SB474: Bill Text

Permanent disability payments. Current law requires compensation for permanent disability to begin within 30 days after the end of the employee's healing period, if the employer or insurer concedes liability for the injury and if the extent of the permanent disability can be determined based on a minimum permanent disability rating promulgated by DWD by rule. This bill requires compensation for permanent disability to begin in that situation 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.

Under current law, DWD may direct an employer or insurer to pay unaccrued compensation for permanent disability or death benefits to an injured employee or the employee's dependents in advance if DWD determines that the advance payment is in the best interest of the injured employee or the employee's dependents. This bill permits an injured employee or the employee's dependents to receive not more than three advance payments per calendar year.

Maximum compensation amounts

Maximum weekly compensation rates. Under current law, temporary and permanent disability benefits and death benefits are subject to maximum weekly compensation rates specified in statute. Specifically, the maximum weekly compensation rate for temporary disability, permanent total disability, or death benefits is 110 percent of the state's average weekly earnings as of June 30 of the previous year for injuries occurring before January 1, 2006, and 100 percent of the state's average weekly earnings as of June 30 of the previous year for injuries occurring on or after January 1, 2006. This bill continues the maximum weekly compensation rate for temporary disability, permanent total disability, and death benefits at 110 percent of the state's average weekly earnings as of June 30 of the previous year for injuries occurring on or after the effective date of the bill.

Currently, the maximum weekly compensation rate for permanent partial disability is $242. This bill increases that maximum weekly compensation rate to $252 for injuries occurring before January 1, 2007, and to $262 for injuries occurring on or after that date.

Supplemental benefits. Under current law, an injured employee who is receiving the maximum weekly benefit in effect at the time of the injury for permanent total disability or continuous temporary total disability resulting from an injury that occurred before May 13, 1980, is entitled to receive supplemental benefits in an amount that, when added to the employee's regular benefits, equals $233. This bill makes an employee who is injured prior to January 1, 1985, eligible for those supplemental benefits beginning on January 1, 2006, and an employee who is injured prior to January 1, 1987, eligible for those supplemental benefits beginning on January 1, 2007. The bill also increases the maximum supplemental benefit amount for a week of disability occurring after the effective date of the bill to an amount that, when added to the employee's regular benefits, equals $321 and increases the maximum supplemental benefit for a week of disability occurring after January 1, 2007, to an amount, that when added to the employee's regular benefits, equals $338.

Work injury supplemental benefit fund

Death or disability payments. Current law requires an employer to pay into the state treasury $10,000 in each case of injury resulting in death or in the loss or total impairment of a hand, arm, foot, leg, or eye. Those payments are deposited in the work injury supplemental benefit (WISB) fund, which is a fund that is used to pay compensation when an otherwise meritorious claim is barred by the statute of limitations, when the status or existence of the employer or insurer cannot be determined, or when there is otherwise no adequate remedy. This bill increases those payments to $20,000.

Traumatic injuries. Under current law, an application for compensation that is not filed within 12 years from the date of the injury or from the date that compensation, other than treatment expenses, was last paid, whichever is later, is barred by the statute of limitations, except that in cases of occupational disease or in cases of traumatic injury resulting in the loss or total impairment of a hand or any part of the rest of the arm proximal to, that is, toward the trunk from, the hand or of a foot or any part of the rest of the leg proximal to the foot, any loss of vision, any permanent brain injury, or any injury causing the need for a total or partial knee or hip replacement (traumatic injury) there is no statute of limitations. In cases in which there is no statute of limitations, benefits or treatment expenses becoming due 12 years after the date of the injury or after the date that compensation was last paid, whichever is later, are paid not by the employer or insurer, but rather by DWD from the WISB fund. This bill requires the employer or insurer, rather than DWD from the WISB fund, to pay benefits or treatment expenses becoming due 12 years after that date in cases of traumatic injury. The bill also includes among the traumatic injuries that are not barred by the statute of limitations any traumatic injury that causes the need for an artificial spinal disc.

Illegally employed minors. Under current law, if an injury is sustained by a minor who is permitted to work without a work permit, the employer is liable for double the amount of compensation otherwise recoverable, up to $7,500, and if a minor is injured while employed in employment that is prohibited to minors generally or to minors of the minor's age, the employer is liable for treble the amount of compensation otherwise recoverable, up to $15,000 (increased compensation). If, however, the employer is misled into employing a minor illegally because of fraudulent written evidence of age presented by the minor, the employer is required to pay the increased compensation to the WISB fund rather than to the minor.

This bill eliminates the requirement that an employer pay increased compensation to a minor who is illegally employed. Instead, the bill requires the employer of an injured minor who is permitted to work without a work permit to pay an amount equal to the amount recoverable by the minor, but not to exceed $7,500, to the WISB fund. Similarly, the bill requires the employer of a minor who is injured while employed in employment that is prohibit to minors generally or to minors of the minor's age to pay double the amount recoverable by the minor, but not to exceed $15,000, to the WISB fund. In addition, the bill eliminates the requirement that an employer pay increased compensation to the WISB fund when the employer is misled into employing a minor illegally because of fraudulent written evidence of age presented by the minor.

Surcharges and assessments. Current law requires employers that are subject to the worker's compensation law to keep records of all accidents causing death or disability of an employee while performing services growing out of and incidental to the employee's employment, requires insurers and self-insured employers to keep records of all payments made under the worker's compensation law, and requires reports based on those records to be furnished to DWD at the times and in the manner as DWD may require by rule or general order. An employer or insurer that fails to keep those records or to make those reports is subject to a forfeiture of not less than $10 nor more than $100 for each offense, which under the Wisconsin Constitution must be deposited in the school fund.

This bill requires an employer or insurer that fails to keep those records or to make those reports to pay a surcharge, instead of a forfeiture, and directs those surcharges to be deposited in the WISB fund. The bill also provides that interest shall accrue on the amount of a surcharge that is not paid within 90 days after the date on which notice of the surcharge is mailed to an employer or insurer at the rate of 1 percent per month and that all interest payments received shall be deposited in the WISB fund.

Under current law, each insurer and self-insured employer is required to pay to DWD an annual assessment that is used to cover the costs and expenses incurred by the Council on Worker's Compensation, DWD, and LIRC in the administration of the worker's compensation law (annual assessment). Current law requires those annual assessments to be paid on such dates as DWD prescribes. This bill provides that interest shall accrue on annual assessments that are not paid within 90 days after the date prescribed by DWD for payment at the rate of 1 percent per month and that all interest payments received shall be deposited in the WISB fund.

Hearings and procedures

Reports considered substantial evidence. Under current law, the circuit court may set aside an order or award made by LIRC if the order or award depends on any material or controverted finding of fact that is not supported by credible and substantial evidence, which has been defined in case law as "that quantity and quality of evidence which a reasonable man could accept as adequate to support a conclusion." DeGayner v. DNR, 70 Wis. 2d 936 (1975). Recently, the Wisconsin Supreme Court held, in Gehin v. Wis. Group Ins. Bd., 2005 WI 16, 278 Wis. 2d 111, that medical reports that are not corroborated by in-person testimony do not constitute substantial evidence.

This bill provides that certified medical reports and records, certified reports of experts concerning loss of earning capacity, and certified reports of industrial safety specialists that are admitted or received into evidence by a DWD hearing examiner constitute substantial evidence as to the matter contained in those reports or records.

Necessity of treatment standards. Under current law, DWD has jurisdiction to resolve disputes between health care providers and insurers or self-insured employers over the necessity of treatment provided to an injured employee. DWD may exercise that jurisdiction when confirming a compromise or stipulation agreed to between the insurer or self-insured employer and the employee, when making its findings following a hearing on a contested case, or when exercising its jurisdiction under a necessity of treatment dispute resolution process set forth in the statutes. Before determining necessity of treatment under the statutory necessity of treatment dispute resolution process, DWD must obtain a written opinion on the necessity of the treatment in dispute from an expert selected by DWD. Before determining necessity of treatment when confirming a compromise or stipulation or when making its findings of fact on a contested case, DWD may obtain such a written opinion.

This bill requires DWD to promulgate rules establishing standards for determining the necessity of treatment provided to an injured employee and requires those standards to be applied by experts in rendering opinions as to necessity of treatment and by DWD in determining necessity of treatment.

Penalties for bad faith. Under current law, if DWD determines that the employer or insurer suspended, terminated, or failed to make payments or failed to report an injury as a result of malice or bad faith, DWD may include a penalty not to exceed the lesser of 200 percent of total compensation due or $15,000. Current law also permits DWD to increase the payment that is due an injured employee by 10 percent if the employer or insurer inexcusably delays in making payment (increased payment).

This bill increases the maximum penalty for malice or bad faith to the lesser of 200 percent of total compensation due or $30,000 and permits that penalty to be imposed for each event or occurrence of malice or bad faith. The bill also prohibits DWD from ordering an increased payment on an inexcusably delayed payment if DWD imposes a penalty for an event or occurrence of malice or bad faith that causes the delayed payment. In addition, the bill prohibits DWD from ordering interest on an overdue payment if DWD imposes such a penalty.

Program administration

Separate funds for worker's compensation purposes. Under current law, annual assessments paid by insurers and self-insured employers are deposited in the general fund and credited to certain program revenue appropriations of DWD. This bill provides that those annual assessments paid shall constitute a separate nonlapsible fund designated as the worker's compensation operations fund and that moneys in that fund may be expended only for worker's compensation purposes and may not be used for any other purpose of the state. The bill similarly provides that moneys in the self insured employers liability fund, the WISB fund, and the uninsured employers fund under current law may be expended only for the purposes of those funds and not for any other purpose of the state.

Final practitioner's report fees. Under current DWD rules, if an injured employee has a period of temporary disability of more than three weeks or a permanent disability, the insurer or self-insured employer must submit to DWD a final treating practitioner's report. This bill also requires that report to be submitted when an injured employee has undergone surgery to treat his or her injury, other than surgery to correct a hernia. The bill permits a treating practitioner to charge a reasonable fee for the completion of that report, but prohibits a treating practitioner from requiring prepayment of that fee. The bill also permits an insurer or self-insured employer that disputes the reasonableness of such a fee to submit that dispute to DWD for resolution under the statutory health service fee dispute resolution process.

Confidentiality of records. Under current law, the records of DWD relating to the administration of the worker's compensation law are subject to inspection and copying under the open records law, except that records that reveal 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, the amount, type, and duration of any benefits paid to the employee, or any financial information provided to DWD by a self-insured employer are confidential and may not be disclosed except to the employee who is the subject of the record, to an insurance carrier or employer that is a party to any worker's compensation claim involving the same employee, to a court of competent jurisdiction, to the subunit of DWD that administers child support or a county child support agency, or to the Department of Revenue. Also, under current law, a record maintained by DWD that contains employer or insurer information obtained from the Wisconsin Compensation Rating Bureau (bureau) is confidential and not open to inspection or copying unless the bureau authorizes inspection or copying of that information.

This bill extends the confidentiality and disclosure provisions that are applicable to the records of DWD under current law to the records of LIRC. The bill also permits DWD and LIRC to release confidential information to a government unit, an institution of higher education, or a nonprofit research agency for purposes of research, prohibits a government unit, institution of higher education, or nonprofit research agency from permitting inspection or disclosure of that information unless authorized by DWD or LIRC (and by the bureau if the information was obtained from the bureau), and requires a government unit, institution of higher education, or nonprofit research agency that obtains such information for purposes of research to provide the results of that research to DWD or LIRC (and to the bureau if the information was obtained from the bureau) free of charge.

Professional employer organization and employee leasing organization reports. Under current unemployment insurance law, a "professional employer organization" is defined in part as any person who contracts to provide the nontemporary, ongoing employee workforce of a client under a written leasing contract. This bill requires a professional employer organization or an employee leasing organization that enters into an employee leasing agreement with a client to submit to DWD, within ten working days after the effective date of the agreement, a report disclosing the identity of the client, the effective date of the agreement, and such other information as DWD prescribes and a professional employer organization or an employee leasing organization that intends to terminate an employee leasing agreement to notify DWD of that termination no later than 30 days prior to the termination date of the agreement. Under the bill, 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 that agreement to DWD.

General coverage

Employee wellness events or activities. Finally, current law specifies that an employer is not liable for compensation when an employee sustains an injury while engaging in a program designed to improve the employee's physical well-being, if participation in the program is voluntary and uncompensated. This bill extends that exception to exclude from coverage injuries sustained while an employee is engaging in an event or activity, as well as a program, designed to improve the employee's physical well-being.

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:

SB474, s. 1 Section 1. 20.445 (1) (ha) of the statutes is renumbered 20.445 (1) (ra) and amended to read:

SB474,9,7 20.445 (1) (ra) Worker's compensation operations. The fund; administration. From the worker's compensation operations fund, the amounts in the schedule for the administration of the worker's compensation program by the department. All moneys received under ss. 102.28 (2) (b) and 102.75 for the department's activities and not appropriated under par. (hp) (rp) shall be credited to this appropriation. From this appropriation, an amount not to exceed $5,000 may be expended each fiscal year for payment of expenses for travel and research by the council on worker's compensation.

SB474, s. 2 Section 2. 20.445 (1) (hb) of the statutes is renumbered 20.445 (1) (rb) and amended to read:

SB474,10,9 20.445 (1) (rb) Worker's compensation operations fund; contracts. All From the worker's compensation operations fund, all moneys received in connection with contracts entered into under s. 102.31 (7) for the purpose of carrying out those contracts.

SB474, s. 3 Section 3. 20.445 (1) (hp) of the statutes is renumbered 20.445 (1) (rp) and amended to read:

SB474,10,15 20.445 (1) (rp) Uninsured Worker's compensation operations fund; uninsured employers program; administration. From the moneys received under s. 102.75 worker's compensation operations fund, the amounts in the schedule for the administration of ss. 102.28 (4) and 102.80 to 102.89.

SB474, s. 4 Section 4. 20.445 (1) (t) of the statutes is amended to read:

SB474,10,20 20.445 (1) (t) Work injury supplemental benefit fund. All moneys paid into the work injury supplemental benefit fund under ss. 102.35 (1), 102.47, 102.49 and, 102.59, 102.60, and 102.75 (2), to be used for the discharge of liabilities payable under ss. 102.44 (1), 102.49, 102.59, 102.63, 102.64 (2), and 102.66.

SB474, s. 5 Section 5. 25.17 (1) (zd) of the statutes is created to read:

SB474,10,22 25.17 (1) (zd) Worker's compensation operations fund (s. 102.75).

SB474, s. 6 Section 6. 102.03 (1) (c) 3. of the statutes is amended to read:

SB474,11,8 102.03 (1) (c) 3. An employee is not performing service growing out of and incidental to his or her employment while going to or from employment in a private or group or employer-sponsored car pool, van pool, commuter bus service, or other ride-sharing program in which the employee participates voluntarily and the sole purpose of which is the mass transportation of employees to and from employment. An employee is not performing service growing out of and incidental to employment while engaging in a program, event, or activity designed to improve the physical well-being of the employee, whether or not the program, event, or activity is located on the employer's premises, if participation in the program, event, or activity is voluntary and the employee receives no compensation for participation.

SB474, s. 7 Section 7. 102.04 (2m) of the statutes is amended to read:

SB474,11,18 102.04 (2m) A temporary help agency is the employer of an employee whom the temporary help agency has placed with or leased to another employer that compensates the temporary help agency for the employee's services. A temporary help agency is liable under s. 102.03 for all compensation and other payments payable under this chapter to or with respect to that employee, including any payments required under s. 102.16 (3), 102.18 (1) (b) or (bp), 102.22 (1), 102.35 (3), 102.57, or 102.60. Except as permitted under s. 102.29, a temporary help agency may not seek or receive reimbursement from another employer for any payments made as a result of that liability.

SB474, s. 8 Section 8. 102.11 (1) (intro.) of the statutes is amended to read:

SB474,12,19 102.11 (1) (intro.) The average weekly earnings for temporary disability, permanent total disability, or death benefits for injury in each calendar year on or after January 1, 1982, shall be not less than $30 nor more than the wage rate that results in a maximum compensation rate of 110% 110 percent of the state's average weekly earnings as determined under s. 108.05 as of June 30 of the previous year, except that the average weekly earnings for temporary disability, permanent total disability, or death benefits for injuries occurring on or after January 1, 2006, shall be not more than the wage rate that results in a maximum compensation rate of 100% of the state's average weekly earnings as determined under s. 108.05 as of June 30 of the previous year. The average weekly earnings for permanent partial disability shall be not less than $30 and, for permanent partial disability for injuries occurring on or after January 1, 2002, and before January 1, 2003, not more than $318, resulting in a maximum compensation rate of $212, for permanent partial disability for injuries occurring on or after January 1, 2003, and before January 1, 2004, not more than $333, resulting in a maximum compensation rate of $222, for permanent partial disability for injuries occurring on or after January 1, 2004, and before January 1, 2005, not more than $348, resulting in a maximum compensation rate of $232, and, for permanent partial disability for injuries occurring on or after January 1, 2005, and before January 1, 2006, not more than $363, resulting in a maximum compensation rate of $242 on or after the effective date of this subsection .... [revisor inserts date], and before January 1, 2007, not more than $378, resulting in a maximum compensation rate of $252, and, for permanent partial disability for injuries occurring on or after January 1, 2007, not more than $393, resulting in a maximum compensation rate of $262. Between such limits the average weekly earnings shall be determined as follows:

SB474, s. 9 Section 9. 102.13 (2) (c) of the statutes is created to read:

SB474,13,5 102.13 (2) (c) If an injured employee has a period of temporary disability that exceeds 3 weeks or a permanent disability or if the injured employee has undergone surgery to treat his or her injury, other than surgery to correct a hernia, the department may by rule require the insurer or self-insured employer to submit to the department a final report of the employee's treating practitioner. A treating practitioner may charge a reasonable fee for the completion of the final report, but may not require prepayment of that fee. An insurer or self-insured employer that disputes the reasonableness of a fee charged for the completion of a treatment practitioner's final report may submit that dispute to the department for resolution under s. 102.16 (2).

SB474, s. 10 Section 10. 102.16 (1m) (b) of the statutes is amended to read:

SB474,13,18 102.16 (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.

SB474, s. 11 Section 11. 102.16 (2m) (c) of the statutes is amended to read:

SB474,14,13 102.16 (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.

SB474, s. 12 Section 12. 102.16 (2m) (g) of the statutes is amended to read:

SB474,14,25 102.16 (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.

SB474, s. 13 Section 13. 102.17 (1) (d) 4. of the statutes is created to read:

SB474,15,4 102.17 (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.

SB474, s. 14 Section 14. 102.17 (1) (h) of the statutes is amended to read:

SB474,15,12 102.17 (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.

SB474, s. 15 Section 15. 102.17 (4) of the statutes is amended to read:

SB474,16,7 102.17 (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.

SB474, s. 16 Section 16. 102.18 (1) (bg) 2. of the statutes is amended to read:

SB474,16,19 102.18 (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.

SB474, s. 17 Section 17. 102.18 (1) (bp) of the statutes is amended to read:

SB474,17,13 102.18 (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.

SB474, s. 18 Section 18. 102.23 (5) of the statutes is amended to read:

SB474,17,20 102.23 (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.

SB474, s. 19 Section 19. 102.28 (8) of the statutes is amended to read:

SB474,18,2 102.28 (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.

SB474, s. 20 Section 20. 102.29 (1) of the statutes is amended to read:

SB474,19,21 102.29 (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.

SB474, s. 21 Section 21. 102.31 (2m) of the statutes is created to read:

SB474,20,4 102.31 (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:

SB474,20,6 1. The name and mailing address of the professional employer organization or employee leasing organization.

SB474,20,8 2. The name and mailing address of the worker's compensation insurance carrier of the professional employer organization or employee leasing organization.

SB474,20,10 3. The names and mailing addresses of all clients of the professional employer organization or employee leasing organization.

SB474,20,15 (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.

SB474,20,23 (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.

SB474, s. 22 Section 22. 102.31 (7) of the statutes is amended to read:

SB474,21,9 102.31 (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).

SB474, s. 23 Section 23. 102.32 (6) (b) of the statutes is amended to read:

SB474,21,17 102.32 (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.

SB474, s. 24 Section 24. 102.32 (6m) of the statutes is amended to read:

SB474,21,25 102.32 (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.

SB474, s. 25 Section 25. 102.33 (2) (a) of the statutes is amended to read:

SB474,22,4 102.33 (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).

SB474, s. 26 Section 26. 102.33 (2) (b) (intro.) of the statutes is amended to read: