LRB-4018/1
GMM:jlg&kaf:jf
1997 - 1998 LEGISLATURE
October 17, 1997 - Introduced by Representatives Vrakas and Vander Loop,
cosponsored by Senators Plache and Zien. Referred to Committee on Labor
and Employment.
AB565,1,11
1An Act to amend 20.445 (3) (jb), 102.07 (8) (b) 2., 102.07 (12m), 102.076 (1),
2102.077 (3), 102.11 (1) (intro.), 102.11 (1) (d), 102.13 (1) (a), 102.13 (1) (b) (intro.),
3102.13 (1) (b) 1., 102.13 (1) (b) 3., 102.13 (1) (b) 4., 102.13 (1) (d) 1., 102.13 (1)
4(d) 2., 102.13 (1) (d) 3., 102.13 (1) (d) 4., 102.13 (2) (a), 102.13 (2) (b), 102.13 (3),
5102.16 (2) (a), 102.16 (2) (b), 102.16 (2) (d), 102.16 (2) (f), 102.16 (2m) (a), 102.16
6(2m) (b), 102.16 (2m) (e), 102.16 (3), 102.17 (1) (e), 102.17 (1) (g), 102.28 (3) (a)
7(intro.), 102.28 (3) (a) 4., 102.28 (3) (b) 4., 102.28 (3) (c), 102.28 (3) (d), 102.29
8(3), 102.29 (8), 102.29 (9), 102.42 (2) (a), 102.42 (6), 102.82 (1) and 102.83 (8);
9to repeal and recreate 102.42 (2) (a); and
to create 49.124 (1m) (d), 102.04
10(2m), 102.16 (1m), 102.18 (1) (bg) and 102.29 (8r) of the statutes;
relating to:
11various changes to the worker's compensation law.
Analysis by the Legislative Reference Bureau
This bill makes various changes relating to worker's compensation, as
administered by the department of workforce development (DWD), as follows:
General coverage
Current law defines a "temporary help agency" as an employer who places its
employes with or leases its employes to another employer who controls the employe's
work activities and compensates the temporary help agency for the employe's
services, regardless of the duration of the services. Under current law, no employe
of a temporary help agency who makes a claim for worker's compensation against the
temporary help agency may make a claim or maintain an action in tort against any
employer who compensates the temporary help agency for the employe's services.
This bill specifies that for purposes of worker's compensation a temporary help
agency is the employer of an employe whom the temporary help agency has placed
with or leased to another employer that compensates the temporary help agency for
the employe's services, that a temporary help agency is liable for all worker's
compensation payable to that employe and that a temporary help agency may not
seek or receive reimbursement from another employer for any payments made as a
result of that liability.
Under current law, in general, every person who usually employs 3 or more
employes and every person who usually employs less than 3 employes, but who has
paid wages of $500 or more in any calendar quarter for services performed in this
state is subject to the worker's compensation law. Current law, however, permits not
more than 2 officers of a corporation having not more than 10 stockholders to elect
not to be subject to the worker's compensation law. Currently, the election is made
by an endorsement on the policy of worker's compensation insurance issued to the
corporation naming each officer who has so elected and is effective for the period of
the policy. This bill permits an officer of such a corporation that has been issued a
policy of worker's compensation insurance to elect not to be subject to the worker's
compensation law and not to be covered under the policy at any time during the
period of the policy. The bill also provides that such an election may not be reversed
during the period of the policy.
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 an incidental to his or her employment. Current law,
however, permits DWD 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 current
law, an employer applying for this exemption must submit certain information to
DWD including proof of the financial ability of the religious sect to provide financial
and medical assistance to an injured employe who belongs to the religious sect.
This bill eliminates the requirement that a religious sect establish proof of its
financial ability to provide that assistance.
Current law defines certain persons as "employes" for purposes of coverage
under the worker's compensation law. Currently, an independent contractor is, for
purposes of the worker's compensation law, an employe of any employer that is
subject to the worker's compensation law for whom the independent contractor is
performing services in the course of the employer's trade, business, profession or
occupation at the time of the injury, except that an independent contract is not an
employe of an employer for whom the independent contractor performs work or
services if the independent contractor meets certain conditions. One of those
conditions is that the independent contractor holds or has applied for a federal
employer identification number. This bill changes that condition so that an
independent contractor is not an employe if the independent contractor holds or has
applied for an employer identification number with the federal internal revenue
service or has filed business or self-employment income tax returns with the federal
internal revenue service based on the independent contractor's work or services in
the previous year.
Currently, 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, 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 to name the student as
an employe for purposes of worker's compensation coverage. Also, under current law,
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 claim for worker's compensation or maintain an action in tort against the employer
that provided the work training or work experience from which the claim arose.
Currently, these provisions do not apply to injuries occurring after December 31,
1997. This bill extends that expiration date to December 31, 1999.
Similarly, under current law, 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 of the JOBS program, and
who makes a claim for worker's compensation against that agency or person may not
also make a claim for worker's compensation or maintain an action in tort against
the employer that provided the work experience from which the claim arose.
Currently, this provision does not apply to injuries occurring after December 31,
1997. This bill extends that expiration date to February 28, 1998, as the AFDC
program no longer applies in this state beginning on March 1, 1998.
The bill also extends similar coverage to a participant in the food stamp
employment and training (FSET) program. Specifically, under the bill, a participant
in a FSET program administered by DWD or a Wisconsin works agency is an employe
of DWD for the Wisconsin works agency for purposes of worker's compensation
coverage, except to the extent that the person for whom the participant is performing
work provides that coverage. Also under the bill, a participant in a FSET program
who is provided worker's compensation coverage by DWD or a Wisconsin works
agency and who makes a claim for worker's compensation may not also make a claim
for worker's compensation or maintain an action in tort against the employer who
provided the employment and training from which the claim arose.
Examinations and treatment
Under current law, whenever an employe claims worker's compensation, the
employe must, on the request of his or her employer or the employer's worker's
compensation carrier, submit to reasonable examinations by physicians,
chiropractors, psychologists or podiatrists (practitioners) provided and paid for by
the employer or insurer. Currently, an employe is entitled to have a practitioner
provided by himself or herself present at the examination and to request and receive
a copy of all reports of the examination. Also, under current law, any practitioner
who is present at an employe's examination may be required to testify as to the
results of the examination and any practitioner who attends a worker's
compensation claimant for any condition or complaint that is reasonably related to
the condition for which the claimant claims compensation may be required to testify
before DWD. In addition, under current law, any practitioner who attends a worker's
compensation claimant for any condition or complaint that is reasonably related to
the condition for which the claimant claims compensation may, notwithstanding the
confidentiality of medical and mental health records, furnish information and
reports relative to the claim to the employe, employer, worker's compensation
insurer or DWD and, notwithstanding that confidentiality, shall, within a
reasonable time after written request and upon payment of the actual cost of
preparation and postage, provide that person with any information or written
material that is reasonably related to the claim. Moreover, under current law, if 2
or more practitioners disagree as to the extent of an injured employe's temporary
disability, the end of the employer's healing period, the employe's ability to return
to work or the necessity for further treatment or for a particular type of treatment,
DWD may appoint another practitioner to examine the employe and render an
opinion. Finally, under current law, if the testimony presented at a hearing indicates
a dispute or creates a doubt as to the extent or cause of an employe's disability or
death, DWD may direct that the injured employe be examined or that an autopsy be
performed, or that an opinion be obtained, by an impartial, competent practitioner.
This bill includes dentists among the practitioners to which the provisions of
current law relating to examination and treatment of an injured employe apply. The
bill also eliminates the requirement that an employe must request a copy of the
report of his or her examination in order to receive it and instead entitles the employe
to receive a copy of such a report immediately upon receipt of the report by the
employer or worker's compensation insurer.
Under current law, subject to certain exceptions, when an employer has notice
of an employe's injury and its relationship to the employe's employment, the
employer must offer to the employe his or her choice of any practitioner licensed to
practice in this state and practicing in this state for treatment of the injury.
Currently, an employe may choose a practitioner not licensed in this state only with
the agreement of the employer or worker's compensation insurer. Recently, the
Supreme Court, in UFE, Inc. v. LIRC, 201 Wis. 2d 274 (1986), held, however, that an
employer or worker's compensation insurer is liable for treatment provided by an
out-of-state practitioner if the treatment is provided on the referral of an in-state
practitioner and not by choice of the injured employe.
This bill reverses the UFE holding. Under the bill, until January 1, 2000, an
employer or worker's compensation insurer is not liable for treatment provided by
an out-of-state practitioner on referral from an in-state practitioner unless the
employer or insurer agrees to be liable for that treatment. The bill also requires an
employer to offer to an injured employe his or her choice of any dentist licensed to
practice and practicing in this state for treatment of the employe's injury.
Hearings and procedures
Current law provides a procedure, separate from the procedure provided for
resolving a disputed claim for worker's compensation, under which DWD has
jurisdiction to resolve a dispute between a health service provider and an insurer or
self-insured employer over the reasonableness of any health service fee charged by
the health service provider for services provided to an injured employe who claims
worker's compensation benefits or over the necessity of any treatment provided to
an injured employe who claims worker's compensation benefits. Under that
procedure, DWD must deny payment of a fee that DWD determines to be
unreasonable or payment for any treatment that DWD determines to be unnecessary
and the health service provider and insurer or self-insurer that are parties to the
dispute are bound by that determination unless the determination is set aside on
judicial review. Under the procedure, an insurer or self-insurer that disputes the
reasonableness of a fee charged by a health service provider or the necessity of any
treatment provided by a health service provider must provide reasonable notice to
the health service provider that the fee or the necessity of the treatment is in dispute
and, after receiving that notice, the health service provider may not collect the fee
from, or bring a collection action against, the employe who received the services or
treatment that is the subject of the dispute.
This bill permits DWD to resolve a fee dispute or a necessity of treatment
dispute not only under the specific procedure provided for resolving those types of
disputes, but also under the general procedure under which DWD resolves a
disputed claim for worker's compensation. Specifically, if after a hearing on a
disputed claim for worker's compensation, DWD finds that an insurer or
self-insured employer is liable for any health services or treatment provided to an
injured employe by a health service provider, but that the reasonableness of the fee
for those services or the necessity of that treatment is in dispute, DWD may include
in its order a determination as to the reasonableness of the fee or the necessity of the
treatment or DWD may notify, or direct the insurer or self-insured employer to
notify, the health service provider under the fee dispute or necessity of treatment
dispute procedure that the reasonableness of the fee or the necessity of the treatment
is in dispute. Similarly, if an insurer or self-insured employer concedes under a
compromise agreement or stipulation that the insurer or self-insured employer is
liable for any health services or treatment provided to an injured employe by a health
service provider, but disputes the reasonableness of the fee for those services or the
necessity of that treatment, DWD may include in its order confirming the
compromise agreement or stipulation a determination as to the reasonableness of
the fee or the necessity of the treatment or DWD may notify, or direct the insurer or
self-insured employer to notify, the health service provider under the fee dispute or
necessity of treatment dispute procedure that the reasonableness of the fee or the
necessity of the treatment is in dispute. Under the bill, DWD must deny payment
of a fee that DWD determines after a hearing or on confirming a compromise
agreement or stipulation to be unreasonable or payment for any treatment that
DWD determines after a hearing or on confirming a compromise agreement or
stipulation to be unnecessary and the health service provider and insurer or
self-insured employer are bound by that determination unless the determination is
set aside, reversed or modified by DWD or by the labor and industry review
commission (LIRC) or is set aside on judicial review. Under the bill, after receiving
notice from DWD or from an insurer or self-insured employer that the
reasonableness of a fee or the necessity of any treatment is in dispute, the health
service provider may not collect the fee from, or bring a collection action against, the
employe who received the services or treatment that is the subject of the dispute.
Under current law, DWD retains jurisdiction for 21 days after the date on which
a copy of a hearing examiner's order is mailed to the parties to a disputed claim for
worker's compensation to set aside, reverse or modify that order. Similarly, under
current law, LIRC retains jurisdiction for 28 days after the date on which a decision
of LIRC is mailed to the parties to a disputed claim for worker's compensation to set
aside the decision for further consideration. This bill permits DWD to retain
jurisdiction for 30 days after a determination of DWD under the fee dispute or
necessity of treatment dispute procedure is made to set aside, reverse or modify that
determination.
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 DWD for certain payments
which are deposited in the uninsured employers fund and used by DWD to pay
benefits to the injured employes of uninsured employers. Currently, if DWD pays
benefits to an injured employe of an uninsured employer, the uninsured employer
must reimburse DWD in the amount of benefits paid, less any amounts that the
employe repays to DWD from any compensation recovered by the employe from the
employer or a 3rd party. This bill requires an uninsured employer to reimburse DWD
for any benefits paid to an employe of the uninsured employer within 30 days after
the date on which DWD notifies the uninsured employer that the reimbursement is
owed. Under the bill, interest on amounts not paid when due accrues at the rate of
1% per month.
Under current law, if an uninsured employer fails to pay an amount owed to
DWD and no appeal or other proceeding for review is pending and the time for taking
an appeal has expired, DWD may issue a warrant to the clerk of circuit court of any
county in the state and the clerk of circuit court must docket the warrant, which gives
the warrant the effect of a final judgment. Currently, if an uninsured employer that
is a corporation is unable to pay the amounts specified in a warrant, an officer or
director of the corporation may be found personally liable for that payment. This bill
extends to the members and managers of an uninsured employer that is a limited
liability company and that is unable to pay the amount specified in a warrant issued
by DWD personal liability for that payment.
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, 1998,
and on or after January 1, 1999, but before January 1, 2000. For injuries occurring
during calendar year 1998, the average weekly earnings are not more than $268.50,
resulting in a maximum compensation rate of $179. For injuries occurring during
calendar year 1999, the average weekly earnings are not more than $276, resulting
in a maximum compensation rate of $184.
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, 1998, and on or after January 1, 1999. For
injuries occurring during calendar year 1998, the average weekly earnings are not
more than $784.50, resulting in a maximum compensation rate of $523. For injuries
occurring on or after January 1, 1999, the average weekly earnings are not more than
$807, resulting in a maximum compensation rate of $538.
Under current law, within those limits, the average weekly earnings of an
injured employe may not be less than the actual average weekly earnings of the
injured employe for the 4 calendar quarters before the employe's injury within which
the employe has been employed in the business, in the kind of employment and for
the employer for whom the employe worked when injured. This bill changes the
period in which an injured employe's average weekly earnings are calculated to the
52 calendar weeks before the employe's injury.
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:
AB565, s. 1
1Section
1. 20.445 (3) (jb) of the statutes is amended to read:
AB565,8,22
20.445
(3) (jb)
Fees for administrative services. All moneys received from fees
3charged for providing state mailings, special computer services, training programs,
4worker's compensation coverage for persons participating in employment and
5training programs under ch. 49, printed materials and publications
relating to
6economic support, for the purpose of providing state mailings, special computer
7services, training programs,
worker's compensation coverage for persons
1participating in employment and training programs under ch. 49, printed materials
2and publications relating to economic support.
AB565, s. 2
3Section
2. 49.124 (1m) (d) of the statutes is created to read:
AB565,8,124
49.124
(1m) (d) A participant in an employment and training program under
5this section administered by the department is an employe of the department for
6purposes of worker's compensation coverage, except to the extent that the person for
7whom the participant is performing work provides worker's compensation coverage.
8A participant in an employment and training program under this section
9administered by a Wisconsin works agency is an employe of the Wisconsin works
10agency for purposes of worker's compensation coverage, except to the extent that the
11person for whom the participant is performing work provides worker's compensation
12coverage.
AB565, s. 3
13Section
3. 102.04 (2m) of the statutes is created to read:
AB565,8,2114
102.04
(2m) A temporary help agency is the employer of an employe whom the
15temporary help agency has placed with or leased to another employer that
16compensates the temporary help agency for the employe's services. A temporary help
17agency is liable under s. 102.03 for all compensation payable under this chapter to
18that employe, including any payments required under s. 102.16 (3), 102.18 (1) (b) or
19(bp), 102.22 (1), 102.35 (3), 102.57 or 102.60. Except as permitted under s. 102.29,
20a temporary help agency may not seek or receive reimbursement from another
21employer for any payments made as a result of that liability.
AB565, s. 4
22Section
4. 102.07 (8) (b) 2. of the statutes is amended to read:
AB565,9,223
102.07
(8) (b) 2. Holds or has applied for a federal employer identification
24number
with the federal internal revenue service or has filed business or
1self-employment income tax returns with the federal internal revenue service based
2on that work or service in the previous year.
AB565, s. 5
3Section
5. 102.07 (12m) of the statutes is amended to read:
AB565,9,114
102.07
(12m) A student of a public school, as described in s. 115.01 (1), or a
5private school, as defined in s. 115.001 (3r), while he or she is engaged in performing
6services as part of a school work training, work experience or work study program,
7and who is not on the payroll of an employer that is providing the work training or
8work experience or who is not otherwise receiving compensation on which a worker's
9compensation carrier could assess premiums on that employer, is an employe of a
10school district or private school that elects under s. 102.077 to name the student as
11its employe. This subsection does not apply after December 31,
1997 1999.
AB565, s. 6
12Section
6. 102.076 (1) of the statutes is amended to read:
AB565,9,2213
102.076
(1) Not more than 2 officers of a corporation having not more than 10
14stockholders may elect not to be subject to this chapter.
If the corporation has been
15issued a policy of worker's compensation insurance, an officer of the corporation may
16elect not to be subject to this chapter and not to be covered under the policy at any
17time during the period of the policy. Except as provided in sub. (2), the election shall
18be made by an endorsement, on the policy of worker's compensation insurance issued
19to that corporation, naming each officer who has so elected. The election is effective
20for the period of the policy
and may not be reversed during the period of the policy.
21An officer who so elects is an employe for the purpose of determining whether the
22corporation is an employer under s. 102.04 (1) (b).
AB565, s. 7
23Section
7. 102.077 (3) of the statutes is amended to read:
AB565,9,2424
102.077
(3) This section does not apply after December 31,
1997 1999.
AB565, s. 8
25Section
8. 102.11 (1) (intro.) of the statutes is amended to read:
AB565,10,19
1102.11
(1) (intro.) The average weekly earnings for temporary disability,
2permanent total disability or death benefits for injury in each calendar year on or
3after January 1, 1982, shall be not less than $30 nor more than the wage rate which
4results in a maximum compensation rate of 100% of the state's average weekly
5earnings as determined under s. 108.05 as of June 30 of the previous year, except that
6the average weekly earnings for temporary disability, permanent total disability or
7death benefits for injuries occurring on or after January 1,
1996 1998, and before
8January 1,
1997 1999, shall be not more than
$741 $784.50, resulting in a maximum
9compensation rate of
$494 $523, and the average weekly earnings for temporary
10disability, permanent total disability or death benefits for injuries occurring on or
11after January 1,
1997 1999, and before January 1,
1998 2000, shall be not more than
12$763.50 $807, resulting in a maximum compensation rate of
$509 $538. The average
13weekly earnings for permanent partial disability shall be not less than $30 and, for
14permanent partial disability for injuries occurring on or after January 1,
1996 1998,
15and before January 1, 1999, not more than
$253.50
$268.50, resulting in a maximum
16compensation rate of
$169 $179, and, for permanent partial disability for injuries
17occurring on or after January 1,
1997 1999, not more than
$261 $276, resulting in
18a maximum compensation rate of
$174 $184. Between such limits the average
19weekly earnings shall be determined as follows:
AB565, s. 9
20Section
9. 102.11 (1) (d) of the statutes is amended to read:
AB565,11,921
102.11
(1) (d) Except in situations where par. (b) applies, average weekly
22earnings shall in no case be less than actual average weekly earnings of the employe
23for the
4 calendar quarters 52 calendar weeks before his or her injury within which
24the employe has been employed in the business, in the kind of employment and for
25the employer for whom the employe worked when injured. Calendar weeks within
1which no work was performed shall not be considered under this paragraph. This
2paragraph applies only if the employe has worked within a total of at least 6 calendar
3weeks during the
4 calendar quarters
52 calendar weeks before his or her injury in
4the business, in the kind of employment and for the employer for whom the employe
5worked when injured. For purposes of this section, earnings for part-time services
6performed for a labor organization pursuant to a collective bargaining agreement
7between the employer and that labor organization shall be considered as part of the
8total earnings in the preceding
4 calendar quarters
52 calendar weeks, whether
9payment is made by the labor organization or the employer.
AB565, s. 10
10Section
10. 102.13 (1) (a) of the statutes is amended to read: