2005 Wisconsin Act 172

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).

(c) "Drug product equivalent" has the meaning given in s. 450.13 (1).

(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:

(a) Suitable employment that is within the physical and mental limitations of the employee is furnished to the employee by the employer or some other employer. For purposes of this paragraph, if the employer or some other employer makes a good faith offer of suitable employment that is within the physical and mental limitations of the employee and if the employee refuses without reasonable cause to accept that offer, the employee is considered to have returned to work as of the date of the offer at the earnings that the employee would have received but for the refusal. In case of a dispute as to the extent of an employee's physical or mental limitations or as to what employment is suitable within those limitations, the employee may file an application under s. 102.17 and ss. 102.17 to 102.26 shall apply.

(b) The employee's employment with the employer has been suspended or terminated due to the employee's alleged commission of a crime, the circumstances of which are substantially related to that employment, and the employee has been charged with the commission of that crime. If the employee is not found guilty of the crime, compensation for temporary disability shall be payable in full.

(c) The employee's employment with the employer has been suspended or terminated due to the employee's violation of the employer's policy concerning employee drug use during the period when the employee could return to a restricted type of work during the healing period. Compensation for temporary disability may be denied under this paragraph only if prior to the date of injury the employer's policy concerning employee drug use was established in writing and regularly enforced by the employer.

172,37 Section 37. 102.44 (1) (intro.) of the statutes is amended to read:

102.44 (1) (intro.) Notwithstanding any other provision of this chapter, every employee who is receiving compensation under this chapter for permanent total disability or continuous temporary total disability more than 24 months after the date of injury resulting from an injury which occurred prior to May 13, 1980 January 1, 1985, shall receive supplemental benefits which shall be payable in the first instance by the employer or the employer's insurance carrier, or in the case of benefits payable to an employee under s. 102.66, shall be paid by the department out of the fund created under s. 102.65. These supplemental benefits shall be paid only for weeks of disability occurring after January 1, 1982 1987, and shall continue during the period of such total disability subsequent to that date.

172,38 Section 38 . 102.44 (1) (intro.) of the statutes, as affected by 2005 Wisconsin Act .... (this act), is amended to read:

102.44 (1) (intro.) Notwithstanding any other provision of this chapter, every employee who is receiving compensation under this chapter for permanent total disability or continuous temporary total disability more than 24 months after the date of injury resulting from an injury which occurred prior to January 1, 1985 1987, shall receive supplemental benefits which shall be payable in the first instance by the employer or the employer's insurance carrier, or in the case of benefits payable to an employee under s. 102.66, shall be paid by the department out of the fund created under s. 102.65. These supplemental benefits shall be paid only for weeks of disability occurring after January 1, 1987 1989, and shall continue during the period of such total disability subsequent to that date.

172,39 Section 39. 102.44 (1) (a) of the statutes is amended to read:

102.44 (1) (a) If such employee is receiving the maximum weekly benefits in effect at the time of the injury, the supplemental benefit for a week of disability occurring after March 30, 2004 the effective date of this paragraph .... [revisor inserts date], shall be an amount which, when added to the regular benefit established for the case, shall equal $233 $321.

172,40 Section 40. 102.44 (1) (a) of the statutes, as affected by 2005 Wisconsin Act .... (this act), is repealed and recreated to read:

102.44 (1) (a) If such employee is receiving the maximum weekly benefits in effect at the time of the injury, the supplemental benefit for a week of disability occurring after January 1, 2007, shall be an amount which, when added to the regular benefit established for the case, shall equal $338.

172,41 Section 41. 102.44 (1) (b) of the statutes is amended to read:

102.44 (1) (b) If such employee is receiving a weekly benefit which is less than the maximum benefit which was in effect on the date of the injury, the supplemental benefit for a week of disability occurring after March 30, 2004 the effective date of this paragraph .... [revisor inserts date], shall be an amount sufficient to bring the total weekly benefits to the same proportion of $233 $321 as the employee's weekly benefit bears to the maximum in effect on the date of injury.

172,42 Section 42. 102.44 (1) (b) of the statutes, as affected by 2005 Wisconsin Act .... (this act), is repealed and recreated to read:

102.44 (1) (b) If such employee is receiving a weekly benefit which is less than the maximum benefit which was in effect on the date of the injury, the supplemental benefit for a week of disability occurring after January 1, 2007, shall be an amount sufficient to bring the total weekly benefits to the same proportion of $338 as the employee's weekly benefit bears to the maximum in effect on the date of injury.

172,43 Section 43. 102.49 (5) (a) of the statutes is amended to read:

102.49 (5) (a) In each case of injury resulting in death, the employer or insurer shall pay into the state treasury the sum of $10,000 $20,000.

172,44 Section 44. 102.49 (5) (e) of the statutes is amended to read:

102.49 (5) (e) The adjustments in compensation liability provided in ss. 102.57, 102.58, and 102.60 do not apply to payments made under this section.

172,45 Section 45. 102.59 (2) of the statutes is amended to read:

102.59 (2) In the case of the loss or of the total impairment of a hand, arm, foot, leg, or eye, the employer shall pay $10,000 $20,000 into the state treasury. The payment shall be made in all such cases regardless of whether the employee or the employee's dependent or personal representative commences action against a 3rd party as provided in s. 102.29.

172,46 Section 46. 102.60 (title) of the statutes is amended to read:

102.60 (title) Minor illegally employed , compensation.

172,47 Section 47. 102.60 (intro.) of the statutes is renumbered 102.60 (1m) (intro.) and amended to read:

102.60 (1m) (intro.) When the injury is sustained by a minor who is illegally employed, the employer, in addition to paying compensation or wage loss under sub. (6) to the minor and death benefits to the dependents of the minor, shall be as follows pay the following amounts into the state treasury, for deposit in the fund established under s. 102.65:

172,48 Section 48. 102.60 (1) of the statutes is renumbered 102.60 (1m) (a) and amended to read:

102.60 (1m) (a) Double An amount equal to the amount otherwise recoverable by the injured employee, but not to exceed $7,500, if the injured employee is a minor of permit age, and at the time of the injury is employed, required, suffered, or permitted to work without a written permit issued pursuant to under ch. 103, except as provided in sub. (2) pars. (b) to (d).

172,49 Section 49. 102.60 (2) of the statutes is renumbered 102.60 (1m) (b) and amended to read:

102.60 (1m) (b) Treble An amount equal to double the amount otherwise recoverable by the injured employee, but not to exceed $15,000, if the injured employee is a minor of permit age, and at the time of the injury is employed, required, suffered, or permitted to work without a permit in any place of employment or at any employment in or for which the department acting under authority of ch. 103, has adopted a written resolution providing that permits shall not be issued.

172,50 Section 50. 102.60 (3) of the statutes is renumbered 102.60 (1m) (c) and amended to read:

102.60 (1m) (c) Treble An amount equal to double the amount otherwise recoverable by the injured employee, but not to exceed $15,000, if the injured employee is a minor of permit age, and at the time of the injury is employed, required, suffered, or permitted to work at prohibited employment.

172,51 Section 51. 102.60 (4) of the statutes is renumbered 102.60 (1m) (d) and amended to read:

102.60 (1m) (d) Treble An amount equal to double the amount otherwise recoverable by the injured employee, but not to exceed $15,000, if the injured employee is a minor under permit age and is illegally employed.

172,52 Section 52. 102.60 (5) (a) of the statutes is amended to read:

102.60 (5) (a) A permit or certificate of age that is unlawfully issued by an officer specified in ch. 103, or that is unlawfully altered after issuance, without fraud on the part of the employer, shall be deemed considered a permit within the provisions for purposes of this section.

172,53 Section 53. 102.60 (5) (b) of the statutes is amended to read:

102.60 (5) (b) If the employer is misled in employing a minor illegally because of fraudulent written evidence of age presented by the minor, the increased compensation provided by this section shall not be paid to the employee, but shall be paid into the fund established by s. 102.65 employer is not required to pay the amounts specified in sub. (1m).

172,54 Section 54. 102.60 (6) of the statutes is amended to read:

102.60 (6) If the amount recoverable under this section by a minor employee for temporary disability shall be is less than the actual loss of wage sustained by the minor employee, then liability shall exist for such that loss of wage.

172,55 Section 55. 102.60 (7) of the statutes is amended to read:

102.60 (7) Subsections (1) to (6) shall This section does not apply to employees an employee, as defined in s. 102.07 (6), if the agency or publisher shall establish establishes by affirmative proof that at the time of the injury the employee was not employed with the actual or constructive knowledge of such the agency or publisher.

172,56 Section 56. 102.60 (8) of the statutes is amended to read:

102.60 (8) This section shall does not apply to liability arising under s. 102.06 unless the employer sought to be charged knew or should have known that the minor was illegally employed by the contractor or subcontractor.

172,57 Section 57. 102.60 (9) of the statutes is repealed.

172,58 Section 58. 102.61 (1) of the statutes is amended to read:

102.61 (1) Subject to subs. (1g) and (1m), an employee who is entitled to receive and has received compensation under this chapter, and who is entitled to and is receiving instructions under 29 USC 701 to 797b, as administered by the state in which the employee resides or in which the employee resided at the time of becoming physically disabled, shall, in addition to other indemnity, be paid the actual and necessary expenses of travel at the same rate as is provided for state officers and employees under s. 20.916 (8) and, if the employee receives instructions elsewhere than at the place of residence, the actual and necessary costs of maintenance, during rehabilitation, subject to the conditions and limitations specified in sub. (1r).

172,59 Section 59. 102.61 (1m) (c) of the statutes is amended to read:

102.61 (1m) (c) The employer or insurance carrier shall pay the reasonable cost of any services provided for an employee by a private rehabilitation counselor under par. (a) and, subject to the conditions and limitations specified in sub. (1r) (a) to (c) and by rule, if the private rehabilitation counselor determines that rehabilitative training is necessary, the reasonable cost of the rehabilitative training program recommended by that counselor, including the cost of tuition, fees, books, and maintenance, and travel expenses at the same rate as is provided for state officers and employees under s. 20.916 (8). Notwithstanding that the department may authorize under s. 102.43 (5) a rehabilitative training program that lasts longer than 80 weeks, a rehabilitative training program that lasts 80 weeks or less is presumed to be reasonable.

172,60 Section 60. 102.62 of the statutes is amended to read:

102.62 Primary and secondary liability; unchangeable. In case of liability for the increased compensation or increased death benefits provided for by under s. 102.57, or included in s. or 102.60, the liability of the employer shall be primary and the liability of the insurance carrier shall be secondary. In case If proceedings are had before the department for the recovery of such increased compensation or increased death benefits that liability, the department shall set forth in its award the amount and order of liability as herein provided in this section. Execution shall not be issued against the insurance carrier to satisfy any judgment covering such increased compensation or increased death benefits that liability until execution has first been issued against the employer and has been returned unsatisfied as to any part thereof of that liability. Any provision in any insurance policy undertaking to guarantee primary liability or to avoid secondary liability for such increased compensation or increased death benefits shall be a liability under s. 102.57 or 102.60 is void. In case If the employer shall have has been adjudged bankrupt, or have has made an assignment for the benefit of creditors, or if the employer, other than an individual, have has gone out of business or have has been dissolved, or if the employer is a corporation, and its charter have has been forfeited or revoked, the insurer shall be liable for the payment of increased compensation and death benefits that liability without judgment or execution against the employer, but without altering the primary liability of the employer.

172,61 Section 61. 102.65 (1) of the statutes is amended to read:

102.65 (1) The moneys payable to the state treasury under ss. 102.35 (1), 102.47, 102.49 and , 102.59, and 102.60, together with all accrued interest on those moneys, and all interest payments received under s. 102.75 (2), shall constitute a fund to be known as the "Work Injury Supplemental Benefit Fund" separate nonlapsible fund designated as the work injury supplemental benefit fund. Moneys in the fund may be expended only as provided in s. 20.445 (1) (t) and may not be used for any other purpose of the state.

172,62 Section 62. 102.66 (1) of the statutes is amended to read: