Worker's Compensation Advisory Council
AMENDMENTS TO THE WORKER'S COMPENSATION ACT
PLAIN LANGUAGE SUMMARY 2001 AB505 EFFECTIVE JANUARY 1, 2002
- Council on Worker's Compensation. This amendment clarifies that the secretary of the Department of Workforce Development may appoint an employee of the department to serve as chairperson for the Worker's Compensation Advisory Council. s.15.227(4), Stats.
- Workweek Defined. Creates s.102.01(2)(k), Stats., which defines workweek as a calendar week starting on Sunday and ending on Saturday.
- Employer Defined. This is a technical amendment, which deletes an obsolete reference to 1961 and modernizes the language. s.102.04(2), Stats.
- Employee Defined. Create s.102.07(7m), Stats., which provides that an employee, volunteer, member of an emergency management unit or a member of a regional emergency response team is an employee for worker's compensation purposes.
- Delete Sunset Provisions Related to Work-Experienced Students. The sunset provisions are deleted which allow public and private schools to voluntarily insure work-experience students if they do not earn wages from the work-site employer on which worker's compensation insurance premiums can be assessed. s.102.07(12m) and s.102.077(3), Stats.
- Permanent Partial Disability. The maximum benefit rates for
permanent partial disability are increased for a four-year period from
2002 through 2005. s.102.11(1), Stats.
Year Maximum PPD
- Temporary Total Disability and Permanent Total Disability. For a four year period beginning January 1, 2002 for each year the maximum benefit rates for temporary total disability and permanent total disability will be 110 percent of the state's average weekly earnings as determined under s. 108.05, Stats. s.102.11(1), Stats. With this amendment the maximum weekly wage for 2002 will be $970.50, resulting in a maximum weekly TTD benefit rate of $647.00.
- Overtime pay. Section 102.11(1)(a) is renumbered and amended to clarify that overtime and premium pay are not synonymous and that overtime is not used to calculate earnings under s.102.11(1)(a), but is used under the alternative computation in s.102.11(1)(d), Stats. s.102.11(1)(a)1, Stats.
- Workweek Defined. This amendment clarifies the Department's practice of using the employer's normal full-time scheduled workweek and not the days or hours actually worked by the injured employee in setting the average weekly wage. s.102.11(1)(a) 2 and 3.
- Full-time Workweek Presumptions. Create s.102.11(1)(a) 4 to codify rebuttable presumptions that the normal full-time workweek for flight attendants is 24 hours, 56 hours for fire fighters and not less than 40 hours for other employees. For established multi-week schedules with regular hours alternating between weeks the normal full-time workweek is the average number of hours worked per week under the multi-week schedule.
- Part-of-Class for Part-time Employees. Create s.102.11(1)(am) to define part-time employees who are part of a class. To be part of a class an employee must perform the same type of work at the same location, the scheduled working hours do not vary by more than five per week in the 13 weeks preceding the date of injury, at least 10 percent of the employer's workforce is doing the same type of work and a class must consist of more than one employee.
- Employee Statement. Creates s.102.123, Stats. which requires that when an employee provides the employer or insurance carrier a signed statement relating to the claim the employer or insurer must give a copy to the employee within a reasonable time. When the statement is recorded the employer or insurer must reduce the statement to writing after a request by the employee or his or her attorney or agent and provide a copy within a reasonable time after the statement is taken. The employer or insurer must make the actual recording available as an exhibit if a hearing on the claim is held. The employee's statement cannot be used in any manner in connection with the claim if the employer or insurer fails to comply.
- Fraud. This amendment deletes the requirement for the Department to file an annual report with the Governor and Legislature. s.102.125(2), Stats.
- Healthcare Fee Disputes. The sunset provision relating to certified databases for determining the reasonableness of healthcare providers fees is eliminated effective January 1, 2002. s.102.16(2)(d), Stats.
- Necessity of Treatment Disputes. This amendment clarifies that the Department has the option of obtaining an expert opinion (peer review) before resolving a case by a finding of fact order or by a compromise settlement. s.102.16(2m)(c) Stats.
- Substitution of "Any" For "Either". This is purely a technical amendment, which substitutes the term "any" for "either" in these four statutes. The drafter also made some other minor changes to modernize the language to those sections. s.102.17(1)(c) and (e), Stats.; s.102.20, Stats. and s.102.23(1)(d), Stats.
- Safety Investigations. This amendment provides that the Department has the responsibility and authority to conduct, contract for, or otherwise secure the services of safety inspectors to conduct investigations involving work-related injuries. s.102.17(1)(h), Stats.
- Elimination of the 12 Year Statute of Limitations for Certain Injuries. There will no longer be a statute of limitations for injuries resulting in the loss or total impairment of a hand or any part of the rest of an arm proximal to the hand, or of a foot, or any part of the rest of the leg proximal to the foot, any loss of vision, any permanent brain injury or any injury causing the need for a total or partial knee or hip replacement. Claims involving these injuries will be paid by the Work Injury Benefit Supplemental Fund. s.102.17(4), Stats. and s.102.66(1) and (2), Stats.
- Prospective Award for Medical Treatment. This amendment authorizes Administrative Law Judges in appropriate cases to award payment for reasonable and necessary medical treatment on a prospective basis. s.102.18(1)(b), Stats.
- Uniform 21-Day Payment Standard. Create s. 102.18(1)(e), Stats., which requires payment for all orders, including findings of fact orders issued after hearings as well as orders approving settlements, to be paid within 21 days after being mailed.
- Voluntary Direct deposit of Benefits. This amendment authorizes insurance carriers and self-insured employers to pay compensation directly into an employee's account at a financial institution at his or her request. s.102.26(3)(b), Stats.
- Exclusive Remedy. The sunset on the exclusive remedy provision, which immunizes work-site employers from tort actions resulting from injuries to work-experienced students, is eliminated. s.102.29(8), Stats.
- Rating Bureau Records. This amendment prohibits the release of information by the Department related to information or records maintained by the Wisconsin Compensation Rating Bureau (WCRB) without authorization from the WCRB. s.102.31(8), Stats.; s.102.33(2)(a), and (c), Stats. and s. 626.32(1)(a), Stats.
- Continuing Liability. This is a technical amendment, which changed the word "uninsured" to "insured". The drafter made some other changes to modernize the language in this section. s.102.32(5), Stats.
- Prompt Payment of Permanent Partial Disability. This amendment provides that payment for permanent partial disability must begin within 30 days after the healing period and accrues and becomes payable during intermittent periods of temporary disability. In cases disputed on the extent of disability self-insured employers and insurance carriers have 30 additional days to give notice of scheduling the employee for an examination and a 90 day limit beyond that date to begin payment of any compensation for permanent partial disability which is due. s.102.32(6) Stats. and s.102.59(1), Stats.
- "Rule" Substituted for "General Order". These technical amendments include the term rule because this is the modern term which is used. The term "general order" is retained because it is cross-referenced in other sections of the statutes. The term "form" was deleted because it is unnecessarily restrictive and the term "format" was substituted because the Department allows and encourages submission of required information in various formats, including e-commerce. s.102.37, Stats.; s.102.38, Stats.; s.102.39, Stats.; s.102.57, Stats. and s.102.58, Stats.
- Incidental Compensation. This amendment modifies the doctrine in Spencer v. DILHR, 55 Wis.2d 525 (1972) in response to the recent case Honthaners Restaurants, Inc. v. LIRC, 240 Wis.2d 234 (Ct. App.2000). The intention is to permit self-insured employers and insurance carriers to use an examining practitioner's opinion to defeat liability for compensation for indemnity in an otherwise conceded case that is a consequence of non-invasive unnecessary treatment even if the employee underwent the unnecessary treatment in good faith. s.102.42(1m), Stats.
- Limit Liability for Retraining if Employer Offers "Suitable Employment". With this amendment a self-insured employer or insurance carrier is not liable for retraining if the employer at the time of the injury offers suitable employment to the employee. Suitable employment is defined as work within the employee's physical and mental restrictions and paying at least 90 percent of the pre-injury wage. s.102.43(5) Stats.; s.102.61(1) Stats. and s.102.61(1g), Stats.
- Offset By Expanded Wage. This amendment clarifies that compensation for temporary disability will be offset by wages received from other employment held by the employee when the injury occurred against the expanded wage rather than the actual wage. s.102.43(6)(b), Stats.
- Supplemental Benefits. This amendment increases the maximum supplemental benefit rate from $150.00 to $202.00 per week. s.102.44(1), Stats.
- Correct Reference to Proper Department. The Division
of Vocational Rehabilitation is now a division of the Department of
Workforce Development. These technical amendments delete the reference
to the Department of Health and Family Services and reflect that the
Division of Vocational Rehabilitation is now in the Department of