SB194: Bill Text

LRB-2497/1

GMM:cmh:hmh

1999 - 2000 LEGISLATURE

1999 Senate BILL 194

June 15, 1999 - Introduced by Senators George, Breske and Burke, cosponsored by Representatives Cullen, Colon, Musser, Staskunas, Kreuser and Krug. Referred to Committee on Labor.

SB194,1,5 An Act to renumber and amend 102.29 (1) of the statutes; relating to: the formula for distributing the proceeds of a 3rd-party claim between an employe, or the employe's personal representative or other person entitled bring action, and the employer, the employer's worker's compensation insurer or the department of workforce development.

Analysis by the Legislative Reference Bureau

Under current law, subject to certain exceptions, worker's compensation is the exclusive remedy that an employe who sustains a work-related injury has against the employe's employer and the employer's worker's compensation insurer. Current law, however, provides that the making of a claim for worker's compensation for the injury or death of an employe does not affect the right of the employe, or the employe's personal representative or other person entitled to bring action, to make a claim or bring an action in tort against any party other than the employer or insurer (third party) for damages for the employe's injury or death. Current law also provides that if an employer or insurer has paid or is obligated to pay worker's compensation or if the department of workforce development (DWD) has paid or is obligated to pay an injured employe or a deceased employe's dependents from the uninsured employers fund, the employer, insurer or DWD may make a claim or bring an action in tort against a third party for damages for the employe's injury or death. Currently, the proceeds of a third-party claim are divided as follows:

1. After deducting the reasonable cost of collection, one-third of the remainder is paid to the injured employe or the employe's personal representative or other person entitled to bring action.

2. Out of the balance remaining, the employer, insurer or uninsured employers fund is reimbursed for all payments that it has made or that it may be obligated to make in the future.

3. Any balance remaining is paid to the injured employe or the employe's personal representative or other person entitled to bring action.

This bill changes the formula for dividing the proceeds of a third-party claim. Under the bill, an employer, an insurer or the uninsured employers fund is reimbursed only for payments that it has made and not for payments that it may be obligated to make in the future. Instead, the bill provides that the employer, insurer or uninsured employers fund shall be liable for any future payments for the employe's injury or death only to the extent that the amount of any future benefits for that injury or death to which the employe, or the employe's personal representative or other person entitled to bring action, becomes entitled exceeds the amount of the balance described in paragraph 3., above.

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:

SB194, s. 1 Section 1. 102.29 (1) of the statutes is renumbered 102.29 (1) (a) and amended to read:

SB194,3,5 102.29 (1) (a) The making of a claim for compensation against an employer or compensation insurer for the injury or death of an employe shall does not affect the right of the employe, the employe's personal representative, or other person entitled to bring action, to make a claim or maintain an action in tort against any other 3rd party for such that injury or death , hereinafter referred to as a 3rd party; nor shall does the making of a claim by any such person against a 3rd party for damages by reason of an injury to which ss. 102.03 to 102.64 are applicable, or the adjustment of any such claim, affect the right of the injured employe or the employe's dependents to recover compensation. The An employer or compensation insurer who shall have that has paid or is obligated to pay a lawful claim under this chapter shall have the same right to make a claim or maintain an action in tort against any other 3rd party for such the employe's injury or death. If the department pays or is obligated to pay a claim under s. 102.81 (1), the department shall also have the right to make a claim or maintain an action in tort against any other 3rd party for the employe's injury or death. However, each

SB194,3,17 (b) Any party that makes a claim or institutes an action under par. (a) shall give to the other all other interested parties reasonable notice and opportunity to join in the making of such the claim or in the instituting of an the action and to be represented by counsel. If a party that is entitled to receive notice cannot be found, the department shall become the agent of such that party for the giving of a notice as required in this subsection paragraph and the notice, when given to the department, shall include an affidavit setting forth the such facts as show reasonable diligence in attempting to provide notice to that party, including the steps taken to locate such that party. Each party shall have an equal voice in the prosecution of said the claim, and any disputes arising shall be passed upon by the court before whom the case is pending, and or, if no action is pending, then by a court of record or by the department.

SB194,3,21 (c) If notice is given as provided in this subsection par. (b), the liability of the tort-feasor shall be determined as to all parties having a right to make a claim, and irrespective of whether or not all parties join in prosecuting such the claim, the proceeds of such the claim shall be divided as follows:

SB194,3,24 1. After deducting the reasonable cost of collection, one-third of the remainder shall in any event be paid to the injured employe or the employe's personal representative or other person entitled to bring action.

SB194,4,10 2. Out of the balance remaining, the employer, the insurance carrier or, if applicable, the uninsured employers fund shall be reimbursed for all payments made by it, or which it may be obligated to make in the future, under this chapter, except that it an employer or insurer carrier shall not be reimbursed for any payments of increased compensation made or to be made under s. 102.18 (1) (bp), 102.22, 102.35 (3), 102.57 or 102.60. An employer, an insurance carrier or the uninsured employers fund shall not be reimbursed for any payment under this chapter that it may be obligated to make in the future for the employe's injury or death. Instead, the employer, insurer or uninsured employers fund shall be liable for any future payments for the employe's injury or death only to the extent provided in subd. 3.

SB194,4,19 3. Any balance remaining shall be paid to the employe or the employe's personal representative or other person entitled to bring action. If the employe or the employe's personal representative or other person entitled to bring action becomes entitled to receive any benefits under this chapter, other than increased compensation under s. 102.18 (1) (bp), 102.22, 102.35 (3), 102.57 or 102.60, in the future for the employe's injury or death, the employe, personal representative or other person entitled to bring action shall be entitled to receive payment of those future benefits only to the extent that the amount of those future benefits exceeds the amount of the balance paid under this subdivision.

SB194,5,3 (d) If both the employe or the employe's personal representative or other person entitled to bring action, and the employer, compensation insurer or department, join in the pressing of said a 3rd-party claim and are represented by counsel, the attorneys' attorney fees allowed as a part of the costs of collection shall be, unless otherwise agreed upon, divided between such the attorneys for the parties as directed by the court or by the department. A settlement of any 3rd party claim shall be void unless said the settlement and the distribution of the proceeds thereof of the settlement is approved by the court before whom the action is pending and, or if no action is pending, then by a court of record or by the department.

SB194, s. 2 Section 2. Initial applicability.

SB194,5,8 (1) This act first applies to a distribution of proceeds under section 102.29 (1) of the statutes, as affected by this act, determined by a court, or approved by a court or by the department of workforce development, on the effective date of this subsection.

SB194,5,9 (End)