 Section 14. 102.04 (1) (b) 1. of the statutes is amended to read:

SB665,11,7 102.04 (1) (b) 1. Every person who usually at any time employs 3 or more employees for services performed in this state, whether in one or more trades, businesses, professions, or occupations, and whether in one or more locations. A person who employs 3 or more employees for services performed in this state becomes subject to this chapter on the day on which the person employs 3 or more such employees.

SB665,15 Section 15. 102.04 (1) (b) 2. of the statutes is amended to read:

SB665,11,12 102.04 (1) (b) 2. Every person who usually employs less than 3 employees, provided the person has paid wages of $500 or more in any calendar quarter for services performed in this state. Such employer a person shall become subject to this chapter on the 10th day of the month next succeeding such quarter.

SB665,16 Section 16. 102.11 (1) (intro.) of the statutes is amended to read:

SB665,12,4 102.11 (1) (intro.) The average weekly earnings for temporary disability, permanent total disability, or death benefits for injury in each calendar year on or after January 1, 1982, shall be not less than $30 nor more than the wage rate that results in a maximum compensation rate of 110 percent of the state's average weekly earnings as determined under s. 108.05 as of June 30 of the previous year. The average weekly earnings for permanent partial disability shall be not less than $30 and, for permanent partial disability for injuries occurring on or after March 2, 2016, and before January 1, 2017, not more than $513, resulting in a maximum compensation rate of $342, and, for permanent partial disability for injuries occurring on or after January 1, 2017, not more than $543, resulting in a maximum compensation rate of $362, for permanent partial disability for injuries occurring on or after the effective date of this subsection .... [LRB inserts date], and before January 1, 2019, not more than $573, resulting in a maximum compensation rate of $382, and, for permanent partial disability for injuries occurring on or after January 1, 2019, not more than $610.50, resulting in a maximum compensation rate of $407. Between such limits the average weekly earnings shall be determined as follows:

SB665,17 Section 17. 102.13 (1) (bm) of the statutes is created to read:

SB665,12,7 102.13 (1) (bm) 1. In this paragraph, “opiate” has the meaning given in s. 961.01 (16).

SB665,12,15 2. If a physician, chiropractor, psychologist, dentist, physician assistant, advanced practice nurse prescriber, or podiatrist conducts an examination under par. (a) and concludes that the employee has sustained a work-related injury but that opiates that have been prescribed to the employee for the injury are not medically necessary, any report prepared by the physician, chiropractor, psychologist, dentist, physician assistant, advanced practice nurse prescriber, or podiatrist that recommends the cessation of those opiates shall include all of the following:

SB665,12,18 a. A discussion of alternative treatments or medical devices for the injured employee's pain and, if opining that alternative treatments are also unnecessary, an explanation as to why such alternative treatments are unnecessary.

SB665,12,20 b. A proposed plan of discontinuation of opiate therapy consistent with any applicable guidelines concerning opiates issued under s. 440.035 (2m).

SB665,13,3 c. If the physician, chiropractor, psychologist, dentist, physician assistant, advanced practice nurse prescriber, or podiatrist opines that the injured employee has developed behaviors indicative of opioid use disorder related to the injury, a statement to the employee that the employer or insurer will pay for, and assist the employee in obtaining, a physician referral for addiction treatment. In that case, the employer or insurer shall advise the employee that opiates prescribed as a result of the injury will continue to be paid for by the employer or insurer until the employee is referred for addiction treatment.

SB665,18 Section 18. 102.13 (2) (b) of the statutes is amended to read:

SB665,13,21 102.13 (2) (b) A physician, chiropractor, podiatrist, psychologist, dentist, physician assistant, advanced practice nurse prescriber, hospital, or health service provider shall furnish a legible, certified duplicate of the written material requested under par. (a) in electronic format upon payment of $26 per request, unless the requester is unable to receive the material in electronic format or otherwise specifically requests the material in paper format, in which case the physician, chiropractor, podiatrist, psychologist, dentist, physician assistant, advanced practice nurse prescriber, hospital, or health service provider shall furnish a legible, certified duplicate of the written material requested under par. (a) in paper format upon payment of the actual costs of preparing the certified duplicate, not to exceed the greater of 45 cents per page or $7.50 per request, plus the actual costs of postage, or shall furnish a legible, certified duplicate of that material in electronic format upon payment of $26 per request. Any person who refuses to provide certified duplicates of written material in the person's custody that is requested under par. (a) shall be liable for reasonable and necessary costs and, notwithstanding s. 814.04 (1), reasonable attorney fees incurred in enforcing the requester's right to the duplicates under par. (a).

SB665,19 Section 19. 102.13 (2) (c) of the statutes is amended to read:

SB665,14,13 102.13 (2) (c) Except as provided in this paragraph, if an injured employee has a period of temporary disability that exceeds 3 weeks or a permanent disability, if the injured employee has undergone surgery to treat his or her injury, other than surgery to correct a hernia, or if the injured employee sustained an eye injury requiring medical treatment on 3 or more occasions off the employer's premises, the department may by rule require the insurer or self-insured employer to submit to the department a final report of the employee's treating practitioner. The department may not require an insurer or self-insured employer to submit to the department a final report of an employee's treating practitioner when the insurer or self-insured employer denies the employee's claim for compensation in its entirety and the employee does not contest that denial. A treating practitioner shall complete a final report on a timely basis and may charge a reasonable fee for the completion of the final report, not to exceed $100, but may not require prepayment of that fee. An Subject to s. 102.16 (2) (i), an insurer or self-insured employer that disputes the reasonableness of a fee charged for the completion of a treatment practitioner's final report may submit that dispute to the department for resolution under s. 102.16 (2).

SB665,20 Section 20. 102.14 (title) of the statutes is amended to read:

SB665,14,16 102.14 (title) Jurisdiction , powers, and duties of department and division; advisory committee council.

SB665,21 Section 21. 102.14 of the statutes is renumbered 102.14 (1m).

SB665,22 Section 22. 102.14 (2m) of the statutes is created to read:

SB665,15,2 102.14 (2m) The department of workforce development shall coordinate with the department of safety and professional services and credentialing boards, as defined in s. 440.01 (2) (bm), and shall educate injured employees about treatments and about devices approved by the federal food and drug administration for chronic pain related to injuries compensable under this chapter that, in lieu of or in combination with medication, may reasonably be required to cure or provide relief from injured employees' pain and about the fact that such treatments and devices may constitute covered medical expenses under this chapter.