AB669: Bill Text

LRB-3536/1

GMM:wlj:ch

2003 - 2004 LEGISLATURE

2003 Assembly BILL 669

November 13, 2003 - Introduced by Committee on Labor. Referred to Committee on Labor.

AB669,1,9 An Act to renumber and amend 102.17 (1) (d) and 102.32 (6); to amend 102.13 (1) (a), 102.13 (1) (b) (intro.), 102.13 (1) (b) 1., 102.13 (1) (b) 3., 102.13 (1) (b) 4., 102.13 (1) (d) 1., 102.13 (1) (d) 2., 102.13 (1) (d) 3., 102.13 (1) (d) 4., 102.13 (2) (a), 102.13 (2) (b), 102.16 (2) (a), 102.16 (2) (d), 102.16 (2) (f), 102.16 (2m) (a), 102.16 (2m) (e), 102.17 (1) (g), 102.18 (1) (e), 102.29 (3), 102.31 (2) (a), 102.32 (6m), 102.35 (1), 102.42 (2) (a), 102.44 (1) (intro.), 102.44 (1) (a), 102.44 (1) (b), 102.49 (5) (a), 102.59 (2), 102.81 (1) (a) and 102.82 (1); and to create 102.32 (6) (d) of the statutes; relating to: making various changes in the worker's compensation law and granting rule-making authority.

Analysis by the Legislative Reference Bureau

This bill makes various changes relating to the worker's compensation law, as administered by the Department of Workforce Development (DWD).

Payment of benefits

Current law requires a party that has been ordered to pay an award of worker's compensation to pay the award within 21 days after DWD mails a copy of the order to the party's last-known address, unless any party files a petition for review of the decision. This bill requires a party that has been ordered to pay an award of worker's compensation to pay the award within those 21 days, unless that party files a petition for review of the decision.

Current law requires worker's compensation for permanent disability that results from an injury for which the employer or insurer concedes liability and that is based on a minimum permanent disability rating promulgated by DWD by rule to begin within 30 days after the end of the employee's healing period or within 30 days after the employer or insurer receives a medical report that provides a permanent disability rating, whichever is later. Current law also requires worker's compensation for permanent disability that results from an injury for which the employer or insurer does not concede liability or that is based on a permanent disability rating that is above a minimum permanent disability rating promulgated by DWD by rule to begin within the later of those 30-day periods, unless the employer or insurer requests the employee to undergo an independent medical examination, in which case that compensation must begin within 30 days after the employer or insurer receives a report of the examination or within 90 days after the date of the request for examination, whichever is earlier.

This bill eliminates those payment requirements and instead requires worker's compensation for permanent disability to begin as follows:

1. Within 30 days after the end of the employee's healing period, if the employer or insurer concedes liability for the injury and if the extent of the permanent disability can be determined based on a minimum permanent disability rating promulgated by DWD by rule.

2. Within 30 days after the employer or insurer receives a medical report that provides a basis for a permanent disability rating, if the employer or insurer concedes liability for the injury, but the extent of the permanent disability cannot be determined without a medical report that provides the basis for a permanent disability rating.

3. According to rules promulgated by DWD in cases in which the employer or insurer concedes liability for the injury but disputes the extent of permanent disability.

Under current law, DWD may direct an employer or an employer's insurer to pay unaccrued compensation or death benefits to an injured employee or the employee's dependents in advance if DWD determines that the advance payment is in the best interest of the injured employee or the employee's dependents. This bill specifies that DWD may direct advance payment of death benefits or of unaccrued compensation for permanent disability.

Reasonableness of fees and necessity of treatment disputes

Under current law, DWD has jurisdiction to resolve a dispute between a health service provider and an insurer or self-insured employer over the reasonableness of any health service fee charged by the health service provider for services provided to an injured employee who claims worker's compensation benefits or over the necessity of any treatment provided to the employee. This bill prohibits a health service provider from submitting a fee dispute or a dispute over necessity of treatment to DWD before all treatment by the health service provider for the employee's injury has ended if the amount in controversy, whether based on a single charge or a combination of charges for one or more days of service, is less than $25. After all treatment has ended, a health service provider may submit any fee dispute or dispute over necessity of treatment to DWD, regardless of the amount in controversy.

Under current law, DWD is required to determine the reasonableness of a disputed fee by comparing the disputed fee to the mean fee for the procedure for which the disputed fee was charged, as shown by data from a database certified by DWD. If the disputed fee is at or below the mean fee, plus 1.5 standard deviations from that mean, DWD shall determine that the disputed fee is reasonable and order the fee to be paid. If the disputed fee is above the mean fee, plus 1.5 standard deviations from that mean, DWD shall determine that the disputed fee is unreasonable and order that a reasonable fee be paid, unless the health service provider proves that a higher fee is justified. This bill lowers the standard deviations used to determine the reasonableness of a disputed health service fee to 1.4 standard deviations from the mean.

Under current law, DWD may set aside, reverse, or modify a determination as to the reasonableness of a health service fee charged by a health service provider for services provided to an injured employee who claims worker's compensation benefits or as to the necessity of any treatment provided to such an employee within 30 days after the determination. This bill permits DWD to set aside, reverse, or modify a reasonableness of fee or necessity of treatment determination within 60 days after the determination on the grounds of mistake.

Supplemental benefits; disability or death payments

Under current law, temporary and permanent disability benefits are subject to maximum weekly compensation rates specified in statute. Currently, 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, 1978, is entitled to receive supplemental benefits in an amount that, when added to the employee's regular benefits, equals $202. This bill makes an employee who is injured prior to May 13, 1980, eligible for those supplemental benefits. The bill also increases the supplemental benefit amount for a week of disability occurring after January 1, 2004, to an amount that, when added to the employee's regular benefits, equals $233.

Work injury supplemental benefit fund

Under current law, if an otherwise meritorious claim is barred by the statute of limitations, if the status or existence of the employer or insurer cannot be determined, or if there is otherwise no adequate remedy, DWD, in lieu of worker's compensation benefits, may direct payment from the work injury supplemental benefit fund of such compensation and such medical expenses as would otherwise be due to or on behalf of the injured employee. The work injury supplemental benefit fund consists of moneys that an employer or insurer is required to pay into the state treasury in cases of injuries resulting in death or in the loss or total impairment of a hand, arm, foot, leg, or eye. Specifically, current law requires an employer to pay into the state treasury $5,000 in each case of injury resulting in death and $7,000 in each case of injury resulting in the loss or total impairment of a hand, arm, foot, leg, or eye. This bill increases those amounts to $10,000.

Examinations and treatment

Under current law, whenever an employee claims worker's compensation, the employee must, on the request of his or her employer or the employer's worker's compensation carrier, submit to reasonable examinations by physicians, chiropractors, psychologists, dentists, or podiatrists (practitioners) provided and paid for by the employer or insurer. Currently, an employee is entitled to have a practitioner provided by himself or herself present at the examination and to receive a copy of all reports of the examination. Also, under current law, if two or more practitioners disagree as to the extent of an injured employee's temporary disability, the end of the employee's healing period, the employee's ability to return to work, or the necessity of further treatment or for a particular type of treatment, DWD may appoint another practitioner to examine the employee and render an opinion. In addition, under current law, a certified report of a practitioner who has examined or treated an injured employee is admissible as evidence of the diagnosis, the necessity of treatment, and the cause and extent of disability of the injured employee, except that a certified report of a dentist is admissible as evidence of the diagnosis and the necessity of treatment, but not of the cause and extent of disability, of the injured employee. Furthermore, under current law, if the testimony presented at a hearing indicates a dispute or creates a doubt as to the extent or cause of an employee's disability or death, DWD may direct that the injured employee be examined, that an autopsy be performed, or that an opinion be obtained by an impartial, competent practitioner. Finally, under current law, subject to certain exceptions, when an employer has notice of an employee's injury and its relationship to the employee's employment, the employer must offer to the employee his or her choice of any practitioner licensed to practice in this state and practicing in this state for treatment of the injury.

This bill includes physician assistants and advanced practice nurse prescribers among the practitioners to which the provisions of current law relating to examination and treatment of an injured employee apply, except as follows:

1. The bill does not permit DWD to appoint a physician assistant or an advanced practice nurse prescriber to examine an injured employee and render an opinion, if two or more practitioners disagree as to the extent of the employee's temporary disability, the end of the employee's healing period, the employee's ability to return to work, or the necessity of further treatment or for a particular type of treatment.

2. The bill does not permit DWD to direct that an injured employee be examined by, that an autopsy be performed by, or that an opinion be obtained from a physician assistant or an advanced practice nurse prescriber, if the testimony at a hearing indicates a dispute or creates a doubt as to the extent or cause of an employee's disability or death.

3. The bill provides that a certified report of a physician assistant or an advanced practice nurse prescriber who has examined or treated an injured employee is admissible as evidence of the diagnosis and necessity of treatment, but not of the cause and extent of disability, of the injured employee.

Under current law, a physician assistant is a person licensed to provide medical care with physician supervision and direction, and an advanced practice nurse prescriber is an advanced practice nurse who is certified to prescribe drugs.

Uninsured employer payments

Under current law, if an employee of an employer that is not insured or self-insured as required by the worker's compensation law suffers an injury for which the employer is liable under that law, DWD or a reinsurer retained by DWD must pay to the injured employee or the employee's dependents benefits in an amount equal to the worker's compensation that is owed by the uninsured employer, and the uninsured employer must reimburse DWD for the amount of benefits paid, less any amounts that the employee repays DWD from any compensation recovered from the uninsured employer or a third party. This bill requires an uninsured employer, in addition, to reimburse DWD for any expenses paid by DWD in administering the employee's claim.

Program administration

Current law requires employers that are subject to the worker's compensation law to keep records of all accidents causing death or disability of an employee while performing services growing out of and incidental to the employee's employment; requires insurers and self-insured employers to keep records of all payments made under the worker's compensation law; and requires reports based on those records to be furnished to DWD at the times and in the manner that DWD may require by rule or general order. An employer or insurer that fails to keep those records or to make those reports is subject to a forfeiture of not less than $10 nor more than $100 for each offense. This bill permits DWD to waive or reduce a forfeiture imposed for failure to keep those records or to make those reports if the employer or insurer requests a waiver or reduction of the forfeiture within 45 days after notice of the forfeiture is mailed to the employer or insurance company and shows that the violation was due to mistake or an absence of information.

Under current law, if an insurer cancels or terminates a worker's compensation insurance policy, the insurer must provide notice of the cancellation or termination to DWD or, if DWD so provides by rule, to the Wisconsin Compensation Rating Bureau (WCRB), which is a rate service organization licensed by the Commissioner of Insurance to establish worker's compensation premium rates. Currently, notice of cancellation or termination of a worker's compensation insurance policy may be served personally on DWD at its office in Madison or sent to DWD or WCRB by certified mail or facsimile machine transmission. This bill permits that notice, in addition, to be send to DWD or WCRB by electronic mail or by any electronic, magnetic, or other medium approved by DWD.

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:

AB669, s. 1 Section 1. 102.13 (1) (a) of the statutes is amended to read:

AB669,6,12 102.13 (1) (a) Except as provided in sub. (4), whenever compensation is claimed by an employee, the employee shall, upon the written request of the employee's employer or worker's compensation insurer, submit to reasonable examinations by physicians, chiropractors, psychologists, dentists, physician assistants, advanced practice nurse prescribers, or podiatrists provided and paid for by the employer or insurer. No employee who submits to an examination under this paragraph is a patient of the examining physician, chiropractor, psychologist, dentist , physician assistant, advanced practice nurse prescriber, or podiatrist for any purpose other than for the purpose of bringing an action under ch. 655, unless the employee specifically requests treatment from that physician, chiropractor, psychologist, dentist, physician assistant, advanced practice nurse prescriber, or podiatrist.

AB669, s. 2 Section 2. 102.13 (1) (b) (intro.) of the statutes is amended to read:

AB669,7,6 102.13 (1) (b) (intro.) An employer or insurer who requests that an employee submit to reasonable examination under par. (a) or (am) shall tender to the employee, before the examination, all necessary expenses including transportation expenses. The employee is entitled to have a physician, chiropractor, psychologist, dentist, physician assistant, advanced practice nurse prescriber, or podiatrist provided by himself or herself present at the examination and to receive a copy of all reports of the examination that are prepared by the examining physician, chiropractor, psychologist, podiatrist, dentist, physician assistant, advanced practice nurse prescriber, or vocational expert immediately upon receipt of those reports by the employer or worker's compensation insurer. The employee is also entitled to have a translator provided by himself or herself present at the examination if the employee has difficulty speaking or understanding the English language. The employer's or insurer's written request for examination shall notify the employee of all of the following:

AB669, s. 3 Section 3. 102.13 (1) (b) 1. of the statutes is amended to read:

AB669,7,11 102.13 (1) (b) 1. The proposed date, time, and place of the examination and the identity and area of specialization of the examining physician, chiropractor, psychologist, dentist, podiatrist, physician assistant, advanced practice nurse prescriber, or vocational expert.

AB669, s. 4 Section 4. 102.13 (1) (b) 3. of the statutes is amended to read:

AB669,7,15 102.13 (1) (b) 3. The employee's right to have his or her physician, chiropractor, psychologist, dentist, physician assistant, advanced practice nurse prescriber, or podiatrist present at the examination.

AB669, s. 5 Section 5. 102.13 (1) (b) 4. of the statutes is amended to read:

AB669,7,21 102.13 (1) (b) 4. The employee's right to receive a copy of all reports of the examination that are prepared by the examining physician, chiropractor, psychologist, dentist, podiatrist, physician assistant, advanced practice nurse prescriber, or vocational expert immediately upon receipt of these reports by the employer or worker's compensation insurer.

AB669, s. 6 Section 6. 102.13 (1) (d) 1. of the statutes is amended to read: