LRB-4021/4
GMM:skg:ks
1995 - 1996 LEGISLATURE
October 10, 1995 - Introduced by Representatives Vrakas and Vander Loop,
cosponsored by Senators Zien and Breske. Referred to Committee on Labor
and Employment.
AB607,1,13
1An Act to repeal 102.65 (3) (a), 102.835 (1) (b), 102.835 (1) (c), 102.835 (16) and
2102.835 (17);
to renumber and amend 20.445 (1) (sp) and 102.65 (3) (b);
to
3amend 20.445 (1) (ha), 20.445 (1) (sm), 102.06, 102.07 (1) (a), 102.07 (1) (b),
4102.11 (1) (intro.), 102.16 (2) (d), 102.16 (5), 102.17 (1) (d), 102.17 (2), 102.17 (7)
5(a), 102.17 (7) (b), 102.17 (7) (c), 102.28 (2) (a), 102.28 (2) (b), 102.33 (2) (b)
6(intro.), 102.33 (2) (b) 2., 102.44 (1) (a), 102.44 (1) (b), 102.50, 102.75 (4), 102.80
7(3) (a), 102.80 (3) (am), 102.80 (3) (b), 102.81 (1) (a), 102.81 (1) (b), 102.81 (2),
8102.81 (7), 102.83 (1) (a) and 102.835 (12);
to repeal and recreate 20.445 (1)
9(ha), 102.80 (3) (b) and 102.81 (2); and
to create 102.01 (1) (em), 102.07 (4m),
10102.07 (5) (d), 102.07 (11m), 102.07 (12m), 102.077, 102.28 (3), 102.29 (8),
11102.29 (9), 102.33 (2) (b) 4., 102.80 (3) (ag), 102.80 (3) (c), 102.80 (4) and 626.125
12of the statutes;
relating to: various changes to the worker's compensation law,
13granting rule-making authority and making appropriations.
Analysis by the Legislative Reference Bureau
This bill makes various changes relating to worker's compensation, as
administered by the department of industry, labor and human relations (DILHR) as
follows:
General coverage
Under current law, subject to certain exceptions, every employer must pay
worker's compensation to an employe who sustains an injury while performing
services growing out of and incidental to his or her employment. Currently, unless
exempted by DILHR, an employer must insure payment of that compensation by
purchasing insurance from an insurer authorized to do business in this state.
Currently, if an employer satisfies certain conditions, DILHR may exempt the
employer from the insurance requirement, thereby permitting the employer to
self-insure. This bill permits DILHR to exempt an employer from the duty to pay
worker's compensation to certain employes who belong to a religious sect whose
tenets or teachings oppose accepting the benefits of any public or private insurance
that pays benefits in the event of death, disability, old age or retirement or that
makes payments towards the cost of medical care, for example, the Amish. Under
the bill, an employer applying for this exemption must submit to DILHR all of the
following:
1. A written waiver by the employe of all worker's compensation benefits other
than the financial and medical assistance provided by his or her religious sect.
2. An affidavit by the employe stating that the employe is a member of a
recognized religious sect and that, as a result of the established tenets or teachings
of the religious sect, the employe is conscientiously opposed to accepting the benefits
of insurance as described above.
3. An affidavit by an authorized representative of the religious sect that the
religious sect has a long-standing history of providing its members who become
dependent on the religious sect as a result of work-related injuries 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 provide financial and medical assistance to the employe if the employe sustains
an injury which, but for the employe's waiver, would be compensable under the
worker's compensation law; and proof of the financial ability of the religious sect to
provide that assistance, which the religious sect may establish by maintaining, in an
amount determined by DILHR, a surety bond, an irrevocable letter of credit or some
other financial commitment approved by DILHR.
If DILHR finds that those conditions are satisfied with respect to an employe,
DILHR may exempt the employer from paying worker's compensation to that
employe. If that employe sustains a work-related injury and his or her religious sect
is not providing reasonable financial or medical assistance, the employe may request
DILHR to hold a hearing and, if after the hearing DILHR determines that the
religious sect is not providing reasonable financial and medical assistance, DILHR
may order the religious sect to provide benefits that are reasonable under the
circumstances, but not in excess of what the employe could have received under the
worker's compensation law. If the religious sect does not provide benefits as ordered
by DILHR, DILHR may use the surety bond, letter of credit or other financial
commitment maintained by the religious sect to pay the benefits ordered, plus any
penalties that may be appropriate.
Current law defines certain persons as "employes" for purposes of coverage
under the worker's compensation law. Currently, DILHR may, by rule, prescribe
classes of volunteer workers who may, at the election of the person for whom the
volunteer services are being performed, be considered to be employes for purposes
of coverage under the worker's compensation law. This bill provides that a volunteer
for a nonprofit organization that is exempt or eligible for exemption from federal
income taxation under the federal internal revenue code who receives nominal
payments of money or other things of value totaling not more than $10 per week is
not considered to be an employe of the nonprofit organization for purposes of
coverage under the worker's compensation law, unless the nonprofit organization
elects to cover the volunteer under the worker's compensation law.
Currently, a student in a technical college district while, as part of a training
program, he or she is engaged in performing services for which the technical college
collects a fee or is engaged in producing a product that the technical college sells is
an employe of the technical college for purposes of coverage under the worker's
compensation law. This bill provides that a student of a public school or a private
school 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, is an employe of a school district or private school that elects to
name the student as an employe for purposes of worker's compensation coverage.
The bill also provides that a student who is named as an employe of a school district
or private school for purposes of worker's compensation coverage and who makes a
claim for worker's compensation against his or her school district or private school
may not also make a worker's compensation claim or maintain an action in tort
against the employer who provided the work training or work experience from which
the claim arose. This provision does not apply to injuries occurring after December
1, 1997.
Similarly, under the bill, a participant in a work experience component of a job
opportunities and basic skills (JOBS) program under the aid to families with
dependent children (AFDC) program who, under the JOBS program, is considered
to be an employe of the agency administering the JOBS program or who, under the
JOBS program, is provided worker's compensation coverage by the person
administering the community work experience component, and who makes a claim
for worker's compensation against that agency or person may not make a worker's
compensation claim or maintain an action in tort against the employer who provided
the work experience from which the claim arose. This provision does not apply to
injuries occurring after December 1, 1997.
Program administration
Under current law, the records of DILHR relating to the administration of the
worker's compensation laws are subject to inspection and copying under the open
records law, except that records that reveal 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
and the amount, type and duration of any benefits paid to the employe are
confidential and may not be disclosed except to the employe who is the subject of the
record or to the insurance carrier or employer who is a party to the employe's worker's
compensation claim. This bill requires DILHR to disclose confidential information
to an insurance carrier or employer that is a party to any claim involving the same
employe, except that DILHR is not required to do random searches and DILHR may
require the requester to provide the approximate date of the injury and any other
relevant information that would assist DILHR in finding the record requested. The
bill also permits DILHR to refuse to honor a subpoena issued by an attorney of record
in a civil or criminal action or special proceeding, other than a worker's compensation
claim, to inspect and copy a confidential worker's compensation record, unless a
court of competent jurisdiction in this state orders DILHR to release the record.
Under current law, every employer who is subject to the worker's compensation
law must carry worker's compensation insurance or, if permitted by DILHR,
self-insure to cover the employer's worker's compensation liability. Currently,
DILHR may promulgate rules establishing amounts to be charged as initial and
renewal application fees to employers applying for self-insurer status. Under
current DILHR rules, the renewal fee for a self-insured employer is $100 per year.
This bill eliminates the initial application fee and renewal fee for self-insured
employers and provides instead that DILHR may charge an amount to an initial
applicant for self-insured employer status and an annual amount to self-insured
employers.
Hearings and procedures
Under current law, verified medical reports and the verified reports of experts
concerning loss of earning capacity presented by a party for compensation constitute
prima facie evidence as to the matters contained in them. Current law permits a
medical practitioner or an expert to certify, rather than verify, a report and provides
that certification is equivalent to verification. A verified document is a document
whose authenticity has been sworn to under oath. A certified document is a
document that contains a written and signed, but not necessarily sworn to,
assurance of authenticity. This bill eliminates the requirement that medical reports
and the reports of experts be verified and provides that certified reports constitute
prima facie evidence as to the matters contained in them.
Under current law, if DILHR has reason to believe that payment of
compensation has not been made, DILHR may on its own motion schedule a hearing
to determine the facts. This bill provides that when DILHR schedules a hearing on
its own motion, DILHR does not become a party to the proceeding and is not required
to appear at the hearing.
Under current law, DILHR may determine the reasonableness of the fees
charged for health services that are provided for an injured employe for whom
compensation is paid. Currently, DILHR's authority to determine the
reasonableness of a health service fee expires on July 1, 1996. This bill extends that
expiration date to July 1, 1998.
Qualified loss management program
Under current law, the Wisconsin compensation rating bureau (bureau), an
organization to which every insurer writing worker's compensation insurance in this
state belongs, determines for approval by the commissioner of insurance the
premium rates that insurers may charge employers in this state. Currently, the
bureau determines those rates based on past and prospective loss and expense
experience, catastrophe hazards and contingencies, a reasonable margin for profits
and dividends and other relevant factors. Currently, the bureau may classify risks
according to variations in the hazards posed by those risks. This bill permits the
bureau to file with the commissioner of insurance a qualified loss management
program under which the bureau must grant prospective premium credits to
employers that subscribe to a loss management action plan prepared by a loss
management firm that has been approved by the bureau. Under the bill, the bureau
must base the initial prospective premium credit granted to an employer on the
qualifications of the loss management firm that prepared the employer's loss
management action plan and on the anticipated improvement in loss experience as
a result of the action plan, based on generally accepted actuarial principles. The
bureau then bases subsequent premium credits on the aggregate loss experience of
all employers served by a particular loss management firm. The bureau, however,
must adjust the premium credit to reflect any credits granted under the ordinary
rating process as a result of the same improved loss experience. The bureau may
approve a loss management firm if the firm demonstrates an ability to reduce the loss
experience of its clients and if the firm submits a loss management program that is
approved by the bureau. This program expires on January 1, 1998.
Uninsured employers
Under current law, if an employer is not insured or self-insured as required by
the worker's compensation law, the employer is liable to DILHR for certain payments
which are deposited in an uninsured employers fund. DILHR uses the uninsured
employers fund to administer the laws relating to uninsured employers and to pay
worker's compensation benefits to the injured employes of uninsured employers.
DILHR may pay those benefits, however, only if the cash balance in the fund equals
or exceeds $4,000,000 before July 1, 1996, and, for the 6-month period immediately
preceding the date on which the cash balance equals or exceeds $4,000,000 or for any
6-month period after that date, DILHR collected 55% or more of the payments
assessed on uninsured employers during that 6-month period. This bill eliminates
the July 1, 1996, deadline for reaching a cash balance of $4,000,000 and the 55%
collection requirement and instead provides that DILHR may pay benefits from the
uninsured employers fund beginning on the first day of the first July after the cash
balance in the fund equals or exceeds $4,000,000. The bill also provides, however,
that, if the secretary of industry, labor and human relations determines that
expected losses on claims exceed 85% of the cash balance in the uninsured employers
fund, the secretary of industry, labor and human relations must file a certificate with
the secretary of administration attesting that the cash balance is likely to be
inadequate to fund all claims against the fund and specifying a date after which no
new claims will be paid. Further, the bill permits DILHR to obtain excess or
stop-loss reinsurance in an amount that the secretary of industry, labor and human
relations determines is necessary for the sound operation of the uninsured
employer's fund and requires DILHR's reinsurer, if any, to pay benefits to the injured
employes of uninsured employers according to the terms of the contract of
reinsurance if DILHR is unable to make those payments from the uninsured
employers fund.
Current law provides 2 procedures by which DILHR may collect payments owed
to DILHR by uninsured employers. Under the first procedure, if an uninsured
employer fails to pay an amount owed to DILHR and no appeal or other proceeding
for review is pending and the time for taking an appeal has expired, DILHR may
issue a warrant to the clerk of circuit court of any county in the state and the clerk
of circuit court dockets the warrant, which gives the warrant the effect of a final
judgment. Under the 2nd procedure, if no appeal or other proceeding for review is
pending, and the time for taking an appeal has expired, DILHR may levy on any
personal property of the uninsured employer, after demanding payment and giving
10 days' notice of its intent to pursue legal action to collect the debt. This bill
eliminates the requirement that no appeal be pending and that the time for taking
an appeal must have expired before DILHR may collect payment from an uninsured
employer by either the warrant or levy procedure. The bill, however, does not
eliminate the requirement that no proceeding for review be pending before DILHR
may issue a warrant or impose a levy.
Under the current levy procedure for collecting payment from an uninsured
employer, an uninsured employer is entitled to an exemption from levy of the greater
of 75% of the uninsured employer's disposable earnings or 30 times the federal
minimum hourly wage. Current law also exempts from levy the first $1,000 of an
uninsured employer's account in a depository institution. This bill eliminates those
exemptions.
Finally, with respect to uninsured employers, the bill provides that if an
uninsured employer who owes a payment to DILHR transfers his or her business
assets or activities, DILHR may collect the amount owed from the transferee of the
business assets or activities if DILHR determines that all of the following conditions
are satisfied:
1. At the time of the business 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.
2. The transferee has continued or resumed the business of the uninsured
employer or has employed substantially the same employes as those the uninsured
employer had employed in connection with the business transferred.
Employes of contractors
Under current law, an employe of a contractor may recover compensation from
the contractor's employer if the contractor does not have worker's compensation
insurance or is not self-insured. Currently, however, an employe of a contractor
would not be able to recover from the principal employer for an injury suffered on or
after the first day of the calendar quarter beginning after the date that recovery from
the uninsured employers fund is available. This bill changes that day to the first day
of the first July beginning after the date that recovery from the uninsured employers
fund is available. The bill also provides that an employe may recover from the
principal employer for a claim made on or after the day that the secretary of industry,
labor and human relations specifies in his or her certificate to the secretary of
administration that the cash balance in the uninsured employers fund is likely to be
inadequate to fund all claims against the fund.
Compensation amounts
The bill sets the average weekly earnings and maximum compensation rates
for permanent partial disability for injuries occurring on or after January 1, 1996,
and January 1, 1997. For injuries occurring during calendar year 1996, the average
weekly earnings are not more than $253.50, resulting in a maximum compensation
rate of $169. For injuries occurring during calendar year 1997, the average weekly
earnings are not more than $261, resulting in a maximum compensation rate of $174.
The bill also sets the average weekly earnings and maximum compensation
rates for temporary disability, permanent total disability and death benefits for
injuries occurring on or after January 1, 1996, and January 1, 1997. For injuries
occurring during calendar year 1996, the average weekly earnings are not more than
$741, resulting in a maximum compensation rate of $494. For injuries occurring
during calendar year 1997, the average weekly earnings are not more than $763.50,
resulting in a maximum compensation rate of $509.
The bill also raises the amount of supplemental benefits that are payable to an
employe who is receiving compensation for permanent total disability or continuous
temporary total disability resulting from an injury that occurred before January 1,
1976. Currently, if that employe is receiving the maximum weekly benefit in effect
at the time of the injury, the supplemental benefit is an amount that when added to
the regular benefit, equals $125. This bill raises that amount to $150. If that
employe is receiving less than the maximum weekly benefit in effect at the time of
the injury, the supplemental benefit is an amount that is sufficient to bring the total
weekly benefit to the same proportion of $150 as the employe's regular weekly benefit
bears to the maximum weekly benefit in effect at the time of the injury.
Under current law, when the death of an employe results from an injury that
is covered under the worker's compensation law, the employer or insurer must pay
the reasonable cost of burial, not exceeding $4,000. The bill raises the burial expense
limit to $6,000.
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:
AB607, s. 1
1Section
1. 20.445 (1) (ha) of the statutes is amended to read:
AB607,8,22
20.445
(1) (ha)
Worker's compensation operations. The amounts in the schedule
3for the administration of the worker's compensation program by the department. All
4moneys received under
s. ss. 102.28 (2) (b) and 102.75 for the department's activities
5shall be credited to this appropriation. From this appropriation, an amount not to
1exceed $5,000 may be expended each fiscal year for payment of expenses for travel
2and research by the council on worker's compensation.
AB607, s. 2
3Section
2. 20.445 (1) (ha) of the statutes, as affected by 1995 Wisconsin Act
4.... (this act), is repealed and recreated to read:
AB607,8,115
20.445
(1) (ha)
Worker's compensation operations. The amounts in the schedule
6for the administration of the worker's compensation program by the department. All
7moneys received under ss. 102.28 (2) (b) and 102.75 for the department's activities
8and not appropriated under par. (hp) shall be credited to this appropriation. From
9this appropriation, an amount not to exceed $5,000 may be expended each fiscal year
10for payment of expenses for travel and research by the council on worker's
11compensation.
AB607, s. 3
12Section
3. 20.445 (1) (sm) of the statutes is amended to read:
AB607,8,1713
20.445
(1) (sm)
Uninsured employers fund; payments. From the uninsured
14employers fund, a sum sufficient to make the payments under s. 102.81 (1). No
15moneys may be expended or encumbered under this paragraph until the first day of
16the
calendar quarter first July beginning after the day that the secretary of industry,
17labor and human relations files the certificate under s. 102.80 (3) (a).
AB607, s. 4
18Section
4. 20.445 (1) (sp) of the statutes is renumbered 20.445 (1) (hp) and
19amended to read:
AB607,8,2220
20.445
(1) (hp) (title)
Uninsured employers
fund program; administration.
21From the
uninsured employers fund moneys received under s. 102.75, the amounts
22in the schedule for the administration of ss. 102.28 (4) and 102.80 to 102.89.
AB607, s. 5
23Section
5. 102.01 (1) (em) of the statutes is created to read: