Wisconsin Legislature: 172,22

102.16 (1m) (b) If an insurer or self-insured employer concedes by compromise under sub. (1) or stipulation under s. 102.18 (1) (a) that the insurer or self-insured employer is liable under this chapter for any treatment provided to an injured employee by a health service provider, but disputes the necessity of the treatment, the department may include in its order confirming the compromise or stipulation a determination as to the necessity of the treatment or the department may notify, or direct the insurer or self-insured employer to notify, the health service provider under sub. (2m) (b) that the necessity of the treatment is in dispute. The department shall apply the standards promulgated under sub. (2m) (g) in determining necessity of treatment under this paragraph. In cases in which no standards promulgated under sub. (2m) (g) apply, the department shall find the facts regarding necessity of treatment.

172,11 Section 11. 102.16 (2m) (c) of the statutes is amended to read:

102.16 (2m) (c) Before determining under this subsection the necessity of treatment provided for an injured employee who claims benefits under this chapter, the department shall obtain a written opinion on the necessity of the treatment in dispute from an expert selected by the department. Before determining under sub. (1m) (b) or s. 102.18 (1) (bg) 2. the necessity of treatment provided for an injured employee who claims benefits under this chapter, the department may, but is not required to, obtain such an expert opinion. To qualify as an expert, a person must be licensed to practice the same health care profession as the individual health service provider whose treatment is under review and must either be performing services for an impartial health care services review organization or be a member of an independent panel of experts established by the department under par. (f). The standards promulgated under par. (g) shall be applied by an expert in rendering an opinion as to necessity of treatment under this paragraph and by the department in determining necessity of treatment under this paragraph. In cases in which no standards promulgated under sub. (2m) (g) apply, the department shall find the facts regarding necessity of treatment. The department shall adopt the written opinion of the expert as the department's determination on the issues covered in the written opinion, unless the health service provider or the insurer or self-insured employer present clear and convincing written evidence that the expert's opinion is in error.

172,12 Section 12. 102.16 (2m) (g) of the statutes is amended to read:

102.16 (2m) (g) The department shall promulgate rules establishing procedures and requirements for the necessity of treatment dispute resolution process under this subsection, including rules setting the fees under par. (f) and rules establishing standards for determining the necessity of treatment provided to an injured employee. The rules establishing those standards shall, to the greatest extent possible, be consistent with Minnesota rules 5221.6010 to 5221.8900, as amended to January 1, 2006. Before the department may amend the rules establishing those standards, the department shall establish an advisory committee under s. 227.13 composed of health care providers providing treatment under s. 102.42 to advise the department and the council on worker's compensation on amending those rules.

172,13 Section 13. 102.17 (1) (d) 4. of the statutes is created to read:

102.17 (1) (d) 4. A report or record described in subd. 1., 2., or 3. that is admitted or received into evidence by the department constitutes substantial evidence under s. 102.23 (6) as to the matter contained in the report or record.

172,14 Section 14. 102.17 (1) (h) of the statutes is amended to read:

102.17 (1) (h) The contents of certified reports of investigation, made by industrial safety specialists who are employed, contracted, or otherwise secured by the department and available for cross-examination, served upon the parties 15 days prior to hearing, shall constitute prima facie evidence as to matter contained in those reports. A report described in this paragraph that is admitted or received into evidence by the department constitutes substantial evidence under s. 102.23 (6) as to the matter contained in the report.

172,15 Section 15. 102.17 (4) of the statutes is amended to read:

102.17 (4) The Except as provided in this subsection, the right of an employee, the employee's legal representative, or a dependent to proceed under this section shall not extend beyond 12 years from the date of the injury or death or from the date that compensation, other than treatment or burial expenses, was last paid, or would have been last payable if no advancement were made, whichever date is latest. In the case of occupational disease, ; a traumatic injury resulting in the loss or total impairment of a hand or any part of the rest of the arm proximal to the hand or of a foot or any part of the rest of the leg proximal to the foot, any loss of vision, or any permanent brain injury,; or any a traumatic injury causing the need for an artificial spinal disc or a total or partial knee or hip replacement, there shall be no statute of limitations, except that benefits or treatment expense for an occupational disease becoming due after 12 years from the date of injury or death or last payment of compensation shall be paid from the work injury supplemental benefit fund under s. 102.65 and in the manner provided in s. 102.66 and benefits or treatment expense for a traumatic injury becoming due after 12 years from that date shall be paid by the employer or insurer. Payment of wages by the employer during disability or absence from work to obtain treatment shall be deemed payment of compensation for the purpose of this section if the employer knew of the employee's condition and its alleged relation to the employment.

172,16 Section 16. 102.18 (1) (bg) 2. of the statutes is amended to read:

102.18 (1) (bg) 2. If the department finds under par. (b) that an employer or insurance carrier is liable under this chapter for any treatment provided to an injured employee by a health service provider, but that the necessity of the treatment is in dispute, the department may include in its order under par. (b) a determination as to the necessity of the treatment or the department may notify, or direct the employer or insurance carrier to notify, the health service provider under s. 102.16 (2m) (b) that the necessity of the treatment is in dispute. The department shall apply the standards promulgated under s. 102.16 (2m) (g) in determining necessity of treatment under this paragraph. In cases in which no standards promulgated under s. 102.16 (2m) (g) apply, the department shall find the facts regarding necessity of treatment.

172,17 Section 17. 102.18 (1) (bp) of the statutes is amended to read:

102.18 (1) (bp) The department may include a penalty in an award to an employee if it If the department determines that the employer's or insurance carrier's suspension of, termination of or failure employer or insurance carrier suspended, terminated, or failed to make payments or failure failed to report an injury resulted from as a result of malice or bad faith, the department may include a penalty in an award to an employee for each event or occurrence of malice or bad faith. This penalty is the exclusive remedy against an employer or insurance carrier for malice or bad faith. If this penalty is imposed for an event or occurrence of malice or bad faith that causes a payment that is due an injured employee to be delayed in violation of s. 102.22 (1) or overdue in violation of s. 628.46 (1), the department may not also order an increased payment under s. 102.22 (1) or the payment of interest under s. 628.46 (1). The department may award an amount which that it considers just, not to exceed the lesser of 200% 200 percent of total compensation due or $15,000 $30,000 for each event or occurrence of malice or bad faith. The department may assess the penalty against the employer, the insurance carrier or both. Neither the employer nor the insurance carrier is liable to reimburse the other for the penalty amount. The department may, by rule, define actions which demonstrate malice or bad faith.

172,18 Section 18. 102.23 (5) of the statutes is amended to read:

102.23 (5) The commencement of When an action for review shall not relieve the employer from paying compensation as directed, when such action involves only the question of liability as between the employer and one or more insurance companies or as between several insurance companies, a party that has been ordered by the department, the commission, or a court to pay compensation is not relieved from paying compensation as ordered.

172,19 Section 19. 102.28 (8) of the statutes is amended to read:

102.28 (8) Self-insured employers liability fund. The moneys paid into the state treasury under sub. (7), together with all accrued interest, shall constitute a separate nonlapsible fund designated as the "self-insured employers liability fund". Moneys in the fund may be expended only as provided in s. 20.445 (1) (s) and may not be used for an other purpose of the state.

172,20 Section 20. 102.29 (1) of the statutes is amended to read:

102.29 (1) The making of a claim for compensation against an employer or compensation insurer for the injury or death of an employee shall not affect the right of the employee, the employee's personal representative, or other person entitled to bring action, to make claim or maintain an action in tort against any other party for such injury or death, hereinafter referred to as a 3rd party; nor shall the making of a claim by any such person against a 3rd party for damages by reason of an injury to which ss. 102.03 to 102.64 are applicable, or the adjustment of any such claim, affect the right of the injured employee or the employee's dependents to recover compensation. The employer or compensation insurer who shall have paid or is obligated to pay a lawful claim under this chapter shall have the same right to make claim or maintain an action in tort against any other party for such injury or death. If the department pays or is obligated to pay a claim under s. 102.81 (1), the department shall also have the right to maintain an action in tort against any other party for the employee's injury or death. However, each shall give to the other reasonable notice and opportunity to join in the making of such claim or the instituting of an action and to be represented by counsel. If a party entitled to notice cannot be found, the department shall become the agent of such party for the giving of a notice as required in this subsection and the notice, when given to the department, shall include an affidavit setting forth the facts, including the steps taken to locate such party. Each shall have an equal voice in the prosecution of said claim, and any disputes arising shall be passed upon by the court before whom the case is pending, and if no action is pending, then by a court of record or by the department. If notice is given as provided in this subsection, the liability of the tort-feasor shall be determined as to all parties having a right to make claim, and irrespective of whether or not all parties join in prosecuting such claim, the proceeds of such claim shall be divided as follows: After deducting the reasonable cost of collection, one-third of the remainder shall in any event be paid to the injured employee or the employee's personal representative or other person entitled to bring action. Out of the balance remaining, the employer, insurance carrier, or, if applicable, uninsured employers fund shall be reimbursed for all payments made by it, or which it may be obligated to make in the future, under this chapter, except that it shall not be reimbursed for any payments of increased compensation made or to be made under s. 102.18 (1) (bp), 102.22, 102.35 (3), 102.57, or 102.60. Any balance remaining shall be paid to the employee or the employee's personal representative or other person entitled to bring action. If both the employee or the employee's personal representative or other person entitled to bring action, and the employer, compensation insurer, or department, join in the pressing of said claim and are represented by counsel, the attorneys' fees allowed as a part of the costs of collection shall be, unless otherwise agreed upon, divided between such attorneys as directed by the court or by the department. A settlement of any 3rd party claim shall be void unless said settlement and the distribution of the proceeds thereof is approved by the court before whom the action is pending and if no action is pending, then by a court of record or by the department.

172,21 Section 21. 102.31 (2m) of the statutes is created to read:

102.31 (2m) (a) A professional employer organization or employee leasing organization that enters into an employee leasing agreement with a client shall submit to the department, within 10 working days after the effective date of the agreement, a report disclosing the identity of the client, the effective date of the leasing agreement, and such other information as the department prescribes. The notification shall be on a form prescribed by the department and shall include all of the following information:

1. The name and mailing address of the professional employer organization or employee leasing organization.

2. The name and mailing address of the worker's compensation insurance carrier of the professional employer organization or employee leasing organization.

3. The names and mailing addresses of all clients of the professional employer organization or employee leasing organization.

(b) If a professional employer organization or employee leasing organization and client intend to terminate an employee leasing agreement, the professional employer organization or employee leasing organization shall notify the department no later than 30 days prior to the termination date of the leasing agreement. The notification to the department shall be on a form prescribed by the department.

(c) When an employee leasing agreement is terminated, termination of the client's coverage under the worker's compensation insurance policy of the professional employer organization or employee leasing organization is not effective until 30 days after the professional employer organization or employee leasing organization has given notice of the termination of the employee leasing agreement to the department under par. (b), and coverage under that policy of the employees providing services to the client under that agreement shall remain in effect until 30 days after the date of that notice.

172,22 Section 22. 102.31 (7) of the statutes is amended to read:

102.31 (7) If the department by one or more written orders specifically consents to the issuance of one or more contracts covering only the liability incurred on a construction project and if the construction project owner designates the insurance carrier and pays for each such contract, the construction project owner shall reimburse the department for all costs incurred by the department in issuing the written orders and in ensuring minimum confusion and maximum safety on the construction project. All moneys received under this subsection shall be deposited in the worker's compensation operations fund and credited to the appropriation account under s. 20.445 (1) (rb).

172,23 Section 23. 102.32 (6) (b) of the statutes is amended to read:

102.32 (6) (b) Subject to par. (d), if the employer or the employer's insurer concedes liability for an injury that results in permanent disability and if the extent of the permanent disability can be determined based on a minimum permanent disability rating promulgated by the department by rule, compensation for permanent disability shall begin within 30 days after the end of the employee's healing period or the date on which compensation for temporary disability ends due to the employee's return to work, whichever is earlier.

172,24 Section 24. 102.32 (6m) of the statutes is amended to read:

102.32 (6m) The department may direct an advance on a payment of unaccrued compensation for permanent disability or death benefits if the department determines that the advance payment is in the best interest of the injured employee or the employee's dependents. In directing the advance, the department shall give the employer or the employer's insurer an interest credit against its liability. The credit shall be computed at 7%. 7 percent. An injured employee or dependent may receive no more than 3 advance payments per calendar year.

172,25 Section 25. 102.33 (2) (a) of the statutes is amended to read:

102.33 (2) (a) Except as provided in pars. (b) and (c), the records of the department, and the records of the commission, related to the administration of this chapter are subject to inspection and copying under s. 19.35 (1).

172,26 Section 26. 102.33 (2) (b) (intro.) of the statutes is amended to read:

102.33 (2) (b) (intro.) Notwithstanding par. (a) Except as provided in this paragraph and par. (d), a record maintained by the department or by the commission that reveals the identity of an employee who claims worker's compensation benefits, the nature of the employee's claimed injury, the employee's past or present medical condition, the extent of the employee's disability, or the amount, type, or duration of benefits paid to the employee or and a record maintained by the department that reveals 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 are confidential and not open to public inspection or copying under s. 19.35 (1). The department or commission 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:

172,27 Section 27. 102.33 (2) (b) 1. of the statutes is amended to read:

102.33 (2) (b) 1. The requester is the employee who is the subject of the record or an attorney or authorized agent of that employee. An attorney or authorized agent of an employee who is the subject of a record shall provide a written authorization for inspection and copying from the employee if requested by the department or the commission.

172,28 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 any worker's compensation claim involving the same employee or an attorney or authorized agent of that insurance carrier or employer, except that the department or the commission 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 or the commission in finding the record requested. An attorney or authorized agent of an insurance carrier or employer that is a party to an employee'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 or the commission.

172,29 Section 29. 102.33 (2) (b) 4. of the statutes is amended to read:

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

172,30 Section 30. 102.33 (2) (c) of the statutes is amended to read:

102.33 (2) (c) Notwithstanding par. (a), a A record maintained by the department or the commission that contains employer or insurer information obtained from the Wisconsin compensation rating bureau under s. 102.31 (8) or 626.32 (1) (a) is confidential and not open to public inspection or copying under s. 19.35 (1) unless the Wisconsin compensation rating bureau authorizes public inspection or copying of that information.

172,31 Section 31. 102.33 (2) (d) of the statutes is created to read:

102.33 (2) (d) 1. In this paragraph:

a. "Government unit" has the meaning given in s. 108.02 (17) and also includes a corresponding unit in the government of another state or a unit of the federal government.

b. "Institution of higher education" has the meaning given in s. 108.02 (18).

c. "Nonprofit research organization" means an organization that is exempt from federal income tax under section 501 (a) of the Internal Revenue Code and whose mission is to engage in research.

2. The department or the commission may release information that is confidential under par. (b) to a government unit, an institution of higher education, or a nonprofit research organization for purposes of research and may release information that is confidential under par. (c) to those persons for that purpose if the Wisconsin compensation rating bureau authorizes that release. A government unit, institution of higher education, or nonprofit research organization may not permit inspection or disclosure of any information released to it under this subdivision that is confidential under par. (b) unless the department or commission authorizes that inspection or disclosure and may not permit inspection or disclosure of any information released to it under this subdivision that is confidential under par. (c) unless the department or commission, and the Wisconsin compensation rating bureau, authorize the inspection or disclosure. A government unit, institution of higher education, or nonprofit research organization that obtains any confidential information under this subdivision for purposes of research shall provide the results of that research free of charge to the person that released or authorized the release of that information.

172,32 Section 32. 102.35 (1) of the statutes is amended to read:

102.35 (1) Every employer and every insurance company that fails to keep the records or to make the reports required by this chapter or that knowingly falsifies such records or makes false reports shall forfeit pay a work injury supplemental benefit surcharge to the state of not less than $10 nor more than $100 for each offense. The department may waive or reduce a forfeiture surcharge imposed under this subsection if the employer or insurance company that violated this subsection requests a waiver or reduction of the forfeiture surcharge within 45 days after the date on which notice of the forfeiture surcharge is mailed to the employer or insurance company and shows that the violation was due to mistake or an absence of information. A surcharge imposed under this subsection is due within 90 days after the date on which notice of the surcharge is mailed to the employer or insurance company. Interest shall accrue on amounts that are not paid when due at the rate of 1 percent per month. All surcharges and interest payments received under this subsection shall be deposited in the fund established under s. 102.65.

172,33 Section 33. 102.42 (1m) (title) of the statutes is created to read:

102.42 (1m) (title) Liability for unnecessary treatment.

172,34 Section 34. 102.42 (2) (b) of the statutes is amended to read:

102.42 (2) (b) The employer is liable for the expense of reasonable travel to obtain treatment at the same rate as is provided for state officers and employees under s. 20.916 (8). The employer is not liable for the expense of unreasonable travel to obtain treatment.

172,35 Section 35. 102.425 of the statutes is created to read:

102.425 Prescription and nonprescription drug treatment. (1) Definitions. In this section:

(a) "Dispense" has the meaning given in s. 450.01 (7).

(b) "Drug" has the meaning given in s. 450.01 (10).

(d) "Nonprescription drug product" has the meaning given in s. 450.01 (13m).

(e) "Pharmacist" has the meaning given in s. 450.01 (15).

(f) "Practitioner" has the meaning given in s. 450.01 (17).

(g) "Prescription" has the meaning given in s. 450.01 (19).

(h) "Prescription drug" has the meaning given in s. 450.01 (20).

(i) "Prescription order" has the meaning given in s. 450.01 (21).

(2) Substitution of drug product equivalents. (a) Except as provided in pars. (b) and (c), when a drug is prescribed to treat an injury for which an employer or insurer is liable under this chapter, the pharmacist or practitioner dispensing the drug shall substitute a drug product equivalent in place of the prescribed drug if all of the following apply:

1. In the professional judgment of the dispensing pharmacist or practitioner, the drug product equivalent is therapeutically equivalent to the prescribed drug.

2. The charge for the drug product equivalent is less than the charge for the prescribed drug.

(b) A pharmacist or practitioner may not substitute a drug product equivalent under par. (a) in place of a prescribed drug if any of the following apply:

1. The prescribed drug is a single-source patented drug for which there is no drug product equivalent.

2. The prescriber determines that the prescribed drug is medically necessary and indicates that no substitution may be made for that prescribed drug by writing on the face of the prescription order or, in the case of a prescription order that is transmitted electronically, by designating in electronic format the phrase "No substitutions" or "Dispense as written" or words of similar meaning or the initials "N.S." or "D.A.W."

(c) Unless par. (b) applies, if an injured employee requests that a specific brand name drug be used to treat the employee's injury, the pharmacist or practitioner dispensing the prescription shall dispense the specific brand name drug as requested. If a specific brand name drug is dispensed under this paragraph, the employer or insurer and the employee shall share the cost of the prescription as follows:

1. The employer or insurer shall be liable in an amount equal to the average wholesale price, as determined under sub. (3) (a) 1., of the lowest-priced drug product equivalent that the pharmacist or practitioner has in stock on the day on which the brand name drug is dispensed, plus the dispensing fee under sub. (3) (a) 2. and any applicable taxes under sub. (3) (a) 3. that would be payable for that drug product equivalent.

2. The employee shall be liable in an amount equal to the difference between the amount for which the employer or insurer is liable under subd. 1. and an amount equal to the average wholesale price, as determined under sub. (3) (a) 1., of the brand name drug on the day on which the brand name drug is dispensed, plus any applicable taxes under sub. (3) (a) 3. that are payable for that brand name drug.

(3) Liability of employer or insurer. (a) The liability of an employer or insurer for the cost of a prescription drug dispensed under sub. (2) for outpatient use by an injured employee is limited to the sum of all of the following:

1. The average wholesale price of the prescription drug as of the date on which the prescription drug is dispensed, as quoted in the American Druggist Blue Book, published by Hearst Corporation, Inc. or its successor, or in the Drug Topics Red Book, published by Medical Economics Company, Inc. or its successor, whichever is less.

2. A dispensing fee of $3 per prescription order, which shall be payable for all prescription drugs dispensed under sub. (2) regardless of the location from which the prescription drug is dispensed, but which shall be payable only to a pharmacist who dispenses the prescription drug.

3. Any state or federal taxes that may be applicable to the prescription drug dispensed.

(b) In addition to the liability under par. (a), an employer or insurer is also liable for reimbursement to an injured employee for all out-of-pocket expenses incurred by the injured employee in obtaining the prescription drug dispensed.

(c) A billing statement submitted to an employer or insurer for a prescription drug dispensed under sub. (2) shall include the national drug code number of the prescription as listed in the national drug code directory maintained by the federal food and drug administration and shall state separately the price of the prescription drug and the dispensing fee.

(4) Liability of employee. (a) Except as provided in par. (b), a pharmacist or practitioner who dispenses a prescription drug under sub. (2) to an injured employee may not collect, or bring an action to collect, from the injured employee any charge that is in excess of the liability of the injured employee under sub. (2) (c) 2. or the liability of the employer or insurer under sub. (3) (a).

(b) If an employer denies or disputes liability for the cost of a drug prescribed to an injured employee under sub. (2), the pharmacist or practitioner who dispensed the drug may collect, or bring an action to collect, from the injured employee the cost of the prescription drug dispensed, subject to the limitations specified in sub. (3) (a).

(5) Nonprescription drug products. The liability of an employer or insurer for the cost of a nonprescription drug product used to treat an injured employee is limited to the usual and customary charge to the general public for the nonprescription drug product.

172,36 Section 36. 102.43 (9) of the statutes is created to read:

102.43 (9) Temporary disability, during which compensation shall be payable for loss of earnings, shall include the period during which an employee could return to a restricted type of work during the healing period, unless any of the following apply: