The bill makes several minor technical changes to clarify existing law, extends several sunset provisions, and makes a procedural change relating to the appointment of Advisory Council members. The effective date of these changes is January 1, 2000.
1. Council on Workers Compensation and Self-Insurers Council. The bill authorizes the Secretary of the Department of Workforce Development (DWD) to appoint the members to these councils rather than the Labor and Industry Review Commission (LIRC). See sections 1, 2 and 18 of the bill.
Comment. The current statute is a carryover from the 1970s when a 3-member commission administered the Department. The councils advise DWD and the Legislature, not LIRC. In practice, LIRC has always appointed members recommended by the Department Secretary. LIRC and the Secretary recommended the change.
2. Deputy Administrator of the Worker's Compensation Division. The bill deletes s. 102.01(2)(b), Stats., which reads: "(b) Examiner includes the deputy administrator of the workers compensation division of the department." See section 3 of the bill.
Comment. The Deputy Administrator recommended the change to resolve a minor conflict in Chapter 102. Section 102.18(2), Stats., requires examiners to be attorneys. The Deputy was not an attorney and did not hold hearings. The provision is an obsolete carryover from the era in which the Deputy Administrator was also an attorney.
3. Withdrawal from coverage. Currently, an employer may withdraw from worker's compensation insurance coverage if the employer does not pay $500 in wages in "any calendar quarter in a calendar year." The bill clarifies that the word "any" means every calendar quarter (all four), not simply one calendar quarter. See sections 4 and 18 of the bill.
Comment. Wisconsin courts say that the statutory meaning of the word "any" depends upon the context in which it is used. The courts say that "any" can mean "all" or "only one" depending on the context. The current statute is not clear standing alone. However, the current language was part of a Department proposal adopted in 1969 after 10 years of discussion. The Advisory Council files leading up to the 1969 amendment clearly show that the word "any" was intended to include every calendar quarter, not simply one calendar quarter. While the Department has consistently applied this interpretation from 1969 to 1999, the statutory ambiguity was recently brought to the Departments attention.
4. Diving team members. The bill clarifies that for worker's compensation purposes members of a legally organized diving team are employees of the team or the county or municipality in which they were organized. The bill also requires DWD to pay death benefits of not less than $50,000 to the dependents of a diving team member who dies as a result of an injury sustained while performing diving services. See sections 5, 6, 12-16, and 18 of the bill.
Comment. Volunteer divers often perform a valuable public service by searching rivers and lakes at the request of local law enforcement officers. While there has never been a hearing on the question, the Departments interpretation of current law is that the divers would qualify as employees or as members of a legally organized rescue squad eligible for worker's compensation. This bill removes any ambiguity. The bill clarifies that divers would receive the same benefits that are provided to volunteer firefighters, legally organized rescue squads, law enforcement officers, correctional officers, national guard members, state defense force members and emergency management employees.
5. Sunset provisions extended. The bill extends provisions for another two years (to January 1, 2002) to allow schools to provide worker's compensation coverage for work-study students who do not receive wages from the work-site employer. If the school declines, the work-site employer is responsible for coverage. This is the third time the sunset provision has been extended. It is rarely used. See sections 7, 8 and 11 of the bill.
The bill also continues the dispute-resolution process for resolving medical fee disputes for another two years (to July 1, 2002). This is the fourth time the sunset provision has been extended. See section 9 of the bill.
6. Petitions for review of a worker's compensation decision. A technical reading of current law requires LIRC to dismiss a petition for review "which is not timely filed unless the petition shows probably good cause that the reason for failure to timely file was beyond the petitioners control ." There are often cases where the petitioner expected the filing to be timely when it was mailed, and therefore, the petition itself has no explanation of why the petition arrived at LIRC late. The bill substitutes the word "petitioner" for "petition." This clarifies that a petitioner has an opportunity to explain after filing a late petition why the petition was late. See section 10 of the bill.
Comment. The change codifies LIRCs current practice and was recommended by LIRC.
7. Uninsured Employers Fund (UEF). The bill changes the word "insured" to "uninsured" in a section relating to the UEF citation process. See section 17 of the bill.
Comment. This corrects a typographical error. The citation procedure in this section is limited to actions for recovering a forfeiture under sections of the law that relate only to uninsured employers.
Richard D. Smith, Director
Bureau of Legal Services
Worker's Compensation Division
Department of Workforce Development
October 13, 1999