SB536: Bill Text

SB536,25,16 102.28 (2) (bm) Exemption from duty to insure; governmental employers. 1. Subject to subds. 2. to 4., if the state or a local governmental unit that has independent taxing authority is not partially insured or fully insured for its liability for the payment of compensation under this chapter, or to the extent that the state or a local governmental unit that has independent taxing authority is not partially insured for that liability under one or more contracts issued with the consent of the department under s. 102.31 (1) (b), and if the state or local governmental unit agrees to report faithfully all compensable injuries and to comply with this chapter and all rules of the department, the state or local governmental unit may elect to self-insure that liability without further order of the department.

SB536,25,23 2. Notwithstanding the absence of an order of exemption from the duty to insure under par. (a), the state or a local governmental unit that elects to self-insure as provided in subd. 1. is exempt from that duty. Notwithstanding that exemption, if the state or a local governmental unit that elects to self-insure as provided in subd. 1. desires partial insurance or divided insurance, the state or local governmental unit shall obtain the consent of the department under s. 102.31 (1) (b) to the issuance of a contract providing such insurance.

SB536,26,5 3. a. A local governmental unit that elects to self-insure its liability for the payment of compensation under this chapter shall notify the department of that election in writing before commencing to self-insure that liability and shall notify the department of its intent to continue to self-insure that liability every 3 years after that initial notice. A local government unit that wishes to withdraw that election shall notify the department of that withdrawal not less than 30 days before the effective date of that withdrawal.

SB536,26,12 b. A notice under subd. 3. a. shall be accompanied by a resolution adopted by the governing body of the local governmental unit and signed by the elected or appointed chief executive of the local governmental unit stating that the governing body intends and agrees to self-insure the liability of the local governmental unit for the payment of compensation under this chapter and that the local government unit agrees to report faithfully all compensable injuries and to comply with this chapter and all rules of the department.

SB536,26,20 4. An election to self-insure under subd. 1. is subject to revocation under par. (c) 2. Once such an election is revoked, the employer whose election is revoked may not elect to self-insure its liability for the payment of compensation under this chapter unless at least 3 calendar years have elapsed since the revocation and the department finds that the employer's financial condition is adequate to pay its employees' claims for compensation, that the employer has not received an excessive number of claims for compensation, and that the employer has faithfully discharged its obligations under this chapter and the rules of the department.

SB536,43 Section 43. 102.28 (2) (c) (title) of the statutes is amended to read:

SB536,26,22 102.28 (2) (c) (title) Revocation of exemption or election.

SB536,44 Section 44. 102.28 (2) (c) of the statutes is renumbered 102.28 (2) (c) 1. and amended to read:

SB536,27,7 102.28 (2) (c) 1. The department, after seeking the advice of the self-insurers council, may revoke an exemption granted to an employer under par. (b), upon giving the employer 10 days' written notice, if the department finds that the employer's financial condition is inadequate to pay its employees' claims for compensation, that the employer has received an excessive number of claims for compensation , or that the employer has failed to discharge faithfully its obligations according to the agreement contained in the application for exemption. The employer may, within

SB536,27,19 3. Within 10 days after receipt of the a notice of revocation, under subd. 1. or 2., the employer may request in writing a review of the revocation by the secretary or the secretary's designee and the secretary or the secretary's designee shall review the revocation within 30 days after receipt of the request for review. If the employer is aggrieved by the determination of the secretary or the secretary's designee, the employer may, within 10 days after receipt of notice of that determination, request a hearing under s. 102.17. If the secretary or the secretary's designee determines that the employer's exemption or election should be revoked, the employer shall obtain insurance coverage as required under par. (a) immediately upon receipt of notice of that determination and, notwithstanding the pendency of proceedings under ss. 102.17 to 102.25, shall keep that coverage in force until another exemption under par. (b) is granted or another election under par. (bm) is made.

SB536,45 Section 45. 102.28 (2) (c) 2. of the statutes is created to read:

SB536,28,2 102.28 (2) (c) 2. The department may revoke an election made by an employer under par. (bm), upon giving the employer 10 days' written notice, if the department finds that the employer's financial condition is inadequate to pay its employees' claims for compensation, that the employer has received an excessive number of claims for compensation, or that the employer has failed to discharge faithfully its obligations under this chapter and the rules of the department.

SB536,46 Section 46. 102.28 (2) (d) of the statutes is amended to read:

SB536,28,9 102.28 (2) (d) Effect of insuring with unauthorized insurer. An employer who procures an exemption under par. (b) and thereafter If an employer that is exempted under par. (b) or (bm) from the duty to insure under par. (a) enters into any agreement for excess insurance coverage with an insurer not authorized to do business in this state, the employer shall report that agreement to the department immediately. The placing of such coverage shall not by itself be grounds for revocation of the exemption.

SB536,47 Section 47. 102.28 (2) (e) of the statutes is created to read:

SB536,28,12 102.28 (2) (e) Rules. The department shall promulgate rules to implement this subsection.

SB536,48 Section 48. 102.28 (7) (a) of the statutes is amended to read:

SB536,29,3 102.28 (7) (a) If an employer who is currently or was formerly exempted by written order of the department under sub. (2) (b) is unable to pay an award, judgment is rendered in accordance with s. 102.20 against that employer, and execution is levied and returned unsatisfied in whole or in part, payments for the employer's liability shall be made from the fund established under sub. (8). If a currently or formerly exempted employer files for bankruptcy and not less than 60 days after that filing the department has reason to believe that compensation payments due are not being paid, the department in its discretion may make payment for the employer's liability from the fund established under sub. (8). The secretary of administration shall proceed to recover such those payments from the employer or the employer's receiver or trustee in bankruptcy, and may commence an action or proceeding or file a claim therefor for those payments. The attorney general shall appear on behalf of the secretary of administration in any such action or proceeding. All moneys recovered in any such action or proceeding shall be paid into the fund established under sub. (8).

SB536,49 Section 49. 102.28 (7) (b) of the statutes is renumbered 102.28 (7) (b) 1. and amended to read:

SB536,29,18 102.28 (7) (b) 1. Each employer exempted by written order of the department under sub. (2) (b) shall pay into the fund established by sub. (8) a sum equal to that assessed against each of the other such exempt employers upon the issuance of an initial order. The order an initial assessment based on orders of the department as provided in subd. 2. An order of the department requiring exempt employers to pay into that fund shall provide for a sum an amount that is sufficient to secure estimated payments of the an insolvent exempt employer due for the period up to the date of the order and for one year following the date of the order and to pay the estimated cost of insurance carrier or insurance service organization services under par. (c). Payments ordered to be made to the fund shall be paid to the department within 30 days after the date of the order. If additional moneys are required, further assessments shall be made based on orders of the department with as provided under subd. 2.

SB536,30,2 2. An initial or further assessment under subd. 1. shall be prorated on the basis of the gross payroll for this state of the exempt employer, as reported to the department for the previous calendar year for unemployment insurance purposes under ch. 108. If the or, if an exempt employer is not covered under ch. 108, then the department shall determine on the basis of the comparable gross payroll for the exempt employer as determined by the department. If payment of any assessment made under this subsection subd. 1. is not made within 30 days of after the date of the order of the department, the attorney general may appear on behalf of the state to collect the assessment.

SB536,50 Section 50. 102.28 (7) (bm) of the statutes is created to read:

SB536,30,4 102.28 (7) (bm) The department may not do any of the following:

SB536,30,7 1. Require an employer that elects under sub. (2) (bm) to self-insure its liability for the payment of compensation under this chapter to pay into the fund established under sub. (8).

SB536,30,11 2. Make any payments from the fund established under sub. (8) for the liability under this chapter of an employer that elects under sub. (2) (bm) to self-insure its liability for the payment of compensation under this chapter, whether currently or formerly exempt from the duty to insure under sub. (2) (a).

SB536,51 Section 51. 102.28 (7) (d) of the statutes is created to read:

SB536,30,14 102.28 (7) (d) The department shall promulgate rules to implement this subsection.

SB536,52 Section 52. 102.29 (1) (b) 2. of the statutes is amended to read:

SB536,30,23 102.29 (1) (b) 2. Out of the balance remaining after the deduction and payment specified in subd. 1., the employer, the insurance carrier, or, if applicable, the uninsured employers fund or the work injury supplemental benefit fund shall be reimbursed for all payments made by the employer, insurance carrier, or department, or which the employer, insurance carrier, or department may be obligated to make in the future, under this chapter, except that the employer, insurance carrier, or department shall not be reimbursed for any payments made or to be made under s. 102.18 (1) (b) 3. or (bp), 102.22, 102.35 (3), 102.57, or 102.60.

SB536,53 Section 53. 102.29 (12) of the statutes is created to read:

SB536,31,4 102.29 (12) No individual who is an employee of an entity described in s. 102.07 (20) for purposes of this chapter and who makes a claim for compensation under this chapter may make a claim or maintain an action in tort against the person described in s. 102.07 (20) who received the services from which the claim arose.

SB536,54 Section 54. 102.31 (2) (b) 2. of the statutes is amended to read:

SB536,31,12 102.31 (2) (b) 2. Regardless of whether the notices required under par. (a) have been given, a cancellation or termination is effective upon the effective date of replacement insurance coverage obtained by the employer or , the effective date of an order under s. 102.28 (2) (b) exempting the employer from carrying the duty to carry insurance under s. 102.28 (2) (a), or the effective date of an election by an employer under s. 102.28 (2) (bm) to self-insure its liability for the payment of compensation under this chapter.

SB536,55 Section 55. 102.315 (2) of the statutes is amended to read:

SB536,31,21 102.315 (2) Employee leasing company liable. An employee leasing company is liable under s. 102.03 for all compensation payable under this chapter to a leased employee, including any payments required under s. 102.16 (3), 102.18 (1) (b) 3. or (bp), 102.22 (1), 102.35 (3), 102.57, or 102.60. Except as permitted under s. 102.29, an employee leasing company may not seek or receive reimbursement from another employer for any payments made as a result of that liability. An employee leasing company is not liable under s. 102.03 for any compensation payable under this chapter to an employee of a client who is not a leased employee.

SB536,56 Section 56. 102.425 (1) (cm) of the statutes is created to read:

SB536,31,24 102.425 (1) (cm) "Licensed pharmacy" means a pharmacy licensed under s. 450.06 or 450.065.

SB536,57 Section 57. 102.425 (3) (a) (intro.) of the statutes is amended to read:

SB536,32,4 102.425 (3) (a) (intro.) The liability of an employer or insurer for the cost of a prescription drug dispensed under sub. (2) for outpatient use by an injured employee, including a prescription drug dispensed outside of a licensed pharmacy, is limited to the sum of all of the following:

SB536,58 Section 58. 102.425 (3) (a) 1. of the statutes is amended to read:

SB536,32,10 102.425 (3) (a) 1. The average wholesale price of the prescription drug as of the date on which the prescription drug is dispensed, as quoted in the Drug Topics Red Book, published by Medical Economics Company, Inc., or its successor, or, if that book is discontinued and becomes unavailable, as quoted in another nationally recognized pricing source determined by the department.

SB536,59 Section 59. 102.425 (4m) (b) of the statutes, as affected by 2015 Wisconsin Act 55, is amended to read:

SB536,32,22 102.425 (4m) (b) An employer or insurer that disputes the reasonableness of the amount charged for a prescription drug dispensed under sub. (2) for outpatient use by an injured employee or the department or division under sub. (4) (b) or s. 102.16 (1m) (c) or 102.18 (1) (bg) 3. shall provide, within 30 days after receiving a completed bill for the prescription drug, reasonable written notice to the pharmacist or practitioner that the charge is being disputed. After receiving reasonable written notice under this paragraph or under sub. (4) (b) or s. 102.16 (1m) (c) or 102.18 (1) (bg) 1. 3. that a prescription drug charge is being disputed, a pharmacist or practitioner may not collect the disputed charge from, or bring an action for collection of the disputed charge against, the employee who received the prescription drug.

SB536,60 Section 60. 102.43 (5) (c) of the statutes is amended to read:

SB536,33,10 102.43 (5) (c) Compensation for temporary disability on account of receiving instruction under s. 102.61 (1) or (1m) shall not be reduced under sub. (2) on account of any wages earned for the first 24 hours worked by an employee during a week in which the employee is receiving that instruction. If an employee performs more than 24 hours of work during a week in which the employee is receiving that instruction, all wages earned for hours worked in excess of 24 during that week shall be offset against the employee's average weekly wage in calculating compensation for temporary disability under sub. (2). An employee who is receiving compensation for temporary disability on account of receiving instruction under s. 102.61 (1) or (1m) shall report any wages earned during the period in which the employee is receiving that instruction to the insurance carrier or self-insured employer paying that compensation. This paragraph does not apply after April 30, 2014.

SB536,61 Section 61. 102.43 (9) (e) of the statutes is created to read:

SB536,33,15 102.43 (9) (e) The employee's employment with the employer has been suspended or terminated due to misconduct, as defined in s. 108.04 (5), or substantial fault, as defined in s. 108.04 (5g) (a), by the employee connected with the employee's work.

SB536,62 Section 62. 102.44 (1) (ag) of the statutes, as affected by 2015 Wisconsin Act 55, is amended to read:

SB536,34,2 102.44 (1) (ag) Notwithstanding any other provision of this chapter, every employee who is receiving compensation under this chapter for permanent total disability or continuous temporary total disability more than 24 months after the date of injury resulting from an injury that occurred prior to January 1, 2001 2003, shall receive supplemental benefits that shall be payable by the employer or the employer's insurance carrier, or in the case of benefits payable to an employee under s. 102.66, shall be paid by the department out of the fund created under s. 102.65. Those supplemental benefits shall be paid only for weeks of disability occurring after January 1, 2003 2005, and shall continue during the period of such total disability subsequent to that date.

SB536,63 Section 63. 102.44 (1) (am) of the statutes is amended to read:

SB536,34,8 102.44 (1) (am) If the employee is receiving the maximum weekly benefits in effect at the time of the injury, the supplemental benefit for a week of disability occurring after May 1, 2010 the effective date of this paragraph .... [LRB inserts date], shall be an amount that, when added to the regular benefit established for the case, shall equal $582 $669.

SB536,64 Section 64. 102.44 (1) (b) of the statutes is amended to read:

SB536,34,15 102.44 (1) (b) If the employee is receiving a weekly benefit that is less than the maximum benefit that was in effect on the date of the injury, the supplemental benefit for a week of disability occurring after May 1, 2010 the effective date of this paragraph .... [LRB inserts date], shall be an amount sufficient to bring the total weekly benefits to the same proportion of $582 $669 as the employee's weekly benefit bears to the maximum in effect on the date of injury.

SB536,65 Section 65. 102.44 (4m) of the statutes is created to read:

SB536,35,2 102.44 (4m) (a) The department shall promulgate rules establishing minimum permanent disability ratings for amputation levels, losses of motion, sensory losses, and surgical procedures resulting from injuries for which permanent partial disability is claimed under sub. (3) or (4). At least once every 8 years the department shall review and revise those minimum permanent disability ratings as necessary to reflect advances in the science of medicine. Before the department may revise those ratings, the department shall appoint a medical advisory committee under s. 227.13, composed of physicians practicing in one or more areas of specialization or treating disciplines within the medical profession, to review and recommend revision of those ratings, based on typical loss of function, to the department and the council on worker's compensation.

SB536,35,12 (b) In considering an individual for appointment to the medical advisory committee under par. (a), the department shall consider the individual's training and experience, the number of years the individual has been practicing in the individual's area of specialization or treating discipline, any certifications by a recognized medical speciality board or other agency held by the individual, any recommendations made by organizations that regulate or promote profession standards in the area of specialization or treating discipline in which the individual practices, and any other factors that the department determines are relevant to the individual's knowledge and ability to serve as a member of the medical advisory committee.

SB536,66 Section 66. 102.58 of the statutes, as affected by 2015 Wisconsin Act 55, is amended to read:

SB536,36,5 102.58 Decreased compensation. If injury is caused by the failure of the employee to use safety devices that are provided in accordance with any statute, rule, or order of the department of safety and professional services and that are adequately maintained, and the use of which is reasonably enforced by the employer, or if injury results from the employee's failure to obey any reasonable rule adopted and reasonably enforced by the employer for the safety of the employee and of which the employee has notice, or if injury results from the intoxication of the employee by alcohol beverages, as defined in s. 125.02 (1), or use of a controlled substance, as defined in s. 961.01 (4), or a controlled substance analog, as defined in s. 961.01 (4m), the compensation and death benefit provided in this chapter shall be reduced by 15 percent but the total reduction may not exceed $15,000. If an employee violates the employer's policy concerning employee drug or alcohol use and is injured, and if that violation is causal to the employee's injury, no compensation or death benefits shall be payable to the injured employee or a dependent of the injured employee. Nothing in this section shall reduce or eliminate an employer's liability for incidental compensation under s. 102.42 (1) to (8) or drug treatment under s. 102.425.

SB536,67 Section 67. 102.75 (1) of the statutes, as affected by 2015 Wisconsin Act 55, is amended to read:

SB536,36,23 102.75 (1) The department shall assess upon and collect from each licensed worker's compensation insurance carrier and from each employer exempted under s. 102.28 (2) by special order or by rule, (b) or (bm) from the duty to carry insurance under s. 102.28 (2) (a) the proportion of total costs and expenses incurred by the council on worker's compensation for travel and research and by the department, the division, and the commission in the administration of this chapter for the current fiscal year, plus any deficiencies in collections and anticipated costs from the previous fiscal year, that the total indemnity paid or payable under this chapter by each such carrier and exempt employer in worker's compensation cases initially closed during the preceding calendar year, other than for increased, double, or treble compensation, bore to the total indemnity paid in cases closed the previous calendar year under this chapter by all carriers and exempt employers, other than for increased, double, or treble compensation. The council on worker's compensation, the division, and the commission shall annually certify any costs and expenses for worker's compensation activities to the department at such time as the secretary requires.

SB536,68 Section 68. 102.75 (2) of the statutes, as affected by 2015 Wisconsin Act 55, is amended to read:

SB536,37,12 102.75 (2) The department shall require each licensed worker's compensation insurance carrier and employer exempted under s. 102.28 (2) (b) or (bm) from the duty to insure under s. 102.28 (2) (a) to make the payments required under sub. (1) for each fiscal year on such dates as the department prescribes. The department shall also require each licensed worker's compensation insurance carrier to make the payments required under sub. (1g) for each fiscal year on those dates. Each such payment shall be a sum equal to a proportionate share of the annual costs and expenses assessed upon each carrier and employer as estimated by the department. Interest shall accrue on amounts not paid within 30 days after the date prescribed by the department under this subsection at the rate of 1 percent per month. All interest payments received under this subsection shall be deposited in the fund established under s. 102.65.

SB536,69 Section 69. 102.75 (4) of the statutes is amended to read:

SB536,37,18 102.75 (4) From the appropriation under s. 20.445 (1) (ra), the department shall allocate the amounts that it collects in application fees from employers applying for exemption under s. 102.28 (2) (b) and the annual amount that it collects from employers that have been exempted under s. 102.28 (2) (b) to fund the activities of the department under s. 102.28 (2) (b) and (c) with respect to those employers.

SB536,70 Section 70. 102.81 (1) (a) of the statutes is amended to read:

SB536,38,2 102.81 (1) (a) If an employee of an uninsured employer, other than an employee who is eligible to receive alternative benefits under s. 102.28 (3), suffers an injury for which the uninsured employer is liable under s. 102.03, the department or the department's reinsurer shall pay to or on behalf of the injured employee or to the employee's dependents an amount equal to the compensation owed them by the uninsured employer under this chapter except penalties and interest due under ss. 102.16 (3), 102.18 (1) (b) 3. and (bp), 102.22 (1), 102.35 (3), 102.57, and 102.60.

SB536,71 Section 71. 108.10 (4) of the statutes is amended to read:

SB536,38,12 108.10 (4) The department or the employing unit may commence action for the judicial review of a commission decision under this section, provided the department, or the employing unit, after exhausting the remedies provided under this section, has commenced such action within 30 days after such decision was mailed to the employing unit's last-known address. The scope of judicial review, and the manner thereof insofar as applicable, shall be the same as that provided in s. 108.09 (7). In an action commenced by an employing unit under this section, the department shall be an adverse party a defendant under s. 102.23 (1) (a) and shall be named as a party defendant in the summons and complaint commencing the action.

SB536,72 Section 72. 165.60 of the statutes is amended to read:

SB536,38,24 165.60 Law enforcement. The department of justice is authorized to enforce ss. 101.123 (2), (2m), and (8), 175.60 (17) (e), 944.30 (1m), 944.31, 944.33, 944.34, 945.02 (2), 945.03 (1m), and 945.04 (1m) and ch. 108 and, with respect to a false statement submitted or made under s. 175.60 (7) (b) or (15) (b) 2. or as described under s. 175.60 (17) (c), to enforce s. 946.32, is authorized to assist the department of workforce development in the investigation and prosecution of suspected fraudulent activity related to worker's compensation as provided in s. 102.125, and is invested with the powers conferred by law upon sheriffs and municipal police officers in the performance of those duties. This section does not deprive or relieve sheriffs, constables, and other local police officers of the power and duty to enforce those sections, and those officers shall likewise enforce those sections.

SB536,73 Section 73. Nonstatutory provisions.

SB536,39,5 (1) Fraud investigation and prosecution; department of justice position authorization. The authorized FTE positions for the department of justice are increased by 1.0 PR-S position, to be funded from the appropriation under section 20.455 (2) (k) of the statutes, for the purpose of investigating and prosecuting fraudulent activity related to worker's compensation.

SB536,74 Section 74. Fiscal changes.

SB536,39,14 (1) Replacement of uninsured employers fund computer system. In the schedule under section 20.005 (3) of the statutes for the appropriation to the department of workforce development under section 20.445 (1) (ra) of the statutes, as affected by the acts of 2015, the dollar amount for fiscal year 2015-16 is increased by $200,000, and the dollar amount for fiscal year 2016-17 is increased by $796,000, to replace the computer system used for the accounting of collections and other moneys received for the uninsured employers fund and of payments made from that fund.

SB536,75 Section 75 . Initial applicability.

SB536,39,19 (1) Judicial review of worker's compensation decisions. The treatment of sections 102.23 (1) (a), (c), and (cm) and 108.10 (4) of the statutes first applies to an action for the review of an order or award of the labor and industry review commission commenced in circuit court on the effective date of this subsection.

SB536,39,23 (2) Administrative review of worker's compensation decisions. The treatment of section 102.18 (3) and (4) (b) of the statutes first applies to a petition for the review of a decision of a department of workforce development hearing examiner filed with the labor and industry review commission on the effective date of this subsection.

SB536,76 Section 76. Effective dates. This act takes effect on the day after publication, except as follows:

SB536,40,3 (1) Judicial review of worker's compensation decisions. The treatment of sections 102.23 (1) (a), (c), and (cm) and 108.10 (4) of the statutes and Section 75 (1) of this act take effect on July 1, 2016.

SB536,40,6 (2) Administrative review of worker's compensation decisions. The treatment of section 102.18 (3) and (4) (b) of the statutes and Section 75 (2) of this act take effect on July 1, 2016.

SB536,40,7 (End)