SB673: Bill Text

Analysis by the Legislative Reference Bureau

This bill makes various changes to the worker's compensation law, as administered by the Department of Workforce Development and the Division of Hearings and Appeals in the Department of Administration (DHA).

Payment of benefits; other payments

Liability for public safety officers

This bill makes changes to the conditions of liability for worker's compensation benefits for a law enforcement officer or a fire fighter (public safety officer) who is diagnosed with post-traumatic stress disorder.

The bill provides that if a public safety officer is diagnosed with post-traumatic stress disorder by a licensed psychiatrist or psychologist and the mental injury that resulted in that diagnosis is not accompanied by a physical injury, that public safety officer can bring a claim for worker's compensation benefits if the conditions of liability are proven by a preponderance of the evidence and the mental injury is not the result of a good-faith employment action by the person's employer. Under the bill, such an injured public safety employee is not required to demonstrate a diagnosis based on unusual stress of greater dimensions than the day-to-day emotional strain and tension experienced by all employees as required under School District No. 1 v. DILHR, 62 Wis. 2d 370, 215 N.W.2d 373 (1974).

The bill also limits liability for treatment for a mental injury that is compensable under the bill's provisions to no more than 32 weeks after the injury is first reported.

Payments in cases of injuries resulting in death

Current law provides that, in each case of an injury resulting in death leaving no person dependent for support or leaving one or more persons partially dependent for support, the employer or insurer must pay into the work injury supplemental benefit fund (WISBF) the amount of the death benefit otherwise payable. This bill does the following:

1. Allows such amounts due to be paid in advance of when they would otherwise be due, including as a single, lump-sum payment. If an employer or insurer makes an advance or lump-sum payment, the bill requires DWD to give the employer or the insurer an interest credit, computed as otherwise provided under current law. Current law requires, in the case of a death leaving no dependents, that the payments be made in five equal annual installments.

2. Provides that, in the case of a violation of an employer policy against drug or alcohol use that is causal to an employee's injury resulting in death who leaves no person dependent for support or leaving one or more persons partially dependent for support, no payment is required to be made to WISBF. Current law provides that, in the case of such a violation, then neither the employee nor the employee's dependents may receive any compensation under the worker's compensation law for that injury, other than costs for treating the injury, but does not exempt the employer or insurer from the payment to WISBF.

Furnishing of billing statements

This bill requires a health care provider to furnish to the representative or agent of a worker's compensation insurer a complete billing statement for treatment of an injury for which an employee claims compensation upon request. The bill provides that a health care provider may not charge for the copy of the billing statement and that if the provider does not comply with the request within 30 days, the insurer is not liable to the provider for payment for the services that were billed on the requested statement.

Payment of proceeds of claims against third parties

Current law provides that when an employee sustains a work injury or dies as a result of a work injury and the employee, the employee's personal representative, or other person entitled to bring action maintains an action in tort against a third party for the injury or death, the proceeds of the claim are to be divided pursuant to a formula detailed under current law. Under that formula, after deducting the reasonable cost of collection, one-third of the remainder is in all cases to be paid to the injured employee, personal representative, or other person entitled. Current law also provides that if an injured employee or dependent receives compensation from the employee's employer or a third party in such an action and the employee received payments from DWD due to the employer being an uninsured employer, the employee or dependent must reimburse DWD for the full amount up to the amount recovered from the third party.

This bill modifies the latter provision such that if an injured employee or dependent receives compensation from the employee's employer or a third party in such an action and the employee received payments from DWD due to the employer being an uninsured employer, the employee or dependent must reimburse DWD in accordance with the formula described above.

Coverage; liability

Leased employees

Under current law, employee leasing companies are generally liable for injuries to their leased employees under the worker's compensation law. This bill provides that a client of an employee leasing company may instead assume the liability for leased employees under an employee leasing agreement. The bill also provides that if a client terminates or otherwise does not provide worker's compensation insurance coverage for the leased employees, the employee leasing company is liable for injuries to those leased employees under the worker's compensation law.

Employers subject to worker's compensation law

Under current law, every person who usually employs three or more employees for services performed in this state is subject to the worker's compensation law. This bill provides that every person who at any time employs three or more employees for services performed in this state is subject to the worker's compensation law and specifies that a person becomes subject to that law on the day on which the person employs three or more employees for services performed in this state.

Statute of limitations

This bill clarifies that for worker's compensation claims the statute of limitations applies to an individual's employer, the employer's insurance company, and any other named party.

Long-term care providers; clarification

The bill makes clarifications regarding individuals who perform services for persons receiving long-term care benefits under certain long-term care programs and who do not otherwise have worker's compensation coverage for those services to confirm that they are considered to be employees, for worker's compensation purposes, of the entities providing financial management services for the persons receiving the benefits.

Program administration

Authority to conduct hearings

Under current law, DWD performs various administrative and adjudicatory functions relating to worker's compensation, except that the adjudicatory functions of DWD relating to disputed worker's compensation claims are performed by DHA. This bill transfers the adjudicatory functions of DHA relating to disputed worker's compensation claims to DWD.

Confidential records; disclosure to certain agencies

Under current law, subject to a number of exceptions, certain records of DWD, DHA, or the Labor and Industry Review Commission that reveal information about injured employees are confidential and not subject to disclosure under the public records law or a subpoena. The bill creates another exception for records requested by the Department of Health Services, a county department of social services, or a county department of human services, if 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.

Disclosure of records

This bill conforms state law to the exemption from federal medical privacy laws for administration of worker's compensation claims. The federal privacy regulations allow a health care provider to disclose without authorization from the patient protected health information as authorized by and to the extent necessary to comply with worker's compensation laws.

Other changes

The bill makes various other changes regarding the administration of the worker's compensation law, including 1) adjustments to appropriations and position authority; and 2) changes regarding the financing of the worker's compensation program, including creating a separate appropriation to pay for certain reimbursements for supplemental benefit payments.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB673,1 Section 1 . 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated: - See PDF for table - See PDF for table - See PDF for table - See PDF for table

SB673,2 Section 2 . 20.445 (1) (ra) of the statutes is amended to read:

SB673,7,4 20.445 (1) (ra) Worker's compensation operations fund; administration. From the worker's compensation operations fund, the amounts in the schedule for the administration of the worker's compensation program by the department, for assistance to the department of justice in investigating and prosecuting fraudulent activity related to worker's compensation, for transfer to the uninsured employers fund under s. 102.81 (1) (c), and for transfer to the appropriation accounts under par. (rp) and s. 20.427 (1) (ra). All moneys received under ss. 102.28 (2) (b) and 102.75 (1) shall be credited to this appropriation account. From this appropriation, an amount not to exceed $5,000 may be expended each fiscal year for payment of expenses for travel and research by the council on worker's compensation, an amount not to exceed $500,000 may be transferred in each fiscal year to the uninsured employers fund under s. 102.81 (1) (c), the amount in the schedule under par. (rp) shall be transferred to the appropriation account under par. (rp), and the amount in the schedule under s. 20.427 (1) (ra) shall be transferred to the appropriation account under s. 20.427 (1) (ra).

SB673,3 Section 3 . 20.445 (1) (rc) of the statutes is created to read:

SB673,7,10 20.445 (1) (rc) Worker's compensation operations fund; supplemental benefits. From the worker's compensation operations fund, the amounts in the schedule for providing reimbursement to insurance carriers paying supplemental benefits under s. 102.44 (1) (c). All moneys received under s. 102.75 (1g) shall be credited to this appropriation account.

SB673,4 Section 4 . 20.445 (1) (sm) of the statutes is amended to read:

SB673,7,18 20.445 (1) (sm) Uninsured employers fund; payments. From the uninsured employers fund, a sum sufficient to make all moneys received from sources identified under s. 102.80 (1m) for the purpose of making the payments under s. 102.81 (1) and to obtain reinsurance under s. 102.81 (2). No moneys may be expended or encumbered under this paragraph until the first day of the first July beginning after the day that the secretary of workforce development files the certificate under s. 102.80 (3) (a).

SB673,5 Section 5. 40.65 (2) (a) of the statutes is amended to read:

SB673,8,9 40.65 (2) (a) This paragraph applies to participants who first apply for benefits before May 3, 1988. Any person desiring a benefit under this section must apply to the department of workforce development, which department shall determine whether the applicant is eligible to receive the benefit and the participant's monthly salary. Appeals from the eligibility decision shall follow the procedures under ss. 102.16 to 102.26. If it is determined that an applicant is eligible, the department of workforce development shall notify the department of employee trust funds and shall certify the applicant's monthly salary. If at the time of application for benefits an applicant is still employed in any capacity by the employer in whose employ the disabling injury occurred or disease was contracted, that continued employment shall not affect that applicant's right to have his or her eligibility to receive those benefits determined in proceedings before the division of hearings and appeals in the department of administration department of workforce development or the labor and industry review commission or in proceedings in the courts. The department of workforce development may promulgate rules needed to administer this paragraph.

SB673,6 Section 6. 40.65 (2) (b) 3. of the statutes is amended to read:

SB673,8,15 40.65 (2) (b) 3. The department shall determine whether or not the applicant is eligible for benefits under this section on the basis of the evidence in subd. 2. An applicant may appeal a determination under this subdivision to the division of hearings and appeals in the department of administration department of workforce development.

SB673,7 Section 7. 40.65 (2) (b) 4. of the statutes is amended to read:

SB673,8,19 40.65 (2) (b) 4. In hearing an appeal under subd. 3., the division of hearings and appeals in the department of administration department of workforce development shall follow the procedures under ss. 102.16 to 102.26.

SB673,8 Section 8 . 46.275 (4m) of the statutes is amended to read:

SB673,9,2 46.275 (4m) Worker's compensation coverage. An individual who is performing services for a person receiving long-term care benefits under this section on a self-directed basis and who does not otherwise have worker's compensation coverage for those services is considered, for purposes of worker's compensation coverage, to be an employee of the entity that is providing financial management services for that person.

SB673,9 Section 9 . 46.277 (3r) of the statutes is amended to read:

SB673,9,9 46.277 (3r) Worker's compensation coverage. An individual who is performing services for a person receiving long-term care benefits under this section on a self-directed basis and who does not otherwise have worker's compensation coverage for those services is considered, for purposes of worker's compensation coverage, to be an employee of the entity that is providing financial management services for that person.

SB673,10 Section 10 . 46.281 (1k) of the statutes is amended to read:

SB673,9,16 46.281 (1k) Worker's compensation coverage. An individual who is performing services for a person receiving the Family Care benefit, or benefits under Family Care Partnership, on a self-directed basis and who does not otherwise have worker's compensation coverage for those services is considered, for purposes of worker's compensation coverage, to be an employee of the entity that is providing financial management services for that person.

SB673,11 Section 11 . 46.2897 (3) of the statutes is amended to read:

SB673,9,22 46.2897 (3) Worker's compensation coverage. An individual who is performing services for a person participating in the self-directed services option and who does not otherwise have worker's compensation coverage for those services is considered, for purposes of worker's compensation coverage, to be an employee of the entity that is providing financial management services for that person.

SB673,12 Section 12 . 46.995 (3) of the statutes is amended to read:

SB673,9,25 46.995 (3) An individual who is performing services for a person receiving long-term care benefits under any children's long-term support waiver program on a self-directed basis and who does not otherwise have worker's compensation coverage for those services is considered, for purposes of worker's compensation coverage, to be an employee of the entity that is providing financial management services for that person.

SB673,13 Section 13. 102.01 (2) (ad) of the statutes is repealed.

SB673,14 Section 14. 102.01 (2) (ar) of the statutes is repealed.

SB673,15 Section 15. 102.01 (2) (dm) of the statutes is amended to read:

SB673,10,10 102.01 (2) (dm) “Order" means any decision, rule, regulation, direction, requirement, or standard of the department or the division, or any other determination arrived at or decision made by the department or the division.

SB673,16 Section 16 . 102.04 (1) (b) 1. of the statutes is amended to read:

SB673,10,17 102.04 (1) (b) 1. Every person who usually at any time employs 3 or more employees for services performed in this state, whether in one or more trades, businesses, professions, or occupations, and whether in one or more locations. A person who employs 3 or more employees for services performed in this state becomes subject to this chapter on the day on which the person employs 3 or more such employees.

SB673,17 Section 17 . 102.04 (1) (b) 2. of the statutes is amended to read:

SB673,10,22 102.04 (1) (b) 2. Every person who usually employs less fewer than 3 employees, provided the person has paid wages of $500 or more in any calendar quarter for services performed in this state. Such employer a person shall become subject to this chapter on the 10th day of the month next succeeding such quarter.

SB673,18 Section 18 . 102.04 (2g) of the statutes is created to read:

SB673,11,3 102.04 (2g) Liability under s. 102.03 with respect to a leased employee, as defined in s. 102.315 (1) (g), shall be determined as provided in s. 102.315 (2) or (2m) (c), whichever is applicable.

SB673,19 Section 19 . 102.04 (2m) of the statutes is amended to read:

SB673,11,15 102.04 (2m) A Except as otherwise provided in an employee leasing agreement that meets the requirements of s. 102.315 (2m), a temporary help agency is the employer of an employee whom the temporary help agency has placed with or leased to another employer that compensates the temporary help agency for the employee's services. A Except as provided in s. 102.315 (2m) (c), a temporary help agency is liable under s. 102.03 for all compensation and other payments payable under this chapter to or with respect to that employee, including any payments required under s. 102.16 (3), 102.18 (1) (b) 3. or (bp), 102.22 (1), 102.35 (3), 102.57, or 102.60. Except as permitted under s. 102.29, a temporary help agency may not seek or receive reimbursement from another employer for any payments made as a result of that liability.

SB673,20 Section 20. 102.04 (2r) (b) of the statutes is amended to read:

SB673,11,20 102.04 (2r) (b) The franchisor has been found by the department or the division to have exercised a type or degree of control over the franchisee or the franchisee's employees that is not customarily exercised by a franchisor for the purpose of protecting the franchisor's trademarks and brand.

SB673,21 Section 21. 102.07 (8) (c) of the statutes is amended to read:

SB673,11,25 102.07 (8) (c) The division department may not admit in evidence any state or federal law, regulation, or document granting operating authority , or a license when determining whether an independent contractor meets the conditions specified in par. (b) 1. or 3.

SB673,22 Section 22. 102.11 (1) (am) 1. of the statutes is amended to read:

SB673,12,8 102.11 (1) (am) 1. The employee is a member of a class of employees that does the same type of work at the same location and, in the case of an employee in the service of the state, is employed in the same office, department, independent agency, authority, institution, association, society, or other body in state government or, if the department or the division determines appropriate, in the same subunit of an office, department, independent agency, authority, institution, association, society, or other body in state government.

SB673,23 Section 23. 102.12 of the statutes is amended to read:

SB673,13,3 102.12 Notice of injury, exception, laches. No claim for compensation may be maintained unless, within 30 days after the occurrence of the injury or within 30 days after the employee knew or ought to have known the nature of his or her disability and its relation to the employment, actual notice was received by the employer or by an officer, manager or designated representative of an employer. If no representative has been designated by posters placed in one or more conspicuous places where notices to employees are customarily posted, then notice received by any superior is sufficient. Absence of notice does not bar recovery if it is found that the employer was not misled by that absence. Regardless of whether notice was received, if no payment of compensation, other than medical treatment or burial expense, is made, and if no application is filed with the department within 2 years after the date of the injury or death or the date the employee or his or her dependent knew or ought to have known the nature of the disability and its relation to the employment, the right to compensation for the injury or death is barred, except that the right to compensation is not barred if the employer knew or should have known, within the 2-year period, that the employee had sustained the injury on which the claim is based. Issuance of notice of a hearing on the motion of the department or the division has the same effect for the purposes of this section as the filing of an application. This section does not affect any claim barred under s. 102.17 (4).

SB673,24 Section 24. 102.13 (1) (c) of the statutes is amended to read:

SB673,13,12 102.13 (1) (c) So long as the employee, after a written request of the employer or insurer that complies with par. (b), refuses to submit to or in any way obstructs the examination, the employee's right to begin or maintain any proceeding for the collection of compensation is suspended, except as provided in sub. (4). If the employee refuses to submit to the examination after direction by the department, the division, or an examiner, or in any way obstructs the examination, the employee's right to the weekly indemnity that accrues and becomes payable during the period of that refusal or obstruction, is barred, except as provided in sub. (4).

SB673,25 Section 25. 102.13 (1) (d) 2. of the statutes is amended to read:

SB673,13,18 102.13 (1) (d) 2. Any physician, chiropractor, psychologist, dentist, physician assistant, advanced practice nurse prescriber, or podiatrist who attended a worker's compensation claimant for any condition or complaint reasonably related to the condition for which the claimant claims compensation may be required to testify before the division department when the division department so directs.

SB673,26 Section 26. 102.13 (1) (d) 3. of the statutes is amended to read:

SB673,14,2 102.13 (1) (d) 3. Notwithstanding any statutory provisions except par. (e), any physician, chiropractor, psychologist, dentist, physician assistant, advanced practice nurse prescriber, or podiatrist attending a worker's compensation claimant for any condition or complaint reasonably related to the condition for which the claimant claims compensation may furnish to the employee, employer, worker's compensation insurer, or department, or division information and reports relative to a compensation claim.

SB673,27 Section 27. 102.13 (1) (f) of the statutes is amended to read:

SB673,14,6 102.13 (1) (f) If an employee claims compensation under s. 102.81 (1), the department or the division may require the employee to submit to physical or vocational examinations under this subsection.