AB56: Bill Text

AB56,1145 Section 1145. 102.17 (1) (e) of the statutes is amended to read:

AB56,704,20 102.17 (1) (e) The division department may, with or without notice to any party, cause testimony to be taken, an inspection of the premises where the injury occurred to be made, or the time books and payrolls of the employer to be examined by any examiner, and may direct any employee claiming compensation to be examined by a physician, chiropractor, psychologist, dentist, or podiatrist. The testimony so taken, and the results of any such inspection or examination, shall be reported to the division department for its consideration upon final hearing. All ex parte testimony taken by the division department shall be reduced to writing, and any party shall have opportunity to rebut that testimony on final hearing.

AB56,1146 Section 1146. 102.17 (1) (f) 1. of the statutes is amended to read:

AB56,704,22 102.17 (1) (f) 1. Beyond reach of the subpoena of the division department.

AB56,1147 Section 1147. 102.17 (1) (g) of the statutes is amended to read:

AB56,705,11 102.17 (1) (g) Whenever the testimony presented at any hearing indicates a dispute or creates a doubt as to the extent or cause of disability or death, the division department may direct that the injured employee be examined, that an autopsy be performed, or that an opinion be obtained without examination or autopsy, by or from an impartial, competent physician, chiropractor, dentist, psychologist or podiatrist designated by the division department who is not under contract with or regularly employed by a compensation insurance carrier or self-insured employer. The expense of the examination, autopsy, or opinion shall be paid by the employer or, if the employee claims compensation under s. 102.81, from the uninsured employers fund. The report of the examination, autopsy, or opinion shall be transmitted in writing to the division department and a copy of the report shall be furnished by the division department to each party, who shall have an opportunity to rebut the report on further hearing.

AB56,1148 Section 1148. 102.17 (1) (h) of the statutes is amended to read:

AB56,705,20 102.17 (1) (h) The contents of certified reports of investigation made by industrial safety specialists who are employed, contracted, or otherwise secured by the department or the division and who are available for cross-examination, if served upon the parties 15 days prior to hearing, shall constitute prima facie evidence as to matter contained in those reports. A report described in this paragraph that is admitted or received into evidence by the division department constitutes substantial evidence under s. 102.23 (6) as to the matter contained in the report.

AB56,1149 Section 1149. 102.17 (2) of the statutes is amended to read:

AB56,706,5 102.17 (2) If the division department has reason to believe that the payment of compensation has not been made, the division department may on its own motion give notice to the parties, in the manner provided for the service of an application, of a time and place when a hearing will be held for the purpose of determining the facts. The notice shall contain a statement of the matter to be considered. All provisions of this chapter governing proceedings on an application shall apply, insofar as applicable, to a proceeding under this subsection. When the division department schedules a hearing on its own motion, the division department does not become a party in interest and is not required to appear at the hearing.

AB56,1150 Section 1150. 102.17 (2m) of the statutes is amended to read:

AB56,706,12 102.17 (2m) The division or any Any party, including the department, may require any person to produce books, papers, and records at the hearing by personal service of a subpoena upon the person along with a tender of witness fees as provided in ss. 814.67 and 885.06. Except as provided in sub. (2s), the subpoena shall be on a form provided by the division department and shall give the name and address of the party requesting the subpoena.

AB56,1151 Section 1151. 102.17 (2s) of the statutes is amended to read:

AB56,706,19 102.17 (2s) A party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence. A subpoena issued by an attorney must be in substantially the same form as provided in s. 805.07 (4) and must be served in the manner provided in s. 805.07 (5). The attorney shall, at the time of issuance, send a copy of the subpoena to the hearing examiner or other representative of the division department responsible for conducting the proceeding.

AB56,1152 Section 1152. 102.17 (7) (b) of the statutes is amended to read:

AB56,707,7 102.17 (7) (b) Except as provided in par. (c), the division department shall exclude from evidence testimony or certified reports from expert witnesses under par. (a) offered by the party that raises the issue of loss of earning capacity if that party failed to notify the division department and the other parties of interest, at least 60 days before the date of the hearing, of the party's intent to provide the testimony or reports and of the names of the expert witnesses involved. Except as provided in par. (c), the division department shall exclude from evidence testimony or certified reports from expert witnesses under par. (a) offered by a party of interest in response to the party that raises the issue of loss of earning capacity if the responding party failed to notify the division department and the other parties of interest, at least 45 days before the date of the hearing, of the party's intent to provide the testimony or reports and of the names of the expert witnesses involved.

AB56,1153 Section 1153. 102.17 (7) (c) of the statutes is amended to read:

AB56,707,13 102.17 (7) (c) Notwithstanding the notice deadlines provided in par. (b), the division department may receive in evidence testimony or certified reports from expert witnesses under par. (a) when the applicable notice deadline under par. (b) is not met if good cause is shown for the delay in providing the notice required under par. (b) and if no party is prejudiced by the delay.

AB56,1154 Section 1154. 102.17 (8) of the statutes is amended to read:

AB56,708,3 102.17 (8) Unless otherwise agreed to by all parties, an injured employee shall file with the division department and serve on all parties at least 15 days before the date of the hearing an itemized statement of all medical expenses and incidental compensation under s. 102.42 claimed by the injured employee. The itemized statement shall include, if applicable, information relating to any travel expenses incurred by the injured employee in obtaining treatment including the injured employee's destination, number of trips, round trip mileage, and meal and lodging expenses. The division department may not admit into evidence any information relating to medical expenses and incidental compensation under s. 102.42 claimed by an injured employee if the injured employee failed to file with the division department and serve on all parties at least 15 days before the date of the hearing an itemized statement of the medical expenses and incidental compensation under s. 102.42 claimed by the injured employee, unless the division department is satisfied that there is good cause for the failure to file and serve the itemized statement.

AB56,1155 Section 1155. 102.175 (2) of the statutes is amended to read:

AB56,708,12 102.175 (2) If after a hearing or a prehearing conference the division department determines that an injured employee is entitled to compensation but that there remains in dispute only the issue of which of 2 or more parties is liable for that compensation, the division department may order one or more parties to pay compensation in an amount, time, and manner as determined by the division department. If the division department later determines that another party is liable for compensation, the division department shall order that other party to reimburse any party that was ordered to pay compensation under this subsection.

AB56,1156 Section 1156. 102.175 (3) (c) of the statutes is amended to read:

AB56,708,18 102.175 (3) (c) Upon request of the department, the division, the employer, or the employer's worker's compensation insurer, an injured employee who claims compensation for an injury causing permanent disability shall disclose all previous findings of permanent disability or other impairments that are relevant to that injury.

AB56,1157 Section 1157. 102.18 (1) (b) 1. of the statutes is amended to read:

AB56,709,2 102.18 (1) (b) 1. Within 90 days after the final hearing and close of the record, the division department shall make and file its findings upon the ultimate facts involved in the controversy, and its order, which shall state the division's department's determination as to the rights of the parties. Pending the final determination of any controversy before it, the division department, after any hearing, may, in its discretion, make interlocutory findings, orders, and awards, which may be enforced in the same manner as final awards.

AB56,1158 Section 1158. 102.18 (1) (b) 2. of the statutes is amended to read:

AB56,709,9 102.18 (1) (b) 2. The division department may include in any interlocutory or final award or order an order directing the employer or insurer to pay for any future treatment that may be necessary to cure and relieve the employee from the effects of the injury or to pay for a future course of instruction or other rehabilitation training services provided under a rehabilitation training program developed under s. 102.61 (1) or (1m).

AB56,1159 Section 1159. 102.18 (1) (b) 3. of the statutes is amended to read:

AB56,709,15 102.18 (1) (b) 3. If the division department finds that the employer or insurer has not paid any amount that the employer or insurer was directed to pay in any interlocutory order or award and that the nonpayment was not in good faith, the division department may include in its final award a penalty not exceeding 25 percent of each amount that was not paid as directed.

AB56,1160 Section 1160. 102.18 (1) (bg) 1. of the statutes is amended to read:

AB56,709,25 102.18 (1) (bg) 1. If the division department finds under par. (b) that an insurer or self-insured employer is liable under this chapter for any health services provided to an injured employee by a health service provider, but that the reasonableness of the fee charged by the health service provider is in dispute, the division department may include in its order under par. (b) a determination made by the department under s. 102.16 (2) as to the reasonableness of the fee or, if such a determination has not yet been made, the division department may notify, or direct the insurer or self-insured employer to notify, the health service provider under s. 102.16 (2) (b) that the reasonableness of the fee is in dispute.

AB56,1161 Section 1161. 102.18 (1) (bg) 2. of the statutes is amended to read:

AB56,710,10 102.18 (1) (bg) 2. If the division department finds under par. (b) that an employer or insurance carrier is liable under this chapter for any treatment provided to an injured employee by a health service provider, but that the necessity of the treatment is in dispute, the division department may include in its order under par. (b) a determination made by the department under s. 102.16 (2m) as to the necessity of the treatment or, if such a determination has not yet been made, the division department may notify, or direct the employer or insurance carrier to notify, the health service provider under s. 102.16 (2m) (b) that the necessity of the treatment is in dispute.

AB56,1162 Section 1162. 102.18 (1) (bg) 3. of the statutes is amended to read:

AB56,710,22 102.18 (1) (bg) 3. If the division department finds under par. (b) that an insurer or self-insured employer is liable under this chapter for the cost of a prescription drug dispensed under s. 102.425 (2) for outpatient use by an injured employee, but that the reasonableness of the amount charged for that prescription drug is in dispute, the division department may include in its order under par. (b) a determination made by the department under s. 102.425 (4m) as to the reasonableness of the prescription drug charge or, if such a determination has not yet been made, the division department may notify, or direct the insurer or self-insured employer to notify, the pharmacist or practitioner dispensing the prescription drug under s. 102.425 (4m) (b) that the reasonableness of the prescription drug charge is in dispute.

AB56,1163 Section 1163. 102.18 (1) (bp) of the statutes is amended to read:

AB56,711,14 102.18 (1) (bp) If the division department 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 division department 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 division department may not also order an increased payment under s. 102.22 (1) or the payment of interest under s. 628.46 (1). The division department may award an amount that the division department 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 division department 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.

AB56,1164 Section 1164. 102.18 (1) (bw) of the statutes is amended to read:

AB56,711,22 102.18 (1) (bw) If an insurer, a self-insured employer, or, if applicable, the uninsured employers fund pays compensation to an employee in excess of its liability and another insurer or self-insured employer is liable for all or part of the excess payment, the department or the division may order the insurer or self-insured employer that is liable for that excess payment to reimburse the insurer or self-insured employer that made the excess payment or, if applicable, the uninsured employers fund.

AB56,1165 Section 1165. 102.18 (1) (c) of the statutes is amended to read:

AB56,712,5 102.18 (1) (c) If 2 or more examiners have conducted a formal hearing on a claim and are unable to agree on the order or award to be issued, the decision shall be the decision of the majority. If the examiners are equally divided on the decision, the division department may appoint an additional examiner who shall review the record and consult with the other examiners concerning their impressions of the credibility of the evidence. Findings of fact and an order or award may then be issued by a majority of the examiners.

AB56,1166 Section 1166. 102.18 (1) (e) of the statutes is amended to read:

AB56,712,13 102.18 (1) (e) Except as provided in s. 102.21, if the department or the division orders a party to pay an award of compensation, the party shall pay the award no later than 21 days after the date on which the order is mailed to the last-known address of the party, unless the party files a petition for review under sub. (3). This paragraph applies to all awards of compensation ordered by the department or the division, whether the award results from a hearing, the default of a party, or a compromise or stipulation confirmed by the department or the division.

AB56,1167 Section 1167. 102.18 (2) of the statutes is repealed and recreated to read:

AB56,712,20 102.18 (2) The department shall have and maintain on its staff such examiners as are necessary to hear and decide claims and to assist in the effective administration of this chapter. Those examiners shall be attorneys and may be designated as administrative law judges. Those examiners may make findings and orders and may approve, review, set aside, modify, or confirm stipulations of settlement or compromises of claims for compensation.

AB56,1168 Section 1168. 102.18 (3) of the statutes is amended to read:

AB56,713,13 102.18 (3) A party in interest may petition the commission for review of an examiner's decision awarding or denying compensation if the department, the division, or the commission receives the petition within 21 days after the department or the division mailed a copy of the examiner's findings and order to the last-known addresses of the parties in interest. The commission shall dismiss a petition that is not filed within those 21 days unless the petitioner shows that the petition was filed late for a reason that was beyond the petitioner's control. If no petition is filed within those 21 days, the findings or order shall be considered final unless set aside, reversed, or modified by the examiner within that time. If the findings or order are set aside by the examiner, the status shall be the same as prior to the setting aside of the findings or order that were set aside. If the findings or order are reversed or modified by the examiner, the time for filing a petition commences on the date on which notice of the reversal or modification is mailed to the last-known addresses of the parties in interest. The commission shall either affirm, reverse, set aside, or modify the findings or order, in whole or in part, or direct the taking of additional evidence. The commission's action shall be based on a review of the evidence submitted.

AB56,1169 Section 1169. 102.18 (4) (c) 3. of the statutes is amended to read:

AB56,713,16 102.18 (4) (c) 3. Remand the case to the department or the division for further proceedings.

AB56,1170 Section 1170. 102.18 (4) (d) of the statutes is amended to read:

AB56,713,24 102.18 (4) (d) While a petition for review by the commission is pending or after entry of an order or award by the commission but before commencement of an action for judicial review or expiration of the period in which to commence an action for judicial review, the commission shall remand any compromise presented to it to the department or the division for consideration and approval or rejection under s. 102.16 (1). Presentation of a compromise does not affect the period in which to commence an action for judicial review.

AB56,1171 Section 1171. 102.18 (5) of the statutes is amended to read:

AB56,714,10 102.18 (5) If it appears to the division department 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 division department may, upon its own motion, with or without hearing, set aside the findings, order or award, or the division department may take that action upon application made within those 3 years. After an opportunity for hearing, the division 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 division department may reinstate the previous findings, order, or award.

AB56,1172 Section 1172. 102.18 (6) of the statutes is amended to read:

AB56,714,16 102.18 (6) In case of disease arising out of employment, the division department 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).

AB56,1173 Section 1173. 102.195 of the statutes is amended to read:

AB56,714,24 102.195 Employees confined in institutions; payment of benefits. In case an employee is adjudged mentally ill or incompetent or convicted of a felony, and is confined in a public institution and has wholly dependent upon the employee for support a person whose dependency is determined as if the employee were deceased, compensation payable during the period of the employee's confinement may be paid to the employee and the employee's dependents in such manner, for such time, and in such amount as the department or division by order provides.

AB56,1174 Section 1174. 102.22 (1) of the statutes is amended to read:

AB56,715,16 102.22 (1) If the employer or his or her insurer inexcusably delays in making the first payment that is due an injured employee for more than 30 days after the date on which the employee leaves work as a result of an injury and if the amount due is $500 or more, the payments as to which the delay is found shall be increased by 10 percent. If the employer or his or her insurer inexcusably delays in making the first payment that is due an injured employee for more than 14 days after the date on which the employee leaves work as a result of an injury, the payments as to which the delay is found may be increased by 10 percent. If the employer or his or her insurer inexcusably delays for any length of time in making any other payment that is due an injured employee, the payments as to which the delay is found may be increased by 10 percent. If the delay is chargeable to the employer and not to the insurer, s. 102.62 applies and the relative liability of the parties shall be fixed and discharged as provided in that section. The department or the division may also order the employer or insurance carrier to reimburse the employee for any finance charges, collection charges, or interest that the employee paid as a result of the inexcusable delay by the employer or insurance carrier.

AB56,1175 Section 1175. 102.22 (2) of the statutes is amended to read:

AB56,715,25 102.22 (2) If any sum that the department or the division orders to be paid is not paid when due, that sum shall bear interest at the rate of 10 percent per year. The state is liable for interest on awards issued against it under this chapter. The department or the division has jurisdiction to issue an award for payment of interest under this subsection at any time within one year after the date of its order or, if the order is appealed, within one year after final court determination. Interest awarded under this subsection becomes due from the date the examiner's order becomes final or from the date of a decision by the commission, whichever is later.

AB56,1176 Section 1176. 102.23 (2) of the statutes is amended to read:

AB56,716,5 102.23 (2) Upon the trial of an action for review of an order or award, the court shall disregard any irregularity or error of the commission, or the the department, or the division unless it is made to affirmatively appear that the plaintiff was damaged by that irregularity or error.

AB56,1177 Section 1177. 102.23 (3) of the statutes is amended to read:

AB56,716,9 102.23 (3) The record in any case shall be transmitted to the department or the division within 5 days after expiration of the time for appeal from the order or judgment of the court, unless an appeal is taken from that order or judgment.

AB56,1178 Section 1178. 102.23 (5) of the statutes is amended to read:

AB56,716,15 102.23 (5) When an action for review involves only the question of liability as between the employer and one or more insurance companies or as between several insurance companies, a party that has been ordered by the department, the division, the commission, or a court to pay compensation is not relieved from paying compensation as ordered.

AB56,1179 Section 1179. 102.24 (2) of the statutes is amended to read:

AB56,716,25 102.24 (2) After the commencement of an action to review any order or award of the commission, the parties may have the record remanded by the court for such time and under such condition as the parties may provide, for the purpose of having the department or the division act upon the question of approving or disapproving any settlement or compromise that the parties may desire to have so approved. If approved, the action shall be at an end and judgment may be entered upon the approval as upon an award. If not approved, the department or the division shall immediately return the record to the circuit court and the action shall proceed as if no remand had been made.

AB56,1180 Section 1180. 102.25 (1) of the statutes is amended to read:

AB56,717,13 102.25 (1) Any party aggrieved by a judgment entered upon the review of any order or award may appeal the judgment within the period specified in s. 808.04 (1). A trial court may not require the commission or any party to the action to execute, serve, or file an undertaking under s. 808.07 or to serve, or secure approval of, a transcript of the notes of the stenographic reporter or the tape of the recording machine. The state is a party aggrieved under this subsection if a judgment is entered upon the review confirming any order or award against the state. At any time before the case is set down for hearing in the court of appeals or the supreme court, the parties may have the record remanded by the court to the department or the division in the same manner and for the same purposes as provided for remanding from the circuit court to the department or the division under s. 102.24 (2).

AB56,1181 Section 1181. 102.26 (2) of the statutes is amended to read:

AB56,718,2 102.26 (2) Unless previously authorized by the department or the division, no fee may be charged or received for the enforcement or collection of any claim for compensation nor may any contract for that enforcement or collection be enforceable when that fee, inclusive of all taxable attorney fees paid or agreed to be paid for that enforcement or collection, exceeds 20 percent of the amount at which the claim is compromised or of the amount awarded, adjudged, or collected, except that in cases of admitted liability in which there is no dispute as to the amount of compensation due and in which no hearing or appeal is necessary, the fee charged may not exceed 10 percent, but not to exceed $250, of the amount at which the claim is compromised or of the amount awarded, adjudged, or collected. The limitation as to fees shall apply to the combined charges of attorneys, solicitors, representatives, and adjusters who knowingly combine their efforts toward the enforcement or collection of any compensation claim.

AB56,1182 Section 1182. 102.26 (3) (b) 1. of the statutes is amended to read:

AB56,718,7 102.26 (3) (b) 1. Subject to sub. (2), upon application of any interested party, the department or the division may fix the fee of the claimant's attorney or representative and provide in the award for that fee to be paid directly to the attorney or representative.

AB56,1183 Section 1183. 102.26 (3) (b) 3. of the statutes is amended to read:

AB56,718,16 102.26 (3) (b) 3. The claimant may request the insurer or self-insured employer to pay any compensation that is due the claimant by depositing the payment directly into an account maintained by the claimant at a financial institution. If the insurer or self-insured employer agrees to the request, the insurer or self-insured employer may deposit the payment by direct deposit, electronic funds transfer, or any other money transfer technique approved by the department or the division. The claimant may revoke a request under this subdivision at any time by providing appropriate written notice to the insurer or self-insured employer.

AB56,1184 Section 1184. 102.26 (4) of the statutes is amended to read:

AB56,718,22 102.26 (4) Any attorney or other person who charges or receives any fee in violation of this section may be required to forfeit double the amount retained by the attorney or other person, which forfeiture shall be collected by the state in an action in debt upon complaint of the department or the division. Out of the sum recovered the court shall direct payment to the injured party of the amount of the overcharge.

AB56,1185 Section 1185. 102.27 (2) (b) of the statutes is amended to read:

AB56,719,8 102.27 (2) (b) If a governmental unit provides public assistance under ch. 49 to pay medical costs or living expenses related to a claim under this chapter and if the governmental unit has given the parties to the claim written notice stating that the governmental unit provided the assistance and the cost of that assistance, the department or the division shall order the employer or insurance carrier owing compensation to reimburse that governmental unit for the amount of assistance the governmental unit provided or two-thirds of the amount of the award or payment remaining after deduction of attorney fees and any other fees or costs chargeable under ch. 102, whichever is less. The department shall comply with this paragraph when making payments under s. 102.81.

AB56,1186 Section 1186. 102.28 (3) (c) of the statutes is amended to read:

AB56,719,25 102.28 (3) (c) An employee who has signed a waiver under par. (a) 1. and an affidavit under par. (a) 2., who sustains an injury that, but for that waiver, the employer would be liable for under s. 102.03, who at the time of the injury was a member of a religious sect whose authorized representative has filed an affidavit under par. (a) 3. and an agreement under par. (a) 4., and who as a result of the injury becomes dependent on the religious sect for financial and medical assistance, or the employee's dependent, may request a hearing under s. 102.17 (1) to determine if the religious sect has provided the employee and his or her dependents with a standard of living and medical treatment that are reasonable when compared to the general standard of living and medical treatment for members of the religious sect. If, after hearing, the division department determines that the religious sect has not provided that standard of living or medical treatment, or both, the division department may order the religious sect to provide alternative benefits to that employee or his or her dependent, or both, in an amount that is reasonable under the circumstances, but not in excess of the benefits that the employee or dependent could have received under this chapter but for the waiver under par. (a) 1.

AB56,1187 Section 1187. 102.28 (4) (c) of the statutes is amended to read:

AB56,720,5 102.28 (4) (c) After a hearing under par. (b), or without a hearing if one is not requested, the division department may issue an order to an employer to cease operations on a finding that the employer is an uninsured employer. If no hearing is requested, the department may issue such an order.

AB56,1188 Section 1188. 102.29 (1) (b) (intro.) of the statutes is amended to read:

AB56,720,17 102.29 (1) (b) (intro.) If a party entitled to notice cannot be found, the department shall become the agent of that party for the giving of a notice as required in par. (a) and the notice, when given to the department, shall include an affidavit setting forth the facts, including the steps taken to locate that party. Each party shall have an equal voice in the prosecution of the claim, and any disputes arising shall be passed upon by the court before whom the case is pending, and if no action is pending, then by a court of record or by the department or the division. If notice is given as provided in par. (a), the liability of the tort-feasor shall be determined as to all parties having a right to make claim and, irrespective of whether or not all parties join in prosecuting the claim, the proceeds of the claim shall be divided as follows:

AB56,1189 Section 1189. 102.29 (1) (c) of the statutes is amended to read: