1995 Wisconsin Act 117

117,18 Section 18 . 102.17 (2) of the statutes is amended to read:

102.17 (2) If the department shall have reason to believe that the payment of compensation has not been made, it may on its own motion give notice to the parties, in the manner provided for the service of an application, of a time and place when a hearing will be had held for the purpose of determining the facts. Such notice shall contain a statement of the matter to be considered. Thereafter all other provisions governing proceedings on application shall attach insofar as the same may be applicable. When the department schedules a hearing on its own motion, the department does not become a party in interest and is not required to appear at the hearing.

117,19 Section 19 . 102.17 (7) (a) of the statutes is amended to read:

102.17 (7) (a) Except as provided in par. (b), in a claim under s. 102.44 (2) and (3), testimony or verified certified reports of expert witnesses on loss of earning capacity may be received in evidence and considered with all other evidence to decide on an employe's actual loss of earning capacity.

117,20 Section 20 . 102.17 (7) (b) of the statutes is amended to read:

102.17 (7) (b) Except as provided in par. (c), the department shall exclude from evidence testimony or verified certified reports from expert witnesses under par. (a) offered by the party that raises the issue of loss of earning capacity if that party failed to notify the department and the other parties of interest, at least 60 days before the date of the hearing, of the party's intent to provide the testimony or reports and of the names of the expert witnesses involved. Except as provided in par. (c), the department shall exclude from evidence testimony or verified certified reports from expert witnesses under par. (a) offered by a party of interest in response to the party that raises the issue of loss of earning capacity if the responding party failed to notify the department and the other parties of interest, at least 45 days before the date of the hearing, of the party's intent to provide the testimony or reports and of the names of the expert witnesses involved.

117,21 Section 21 . 102.17 (7) (c) of the statutes is amended to read:

102.17 (7) (c) Notwithstanding the notice deadlines provided in par. (b), the department may receive in evidence testimony or verified certified reports from expert witnesses under par. (a) when the applicable notice deadline under par. (b) is not met if good cause is shown for the delay in providing the notice required under par. (b) and if no party is prejudiced by the delay.

117,22 Section 22 . 102.28 (2) (a) of the statutes is amended to read:

102.28 (2) (a) Duty to insure payment for compensation. Unless exempted by the department under par. (b) or sub. (3), every employer, as described in s. 102.04 (1), shall insure payment for that compensation in an insurer authorized to do business in this state. A joint venture may elect to be an employer under this chapter and obtain insurance for payment of compensation. If a joint venture that is subject to this chapter only because the joint venture elected to be an employer under this chapter is dissolved and cancels or terminates its contract for the insurance of compensation under this chapter, that joint venture is deemed to have effected withdrawal, which shall be effective on the day after the contract is canceled or terminated.

117,23 Section 23 . 102.28 (2) (b) of the statutes is amended to read:

102.28 (2) (b) Exemption from duty to insure. The department may grant a written order of exemption to an employer who shows its financial ability to pay the amount of compensation, agrees to report faithfully all compensable injuries and agrees to comply with this chapter and the rules of the department. The department may condition the granting of an exemption upon the employer's furnishing of satisfactory security to guarantee payment of all claims under compensation. The department may require that bonds or other personal guarantees be enforceable against sureties in the same manner as an award may be enforced. The department may from time to time require proof of financial ability of the employer to pay compensation. Any exemption shall be void if the application for it contains a financial statement which is false in any material respect. An employer who files an application containing a false financial statement remains subject to par. (a). The department may promulgate rules establishing an amount to be charged as to an initial application fee applicant for exemption under this paragraph and an annual amount to be charged as a renewal application fee to employers applying for exemption to employers that have been exempted under this paragraph.

117,24 Section 24 . 102.28 (3) of the statutes is created to read:

102.28 (3) Provision of alternative benefits. (a) An employer may file with the department an application for exemption from the duty to pay compensation under this chapter with respect to any employe who signs the waiver described in subd. 1. and the affidavit described in subd. 2. if an authorized representative of the religious sect to which the employe belongs signs the affidavit specified in subd. 3. and signs the agreement and provides the proof of financial ability described in subd. 4. An application for exemption under this paragraph shall include all of the following:

1. A written waiver by the employe or, if the employe is a minor, by the employe and his or her parent or guardian of all compensation under this chapter other than the alternative benefits provided under par. (c).

2. An affidavit by the employe or, if the employe is a minor, by the employe and his or her parent or guardian stating that the employe is a member of a recognized religious sect and that, as a result of the employe's adherence to the established tenets or teachings of the religious sect, the employe is conscientiously opposed to accepting the benefits of any public or private insurance that makes payments in the event of death, disability, old age or retirement, or that makes payments toward the cost of or provides medical care, including any benefits provided under the federal social security act, 42 USC 301 to 1397f.

3. An affidavit by an authorized representative of the religious sect to which the employe belongs stating that the religious sect has a long-standing history of providing its members who become dependent on the support of the religious sect as a result of work-related injuries, and the dependents of those members, with a standard of living and medical treatment that are reasonable when compared to the general standard of living and medical treatment for members of the religious sect.

4. An agreement signed by an authorized representative of the religious sect to which the employe belongs to provide the financial and medical assistance described in subd. 3. to the employe and to the employe's dependents if the employe sustains an injury which, but for the waiver under subd. 1., the employer would be liable for under s. 102.03, and proof of the financial ability of the religious sect to provide that financial and medical assistance which the religious sect may establish by maintaining, in an amount determined by the department, a surety bond issued by a company authorized to do business in this state, an irrevocable letter of credit from a financial institution, as defined in s. 705.01 (3), or some other financial commitment approved by the department.

(b) The department shall approve an application under par. (a) if the department determines that all of the following conditions are satisfied:

1. The employe has waived all compensation under this chapter other than the alternative benefits provided under par. (c).

2. The employe is a member of a religious sect whose established tenets or teachings oppose accepting the benefits of insurance as described in par. (a) 2. and that, as a result of adherence to those tenets or teachings, the employe conscientiously opposes accepting those benefits.

3. The religious sect to which the employe belongs has a long-established history of providing its members who become dependent on the religious sect as a result of work-related injuries, and the dependents of those members, with a standard of living and medical treatment that are reasonable when compared to the general standard of living and medical treatment for members of the religious sect. In determining whether the religious sect has a long-standing history of providing the financial and medical assistance described in this subdivision, the department shall presume that a 25-year history of providing that financial and medical assistance is long-standing for purposes of this subdivision.

4. The religious sect to which the employe belongs has agreed to provide the financial and medical assistance described in subd. 3. to the employe and to the dependents of the employe if the employe sustains an injury that, but for the waiver under par. (a) 1., the employer would be liable for under s. 102.03 and that the religious sect has the financial ability to provide that financial and medical assistance.

(c) An employe who has signed a waiver under par. (a) 1. and an affidavit under par. (a) 2., who sustains an injury that, but for that waiver, the employer would be liable for under s. 102.03, who at the time of the injury was a member of a religious sect whose authorized representative has filed an affidavit under par. (a) 3. and an agreement and proof of financial responsibility under par. (a) 4. and who as a result of the injury becomes dependent on the religious sect for financial and medical assistance, or the employe's dependent, may request a hearing under s. 102.17 (1) to determine if the religious sect has provided the employe and his or her dependents with a standard of living and medical treatment that are reasonable when compared to the general standard of living and medical treatment for members of the religious sect. If, after hearing, the department determines that the religious sect has not provided that standard of living or medical treatment, or both, the department may order the religious sect to provide alternative benefits to that employe or his or her dependent, or both, in an amount that is reasonable under the circumstances, but not in excess of the benefits that the employe or dependent could have received under this chapter but for the waiver under par. (a) 1. If the religious sect does not provide the alternative benefits as ordered by the department, the department may use the financial commitment under par. (a) 4. to pay the alternative benefits ordered, including any penalties that may be appropriate.

(d) The department shall provide a form for the application for exemption of an employer under par. (a) (intro.), the waiver and affidavit of an employe under par. (a) 1. and 2., the affidavit of a religious sect under par. (a) 3. and the agreement and proof of financial responsibility of a religious sect under par. (a) 4. A properly completed form is prima facie evidence of satisfaction of the conditions under par. (b) as to the matter contained in the form.

117,25 Section 25 . 102.29 (8) of the statutes is created to read:

102.29 (8) No student of a public school, as described in s. 115.01 (1), or a private school, as defined in s. 115.001 (3r), who is named under s. 102.077 as an employe of the school district or private school for purposes of this chapter and who makes a claim for compensation under this chapter may make a claim or maintain an action in tort against the employer that provided the work training or work experience from which the claim arose. This subsection does not apply to injuries occurring after December 31, 1997.

117,26 Section 26 . 102.29 (9) of the statutes is created to read:

102.29 (9) No participant in a work experience component of a job opportunities and basic skills program who, under s. 49.193 (6) (a), is considered to be an employe of the agency administering that program, or who, under s. 49.193 (6) (a), is provided worker's compensation coverage by the person administering the work experience component, and who makes a claim for compensation under this chapter may make a claim or maintain an action in tort against the employer who provided the work experience from which the claim arose. This subsection does not apply to injuries occurring after December 31, 1997.

117,27 Section 27 . 102.33 (2) (b) (intro.) of the statutes is amended to read:

102.33 (2) (b) (intro.) Notwithstanding par. (a), a record maintained by the department that reveals the identity of an employe who claims worker's compensation benefits, the nature of the employe's claimed injury, the employe's past or present medical condition, the extent of the employe's disability, the amount, type or duration of benefits paid to the employe or any financial information provided to the department by a self-insured employer or by an applicant for exemption under s. 102.28 (2) (b) is confidential and not open to public inspection or copying under s. 19.35 (1). The department may deny a request made under s. 19.35 (1) or, subject to s. 102.17 (2m) and (2s), refuse to honor a subpoena issued by an attorney of record in a civil or criminal action or special proceeding to inspect and copy a record that is confidential under this paragraph, unless one of the following applies:

117,28 Section 28 . 102.33 (2) (b) 2. of the statutes is amended to read:

102.33 (2) (b) 2. The record that is requested contains confidential information concerning a worker's compensation claim and the requester is an insurance carrier or employer that is a party to the claim any worker's compensation claim involving the same employe or an attorney or authorized agent of that insurance carrier or employer, except that the department is not required to do a random search of its records and may require the requester to provide the approximate date of the injury and any other relevant information that would assist the department in finding the record requested. An attorney or authorized agent of an insurance carrier or employer that is a party to an employe's worker's compensation claim shall provide a written authorization for inspection and copying from the insurance carrier or employer if requested by the department.

117,29 Section 29 . 102.33 (2) (b) 4. of the statutes is created to read:

102.33 (2) (b) 4. A court of competent jurisdiction in this state orders the department to release the record.

117,30 Section 30 . 102.44 (1) (a) of the statutes is amended to read:

102.44 (1) (a) If such employe is receiving the maximum weekly benefits in effect at the time of the injury, the supplemental benefit shall be an amount which, when added to the regular benefit established for the case, shall equal $125 $150.

117,31 Section 31 . 102.44 (1) (b) of the statutes is amended to read:

102.44 (1) (b) If such employe is receiving a weekly benefit which is less than the maximum benefit which was in effect on the date of the injury, the supplemental benefit shall be an amount sufficient to bring the total weekly benefits to the same proportion of $125 $150 as the employe's weekly benefit bears to the maximum in effect on the date of injury.

117,32 Section 32 . 102.50 of the statutes is amended to read:

102.50 Burial expenses. In all cases where death of an employe proximately results from the injury the employer or insurer shall pay the reasonable expense for burial, not exceeding $4,000 $6,000.

117,33 Section 33 . 102.65 (3) (a) of the statutes is repealed.

117,34 Section 34 . 102.65 (3) (b) of the statutes is renumbered 102.65 (3) and amended to read:

102.65 (3) If the balance in the fund on any June 30 exceeds 3 times the amount paid out of such fund during the fiscal year ending on such date, the department shall, by order, direct an appropriate proportional reduction of the payments into such fund under ss. 102.47, 102.49 and 102.59 so that the balance in the fund will remain at 3 times the payments made in the preceding fiscal year. This paragraph applies after June 30, 1992.

117,35 Section 35 . 102.75 (4) of the statutes is amended to read:

102.75 (4) From the appropriation under s. 20.445 (1) (ha), the department shall allocate the amounts that it collects in application fees from employers applying for exemption under s. 102.28 (2) and the annual amount that it collects from employers that have been exempted under s. 102.28 (2) to fund the activities of the department under s. 102.28 (2) (b) and (c).

117,35m Section 35m. 102.80 (1) (c) of the statutes is repealed.

117,35p Section 35p. 102.80 (2) of the statutes is repealed.

117,36 Section 36 . 102.80 (3) (a) of the statutes is amended to read:

102.80 (3) (a) If the cash balance in the uninsured employers fund equals or exceeds $4,000,000 before July 1, 1996, and if, during the 6-month period immediately preceding the date on which the fund first equals or exceeds that cash balance or during any 6-month period after that date, the amounts specified in s. 102.81 (1) collected by the department equal or exceed 55% of the amounts assessed by the department under s. 102.82 during that 6-month period, the secretary shall consult the council on worker's compensation within 45 days after those goals are achieved that cash balance equals or exceeds $4,000,000. The secretary may file with the secretary of administration, within 15 days after consulting the council on worker's compensation, a certificate attesting that the goals specified in this paragraph have been achieved cash balance in the uninsured employers fund equals or exceeds $4,000,000.

117,37 Section 37 . 102.80 (3) (ag) of the statutes is created to read:

102.80 (3) (ag) The secretary shall monitor the cash balance in, and incurred losses to, the uninsured employers fund using generally accepted actuarial principles. If the secretary determines that the expected ultimate losses to the uninsured employers fund on known claims and on incurred, but not reported, claims exceed 85% of the cash balance in the uninsured employers fund, the secretary shall consult with the council on worker's compensation. If the secretary, after consulting with the council on worker's compensation, determines that there is a reasonable likelihood that the cash balance in the uninsured employers fund may become inadequate to fund all claims under s. 102.81 (1), the secretary shall file with the secretary of administration a certificate attesting that the cash balance in the uninsured employer's fund is likely to become inadequate to fund all claims under s. 102.81 (1) and specifying a date after which no new claims under s. 102.81 (1) will be paid.

117,38 Section 38 . 102.80 (3) (am) of the statutes is amended to read:

102.80 (3) (am) If the secretary files the certificate under par. (a) before August 15, 1996, the department may expend the moneys in the uninsured employers fund to make payments under s. 102.81 (1) to employes of uninsured employers and to administer ss. 102.28 (4) and 102.80 to 102.89, beginning on the first day of the first July after the secretary files that certificate, to make payments under s. 102.81 (1) to employes of uninsured employers and to obtain reinsurance under s. 102.81 (2).

117,39 Section 39 . 102.80 (3) (b) of the statutes is amended to read:

102.80 (3) (b) If the secretary does not file the certificate under par. (a) before August 15, 1996, the department may expend the moneys in the uninsured employers fund only to administer ss. 102.28 (4) and 102.80 to 102.89.

117,40 Section 40 . 102.80 (3) (b) of the statutes, as affected by 1995 Wisconsin Act .... (this act), is repealed and recreated to read:

102.80 (3) (b) If the secretary does not file the certificate under par. (a), the department may not expend the moneys in the uninsured employers fund.

117,41 Section 41 . 102.80 (3) (c) of the statutes is created to read:

102.80 (3) (c) If, after filing the certificate under par. (a), the secretary files the certificate under par. (ag), the department may expend the moneys in the uninsured employers fund only to make payments under s. 102.81 (1) to employes of uninsured employers on claims made before the date specified in that certificate and to obtain reinsurance under s. 102.81 (2) for the payment of those claims.

117,42 Section 42 . 102.80 (4) of the statutes is created to read:

102.80 (4) (a) If an uninsured employer who owes to the department any amount under s. 102.82 or 102.85 (4) transfers his or her business assets or activities, the transferee is liable for the amounts owed by the uninsured employer under s. 102.82 or 102.85 (4) if the department determines that all of the following conditions are satisfied:

1. At the time of the transfer, the uninsured employer and the transferee are owned or controlled in whole or in substantial part, either directly or indirectly, by the same interest or interests. Without limitation by reason of enumeration, it is presumed unless shown to the contrary that the “same interest or interests" includes the spouse, child or parent of the individual who owned or controlled the business, or any combination of more than one of them.

2. The transferee has continued or resumed the business of the uninsured employer, either in the same establishment or elsewhere; or the transferee has employed substantially the same employes as those the uninsured employer had employed in connection with the business assets or activities transferred.

(b) The department may collect from a transferee described in par. (a) an amount owed under s. 102.82 or 102.85 (4) using the procedures specified in ss. 102.83, 102.835 and 102.87 and the preference specified in s. 102.84 in the same manner as the department may collect from an uninsured employer.

117,43 Section 43 . 102.81 (1) (a) of the statutes is amended to read:

102.81 (1) (a) If an employe of an uninsured employer, other than an employe who is eligible to receive alternative benefits under s. 102.28 (3), suffers an injury for which the uninsured employer is liable under s. 102.03, the department or the department's reinsurer shall pay to the injured employe or the employe's dependents an amount equal to the compensation owed them by the uninsured employer under this chapter except penalties and interest due under ss. 102.16 (3), 102.18 (1) (b) and (bp), 102.22 (1), 102.35 (3), 102.57 and 102.60.

117,44 Section 44 . 102.81 (1) (b) of the statutes is amended to read:

102.81 (1) (b) The department shall make the payments required under par. (a) from the uninsured employers fund, except that if the department has obtained reinsurance under sub. (2) and is unable to make those payments from the uninsured employers fund, the department's reinsurer shall make those payments according to the terms of the contract of reinsurance.

117,45 Section 45 . 102.81 (2) of the statutes is amended to read:

102.81 (2) The department may retain an insurance carrier or insurance service organization to process, investigate and pay claims under this section and may obtain excess or stop-loss reinsurance with an insurance carrier authorized to do business in this state in an amount that the secretary determines is necessary for the sound operation of the uninsured employers fund. In cases involving disputed claims, the department may retain an attorney to represent the interests of the uninsured employers fund and to make appearances on behalf of the uninsured employers fund in proceedings under ss. 102.16 to 102.29. Section 20.918 and subch. IV of ch. 16 do not apply to an attorney hired under this subsection. The charges for the services retained under this subsection shall be paid from the appropriation under s. 20.445 (1) (sp). The cost of any reinsurance obtained under this subsection shall be paid from the appropriation under s. 20.445 (1) (sm).

117,46 Section 46 . 102.81 (2) of the statutes, as affected by 1995 Wisconsin Act .... (this act), is repealed and recreated to read:

102.81 (2) The department may retain an insurance carrier or insurance service organization to process, investigate and pay claims under this section and may obtain excess or stop-loss reinsurance with an insurance carrier authorized to do business in this state in an amount that the secretary determines is necessary for the sound operation of the uninsured employers fund. In cases involving disputed claims, the department may retain an attorney to represent the interests of the uninsured employers fund and to make appearances on behalf of the uninsured employers fund in proceedings under ss. 102.16 to 102.29. Section 20.918 and subch. IV of ch. 16 do not apply to an attorney hired under this subsection. The charges for the services retained under this subsection shall be paid from the appropriation under s. 20.445 (1) (hp). The cost of any reinsurance obtained under this subsection shall be paid from the appropriation under s. 20.445 (1) (sm).

117,47 Section 47 . 102.81 (7) of the statutes is amended to read:

102.81 (7) This section first applies to injuries occurring on the first day of the calendar quarter first July beginning after the day that the secretary files a certificate under s. 102.80 (3) (a), except that if the secretary files a certificate under s. 102.80 (3) (ag) this section does not apply to claims filed on or after the date specified in that certificate.

117,48 Section 48 . 102.83 (1) (a) of the statutes is amended to read:

102.83 (1) (a) If an uninsured employer fails to pay to the department any amount owed to the department under s. 102.82 and no appeal or other proceeding for review is pending and the time for taking an appeal has expired, the department or any authorized representative may issue a warrant directed to the clerk of circuit court for any county of the state. The clerk shall enter in the judgment docket the name of the uninsured employer mentioned in the warrant and the amount of the payments, interest, costs and other fees for which the warrant is issued and the date when the warrant is filed. A warrant so docketed shall be considered in all respects as a final judgment constituting a perfected lien on the uninsured employer's right, title and interest in all of the uninsured employer's real and personal property located in the county where the warrant is docketed. After the warrant is docketed, the department or any authorized representative may file an execution with the clerk of circuit court for filing by the clerk with the sheriff of any county where real or personal property of the uninsured employer is found, commanding the sheriff to levy upon and sell sufficient real and personal property of the uninsured employer to pay the amount stated in the warrant in the same manner as upon an execution against property issued upon the judgment of a court of record, and to return the warrant to the department and pay to it the money collected by virtue of the warrant within 60 days after receipt of the warrant.

117,49 Section 49 . 102.835 (1) (b) of the statutes is repealed.

117,50 Section 50. 102.835 (1) (c) of the statutes is repealed.

117,51 Section 51 . 102.835 (12) of the statutes is amended to read:

102.835 (12) Notice before levy. If no appeal or other proceeding for review permitted by law is pending and the time for taking an appeal has expired, the department shall make a demand to the uninsured employer for payment of the debt which is subject to levy and give notice that the department may pursue legal action for collection of the debt against the uninsured employer. The department shall make the demand for payment and give the notice at least 10 days prior to the levy, personally or by any type of mail service which requires a signature of acceptance, at the address of the uninsured employer as it appears on the records of the department. The demand for payment and notice shall include a statement of the amount of the debt, including costs and fees, and the name of the uninsured employer who is liable for the debt. The uninsured employer's failure to accept or receive the notice does not prevent the department from making the levy. Notice prior to levy is not required for a subsequent levy on any debt of the same uninsured employer within one year after the date of service of the original levy.

117,52 Section 52 . 102.835 (16) of the statutes is repealed.

117,53 Section 53 . 102.835 (17) of the statutes is repealed.

117,54 Section 54 . 626.125 of the statutes is created to read:

626.125 Qualified loss management program. (1) Elements of program. The bureau may file with the commissioner under s. 626.13 a qualified loss management program that contains all of the following elements:

(a) 1. Subject to subd. 2., the bureau shall restrict eligibility for participation in the qualified loss management program to an employer that has obtained any insurance specified in s. 626.03, that is eligible for an experience rating under s. 626.12 (1), that is eligible for coverage under a mandatory risk-sharing plan under s. 619.01 (1) and that, as of July 1, 1995, has a rate of not less than $10 on the risk classification that generates the most manual premium for that employer.

2. Notwithstanding subd. 1., the bureau may broaden eligibility for participation in the qualified loss management program to an entire specific classification of employers that have obtained any insurance specified in s. 626.03 and that are ineligible for coverage under a mandatory risk-sharing plan under s. 619.01 (1) if the bureau determines that permitting that entire specific classification of employers to participate in the qualified loss management program is necessary to support the effective delivery of safety training to a high-risk industry.

(b) The bureau shall grant a prospective premium credit to an eligible employer that subscribes to a loss management action plan prepared by a loss management firm approved under sub. (2) that specifies the activities that the eligible employer will perform to reduce its loss experience.

(c) The bureau shall base the initial prospective premium credit granted to an eligible employer on the qualifications of the loss management firm that prepared the loss management action plan subscribed to by the eligible employer and on the improvement in the loss experience of the eligible employer anticipated by the bureau, in accordance with generally accepted actuarial principles, as a result of the loss management action plan.