SB665: Bill Text

SB665,23,2 102.18 (1) (bp) If the department or the division determines that the employer or insurance carrier suspended, terminated, or failed to make payments or failed to report an injury as a result of malice or bad faith, the department or the division may include a penalty in an award to an employee for each event or occurrence of malice or bad faith. That penalty is the exclusive remedy against an employer or insurance carrier for malice or bad faith. If the penalty is imposed for an event or occurrence of malice or bad faith that causes a payment that is due an injured employee to be delayed in violation of s. 102.22 (1) or overdue in violation of s. 628.46 (1), the department or the division may not also order an increased payment under s. 102.22 (1) or the payment of interest under s. 628.46 (1). The department or the division may award an amount that the department or the division considers just, not to exceed the lesser of 200 percent of total compensation due or $30,000 for each event or occurrence of malice or bad faith. The department or the division may assess the penalty against the employer, the insurance carrier, or both. Neither the employer nor the insurance carrier is liable to reimburse the other for the penalty amount. The division department may, by rule, define actions that demonstrate malice or bad faith.

SB665,39 Section 39. 102.18 (2) (a) of the statutes is amended to read:

SB665,23,6 102.18 (2) (a) The department shall have and maintain on its staff such examiners as are necessary to hear and decide claims for compensation described in s. 102.16 (1) (b) 1. and to assist in the effective administration of this chapter.

SB665,40 Section 40. 102.18 (5) of the statutes is amended to read:

SB665,23,20 102.18 (5) If it appears to the department or the division that a mistake may have been made as to cause of injury in the findings, order, or award upon an alleged injury based on accident, when in fact the employee was suffering from an occupational disease, within 3 years after the date of the findings, order, or award the department or the division may, upon its own motion, with or without hearing, set aside the findings, order, or award, or the department or the division may take that action upon application made within those 3 years. After an opportunity for hearing, the division may, if in fact the employee is suffering from disease arising out of the employment, make new findings, and a new order or award, or the division may reinstate the previous findings, order, or award. The department may, if in fact the employee is suffering from disease arising out of the employment, make new findings, and a new order or award, or the department may reinstate the previous findings, order, or award when no hearing is requested.

SB665,41 Section 41. 102.18 (6) of the statutes is amended to read:

SB665,24,2 102.18 (6) In case of disease arising out of employment, the department or the division may from time to time review its findings, order, or award, and make new findings, or a new order or award, based on the facts regarding disability or otherwise as those facts may appear at the time of the review. This subsection shall not affect the application of the limitation in s. 102.17 (4).

SB665,42 Section 42. 102.33 (1m) of the statutes is created to read:

SB665,24,8 102.33 (1m) Each employer shall post, in each workplace, a notice in a form approved by the department setting forth employees' rights under this chapter. The department shall, in conjunction with its activities under s. 102.14 (2m), include in the notice information to educate injured employees regarding opiate therapies, opiate addiction, and alternative treatments for pain.

SB665,43 Section 43. 102.33 (2) (b) 7. of the statutes is created to read:

SB665,24,15 102.33 (2) (b) 7. The requester is the department of health services, a county department of social services under s. 46.215 or 46.22, or a county department of human services under s. 46.23, and the request is limited to the name and address of the employee who is the subject of the record, the name and address of the employee's employer, and any financial information about that employee contained in the record.

SB665,44 Section 44. 102.39 of the statutes is repealed.

SB665,45 Section 45. 102.423 of the statutes is created to read:

SB665,24,25 102.423 Health service fee schedule. (1) Health service fee schedule. (a) By January 1, 2019, the department shall establish a schedule of the maximum fees that a health care provider may charge an employer or insurer for health services provided to an injured employee who claims benefits under this chapter. When that schedule is established, the department shall notify the legislative reference bureau and the legislative reference bureau shall publish that notice in the Wisconsin Administrative Register. For the health services in the schedule, the department shall do all of the following:

SB665,25,4 1. Based on sources obtained by the department, determine, to the extent possible, the average negotiated price made for group health benefit plans, as defined in s. 632.745 (9), group health plans, as defined in s. 632.745 (10), and self-insured health plans, as defined in s. 632.745 (24).

SB665,25,8 2. Determine the rates under the program under 42 USC 1395 et seq. for health services using the Medicare billing code system, including Current Procedural Terminology codes, as maintained by the American Medical Association, and Healthcare Common Procedural Coding System codes.

SB665,25,10 3. Set the maximum fee for each health service included in the schedule by doing all of the following:

SB665,25,13 a. Using the rates for health services determined under subd. 2., determine as a percentage the average variance between those amounts and the amounts under subd. 1.

SB665,25,15 b. Increase the rates for health services determined under subd. 2. by the percentage determined under subd. 3. a.

SB665,25,17 c. Subject to subd. 4., increase the amounts determined under subd. 3. b. by 2.5 percent for administrative costs.

SB665,26,5 4. Prior to the date on which the notice is published in the Wisconsin Administrative Register under this paragraph, one or more health care providers may petition the department to hold a public hearing to gather information to be used to determine if the increase under subd. 3. c. for administrative costs is sufficient to pay for the unique administrative costs incurred in treating worker's compensation patients as compared to patients whose bills are paid by other means. If the department determines, based on the request and information gathered and submitted, that the percentage increase under subd. 3. c. for unique administrative costs is generally insufficient to pay for the unique administrative costs incurred by health care providers for treating worker's compensation patients, the department shall establish and apply an alternative increase for the unique administrative costs that is not more than 10 percent of the cost of the service as determined under subd. 3. b.

SB665,26,9 (b) 1. In this paragraph, “consumer price index" means the average of the consumer price index for medical care services over each 12-month period for all urban consumers, U.S. city average, as determined by the bureau of labor statistics of the federal department of labor.

SB665,26,14 2. On each January 1, beginning with January 1, 2020, the department shall adjust the maximum fees established under par. (a) by the percentage difference between the consumer price index for the 12-month period ending on December 31 of the preceding year and the consumer price index for the 12-month period ending on December 31 of the year before the preceding year.

SB665,26,18 (c) No less often than every 10 years, the department shall obtain health service negotiated price data from the sources specified in par. (a) 1., redetermine the average negotiated prices specified in par. (a) 1., and revise the maximum fees established under par. (a) based on that redetermined average.

SB665,26,20 (d) The department shall publish the fee schedule established under par. (a) on the department's Internet site.

SB665,26,25 (2) Liability of employer or insurer. (a) The liability of an employer or insurer for a health service included in the fee schedule established under sub. (1) is limited to the maximum fee allowed under the schedule for that health service as of the date on which the health service was provided or the health care provider's actual fee for the health service as of that date, whichever is less.

SB665,27,4 (b) A health care provider that provides health services to an injured employee under this chapter may not collect, or bring an action to collect, from the injured employee any charge that is in excess of the liability of the employer or insurer under this subsection.

SB665,27,7 (c) This subsection first applies to a health service provided to an injured employee on the date on which the notice under sub. (1) (a) is published in the Wisconsin Administrative Register.

SB665,27,9 (3) Records. Records related to the collection of any information under sub. (1) (a) 1. are not subject to the right of inspection and copying under s. 19.35 (1).

SB665,27,10 (4) Rules. The department shall promulgate rules to implement this section.

SB665,46 Section 46. 102.425 (2m) of the statutes is created to read:

SB665,27,13 102.425 (2m) Opiates and pain relief. (a) In this subsection, “opiate” has the meaning given in s. 961.01 (16).

SB665,27,18 (b) No practitioner may dispense more than a 7-day supply of an opiate to treat an injury for which an employer or insurer is liable under this chapter. Notwithstanding s. 102.16 (2m) (c), a supply greater than a 7-day supply shall be considered to be unnecessary treatment for purposes of s. 102.16 (2m) without the need for a written opinion under s. 102.16 (2m) (c).

SB665,47 Section 47. 102.427 of the statutes is created to read:

SB665,27,22 102.427 Electronic billing. Any health service provider that provides care to an injured employee under this chapter shall use an electronic billing system and be able to receive payments electronically.

SB665,48 Section 48. 102.44 (1) (ag) of the statutes is amended to read:

SB665,28,8 102.44 (1) (ag) 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 that occurred prior to January 1, 2003 2005, shall receive supplemental benefits that shall be payable 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. Those supplemental benefits shall be paid only for weeks of disability occurring after January 1, 2005 2007, and shall continue during the period of such total disability subsequent to that date.

SB665,49 Section 49. 102.44 (1) (am) of the statutes is amended to read:

SB665,28,14 102.44 (1) (am) If the 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 2, 2016 the effective date of this paragraph .... [LRB inserts date], shall be an amount that, when added to the regular benefit established for the case, shall equal $669 $711.

SB665,50 Section 50. 102.44 (1) (b) of the statutes is amended to read:

SB665,28,21 102.44 (1) (b) If the employee is receiving a weekly benefit that is less than the maximum benefit that was in effect on the date of the injury, the supplemental benefit for a week of disability occurring after March 2, 2016 the effective date of this paragraph .... [LRB inserts date], shall be an amount sufficient to bring the total weekly benefits to the same proportion of $669 $711 as the employee's weekly benefit bears to the maximum in effect on the date of injury.

SB665,51 Section 51. 102.44 (2) of the statutes is amended to read:

SB665,29,3 102.44 (2) In case of permanent total disability, aggregate indemnity shall be weekly indemnity for the period that the employee may live. Total impairment for industrial use of both eyes, the loss of both arms at or near the shoulder, the loss of both legs at or near the hip, or the loss of one arm at the shoulder and one leg at the hip constitutes permanent total disability. This enumeration is not exclusive, but in other cases the department or the division shall find the facts.

SB665,52 Section 52. 102.44 (6) (b) of the statutes is amended to read:

SB665,29,10 102.44 (6) (b) If during the period set forth in s. 102.17 (4) the employment relationship is terminated by the employer at the time of the injury or by the employee because his or her physical or mental limitations prevent his or her continuing in such employment, or if during that period a wage loss of 15 percent or more occurs, the department or the division may reopen any award and make a redetermination taking into account loss of earning capacity.

SB665,53 Section 53. 102.525 of the statutes is created to read:

SB665,29,15 102.525 Additional payment for permanent partial disability. (1) If any of the following applies during the period set forth in s. 102.17 (4) with respect to an employee who sustains a disability specified under s. 102.52, the number of weeks for which indemnity shall be payable shall be increased by 15 percent:

SB665,29,18 (a) The employment relationship is terminated by the employer at the time of the injury or by the employee because his or her physical or mental limitations prevent his or her continuing in the employment.

SB665,29,19 (b) The percentage of wage loss during the period is 15 percent or more.

SB665,29,21 (2) For the purpose of determining the percentage of wage loss under sub. (1) (b), all of the following apply:

SB665,29,23 (a) Wage loss shall be determined based on wages as determined under s. 102.11.

SB665,29,25 (b) The percentage wage loss shall be determined using actual average wages over a period of at least 13 weeks following the employee's injury.

SB665,30,2 (c) The determination of wage loss may not take into account any of the following:

SB665,30,4 1. Any period during which benefits are payable for temporary disability under s. 102.43 (5).

SB665,30,5 2. Any period during which the employee received benefits under ch. 108.

SB665,30,6 3. Any payments for permanent partial disability under s. 102.52.

SB665,30,10 (3) For the purposes of sub. (1), if an employer makes a good faith offer of employment that is refused by the employee without just cause, the employee is considered to have returned to work at the amount of wages the employee would have received but for the employee's refusal of employment.

SB665,30,12 (4) An increase under sub. (1) shall be applied after the application of any increase under s. 102.53 or 102.54.

SB665,54 Section 54. 102.61 (2) of the statutes is amended to read:

SB665,30,20 102.61 (2) The department, the division, the commission, and the courts shall determine the rights and liabilities of the parties under this section in like manner and with like effect as the department, the division, the commission, and the courts determine other issues under this chapter. A determination under this subsection may include a determination based on the evidence regarding the cost or scope of the services provided by a private rehabilitation counselor under sub. (1m) (a) or the cost or reasonableness of a rehabilitative training program developed under sub. (1m) (a).

SB665,55 Section 55. 102.62 of the statutes is amended to read:

SB665,31,12 102.62 Primary and secondary liability; unchangeable. In case of liability under s. 102.57 or 102.60, the liability of the employer shall be primary and the liability of the insurance carrier shall be secondary. If proceedings are had before the department or the division for the recovery of that liability, the department or the division shall set forth in its award the amount and order of liability as provided in this section. Execution shall not be issued against the insurance carrier to satisfy any judgment covering that liability until execution has first been issued against the employer and has been returned unsatisfied as to any part of that liability. Any provision in any insurance policy undertaking to guarantee primary liability or to avoid secondary liability for a liability under s. 102.57 or 102.60 is void. If the employer has been adjudged bankrupt or has made an assignment for the benefit of creditors, if the employer, other than an individual, has gone out of business or has been dissolved, or if the employer is a corporation and its charter has been forfeited or revoked, the insurer shall be liable for the payment of that liability without judgment or execution against the employer, but without altering the primary liability of the employer.

SB665,56 Section 56. 102.75 (1m) of the statutes is amended to read:

SB665,31,18 102.75 (1m) The moneys collected under subs. (1) and (1g) 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 ss. 20.427 (1) (ra) and 20.445 (1) (ra), (rb), (rc), and (rp) and may not be used for any other purpose of the state.

SB665,57 Section 57. 102.80 (1) (d) of the statutes is amended to read:

SB665,31,21 102.80 (1) (d) Amounts collected from employees or dependents of employees under s. 102.81 (4) (b) and (c).

SB665,58 Section 58. 102.81 (4) (b) (intro.) of the statutes is amended to read:

SB665,31,25 102.81 (4) (b) (intro.) If the employee or dependent receives compensation from the employee's employer or a 3rd party liable under s. 102.29, pay to the department the lesser of the following:

SB665,59 Section 59. 102.81 (4) (b) 2. of the statutes is amended to read:

SB665,32,3 102.81 (4) (b) 2. The amount after attorney fees and costs that the employee or dependent received from the employer or 3rd party.

SB665,60 Section 60. 102.81 (4) (c) of the statutes is created to read:

SB665,32,7 102.81 (4) (c) If the employee or dependent receives compensation from a 3rd party that is liable under s. 102.29, pay to the department the proceeds as specified under s. 102.29 (1) (b).

SB665,61 Section 61. 102.81 (5) of the statutes is amended to read:

SB665,32,10 102.81 (5) The department of justice may bring an action to collect the a payment under sub. (4) (b) or (c).

SB665,62 Section 62. 102.82 (1) of the statutes is amended to read:

SB665,32,20 102.82 (1) Except as provided in sub. (2) (ar), an uninsured employer shall reimburse the department for any payment made under s. 102.81 (1) to or on behalf of an employee of the uninsured employer or to an employee's dependents and for any expenses paid by the department in administering the claim of the employee or dependents, less amounts repaid by the employee or dependents under s. 102.81 (4) (b) or (c). The reimbursement owed under this subsection is due within 30 days after the date on which the department notifies the uninsured employer that the reimbursement is owed. Interest shall accrue on amounts not paid when due at the rate of 1 percent per month.

SB665,63 Section 63. 108.227 (1) (e) 16. of the statutes is created to read:

SB665,32,23 108.227 (1) (e) 16. A license issued by the division of hearings and appeals under s. 102.17 (1) (c).

SB665,64 Section 64. 108.227 (1) (f) of the statutes is amended to read:

SB665,33,8 108.227 (1) (f) “Licensing department" means the department of administration; the division of hearings and appeals; the department of agriculture, trade and consumer protection; the board of commissioners of public lands; the department of children and families; the ethics commission; the department of financial institutions; the department of health services; the department of natural resources; the department of public instruction; the department of revenue; the department of safety and professional services; the office of the commissioner of insurance; or the department of transportation.

SB665,65 Section 65. 108.227 (1m) (intro.) of the statutes is amended to read:

SB665,33,15 108.227 (1m) General provisions. (intro.) The department shall promulgate rules specifying procedures to be used before taking action under sub. (3) (b) or s. 102.17 (1) (ct), 103.275 (2) (bt), 103.34 (10) (d), 103.91 (4) (d), 103.92 (8), 104.07 (7), or 105.13 (4) with respect to a person whose license or credential is to be denied, not renewed, discontinued, suspended, or revoked, including rules with respect to all of the following:

SB665,66 Section 66. 108.227 (3) (a) 3. of the statutes is amended to read:

SB665,33,20 108.227 (3) (a) 3. Upon the request of any person whose license or certificate has been previously revoked or denied under s. 102.17 (1) (ct), 103.275 (2) (bt), 103.34 (10) (d), 103.91 (4) (d), 103.92 (8), 104.07 (7), or 105.13 (4), reinstate the license or certificate if the applicant is not liable for delinquent contributions.

SB665,67 Section 67. 108.227 (5) (a) of the statutes is amended to read:

SB665,34,13 108.227 (5) (a) The department of workforce development shall conduct a hearing requested by a license holder or applicant for a license or license renewal or continuation under sub. (2) (b) 1. b., or as requested under s. 102.17 (1) (ct), 103.275 (2) (bt), 103.34 (10) (d), 103.91 (4) (d), 103.92 (8), 104.07 (7), or 105.13 (4), to review a certification or determination of contribution delinquency that is the basis of a denial, suspension, or revocation of a license or certificate in accordance with this section or an action taken under s. 102.17 (1) (ct), 103.275 (2) (bt), 103.34 (10) (d), 103.91 (4) (d), 103.92 (8), 104.07 (7), or 105.13 (4). A hearing under this paragraph is limited to questions of mistaken identity of the license or certificate holder or applicant and of prior payment of the contributions that the department of workforce development certified or determined the license or certificate holder or applicant owes the department. At a hearing under this paragraph, any statement filed by the department of workforce development, the licensing department, or the supreme court, if the supreme court agrees, may be admitted into evidence and is prima facie evidence of the facts that it contains. Notwithstanding ch. 227, a person entitled to a hearing under this paragraph is not entitled to any other notice, hearing, or review, except as provided in sub. (6).

SB665,68 Section 68. 108.227 (5) (b) 1. of the statutes is amended to read:

SB665,34,23 108.227 (5) (b) 1. Issue a nondelinquency certificate to a license holder or an applicant for a license or license renewal or continuation if the department determines that the license holder or applicant is not liable for delinquent contributions. For a hearing requested in response to an action taken under s. 102.17 (1) (ct), 103.275 (2) (bt), 103.34 (10) (d), 103.91 (4) (d), 103.92 (8), 104.07 (7), or 105.13 (4), the department shall grant a license or certificate or reinstate a license or certificate if the department determines that the applicant for or the holder of the license or certificate is not liable for delinquent contributions, unless there are other grounds for denying the application or revoking the license or certificate.

SB665,69 Section 69. 108.227 (5) (b) 2. of the statutes is amended to read: