AB758: Bill Text

LRB-3093/1

GMM:jld&wlj:pg

2007 - 2008 LEGISLATURE

2007 Assembly BILL 758

February 4, 2008 - Introduced by Representative Honadel, cosponsored by Senator Coggs, by request of Worker's Compensation Advisory Council. Referred to Committee on Labor and Industry.

AB758,2,2 An Act to repeal 102.31 (2m) and 102.65 (3); to renumber and amend 102.29 (6), 102.32 (intro.), 102.32 (1), 102.32 (2), 102.32 (3), 102.32 (4) and 102.555 (1); to amend 102.03 (4), 102.11 (1) (intro.), 102.16 (1m) (a), 102.16 (1m) (b), 102.16 (2) (a), 102.16 (2) (am), 102.16 (2m) (a), 102.16 (2m) (am), 102.16 (2m) (c), 102.16 (2m) (g), 102.16 (3), 102.17 (4), 102.18 (1) (bg) 1., 102.18 (1) (bg) 2., 102.26 (2), 102.32 (5), 102.32 (6m), 102.42 (1), 102.42 (4), 102.425 (3) (a) 1., 102.425 (4) (b), 102.44 (1) (intro.), 102.44 (1) (a), 102.44 (1) (b), 102.64 (2), 102.80 (3) (ag), 102.83 (1) (a) 1., 102.83 (1) (a) 2., 102.83 (1) (a) 3., 102.83 (1) (a) 4., 102.83 (1) (b), 102.83 (2), 102.83 (3), 102.83 (4), 102.83 (8), 102.835 (2), 102.835 (4) (a), 102.835 (4) (c), 102.835 (5) (a), 102.835 (7) (a), 102.835 (12), 102.835 (13) (a), 102.835 (13) (b), 102.835 (13) (d), 102.835 (14), 102.835 (19), 626.35 (1), 631.37 (3) and 632.98; and to create 102.16 (1m) (c), 102.18 (1) (bg) 3., 102.29 (6) (a), 102.29 (6) (b) 2., 102.29 (6) (b) 3., 102.29 (6) (c), 102.29 (6m), 102.315, 102.425 (4m), 102.555 (1) (c), 102.555 (12) and 102.835 (1) (ad) of the statutes; relating to: making various changes in the worker's compensation law.

Analysis by the Legislative Reference Bureau

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

General coverage

Employee leasing companies. Under current law, a professional employer organization or an employee leasing organization that enters into an employee leasing agreement with a client must submit to DWD, within ten working days after the effective date of the agreement, a report disclosing the identity of the client, the effective date of the agreement, and such other information as DWD prescribes and an employee leasing organization that intends to terminate an employee leasing agreement must notify DWD of that termination no later than 30 days prior to the termination date of the agreement. Currently, when an employee leasing agreement is terminated, termination of the client's coverage under the worker's compensation insurance policy of the employee leasing organization is not effective until 30 days after the employee leasing organization has given notice of the termination of that agreement to DWD.

This bill eliminates those current requirements relating to employee leasing organizations. Instead the bill provides that a person that contracts to provide the nontemporary, ongoing employee workforce of a client under an employee leasing agreement (employee leasing company) is liable for any worker's compensation payable to the leased employee and may not seek or receive reimbursement from the client for any payments made as a result of that liability.

Subject to certain exceptions, the bill requires an employee leasing company to insure its worker's compensation liability by obtaining a contract of insurance under which the insurer issues separate worker's compensation policies to the employee leasing company for each of its clients that are insured by the insurer (multiple coordinated policy). A multiple coordinated policy must name both the employee leasing company and the client as named insureds and must designate either the employee leasing company or the client, but not both, as the first named insured. An insurer may issue a multiple coordinated policy for a client only if all of the employees of the client are leased employees and are covered under the policy, except that an insurer may issue a multiple coordinated policy for a client that has a workforce in which some of the employees are leased employees and some are not leased employees (divided workforce) if the client notifies DWD of its intent to have a plan under which two policies are issued to cover the employees of the client, one covering the leased employees of the client and the other covering the employees of the client who are not leased employees (divided workforce plan).

Under the bill, an employee leasing company may also insure its worker's compensation liability by obtaining a single policy in its name covering more than one client of the employee leasing company (master policy) that has been approved by the commissioner of insurance (commissioner). The commissioner may approve the issuance of a master policy if the insurer shows that it has the technological capacity and operational capability to provide to the Wisconsin Compensation Rating Bureau (bureau) certain information at the client level, including unit statistical data, information concerning proof of coverage and cancellation termination, and nonrenewal of coverage, and any other information that the bureau may require. A master policy must also establish rules governing the issuance of an insurance policy covering the leased employees of a divided workforce and the cancellation, termination, and nonrenewal of policies.

Regardless of whether the commissioner has approved the issuance of a master policy, the bill permits an employee leasing company to insure its worker's compensation liability with respect to a group of clients, each of which has an unmodified annual premium that is equal to or less than the threshold below which employers are not experience rated under the standards and criteria of the bureau (small clients) by obtaining a master policy in the voluntary market (as opposed to under the state mandatory risk-sharing plan, which is a plan established or approved by the commissioner under which risks that are unable to obtain coverage in the voluntary market may obtain coverage) insuring that liability. An insurer may issue a master policy covering a group of small clients regardless of whether any of those small clients has a divided workforce. If at any time the unmodified annual premium of a small client that is covered under a master policy exceeds the threshold below which employers are not experience rated, the employee leasing company must notify the insurer and obtain coverage for the small client under a multiple coordinated policy or a master policy that has been approved by the commissioner.

In addition, the bill permits an insurer to issue a policy covering only the leased employees of a client that has a divided workforce if the client notifies DWD of its intent to have a divided workforce. Under the bill, a client that has a divided workforce must insure its employees who are not leased employees in the voluntary market and may not insure those employees under the state mandatory risk-sharing plan, unless the leased employees of the client are covered under that mandatory plan. A client that has a divided workforce must also agree to assume full responsibility to immediately pay any worker's compensation payable as may be required by DWD should a dispute arise between two or more insurers as to liability for an injury sustained while a divided workforce plan is in effect, pending final resolution of the dispute.

For a multiple coordinated policy in which an employee leasing company is the first named insured and for a master policy, the bill permits an insurer to obligate only the employee leasing company to pay premiums due for a client's coverage and prohibits an insurer from recovering any unpaid premiums due for that coverage from the client. The bill, however, does not prohibit an insurer from collecting premiums and charges due with respect to a client by means of list billing through the employee leasing company; requiring an employee leasing company to maintain a letter of credit or other form of security to ensure payment of premiums; issuing policies that have a common renewal date to all, or a class of all, clients of an employee leasing company; grouping together the clients of an employee leasing company for the purpose of offering dividend eligibility and paying dividends to those clients; applying a discount to the premium charged with respect to a client; or applying a retrospective rating option for determining the premium charged with respect to a client.

Finally, the bill provides as follows with respect to the cancellation, termination, or nonrenewal of a multiple coordinated policy or a master policy:

1. That the insureds under the policy may cancel the policy during the policy period only if both the employee leasing company and the client agree to the cancellation, the cancellation is confirmed by the employee leasing company promptly providing written confirmation of the cancellation to the client in writing or by the client agreeing to the cancellation in writing, and the insurer provides written notice of the cancellation to DWD.

2. That the insurer may cancel, terminate, or nonrenew the policy by providing written notice of the cancellation, or nonrenewal to the insured employee leasing company, the insured client, and DWD. Cancellation or termination of a policy by an insurer during a policy period is not effective until 30 days after that notice is provided. Nonrenewal of a policy is not effective until 60 days after that notice is provided.

3. That, if an employee leasing company that is the first named insured on the policy terminates the employee leasing agreement with a client in its entirety, the insurer may cancel or terminate the policy during the policy period by providing written notice of the cancellation or termination to the insured employee leasing company, the insured client, and DWD. Cancellation or termination of a policy by an insurer during a policy period for reason of termination of an employee leasing agreement is not effective until 30 days after that notice is provided.

4. That, if an employee leasing agreement is terminated during the policy period of a policy in which the client is the first named insured, the insurer must cancel the employee leasing company's coverage by an endorsement to the policy, and coverage of the client under the policy continues, unless the policy providing continued coverage is cancelled for failure of the client to pay premiums or for other grounds stated in the policy.

Third-party liability. Under current law, worker's compensation is the exclusive remedy for an employee who is injured while performing services growing out of and incidental to his or her employment, except that, subject to certain exceptions, an injured employee may claim worker's compensation from his or her employer and bring an action in tort against a third party for damages by reason of the injury. Current law, provides, however, that an employee of a temporary help agency who makes a claim for worker's compensation may not make a claim or bring an action in tort against any employer who compensates the temporary help agency for the employee's services.

Recently, in Warr v. QPS Companies, Inc., 2007 WI App 14, 298 Wis. 2d 440, the court of appeals held that the exclusive remedy provision of the worker's compensation law did not bar an employee of a temporary help agency who was injured by the conduct of an employee of another temporary help agency who was placed with the same employer from bringing an action in tort against the temporary agency employing the latter employee.

This bill narrows the definition of "temporary help agency" for purposes of third-party liability under the worker's compensation law. Specifically, under current law, a temporary help agency is defined as an employer who places its employee with or leases its employees to another employer who controls the employee's work activities and compensates the first employer for the employee's services, regardless of the duration of the services. This bill defines a temporary help agency for purposes of third-party liability under the worker's compensation law as an employer that is primarily engaged in the business of placing or leasing its employees under those conditions.

In addition, the bill prohibits an employee of a temporary help agency, as defined in the bill, who makes a claim for worker's compensation against the temporary help agency from making a claim or bringing an action in tort against any other temporary help agency, as defined in the bill, that is compensated for another employee's services by the same employer that compensates the temporary help agency for the employee's services or against any employee of the compensating employer or of that other temporary help agency. Similarly, the bill also prohibits an employee who makes a claim for worker's compensation against an employer that compensates a temporary help agency, as defined in the bill, for another's employee's services from making a claim or bringing an action in tort against the temporary help agency or against any employee of the temporary help agency.

Similarly, the bill prohibits a leased employee of an employee leasing company who makes a claim for worker's compensation against the employee leasing company from making a claim or bringing an action in tort against the client that accepted the services of the leased employee, against any other employee leasing company that provides the services of another leased employee to the client, or against any employee of the client or of that other employee leasing company. The bill similarly prohibits an employee who makes a claim for worker's compensation against a client of an employee leasing company from making a claim or bringing an action in tort against an employee leasing company that provides the services of a leased employee to the client or against any leased employee of that employee leasing company.

Prescription drug treatment. Under current law, an employer or insurer is liable for providing medicines as may be reasonably required to cure and relieve an injured employee from the effects of an injury sustained while performing services growing out of and incidental to employment. Current laws, however, limits the liability of an employer or insurer for the cost of a prescription drug dispensed for outpatient use by an injured employee to the average wholesale price of the prescription drug as quoted in the American Druggist Blue Book or the Drug Topics Red Book, whichever is less. This bill limits the liability of an employer or insurer for the cost of such a prescription drug to the average wholesale price of the prescription drug, as quoted in the Drug Topics Red Book.

Currently, if an employer denies or disputes liability for the cost of a drug prescribed to an injured employee, the pharmacist or other person licensed to prescribe and administer drugs (practitioner) who dispensed the drug may collect from the injured employee the cost of the prescription drug dispensed. This bill creates a procedure for resolving disputes between a pharmacist or practitioner and an employer or insurer over the reasonableness of the amount charged for a prescription drug dispensed for outpatient use by an injured employee.

Specifically, the bill requires an employer or insurer that disputes the reasonableness of the amount charged for a prescription drug dispensed for outpatient use by an injured employee to provide, within 30 days after receiving a completed bill for the prescription drug, notice to the pharmacist or practitioner that the charge is being disputed. After receiving that notice, the pharmacist or practitioner may not collect the cost of the prescription drug from the injured employee and must file the dispute with DWD within six months after receiving the notice. The bill requires DWD to deny payment of a prescription drug charge that DWD determines to be unreasonable and specifies that the parties to a dispute over the reasonableness of a prescription drug charge are bound by DWD's determination unless the determination is set aside on judicial review.

Similarly, the bill also permits DWD to determine the reasonableness of the amount charged for a prescription drug dispensed for outpatient use by an injured employee in all of the following situations:

1. When confirming a compromise or stipulation in which an insurer or self-insured employer concedes liability for the cost of the prescription drug, but disputes the reasonableness of the amount charged for the prescription drug.

2. When finding after hearing that an insurer or self-insured employer is liable for the cost of the prescription drug, but that the reasonableness of the amount charged for the prescription drug is in dispute.

Christian Science treatment. Under current law, an employer is liable for providing Christian Science treatment, in lieu of medical treatment, as may be reasonably required to cure and relieve an injured employee who elects that treatment from the effects of an injury growing out of and incidental to employment, unless the employer files a written notice with DWD electing not to be liable for providing that treatment. This bill eliminates the right of an employer to elect not to be liable for providing Christian Science treatment at the option of an injured employee. The bill also provides that the liability of an employer for the cost of Christian Science treatment for an injured employee is limited to the usual and customary charge for that treatment.

Maximum compensation amounts

Maximum weekly compensation for permanent partial disability. Under current law, permanent partial disability benefits are subject to maximum weekly compensation rates specified by statute. Currently, the maximum weekly compensation rate for permanent partial disability is $262. This bill increases that maximum weekly compensation rate to $272 for injuries occurring before January 1, 2009, and to $282 for injuries occurring on or after that date.

Supplemental benefits. Under current law, 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, 1987, is entitled to receive supplemental benefits in an amount that, when added to the employee's regular benefits, equals $338. This bill makes an employee who is injured prior to January 1, 1993, eligible for those supplemental benefits beginning on the effective date of the bill. The bill also increases the maximum supplemental benefit amount for a week of disability occurring after the effective date of the bill to an amount that, when added to the employee's regular benefits, equals $450.

Work injury supplemental benefit fund

Illegally employed minors. Current law requires an employer to pay into the state treasury for deposit in the work injury supplemental benefit (WISB) fund, which is a fund that is used to pay compensation when an otherwise meritorious claim is barred by the statute of limitations, when the status or existence of the employer or insurer cannot be determined, or when there is otherwise no adequate remedy, $20,000 when an injury results in death or in the loss of or total impairment of a hand, arm, foot, leg, or eye (death or disability payments), up to $7,500 when a minor is injured while working without a work permit, and up to $15,000 when a minor is injured while working at employment that is prohibited to the minor (illegally employed minor payments). Currently, the Department of Justice (DOJ) is required to represent the interests of the state in proceedings for death or disability payments, but not in proceedings for illegally employed minor payments. This bill requires DOJ to represent the interests of the state in proceedings for illegally employed minor payments.

Required fund balance. Under current law, if the balance in the WISB fund on June 30 of any fiscal year exceeds three times the amount paid out of that fund during that fiscal year, DWD must reduce the death or disability payments made into that fund so that the balance in the fund will remain at three times the amounts paid out of the fund in the preceding fiscal year. This bill eliminates that requirement.

Payment of benefits

Interest credit. Under current law, if worker's compensation payments extend over a period of six months or more from the date of injury, or if payments are for a death benefit, DWD may discharge a party from or compel a party to guarantee the payments in several ways. Two ways for a party to discharge or guarantee payments are by depositing the present value of the total unpaid compensation upon a 7 percent interest discount basis with a bank, credit union, savings and loan association, or trust company designated by DWD or by making payment in gross upon a 7 percent interest discount basis as approved by DWD. This bill lowers the required interest discount basis from 7 percent to 5 percent.

Under current law, DWD may direct an employer or insurer to pay unaccrued compensation for permanent disability 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. In directing the advance, DWD must give the employer or insurer a 7 percent interest credit against its liability. This bill lowers the required interest credit from 7 percent to 5 percent.

Occupational deafness. Under current law, worker's compensation or benefits from the WISB fund are payable for occupational deafness, which is defined as permanent partial or permanent total loss of hearing of one or both ears due to prolonged exposure to noise in employment. Under current DWD rules, an employee must have a hearing loss of more than 30 decibels to receive worker's compensation for permanent partial disability due to occupational deafness. Under current law, an employee must have a hearing loss of more than 20 percent to receive benefits from the WISB fund for permanent partial disability due to occupational deafness.

This bill provides that an employer or DWD, from the WISB fund, is not liable for the expense of any examination or test for hearing loss, any evaluation of such an examination or test, any medical treatment for improving or restoring hearing, or any hearing aid to relieve the effects of hearing loss unless it is determined that worker's compensation or benefits from the WISB fund for occupational deafness are payable. This provision applies beginning on the effective date of the bill for a case of occupational deafness in which the date of injury is on or after the effective date of the bill and beginning on the date that is six years after the effective date of the bill for a case of occupational deafness in which the date of injury is before the effective date of the bill. Currently, the right to worker's compensation and the amount of that compensation is determined in accordance with the provisions of law in effect as of the date of the injury, and an application for worker's compensation may be filed within 12 years after the date of injury.

Attorney fees. Under current law, in cases of admitted liability in which there is no dispute as to the amount of worker's compensation due and in which no hearing or appeal is necessary, the fee charged for the enforcement or collection of the claim for compensation may not exceed 10 percent of the amount at which the claim is compromised or of the amount awarded, adjudged, or collected, but not to exceed $100. This bill raises the maximum fee that may be charged in those cases from $100 to $250.

Uninsured employers fund

Adequacy of fund balance. Under current law, if an employer is not insured or self-insured as required by the worker's compensation law, the employer is liable to DWD for certain payments that are deposited in an uninsured employers fund. DWD uses the uninsured employers fund to administer the laws relating to uninsured employers and to pay to the injured employees of uninsured employers benefits that are equal to the worker's compensation owed by the uninsured employers. Currently, if the secretary of workforce development determines that expected losses on known claims and on incurred, but not reported, claims, exceed 85 percent of the cash balance in the uninsured employers fund, that secretary must file a certificate with the secretary of administration attesting that the cash balance is likely to be inadequate to fund all claims against the fund and specifying a date after which no new claims will be paid.

This bill eliminates the requirement that the secretary of workforce development consider incurred, but not reported, claims in determining whether expected losses on claims exceed 85 percent of the cash balance in the uninsured employers fund and, therefore, whether that cash balance is likely to be inadequate to fund all claims against that fund. Accordingly, under the bill, the secretary of workforce development is required to consider only expected losses on known claims in determining whether the cash balance in the uninsured employers fund is likely to be inadequate to fund all claims against that fund.

Collection of payments owed. Current law provides two procedures by which DWD may collect payments owed to DWD by an uninsured employer. Under the first procedure, if an uninsured employer fails to pay an amount owed to DWD and no proceeding for review is pending, DWD may issue a warrant to the clerk of circuit court of any county in the state and the clerk of circuit court dockets the warrant, which gives the warrant the effect of a final judgment constituting a perfected lien on the uninsured employer's real and personal property located in the county where the warrant is entered. Currently, a lien created by a judgment is effective for ten years after the date of entry of the judgment. Under the second procedure, if no proceeding for review is pending, DWD may levy on any personal property of the uninsured employer, after demanding payment and giving ten days' notice of its intent to pursue legal action to collect the debt. This bill specifies that a lien for payments owed by an uninsured employer is effective when DWD issues the warrant and provides that the lien continues in effect until the amount owed, including interest, costs, and other fees to the date of payment, is paid.

Under current law, if DWD cannot collect a payment owed from an uninsured employer that is a corporation or limited liability company, then any officer, director, member, or manager of the uninsured employer may be held personally liable for that payment. This bill provides that the personal liability of those individuals is an independent obligation, applies to those individuals the procedures under current law by which DWD may collect payments owed by an uninsured employer, and specifies that a lien on the real and personal property of an individual who is personally liable for an amount owed by an uninsured employer continues in effect until the amount owed, including interest, costs, and other fees to the date of payment, is paid.