February 4, 2008 - Introduced by Representative Honadel, cosponsored by
Senator Coggs, by request of Worker's Compensation Advisory Council.
Referred to Committee on Labor and Industry.
AB758,2,2
1An Act to repeal 102.31 (2m) and 102.65 (3);
to renumber and amend 102.29
2(6), 102.32 (intro.), 102.32 (1), 102.32 (2), 102.32 (3), 102.32 (4) and 102.555 (1);
3to amend 102.03 (4), 102.11 (1) (intro.), 102.16 (1m) (a), 102.16 (1m) (b), 102.16
4(2) (a), 102.16 (2) (am), 102.16 (2m) (a), 102.16 (2m) (am), 102.16 (2m) (c), 102.16
5(2m) (g), 102.16 (3), 102.17 (4), 102.18 (1) (bg) 1., 102.18 (1) (bg) 2., 102.26 (2),
6102.32 (5), 102.32 (6m), 102.42 (1), 102.42 (4), 102.425 (3) (a) 1., 102.425 (4) (b),
7102.44 (1) (intro.), 102.44 (1) (a), 102.44 (1) (b), 102.64 (2), 102.80 (3) (ag), 102.83
8(1) (a) 1., 102.83 (1) (a) 2., 102.83 (1) (a) 3., 102.83 (1) (a) 4., 102.83 (1) (b), 102.83
9(2), 102.83 (3), 102.83 (4), 102.83 (8), 102.835 (2), 102.835 (4) (a), 102.835 (4) (c),
10102.835 (5) (a), 102.835 (7) (a), 102.835 (12), 102.835 (13) (a), 102.835 (13) (b),
11102.835 (13) (d), 102.835 (14), 102.835 (19), 626.35 (1), 631.37 (3) and 632.98;
12and
to create 102.16 (1m) (c), 102.18 (1) (bg) 3., 102.29 (6) (a), 102.29 (6) (b) 2.,
13102.29 (6) (b) 3., 102.29 (6) (c), 102.29 (6m), 102.315, 102.425 (4m), 102.555 (1)
1(c), 102.555 (12) and 102.835 (1) (ad) of the statutes;
relating to: making
2various changes in the worker's compensation law.
Analysis by the Legislative Reference Bureau
This bill makes various changes to the worker's compensation law, as
administered by the Department of Workforce Development (DWD).
General coverage
Employee leasing companies. Under current law, a professional employer
organization or an employee leasing organization that enters into an employee
leasing agreement with a client must 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
an employee leasing organization that intends to terminate an employee leasing
agreement must notify DWD of that termination no later than 30 days prior to the
termination date of the agreement. Currently, when an employee leasing agreement
is terminated, termination of the client's coverage under the worker's compensation
insurance policy of the employee leasing organization is not effective until 30 days
after the employee leasing organization has given notice of the termination of that
agreement to DWD.
This bill eliminates those current requirements relating to employee leasing
organizations. Instead the bill provides that a person that contracts to provide the
nontemporary, ongoing employee workforce of a client under an employee leasing
agreement (employee leasing company) is liable for any worker's compensation
payable to the leased employee and may not seek or receive reimbursement from the
client for any payments made as a result of that liability.
Subject to certain exceptions, the bill requires an employee leasing company to
insure its worker's compensation liability by obtaining a contract of insurance under
which the insurer issues separate worker's compensation policies to the employee
leasing company for each of its clients that are insured by the insurer (multiple
coordinated policy). A multiple coordinated policy must name both the employee
leasing company and the client as named insureds and must designate either the
employee leasing company or the client, but not both, as the first named insured. An
insurer may issue a multiple coordinated policy for a client only if all of the employees
of the client are leased employees and are covered under the policy, except that an
insurer may issue a multiple coordinated policy for a client that has a workforce in
which some of the employees are leased employees and some are not leased
employees (divided workforce) if the client notifies DWD of its intent to have a plan
under which two policies are issued to cover the employees of the client, one covering
the leased employees of the client and the other covering the employees of the client
who are not leased employees (divided workforce plan).
Under the bill, an employee leasing company may also insure its worker's
compensation liability by obtaining a single policy in its name covering more than
one client of the employee leasing company (master policy) that has been approved
by the commissioner of insurance (commissioner). The commissioner may approve
the issuance of a master policy if the insurer shows that it has the technological
capacity and operational capability to provide to the Wisconsin Compensation
Rating Bureau (bureau) certain information at the client level, including unit
statistical data, information concerning proof of coverage and cancellation
termination, and nonrenewal of coverage, and any other information that the bureau
may require. A master policy must also establish rules governing the issuance of an
insurance policy covering the leased employees of a divided workforce and the
cancellation, termination, and nonrenewal of policies.
Regardless of whether the commissioner has approved the issuance of a master
policy, the bill permits an employee leasing company to insure its worker's
compensation liability with respect to a group of clients, each of which has an
unmodified annual premium that is equal to or less than the threshold below which
employers are not experience rated under the standards and criteria of the bureau
(small clients) by obtaining a master policy in the voluntary market (as opposed to
under the state mandatory risk-sharing plan, which is a plan established or
approved by the commissioner under which risks that are unable to obtain coverage
in the voluntary market may obtain coverage) insuring that liability. An insurer may
issue a master policy covering a group of small clients regardless of whether any of
those small clients has a divided workforce. If at any time the unmodified annual
premium of a small client that is covered under a master policy exceeds the threshold
below which employers are not experience rated, the employee leasing company
must notify the insurer and obtain coverage for the small client under a multiple
coordinated policy or a master policy that has been approved by the commissioner.
In addition, the bill permits an insurer to issue a policy covering only the leased
employees of a client that has a divided workforce if the client notifies DWD of its
intent to have a divided workforce. Under the bill, a client that has a divided
workforce must insure its employees who are not leased employees in the voluntary
market and may not insure those employees under the state mandatory risk-sharing
plan, unless the leased employees of the client are covered under that mandatory
plan. A client that has a divided workforce must also agree to assume full
responsibility to immediately pay any worker's compensation payable as may be
required by DWD should a dispute arise between two or more insurers as to liability
for an injury sustained while a divided workforce plan is in effect, pending final
resolution of the dispute.
For a multiple coordinated policy in which an employee leasing company is the
first named insured and for a master policy, the bill permits an insurer to obligate
only the employee leasing company to pay premiums due for a client's coverage and
prohibits an insurer from recovering any unpaid premiums due for that coverage
from the client. The bill, however, does not prohibit an insurer from collecting
premiums and charges due with respect to a client by means of list billing through
the employee leasing company; requiring an employee leasing company to maintain
a letter of credit or other form of security to ensure payment of premiums; issuing
policies that have a common renewal date to all, or a class of all, clients of an
employee leasing company; grouping together the clients of an employee leasing
company for the purpose of offering dividend eligibility and paying dividends to those
clients; applying a discount to the premium charged with respect to a client; or
applying a retrospective rating option for determining the premium charged with
respect to a client.
Finally, the bill provides as follows with respect to the cancellation,
termination, or nonrenewal of a multiple coordinated policy or a master policy:
1. That the insureds under the policy may cancel the policy during the policy
period only if both the employee leasing company and the client agree to the
cancellation, the cancellation is confirmed by the employee leasing company
promptly providing written confirmation of the cancellation to the client in writing
or by the client agreeing to the cancellation in writing, and the insurer provides
written notice of the cancellation to DWD.
2. That the insurer may cancel, terminate, or nonrenew the policy by providing
written notice of the cancellation, or nonrenewal to the insured employee leasing
company, the insured client, and DWD. Cancellation or termination of a policy by
an insurer during a policy period is not effective until 30 days after that notice is
provided. Nonrenewal of a policy is not effective until 60 days after that notice is
provided.
3. That, if an employee leasing company that is the first named insured on the
policy terminates the employee leasing agreement with a client in its entirety, the
insurer may cancel or terminate the policy during the policy period by providing
written notice of the cancellation or termination to the insured employee leasing
company, the insured client, and DWD. Cancellation or termination of a policy by
an insurer during a policy period for reason of termination of an employee leasing
agreement is not effective until 30 days after that notice is provided.
4. That, if an employee leasing agreement is terminated during the policy
period of a policy in which the client is the first named insured, the insurer must
cancel the employee leasing company's coverage by an endorsement to the policy, and
coverage of the client under the policy continues, unless the policy providing
continued coverage is cancelled for failure of the client to pay premiums or for other
grounds stated in the policy.
Third-party liability. Under current law, worker's compensation is the
exclusive remedy for an employee who is injured while performing services growing
out of and incidental to his or her employment, except that, subject to certain
exceptions, an injured employee may claim worker's compensation from his or her
employer and bring an action in tort against a third party for damages by reason of
the injury. Current law, provides, however, that an employee of a temporary help
agency who makes a claim for worker's compensation may not make a claim or bring
an action in tort against any employer who compensates the temporary help agency
for the employee's services.
Recently, in Warr v. QPS Companies, Inc., 2007 WI App 14, 298 Wis. 2d 440, the
court of appeals held that the exclusive remedy provision of the worker's
compensation law did not bar an employee of a temporary help agency who was
injured by the conduct of an employee of another temporary help agency who was
placed with the same employer from bringing an action in tort against the temporary
agency employing the latter employee.
This bill narrows the definition of "temporary help agency" for purposes of
third-party liability under the worker's compensation law. Specifically, under
current law, a temporary help agency is defined as an employer who places its
employee with or leases its employees to another employer who controls the
employee's work activities and compensates the first employer for the employee's
services, regardless of the duration of the services. This bill defines a temporary help
agency for purposes of third-party liability under the worker's compensation law as
an employer that is primarily engaged in the business of placing or leasing its
employees under those conditions.
In addition, the bill prohibits an employee of a temporary help agency, as
defined in the bill, who makes a claim for worker's compensation against the
temporary help agency from making a claim or bringing an action in tort against any
other temporary help agency, as defined in the bill, that is compensated for another
employee's services by the same employer that compensates the temporary help
agency for the employee's services or against any employee of the compensating
employer or of that other temporary help agency. Similarly, the bill also prohibits an
employee who makes a claim for worker's compensation against an employer that
compensates a temporary help agency, as defined in the bill, for another's employee's
services from making a claim or bringing an action in tort against the temporary help
agency or against any employee of the temporary help agency.
Similarly, the bill prohibits a leased employee of an employee leasing company
who makes a claim for worker's compensation against the employee leasing company
from making a claim or bringing an action in tort against the client that accepted the
services of the leased employee, against any other employee leasing company that
provides the services of another leased employee to the client, or against any
employee of the client or of that other employee leasing company. The bill similarly
prohibits an employee who makes a claim for worker's compensation against a client
of an employee leasing company from making a claim or bringing an action in tort
against an employee leasing company that provides the services of a leased employee
to the client or against any leased employee of that employee leasing company.
Prescription drug treatment. Under current law, an employer or insurer is
liable for providing medicines as may be reasonably required to cure and relieve an
injured employee from the effects of an injury sustained while performing services
growing out of and incidental to employment. Current laws, however, limits the
liability of an employer or insurer for the cost of a prescription drug dispensed for
outpatient use by an injured employee to the average wholesale price of the
prescription drug as quoted in the American Druggist Blue Book or the Drug Topics
Red Book, whichever is less. This bill limits the liability of an employer or insurer
for the cost of such a prescription drug to the average wholesale price of the
prescription drug, as quoted in the Drug Topics Red Book.
Currently, if an employer denies or disputes liability for the cost of a drug
prescribed to an injured employee, the pharmacist or other person licensed to
prescribe and administer drugs (practitioner) who dispensed the drug may collect
from the injured employee the cost of the prescription drug dispensed. This bill
creates a procedure for resolving disputes between a pharmacist or practitioner and
an employer or insurer over the reasonableness of the amount charged for a
prescription drug dispensed for outpatient use by an injured employee.
Specifically, the bill requires an employer or insurer that disputes the
reasonableness of the amount charged for a prescription drug dispensed for
outpatient use by an injured employee to provide, within 30 days after receiving a
completed bill for the prescription drug, notice to the pharmacist or practitioner that
the charge is being disputed. After receiving that notice, the pharmacist or
practitioner may not collect the cost of the prescription drug from the injured
employee and must file the dispute with DWD within six months after receiving the
notice. The bill requires DWD to deny payment of a prescription drug charge that
DWD determines to be unreasonable and specifies that the parties to a dispute over
the reasonableness of a prescription drug charge are bound by DWD's determination
unless the determination is set aside on judicial review.
Similarly, the bill also permits DWD to determine the reasonableness of the
amount charged for a prescription drug dispensed for outpatient use by an injured
employee in all of the following situations:
1. When confirming a compromise or stipulation in which an insurer or
self-insured employer concedes liability for the cost of the prescription drug, but
disputes the reasonableness of the amount charged for the prescription drug.
2. When finding after hearing that an insurer or self-insured employer is liable
for the cost of the prescription drug, but that the reasonableness of the amount
charged for the prescription drug is in dispute.
Christian Science treatment. Under current law, an employer is liable for
providing Christian Science treatment, in lieu of medical treatment, as may be
reasonably required to cure and relieve an injured employee who elects that
treatment from the effects of an injury growing out of and incidental to employment,
unless the employer files a written notice with DWD electing not to be liable for
providing that treatment. This bill eliminates the right of an employer to elect not
to be liable for providing Christian Science treatment at the option of an injured
employee. The bill also provides that the liability of an employer for the cost of
Christian Science treatment for an injured employee is limited to the usual and
customary charge for that treatment.
Maximum compensation amounts
Maximum weekly compensation for permanent partial disability.
Under current law, permanent partial disability benefits are subject to maximum
weekly compensation rates specified by statute. Currently, the maximum weekly
compensation rate for permanent partial disability is $262. This bill increases that
maximum weekly compensation rate to $272 for injuries occurring before January
1, 2009, and to $282 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 January 1, 1987, is entitled to receive supplemental
benefits in an amount that, when added to the employee's regular benefits, equals
$338. This bill makes an employee who is injured prior to January 1, 1993, eligible
for those supplemental benefits beginning on the effective date of the bill. 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 $450.
Work injury supplemental benefit fund
Illegally employed minors. Current law requires an employer to pay into the
state treasury for deposit 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, $20,000 when an injury results in death or in the loss of or total impairment
of a hand, arm, foot, leg, or eye (death or disability payments), up to $7,500 when a
minor is injured while working without a work permit, and up to $15,000 when a
minor is injured while working at employment that is prohibited to the minor
(illegally employed minor payments). Currently, the Department of Justice (DOJ)
is required to represent the interests of the state in proceedings for death or disability
payments, but not in proceedings for illegally employed minor payments. This bill
requires DOJ to represent the interests of the state in proceedings for illegally
employed minor payments.
Required fund balance. Under current law, if the balance in the WISB fund
on June 30 of any fiscal year exceeds three times the amount paid out of that fund
during that fiscal year, DWD must reduce the death or disability payments made into
that fund so that the balance in the fund will remain at three times the amounts paid
out of the fund in the preceding fiscal year. This bill eliminates that requirement.
Payment of benefits
Interest credit. Under current law, if worker's compensation payments
extend over a period of six months or more from the date of injury, or if payments are
for a death benefit, DWD may discharge a party from or compel a party to guarantee
the payments in several ways. Two ways for a party to discharge or guarantee
payments are by depositing the present value of the total unpaid compensation upon
a 7 percent interest discount basis with a bank, credit union, savings and loan
association, or trust company designated by DWD or by making payment in gross
upon a 7 percent interest discount basis as approved by DWD. This bill lowers the
required interest discount basis from 7 percent to 5 percent.
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. In
directing the advance, DWD must give the employer or insurer a 7 percent interest
credit against its liability. This bill lowers the required interest credit from 7 percent
to 5 percent.
Occupational deafness. Under current law, worker's compensation or
benefits from the WISB fund are payable for occupational deafness, which is defined
as permanent partial or permanent total loss of hearing of one or both ears due to
prolonged exposure to noise in employment. Under current DWD rules, an employee
must have a hearing loss of more than 30 decibels to receive worker's compensation
for permanent partial disability due to occupational deafness. Under current law,
an employee must have a hearing loss of more than 20 percent to receive benefits
from the WISB fund for permanent partial disability due to occupational deafness.
This bill provides that an employer or DWD, from the WISB fund, is not liable
for the expense of any examination or test for hearing loss, any evaluation of such
an examination or test, any medical treatment for improving or restoring hearing,
or any hearing aid to relieve the effects of hearing loss unless it is determined that
worker's compensation or benefits from the WISB fund for occupational deafness are
payable. This provision applies beginning on the effective date of the bill for a case
of occupational deafness in which the date of injury is on or after the effective date
of the bill and beginning on the date that is six years after the effective date of the
bill for a case of occupational deafness in which the date of injury is before the
effective date of the bill. Currently, the right to worker's compensation and the
amount of that compensation is determined in accordance with the provisions of law
in effect as of the date of the injury, and an application for worker's compensation
may be filed within 12 years after the date of injury.
Attorney fees. Under current law, in cases of admitted liability in which there
is no dispute as to the amount of worker's compensation due and in which no hearing
or appeal is necessary, the fee charged for the enforcement or collection of the claim
for compensation may not exceed 10 percent of the amount at which the claim is
compromised or of the amount awarded, adjudged, or collected, but not to exceed
$100. This bill raises the maximum fee that may be charged in those cases from $100
to $250.
Uninsured employers fund
Adequacy of fund balance. Under current law, if an employer is not insured
or self-insured as required by the worker's compensation law, the employer is liable
to DWD for certain payments that are deposited in an uninsured employers fund.
DWD uses the uninsured employers fund to administer the laws relating to
uninsured employers and to pay to the injured employees of uninsured employers
benefits that are equal to the worker's compensation owed by the uninsured
employers. Currently, if the secretary of workforce development determines that
expected losses on known claims and on incurred, but not reported, claims, exceed
85 percent of the cash balance in the uninsured employers fund, that secretary must
file a certificate with the secretary of administration attesting that the cash balance
is likely to be inadequate to fund all claims against the fund and specifying a date
after which no new claims will be paid.
This bill eliminates the requirement that the secretary of workforce
development consider incurred, but not reported, claims in determining whether
expected losses on claims exceed 85 percent of the cash balance in the uninsured
employers fund and, therefore, whether that cash balance is likely to be inadequate
to fund all claims against that fund. Accordingly, under the bill, the secretary of
workforce development is required to consider only expected losses on known claims
in determining whether the cash balance in the uninsured employers fund is likely
to be inadequate to fund all claims against that fund.
Collection of payments owed. Current law provides two procedures by which
DWD may collect payments owed to DWD by an uninsured employer. Under the first
procedure, if an uninsured employer fails to pay an amount owed to DWD and no
proceeding for review is pending, DWD may issue a warrant to the clerk of circuit
court of any county in the state and the clerk of circuit court dockets the warrant,
which gives the warrant the effect of a final judgment constituting a perfected lien
on the uninsured employer's real and personal property located in the county where
the warrant is entered. Currently, a lien created by a judgment is effective for ten
years after the date of entry of the judgment. Under the second procedure, if no
proceeding for review is pending, DWD may levy on any personal property of the
uninsured employer, after demanding payment and giving ten days' notice of its
intent to pursue legal action to collect the debt. This bill specifies that a lien for
payments owed by an uninsured employer is effective when DWD issues the warrant
and provides that the lien continues in effect until the amount owed, including
interest, costs, and other fees to the date of payment, is paid.
Under current law, if DWD cannot collect a payment owed from an uninsured
employer that is a corporation or limited liability company, then any officer, director,
member, or manager of the uninsured employer may be held personally liable for that
payment. This bill provides that the personal liability of those individuals is an
independent obligation, applies to those individuals the procedures under current
law by which DWD may collect payments owed by an uninsured employer, and
specifies that a lien on the real and personal property of an individual who is
personally liable for an amount owed by an uninsured employer continues in effect
until the amount owed, including interest, costs, and other fees to the date of
payment, is paid.
Program administration
Necessity of treatment standards. Under current law, DWD is required to
promulgate rules establishing standards for determining the necessity of treatment
provided to an injured employee, which standards must be applied by experts in
rendering opinions as to necessity of treatment and by DWD in determining
necessity of treatment when there is a dispute between a health care provider and
an insurer or self-insured employer over necessity of treatment. Current law
requires those rules, to the greatest extent practicable, to be consistent with certain
Minnesota rules, as amended to January 1, 2006. This bill eliminates the
requirement that the rules establishing necessity of treatment standards be
consistent with those Minnesota rules.
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:
AB758, s. 1
1Section
1. 102.03 (4) of the statutes is amended to read:
AB758,10,72
102.03
(4) The right to compensation and the amount of the compensation shall
3in all cases be determined in accordance with the provisions of law in effect as of the
4date of the injury except as to employees whose rate of compensation is changed as
5provided in ss. 102.43 (7) and 102.44 (1) and (5) and employees who are eligible to
6receive private rehabilitative counseling and rehabilitative training under s. 102.61
7(1m)
and except as provided in s. 102.555 (12) (b).
AB758, s. 2
8Section
2. 102.11 (1) (intro.) of the statutes is amended to read:
AB758,10,249
102.11
(1) (intro.) The average weekly earnings for temporary disability,
10permanent total disability, or death benefits for injury in each calendar year on or
11after January 1, 1982, shall be not less than $30 nor more than the wage rate that
12results in a maximum compensation rate of 110 percent of the state's average weekly
13earnings as determined under s. 108.05 as of June 30 of the previous year. The
14average weekly earnings for permanent partial disability shall be not less than $30
15and, for permanent partial disability for injuries occurring on or after
April 1, 2006,
16and before January 1, 2007, not more than $378, resulting in a maximum
17compensation rate of $252, and, for permanent partial disability for injuries
18occurring on or after January 1, 2007, not more than $393, resulting in a maximum
19compensation rate of $262 the effective date of this subsection .... [revisor inserts
20date], and before January 1, 2009, not more than $408, resulting in a maximum
21compensation rate of $272, and, for permanent partial disability for injuries
22occurring on or after January 1, 2009, not more than $423, resulting in a maximum
23compensation rate of $282. Between such limits the average weekly earnings shall
24be determined as follows:
AB758, s. 3
25Section
3. 102.16 (1m) (a) of the statutes is amended to read:
AB758,11,15
1102.16
(1m) (a) If an insurer or self-insured employer concedes by compromise
2under sub. (1) or stipulation under s. 102.18 (1) (a) that the insurer or self-insured
3employer is liable under this chapter for any health services provided to an injured
4employee by a health service provider, but disputes the reasonableness of the fee
5charged by the health service provider, the department may include in its order
6confirming the compromise or stipulation a determination as to the reasonableness
7of the fee or the department may notify, or direct the insurer or self-insured employer
8to notify, the health service provider under sub. (2) (b) that the reasonableness of the
9fee is in dispute.
The department shall deny payment of a health service fee that the
10department determines under this paragraph to be unreasonable. A health service
11provider and an insurer or self-insured employer that are parties to a fee dispute
12under this paragraph are bound by the department's determination under this
13paragraph on the reasonableness of the disputed fee, unless that determination is
14set aside, reversed, or modified by the department under sub. (2) (f) or is set aside
15on judicial review as provided in sub. (2) (f).
AB758, s. 4
16Section
4. 102.16 (1m) (b) of the statutes is amended to read:
AB758,12,1317
102.16
(1m) (b) If an insurer or self-insured employer concedes by compromise
18under sub. (1) or stipulation under s. 102.18 (1) (a) that the insurer or self-insured
19employer is liable under this chapter for any treatment provided to an injured
20employee by a health service provider, but disputes the necessity of the treatment,
21the department may include in its order confirming the compromise or stipulation
22a determination as to the necessity of the treatment or the department may notify,
23or direct the insurer or self-insured employer to notify, the health service provider
24under sub. (2m) (b) that the necessity of the treatment is in dispute.
The department
25shall apply the Before determining under this paragraph the necessity of treatment
1provided to an injured employee, the department may, but is not required to, obtain
2the opinion of an expert selected by the department who is qualified as provided in
3sub. (2m) (c). The standards promulgated under sub. (2m) (g)
shall be applied by an
4expert and by the department in rendering an opinion as to, and in determining
, 5necessity of treatment under this paragraph. In cases in which no standards
6promulgated under sub. (2m) (g) apply, the department shall find the facts regarding
7necessity of treatment.
The department shall deny payment for any treatment that
8the department determines under this paragraph to be unnecessary. A health
9service provider and an insurer or self-insured employer that are parties to a dispute
10under this paragraph over the necessity of treatment are bound by the department's
11determination under this paragraph on the necessity of the disputed treatment,
12unless that determination is set aside, reversed, or modified by the department
13under sub. (2m) (e) or is set aside on judicial review as provided in sub. (2m) (e).
AB758, s. 5
14Section
5. 102.16 (1m) (c) of the statutes is created to read:
AB758,13,715
102.16
(1m) (c) If an insurer or self-insured employer concedes by compromise
16under sub. (1) or stipulation under s. 102.18 (1) (a) that the insurer or self-insured
17employer is liable under this chapter for the cost of a prescription drug dispensed
18under s. 102.425 (2) for outpatient use by an injured employee, but disputes the
19reasonableness of the amount charged for the prescription drug, the department may
20include in its order confirming the compromise or stipulation a determination as to
21the reasonableness of the prescription drug charge or the department may notify, or
22direct the insurer or self-insured employer to notify, the pharmacist or practitioner
23dispensing the prescription drug under s. 102.425 (4m) (b) that the reasonableness
24of the prescription drug charge is in dispute. The department shall deny payment
25of a prescription drug charge that the department determines under this paragraph
1to be unreasonable. A pharmacist or practitioner and an insurer or self-insured
2employer that are parties to a dispute under this paragraph over the reasonableness
3of a prescription drug charge are bound by the department's determination under
4this paragraph on the reasonableness of the disputed prescription drug charge,
5unless that determination is set aside, reversed, or modified by the department
6under s. 102.425 (4m) (e) or is set aside on judicial review as provided in s. 102.425
7(4m) (e).
AB758, s. 6
8Section
6. 102.16 (2) (a) of the statutes is amended to read:
AB758,13,229
102.16
(2) (a) Except as provided in this paragraph, the department has
10jurisdiction under this subsection, sub. (1m) (a), and s. 102.17 to resolve a dispute
11between a health service provider and an insurer or self-insured employer over the
12reasonableness of a fee charged by the health service provider for health services
13provided to an injured employee who claims benefits under this chapter. A health
14service provider may not submit a fee dispute to the department under this
15subsection before all treatment by the health service provider of the employee's
16injury has ended if the amount in controversy, whether based on a single charge or
17a combination of charges for one or more days of service, is less than $25. After all
18treatment by a health service provider of an employee's injury has ended, the health
19service provider may submit any fee dispute to the department, regardless of the
20amount in controversy. The department shall deny payment of a health service fee
21that the department determines under this subsection
, sub. (1m) (a), or s. 102.18 (1)
22(b) to be unreasonable.
AB758, s. 7
23Section
7. 102.16 (2) (am) of the statutes is amended to read:
AB758,14,1124
102.16
(2) (am) A health service provider and an insurer or self-insured
25employer that are parties to a fee dispute under this subsection are bound by the
1department's determination under this subsection on the reasonableness of the
2disputed fee, unless that determination is set aside on judicial review as provided in
3par. (f).
A health service provider and an insurer or self-insured employer that are
4parties to a fee dispute under sub. (1m) (a) are bound by the department's
5determination under sub. (1m) (a) on the reasonableness of the disputed fee, unless
6that determination is set aside or modified by the department under sub. (1). An
7insurer or self-insured employer that is a party to a fee dispute under s. 102.17 and
8a health service provider are bound by the department's determination under s.
9102.18 (1) (b) on the reasonableness of the disputed fee, unless that determination
10is set aside, reversed, or modified by the department under s. 102.18 (3) or by the
11commission under s. 102.18 (3) or (4) or is set aside on judicial review under s. 102.23.
AB758, s. 8
12Section
8. 102.16 (2m) (a) of the statutes is amended to read:
AB758,15,213
102.16
(2m) (a) Except as provided in this paragraph, the department has
14jurisdiction under this subsection, sub. (1m) (b), and s. 102.17 to resolve a dispute
15between a health service provider and an insurer or self-insured employer over the
16necessity of treatment provided for an injured employee who claims benefits under
17this chapter. A health service provider may not submit a dispute over necessity of
18treatment to the department under this subsection before all treatment by the health
19service provider of the employee's injury has ended if the amount in controversy,
20whether based on a single charge or a combination of charges for one or more days
21of service, is less than $25. After all treatment by a health service provider of an
22employee's injury has ended, the health service provider may submit any dispute
23over necessity of treatment to the department, regardless of the amount in
24controversy. The department shall deny payment for any treatment that the
1department determines under this subsection
, sub. (1m) (b), or s. 102.18 (1) (b) to be
2unnecessary.
AB758, s. 9
3Section
9. 102.16 (2m) (am) of the statutes is amended to read:
AB758,15,174
102.16
(2m) (am) A health service provider and an insurer or self-insured
5employer that are parties to a dispute under this subsection over the necessity of
6treatment are bound by the department's determination under this subsection on the
7necessity of
that the disputed treatment, unless that determination is set aside on
8judicial review as provided in par. (e).
A health service provider and an insurer or
9self-insured employer that are parties to a dispute under sub. (1m) (b) over the
10necessity of treatment are bound by the department's determination under sub. (1m)
11(b) on the necessity of that treatment, unless that determination is set aside or
12modified by the department under sub. (1). An insurer or self-insured employer that
13is a party to a dispute under s. 102.17 over the necessity of treatment and a health
14service provider are bound by the department's determination under s. 102.18 (1) (b)
15on the necessity of that treatment, unless that determination is set aside, reversed
16or modified by the department under s. 102.18 (3) or by the commission under s.
17102.18 (3) or (4) or is set aside on judicial review under s. 102.23.
AB758, s. 10
18Section
10. 102.16 (2m) (c) of the statutes is amended to read:
AB758,16,1319
102.16
(2m) (c) Before determining under this subsection the necessity of
20treatment provided for an injured employee who claims benefits under this chapter,
21the department shall obtain a written opinion on the necessity of the treatment in
22dispute from an expert selected by the department.
Before determining under sub.
23(1m) (b) or s. 102.18 (1) (bg) 2. the necessity of treatment provided for an injured
24employee who claims benefits under this chapter, the department may, but is not
25required to, obtain such an expert opinion. To qualify as an expert, a person must
1be licensed to practice the same health care profession as the individual health
2service provider whose treatment is under review and must either be performing
3services for an impartial health care services review organization or be a member of
4an independent panel of experts established by the department under par. (f). The
5standards promulgated under par. (g) shall be applied by an expert
and by the
6department in rendering an opinion as to
necessity of treatment under this
7paragraph and by the department, and in determining
, necessity of treatment under
8this paragraph. In cases in which no standards promulgated under sub. (2m) (g)
9apply, the department shall find the facts regarding necessity of treatment. The
10department shall adopt the written opinion of the expert as the department's
11determination on the issues covered in the written opinion, unless the health service
12provider or the insurer or self-insured employer present clear and convincing
13written evidence that the expert's opinion is in error.
AB758, s. 11
14Section
11. 102.16 (2m) (g) of the statutes is amended to read:
AB758,16,2515
102.16
(2m) (g) The department shall promulgate rules establishing
16procedures and requirements for the necessity of treatment dispute resolution
17process under this subsection, including rules setting the fees under par. (f) and rules
18establishing standards for determining the necessity of treatment provided to an
19injured employee.
The rules establishing those standards shall, to the greatest
20extent possible, be consistent with Minnesota rules 5221.6010 to 5221.8900, as
21amended to January 1, 2006. Before the department may amend the rules
22establishing those standards, the department shall establish an advisory committee
23under s. 227.13 composed of health care providers providing treatment under s.
24102.42 to advise the department and the council on worker's compensation on
25amending those rules.
AB758, s. 12
1Section
12. 102.16 (3) of the statutes is amended to read:
AB758,17,102
102.16
(3) No employer subject to this chapter may solicit, receive
, or collect
3any money from an employee or any other person or make any deduction from their
4wages, either directly or indirectly, for the purpose of discharging any liability under
5this chapter or recovering premiums paid on a contract described under s. 102.31 (1)
6(a)
or a policy described under s. 102.315 (3), (4), or (5) (a); nor may any
such employer
7subject to this chapter sell to an employee or other person, or solicit or require the
8employee or other person to purchase, medical, chiropractic, podiatric, psychological,
9dental
, or hospital tickets or contracts for medical, surgical, hospital
, or other health
10care treatment
which that is required to be furnished by that employer.
AB758, s. 13
11Section
13. 102.17 (4) of the statutes is amended to read:
AB758,18,612
102.17
(4) Except as provided in this subsection
and s. 102.555 (12) (b), the
13right of an employee, the employee's legal representative, or a dependent to proceed
14under this section shall not extend beyond 12 years
from after the date of the injury
15or death or
from after the date that compensation, other than treatment or burial
16expenses, was last paid, or would have been last payable if no advancement were
17made, whichever date is latest. In the case of occupational disease; a traumatic injury
18resulting in the loss or total impairment of a hand or any part of the rest of the arm
19proximal to the hand or of a foot or any part of the rest of the leg proximal to the foot,
20any loss of vision, or any permanent brain injury; or a traumatic injury causing the
21need for an artificial spinal disc or a total or partial knee or hip replacement, there
22shall be no statute of limitations, except that benefits or treatment expense for an
23occupational disease becoming due
after 12 years
from after the date of injury or
24death or last payment of compensation shall be paid from the work injury
25supplemental benefit fund under s. 102.65 and in the manner provided in s. 102.66
1and benefits or treatment expense for a traumatic injury becoming due
after 12 years
2from after that date shall be paid by the employer or insurer. Payment of wages by
3the employer during disability or absence from work to obtain treatment shall be
4deemed considered payment of compensation for the purpose of this section if the
5employer knew of the employee's condition and its alleged relation to the
6employment.
AB758, s. 14
7Section
14. 102.18 (1) (bg) 1. of the statutes is amended to read:
AB758,18,218
102.18
(1) (bg) 1. If the department finds under par. (b) that an insurer or
9self-insured employer is liable under this chapter for any health services provided
10to an injured employee by a health service provider, but that the reasonableness of
11the fee charged by the health service provider is in dispute, the department may
12include in its order under par. (b) a determination as to the reasonableness of the fee
13or the department may notify, or direct the insurer or self-insured employer to notify,
14the health service provider under s. 102.16 (2) (b) that the reasonableness of the fee
15is in dispute.
The department shall deny payment of a health service fee that the
16department determines under this subdivision to be unreasonable. An insurer or
17self-insured employer and a health service provider that are parties to a fee dispute
18under this subdivision are bound by the department's determination under this
19subdivision on the reasonableness of the disputed fee, unless that determination is
20set aside, reversed, or modified by the department under sub. (3) or by the
21commission under sub. (3) or (4) or is set aside on judicial review under s. 102.23.
AB758, s. 15
22Section
15. 102.18 (1) (bg) 2. of the statutes is amended to read:
AB758,19,1923
102.18
(1) (bg) 2. If the department finds under par. (b) that an employer or
24insurance carrier is liable under this chapter for any treatment provided to an
25injured employee by a health service provider, but that the necessity of the treatment
1is in dispute, the department may include in its order under par. (b) a determination
2as to the necessity of the treatment or the department may notify, or direct the
3employer or insurance carrier to notify, the health service provider under s. 102.16
4(2m) (b) that the necessity of the treatment is in dispute.
The department shall apply
5the Before determining under this subdivision the necessity of treatment provided
6to an injured employee, the department may, but is not required to, obtain the
7opinion of an expert selected by the department who is qualified as provided in s.
8102.16 (2m) (c). The standards promulgated under s. 102.16 (2m) (g)
shall be applied
9by an expert in rendering an opinion as to, and in determining
, necessity of treatment
10under this
paragraph subdivision. In cases in which no standards promulgated
11under s. 102.16 (2m) (g) apply, the department shall find the facts regarding
12necessity of treatment.
The department shall deny payment for any treatment that
13the department determines under this subdivision to be unnecessary. An insurer or
14self-insured employer and a health service provider that are parties to a dispute
15under this subdivision over the necessity of treatment are bound by the department's
16determination under this subdivision on the necessity of the disputed treatment,
17unless that determination is set aside, reversed, or modified by the department
18under sub. (3) or by the commission under sub. (3) or (4) or is set aside on judicial
19review under s. 102.23.
AB758, s. 16
20Section
16. 102.18 (1) (bg) 3. of the statutes is created to read:
AB758,20,1221
102.18
(1) (bg) 3. If the department finds under par. (b) that an insurer or
22self-insured employer is liable under this chapter for the cost of a prescription drug
23dispensed under s. 102.425 (2) for outpatient use by an injured employee, but that
24the reasonableness of the amount charged for that prescription drug is in dispute,
25the department may include in its order under par. (b) a determination as to the
1reasonableness of the prescription drug charge or the department may notify, or
2direct the insurer or self-insured employer to notify, the pharmacist or practitioner
3dispensing the prescription drug under s. 102.425 (4m) (b) that the reasonableness
4of the prescription drug charge is in dispute. The department shall deny payment
5of a prescription drug charge that the department determines under this subdivision
6to be unreasonable. An insurer or self-insured employer and a pharmacist or
7practitioner that are parties to a dispute under this subdivision over the
8reasonableness of a prescription drug charge are bound by the department's
9determination under par. (b) on the reasonableness of the disputed prescription drug
10charge, unless that determination is set aside, reversed, or modified by the
11department under sub. (3) or by the commission under sub. (3) or (4) or is set aside
12on judicial review under s. 102.23.
AB758, s. 17
13Section
17. 102.26 (2) of the statutes is amended to read:
AB758,21,214
102.26
(2) Unless previously authorized by the department, no fee may be
15charged or received for the enforcement or collection of any claim for compensation,
16nor may any contract
therefor for that enforcement or collection be enforceable
where
17such when that fee, inclusive of all taxable attorney fees paid or agreed to be paid for
18such that enforcement or collection, exceeds
20% 20 percent of the amount at which
19such that claim is compromised or of the amount awarded, adjudged
, or collected,
20except that in cases of admitted liability
where
in which there is no dispute as to
the 21amount of compensation due and in which no hearing or appeal is necessary, the fee
22charged
shall may not exceed
10% 10 percent, but not to exceed
$100 $250, of the
23amount at which
such that claim is compromised or of the amount awarded,
24adjudged
, or collected. The limitation as to fees shall apply to the combined charges
1of attorneys, solicitors, representatives
, and adjusters who knowingly combine their
2efforts toward the enforcement or collection of any compensation claim.
AB758, s. 18
3Section
18. 102.29 (6) of the statutes is renumbered 102.29 (6) (b) (intro.) and
4amended to read: