SB536: Bill Text

LRB-3724/1

GMM&AJM:kjf

2015 - 2016 LEGISLATURE

2015 Senate BILL 536

January 8, 2016 - Introduced by Senator Nass, cosponsored by Representative Spiros, by request of Department of Workforce Development. Referred to Committee on Labor and Government Reform.

SB536,2,2 An Act to renumber 46.2897; to renumber and amend 102.125, 102.18 (1) (b), 102.23 (1) (a), 102.28 (2) (c) and 102.28 (7) (b); to amend 20.445 (1) (ra), 46.27 (5) (i), 46.2897 (title), 101.654 (2) (b), 102.01 (2) (d), 102.03 (4), 102.04 (1) (a), 102.04 (2m), 102.07 (1) (a), 102.07 (1) (b), 102.07 (3), 102.07 (7) (a), 102.07 (10), 102.11 (1) (intro.), 102.125 (title), 102.13 (2) (b), 102.13 (2) (c), 102.17 (1) (a) 3., 102.17 (4), 102.18 (3), 102.18 (4) (b), 102.21, 102.23 (1) (c), 102.23 (1) (cm), 102.28 (2) (a), 102.28 (2) (b) (title), 102.28 (2) (c) (title), 102.28 (2) (d), 102.28 (7) (a), 102.29 (1) (b) 2., 102.31 (2) (b) 2., 102.315 (2), 102.425 (3) (a) (intro.), 102.425 (3) (a) 1., 102.425 (4m) (b), 102.43 (5) (c), 102.44 (1) (ag), 102.44 (1) (am), 102.44 (1) (b), 102.58, 102.75 (1), 102.75 (2), 102.75 (4), 102.81 (1) (a), 108.10 (4) and 165.60; and to create 46.27 (5m), 46.275 (4m), 46.277 (3r), 46.281 (1k), 46.2897 (1), 46.2897 (2) (title), 46.2897 (3), 46.995 (3), 102.07 (20), 102.125 (2), 102.175 (3), 102.28 (2) (bm), 102.28 (2) (c) 2., 102.28 (2) (e), 102.28 (7) (bm), 102.28 (7) (d), 102.29 (12), 102.425 (1) (cm), 102.43 (9) (e) and 102.44 (4m) of the statutes; relating to: various changes to the worker's compensation law, granting rule-making authority, and making an appropriation.

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) and the Division of Hearings and Appeals (DHA) in the Department of Administration.

General coverage

Local governmental units

This bill changes the term "municipality" to "local governmental unit" for purposes of the worker's compensation law and redefines that term to mean a political subdivision of this state; a special purpose district or taxing jurisdiction in this state; an instrumentality, corporation, combination, or subunit of any of the foregoing; or any other public or quasi-public corporation. Under current law, cities, villages, towns, and counties are political subdivisions of this state; special purpose districts include school districts, sewer districts, drainage districts, and other districts created for special purposes; and taxing jurisdictions are entities, not including the state, that are authorized by law to levy property taxes.

Long-term care providers

This bill provides that an individual who is performing services for a person receiving long-term care benefits under certain long-term care programs administered by the Department of Health Services, including the Community Options Program, the Community Integration Program, Family Care, the Family Care Partnership Program, a self-directed program commonly referred to as IRIS, or the Children's Long-Term Support Home and Community-Based Medicaid Waiver Program, on a self-directed basis and who does not otherwise have worker's compensation coverage for those services is considered to be an employee of the entity that is providing financial management services for the person who is receiving the benefits. As such, the financial management services entity is liable for any injury sustained by the individual while performing those services and is required to insure payment of that liability either by purchasing insurance from an insurer authorized to do business in this state or, if permitted by DWD, by self-insuring for that liability.

The bill also prohibits an individual providing long-term care services who is considered an employee of a financial management services entity for purposes of worker's compensation coverage and who files a claim for worker's compensation from bringing an action in tort against the person who received the long-term care services from which the claim arose.

Payment of benefits

Violations of employer drug or alcohol policies

This bill provides that if an employee violates an employer policy against drug or alcohol use and such violation is causal to the employee's injury, then neither the employee nor the employee's dependents may receive, under the worker's compensation law, any compensation, including the death benefit, relating to that injury. The bill specifies, however, that this provision does not reduce or eliminate an employer's liability for the cost of treating the employee's injury. Under current law, if an employee is injured as a result of intoxication by alcohol, controlled substances, or controlled substance analogs, the compensation, including the death benefit, is reduced by 15 percent.

Employees suspended or terminated for misconduct or substantial fault

This bill provides that an employer is not liable for temporary disability benefits during an employee's healing period if the employee is suspended or terminated from employment due to misconduct, as defined in the unemployment insurance law, or substantial fault, as defined in the unemployment insurance law, by the employee connected with the employee's work.

The unemployment insurance law defines "misconduct" as action or conduct evincing such willful or wanton disregard of an employer's interests as is found in 1) deliberate violation or disregard of standards of behavior that an employer has a right to expect of his or her employees; or 2) carelessness or negligence of such degree or recurrence as to manifest culpability, wrongful intent, or evil design in disregard of the employer's interests or to show an intentional and substantial disregard of an employer's interests or of an employee's duties and obligations to his or her employer.

The unemployment insurance law defines "substantial fault" as acts or omissions of an employee over which the employee exercised reasonable control that violate reasonable requirements of the employee's employer, but not including minor infractions, inadvertent errors, or failure to perform work due to insufficient skill, ability, or equipment.

Apportionment of permanent disability

This bill provides that if an injured employee has incurred permanent disability, but a percentage of that disability was caused by an accidental injury sustained in the course of employment and a percentage of that disability was caused by other factors, whether occurring before or after the time of the accidental injury, the employer is liable only for the percentage of permanent disability that was caused by the accidental injury. If, however, previous permanent disability is attributable to occupational exposure with the same employer, the employer is also liable for that previous permanent disability.

Maximum weekly compensation for permanent partial disability

This bill increases the maximum weekly compensation rate for permanent partial disability from $322 to $342 for injuries occurring before January 1, 2017, and to $362 for injuries occurring on or after that date.

Supplemental benefits

This bill provides that 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, 2003, is entitled to receive supplemental benefits for a week of disability beginning after the effective date of the bill in an amount that, when added to the employee's regular benefits, equals $669. Under current law, supplemental benefits are payable only for an injury occurring prior to January 1, 2001, and the maximum supplemental benefit amount for a week of disability is an amount that, when added to the employee's regular benefits, equals $582.

Traumatic injuries

This bill provides that an application for worker's compensation for a traumatic injury filed more than six years after the date of injury or date that worker's compensation was last paid is barred by the statute of limitations and that, for traumatic injuries for which there is no statute of limitations, benefits or treatment expenses for traumatic injury becoming due six years after the date of injury or the date that compensation was last paid are paid by DWD from the Work Injury Supplemental Benefit (WISB) fund, if that date is before April 1, 2006.

Under current law, an application for worker's compensation that is not filed within 12 years from the date of the injury or from the date that worker's compensation was last paid is barred by the statute of limitations and, in cases in which there is no statute of limitations, benefits or treatment expenses for traumatic injury becoming due 12 years after the date of injury or the date that compensation was last paid are paid by DWD from the WISB fund if that date is before April 1, 2006.

Vocational rehabilitation

This bill eliminates an April 30, 2014, sunset date for a provision under which compensation for temporary disability on account of receiving vocational rehabilitation services is not reduced on account of any wages earned for the first 24 hours worked by an employee during a week in which the employee is receiving those services and only hours worked in excess of 24 during that week are offset against the employee's average weekly wage in calculating compensation for temporary disability. Generally under current law, all hours worked by an employee who has incurred partial disability are offset against the employee's average weekly wage in calculating compensation for temporary disability.

Prescription drug treatment

This bill specifies that the current law that limits the liability of an employer or insurer for the cost of a prescription drug to the average wholesale price of the prescription drug, as quoted in the Drug Topics Red Book (average wholesale price), applies to a prescription drug dispensed outside of a licensed pharmacy.

The bill also provides that DWD may use an alternative nationally recognized prescription drug pricing source for determining average wholesale prices of prescription drugs if the Drug Topics Red Book is discontinued and becomes unavailable.

Minimum permanent partial disability ratings

This bill requires DWD, at least once every eight years, to review and revise the minimum permanent partial disability ratings that DWD has promulgated by rule for certain amputation levels, losses of motion, sensory losses, and surgical procedures resulting from injuries for which permanent partial disability is claimed. Before revising those ratings, DWD must appoint a medical advisory committee, composed of physicians practicing on one or more areas of specialization or treating disciplines within the medical profession, to review those ratings and recommend revisions of those ratings, based on typical loss of function, to DWD and the Council on Worker's Compensation.

Hearings and procedures

Health care records in electronic format

This bill permits a physician, chiropractor, psychologist, podiatrist, dentist, physician assistant, advance practice nurse prescriber, hospital, or health service provider, upon request by an injured employee, employer, insurer, or DWD, to provide that person with any written material that is reasonably related to an injury for which the employee claims worker's compensation in electronic format upon payment of $26 per request. Current law requires those practitioners to provide that material to those requesters upon payment of the actual cost of providing those materials, not to exceed the greater of 45 cents per page or $7.50 per request, plus the actual costs of postage, but does not address providing those materials in electronic format.

Final practitioner's report

This bill prohibits DWD from requiring a treating practitioner to submit a final report to DWD if 1) an injured employee has a period of temporary disability of more than three weeks or a permanent disability, has undergone surgery to treat an injury, other than surgery to correct a hernia, or sustains an eye injury requiring medical treatment on three or more occasions off the employer's premises; 2) the employer or insurer denies the employee's claim for worker's compensation in its entirety; and 3) the employee does not contest that denial. Current law prohibits DWD from requiring submission of a final report under those circumstances, but does not specify that the employee's claim for compensation must be denied in its entirety.

The bill also requires a treating practitioner to complete a final report on a timely basis and permits a treating practitioner to charge no more than $100 for completing a final report.

Prospective vocational rehabilitation training orders

This bill permits DHA to include in an interlocutory or final award or order an order directing the employer or insurer to pay for a future course of instruction or other rehabilitation training services provided under a rehabilitation training program. Current law specifically permits DHA to include in an interlocutory or final award or order an order directing the employer or insurer to pay for any future treatment that may be necessary to cure and relieve an injured employee from the effects of the employee's injury, but does not specifically permit DHA to include in such an order or award an order directing payment for a future course of instruction or other services provided under a rehabilitation training program.

Administrative review of a worker's compensation decision

This bill requires the Labor and Industry Review Commission (LIRC) to dismiss a petition for review that is not filed within 21 days after DWD or DHA mailed a copy of the examiner's findings and order to the petitioner's last-known address unless the petitioner shows that the petition was filed late for a reason that was beyond the petitioner's control. Currently, LIRC must dismiss a petition for review that is not "timely" filed unless the petitioner shows probable good cause that the reason for failure to timely file the petition was beyond the petitioner's control.

The bill also allows LIRC to set aside a decision for further consideration within 28 days after the date of the decision, not within 28 days after the date of its mailing as under current law.

Judicial review of a worker's compensation decision

This bill requires LIRC to identify in an order or award made by LIRC the persons that must be made parties to an action for judicial review of the order or award. The bill also requires the summons and complaint in the action to name those persons as defendants. In addition, the bill permits the circuit court to join as a party to the action any other person determined necessary for the proper resolution of the action, unless joinder of the person would unduly delay the resolution of the action.

Program administration

Investigation and prosecution of fraudulent activity

This bill permits DWD to request the Department of Justice (DOJ) to assist DWD in an investigation of a false or fraudulent worker's compensation claim or any other suspected fraudulent activity on the part of an employer, employee, insurer, health care provider, or other person related to worker's compensation. If, based on the investigation, DWD has a reasonable basis to believe that theft, forgery, fraud, or any other criminal violation has occurred, DWD must refer the matter to the district attorney or DOJ for prosecution.

Self-insured employers

Election by governmental employer to self-insure. This bill codifies into statute certain DWD rules that permit the state or a local governmental unit to self-insure its worker's compensation liability without further order of DWD. Specifically, the bill permits the state or a local governmental unit that has independent taxing authority (governmental employer) to elect to self-insure its worker's compensation liability without further order of DWD if the governmental employer agrees to report all compensable injuries and to comply with the worker's compensation law and the rules of DWD. Under the bill, a local governmental unit that elects to self-insure its liability for the payment of worker's compensation must notify DWD of that election in writing before commencing to self-insure that liability, must notify DWD of its intent to continue to self-insure that liability every three years after that initial notice, and must notify DWD of its intent to withdraw that election not less than 30 days before the effective date of that withdrawal.

Revocation of governmental employer election to self-insure. This bill permits DWD to revoke an election by a governmental employer to self-insure its liability for worker's compensation, without seeking the advice of the Self-Insurer's Council, if DWD finds that the governmental employer's financial condition is inadequate to pay its employees' claims for compensation, that the governmental employer has received an excessive number of claims for compensation, or that the governmental employer has failed to discharge faithfully its obligations under the worker's compensation law and the rules of DWD. Under the bill, once such an election is revoked, the governmental employer whose election is revoked may not elect to self-insure its liability for the payment of worker's compensation unless at least three calendar years have elapsed since the revocation and DWD finds that the governmental employer's financial condition is adequate to pay its employees' claims for compensation, that the governmental employer has not received an excessive number of claims for compensation, and that the governmental employer has faithfully discharged its obligations under the worker's compensation law and the rules of DWD.

Self-insured employer assessments. This bill requires an initial assessment for the self-insurer's fund, which is a fund that is used to pay the worker's compensation liability of self-insured employers that cannot pay that liability, to be prorated on the basis of the gross payroll for this state of the self-insured employer, as reported to DWD for the previous calendar year for purposes of unemployment insurance. Current law requires subsequent assessments for the self-insurer's fund to be so prorated and requires an initial assessment for that fund to be equal to the amount assessed upon each other self-insured employer.

The bill also clarifies that governmental employers are not covered under the self-insurer's fund. Specifically, the bill prohibits DWD from 1) requiring a governmental employer that elects to self-insure its liability for the payment of worker's compensation to pay into the self-insurer's fund; and 2) making payments from that fund for the liability under the worker's compensation law of such an employer, whether currently or formerly exempt from the duty to insure.

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:

SB536,1 Section 1. 20.445 (1) (ra) of the statutes, as affected by 2015 Wisconsin Act 55, is amended to read:

SB536,8,8 20.445 (1) (ra) Worker's compensation operations fund; administration. From the worker's compensation operations fund, the amounts in the schedule for the administration of the worker's compensation program by the department, for assistance to the department of justice in investigating and prosecuting fraudulent activity related to worker's compensation, for transfer to the uninsured employers fund under s. 102.81 (1) (c), and for transfer to the appropriation accounts under par. (rp) and s. 20.427 (1) (ra). All moneys received under ss. 102.28 (2) (b) and 102.75 shall be credited to this appropriation account. From this appropriation, an amount not to exceed $5,000 may be expended each fiscal year for payment of expenses for travel and research by the council on worker's compensation, an amount not to exceed $500,000 may be transferred in each fiscal year to the uninsured employers fund under s. 102.81 (1) (c), the amount in the schedule under par. (rp) shall be transferred to the appropriation account under par. (rp), and the amount in the schedule under s. 20.427 (1) (ra) shall be transferred to the appropriation account under s. 20.427 (1) (ra).

SB536,2 Section 2. 46.27 (5) (i) of the statutes is amended to read:

SB536,9,5 46.27 (5) (i) In the instances in which an individual who is provided receives direct funding for long-term community support services under par. (b) for which the individual receives direct funding, serve directly as a fiscal agent or contract with a fiscal intermediary to serve as a fiscal agent for that individual for the purposes of performing the responsibilities and protecting the interests of the individual under the unemployment insurance law. The county department or aging unit may elect to act as a fiscal agent or contract with a fiscal intermediary to serve as a fiscal agent for an individual who is provided long-term support services under s. 46.275, 46.277, 46.278, 46.2785, 46.495, 51.42, or 51.437. The fiscal agent under this paragraph is responsible for remitting any federal unemployment compensation taxes or state unemployment insurance contributions owed by the individual, including any interest and penalties which are owed by the individual; for serving as the representative of the individual in any investigation, meeting, hearing , or appeal involving ch. 108 or the federal unemployment tax act (26 Unemployment Tax Act, 26 USC 3301 to 3311) 3311, in which the individual is a party; and for receiving, reviewing, completing, and returning all forms, reports , and other documents required under ch. 108 or the federal unemployment tax act Unemployment Tax Act on behalf of the individual. An individual may make an informed, knowing, and voluntary election to waive the right to a fiscal agent under this paragraph. The waiver may be as to all or any portion of the fiscal agent's responsibilities. The waiver may be rescinded in whole or in part at any time.

SB536,3 Section 3. 46.27 (5m) of the statutes is created to read:

SB536,9,11 46.27 (5m) Worker's compensation coverage. An individual who is performing services for a person receiving long-term care benefits under this section on a self-directed basis and who does not otherwise have worker's compensation coverage for those services is considered to be an employee of the entity that is providing financial management services for that person.

SB536,4 Section 4. 46.275 (4m) of the statutes is created to read: