SB673: Bill Text

SB673,143 Section 143. 102.48 (2) of the statutes is amended to read:

SB673,61,5 102.48 (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.

SB673,144 Section 144. 102.48 (3) of the statutes is amended to read:

SB673,61,10 102.48 (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.

SB673,145 Section 145. 102.49 (3) of the statutes is amended to read:

SB673,61,20 102.49 (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.

SB673,146 Section 146 . 102.49 (5) (b) of the statutes is amended to read:

SB673,62,3 102.49 (5) (b) In addition to the payment required under par. (a), in each case of injury resulting in death leaving no person dependent for support, the employer or insurer shall, except as provided in s. 102.58 (2), pay into the state treasury the amount of the death benefit otherwise payable, minus any payment made under s. 102.48 (1),. The payment under this paragraph shall, except as provided in par. (cm), be made in 5 equal annual installments, with the first installment due as of the date of death.

SB673,147 Section 147 . 102.49 (5) (c) of the statutes is amended to read:

SB673,62,10 102.49 (5) (c) In addition to the payment required under par. (a), in each case of injury resulting in death, leaving one or more persons partially dependent for support, the employer or insurer shall, except as provided in s. 102.58 (2), pay into the state treasury an amount which, when added to the sums paid or to be paid on account of partial dependency and under s. 102.48 (1), shall equal the death benefit payable to a person wholly dependent.

SB673,148 Section 148 . 102.49 (5) (cm) of the statutes is created to read:

SB673,62,17 102.49 (5) (cm) The employer or insurer may make advance payments of amounts owed under par. (b) or (c), up to and including a lump sum payment of the entire amount owed. If an employer or insurer makes an advance payment, the department shall give the employer or the insurer an interest credit against its liability for payments made in excess of that required under par. (b) or (c). The credit shall be computed at 5 percent.

SB673,149 Section 149 . 102.49 (5) (e) of the statutes is amended to read:

SB673,62,20 102.49 (5) (e) The adjustments in liability provided in ss. 102.57, 102.58 (1), and 102.60 do not apply to payments made under this section.

SB673,150 Section 150. 102.49 (6) of the statutes is amended to read:

SB673,63,2 102.49 (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.

SB673,151 Section 151. 102.51 (3) of the statutes is amended to read:

SB673,63,8 102.51 (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.

SB673,152 Section 152. 102.51 (4) of the statutes is amended to read:

SB673,63,22 102.51 (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.

SB673,153 Section 153. 102.51 (6) of the statutes is amended to read:

SB673,64,4 102.51 (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.

SB673,154 Section 154. 102.55 (3) of the statutes is amended to read:

SB673,64,13 102.55 (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.

SB673,155 Section 155. 102.555 (12) (a) of the statutes is amended to read:

SB673,64,19 102.555 (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).

SB673,156 Section 156. 102.56 (1) of the statutes is amended to read:

SB673,65,8 102.56 (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.

SB673,157 Section 157. 102.56 (2) of the statutes is amended to read:

SB673,65,14 102.56 (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.

SB673,158 Section 158. 102.565 (1) of the statutes is amended to read:

SB673,66,9 102.565 (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.

SB673,159 Section 159. 102.565 (2) of the statutes is amended to read:

SB673,66,24 102.565 (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.

SB673,160 Section 160. 102.565 (3) of the statutes is amended to read:

SB673,67,4 102.565 (3) If, after direction by the commission, or any member of the commission, the department, the division, or an examiner, an employee refuses to submit to an examination or in any way obstructs the examination, the employee's right to compensation under this section shall be barred.

SB673,161 Section 161 . 102.58 of the statutes is renumbered 102.58 (1) and amended to read:

SB673,67,14 102.58 (1) If injury is caused by the failure of the employee to use safety devices that are provided in accordance with any statute, rule, or order of the department of safety and professional services and that are adequately maintained, and the use of which is reasonably enforced by the employer, or if injury results from the employee's failure to obey any reasonable rule adopted and reasonably enforced by the employer for the safety of the employee and of which the employee has notice, the compensation and death benefit provided in this chapter shall be reduced by 15 percent, but the total reduction may not exceed $15,000.

SB673,67,21 (2) If an employee violates the employer's policy concerning employee drug or alcohol use and is injured, and if that violation is causal to the employee's injury, no compensation or death benefits shall be payable to the injured employee or a dependent of the injured employee and no payment under s. 102.49 (5) (b) or (c) shall be payable. Nothing in this section subsection shall reduce or eliminate an employer's liability for incidental compensation under s. 102.42 (1) to (8) or drug treatment under s. 102.425.

SB673,162 Section 162. 102.61 (1g) (c) of the statutes is amended to read:

SB673,68,15 102.61 (1g) (c) On receiving notice that he or she is eligible to receive vocational rehabilitation services under 29 USC 701 to 797a, an employee shall provide the employer with a written report from a physician, chiropractor, psychologist, or podiatrist stating the employee's permanent work restrictions. Within 60 days after receiving that report, the employer shall provide to the employee in writing an offer of suitable employment, a statement that the employer has no suitable employment for the employee, or a report from a physician, chiropractor, psychologist, or podiatrist showing that the permanent work restrictions provided by the employee's practitioner are in dispute and documentation showing that the difference in work restrictions would materially affect either the employer's ability to provide suitable employment or a vocational rehabilitation counselor's ability to recommend a rehabilitative training program. If the employer and employee cannot resolve the dispute within 30 days after the employee receives the employer's report and documentation, the employer or employee may request a hearing before the division department to determine the employee's work restrictions. Within 30 days after the division department determines the employee's work restrictions, the employer shall provide to the employee in writing an offer of suitable employment or a statement that the employer has no suitable employment for the employee.

SB673,163 Section 163. 102.61 (1m) (c) of the statutes is amended to read:

SB673,69,2 102.61 (1m) (c) The employer or insurance carrier shall pay the reasonable cost of any services provided for an employee by a private rehabilitation counselor under par. (a) and, subject to the conditions and limitations specified in sub. (1r) (a) to (c) and by rule, if the private rehabilitation counselor determines that rehabilitative training is necessary, the reasonable cost of the rehabilitative training program recommended by that counselor, including the cost of tuition, fees, books, maintenance, and travel at the same rate as is provided for state officers and employees under s. 20.916 (8). Notwithstanding that the department or the division may authorize under s. 102.43 (5) (b) a rehabilitative training program that lasts longer than 80 weeks, a rehabilitative training program that lasts 80 weeks or less is presumed to be reasonable.

SB673,164 Section 164. 102.61 (2) of the statutes is amended to read:

SB673,69,10 102.61 (2) The division department, the commission, and the courts shall determine the rights and liabilities of the parties under this section in like manner and with like effect as the division department, the commission, and the courts determine other issues under this chapter. A determination under this subsection may include a determination based on the evidence regarding the cost or scope of the services provided by a private rehabilitation counselor under sub. (1m) (a) or the cost or reasonableness of a rehabilitative training program developed under sub. (1m) (a).

SB673,165 Section 165. 102.62 of the statutes is amended to read:

SB673,70,2 102.62 Primary and secondary liability; unchangeable. In case of liability under s. 102.57 or 102.60, the liability of the employer shall be primary and the liability of the insurance carrier shall be secondary. If proceedings are had before the division department for the recovery of that liability, the division department shall set forth in its award the amount and order of liability as provided in this section. Execution shall not be issued against the insurance carrier to satisfy any judgment covering that liability until execution has first been issued against the employer and has been returned unsatisfied as to any part of that liability. Any provision in any insurance policy undertaking to guarantee primary liability or to avoid secondary liability for a liability under s. 102.57 or 102.60 is void. If the employer has been adjudged bankrupt or has made an assignment for the benefit of creditors, if the employer, other than an individual, has gone out of business or has been dissolved, or if the employer is a corporation and its charter has been forfeited or revoked, the insurer shall be liable for the payment of that liability without judgment or execution against the employer, but without altering the primary liability of the employer.

SB673,166 Section 166. 102.64 (1) of the statutes is amended to read:

SB673,70,15 102.64 (1) Upon request of the department of administration, a representative of the department of justice shall represent the state in cases involving payment into or out of the state treasury under s. 20.865 (1) (fm), (kr), or (ur) or 102.29. The department of justice, after giving notice to the department of administration, may compromise the amount of those payments but such compromises shall be subject to review by the department or the division. If the spouse or domestic partner under ch. 770 of the deceased employee compromises his or her claim for a primary death benefit, the claim of the children of the employee under s. 102.49 shall be compromised on the same proportional basis, subject to approval by the department or the division. If the persons entitled to compensation on the basis of total dependency under s. 102.51 (1) compromise their claim, payments under s. 102.49 (5) (a) shall be compromised on the same proportional basis.

SB673,167 Section 167. 102.64 (2) of the statutes is amended to read:

SB673,71,2 102.64 (2) Upon request of the department of administration, the attorney general shall appear on behalf of the state in proceedings upon claims for compensation against the state. Except as provided in s. 102.65 (3), the department of justice shall represent the interests of the state in proceedings under s. 102.44 (1), 102.49, 102.59, 102.60, or 102.66. The department of justice may compromise claims in those proceedings, but the compromises are subject to review by the department or the division. Costs incurred by the department of justice in prosecuting or defending any claim for payment into or out of the work injury supplemental benefit fund under s. 102.65, including expert witness and witness fees but not including attorney fees or attorney travel expenses for services performed under this subsection, shall be paid from the work injury supplemental benefit fund.

SB673,168 Section 168. 102.65 (3) of the statutes is amended to read:

SB673,71,11 102.65 (3) The department of workforce development may retain the department of administration to process, investigate, and pay claims under ss. 102.44 (1), 102.49, 102.59, and 102.66. If retained by the department of workforce development, the department of administration may compromise a claim processed by that department, but a compromise made by that department is subject to review by the department of workforce development or the division. The department of workforce development shall pay for the services retained under this subsection from the appropriation account under s. 20.445 (1) (t).

SB673,169 Section 169. 102.66 (1) of the statutes is amended to read:

SB673,72,2 102.66 (1) Subject to any certificate filed under s. 102.65 (4), if there is an otherwise meritorious claim for occupational disease, or for a traumatic injury described in s. 102.17 (4) in which the date of injury or death or last payment of compensation, other than for treatment or burial expenses, is before April 1, 2006, and if the claim is barred solely by the statute of limitations under s. 102.17 (4), the department or the division may, in lieu of worker's compensation benefits, direct payment from the work injury supplemental benefit fund under s. 102.65 of such compensation and such medical expenses as would otherwise be due, based on the date of injury, to or on behalf of the injured employee. The benefits shall be supplemental, to the extent of compensation liability, to any disability or medical benefits payable from any group insurance policy whose premium is paid in whole or in part by any employer, or under any federal insurance or benefit program providing disability or medical benefits. Death benefits payable under any such group policy do not limit the benefits payable under this section.

SB673,170 Section 170. 102.75 (1) of the statutes is amended to read:

SB673,72,18 102.75 (1) The department shall assess upon and collect from each licensed worker's compensation insurance carrier and from each employer exempted under s. 102.28 (2) (b) or (bm) from the duty to carry insurance under s. 102.28 (2) (a) the proportion of total costs and expenses incurred by the council on worker's compensation for travel and research and by the department, the division, and the commission in the administration of this chapter for the current fiscal year, plus any deficiencies in collections and anticipated costs from the previous fiscal year, that the total indemnity paid or payable under this chapter by each such carrier and exempt employer in worker's compensation cases initially closed during the preceding calendar year, other than for increased, double, or treble compensation, bore to the total indemnity paid in cases closed the previous calendar year under this chapter by all carriers and exempt employers, other than for increased, double, or treble compensation. The council on worker's compensation, the division, and the commission shall annually certify any costs and expenses for worker's compensation activities to the department at such time as the secretary requires.

SB673,171 Section 171 . 102.75 (1m) of the statutes is amended to read:

SB673,72,24 102.75 (1m) The moneys collected under subs. (1) and (1g) and under ss. 102.28 (2) and 102.31 (7), together with all accrued interest, shall constitute a separate nonlapsible fund designated as the worker's compensation operations fund. Moneys in the fund may be expended only as provided in ss. 20.427 (1) (ra) and 20.445 (1) (ra), (rb), (rc), and (rp) and may not be used for any other purpose of the state.

SB673,172 Section 172 . 102.80 (1) (d) of the statutes is amended to read:

SB673,73,2 102.80 (1) (d) Amounts collected from employees or dependents of employees under s. 102.81 (4) (b) and (c).

SB673,173 Section 173 . 102.81 (4) (b) (intro.) of the statutes is amended to read:

SB673,73,6 102.81 (4) (b) (intro.) If the employee or dependent receives compensation from the employee's employer or a 3rd party liable under s. 102.29, pay to the department the lesser of the following:

SB673,174 Section 174 . 102.81 (4) (b) 2. of the statutes is amended to read:

SB673,73,9 102.81 (4) (b) 2. The amount after attorney fees and costs that the employee or dependent received from the employer or 3rd party.

SB673,175 Section 175 . 102.81 (4) (c) of the statutes is created to read:

SB673,73,13 102.81 (4) (c) If the employee or dependent receives compensation from a 3rd party that is liable under s. 102.29, pay to the department the proceeds as specified under s. 102.29 (1) (b).

SB673,176 Section 176 . 102.81 (5) of the statutes is amended to read:

SB673,73,16 102.81 (5) The department of justice may bring an action to collect the a payment under sub. (4) (b) or (c).

SB673,177 Section 177 . 102.82 (1) of the statutes is amended to read:

SB673,74,2 102.82 (1) Except as provided in sub. (2) (ar), an uninsured employer shall reimburse the department for any payment made under s. 102.81 (1) to or on behalf of an employee of the uninsured employer or to an employee's dependents and for any expenses paid by the department in administering the claim of the employee or dependents, less amounts repaid by the employee or dependents under s. 102.81 (4) (b) or (c). The reimbursement owed under this subsection is due within 30 days after the date on which the department notifies the uninsured employer that the reimbursement is owed. Interest shall accrue on amounts not paid when due at the rate of 1 percent per month.

SB673,178 Section 178 . 146.82 (2) (a) 3m. of the statutes is created to read:

SB673,74,5 146.82 (2) (a) 3m. To the extent the records are necessary to process, adjudicate, or review claims under the worker's compensation system or to comply with ch. 102.

SB673,179 Section 179. 227.43 (1) (bm) of the statutes is repealed.

SB673,180 Section 180. 227.43 (2) (am) of the statutes is repealed.

SB673,181 Section 181. 227.43 (3) (bm) of the statutes is repealed.

SB673,182 Section 182. 227.43 (4) (bm) of the statutes is repealed.

SB673,183 Section 183 . Nonstatutory provisions.

SB673,74,15 (1) Worker's compensation insurance; rate approval; notice. The commissioner of insurance shall submit to the legislative reference bureau for publication in the Wisconsin Administrative Register a notice of the effective date of new rates for worker's compensation insurance first approved by the commissioner after the effective date of this subsection.

SB673,74,16 (2) Transfer of worker's compensation adjudicatory functions.

SB673,74,21 (a) Assets and liabilities. On the effective date of this paragraph, the assets and liabilities of the division of hearings and appeals in the department of administration that are primarily related to worker's compensation matters, as determined by the secretary of administration, shall become the assets and liabilities of the department of workforce development.

SB673,75,2 (b) Positions and employees. On the effective date of this paragraph, all positions and all incumbent employees holding those positions in the division of hearings and appeals in the department of administration performing duties that are primarily related to worker's compensation matters, as determined by the secretary of administration, are transferred to the department of workforce development.

SB673,75,8 (c) Employee status. Employees transferred under par. (b) have all the rights and the same status under ch. 230 in the department of workforce development that they enjoyed in the division of hearings and appeals in the department of administration immediately before the transfer. Notwithstanding s. 230.28 (4), no employee so transferred who has attained permanent status in class is required to serve a probationary period.

SB673,75,13 (d) Tangible personal property. On the effective date of this paragraph, all tangible personal property, including records, of the the division of hearings and appeals in the department of administration that is primarily related to worker's compensation matters, as determined by the secretary of administration, is transferred to the department of workforce development.

SB673,75,20 (e) Pending matters. Any worker's compensation matter pending with the division of hearings and appeals in the department of administration on the effective date of this paragraph, as determined by the secretary of administration, is transferred to the department of workforce development. All materials submitted to or actions taken by the division of hearings and appeals in the department of administration with respect to the pending matter are considered as having been submitted to or taken by the department of workforce development.

SB673,76,2 (f) Contracts. All contracts entered into by the division of hearings and appeals in the department of administration in effect on the effective date of this paragraph that are primarily related to worker's compensation matters, as determined by the secretary of administration, remain in effect and are transferred to the department of workforce development. The department of workforce development shall carry out any obligations under those contracts unless modified or rescinded by the department of workforce development to the extent allowed under the contract.

SB673,76,12 (g) Rules and orders. All rules promulgated by the division of hearings and appeals in the department of administration in effect on the effective date of this paragraph that are primarily related to worker's compensation matters, as determined by the secretary of administration, remain in effect until their specified expiration dates or until amended or repealed by the department of workforce development. All orders issued by the division of hearings and appeals in the department of administration in effect on the effective date of this paragraph that are primarily related to worker's compensation matters, as determined by the secretary of administration, remain in effect until their specified expiration dates or until modified or rescinded by the department of workforce development.

SB673,76,16 (3) Position transfer. The authorized FTE positions for the department of workforce development are increased by 35.5 SEG positions to be funded from the appropriation under s. 20.445 (1) (ra), for performing duties related to conducting hearings under ch. 102.

SB673,184 Section 184 . Fiscal changes.