102.315(6)(a)(a) If a client notifies the department as provided under
par. (b) of its intent to have a divided workforce, an insurer may issue a worker's compensation insurance policy covering only the leased employees of the client. An insurer that issues a policy covering only the leased employees of a client is not liable under
s. 102.03 for any compensation payable under this chapter to an employee of the client who is not a leased employee unless the insurer also issues a policy covering that employee. A client that has a divided workforce shall insure its employees who are not leased employees in the voluntary market and may not insure those employees under the mandatory risk-sharing plan under
s. 619.01 unless the leased employees of the client are covered under that plan.
102.315(6)(b)
(b) A client that intends to have a divided workforce shall notify the department of that intent on a form prescribed by the department that includes all of the following:
102.315(6)(b)1.
1. The names and mailing addresses of the client and the employee leasing company, the effective date of the employee leasing agreement, a description of the employees of the client who are not leased employees, and such other information as the department may require.
102.315(6)(b)2.
2. Except as provided in
par. (c), evidence that the employees of the client who are not leased employees are covered in the voluntary market. That evidence shall be in the form of a copy of the information page or declaration page of a worker's compensation insurance policy or binder evidencing placement of coverage in the voluntary market covering those employees.
102.315(6)(b)3.
3. An agreement by the client to assume full responsibility to immediately pay all compensation and other payments payable under this chapter as may be required by the department should a dispute arise between 2 or more insurers as to liability under this chapter for an injury sustained while a divided workforce plan is in effect, pending final resolution of that dispute. This subdivision does not preclude a client from insuring that responsibility in an insurer authorized to do business in this state.
102.315(6)(c)
(c) If the leased employees of a client are covered under a mandatory risk-sharing plan under
s. 619.01, the client may, instead of providing the evidence required under
par. (b) 2., provide evidence in its notification under
par. (b) that both the leased employees of the client and the employees of the client who are not leased employees are covered under that mandatory risk-sharing plan. That evidence shall be in the form of a copy of the information page or declaration page of a worker's compensation insurance policy or binder evidencing placement of coverage under the mandatory risk-sharing plan covering both those leased employees and employees who are not leased employees.
102.315(6)(d)
(d) When the department receives a notification under
par. (b), the department shall immediately provide a copy of the notification to the bureau.
102.315(6)(e)1.1. If a client intends to terminate a divided workforce plan, the client shall notify the department of that intent on a form prescribed by the department. Termination of a divided workforce plan by a client is not effective until 10 days after notice of the termination is received by the department.
102.315(6)(e)2.
2. If an insurer cancels, terminates, or does not renew a worker's compensation insurance policy issued under a divided workforce plan that covers in the voluntary market the employees of a client who are not leased employees, the divided workforce plan is terminated on the effective date of the cancellation, termination, or nonrenewal of the policy, unless the client submits evidence under
par. (c) that both the leased employees of the client and the employees of the client who are not leased employees are covered under a mandatory risk-sharing plan.
102.315(6)(e)3.
3. If an insurer cancels, terminates, or does not renew a worker's compensation insurance policy issued under a divided workforce plan that covers under the mandatory risk-sharing plan under
s. 619.01 the employees of a client who are not leased employees, the divided workforce plan is terminated on the effective date of the cancellation, termination, or nonrenewal of the policy.
102.315(7)
(7) Filing of contracts. An insurer that provides a policy under
sub. (3),
(4), or
(5) (a) shall file the policy as provided in
s. 626.35.
102.315(8)(a)(a) A sole proprietor, a partner, or a member of a limited liability company is not eligible for worker's compensation benefits under a policy issued under
sub. (3),
(4), or
(5) (a) unless the sole proprietor, partner, or member elects coverage under
s. 102.075 by an endorsement on the policy naming the sole proprietor, partner, or member who has so elected.
102.315(8)(b)
(b) An officer of a corporation is covered for worker's compensation benefits under a policy issued under
sub. (3),
(4), or
(5) (a), unless the officer elects under
s. 102.076 not to be covered under the policy by an endorsement on the policy naming the officer who has so elected.
102.315(8)(c)
(c) An employee leasing company shall obtain a worker's compensation insurance policy that is separate from a policy covering the employees whom it leases to its clients to cover the employees of the employee leasing company who are not leased employees.
102.315(9)(a)(a) An insurer that issues a policy under
sub. (3),
(4), or
(5) (a) may charge a premium for coverage under that policy that complies with the applicable classifications, rules, rates, and rating plans filed with and approved by the commissioner of insurance under
s. 626.13.
102.315(9)(b)
(b) For a policy issued under
sub. (3) in which an employee leasing company is the first named insured or for a master policy issued under
sub. (4) or
(5) (a), an insurer may obligate only the employee leasing company to pay premiums due for a client's coverage under the policy and may not recover any unpaid premiums due for that coverage from the client.
102.315(9)(c)
(c) This subsection does not prohibit an insurer from doing any of the following:
102.315(9)(c)1.
1. Collecting premiums or other charges due with respect to a client by means of list billing through an employee leasing company.
102.315(9)(c)2.
2. Requiring an employee leasing company to maintain a letter of credit or other form of security to ensure payment of a premium.
102.315(9)(c)3.
3. Issuing policies that have a common renewal date to all, or a class of all, clients of an employee leasing company.
102.315(9)(c)4.
4. Grouping together the clients of an employee leasing company for the purpose of offering dividend eligibility and paying dividends to those clients in compliance with
s. 631.51.
102.315(9)(c)5.
5. Applying a discount to the premium charged with respect to a client as permitted by the bureau.
102.315(9)(c)6.
6. Applying a retrospective rating option for determining the premium charged with respect to a client. No insurer or employee leasing company may impose on, allocate to, or collect from a client a penalty under a retrospective rating option arrangement. This subdivision does not prohibit an insurer from requiring an employee leasing company to pay a penalty under a retrospective rating option arrangement with respect to a client of the employee leasing company.
102.315(10)
(10) Cancellation, termination, and nonrenewal of policies. 102.315(10)(a)1.1. A policy issued under
sub. (3) in which the employee leasing company is the first named insured and a policy issued under
sub. (4) or
(5) (a) may be cancelled, terminated, or nonrenewed as provided in
subds. 2. to
4.
102.315(10)(a)2.
2. The insureds under a policy described in
subd. 1. may cancel the policy during the policy period 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 or by the client agreeing to the cancellation in writing, and the insurer provides written notice of the cancellation to the department as required under
s. 102.31 (2) (a).
102.315(10)(a)3.
3. Subject to
subd. 4., an insurer may cancel, terminate, or nonrenew a policy described in
subd. 1. by providing written notice of the cancellation, termination, or nonrenewal to the insured employee leasing company and to the department as required under
s. 102.31 (2) (a) and by providing that notice to the insured client. The insurer is not required to state in the notice to the insured client the facts on which the decision to cancel, terminate, or nonrenew the policy is based. Except as provided in
s. 102.31 (2) (b), cancellation or termination of a policy under this subdivision for any reason other than nonrenewal is not effective until 30 days after the insurer has provided written notice of the cancellation or termination to the insured employee leasing company, the insured client, and the department. Except as provided in
s. 102.31 (2) (b), nonrenewal of a policy under this subdivision is not effective until 60 days after the insurer has provided written notice of the cancellation or termination to the insured employee leasing company, the insured client, and the department.
102.315(10)(a)4.
4. If an employee leasing company terminates an employee leasing agreement with a client in its entirety, an insurer may cancel or terminate a policy described in
subd. 1. covering that client during the policy period by providing written notice of the cancellation or termination to the insured employee leasing company and the department as required under
s. 102.31 (2) (a) and by providing that notice to the insured client. The insurer shall state in the notice to the insured client that the policy is being cancelled or terminated due to the termination of the employee leasing agreement. Except as provided in
s. 102.31 (2) (b), cancellation or termination of a policy under this subdivision is not effective until 30 days after the insurer has provided written notice of the cancellation or termination to the insured employee leasing company, the insured client, and the department.
102.315(10)(b)1.1. A policy issued under
sub. (3) in which the client is the first named insured may be cancelled, terminated, or nonrenewed as provided in
subds. 2. to
4.
102.315(10)(b)2.
2. The insureds under a policy described in
subd. 1. may cancel the policy during the policy period 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 or by the client agreeing to the cancellation in writing, and the insurer provides written notice of the cancellation to the department as required under
s. 102.31 (2) (a).
102.315(10)(b)3.
3. An insurer may cancel, terminate, or nonrenew a policy described in
subd. 1., including cancellation or termination of a policy providing continued coverage under
subd. 4., by providing written notice of the cancellation, termination, or nonrenewal to the insured employee leasing company and to the department as required under
s. 102.31 (2) (a) and by providing that notice to the insured client. Except as provided in
s. 102.31 (2) (b), cancellation or termination of a policy under this subdivision for any reason other than nonrenewal is not effective until 30 days after the insurer has provided written notice of the cancellation or termination to the insured employee leasing company, the insured client, and the department. Except as provided in
s. 102.31 (2) (b), nonrenewal of a policy under this subdivision is not effective until 60 days after the insurer has provided written notice of the cancellation or termination to the insured employee leasing company, the insured client, and the department.
102.315(10)(b)4.
4. If an employee leasing agreement is terminated during the policy period of a policy described in
subd. 1., an insurer shall cancel the employee leasing company's coverage under the policy by an endorsement to the policy and coverage of the client under the policy shall continue as to all employees of the client unless the policy is cancelled or terminated as permitted under
subd. 3.
102.315 History
History: 2007 a. 185.
102.32
102.32
Continuing liability; guarantee settlement, gross payment. 102.32(1m)(1m) In any case in which compensation payments for an injury have extended or will extend over 6 months or more after the date of the injury or in any case in which death benefits are payable, any party in interest may, in the discretion of the department, be discharged from, or compelled to guarantee, future compensation payments by doing any of the following:
102.32(1m)(a)
(a) Depositing the present value of the total unpaid compensation upon a 5 percent interest discount basis with a credit union, savings bank, savings and loan association, bank, or trust company designated by the department.
102.32(1m)(b)
(b) Purchasing an annuity, within the limitations provided by law, from an insurance company licensed in this state that is designated by the department.
102.32(1m)(c)
(c) Making payment in gross upon a 5 percent interest discount basis to be approved by the department.
102.32(1m)(d)
(d) In cases in which the time for making payments or the amounts of payments cannot be definitely determined, furnishing a bond, or other security, satisfactory to the department for the payment of compensation as may be due or become due. The acceptance of the bond, or other security, and the form and sufficiency of the bond or other security, shall be subject to the approval of the department. If the employer or insurer is unable or fails to immediately procure the bond, then, in lieu of procuring the bond, deposit shall be made with a credit union, savings bank, savings and loan association, bank, or trust company designated by the department, of the maximum amount that may reasonably become payable in these cases, to be determined by the department at amounts consistent with the extent of the injuries and the law. The bonds and deposits are to be reduced only to satisfy claims and withdrawn only after the claims which they are to guarantee are fully satisfied or liquidated under
par. (a),
(b), or
(c).
102.32(5)
(5) Any insured employer may, within the discretion of the department, compel the insurer to discharge, or to guarantee payment of, the employer's liabilities in any case described in
sub. (1m) and thereby release the employer from compensation liability in that case, but if for any reason a bond furnished or deposit made under
sub. (1m) (d) does not fully protect, the compensation insurer or insured employer, as the case may be, shall still be liable to the beneficiary of the bond or deposit.
102.32(6)(a)(a) If compensation is due for permanent disability following an injury or if death benefits are payable, payments shall be made to the employee or dependent on a monthly basis as provided in
pars. (b) to
(e).
102.32(6)(b)
(b) Subject to
par. (d), if the employer or the employer's insurer concedes liability for an injury that results in permanent disability and if the extent of the permanent disability can be determined based on a minimum permanent disability rating promulgated by the department by rule, compensation for permanent disability shall begin within 30 days after the end of the employee's healing period or the date on which compensation for temporary disability ends due to the employee's return to work, whichever is earlier.
102.32(6)(c)
(c) Subject to
par. (d), if the employer or the employer's insurer concedes liability for an injury that results in permanent disability, but the extent of the permanent disability cannot be determined without a medical report that provides the basis for a minimum permanent disability rating, compensation for permanent disability shall begin within 30 days after the employer or the employer's insurer receives a medical report that provides a basis for a permanent disability rating.
102.32(6)(d)
(d) The department shall promulgate rules for determining when compensation for permanent disability shall begin in cases in which the employer or the employer's insurer concedes liability, but disputes the extent of permanent disability.
102.32(6)(e)
(e) Payments for permanent disability, including payments based on minimum permanent disability ratings promulgated by the department by rule, shall continue on a monthly basis and shall accrue and be payable between intermittent periods of temporary disability so long as the employer or insurer knows the nature of the permanent disability.
102.32(6m)
(6m) The department may direct an advance on a payment of unaccrued compensation for permanent disability or death benefits if the department determines that the advance payment is in the best interest of the injured employee or the employee's dependents. In directing the advance, the department shall give the employer or the employer's insurer an interest credit against its liability. The credit shall be computed at 5 percent. An injured employee or dependent may receive no more than 3 advance payments per calendar year.
102.32(7)
(7) No lump sum settlement shall be allowed in any case of permanent total disability upon an estimated life expectancy, except upon consent of all parties, after hearing and finding by the department that the interests of the injured employee will be conserved thereby.
102.32 Annotation
The interest credit under sub. (6) [now sub. (6m)] was properly calculated on a per annum basis rather than a one-time simple interest basis. Hamm v. LIRC,
223 Wis. 2d 183,
588 N.W.2d 358 (Ct. App. 1998),
98-0051.
102.33
102.33
Department forms and records; public access. 102.33(1)(1) The department shall print and furnish free to any employer or employee any blank forms that the department considers necessary to facilitate efficient administration of this chapter. The department shall keep any record books or records that the department considers necessary for the proper and efficient administration of this chapter.
102.33(2)(a)(a) Except as provided in
pars. (b) and
(c), the records of the department, and the records of the commission, related to the administration of this chapter are subject to inspection and copying under
s. 19.35 (1).
102.33(2)(b)
(b) Except as provided in this paragraph and
par. (d), a record maintained by the department or by the commission that reveals the identity of an employee who claims worker's compensation benefits, the nature of the employee's claimed injury, the employee's past or present medical condition, the extent of the employee's disability, or the amount, type, or duration of benefits paid to the employee and a record maintained by the department that reveals any financial information provided to the department by a self-insured employer or by an applicant for exemption under
s. 102.28 (2) (b) are confidential and not open to public inspection or copying under
s. 19.35 (1). The department or commission may deny a request made under
s. 19.35 (1) or, subject to
s. 102.17 (2m) and
(2s), refuse to honor a subpoena issued by an attorney of record in a civil or criminal action or special proceeding to inspect and copy a record that is confidential under this paragraph, unless one of the following applies:
102.33(2)(b)1.
1. The requester is the employee who is the subject of the record or an attorney or authorized agent of that employee. An attorney or authorized agent of an employee who is the subject of a record shall provide a written authorization for inspection and copying from the employee if requested by the department or the commission.
102.33(2)(b)2.
2. The record that is requested contains confidential information concerning a worker's compensation claim and the requester is an insurance carrier or employer that is a party to any worker's compensation claim involving the same employee or an attorney or authorized agent of that insurance carrier or employer, except that the department or the commission is not required to do a random search of its records and may require the requester to provide the approximate date of the injury and any other relevant information that would assist the department or the commission in finding the record requested. An attorney or authorized agent of an insurance carrier or employer that is a party to an employee's worker's compensation claim shall provide a written authorization for inspection and copying from the insurance carrier or employer if requested by the department or the commission.
102.33(2)(b)3.
3. The record that is requested contains financial information provided by a self-insured employer or by an applicant for exemption under
s. 102.28 (2) (b) and the requester is the self-insured employer or applicant for exemption or an attorney or authorized agent of the self-insured employer or applicant for exemption. An attorney or authorized agent of the self-insured employer or of the applicant for exemption shall provide a written authorization for inspection and copying from the self-insured employer or applicant for exemption if requested by the department.
102.33(2)(b)4.
4. A court of competent jurisdiction in this state orders the department or the commission to release the record.
102.33(2)(b)5.
5. The requester is the department of children and families or a county child support agency under
s. 59.53 (5), the request is made under
s. 49.22 (2m), 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.
102.33(2)(b)6.
6. The department of revenue requests the record for the purpose of locating a person, or the assets of a person, who has failed to file tax returns, who has underreported taxable income or who is a delinquent taxpayer; identifying fraudulent tax returns; or providing information for tax-related prosecutions.
102.33(2)(c)
(c) A record maintained by the department or the commission that contains employer or insurer information obtained from the Wisconsin compensation rating bureau under
s. 102.31 (8) or
626.32 (1) (a) is confidential and not open to public inspection or copying under
s. 19.35 (1) unless the Wisconsin compensation rating bureau authorizes public inspection or copying of that information.
102.33(2)(d)1.a.
a. "Government unit" has the meaning given in
s. 108.02 (17) and also includes a corresponding unit in the government of another state or a unit of the federal government.
102.33(2)(d)1.c.
c. "Nonprofit research organization" means an organization that is exempt from federal income tax under section
501 (a) of the Internal Revenue Code and whose mission is to engage in research.
102.33(2)(d)2.
2. The department or the commission may release information that is confidential under
par. (b) to a government unit, an institution of higher education, or a nonprofit research organization for purposes of research and may release information that is confidential under
par. (c) to those persons for that purpose if the Wisconsin compensation rating bureau authorizes that release. A government unit, institution of higher education, or nonprofit research organization may not permit inspection or disclosure of any information released to it under this subdivision that is confidential under
par. (b) unless the department or commission authorizes that inspection or disclosure and may not permit inspection or disclosure of any information released to it under this subdivision that is confidential under
par. (c) unless the department or commission, and the Wisconsin compensation rating bureau, authorize the inspection or disclosure. A government unit, institution of higher education, or nonprofit research organization that obtains any confidential information under this subdivision for purposes of research shall provide the results of that research free of charge to the person that released or authorized the release of that information.
102.35(1)(1) Every employer and every insurance company that fails to keep the records or to make the reports required by this chapter or that knowingly falsifies such records or makes false reports shall pay a work injury supplemental benefit surcharge to the state of not less than $10 nor more than $100 for each offense. The department may waive or reduce a surcharge imposed under this subsection if the employer or insurance company that violated this subsection requests a waiver or reduction of the surcharge within 45 days after the date on which notice of the surcharge is mailed to the employer or insurance company and shows that the violation was due to mistake or an absence of information. A surcharge imposed under this subsection is due within 90 days after the date on which notice of the surcharge is mailed to the employer or insurance company. Interest shall accrue on amounts that are not paid when due at the rate of 1 percent per month. All surcharges and interest payments received under this subsection shall be deposited in the fund established under
s. 102.65.
102.35(2)
(2) Any employer, or duly authorized agent thereof, who, without reasonable cause, refuses to rehire an employee injured in the course of employment, or who, because of a claim or attempt to claim compensation benefits from such employer, discriminates or threatens to discriminate against an employee as to the employee's employment, shall forfeit to the state not less than $50 nor more than $500 for each offense. No action under this subsection may be commenced except upon request of the department.
102.35(3)
(3) Any employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment, where suitable employment is available within the employee's physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employee the wages lost during the period of such refusal, not exceeding one year's wages. In determining the availability of suitable employment the continuance in business of the employer shall be considered and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall govern.
102.35 Annotation
An employer cannot satisfy sub. (3) by rehiring with an intent to fire at a later date. Dielectric Corporation v. LIRC,
111 Wis. 2d 270,
330 N.W.2d 606 (Ct. App. 1983).
102.35 Annotation
An employer has the burden to prove that rehiring was in good faith. West Allis School Dist. v. DILHR,
116 Wis. 2d 410,
342 N.W.2d 415 (1984).
102.35 Annotation
A one-day absence from work due to an injury triggered the rehire provision under sub. (3). Link Industries, Inc. v. LIRC,
141 Wis. 2d 551,
415 N.W.2d 574 (Ct. App. 1987).
102.35 Annotation
For liability under sub. (3), the employee must show that he or she: 1) was an employee; 2) sustained a compensable injury;. 3) applied for rehire; 4) had the application for rehire refused due to the injury. Universal Foods Corporation v. LIRC,
161 Wis. 2d 1,
467 N.W.2d 793 (Ct. App. 1991).
102.35 Annotation
Sub. (3) does not bar an employee from seeking arbitration under a collective bargaining agreement to determine whether termination following an injury violated the agreement. Sub. (3) relates to harm other than worker injuries and is not subject to the exclusive remedy provision of s. 102.03 (2); the "exclusive liability" language in sub. (3) does not bar lawsuits but imposes a penalty on the employer for refusal to hire. County of LaCrosse v. WERC,
182 Wis. 2d 15,
513 N.W.2d 708 (1994).
102.35 Annotation
A LIRC interpretation of sub. (3), that a violation requires an employee who is unable to return to a prior employment to express an interest in reemployment in a different capacity, was reasonable. Hill v. LIRC,
184 Wis. 2d 110,
516 N.W.2d 441 (Ct. App. 1994).
102.35 Annotation
If an employer shows that it refused to rehire an injured employee because the employee's position was eliminated to reduce costs and increase efficiency, reasonable cause has been shown under sub. (3). Ray Hutson Chevrolet, Inc. v. LIRC,
186 Wis. 2d 118,
519 N.W.2d 649 (Ct. App. 1994).
102.35 Annotation
An attendance policy that includes absences due to work-related injuries as part of the total of absences allowed before termination violates sub. (3). Great Northern Corp. v. LIRC,
189 Wis. 2d 313,
525 N.W.2d 361 (Ct. App. 1994).
