AB758: Bill Text

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 Section 1. 102.03 (4) of the statutes is amended to read:

AB758,10,7 102.03 (4) The right to compensation and the amount of the compensation shall in all cases be determined in accordance with the provisions of law in effect as of the date of the injury except as to employees whose rate of compensation is changed as provided in ss. 102.43 (7) and 102.44 (1) and (5) and employees who are eligible to receive private rehabilitative counseling and rehabilitative training under s. 102.61 (1m) and except as provided in s. 102.555 (12) (b).

AB758, s. 2 Section 2. 102.11 (1) (intro.) of the statutes is amended to read:

AB758,10,24 102.11 (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 percent 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 April 1, 2006, 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 the effective date of this subsection .... [revisor inserts date], and before January 1, 2009, not more than $408, resulting in a maximum compensation rate of $272, and, for permanent partial disability for injuries occurring on or after January 1, 2009, not more than $423, resulting in a maximum compensation rate of $282. Between such limits the average weekly earnings shall be determined as follows:

AB758, s. 3 Section 3. 102.16 (1m) (a) of the statutes is amended to read:

AB758,11,15 102.16 (1m) (a) 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 health services provided to an injured employee by a health service provider, but disputes the reasonableness of the fee charged by the health service provider, the department may include in its order confirming the compromise or stipulation a determination as to the reasonableness of the fee or the department may notify, or direct the insurer or self-insured employer to notify, the health service provider under sub. (2) (b) that the reasonableness of the fee is in dispute. The department shall deny payment of a health service fee that the department determines under this paragraph to be unreasonable. A health service provider and an insurer or self-insured employer that are parties to a fee dispute under this paragraph are bound by the department's determination under this paragraph on the reasonableness of the disputed fee, unless that determination is set aside, reversed, or modified by the department under sub. (2) (f) or is set aside on judicial review as provided in sub. (2) (f).

AB758, s. 4 Section 4. 102.16 (1m) (b) of the statutes is amended to read:

AB758,12,13 102.16 (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 Before determining under this paragraph the necessity of treatment provided to an injured employee, the department may, but is not required to, obtain the opinion of an expert selected by the department who is qualified as provided in sub. (2m) (c). The standards promulgated under sub. (2m) (g) shall be applied by an expert and by the department in rendering an opinion as to, and 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 deny payment for any treatment that the department determines under this paragraph to be unnecessary. A health service provider and an insurer or self-insured employer that are parties to a dispute under this paragraph over the necessity of treatment are bound by the department's determination under this paragraph on the necessity of the disputed treatment, unless that determination is set aside, reversed, or modified by the department under sub. (2m) (e) or is set aside on judicial review as provided in sub. (2m) (e).

AB758, s. 5 Section 5. 102.16 (1m) (c) of the statutes is created to read:

AB758,13,7 102.16 (1m) (c) 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 the cost of a prescription drug dispensed under s. 102.425 (2) for outpatient use by an injured employee, but disputes the reasonableness of the amount charged for the prescription drug, the department may include in its order confirming the compromise or stipulation a determination as to the reasonableness of the prescription drug charge or the department may notify, or direct the insurer or self-insured employer to notify, the pharmacist or practitioner dispensing the prescription drug under s. 102.425 (4m) (b) that the reasonableness of the prescription drug charge is in dispute. The department shall deny payment of a prescription drug charge that the department determines under this paragraph to be unreasonable. A pharmacist or practitioner and an insurer or self-insured employer that are parties to a dispute under this paragraph over the reasonableness of a prescription drug charge are bound by the department's determination under this paragraph on the reasonableness of the disputed prescription drug charge, unless that determination is set aside, reversed, or modified by the department under s. 102.425 (4m) (e) or is set aside on judicial review as provided in s. 102.425 (4m) (e).

AB758, s. 6 Section 6. 102.16 (2) (a) of the statutes is amended to read:

AB758,13,22 102.16 (2) (a) Except as provided in this paragraph, the department has jurisdiction under this subsection, sub. (1m) (a), and s. 102.17 to resolve a dispute between a health service provider and an insurer or self-insured employer over the reasonableness of a fee charged by the health service provider for health services provided to an injured employee who claims benefits under this chapter. A health service provider may not submit a fee dispute to the department under this subsection before all treatment by the health service provider of the employee's injury has ended if the amount in controversy, whether based on a single charge or a combination of charges for one or more days of service, is less than $25. After all treatment by a health service provider of an employee's injury has ended, the health service provider may submit any fee dispute to the department, regardless of the amount in controversy. The department shall deny payment of a health service fee that the department determines under this subsection, sub. (1m) (a), or s. 102.18 (1) (b) to be unreasonable.

AB758, s. 7 Section 7. 102.16 (2) (am) of the statutes is amended to read:

AB758,14,11 102.16 (2) (am) A health service provider and an insurer or self-insured employer that are parties to a fee dispute under this subsection are bound by the department's determination under this subsection on the reasonableness of the disputed fee, unless that determination is set aside on judicial review as provided in par. (f). A health service provider and an insurer or self-insured employer that are parties to a fee dispute under sub. (1m) (a) are bound by the department's determination under sub. (1m) (a) on the reasonableness of the disputed fee, unless that determination is set aside or modified by the department under sub. (1). An insurer or self-insured employer that is a party to a fee dispute under s. 102.17 and a health service provider are bound by the department's determination under s. 102.18 (1) (b) on the reasonableness of the disputed fee, unless that determination is set aside, reversed, or modified by the department under s. 102.18 (3) or by the commission under s. 102.18 (3) or (4) or is set aside on judicial review under s. 102.23.

AB758, s. 8 Section 8. 102.16 (2m) (a) of the statutes is amended to read:

AB758,15,2 102.16 (2m) (a) Except as provided in this paragraph, the department has jurisdiction under this subsection, sub. (1m) (b), and s. 102.17 to resolve a dispute between a health service provider and an insurer or self-insured employer over the necessity of treatment provided for an injured employee who claims benefits under this chapter. A health service provider may not submit a dispute over necessity of treatment to the department under this subsection before all treatment by the health service provider of the employee's injury has ended if the amount in controversy, whether based on a single charge or a combination of charges for one or more days of service, is less than $25. After all treatment by a health service provider of an employee's injury has ended, the health service provider may submit any dispute over necessity of treatment to the department, regardless of the amount in controversy. The department shall deny payment for any treatment that the department determines under this subsection, sub. (1m) (b), or s. 102.18 (1) (b) to be unnecessary.

AB758, s. 9 Section 9. 102.16 (2m) (am) of the statutes is amended to read:

AB758,15,17 102.16 (2m) (am) A health service provider and an insurer or self-insured employer that are parties to a dispute under this subsection over the necessity of treatment are bound by the department's determination under this subsection on the necessity of that the disputed treatment, unless that determination is set aside on judicial review as provided in par. (e). A health service provider and an insurer or self-insured employer that are parties to a dispute under sub. (1m) (b) over the necessity of treatment are bound by the department's determination under sub. (1m) (b) on the necessity of that treatment, unless that determination is set aside or modified by the department under sub. (1). An insurer or self-insured employer that is a party to a dispute under s. 102.17 over the necessity of treatment and a health service provider are bound by the department's determination under s. 102.18 (1) (b) on the necessity of that treatment, unless that determination is set aside, reversed or modified by the department under s. 102.18 (3) or by the commission under s. 102.18 (3) or (4) or is set aside on judicial review under s. 102.23.

AB758, s. 10 Section 10. 102.16 (2m) (c) of the statutes is amended to read:

AB758,16,13 102.16 (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 and by the department in rendering an opinion as to necessity of treatment under this paragraph and by the department, and 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.

AB758, s. 11 Section 11. 102.16 (2m) (g) of the statutes is amended to read:

AB758,16,25 102.16 (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.

AB758, s. 12 Section 12. 102.16 (3) of the statutes is amended to read:

AB758,17,10 102.16 (3) No employer subject to this chapter may solicit, receive, or collect any money from an employee or any other person or make any deduction from their wages, either directly or indirectly, for the purpose of discharging any liability under this chapter or recovering premiums paid on a contract described under s. 102.31 (1) (a) or a policy described under s. 102.315 (3), (4), or (5) (a); nor may any such employer subject to this chapter sell to an employee or other person, or solicit or require the employee or other person to purchase, medical, chiropractic, podiatric, psychological, dental, or hospital tickets or contracts for medical, surgical, hospital, or other health care treatment which that is required to be furnished by that employer.

AB758, s. 13 Section 13. 102.17 (4) of the statutes is amended to read:

AB758,18,6 102.17 (4) Except as provided in this subsection and s. 102.555 (12) (b), 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 after the date of the injury or death or from after 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 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 after 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 after 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 considered 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.

AB758, s. 14 Section 14. 102.18 (1) (bg) 1. of the statutes is amended to read:

AB758,18,21 102.18 (1) (bg) 1. If the department finds under par. (b) that an insurer or self-insured employer is liable under this chapter for any health services provided to an injured employee by a health service provider, but that the reasonableness of the fee charged by the health service provider is in dispute, the department may include in its order under par. (b) a determination as to the reasonableness of the fee or the department may notify, or direct the insurer or self-insured employer to notify, the health service provider under s. 102.16 (2) (b) that the reasonableness of the fee is in dispute. The department shall deny payment of a health service fee that the department determines under this subdivision to be unreasonable. An insurer or self-insured employer and a health service provider that are parties to a fee dispute under this subdivision are bound by the department's determination under this subdivision on the reasonableness of the disputed fee, unless that determination is set aside, reversed, or modified by the department under sub. (3) or by the commission under sub. (3) or (4) or is set aside on judicial review under s. 102.23.

AB758, s. 15 Section 15. 102.18 (1) (bg) 2. of the statutes is amended to read:

AB758,19,19 102.18 (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 Before determining under this subdivision the necessity of treatment provided to an injured employee, the department may, but is not required to, obtain the opinion of an expert selected by the department who is qualified as provided in s. 102.16 (2m) (c). The standards promulgated under s. 102.16 (2m) (g) shall be applied by an expert in rendering an opinion as to, and in determining , necessity of treatment under this paragraph subdivision. In cases in which no standards promulgated under s. 102.16 (2m) (g) apply, the department shall find the facts regarding necessity of treatment. The department shall deny payment for any treatment that the department determines under this subdivision to be unnecessary. An insurer or self-insured employer and a health service provider that are parties to a dispute under this subdivision over the necessity of treatment are bound by the department's determination under this subdivision on the necessity of the disputed treatment, unless that determination is set aside, reversed, or modified by the department under sub. (3) or by the commission under sub. (3) or (4) or is set aside on judicial review under s. 102.23.

AB758, s. 16 Section 16. 102.18 (1) (bg) 3. of the statutes is created to read:

AB758,20,12 102.18 (1) (bg) 3. If the department finds under par. (b) that an insurer or self-insured employer is liable under this chapter for the cost of a prescription drug dispensed under s. 102.425 (2) for outpatient use by an injured employee, but that the reasonableness of the amount charged for that prescription drug is in dispute, the department may include in its order under par. (b) a determination as to the reasonableness of the prescription drug charge or the department may notify, or direct the insurer or self-insured employer to notify, the pharmacist or practitioner dispensing the prescription drug under s. 102.425 (4m) (b) that the reasonableness of the prescription drug charge is in dispute. The department shall deny payment of a prescription drug charge that the department determines under this subdivision to be unreasonable. An insurer or self-insured employer and a pharmacist or practitioner that are parties to a dispute under this subdivision over the reasonableness of a prescription drug charge are bound by the department's determination under par. (b) on the reasonableness of the disputed prescription drug charge, unless that determination is set aside, reversed, or modified by the department under sub. (3) or by the commission under sub. (3) or (4) or is set aside on judicial review under s. 102.23.

AB758, s. 17 Section 17. 102.26 (2) of the statutes is amended to read:

AB758,21,2 102.26 (2) Unless previously authorized by the department, no fee may be charged or received for the enforcement or collection of any claim for compensation, nor may any contract therefor for that enforcement or collection be enforceable where such when that fee, inclusive of all taxable attorney fees paid or agreed to be paid for such that enforcement or collection, exceeds 20% 20 percent of the amount at which such that claim is compromised or of the amount awarded, adjudged, or collected, except that in cases of admitted liability where in which there is no dispute as to the amount of compensation due and in which no hearing or appeal is necessary, the fee charged shall may not exceed 10% 10 percent, but not to exceed $100 $250, of the amount at which such that claim is compromised or of the amount awarded, adjudged, or collected. The limitation as to fees shall apply to the combined charges of attorneys, solicitors, representatives, and adjusters who knowingly combine their efforts toward the enforcement or collection of any compensation claim.

AB758, s. 18 Section 18. 102.29 (6) of the statutes is renumbered 102.29 (6) (b) (intro.) and amended to read:

AB758,21,7 102.29 (6) (b) (intro.) No employee of a temporary help agency who makes a claim for compensation may make a claim or maintain an action in tort against any of the following:

AB758,21,9 1. Any employer who that compensates the temporary help agency for the employee's services.

AB758, s. 19 Section 19. 102.29 (6) (a) of the statutes is created to read:

AB758,21,13 102.29 (6) (a) In this subsection, "temporary help agency" means a temporary help agency that is primarily engaged in the business of placing its employees with or leasing its employees to another employer as provided in s. 102.01 (2) (f).

AB758, s. 20 Section 20. 102.29 (6) (b) 2. of the statutes is created to read:

AB758,21,16 102.29 (6) (b) 2. Any other temporary help agency that is compensated by that employer for another employee's services.

AB758, s. 21 Section 21. 102.29 (6) (b) 3. of the statutes is created to read:

AB758,21,22 102.29 (6) (b) 3. Any employee of that compensating employer or of that other temporary help agency, unless the employee who makes a claim for compensation would have a right under s. 102.03 (2) to bring an action against the employee of the compensating employer or the employee of the other temporary help agency if the employees were coemployees.

AB758, s. 22 Section 22. 102.29 (6) (c) of the statutes is created to read:

AB758,22,3 102.29 (6) (c) No employee of an employer that compensates a temporary help agency for another employee's services who makes a claim for compensation may make a claim or maintain an action in tort against any of the following:

AB758,22,4 1. The temporary help agency.

AB758,22,8 2. Any employee of the temporary help agency, unless the employee who makes a claim for compensation would have a right under s. 102.03 (2) to bring an action against the employee of the temporary help agency if the employees were coemployees.

AB758, s. 23 Section 23. 102.29 (6m) of the statutes is created to read:

AB758,22,12 102.29 (6m) (a) No leased employee, as defined in s. 102.315 (1) (g), who makes a claim for compensation may make a claim or maintain an action in tort against any of the following:

AB758,22,14 1. The client, as defined in s. 102.315 (1) (b), that accepted the services of the leased employee.

AB758,22,16 2. Any other employee leasing company, as defined in s. 102.315 (1) (f), that provides the services of another leased employee to the client.

AB758,22,21 3. Any employee of the client or of that other employee leasing company, unless the leased employee who makes a claim for compensation would have a right under s. 102.03 (2) to bring an action against the employee of the client or the leased employee of the other employee leasing company if the employees and leased employees were coemployees.

AB758,22,23 (b) No employee of a client who makes a claim for compensation may make a claim or maintain an action in tort against any of the following:

AB758,22,25 1. An employee leasing company that provides the services of a leased employee to the client.