Republication*: December 31, 2001
2001 WISCONSIN ACT 37
An Act to repeal 102.077 (3) and 102.125 (2); to renumber and amend 102.11 (1) (a) and 102.125 (1); to amend 15.227 (4), 102.04 (2), 102.07 (12m), 102.11 (1) (intro.), 102.11 (1) (b), 102.16 (2) (d), 102.16 (2m) (c), 102.17 (1) (c), 102.17 (1) (e), 102.17 (1) (h), 102.17 (4), 102.18 (1) (b), 102.20, 102.23 (1) (d), 102.29 (8), 102.31 (8), 102.32 (5), 102.32 (6), 102.33 (2) (a), 102.37, 102.38, 102.39, 102.43 (5), 102.43 (6) (b), 102.44 (1) (intro.), 102.44 (1) (a), 102.44 (1) (b), 102.57, 102.58, 102.59 (1), 102.61 (1), 102.61 (1m) (c), 102.61 (1m) (d), 102.61 (1m) (e), 102.61 (1m) (f), 102.61 (2), 102.66 (1), 102.66 (2) and 626.32 (1) (a); and to create 102.01 (2) (k), 102.07 (7m), 102.11 (1) (a) 4., 102.11 (1) (am), 102.123, 102.18 (1) (e), 102.26 (3) (b) 3., 102.33 (2) (c), 102.42 (1m) and 102.61 (1g) of the statutes; relating to: various changes to the worker's compensation law.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
37,1
Section
1. 15.227 (4) of the statutes is amended to read:
15.227 (4) Council on worker's compensation. There is created in the department of workforce development a council on worker's compensation appointed by the secretary of workforce development to consist of a member or designated employee of the department of workforce development as chairperson, 5 representatives of employers, and 5 representatives of employees. The secretary of workforce development shall also appoint 3 representatives of insurers authorized to do worker's compensation insurance business in this state as nonvoting members of the council.
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Section
2. 102.01 (2) (k) of the statutes is created to read:
102.01 (2) (k) "Workweek" means a calendar week, starting on Sunday and ending on Saturday.
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Section
3. 102.04 (2) of the statutes is amended to read:
102.04 (2) Except with respect to a partner or member electing under s. 102.075, members of partnerships or limited liability companies shall not be counted as employees. Except as provided in s. 102.07 (5) (a), a person under contract of hire for the performance of any service for any employer subject to this section (1961) shall not constitute an is not the employer of any other person with respect to such that service
, and such that other person shall, with respect to such that service, be deemed to be an employee only of such the employer for whom the service is being performed.
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Section
4. 102.07 (7m) of the statutes is created to read:
102.07 (7m) An employee, volunteer, or member of an emergency management unit is an employee for purposes of this chapter as provided in s. 166.03 (8) (d), and a member of a regional emergency response team who is acting under a contract under s. 166.215 (1) is an employee for purposes of this chapter as provided in s. 166.215 (4).
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Section
5. 102.07 (12m) of the statutes is amended to read:
102.07 (12m) A student of a public school, as described in s. 115.01 (1), or a private school, as defined in s. 115.001 (3r), while he or she is engaged in performing services as part of a school work training, work experience or work study program, and who is not on the payroll of an employer that is providing the work training or work experience or who is not otherwise receiving compensation on which a worker's compensation carrier could assess premiums on that employer, is an employee of a school district or private school that elects under s. 102.077 to name the student as its employee. This subsection does not apply after December 31, 2001.
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Section
6. 102.077 (3) of the statutes is repealed.
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Section
7. 102.11 (1) (intro.) of the statutes is amended to read:
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 which that results in a maximum compensation rate of 100% 110% of the state's average weekly earnings as determined under s. 108.05 as of June 30 of the previous year, except that the average weekly earnings for temporary disability, permanent total disability, or death benefits for injuries occurring on or after January 1, 1998, and before January 1, 1999 2006, shall be not more than $784.50, resulting in a maximum compensation rate of $523, and the average weekly earnings for temporary disability, permanent total disability or death benefits for injuries occurring on or after January 1, 1999, and before January 1, 2000, shall be not more than $807, resulting in a maximum compensation rate of $538 the wage rate that results in a maximum compensation rate of 100% 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 January 1, 1998
2002, and before January 1, 1999 2003, not more than $268.50 $318, resulting in a maximum compensation rate of $179, and, $212, for permanent partial disability for injuries occurring on or after January 1, 1999 2003, and before January 1, 2004, not more than $276 $333, resulting in a maximum compensation rate of $184 $222, for permanent partial disability for injuries occurring on or after January 1, 2004, and before January 1, 2005, not more than $348, resulting in a maximum compensation rate of $232, and, for permanent partial disability for injuries occurring on or after January 1, 2005, and before January 1, 2006, not more than $363, resulting in a maximum compensation rate of $242. Between such limits the average weekly earnings shall be determined as follows:
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Section
8. 102.11 (1) (a) of the statutes is renumbered 102.11 (1) (a) 1. and amended to read:
102.11 (1) (a) 1. Daily earnings shall mean the daily earnings of the employee at the time of the injury in the employment in which the employee was then engaged. In determining daily earnings under this paragraph, overtime subdivision, any hours worked beyond the normal full-time working day as established by the employer, whether compensated at the employee's regular rate of pay or at an increased rate of pay, shall not be considered.
2. If at the time of the injury the employee is working on part time for the day, the employee's daily earnings shall be arrived at by dividing the amount received, or to be received by the employee for such part-time service for the day, by the number of hours and fractional hours of such part-time service, and multiplying the result by the number of hours of the normal full-time working day established by the employer for the employment involved. The words "part time for the day" shall apply to Saturday half days and all other days upon which the employee works less than normal full-time working hours.
3. The average weekly earnings shall be arrived at by multiplying the employee's hourly earnings by the hours in the normal full-time workweek as established by the employer, or by multiplying the employee's daily earnings by the number of days and fractional days normally worked per week in the normal full-time workweek as established by the employer, at the time of the injury in the business operation of the employer for the particular employment in which the employee was engaged at the time of the employee's injury, whichever is greater.
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Section
9. 102.11 (1) (a) 4. of the statutes is created to read:
102.11 (1) (a) 4. It is presumed, unless rebutted by reasonably clear and complete documentation, that the normal full-time workweek established by the employer is 24 hours for a flight attendant, 56 hours for a firefighter, and not less than 40 hours for any other employee. If the employer has established a multi-week schedule with regular hours alternating between weeks, the normal full-time workweek is the average number of hours worked per week under the multi-week schedule.
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10. 102.11 (1) (am) of the statutes is created to read:
102.11 (1) (am) In the case of an employee who is a member of a regularly-scheduled class of part-time employees, average weekly earnings shall be arrived at by the method prescribed in par. (a), except that the number of hours of the normal working day and the number of hours and days of the normal workweek shall be the hours and days established by the employer for that class. An employee is a member of a regularly-scheduled class of part-time employees if all of the following conditions are met:
1. The employee is a member of a class of employees that does the same type of work at the same location and, in the case of an employee in the service of the state, is employed in the same office, department, independent agency, authority, institution, association, society, or other body in state government or, if the department determines appropriate, in the same subunit of an office, department, independent agency, authority, institution, association, society, or other body in state government.
2. The minimum and maximum weekly hours regularly scheduled by the employer for the members of the class during the 13 weeks immediately preceding the date of the injury vary by no more than 5 hours. Subject to this requirement, the members of the class do not need to work the same days or the same shift to be considered members of a regularly-scheduled class of part-time employees.
3. At least 10% of the employer's workforce doing the same type of work are members of the class.
4. The class consists of more than one employee.
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Section
11. 102.11 (1) (b) of the statutes is amended to read:
102.11 (1) (b) In case of seasonal employment, average weekly earnings shall be arrived at by the method prescribed in par. (a), except that the number of hours of the normal full-time working day and the number of days of the normal full-time working week workweek shall be such the hours and such the days in similar service in the same or similar nonseasonal employment. Seasonal employment shall mean employment which that can be conducted only during certain times of the year, and in no event shall employment be considered seasonal if it extends during a period of more than fourteen weeks within a calendar year.
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Section
12. 102.123 of the statutes is created to read:
102.123 Statement of employee. If an employee provides to the employer or the employer's insurer a signed statement relating to a claim for compensation by the employee, the employer or insurer shall provide a copy of the statement to the employee within a reasonable time after the statement is made. If an employer or insurer uses a recording device to take a statement from an employee relating to a claim for compensation by the employee, the employer or insurer, on the request of the employee or the employee's attorney or other authorized agent, shall reduce the statement to writing and provide a written copy of the entire statement to the employee, attorney, or agent within a reasonable time after the statement is taken. The employer or insurer shall also make the actual recording of the statement available as an exhibit if a hearing on the claim is held. An employer or insurer that fails to provide an employee with a copy of the employee's statement as required by this section or that fails to make available as an exhibit the actual recording of a statement recorded by a recording device as required by this section may not use that statement in any manner in connection with the employee's claim for compensation.
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Section
13. 102.125 (1) of the statutes is renumbered 102.125 and amended to read:
102.125 Fraudulent claims reporting and investigation. If an insurer or self-insured employer has evidence that a claim is false or fraudulent in violation of s. 943.395 and if the insurer or self-insured employer is satisfied that reporting the claim to the department will not impede its ability to defend the claim, the insurer or self-insured employer shall report the claim to the department. The department may require an insurer or self-insured employer to investigate an allegedly false or fraudulent claim and may provide the insurer or self-insured employer with any records of the department relating to that claim. An insurer or self-insured employer that investigates a claim under this subsection section shall report on the results of that investigation to the department. If based on the investigation the department has a reasonable basis to believe that a violation of s. 943.395 has occurred, the department shall refer the results of the investigation to the district attorney of the county in which the alleged violation occurred for prosecution.
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Section
14. 102.125 (2) of the statutes is repealed.
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Section
15. 102.16 (2) (d) of the statutes is amended to read:
102.16 (2) (d) For fee disputes that are submitted to the department before July 1, 2002, the The department shall analyze the information provided to the department under par. (c) according to the criteria provided in this paragraph to determine the reasonableness of the disputed fee. The department shall determine that a disputed fee is reasonable and order that the disputed fee be paid if that fee is at or below the mean fee for the health service procedure for which the disputed fee was charged, plus 1.5 standard deviations from that mean, as shown by data from a database that is certified by the department under par. (h). The department shall determine that a disputed fee is unreasonable and order that a reasonable fee be paid if the disputed fee is above the mean fee for the health service procedure for which the disputed fee was charged, plus 1.5 standard deviations from that mean, as shown by data from a database that is certified by the department under par. (h), unless the health service provider proves to the satisfaction of the department that a higher fee is justified because the service provided in the disputed case was more difficult or more complicated to provide than in the usual case.
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Section
16. 102.16 (2m) (c) of the statutes is amended to read:
102.16 (2m) (c) Before determining under this subsection the necessity of treatment provided for an injured employee who claims benefits under this chapter, the department shall obtain a written opinion on the necessity of the treatment in dispute from an expert selected by the department. Before determining under sub. (1m) (b) or s. 102.18 (1) (bg) 2. the necessity of treatment provided for an injured employee who claims benefits under this chapter, the department may, but is not required to, obtain such an expert opinion. To qualify as an expert, a person must be licensed to practice the same health care profession as the individual health service provider whose treatment is under review and must either be performing services for an impartial health care services review organization or be a member of an independent panel of experts established by the department under par. (f). The department shall adopt the written opinion of the expert as the department's determination on the issues covered in the written opinion, unless the health service provider or the insurer or self-insured employer present clear and convincing written evidence that the expert's opinion is in error.
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Section
17. 102.17 (1) (c) of the statutes is amended to read:
102.17 (1) (c) Either Any party shall have the right to be present at any hearing, in person or by attorney, or any other agent, and to present such testimony as may be pertinent to the controversy before the department. No person, firm, or corporation, other than an attorney at law, duly who is licensed to practice law in the state, may appear on behalf of any party in interest before the department or any member or employee of the department assigned to conduct any hearing, investigation, or inquiry relative to a claim for compensation or benefits under this chapter, unless the person is 18 years of age or older, does not have an arrest or conviction record, subject to ss. 111.321, 111.322 and 111.335, is otherwise qualified, and has obtained from the department a license with authorization to appear in matters or proceedings before the department. Except as provided under pars. (cm) and (cr), the license shall be issued by the department under rules to be adopted promulgated by the department. There shall be maintained in the office of the department The department shall maintain in its office a current list of persons to whom licenses have been issued. Any license may be suspended or revoked by the department for fraud or serious misconduct on the part of an agent, any license may be denied, suspended, nonrenewed, or otherwise withheld by the department for failure to pay court-ordered payments as provided in par. (cm) on the part of an agent, and any license may be denied or revoked if the department of revenue certifies under s. 73.0301 that the applicant or licensee is liable for delinquent taxes. Before suspending or revoking the license of the agent on the grounds of fraud or misconduct, the department shall give notice in writing to the agent of the charges of fraud or misconduct, and shall give the agent full opportunity to be heard in relation to the same
those charges. In denying, suspending, restricting, refusing to renew, or otherwise withholding a license for failure to pay court-ordered payments as provided in par. (cm), the department shall follow the procedure provided in a memorandum of understanding entered into under s. 49.857. The license and certificate of authority shall, unless otherwise suspended or revoked, be in force from the date of issuance until the June 30 following the date of issuance and may be renewed by the department from time to time, but each renewed license shall expire on the June 30 following the issuance thereof of the renewed license.
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18. 102.17 (1) (e) of the statutes is amended to read:
102.17 (1) (e) The department may, with or without notice to either any party, cause testimony to be taken, or an inspection of the premises where the injury occurred to be made, or the time books and payrolls of the employer to be examined by any examiner, and may direct any employee claiming compensation to be examined by a physician, chiropractor, psychologist, dentist, or podiatrist. The testimony so taken, and the results of any such inspection or examination, shall be reported to the department for its consideration upon final hearing. All ex parte testimony taken by the department shall be reduced to writing and either any party shall have opportunity to rebut such that testimony on final hearing.
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Section
19. 102.17 (1) (h) of the statutes is amended to read:
102.17 (1) (h) The contents of certified reports of investigation, made by industrial safety specialists who are employed, contracted, or otherwise secured by the department and available for cross-examination, served upon the parties 15 days prior to hearing, shall constitute prima facie evidence as to matter contained therein
in those reports.
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Section
20. 102.17 (4) of the statutes is amended to read:
102.17 (4) The right of an employee, the employee's legal representative or, or a dependent to proceed under this section shall not extend beyond 12 years from the date of the injury or death or from the date that compensation, other than treatment or burial expenses, was last paid, or would have been last payable if no advancement were made, whichever date is latest. In the case of occupational disease, a traumatic injury resulting in the loss or total impairment of a hand or any part of the rest of the arm proximal to the hand or of a foot or any part of the rest of the leg proximal to the foot, any loss of vision, any permanent brain injury, or any injury causing the need for a total or partial knee or hip replacement, there shall be no statute of limitations, except that benefits or treatment expense becoming due after 12 years from the date of injury or death or last payment of compensation shall be paid from the work injury supplemental benefit fund under s. 102.65 and in the manner provided in s. 102.66. Payment of wages by the employer during disability or absence from work to obtain treatment shall be deemed payment of compensation for the purpose of this section if the employer knew of the employee's condition and its alleged relation to the employment.
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Section
21. 102.18 (1) (b) of the statutes is amended to read:
102.18 (1) (b) Within 90 days after the final hearing and close of the record, the department shall make and file its findings upon the ultimate facts involved in the controversy, and its order, which shall state its determination as to the rights of the parties. Pending the final determination of any controversy before it, the department may in its discretion after any hearing make interlocutory findings, orders, and awards, which may be enforced in the same manner as final awards. The department may include in any 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 the employee from the effects of the injury. If the department finds that the employer or insurer has not paid any amount that the employer or insurer was directed to pay in any interlocutory order or award and that the nonpayment was not in good faith, the department may include in its final award, as a penalty for noncompliance with any such interlocutory order or award, if it finds that noncompliance was not in good faith, not exceeding 25% of each amount which shall not have been that was not paid as directed thereby. Where. When there is a finding that the employee is in fact suffering from an occupational disease caused by the employment of the employer against whom the application is filed, a final award dismissing such the application upon the ground that the applicant has suffered no disability from said the disease shall not bar any claim he or she the employee may thereafter have for disability sustained after the date of the award.
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Section
22. 102.18 (1) (e) of the statutes is created to read:
102.18 (1) (e) Except as provided in s. 102.21, if the department orders a party to pay an award of compensation, the party shall pay the award no later than 21 days after the date on which the order is mailed to the last-known address of the party, unless a party files a petition for review under sub. (3). This paragraph applies to all awards of compensation ordered by the department, whether the award results from a hearing, the default of a party, or a compromise or stipulation confirmed by the department.
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Section
23. 102.20 of the statutes is amended to read:
102.20 Judgment on award. If either any party presents a certified copy of the award to the circuit court for any county, the court shall, without notice, render judgment in accordance therewith with the award. A judgment rendered under this section shall have the same effect as though rendered in an action tried and determined by the court, and shall, with like effect, be entered in the judgment and lien docket.
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Section
24. 102.23 (1) (d) of the statutes is amended to read:
102.23 (1) (d) The commission shall make return to the court of all documents and papers on file in the matter, and of all testimony which that has been taken, and of the commission's order, findings, and award. Such return of the commission when filed in the office of the clerk of the circuit court shall, with the papers mentioned specified in s. 809.15, constitute a judgment roll in the action; and it shall not be necessary to have a transcript approved. The action may thereupon be brought on for hearing before the court upon the record by either any party on 10 days' notice to the other; subject, however, to the provisions of law for a change of the place of trial or the calling in of another judge.
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Section
25. 102.26 (3) (b) 3. of the statutes is created to read:
102.26 (3) (b) 3. The claimant may request the insurer or self-insured employer to pay any compensation that is due the claimant by depositing the payment directly into an account maintained by the claimant at a financial institution. If the insurer or self-insured employer agrees to the request, the insurer or self-insured employer may deposit the payment by direct deposit, electronic funds transfer, or any other money transfer technique approved by the department. The claimant may revoke a request under this subdivision at any time by providing appropriate written notice to the insurer or self-insured employer.
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Section
26. 102.29 (8) of the statutes is amended to read:
102.29 (8) No student of a public school, as described in s. 115.01 (1), or a private school, as defined in s. 115.001 (3r), who is named under s. 102.077 as an employee of the school district or private school 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 employer that provided the work training or work experience from which the claim arose. This subsection does not apply to injuries occurring after December 31, 2001.
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Section
27. 102.31 (8) of the statutes is amended to read:
102.31 (8) The Wisconsin compensation rating bureau shall provide the department with any information it requests that the department may request relating to worker's compensation insurance coverage, including but not limited to the names of employers insured and any insured employer's address, business status, type and date of coverage, manual premium code, and policy information including numbers, cancellations, terminations, endorsements, and reinstatement dates. The department may enter into contracts with the Wisconsin compensation rating bureau to share the costs of data processing and other services. No information obtained by the department under this subsection may be made public by the department except as authorized by the Wisconsin compensation rating bureau.
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Section
28. 102.32 (5) of the statutes is amended to read:
102.32 (5) Any insured employer may, within the discretion of the department, compel the insurer to discharge, or to guarantee payment of its, the employer's liabilities in any such case under case described in this section and thereby release himself or herself the employer from compensation liability therein in that case, but if for any reason a bond furnished or deposit made under sub. (4) does not fully protect, the compensation insurer or uninsured insured employer, as the case may be, shall still be liable to the beneficiary thereof of the bond or deposit.
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Section
29. 102.32 (6) of the statutes is amended to read:
102.32 (6) If compensation is due for permanent disability following an injury or if death benefits are payable, payments shall be made to the employee or dependent on a monthly basis. Compensation for permanent disability that results from an injury for which the employer or the employer's insurer concedes liability and that is based on a minimum permanent disability rating promulgated by the department by rule shall begin within 30 days after the end of the employee's healing period or within 30 days after the employer or the employer's insurer receives a medical report that provides a permanent disability rating, whichever is later. Compensation for permanent disability that results from an injury for which the employer or the employer's insurer does not concede liability or that is based on a permanent disability rating that is above a minimum permanent disability rating promulgated by the department by rule shall begin within the later of those 30-day periods unless within the later of those 30-day periods the employer or insurer notifies the employee that the employer or insurer is requesting an examination under s. 102.13 (1) (a), in which case compensation for permanent disability shall begin within 30 days after the employer or insurer receives the report of the examination or within 90 days after the date of the request for the examination, whichever is earlier. Payments for permanent disability, including payments based on minimum permanent disability ratings promulgated by the department by rule, shall continue on a monthly basis and shall accrue and be payable between intermittent periods of temporary disability so long as the employer or insurer knows the nature of the permanent disability.
