2005 Wisconsin Act 172

3. Any state or federal taxes that may be applicable to the prescription drug dispensed.

(b) In addition to the liability under par. (a), an employer or insurer is also liable for reimbursement to an injured employee for all out-of-pocket expenses incurred by the injured employee in obtaining the prescription drug dispensed.

(c) A billing statement submitted to an employer or insurer for a prescription drug dispensed under sub. (2) shall include the national drug code number of the prescription as listed in the national drug code directory maintained by the federal food and drug administration and shall state separately the price of the prescription drug and the dispensing fee.

(4) Liability of employee. (a) Except as provided in par. (b), a pharmacist or practitioner who dispenses a prescription drug under sub. (2) to an injured employee may not collect, or bring an action to collect, from the injured employee any charge that is in excess of the liability of the injured employee under sub. (2) (c) 2. or the liability of the employer or insurer under sub. (3) (a).

(b) If an employer denies or disputes liability for the cost of a drug prescribed to an injured employee under sub. (2), the pharmacist or practitioner who dispensed the drug may collect, or bring an action to collect, from the injured employee the cost of the prescription drug dispensed, subject to the limitations specified in sub. (3) (a).

(5) Nonprescription drug products. The liability of an employer or insurer for the cost of a nonprescription drug product used to treat an injured employee is limited to the usual and customary charge to the general public for the nonprescription drug product.

172,36 Section 36. 102.43 (9) of the statutes is created to read:

102.43 (9) Temporary disability, during which compensation shall be payable for loss of earnings, shall include the period during which an employee could return to a restricted type of work during the healing period, unless any of the following apply:

(a) Suitable employment that is within the physical and mental limitations of the employee is furnished to the employee by the employer or some other employer. For purposes of this paragraph, if the employer or some other employer makes a good faith offer of suitable employment that is within the physical and mental limitations of the employee and if the employee refuses without reasonable cause to accept that offer, the employee is considered to have returned to work as of the date of the offer at the earnings that the employee would have received but for the refusal. In case of a dispute as to the extent of an employee's physical or mental limitations or as to what employment is suitable within those limitations, the employee may file an application under s. 102.17 and ss. 102.17 to 102.26 shall apply.

(b) The employee's employment with the employer has been suspended or terminated due to the employee's alleged commission of a crime, the circumstances of which are substantially related to that employment, and the employee has been charged with the commission of that crime. If the employee is not found guilty of the crime, compensation for temporary disability shall be payable in full.

(c) The employee's employment with the employer has been suspended or terminated due to the employee's violation of the employer's policy concerning employee drug use during the period when the employee could return to a restricted type of work during the healing period. Compensation for temporary disability may be denied under this paragraph only if prior to the date of injury the employer's policy concerning employee drug use was established in writing and regularly enforced by the employer.

172,37 Section 37. 102.44 (1) (intro.) of the statutes is amended to read:

102.44 (1) (intro.) Notwithstanding any other provision of this chapter, every employee who is receiving compensation under this chapter for permanent total disability or continuous temporary total disability more than 24 months after the date of injury resulting from an injury which occurred prior to May 13, 1980 January 1, 1985, shall receive supplemental benefits which shall be payable in the first instance by the employer or the employer's insurance carrier, or in the case of benefits payable to an employee under s. 102.66, shall be paid by the department out of the fund created under s. 102.65. These supplemental benefits shall be paid only for weeks of disability occurring after January 1, 1982 1987, and shall continue during the period of such total disability subsequent to that date.

172,38 Section 38 . 102.44 (1) (intro.) of the statutes, as affected by 2005 Wisconsin Act .... (this act), is amended to read:

102.44 (1) (intro.) Notwithstanding any other provision of this chapter, every employee who is receiving compensation under this chapter for permanent total disability or continuous temporary total disability more than 24 months after the date of injury resulting from an injury which occurred prior to January 1, 1985 1987, shall receive supplemental benefits which shall be payable in the first instance by the employer or the employer's insurance carrier, or in the case of benefits payable to an employee under s. 102.66, shall be paid by the department out of the fund created under s. 102.65. These supplemental benefits shall be paid only for weeks of disability occurring after January 1, 1987 1989, and shall continue during the period of such total disability subsequent to that date.

172,39 Section 39. 102.44 (1) (a) of the statutes is amended to read:

102.44 (1) (a) If such employee is receiving the maximum weekly benefits in effect at the time of the injury, the supplemental benefit for a week of disability occurring after March 30, 2004 the effective date of this paragraph .... [revisor inserts date], shall be an amount which, when added to the regular benefit established for the case, shall equal $233 $321.

172,40 Section 40. 102.44 (1) (a) of the statutes, as affected by 2005 Wisconsin Act .... (this act), is repealed and recreated to read:

102.44 (1) (a) If such employee is receiving the maximum weekly benefits in effect at the time of the injury, the supplemental benefit for a week of disability occurring after January 1, 2007, shall be an amount which, when added to the regular benefit established for the case, shall equal $338.

172,41 Section 41. 102.44 (1) (b) of the statutes is amended to read:

102.44 (1) (b) If such employee is receiving a weekly benefit which is less than the maximum benefit which was in effect on the date of the injury, the supplemental benefit for a week of disability occurring after March 30, 2004 the effective date of this paragraph .... [revisor inserts date], shall be an amount sufficient to bring the total weekly benefits to the same proportion of $233 $321 as the employee's weekly benefit bears to the maximum in effect on the date of injury.

172,42 Section 42. 102.44 (1) (b) of the statutes, as affected by 2005 Wisconsin Act .... (this act), is repealed and recreated to read:

102.44 (1) (b) If such employee is receiving a weekly benefit which is less than the maximum benefit which was in effect on the date of the injury, the supplemental benefit for a week of disability occurring after January 1, 2007, shall be an amount sufficient to bring the total weekly benefits to the same proportion of $338 as the employee's weekly benefit bears to the maximum in effect on the date of injury.

172,43 Section 43. 102.49 (5) (a) of the statutes is amended to read:

102.49 (5) (a) In each case of injury resulting in death, the employer or insurer shall pay into the state treasury the sum of $10,000 $20,000.

172,44 Section 44. 102.49 (5) (e) of the statutes is amended to read:

102.49 (5) (e) The adjustments in compensation liability provided in ss. 102.57, 102.58, and 102.60 do not apply to payments made under this section.

172,45 Section 45. 102.59 (2) of the statutes is amended to read:

102.59 (2) In the case of the loss or of the total impairment of a hand, arm, foot, leg, or eye, the employer shall pay $10,000 $20,000 into the state treasury. The payment shall be made in all such cases regardless of whether the employee or the employee's dependent or personal representative commences action against a 3rd party as provided in s. 102.29.

172,46 Section 46. 102.60 (title) of the statutes is amended to read:

102.60 (title) Minor illegally employed , compensation.

172,47 Section 47. 102.60 (intro.) of the statutes is renumbered 102.60 (1m) (intro.) and amended to read:

102.60 (1m) (intro.) When the injury is sustained by a minor who is illegally employed, the employer, in addition to paying compensation or wage loss under sub. (6) to the minor and death benefits to the dependents of the minor, shall be as follows pay the following amounts into the state treasury, for deposit in the fund established under s. 102.65:

172,48 Section 48. 102.60 (1) of the statutes is renumbered 102.60 (1m) (a) and amended to read:

102.60 (1m) (a) Double An amount equal to the amount otherwise recoverable by the injured employee, but not to exceed $7,500, if the injured employee is a minor of permit age, and at the time of the injury is employed, required, suffered, or permitted to work without a written permit issued pursuant to under ch. 103, except as provided in sub. (2) pars. (b) to (d).

172,49 Section 49. 102.60 (2) of the statutes is renumbered 102.60 (1m) (b) and amended to read:

102.60 (1m) (b) Treble An amount equal to double the amount otherwise recoverable by the injured employee, but not to exceed $15,000, if the injured employee is a minor of permit age, and at the time of the injury is employed, required, suffered, or permitted to work without a permit in any place of employment or at any employment in or for which the department acting under authority of ch. 103, has adopted a written resolution providing that permits shall not be issued.

172,50 Section 50. 102.60 (3) of the statutes is renumbered 102.60 (1m) (c) and amended to read:

102.60 (1m) (c) Treble An amount equal to double the amount otherwise recoverable by the injured employee, but not to exceed $15,000, if the injured employee is a minor of permit age, and at the time of the injury is employed, required, suffered, or permitted to work at prohibited employment.

172,51 Section 51. 102.60 (4) of the statutes is renumbered 102.60 (1m) (d) and amended to read:

102.60 (1m) (d) Treble An amount equal to double the amount otherwise recoverable by the injured employee, but not to exceed $15,000, if the injured employee is a minor under permit age and is illegally employed.

172,52 Section 52. 102.60 (5) (a) of the statutes is amended to read:

102.60 (5) (a) A permit or certificate of age that is unlawfully issued by an officer specified in ch. 103, or that is unlawfully altered after issuance, without fraud on the part of the employer, shall be deemed considered a permit within the provisions for purposes of this section.

172,53 Section 53. 102.60 (5) (b) of the statutes is amended to read:

102.60 (5) (b) If the employer is misled in employing a minor illegally because of fraudulent written evidence of age presented by the minor, the increased compensation provided by this section shall not be paid to the employee, but shall be paid into the fund established by s. 102.65 employer is not required to pay the amounts specified in sub. (1m).

172,54 Section 54. 102.60 (6) of the statutes is amended to read:

102.60 (6) If the amount recoverable under this section by a minor employee for temporary disability shall be is less than the actual loss of wage sustained by the minor employee, then liability shall exist for such that loss of wage.

172,55 Section 55. 102.60 (7) of the statutes is amended to read:

102.60 (7) Subsections (1) to (6) shall This section does not apply to employees an employee, as defined in s. 102.07 (6), if the agency or publisher shall establish establishes by affirmative proof that at the time of the injury the employee was not employed with the actual or constructive knowledge of such the agency or publisher.

172,56 Section 56. 102.60 (8) of the statutes is amended to read:

102.60 (8) This section shall does not apply to liability arising under s. 102.06 unless the employer sought to be charged knew or should have known that the minor was illegally employed by the contractor or subcontractor.

172,57 Section 57. 102.60 (9) of the statutes is repealed.

172,58 Section 58. 102.61 (1) of the statutes is amended to read:

102.61 (1) Subject to subs. (1g) and (1m), an employee who is entitled to receive and has received compensation under this chapter, and who is entitled to and is receiving instructions under 29 USC 701 to 797b, as administered by the state in which the employee resides or in which the employee resided at the time of becoming physically disabled, shall, in addition to other indemnity, be paid the actual and necessary expenses of travel at the same rate as is provided for state officers and employees under s. 20.916 (8) and, if the employee receives instructions elsewhere than at the place of residence, the actual and necessary costs of maintenance, during rehabilitation, subject to the conditions and limitations specified in sub. (1r).

172,59 Section 59. 102.61 (1m) (c) of the statutes is amended to read:

102.61 (1m) (c) The employer or insurance carrier shall pay the reasonable cost of any services provided for an employee by a private rehabilitation counselor under par. (a) and, subject to the conditions and limitations specified in sub. (1r) (a) to (c) and by rule, if the private rehabilitation counselor determines that rehabilitative training is necessary, the reasonable cost of the rehabilitative training program recommended by that counselor, including the cost of tuition, fees, books, and maintenance, and travel expenses at the same rate as is provided for state officers and employees under s. 20.916 (8). Notwithstanding that the department may authorize under s. 102.43 (5) a rehabilitative training program that lasts longer than 80 weeks, a rehabilitative training program that lasts 80 weeks or less is presumed to be reasonable.

172,60 Section 60. 102.62 of the statutes is amended to read:

102.62 Primary and secondary liability; unchangeable. In case of liability for the increased compensation or increased death benefits provided for by under s. 102.57, or included in s. or 102.60, the liability of the employer shall be primary and the liability of the insurance carrier shall be secondary. In case If proceedings are had before the department for the recovery of such increased compensation or increased death benefits that liability, the department shall set forth in its award the amount and order of liability as herein provided in this section. Execution shall not be issued against the insurance carrier to satisfy any judgment covering such increased compensation or increased death benefits that liability until execution has first been issued against the employer and has been returned unsatisfied as to any part thereof of that liability. Any provision in any insurance policy undertaking to guarantee primary liability or to avoid secondary liability for such increased compensation or increased death benefits shall be a liability under s. 102.57 or 102.60 is void. In case If the employer shall have has been adjudged bankrupt, or have has made an assignment for the benefit of creditors, or if the employer, other than an individual, have has gone out of business or have has been dissolved, or if the employer is a corporation, and its charter have has been forfeited or revoked, the insurer shall be liable for the payment of increased compensation and death benefits that liability without judgment or execution against the employer, but without altering the primary liability of the employer.

172,61 Section 61. 102.65 (1) of the statutes is amended to read:

102.65 (1) The moneys payable to the state treasury under ss. 102.35 (1), 102.47, 102.49 and , 102.59, and 102.60, together with all accrued interest on those moneys, and all interest payments received under s. 102.75 (2), shall constitute a fund to be known as the "Work Injury Supplemental Benefit Fund" separate nonlapsible fund designated as the work injury supplemental benefit fund. Moneys in the fund may be expended only as provided in s. 20.445 (1) (t) and may not be used for any other purpose of the state.

172,62 Section 62. 102.66 (1) of the statutes is amended to read:

102.66 (1) In the event that there is an otherwise meritorious claim for 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, and the claim is barred solely by the statute of limitations under s. 102.17 (4), the department may, in lieu of worker's compensation benefits, direct payment from the work injury supplemental benefit fund under s. 102.65 of such compensation and such medical expenses as would otherwise be due, based on the date of injury, to or on behalf of the injured employee. The benefits shall be supplemental, to the extent of compensation liability, to any disability or medical benefits payable from any group insurance policy whose premium is paid in whole or in part by any employer, or under any federal insurance or benefit program providing disability or medical benefits. Death benefits payable under any such group policy do not limit the benefits payable under this section.

172,63 Section 63. 102.66 (2) of the statutes is amended to read:

102.66 (2) 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, appropriate benefits may be awarded from the work injury supplemental benefit fund when the status or existence of the employer or its insurance carrier cannot be determined or when there is otherwise no adequate remedy, subject to the limitations contained in sub. (1).

172,64 Section 64. 102.75 (1m) of the statutes is created to read:

102.75 (1m) The moneys collected under sub. (1) and under ss. 102.28 (2) and 102.31 (7), together with all accrued interest, shall constitute a separate nonlapsible fund designated as the worker's compensation operations fund. Moneys in the fund may be expended only as provided in s. 20.445 (1) (ra), (rb), and (rp) and may not be used for any other purpose of the state.

172,65 Section 65. 102.75 (2) of the statutes is amended to read:

102.75 (2) The department shall require that payments for costs and expenses for each fiscal year shall be made on such dates as the department prescribes by each licensed worker's compensation insurance carrier and employer exempted under s. 102.28 (2). Each such payment shall be a sum equal to a proportionate share of the annual costs and expenses assessed upon each carrier and employer as estimated by the department. Interest shall accrue on amounts not paid within 90 days after the date prescribed by the department under this subsection at the rate of 1 percent per month. All interest payments received under this subsection shall be deposited in the fund established under s. 102.65.

172,66 Section 66. 102.75 (4) of the statutes is amended to read:

102.75 (4) From the appropriation under s. 20.445 (1) (ha) (ra), the department shall allocate the amounts that it collects in application fees from employers applying for exemption under s. 102.28 (2) and the annual amount that it collects from employers that have been exempted under s. 102.28 (2) to fund the activities of the department under s. 102.28 (2) (b) and (c).

172,67 Section 67. 102.80 (1m) of the statutes is created to read:

102.80 (1m) The moneys collected or received under sub. (1), together with all accrued interest, shall constitute a separate nonlapsible fund designated as the uninsured employers fund. Moneys in the fund may be expended only as provided in s. 20.445 (1) (sm) and may not be used for any other purpose of the state.

172,68 Section 68. 102.81 (1) (a) of the statutes is amended to read:

102.81 (1) (a) If an employee of an uninsured employer, other than an employee who is eligible to receive alternative benefits under s. 102.28 (3), suffers an injury for which the uninsured employer is liable under s. 102.03, the department or the department's reinsurer shall pay to or on behalf of the injured employee or to the employee's dependents an amount equal to the compensation owed them by the uninsured employer under this chapter except penalties and interest due under ss. 102.16 (3), 102.18 (1) (b) and (bp), 102.22 (1), 102.35 (3), 102.57, and 102.60 (6).

172,69 Section 69. 102.81 (2) of the statutes is amended to read:

102.81 (2) The department may retain an insurance carrier or insurance service organization to process, investigate and pay claims under this section and may obtain excess or stop-loss reinsurance with an insurance carrier authorized to do business in this state in an amount that the secretary determines is necessary for the sound operation of the uninsured employers fund. In cases involving disputed claims, the department may retain an attorney to represent the interests of the uninsured employers fund and to make appearances on behalf of the uninsured employers fund in proceedings under ss. 102.16 to 102.29. Section 20.918 20.930 and subch. IV of ch. 16 do not apply to an attorney hired under this subsection. The charges for the services retained under this subsection shall be paid from the appropriation under s. 20.445 (1) (hp) (rp). The cost of any reinsurance obtained under this subsection shall be paid from the appropriation under s. 20.445 (1) (sm).

172,70 Section 70. 102.87 (4) of the statutes is amended to read:

102.87 (4) A defendant may make a stipulation of no contest by submitting a deposit and a stipulation in the manner provided by sub. (3) before the court appearance date. The signed stipulation is a plea of no contest and submission to a forfeiture, plus the penalty assessment, jail assessment, crime laboratories and drug law enforcement assessment, any applicable uninsured employers assessment and costs, fees, and surcharges imposed under ch. 814, not to exceed the amount of the deposit.

172,71 Section 71. 103.78 (4) of the statutes is amended to read:

103.78 (4) Treble the amount of compensation otherwise recoverable as provided in s. 102.60 (4) and wage Wage loss as provided in s. 102.60 (6) are is payable to a minor injured during the course of the minor's employment or appearance in violation of this section.

172,72 Section 72. 814.75 (24m) of the statutes is created to read:

814.75 (24m) The work injury supplemental benefit fund surcharge under s. 102.35 (1).

172,73 Section 73 . Nonstatutory provisions.

(1) Permanent partial disability maximum compensation rate. Notwithstanding section 102.03 (4) of the statutes, the average weekly earnings for permanent partial disability for injuries occurring on or after January 1, 2006, and before the effective date of this subsection .... [revisor inserts date], shall be not more than $363, resulting in a maximum compensation rate of $242. If the treatment of section 102.11 (1) (intro.) of the statutes takes effect on January 1, 2006, this subsection does not apply.

172,74 Section 74. Initial applicability.

(1) Reports considered substantial evidence. The treatment of section 102.17 (1) (d) 4. and (h) of the statutes first applies to a disputed claim in which a final hearing is held on the effective date of this subsection.

(2) Traumatic injuries. The treatment of sections 102.17 (4) and 102.66 (1) and (2) of the statutes first applies to benefits or treatment expenses that are payable on the effective date of this subsection, regardless of the date of injury.

(3) Malice or bad faith. The treatment of section 102.18 (1) (bp) of the statutes first applies to events or occurrences of malice or bad faith that take place of the effective date of this subsection.

(4) Compensation pending judicial review. The treatment of section 102.23 (5) of the statutes first applies to actions for judicial review that are commenced under section 102.23 (1) of the statutes on the effective date of this subsection.