(g) Inapplicability to other employers.
does not apply to any group of employers other than those specified in this section on any other type of operations nor to any single contract or policy of insurance for any group or association of employers.
DWD 80.61 History
Cr. Register, September, 1982, No. 321
, eff. 10-1-82; am. (2) (a) 1., (3) (b) 3. and (3) (d) 3., r. and recr. (3) (e), Register, September, 1986, No. 369
, eff. 10-1-86; am. (2) (a) 2. to (c), Register, April, 1990, No. 412
, eff. 5-1-90; cr. (3) (em), Register, April, 1994, No. 460
, eff. 5-1-94; CR 15-030
: am. (3) (c) 1., 2. a. to f. Register October 2015 No. 718
, eff. 11-1-15.
Uninsured employers fund. DWD 80.62(1)(1)
The purpose of this section is to clarify the department's procedures for handling claims for compensation to injured workers under s. 102.81 (1)
, Stats. This section also defines the financial standards and actuarial principles which the department will use to monitor the adequacy of the cash balance in the fund to pay both known claims and claims incurred but not reported under s. 102.81 (1)
“Agent" means a third-party administrator or other person selected by the department to assist in the administration of the uninsured employers fund program.
“Case reserve" means the best estimate documented in the claim-loss file of all liability to pay compensation on a claim under s. 102.81 (1)
“Claim" means an injury suffered by an employee of an uninsured employer for which the uninsured employer is liable under s. 102.03
, Stats., and which is reported to the department on a form approved by the department for reporting work-related injuries.
“Incurred but not reported reserve" or “IBNR reserve" means the best actuarial estimate of liability to pay compensation under s. 102.81 (1)
, Stats., for injuries which occurred on or prior to the current accounting date, for which there is no claim yet reported to the department.
“Ultimate reserve" means the best actuarial estimate of aggregate case reserves from all claims, the expected future development of claims that have been reported, and IBNR reserve.
“Uninsured employer" means an employer who is subject to ch. 102
, Stats., under s. 102.04 (1)
, Stats., and who has not complied with the duty to insure or to obtain an exemption from the duty to insure under s. 102.28 (2)
In addition to the notice to an employer required under s. 102.12
, Stats., an employee shall report a claim for compensation under s. 102.81
, Stats., to the department on a form provided by the department within a reasonable time after the employee has reason to believe that an uninsured employer may be liable for the injury.
DWD 80.62 Note
Note: To obtain a form to report a claim for compensation, contact the Department of Workforce Development, Worker's Compensation Division, 201 East Washington Avenue, P.O. Box 7901, Madison, Wisconsin 53707 or call (608) 266-1340.
After receiving a claim under par. (a)
, the department shall determine whether the employer is an uninsured employer by reviewing its own records and the records maintained by the Wisconsin compensation rating bureau. Within 14 days after receiving a claim under par. (a)
, the department shall send the employer written notice that a claim has been reported and that the department has made an initial determination that the employer is, or is not, an uninsured employer with respect to the claimed injury. The department shall send a copy of the notice to the employee who filed the claim. If the department later modifies its initial determination regarding the employer's insurance status with respect to a claim reported under this section, it shall promptly notify the employer and the employee of the reason for the modification and the likely impact of this change on the claim, if any. The employer shall notify its insurance carrier of any modification if the department determines that the employer is an insured employer.
If the department determines that the employer is an uninsured employer it shall promptly seek reimbursement as provided in s. 102.82 (1)
, Stats., and additional payments to the fund as provided in s. 102.82 (2)
, Stats. The department may also initiate penalty proceedings under s. 102.85
, Stats. If the department determines that the employer is not an uninsured employer it shall notify the parties and close the claim. Nothing in this section shall prevent the department from taking other appropriate action on a claim including penalties and interest due under ss. 102.16 (3)
, 102.18 (1) (b)
, 102.22 (1)
, 102.35 (3)
Paying a claim.
Within 14 days after a claim is reported to the department, the department or its agent shall mail the first indemnity payment to the injured employee, deny the claim or explain to the employee who filed a claim the reason that the claim is still under review. The department or its agent shall report to the employee regarding the status of the claim at least once every 30 days from the date of the first notification that the claim is under review until the first indemnity payment is made or the claim is denied.
An employee who makes a claim shall cooperate with the department or its agent in the investigation or payment of a claim.
The department or its agent may deny compensation on a claim if an employee fails to provide reasonable assistance to the department or its agent, including recorded interviews, questionnaire responses, medical and other releases, copies of relevant payroll checks, check stubs, bank records, wage statements, tax returns or other similar documentation to identify the employer who may be liable for the injury under s. 102.03
, Stats. The department or its agent may also require the employee to document any medical treatment, vocational rehabilitation services or other bills or expenses related to a claim. To verify information submitted in support of a claim for compensation the department or its agent may share information related to a claim with other governmental agencies, including those responsible for tax collection, unemployment insurance, medical assistance, vocational rehabilitation, family support or general relief. Any information obtained from a patient health care record or that may constitute a patient health care record will be shared only to the extent authorized by ss. 146.81
If an employee fails to cooperate as required by par. (b)
, the department may suspend action upon an application filed under s. 102.17 (1)
, Stats., or may issue an order to dismiss the application with or without prejudice.
An employer who is alleged to be uninsured shall cooperate with the department or its agent in the investigation of a claim by providing any records related to payroll, personnel, taxes, ownership of the business or its assets or other documents which the department or its agent request from the employer to determine the employer's liability under s. 102.03
, Stats. If an employer fails to provide information requested under this subsection, the department may presume the employer is an uninsured employer.
The department may select one or more agents to assist the department in its administration of the uninsured employers program, including agents selected for any of the following:
To represent the legal interests of the uninsured employers fund and to make appearances on behalf of the uninsured employers fund in proceedings under ss. 102.16
To seek reimbursement from employers under s. 102.82 (1)
, Stats., for payments made from the fund to or on behalf of employees or their dependents and for claims administration expenses.
To prepare reports, audits or other summary information related to the program.
To collect overpayments from employees or their dependents or from those to whom overpayments were made on behalf of employees or their dependents where benefits were improperly paid.
Except as provided in this section, the department or its agent shall have the same rights and responsibilities in administering claims under ch. 102
, Stats., as an insurer authorized to do business in this state. The department or its agent is not liable for penalties and interest due under ss. 102.16 (3)
, 102.18 (1) (b)
, 102.22 (1)
, 102.35 (3)
The department shall monitor the fund's net balance of assets and liabilities to determine if the fund is solvent using the following accounting principles:
In determining the fund's assets, the department shall not include recoveries under s. 102.29 (1)
, Stats., unless they are in process of payment and due within 30 days, or vouchers in the process of payment which are not fully credited to the fund's account.
In determining the fund's liabilities, the department shall estimate the ultimate reserves without discounting, and shall not include reinsurance recoveries that are less than 60 days overdue.
If the secretary determines that ultimate liabilities to the fund on known and IBNR claims exceed 85% of the cash balance in the fund, the secretary shall consult with the council on worker's compensation. If the secretary determines that the fund's ultimate liabilities exceed the fund's ultimate assets, or that there is a reasonable likelihood that the fund's liabilities will exceed the fund's assets within 3 months, the secretary shall file the certificate of insolvency in s. 102.80 (3) (ag)
Temporary reduction or delay of payments from the fund. DWD 80.62(10)(a)(a)
If the secretary files a certificate under s. 102.80 (3) (ag)
, Stats., the department shall continue to pay compensation under s. 102.81 (1)
, Stats., on claims reported to the department prior to the date specified in that certificate after which no new claims under s. 102.81 (1)
, Stats., will be accepted or paid.
If the cash balance in the fund is not sufficient to pay all compensation or other liabilities due in a timely manner, the department may temporarily reduce or delay payments on claims to employees, dependents of employees, health care providers, vocational rehabilitation specialists and others to whom the fund is liable. To manage the fund's cash flow, the department may adopt a uniform, pro-rata reduction schedule or it may establish different payment schedules for different types of liabilities. The department may amend its payment schedule as necessary.
The department shall provide written notice to each person who does not receive timely compensation from the fund which explains the reduced or delayed payment schedule adopted by the department to resolve the cash-flow problem.
DWD 80.62 History
Cr. Register, July, 1996, No. 487
, eff. 8-1-96; CR 03-125
: am. (7) (a) 3. Register June 2004 No. 582
, eff. 7-1-04; CR 15-030
: r. (8) Register October 2015 No. 718
, eff. 11-1-15.
Notice of cancellation, termination, or nonrenewal.
Notice of cancellation, termination, or nonrenewal of a policy under ss.102.31 (2) (a) and 102.315 (10), Stats., shall be given in writing to the Wisconsin compensation rating bureau, as defined in s. 626.02 (1)
, Stats., rather than the department. Whenever the Wisconsin compensation rating bureau receives notice of cancellation, termination, or nonrenewal pursuant to this section, it shall immediately notify the department of cancellation, termination, or nonrenewal.
DWD 80.65 Note
Note: Notice of cancellation, termination, or nonrenewal given to the Wisconsin Compensation Rating Bureau can be submitted in electronic formats through facsimile machine transmission, electronic mail, certified mail or by personal service. This note may be updated without rulemaking at any time the means of notification are changed.
DWD 80.65 Note
A person may contact the Wisconsin Compensation Rating Bureau by telephone at (262) 796-4540, by visiting the website at: http://www.wcrb.org
, or by writing to the following address:
DWD 80.65 Note
Wisconsin Compensation Rating Bureau
P.O. Box 3080
Milwaukee, WI 53201-3080
Insurer name change.
A worker's compensation insurer shall notify the department and the Wisconsin compensation rating bureau in writing 30 days before the effective date of a change in its name. The insurer shall comply with the name change requirements in its state of domicile and in the state of Wisconsin. On or before the effective date of an approved name change, the insurer shall notify each of its employers insured under ch. 102
, Stats., that the insurer's name is changed. Insurers shall notify employers by an endorsement to the employer's existing policy that states the insurer's new name. The insurer shall file a copy of the endorsement with the Wisconsin compensation rating bureau by personal service, facsimile, or certified mail at the same time that it provides notice to its employers insured under ch. 102
DWD 80.67 Note
Note: The State of Wisconsin Office of the Commissioner of Insurance requires an advance notice of an insurer name change or reorganization. For further information, contact OCI at (608) 266-3585 or (800) 236-8517.
DWD 80.67 History
Cr. Register, September, 1986, No. 369
, eff. 10-1-86; CR 00-181
: r. and recr., Register July 2001, No. 547
Payment of benefits under s. 102.59, Stats. DWD 80.68(1)(1)
Payment of benefits under s. 102.59
, Stats., shall initially be made to the individual entitled to the benefits at such time as payments of primary compensation by the employer cease to be made or would have been made had there been no payment under s. 102.32 (6m)
, Stats., unless the preexisting disability and the disability for which primary compensation is being paid combine to result in permanent total disability.
Payments received by an employee or dependent from an account in a financial institution or from an annuity policy where such account or annuity policy are established through settlement of the claim for primary compensation, shall be considered payments by the employer or insurance carrier.
DWD 80.68 Note
Note: This rule is adopted to insure the solvency of the work injury supplemental benefit and to insure the protection of dependents as of the date of death of the employee with the preexisting disability.
DWD 80.68 History
Cr. Register, September, 1986, No. 369
, eff. 10-1-86; CR 07-019
: am. (1) and (3), Register October 2007 No. 622
, eff. 11-1-07.
An employer who unreasonably refuses or unreasonably fails to report an alleged injury to its insurance company providing worker's compensation coverage, shall be deemed to have acted with malice or bad faith.
An insurance company or self-insured employer who, without credible evidence which demonstrates that the claim for the payments is fairly debatable, unreasonably fails to make payment of compensation or reasonable and necessary medical expenses, or after having commenced those payments, unreasonably suspends or terminates them, shall be deemed to have acted with malice or in bad faith.
DWD 80.70 History
Cr. Register, September, 1982, No. 321
, eff. 10-1-82.
Health service fee dispute resolution process. DWD 80.72(1)(1)
The purpose of this section is to establish the procedures and requirements for resolving a dispute under s. 102.16 (2)
, Stats., between a health service provider and an insurer or self-insured employer over the reasonableness of a fee charged by the health service provider relating to the examination or treatment of an injured worker, and to specify the standards that health service fee data bases must meet for certification by the department.
“Applicant" means the person requesting certification of a data base.
“Certified" means approved by the department for use in determining the reasonableness of fees.
“CPT code" means the American medical association's 1992 physicians' current procedural terminology.
DWD 80.72 Note
Note: This volume is on file in the offices of the secretary of state and the legislative reference bureau, and in the worker's compensation division of the department, GEF I, room 161, 201 E. Washington Ave., Madison, Wisconsin. Copies can be obtained from local textbook stores or from the American medical association, order department: OP054192, P.O. Box 10950, Chicago, IL 60601.
“Data base" means a list of fees for procedures compiled and sorted by CPT code, ICD-9-CM code, ADA code, DRG code, or other similar coding which is systematically collected, assembled, and updated, and which does not include procedures charged under medicare.
“DRG" means a diagnostic related group established by the federal health care financing administration.
“Dispute" means a disagreement between a health service provider and an insurer or self-insured employer over the reasonableness of a fee charged by a health service provider where the insurer or self-insured employer refuses to pay part or all of the fee.
“Fee" or “health service fee" means the amount charged for a procedure by a health service provider.
“Formula amount" means the mean fee for a procedure plus 1.4 standard deviations from that mean as shown by data from a certified data base.
“ICD-9-CM" means the commission on professional and hospital activities' international classification of diseases, 9th revision, clinical modification.
DWD 80.72 Note
Note: This volume is on file in the offices of the secretary of state and the legislative reference bureau, and in the worker's compensation division of the department, GEF I, room 161, 201 E. Washington Ave., Madison, Wisconsin. Copies can be obtained from local textbook stores, or from superintendent of documents, U.S. government printing office, Washington, D.C., 20402, (stock number 917014000001.
“Procedure" or “health service procedure" means any treatment of an injured worker under s. 102.42
“Provider" or “health service provider" includes a physician, podiatrist, psychologist, optometrist, chiropractor, dentist, physician's assistant, advanced practice nurse prescriber, therapist, medical technician, or hospital.
“Self-insurer" means an employer who has been granted an exemption from the duty to insure under s. 102.28 (2)
In a case where liability or the extent of disability is in dispute, an insurer or self-insured employer shall provide written notice of the dispute to the health care provider within 30 days after receiving a completed bill that clearly identifies the provider's name, address and phone number; the patient–employee; the date of service; and the health service procedure, unless there is good cause for delay in providing notice. In a case where liability or the extent of disability is not in issue, and a health care provider charges a fee which an insurer or self-insurer refuses to pay because it is more than the formula amount, the insurer or self-insurer shall, except as provided in sub. (6) (b)
, mail or deliver written notice to the provider within 30 days after receiving a completed bill which clearly identifies the provider's name, address and phone number; the patient-employe; the date of service; the health service procedure; and the amount charged for each procedure. The notice from the insurer or self-insurer to the provider shall specify all of the following:
The CPT code, ADA code, ICD-9-CM code, DRG code or other certified code for the procedure;
The formula amount for the procedure and the certified data base from which that amount was determined;
The amount of the fee that is in dispute beyond the formula amount;
The provider's obligation under par. (c)
, if the fee is beyond the formula amount, to provide the insurer or self-insurer with a written justification for the higher fee, at least 20 days prior to submitting the dispute to the department. The notice must clearly explain that the only justification for a fee more than the formula amount is that the service provided in this particular case is more difficult or more complicated than in the usual case; and