LRB-4563/1
AJM&MED:kjf
2017 - 2018 LEGISLATURE
December 21, 2017 - Introduced by Committee on Labor and Regulatory Reform,
by request of Department of Workforce Development. Referred to Committee
on Labor and Regulatory Reform.
SB665,2,5 1An Act to repeal 102.39; to renumber 102.14; to renumber and amend
2102.15 (1) and 102.16 (1) (b); to amend 20.445 (1) (ra), 20.445 (1) (sm), 46.27
3(5m), 46.275 (4m), 46.277 (3r), 46.281 (1k), 46.2897 (3), 46.995 (3), 73.0301 (1)
4(d) 3m., 73.0301 (1) (e), 102.04 (1) (b) 1., 102.04 (1) (b) 2., 102.11 (1) (intro.),
5102.13 (2) (b), 102.13 (2) (c), 102.14 (title), 102.15 (title), 102.16 (1m) (a), 102.17
6(1) (b), 102.17 (1) (c), 102.17 (1) (cg), 102.17 (1) (cr), 102.17 (2), 102.175 (2),
7102.18 (1) (bg) 1., 102.18 (1) (bp), 102.18 (2) (a), 102.18 (5), 102.18 (6), 102.44
8(1) (ag), 102.44 (1) (am), 102.44 (1) (b), 102.44 (2), 102.44 (6) (b), 102.61 (2),
9102.62, 102.75 (1m), 102.80 (1) (d), 102.81 (4) (b) (intro.), 102.81 (4) (b) 2., 102.81
10(5), 102.82 (1), 108.227 (1) (f), 108.227 (1m) (intro.), 108.227 (3) (a) 3., 108.227
11(5) (a), 108.227 (5) (b) 1. and 108.227 (5) (b) 2.; to repeal and recreate 102.17
12(1) (ct); and to create 20.445 (1) (rc), 73.0301 (1) (d) 15., 102.13 (1) (bm), 102.14
13(2m), 102.15 (1g), 102.16 (1) (b) 2., 102.16 (2) (i), 102.33 (1m), 102.33 (2) (b) 7.,
14102.423, 102.425 (2m), 102.427, 102.525, 102.81 (4) (c) and 108.227 (1) (e) 16.

1of the statutes; relating to: various changes to the worker's compensation law,
2modifying administrative rules related to worker's compensation, extending
3the time limit for emergency rule procedures, providing an exemption from
4emergency rule procedures, granting rule-making authority, and making an
5appropriation.
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 and the Division of
Hearings and Appeals in the Department of Administration.
Payment of benefits; other payments
Health service fee schedule
This bill requires DWD, by January 1, 2019, to establish a schedule of the
maximum fees that a health care provider may charge an employer or insurer for
health services provided to an injured employee who claims worker's compensation
benefits. Under the bill, DWD must, when that schedule is established, notify the
Legislative Reference Bureau, and the LRB must publish that notice in the
Wisconsin Administrative Register. The reasonableness of the health service fee
dispute resolution process under current law does not apply to health services
provided on or after the date of the notice. The liability of an employer or insurer for
a health service included in the fee schedule is then limited to the lesser of the
maximum fee allowed under the schedule or the health care provider's actual fee for
that health service as of the date on which the health service was provided.
The bill requires DWD to establish the maximum fees by using a formula that
compares the cost for group health plans and self-insured plans with the cost under
the federal Medicare program for health services included in the schedule. DWD
must first determine the average negotiated price for insured and self-insured group
health plans for each health service included in the schedule. Records related to the
collection of that information are not subject to disclosure under the public records
law. DWD must then determine the payment made under the federal Medicare
program for each health service included in the schedule, and then determine the
average variance in prices under the group health and self-insured plans and under
the federal Medicare program for each health care service included in the schedule.
The bill then requires DWD to increase the prices under the federal Medicare
program by the average variation in prices. Finally, DWD must increase the cost of
each health service by 2.5 percent for administrative costs or by an alternative
percentage not to exceed 10 percent if DWD determines, based on information
provided by health care providers before the schedule initially takes effect, that the
2.5 percent increase is insufficient to pay for the administrative costs of treating
worker's compensation patients.

The bill requires DWD to adjust those maximum fees annually by the change
in the consumer price index for medical care services and, no less often than every
ten years, to redetermine the average negotiated prices for group health plans and
self-insured plans and payments under the federal Medicare program for the
services included in the schedule and revise the maximum fees based on those
redetermined amounts.
Additional payments for permanent partial disability
The bill specifies certain conditions under which an employee who sustains a
disability in the permanent partial disability schedule included in the statutes may
receive additional permanent partial disability indemnity payments. Under current
law, an injured employee receives a number of weeks of indemnity payments for a
permanent partial disability for a period specified in the statutes. Under the bill, the
injured employee is entitled to a 15 percent increase in the number of weeks of
indemnity payments if the employee experiences wage loss, as determined by DWD,
of 15 percent or more upon returning to work, or if the employment relationship is
terminated by the employer at the time of the injury or by the employee because his
or her physical or mental limitations prevent continued employment. The bill
specifies that the determination of wage loss may not account for periods during
which the employee receives temporary disability benefits or unemployment
insurance benefits or any payments for permanent partial disability.
Under the bill, if the employer makes a good faith offer of employment that the
employee refuses without just cause, the employee is considered to have returned to
work at the wages the employee would have received had the employee accepted the
employment offer.
Maximum weekly compensation for permanent partial disability
This bill increases the maximum weekly compensation rate for permanent
partial disability from $362 to $382 for injuries occurring before January 1, 2019, and
to $407 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, 2005, 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 $711. Under current law, supplemental benefits
are payable only for an injury occurring prior to January 1, 2003, and the maximum
supplemental benefit amount for a week of disability is an amount that, when added
to the employee's regular benefits, equals $669.
Lump sum payments in compromise agreements
The bill increases the maximum amount of unaccrued benefits that may be
provided to an injured employee as a lump sum in a compromise agreement
concerning the employer's liability under the worker's compensation law. Current
administrative rules permit an employee and employer to enter into a compromise
agreement concerning the employer's worker's compensation liability. The rules

limit the amount of unaccrued worker's compensation benefits that may be provided
as a lump sum to the injured employee in that compromise agreement to $10,000.
Under the bill, that limit is increased to $50,000.
Payment of proceeds of claims against third parties
Current law provides that when an employee sustains a work injury or dies as
a result of a work injury and the employee, the employee's personal representative,
or other person entitled to bring action maintains an action in tort against a third
party for the injury or death, the proceeds of the claim are to be divided pursuant to
a formula detailed under current law. Under that formula, after deducting the
reasonable cost of collection, one-third of the remainder is in all cases to be paid to
the injured employee, personal representative, or other person entitled. Current law
also provides that if an injured employee or dependent receives compensation from
the employee's employer or a third party in such an action and the employee received
payments from DWD due to the employer being an uninsured employer, the
employee or dependent must reimburse DWD for the full amount up to the amount
recovered from the third party.
This bill modifies the latter provision such that if an injured employee or
dependent receives compensation from the employee's employer or a third party in
such an action and the employee received payments from DWD due to the employer
being an uninsured employer, the employee or dependent must reimburse DWD in
accordance with the formula described above.
Requirements and prohibitions for health care providers
Electronic billing
The bill requires any health care provider providing care to an injured employee
to use an electronic billing system and be able to receive payments electronically.
Health care records in electronic format
Current law requires a health care 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 paper format upon payment of the actual costs of
preparing the certified duplicate, not to exceed the greater of 45 cents per page or
$7.50 per request, plus the actual costs of postage, or in electronic format upon
payment of $26 per request.
This bill requires such material to be provided in electronic format unless the
requester is unable to receive the material in electronic format or otherwise
specifically requests the material in paper format.
Dispensing of opiates
The bill prohibits a practitioner from dispensing more than a seven-day supply
of an opiate to treat an injury for which an employer or insurer is liable under the
worker's compensation law. The bill provides that a supply greater than a seven-day
supply dispensed by a practitioner is considered to be unnecessary treatment
without the need for a written opinion on the necessity of the treatment.

Opiates and independent medical examinations
The bill requires that if a health care provider conducts an independent medical
examination and concludes that an employee has sustained a work-related injury
but that opiates that have been prescribed to the employee for the injury are not
medically necessary, any report prepared by the health care provider that
recommends the cessation of those opiates must include certain information,
including a discussion of alternative treatments, a proposed plan of discontinuation
of opiate therapy consistent with any applicable guidelines issued by a state
credentialing board, and a statement regarding coverage for addiction treatment.
Notice; requirement to post
The bill requires each employer to post, in each workplace, a notice in a form
approved by DWD setting forth employees' rights under the worker's compensation
law. DWD must include in the notice information to educate injured employees
regarding opiate therapies, opiate addiction, and alternative treatments for pain.
Program administration
Confidential records; disclosure to certain agencies
Under current law, subject to a number of exceptions, certain records of DWD,
DHA, or the Labor and Industry Review Commission that reveal information about
injured employees are confidential and not subject to disclosure under the public
records law or a subpoena. The bill creates another exception for records requested
by the Department of Health Services, a county department of social services, or a
county department of human services, if the request is limited to the name and
address of the employee who is the subject of the record, the name and address of the
employee's employer, and any financial information about that employee contained
in the record.
Coordination regarding pain management
The bill requires DWD to coordinate with the Department of Safety and
Professional Services and its attached credentialing boards and to educate injured
employees about treatments and about devices approved by the federal Food and
Drug Administration for chronic pain related to injuries compensable under the
worker's compensation law that, in lieu of or in combination with medication, may
reasonably be required to cure or provide relief from injured employees' pain and
about the fact that such treatments and devices may constitute covered medical
expenses under the worker's compensation law.
Hearing loss calculation
The bill requires DWD to conduct an analysis regarding the methods of
calculation of hearing loss under the worker's compensation law in this state and
how they compare to the methods of calculation used in the worker's compensation
laws of other states, as well as an analysis of how improvements in technology should
guide future decisions regarding how to calculate hearing loss for worker's
compensation purposes in this state. DWD must, within six months after the
effective date of the bill, issue a report of its findings to the Council on Worker's
Compensation.

Minimum permanent partial disability ratings
The bill requires DWD to report to the Council on Worker's Compensation on
DWD's progress in carrying out its duties related to reviewing and revising 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.
Other changes
The bill makes various other changes regarding the administration of the
worker's compensation law, including:
1. Changes regarding the financing of the worker's compensation law,
including creating a separate appropriation to pay for certain reimbursements for
supplemental benefit payments.
2. Giving DWD authority to take certain actions under the worker's
compensation law with respect to which DHA has authority under current law,
including allowing DWD to issue orders or take other action in certain cases.
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