SB536: Bill Text

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:

SB536,9,17 46.275 (4m) 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.

SB536,5 Section 5. 46.277 (3r) of the statutes is created to read:

SB536,9,23 46.277 (3r) 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.

SB536,6 Section 6. 46.281 (1k) of the statutes is created to read:

SB536,10,5 46.281 (1k) Worker's compensation coverage. An individual who is performing services for a person receiving the Family Care benefit, or benefits under Family Care Partnership, 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.

SB536,7 Section 7. 46.2897 (title) of the statutes is amended to read:

SB536,10,7 46.2897 (title) Self-directed services option; advocacy services.

SB536,8 Section 8. 46.2897 of the statutes is renumbered 46.2897 (2).

SB536,9 Section 9. 46.2897 (1) of the statutes is created to read:

SB536,10,13 46.2897 (1) Definition. In this section, "self-directed services option" means the program that is operated under a waiver from the secretary of the federal department of health and human services under 42 USC 1396n (c) in which an enrolled individual selects his or her own services and service providers.

SB536,10 Section 10. 46.2897 (2) (title) of the statutes is created to read:

SB536,10,15 46.2897 (2) (title) Advocacy services.

SB536,11 Section 11. 46.2897 (3) of the statutes is created to read:

SB536,10,21 46.2897 (3) Worker's compensation coverage. An individual who is performing services for a person participating in the self-directed services option 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.

SB536,12 Section 12. 46.995 (3) of the statutes is created to read:

SB536,11,2 46.995 (3) An individual who is performing services for a person receiving long-term care benefits under any children's long-term support 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 that person.

SB536,13 Section 13. 101.654 (2) (b) of the statutes is amended to read:

SB536,11,8 101.654 (2) (b) If the applicant is required under s. 102.28 (2) (a) to have in force a policy of worker's compensation insurance or if the applicant is self-insured in accordance with s. 102.28 (2) (b) or (bm), that the applicant has in force a policy of worker's compensation insurance issued by an insurer authorized to do business in this state or is self-insured in accordance with s. 102.28 (2) (b) or (bm).

SB536,14 Section 14. 102.01 (2) (d) of the statutes, as affected by 2015 Wisconsin Act 55, is amended to read:

SB536,11,16 102.01 (2) (d) "Municipality" includes a county, city, town, village, school district, sewer district, drainage district and long-term care district and "Local governmental unit" means a political subdivision of this state; a special purpose district or taxing jurisdiction, as defined in s. 70.114 (1) (f), in this state; an instrumentality, corporation, combination, or subunit of any of the foregoing; or any other public or quasi-public corporations corporation.

SB536,15 Section 15. 102.03 (4) of the statutes is amended to read:

SB536,11,24 102.03 (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. s. 102.43 (5) (c) or (7) or 102.44 (1) or (5) or, before May 1, 2014, as provided in s. 102.43 (5) (c) 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).

SB536,16 Section 16. 102.04 (1) (a) of the statutes, as affected by 2015 Wisconsin Act 55, is amended to read:

SB536,12,5 102.04 (1) (a) The state, and each county, city, town, village, school district, sewer district, drainage district, long-term care district and other public or quasi-public corporations therein local governmental unit in this state.

SB536,17 Section 17. 102.04 (2m) of the statutes is amended to read:

SB536,12,15 102.04 (2m) A temporary help agency is the employer of an employee whom the temporary help agency has placed with or leased to another employer that compensates the temporary help agency for the employee's services. A temporary help agency is liable under s. 102.03 for all compensation and other payments payable under this chapter to or with respect to that employee, including any payments required under s. 102.16 (3), 102.18 (1) (b) 3. or (bp), 102.22 (1), 102.35 (3), 102.57, or 102.60. Except as permitted under s. 102.29, a temporary help agency may not seek or receive reimbursement from another employer for any payments made as a result of that liability.

SB536,18 Section 18. 102.07 (1) (a) of the statutes is amended to read:

SB536,13,3 102.07 (1) (a) Every person, including all officials, in the service of the state, or of any municipality therein local governmental unit in this state, whether elected or under any appointment, or contract of hire, express or implied, and whether a resident of the state or employed or injured within or without the state. The state and any municipality local governmental unit may require a bond from a contractor to protect the state or municipality local governmental unit against compensation to employees of such the contractor or to employees of a subcontractor under the contractor. This paragraph does not apply beginning on the first day of the first July beginning after the day that the secretary files the certificate under s. 102.80 (3) (a), except that if the secretary files the certificate under s. 102.80 (3) (ag) this paragraph does apply to claims for compensation filed on or after the date specified in that certificate.

SB536,19 Section 19. 102.07 (1) (b) of the statutes is amended to read:

SB536,13,12 102.07 (1) (b) Every person, including all officials, in the service of the state, or of any municipality therein local governmental unit in this state, whether elected or under any appointment, or contract of hire, express or implied, and whether a resident of the state or employed or injured within or without the state. This paragraph first applies on the first day of the first July beginning after the day that the secretary files the certificate under s. 102.80 (3) (a), except that if the secretary files the certificate under s. 102.80 (3) (ag) this paragraph does apply to claims for compensation filed on or after the date specified in that certificate.

SB536,20 Section 20. 102.07 (3) of the statutes is amended to read:

SB536,13,20 102.07 (3) Nothing herein contained shall prevent municipalities in this chapter prevents a local governmental unit from paying teachers, police officers, fire fighters and other employees a teacher, police officer, fire fighter, or any other employee his or her full salaries salary during a period of disability, nor interfere interferes with any pension funds fund, nor prevent prevents payment to teachers, police officers or fire fighters therefrom a teacher, police officer, fire fighter, or any other employee from a pension fund.

SB536,21 Section 21. 102.07 (7) (a) of the statutes is amended to read:

SB536,14,6 102.07 (7) (a) Every member of a volunteer fire company or fire department organized under ch. 213, a legally organized rescue squad, or a legally organized diving team is considered to be an employee of that company, department, squad, or team. Every member of a company, department, squad, or team described in this paragraph, while serving as an auxiliary police officer at an emergency, is also considered to be an employee of that company, department, squad, or team. If a company, department, squad, or team described in this paragraph has not insured its liability for compensation to its employees, the municipality or county political subdivision within which that company, department, squad, or team was organized shall be liable for that compensation.

SB536,22 Section 22. 102.07 (10) of the statutes is amended to read:

SB536,14,18 102.07 (10) Further to effectuate the policy of the state that the benefits of this chapter shall extend and be granted to employees in the service of the state, or of any municipality therein local governmental unit in this state, on the same basis, in the same manner, under the same conditions, and with like right of recovery as in the case of employees of persons, firms, or private corporations, any question whether any person is an employee under this chapter shall be governed by and determined under the same standards, considerations, and rules of decision in all cases under subs. (1) to (9). Any statutes, ordinances, or administrative regulations which statute, ordinance, or rule that may be otherwise applicable to the classes of employees enumerated in sub. (1) shall not be controlling in deciding whether any person is an employee for the purposes of this chapter.

SB536,23 Section 23. 102.07 (20) of the statutes is created to read:

SB536,15,3 102.07 (20) An individual who is performing services for a person participating in the self-directed services option, as defined in s. 46.2897 (1), for a person receiving long-term care benefits under s. 46.27, 46.275, or 46.277 or under any children's long-term support waiver program on a self-directed basis, or for a person receiving the Family Care benefit, as defined in s. 46.2805 (4), or benefits under the Family Care Partnership program, as described in s. 49.496 (1) (bk) 3., 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.

SB536,24 Section 24. 102.11 (1) (intro.) of the statutes is amended to read:

SB536,15,20 102.11 (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 17, 2012, and before January 1, 2013, not more than $468, resulting in a maximum compensation rate of $312, and, for permanent partial disability for injuries occurring on or after January 1, 2013, not more than $483, resulting in a maximum compensation rate of $322, except as provided in 2011 Wisconsin Act 183, section 30 (2) (a) the effective date of this subsection .... [LRB inserts date], and before January 1, 2017, not more than $513, resulting in a maximum compensation rate of $342, and, for permanent partial disability for injuries occurring on or after January 1, 2017, not more than $543, resulting in a maximum compensation rate of $362. Between such limits the average weekly earnings shall be determined as follows: