Date of enactment:
December 18, 1995
1995 Assembly Bill 607 Date of publication*:
January 3, 1996
Revised date of publication*:
December 27, 1995
1995 WISCONSIN ACT 117
An Act to repeal 20.445 (1) (b), 102.65 (3) (a), 102.80 (1) (c), 102.80 (2), 102.835 (1) (b), 102.835 (1) (c), 102.835 (16) and 102.835 (17); to renumber and amend 20.445 (1) (sp) and 102.65 (3) (b); to amend 20.445 (1) (ha), 20.445 (1) (sm), 102.06, 102.07 (1) (a), 102.07 (1) (b), 102.11 (1) (intro.), 102.16 (2) (d), 102.16 (5), 102.17 (1) (d), 102.17 (2), 102.17 (7) (a), 102.17 (7) (b), 102.17 (7) (c), 102.28 (2) (a), 102.28 (2) (b), 102.33 (2) (b) (intro.), 102.33 (2) (b) 2., 102.44 (1) (a), 102.44 (1) (b), 102.50, 102.75 (4), 102.80 (3) (a), 102.80 (3) (am), 102.80 (3) (b), 102.81 (1) (a), 102.81 (1) (b), 102.81 (2), 102.81 (7), 102.83 (1) (a) and 102.835 (12); to repeal and recreate 20.445 (1) (ha), 102.80 (3) (b) and 102.81 (2); and to create 102.01 (1) (em), 102.07 (4m), 102.07 (5) (d), 102.07 (11m), 102.07 (12m), 102.077, 102.28 (3), 102.29 (8), 102.29 (9), 102.33 (2) (b) 4., 102.80 (3) (ag), 102.80 (3) (c), 102.80 (4) and 626.125 of the statutes; relating to: various changes to the worker's compensation law, granting rule-making authority and making appropriations.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
117,1m
Section 1m. 20.445 (1) (b) of the statutes is repealed.
117,1r
Section 1r. 20.445 (1) (ha) of the statutes is amended to read:
20.445 (1) (ha) Worker's compensation operations. The amounts in the schedule for the administration of the worker's compensation program by the department. All moneys received under s. ss. 102.28 (2) (b) and 102.75 for the department's activities shall be credited to this appropriation. 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.
117,2
Section 2
. 20.445 (1) (ha) of the statutes, as affected by 1995 Wisconsin Act .... (this act), is repealed and recreated to read:
20.445 (1) (ha) Worker's compensation operations. The amounts in the schedule for the administration of the worker's compensation program by the department. All moneys received under ss. 102.28 (2) (b) and 102.75 for the department's activities and not appropriated under par. (hp) shall be credited to this appropriation. 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.
117,3
Section 3
. 20.445 (1) (sm) of the statutes is amended to read:
20.445 (1) (sm) Uninsured employers fund; payments. From the uninsured employers fund, a sum sufficient to make 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 calendar quarter first July beginning after the day that the secretary of industry, labor and human relations files the certificate under s. 102.80 (3) (a).
117,4
Section 4
. 20.445 (1) (sp) of the statutes is renumbered 20.445 (1) (hp) and amended to read:
20.445 (1) (hp) (title) Uninsured employers fund program; administration. From the uninsured employers fund moneys received under s. 102.75, the amounts in the schedule for the administration of ss. 102.28 (4) and 102.80 to 102.89.
117,5
Section 5
. 102.01 (1) (em) of the statutes is created to read:
102.01 (1) (em) “Religious sect" means a religious body of persons, or a division of a religious body of persons, who unite in holding certain special doctrines or opinions concerning religion that distinguish those persons from others holding the same general religious beliefs.
117,6
Section 6
. 102.06 of the statutes is amended to read:
102.06 Joint liability of employer and contractor. An employer shall be liable for compensation to an employe of a contractor or subcontractor under the employer who is not subject to this chapter, or who has not complied with the conditions of s. 102.28 (2) in any case where such employer would have been liable for compensation if such employe had been working directly for the employer, including also work in the erection, alteration, repair or demolition of improvements or of fixtures upon premises of such employer which are used or to be used in the operations of such employer. The contractor or subcontractor, if subject to this chapter, shall also be liable for such compensation, but the employe shall not recover compensation for the same injury from more than one party. The employer who becomes liable for and pays such compensation may recover the same from such contractor, subcontractor or other employer for whom the employe was working at the time of the injury if such contractor, subcontractor or other employer was an employer as defined in s. 102.04. This section does not apply to injuries occurring on or after the first day of the calendar quarter first July beginning after the day that the secretary files the certificate under s. 102.80 (3) (a), except that if the secretary files the certificate under s. 102.80 (3) (ag) this section does apply to claims for compensation filed on or after the date specified in that certificate.
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Section 7
. 102.07 (1) (a) of the statutes is amended to read:
102.07 (1) (a) Every person, including all officials, in the service of the state, or of any municipality therein whether elected or under any appointment, or contract of hire, express or implied, and whether a resident or employed or injured within or without the state. The state and any municipality may require a bond from a contractor to protect the state or municipality against compensation to employes of such contractor or employes of a subcontractor under the contractor. This paragraph does not apply beginning on the first day of the calendar quarter first July beginning after the day that the secretary files the certificate under s. 102.80 (3) (a), except that if the secretary files the certificate under s. 102.80 (3) (ag) this paragraph does apply to claims for compensation filed on or after the date specified in that certificate.
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Section 8
. 102.07 (1) (b) of the statutes is amended to read:
102.07 (1) (b) Every person, including all officials, in the service of the state, or of any municipality therein whether elected or under any appointment, or contract of hire, express or implied, and whether a resident or employed or injured within or without the state. This paragraph first applies on the first day of the calendar quarter first July beginning after the day that the secretary files the certificate under s. 102.80 (3) (a), except that if the secretary files the certificate under s. 102.80 (3) (ag) this paragraph does apply to claims for compensation filed on or after the date specified in that certificate.
117,9
Section 9
. 102.07 (4m) of the statutes is created to read:
102.07 (4m) For the purpose of determining the number of employes to be counted under s. 102.04 (1) (b), but for no other purpose, a member of a religious sect is not considered to be an employe if the conditions specified in s. 102.28 (3) (b) have been satisfied with respect to that member.
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Section 10
. 102.07 (5) (d) of the statutes is created to read:
102.07 (5) (d) A member of a religious sect is not considered to be an employe of a farmer if the conditions specified in s. 102.28 (3) (b) have been satisfied with respect to that member.
117,11
Section 11
. 102.07 (11m) of the statutes is created to read:
102.07 (11m) Subject to sub. (11), a volunteer for a nonprofit organization described in section 501 (c) of the internal revenue code, as defined in s. 71.01 (6), that is exempt or eligible for exemption from federal income taxation under section 501 (a) of the internal revenue code who receives from that nonprofit organization nominal payments of money or other things of value totaling not more than $10 per week is not considered to be an employe of that nonprofit organization for purposes of this chapter.
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Section 12
. 102.07 (12m) of the statutes is created to read:
102.07 (12m) A student of a public school, as described in s. 115.01 (1), or a private school, as defined in s. 115.001 (3r), while he or she is engaged in performing services as part of a school work training, work experience or work study program, and who is not on the payroll of an employer that is providing the work training or work experience or who is not otherwise receiving compensation on which a worker's compensation carrier could assess premiums on that employer, is an employe of a school district or private school that elects under s. 102.077 to name the student as its employe. This subsection does not apply after December 31, 1997.
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Section 13
. 102.077 of the statutes is created to read:
102.077 Election by school district or private school. (1) A school district or a private school, as defined in s. 115.001 (3r), may elect to name as its employe for purposes of this chapter a student described in s. 102.07 (12m) by an endorsement on its policy of worker's compensation insurance or, if the school district or private school is exempt from the duty to insure under s. 102.28 (2), by filing a declaration with the department in the manner provided in s. 102.31 (2) (a) naming the student as an employe of the school district or private school for purposes of this chapter. A declaration under this subsection shall list the name of the student to be covered under this chapter, the name and address of the employer that is providing the work training or work experience for that student and the title, if any, of the work training, work experience or work study program in which the student is participating.
(2) A school district or private school may revoke a declaration under sub. (1) by providing written notice to the department in the manner provided in s. 102.31 (2) (a), the student and the employer who is providing the work training or work experience for that student. A revocation under this subsection is effective 30 days after the department receives notice of that revocation.
(3) This section does not apply after December 31, 1997.
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Section 14
. 102.11 (1) (intro.) of the statutes is amended to read:
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 which results in a maximum compensation rate of 100% of the state's average weekly earnings as determined under s. 108.05 as of June 30 of the previous year, except that the average weekly earnings for temporary disability, permanent total disability or death benefits for injuries occurring on or after January 1, 1994
1996, and before January 1, 1995 1997, shall be not more than $699 $741, resulting in a maximum compensation rate of $466 $494, and the average weekly earnings for temporary disability, permanent total disability or death benefits for injuries occurring on or after January 1, 1995
1997, and before January 1, 1996 1998, shall be not more than $718.50 $763.50, resulting in a maximum compensation rate of $479 $509. 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 January 1, 1994 1996, not more than $237 $253.50, resulting in a maximum compensation rate of $158 $169, and, for permanent partial disability for injuries occurring on or after January 1, 1995
1997, not more than $246 $261, resulting in a maximum compensation rate of $164 $174. Between such limits the average weekly earnings shall be determined as follows:
117,15
Section 15
. 102.16 (2) (d) of the statutes is amended to read:
102.16 (2) (d) For fee disputes that are submitted to the department before July 1, 1996 1998, the department shall analyze the information provided to the department under par. (c) according to the criteria provided in this paragraph to determine the reasonableness of the disputed fee. The department shall determine that a disputed fee is reasonable and order that the disputed fee be paid if that fee is at or below the mean fee for the health service procedure for which the disputed fee was charged, plus 1.5 standard deviations from that mean, as shown by data from a data base that is certified by the department under par. (h). The department shall determine that a disputed fee is unreasonable and order that a reasonable fee be paid if the disputed fee is above the mean fee for the health service procedure for which the disputed fee was charged, plus 1.5 standard deviations from that mean, as shown by data from a data base that is certified by the department under par. (h), unless the health service provider proves to the satisfaction of the department that a higher fee is justified because the service provided in the disputed case was more difficult or more complicated to provide than in the usual case.
117,16
Section 16
. 102.16 (5) of the statutes is amended to read:
102.16 (5) No Except as provided in s. 102.28 (3), no agreement by an employe to waive the right to compensation is valid.
117,17
Section 17
. 102.17 (1) (d) of the statutes is amended to read:
102.17 (1) (d) The contents of verified certified medical and surgical reports by physicians, podiatrists, surgeons, dentists, psychologists and chiropractors licensed in and practicing in this state and of verified
certified reports by experts concerning loss of earning capacity under s. 102.44 (2) and (3), presented by a party for compensation constitute prima facie evidence as to the matter contained in them, subject to any rules and limitations the department prescribes. Verified Certified reports of physicians, podiatrists, surgeons, dentists, psychologists and chiropractors, wherever licensed and practicing, who have examined or treated the claimant, and of experts, if the practitioner or expert consents to subject himself or herself to cross-examination also constitute prima facie evidence as to the matter contained in them. Verified Certified reports of physicians, podiatrists, surgeons, psychologists and chiropractors are admissible as evidence of the diagnosis, necessity of the treatment and cause and extent of the disability. Verified
Certified reports by doctors of dentistry are admissible as evidence of the diagnosis and necessity for treatment but not of disability. Physicians, podiatrists, surgeons, dentists, psychologists and chiropractors licensed in and practicing in this state and experts may certify instead of verify the reports. That certification is equivalent to verification. Any physician, podiatrist, surgeon, dentist, psychologist, chiropractor or expert who knowingly makes a false statement of fact or opinion in such a certified report may be fined or imprisoned, or both, under s. 943.395. The record of a hospital or sanatorium in this state operated by any department or agency of the federal or state government or by any municipality, or of any other hospital or sanatorium in this state which is satisfactory to the department, established by certificate, affidavit or testimony of the supervising officer or other person having charge of such records, or of a physician, podiatrist, surgeon, dentist, psychologist or chiropractor to be the record of the patient in question, and made in the regular course of examination or treatment of such patient, constitutes prima facie evidence in any worker's compensation proceeding as to the matter contained in it, to the extent that it is otherwise competent and relevant. The department may, by rule, establish the qualifications of and the form used for verified certified reports submitted by experts who provide information concerning loss of earning capacity under s. 102.44 (2) and (3). The department may not admit into evidence a verified
certified report of a practitioner or other expert or a record of a hospital or sanatorium that was not filed with the department and all parties in interest at least 15 days before the date of the hearing, unless the department is satisfied that there is good cause for the failure to file the report.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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Section 26
. 102.29 (9) of the statutes is created to read:
