SB59: Bill Text

SB59,720,17 102.29 (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:

SB59,1189 Section 1189. 102.29 (1) (c) of the statutes is amended to read:

SB59,720,24 102.29 (1) (c) If both the employee or the employee's personal representative or other person entitled to bring action, and the employer, compensation insurer, or department, join in the pressing of said claim and are represented by counsel, the attorney fees allowed as a part of the costs of collection shall be, unless otherwise agreed upon, divided between the attorneys for those parties as directed by the court or by the department or the division.

SB59,1190 Section 1190. 102.29 (1) (d) of the statutes is amended to read:

SB59,721,4 102.29 (1) (d) A settlement of a 3rd-party claim shall be void unless the settlement and the distribution of the proceeds of the settlement are approved by the court before whom the action is pending or, if no action is pending, then by a court of record or by the department or the division.

SB59,1191 Section 1191. 102.30 (7) (a) of the statutes is amended to read:

SB59,721,11 102.30 (7) (a) The department or the division may order direct reimbursement out of the proceeds payable under this chapter for payments made under a nonindustrial insurance policy covering the same disability and expenses compensable under s. 102.42 when the claimant consents or when it is established that the payments under the nonindustrial insurance policy were improper. No attorney fee is due with respect to that reimbursement.

SB59,1192 Section 1192. 102.32 (1m) (intro.) of the statutes is amended to read:

SB59,721,17 102.32 (1m) (intro.) 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 or the division, be discharged from, or compelled to guarantee, future compensation payments by doing any of the following:

SB59,1193 Section 1193. 102.32 (1m) (a) of the statutes is amended to read:

SB59,721,22 102.32 (1m) (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 or the division.

SB59,1194 Section 1194. 102.32 (1m) (c) of the statutes is amended to read:

SB59,721,25 102.32 (1m) (c) Making payment in gross upon a 5 percent interest discount basis to be approved by the department or the division.

SB59,1195 Section 1195. 102.32 (1m) (d) of the statutes is amended to read:

SB59,722,15 102.32 (1m) (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 or the division 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 or the division. If the employer or insurer is unable or fails to immediately procure the bond, the employer or insurer, in lieu of procuring the bond, shall deposit with a credit union, savings bank, savings and loan association, bank, or trust company designated by the department or the division the maximum amount that may reasonably become payable in those cases, to be determined by the department or the division at amounts consistent with the extent of the injuries and the law. The bonds and deposits may be reduced only to satisfy claims and may be withdrawn only after the claims which they are to guarantee are fully satisfied or liquidated under par. (a), (b), or (c).

SB59,1196 Section 1196. 102.32 (5) of the statutes is amended to read:

SB59,722,23 102.32 (5) Any insured employer may, in the discretion of the department or the division, compel the insurer to discharge, or to guarantee payment of, the employer's liabilities in any case described in sub. (1m) and by that discharge or guarantee release the employer from liability for compensation in that case, except that if for any reason a bond furnished or deposit made under sub. (1m) (d) does not fully protect the beneficiary of the bond or deposit, the compensation insurer or insured employer, as the case may be, shall still be liable to that beneficiary.

SB59,1197 Section 1197. 102.32 (6m) of the statutes is amended to read:

SB59,723,8 102.32 (6m) The department or the division may direct an advance on a payment of unaccrued compensation for permanent disability or death benefits if the department or the division 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 or the division 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.

SB59,1198 Section 1198. 102.32 (7) of the statutes is amended to read:

SB59,723,13 102.32 (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 division department that the interests of the injured employee will be conserved by the lump sum settlement.

SB59,1199 Section 1199. 102.33 (1) of the statutes is amended to read:

SB59,723,19 102.33 (1) The department and the division shall print and furnish free to any employer or employee any blank forms that are necessary to facilitate efficient administration of this chapter. The department and the division shall keep any record books or records that are necessary for the proper and efficient administration of this chapter.

SB59,1200 Section 1200. 102.33 (2) (a) of the statutes is amended to read:

SB59,723,23 102.33 (2) (a) Except as provided in pars. (b) and (c), the records of the department, the division, and the commission , related to the administration of this chapter are subject to inspection and copying under s. 19.35 (1).

SB59,1201 Section 1201. 102.33 (2) (b) (intro.) of the statutes is amended to read:

SB59,724,13 102.33 (2) (b) (intro.) Except as provided in this paragraph and par. (d), a record maintained by the department, the division, or 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 , the division, or the 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:

SB59,1202 Section 1202. 102.33 (2) (b) 1. of the statutes is amended to read:

SB59,724,19 102.33 (2) (b) 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, the division, or the commission.

SB59,1203 Section 1203. 102.33 (2) (b) 2. of the statutes is amended to read:

SB59,725,7 102.33 (2) (b) 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, the division, 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, the division, 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, the division, or the commission.

SB59,1204 Section 1204. 102.33 (2) (b) 4. of the statutes is amended to read:

SB59,725,10 102.33 (2) (b) 4. A court of competent jurisdiction in this state orders the department, the division, or the commission to release the record.

SB59,1205 Section 1205. 102.33 (2) (c) of the statutes is amended to read:

SB59,725,17 102.33 (2) (c) A record maintained by the department , the division, 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.

SB59,1206 Section 1206. 102.33 (2) (d) 2. of the statutes is amended to read:

SB59,726,9 102.33 (2) (d) 2. The department, the division, 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, the division, or the 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, the division, or the 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.

SB59,1207 Section 1207. 102.35 (3) of the statutes is amended to read:

SB59,726,19 102.35 (3) Any employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment, when suitable employment is available within the employee's physical and mental limitations, upon order of the department or the division, has exclusive liability to pay to the employee, in addition to other benefits, 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.

SB59,1208 Section 1208. 102.42 (1m) of the statutes is amended to read:

SB59,727,5 102.42 (1m) Liability for unnecessary treatment. If an employee who has sustained a compensable injury undertakes in good faith invasive treatment that is generally medically acceptable, but that is unnecessary, the employer shall pay disability indemnity for all disability incurred as a result of that treatment. An employer is not liable for disability indemnity for any disability incurred as a result of any unnecessary treatment undertaken in good faith that is noninvasive or not medically acceptable. This subsection applies to all findings that an employee has sustained a compensable injury, whether the finding results from a hearing, the default of a party, or a compromise or stipulation confirmed by the department or the division.

SB59,1209 Section 1209. 102.42 (6) of the statutes is amended to read:

SB59,727,18 102.42 (6) Treatment rejected by employee. Unless the employee has elected Christian Science treatment in lieu of medical, surgical, dental, or hospital treatment, no compensation shall be payable for the death or disability of an employee, if the death is caused, or insofar as the disability may be aggravated, caused, or continued by an unreasonable refusal or neglect to submit to or follow any competent and reasonable medical, surgical, or dental treatment or, in the case of tuberculosis, by refusal or neglect to submit to or follow hospital or medical treatment when found by the department or the division to be necessary. The right to compensation accruing during a period of refusal or neglect to submit to or follow hospital or medical treatment when found by the department or the division to be necessary in the case of tuberculosis shall be barred, irrespective of whether disability was aggravated, caused, or continued by that refusal or neglect.

SB59,1210 Section 1210. 102.42 (8) of the statutes is amended to read:

SB59,728,2 102.42 (8) Award to state employee. Whenever the department or the division makes an award on behalf of a state employee, the department or the division shall file duplicate copies of the award with the subunit of the department of administration responsible for risk management. Upon receipt of the copies of the award, the department of administration shall promptly issue a voucher in payment of the award from the proper appropriation under s. 20.865 (1) (fm), (kr) or (ur), and shall transmit one copy of the voucher and the award to the officer, department, or agency by whom the affected employee is employed.

SB59,1211 Section 1211. 102.425 (4m) (a) of the statutes is amended to read:

SB59,728,9 102.425 (4m) (a) The department has jurisdiction under this subsection, the department and the division have jurisdiction under s. and ss. 102.16 (1m) (c), and the division has jurisdiction under s. 102.17 to resolve a dispute between a pharmacist or practitioner and an employer or insurer over the reasonableness of the amount charged for a prescription drug dispensed under sub. (2) for outpatient use by an injured employee who claims benefits under this chapter.

SB59,1212 Section 1212. 102.425 (4m) (b) of the statutes is amended to read:

SB59,728,20 102.425 (4m) (b) An employer or insurer that disputes the reasonableness of the amount charged for a prescription drug dispensed under sub. (2) for outpatient use by an injured employee or the department or division under sub. (4) (b) or s. 102.16 (1m) (c) or 102.18 (1) (bg) 3. shall provide, within 30 days after receiving a completed bill for the prescription drug, reasonable written notice to the pharmacist or practitioner that the charge is being disputed. After receiving reasonable written notice under this paragraph or under sub. (4) (b) or s. 102.16 (1m) (c) or 102.18 (1) (bg) 3. that a prescription drug charge is being disputed, a pharmacist or practitioner may not collect the disputed charge from, or bring an action for collection of the disputed charge against, the employee who received the prescription drug.

SB59,1213 Section 1213. 102.43 (5) (b) of the statutes is amended to read:

SB59,729,7 102.43 (5) (b) Except as provided in s. 102.61 (1g), temporary disability shall also include such period as the employee may be receiving instruction under s. 102.61 (1) or (1m). Temporary disability on account of receiving instruction under s. 102.61 (1) or (1m), and not otherwise resulting from the injury, shall not be in excess of 80 weeks. That 80-week limitation does not apply to temporary disability benefits under this section, the cost of tuition, fees, books, travel, or maintenance under s. 102.61 (1), or the cost of private rehabilitation counseling or rehabilitative training under s. 102.61 (1m) if the department or the division determines that additional training is warranted. The necessity for additional training as authorized by the department or the division for any employee shall be subject to periodic review and reevaluation.

SB59,1214 Section 1214. 102.43 (9) (e) of the statutes is amended to read:

SB59,729,14 102.43 (9) (e) The employee's employment with the employer has been suspended or terminated due to misconduct, as defined in s. 108.04 (5), by the employee connected with the employee's work or substantial fault, as defined for failing to notify his or her employer of absenteeism or tardiness that becomes excessive as provided in s. 108.04 (5g) (a), by the employee connected with the employee's work.

SB59,1215 Section 1215. 102.44 (2) of the statutes is amended to read:

SB59,729,21 102.44 (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 division department shall find the facts.

SB59,1216 Section 1216. 102.44 (6) (b) of the statutes is amended to read:

SB59,730,3 102.44 (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 division department may reopen any award and make a redetermination taking into account loss of earning capacity.

SB59,1217 Section 1217. 102.475 (6) of the statutes is amended to read:

SB59,730,7 102.475 (6) Proof. In administering this section the department or the division may require reasonable proof of birth, marriage, domestic partnership under ch. 770, relationship, or dependency.

SB59,1218 Section 1218. 102.48 (1) of the statutes is amended to read:

SB59,730,14 102.48 (1) An unestranged surviving parent or parents to whose support the deceased has contributed less than $500 in the 52 weeks next preceding the injury causing death shall receive a death benefit of $6,500. If the parents are not living together, the department or the division shall divide this sum in such proportion as the department or division considers to be just, considering their ages and other facts bearing on dependency.

SB59,1219 Section 1219. 102.48 (2) of the statutes is amended to read:

SB59,731,4 102.48 (2) In all other cases the death benefit shall be such sum as the department or the division determines to represent fairly and justly the aid to support which the dependent might reasonably have anticipated from the deceased employee but for the injury. To establish anticipation of support and dependency, it shall not be essential that the deceased employee made any contribution to support. The aggregate benefits in that case shall not exceed twice the average annual earnings of the deceased or 4 times the contributions of the deceased to the support of his or her dependents during the year immediately preceding the deceased employee's death, whichever amount is the greater. In no event shall the aggregate benefits in that case exceed the amount that would accrue to a person who is solely and wholly dependent. When there is more than one partial dependent the weekly benefit shall be apportioned according to their relative dependency. The term “support" as used in ss. 102.42 to 102.63 shall include contributions to the capital fund of the dependents for their necessary comfort.

SB59,1220 Section 1220. 102.48 (3) of the statutes is amended to read:

SB59,731,9 102.48 (3) Except as otherwise provided, a death benefit, other than burial expenses, shall be paid in weekly installments corresponding in amount to two-thirds of the weekly earnings of the employee, until otherwise ordered by the department or the division.

SB59,1221 Section 1221. 102.49 (3) of the statutes is amended to read:

SB59,731,19 102.49 (3) If the employee leaves a spouse or domestic partner under ch. 770 wholly dependent and also a child by a former marriage, domestic partnership under ch. 770, or adoption, likewise wholly dependent, aggregate benefits shall be the same in amount as if the child were the child of the surviving spouse or partner, and the entire benefit shall be apportioned to the dependents in the amounts that the department or the division determines to be just, considering the ages of the dependents and other factors bearing on dependency. The benefit awarded to the surviving spouse or partner shall not exceed 4 times the average annual earnings of the deceased employee.

SB59,1222 Section 1222. 102.49 (6) of the statutes is amended to read:

SB59,732,2 102.49 (6) The department or the division may award the additional benefits payable under this section to the surviving parent of the child, to the child's guardian, or to such other person, bank, or trust company for the child's use as may be found best calculated to conserve the interests of the child. If the child dies while benefits are still payable, there shall be paid the reasonable expense for burial, not exceeding $1,500.

SB59,1223 Section 1223. 102.51 (3) of the statutes is amended to read:

SB59,732,8 102.51 (3) Division among dependents. If there is more than one person wholly or partially dependent on a deceased employee, the death benefit shall be divided between those dependents in such proportion as the department or the division determines to be just, considering their ages and other facts bearing on their dependency.

SB59,1224 Section 1224. 102.51 (4) of the statutes is amended to read:

SB59,732,22 102.51 (4) Dependency as of the date of death. Questions as to who is a dependent and the extent of his or her dependency shall be determined as of the date of the death of the employee, and the dependent's right to any death benefit becomes fixed at that time, regardless of any subsequent change in conditions. The death benefit shall be directly recoverable by and payable to the dependents entitled to the death benefit or their legal guardians or trustees. In case of the death of a dependent whose right to a death benefit has become fixed, so much of the benefit as is unpaid is payable to the dependent's personal representatives in gross, unless the department or the division determines that the unpaid benefit shall be reassigned under sub. (6) and paid to any other dependent who is physically or mentally incapacitated or a minor. For purposes of this subsection, a child of the employee who is born after the death of the employee is considered to be a dependent as of the date of death.

SB59,1225 Section 1225. 102.51 (6) of the statutes is amended to read:

SB59,733,4 102.51 (6) Division among dependents. Benefits accruing to a minor dependent child may be awarded to either parent in the discretion of the department or the division. Notwithstanding sub. (1), the department or the division may reassign the death benefit as between a surviving spouse or a domestic partner under ch. 770 and any children specified in sub. (1) and s. 102.49 in accordance with their respective needs for the death benefit.

SB59,1226 Section 1226. 102.55 (3) of the statutes is amended to read:

SB59,733,13 102.55 (3) For all other injuries to the members of the body or its faculties that are specified in the schedule under s. 102.52 resulting in permanent disability, though the member is not actually severed or the faculty is not totally lost, compensation shall bear such relation to the compensation named in the schedule as the disability bears to the disability named in the schedule. Indemnity in those cases shall be determined by allowing weekly indemnity during the healing period resulting from the injury and the percentage of permanent disability resulting after the healing period as found by the department or the division.

SB59,1227 Section 1227. 102.555 (12) (a) of the statutes is amended to read:

SB59,733,19 102.555 (12) (a) An employer, or the department, or the division is not liable for the expense of any examination or test for hearing loss, any evaluation of such an exam or test, any medical treatment for improving or restoring hearing, or any hearing aid to relieve the effect of hearing loss unless it is determined that compensation for occupational deafness is payable under sub. (3), (4), or (11).

SB59,1228 Section 1228. 102.56 (1) of the statutes is amended to read:

SB59,734,8 102.56 (1) Subject to sub. (2), if an employee is so permanently disfigured as to occasion potential wage loss due to the disfigurement, the department or the division may allow such sum as the department or the division considers just as compensation for the disfigurement, not exceeding the employee's average annual earnings. In determining the potential for wage loss due to the disfigurement and the sum awarded, the department or the division shall take into account the age, education, training, and previous experience and earnings of the employee, the employee's present occupation and earnings, and likelihood of future suitable occupational change. Consideration for disfigurement allowance is confined to those areas of the body that are exposed in the normal course of employment. The department or the division shall also take into account the appearance of the disfigurement, its location, and the likelihood of its exposure in occupations for which the employee is suited.

SB59,1229 Section 1229. 102.56 (2) of the statutes is amended to read:

SB59,734,14 102.56 (2) If an employee who claims compensation under sub. (1) returns to work for the employer who employed the employee at the time of the injury, or is offered employment with that employer, at the same or a higher wage, the department or the division may not allow that compensation unless the employee suffers an actual wage loss due to the disfigurement.

SB59,1230 Section 1230. 102.565 (1) of the statutes is amended to read:

SB59,735,9 102.565 (1) When, as a result of exposure in the course of employment over a period of time to toxic or hazardous substances or conditions, an employee performing work that is subject to this chapter develops any clinically observable abnormality or condition that, on competent medical opinion, predisposes or renders the employee in any manner differentially susceptible to disability to such an extent that it is inadvisable for the employee to continue employment involving that exposure, is discharged from or ceases to continue the employment, and suffers wage loss by reason of that discharge from, or cessation of, employment, the department or the division may allow such sum as the department or the division considers just as compensation for that wage loss, not exceeding $13,000. If a nondisabling condition may also be caused by toxic or hazardous exposure not related to employment and if the employee has a history of that exposure, compensation as provided under this section or any other remedy for loss of earning capacity shall not be allowed. If the employee is discharged from employment prior to a finding by the department or the division that it is inadvisable for the employee to continue in that employment and if it is reasonably probable that continued exposure would result in disability, the liability of the employer who discharges the employee is primary, and the liability of the employer's insurer is secondary, under the same procedure and to the same effect as provided by s. 102.62.

SB59,1231 Section 1231. 102.565 (2) of the statutes is amended to read:

SB59,735,24 102.565 (2) Upon application of any employer or employee, the department or the division may direct any employee of the employer or an employee who, in the course of his or her employment, has been exposed to toxic or hazardous substances or conditions to submit to examination by one or more physicians appointed by the department or the division to determine whether the employee has developed any abnormality or condition under sub. (1), and the degree of that abnormality or condition. The cost of the medical examination shall be borne by the person making application. The physician conducting the examination shall submit the results of the examination to the department or the division, which shall submit copies of the reports to the employer and employee, who shall have an opportunity to rebut the reports if a request to submit a rebuttal is made to the department or the division within 10 days after the department or the division mails the report to the parties. The department or the division shall make its findings as to whether it is inadvisable for the employee to continue in his or her employment.

SB59,1232 Section 1232. 102.565 (3) of the statutes is amended to read: