The Wisconsin Supreme Court recently held, however, in Society Insurance v.
LIRC
, 2010 WI 68, 326 Wis. 2d 444, that retroactive application, that is, application
to injuries occurring before April 1, 2006, of the provision holding employers or
insurers liable for benefits or treatment expenses for a traumatic injury becoming
due 12 years after the date of injury or after the date that compensation was last paid,
whichever is later, constitutes an unconstitutional impairment of contract and
violation of due process rights. Accordingly, this bill provides that the WISB fund,
rather than the employer or insurer, is liable for such benefits or treatment expenses
only if the date of injury or last payment of compensation, other than for treatment
or burial expenses, whichever is later, is before April 1, 2006.
Third-party liability. Under current law, worker's compensation is the
exclusive remedy for an employee who is injured while performing services growing
out of and incidental to his or her employment, except that, subject to certain
exceptions, an injured employee may claim worker's compensation from his or her
employer and bring an action in tort against a third party for damages by reason of
the injury. Current law also permits an employer or insurer that has paid or is
obligated to pay worker's compensation for an injury to bring an action in tort against
a third party and permits DWD to bring such an action, if DWD has paid or is
obligated to pay a claim for an injury from the uninsured employer's fund. When a
third party is found liable for damages by reason of an injury, the employer, insurer,
or, if applicable, the uninsured employers fund is entitled to reimbursement from the
proceeds collected from the third party for any worker's compensation paid to the
injured employee.
This bill permits DWD to bring an action in tort against a third party for
damages by reason of an injury for which DWD has paid or is obligated to pay a claim
from the WISB fund and entitles the WISB fund to reimbursement from the proceeds
collected from the third party for any payments made to an injured employee from
that fund.
Reimbursement of supplemental benefits. Under current law, an injured
employee who is receiving worker's compensation for permanent total disability or

continuous temporary total disability resulting from an injury that occurred before
January 1, 2001, is entitled to receive supplemental benefits that in the first instance
are payable by the employer or insurer. The employer or insurer then is entitled to
reimbursement from the WISB fund for the supplemental benefits paid. This bill
requires an employer or insurer that has paid supplemental benefits to file a claim
for reimbursement with DWD by no later than 12 months after the end of the year
in which the supplemental benefits were paid in order to receive reimbursement
from the WISB fund for the supplemental benefits paid.
Second injury. Under current law, if an employee who has permanent partial
disability that would entitle the employee to 200 weeks of worker's compensation
incurs further permanent disability that entitles the employee to 200 weeks of
worker's compensation as a result of a second injury, the employee is entitled to
additional compensation from the WISB fund after the end of the period for which
compensation for permanent disability as a result of the second injury is payable by
the employer or insurer. That additional compensation is equivalent to the amount
that would be payable for the previous disability or the amount that is payable for
the further disability resulting from the second injury, whichever is less.
This bill permits an employee with such permanent partial disability who
incurs such further disability as a result of a second injury to receive that additional
compensation from the WISB fund only if the employee has not already received
compensation from the WISB fund as a result of a second injury.
Surcharges. Current law requires employers that are subject to the worker's
compensation law to keep records of all accidents causing death or disability of an
employee while performing services growing out of and incidental to the employee's
employment, requires insurers and self-insured employers to keep records of all
payments made under the worker's compensation law, and requires reports based on
those records to be furnished to DWD at the times and in the manner as DWD may
require by rule or general order. An employer or insurer that fails to keep those
records or to make those reports is subject to a surcharge of not less than $10 nor
more than $100 for each offense, which must be deposited in the WISB fund.
Current law provides that such a surcharge is due within 90 days after the date
on which notice of the surcharge is mailed to the employer or insurer. This bill
provides that such a surcharge is due within 30 days after that date.
Claims processing. Under current law, DOJ is required to defend claims
against the WISB fund. This bill permits DWD to retain the Department of
Administration (DOA) to process, investigate, and pay claims for payments from the
WISB fund. If retained by DWD, DOA may compromise a claim that it processes,
subject to review by DWD.
Adequacy of fund balance. Finally, with respect to the WISB fund, the bill
provides that if the secretary of workforce development determines that the expected
ultimate losses to the WISB fund on known claims exceed 85 percent of the cash
balance in that fund and that there is a reasonable likelihood that the cash balance
in that fund may become inadequate to fund all claims against the fund, the
secretary must file with the secretary of administration a certificate attesting that
the cash balance in that fund is likely to become inadequate to fund those claims and

specifying: 1) that payment of those claims will be made as provided in a schedule
that DWD must promulgate by rule; 2) a date after which payment of those claims
will be reduced; or 3) a date after which no new claims will be paid.
Hearings and procedures
Final practitioner's report. Under current law, if an injured employee has
a period of temporary disability of more than three weeks or a permanent disability
or has undergone surgery to treat an injury, other than surgery to correct a hernia,
the employer or insurer must submit to DWD a final treating practitioner's report.
This bill also requires that report to be submitted when an injured employer sustains
an eye injury requiring medical treatment on three or more occasions off the
employer's premises. The bill, however, prohibits DWD from requiring submission
of that report when the employer or insurer denies the employee's claim for
compensation and the employee does not contest that denial.
Program administration
Health service fee disputes. Under current law, if a health service provider,
injured employee, insurer, or employer submits to DWD a dispute over the
reasonableness of a health service fee charged by the health service provider for
services provided to the injured employee, DWD must determine the reasonableness
of the disputed fee by comparing the disputed fee to the mean fee for the procedure
for which the disputed fee was charged, as shown by data from a database certified
by DWD. If the disputed fee is at or below the mean fee, plus 1.4 standard deviations
from that mean, DWD must determine that the disputed fee is reasonable and order
the fee to be paid. If the disputed fee is above the mean fee, plus 1.4 standard
deviations from that mean, DWD must determine that the disputed fee is
unreasonable and order that a reasonable fee be paid, unless the health service
provider proves that a higher fee is justified. This bill lowers the standard deviations
used to determine the reasonableness of a disputed health service fee to 1.2 standard
deviations from the mean.
The bill also requires DWD to conduct an audit of the databases certified by the
DWD. If the audit is not commenced by the first day of the seventh month beginning
after the effective date of the bill: 1) the maximum weekly compensation rate for
permanent partial disability is lowered from $322 to $317 for injuries occurring on
or after January 1, 2013; and 2) the standard deviation used to determine the
reasonableness of a disputed health service fee is increased from 1.2 standard
deviations from the mean to 1.3 standard deviations from the mean beginning on
January 1, 2013.
Study of funding for permanent total disability increases. Under current
law, the amount of the weekly indemnity for permanent total disability that is
payable to an injured employee is determined as of the date of injury. An injured
employee who is receiving compensation for permanent total disability resulting
from an injury that occurred before January 1, 2001, however, is also entitled to
receive certain supplemental benefits from the employer or insurer or, in certain
cases, from the WISB fund.
This bill requires the secretary of workforce development to create a committee
to study methods of funding the cost of providing regular, periodic increases in the

weekly indemnity for permanent total disability, if legislation providing for those
increases were to be enacted. The study must include methods of funding the cost
of providing those increases for injured employees receiving that indemnity on the
day before the effective date of that legislation.
For further information see the state 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:
SB409, s. 1 1Section 1. 16.865 (4) of the statutes is amended to read:
SB409,6,62 16.865 (4) Manage the state employees' worker's compensation program and
3the statewide self-funded programs to protect the state from losses of and damage
4to state property and liability and, if retained by the department of workforce
5development under s. 102.65 (3), process, investigate, and pay claims under ss.
6102.44 (1), 102.49, 102.59, and 102.66 as provided in s. 102.65 (3)
.
SB409, s. 2 7Section 2. 20.445 (1) (t) of the statutes is amended to read:
SB409,6,128 20.445 (1) (t) Work injury supplemental benefit fund. All moneys paid into the
9work injury supplemental benefit fund under ss. 102.35 (1), 102.47, 102.49, 102.59,
10102.60, and 102.75 (2), to be used for the discharge of liabilities payable under ss.
11102.44 (1), 102.49, 102.59, 102.63, 102.64 (2), and 102.66 and for the retention of
12services under s. 102.65 (3)
.
SB409, s. 3 13Section 3 . 102.03 (4) of the statutes is amended to read:
SB409,7,214 102.03 (4) The right to compensation and the amount of the compensation shall
15in all cases be determined in accordance with the provisions of law in effect as of the
16date of the injury except as to employees whose rate of compensation is changed as
17provided in ss. 102.43 (7) and or 102.44 (1) and or (5) or, before the first day of the
1825th month beginning after the effective date of this subsection .... [LRB inserts
19date], as provided in s. 102.43 (5) (c)
and employees who are eligible to receive private

1rehabilitative counseling and rehabilitative training under s. 102.61 (1m) and except
2as provided in s. 102.555 (12) (b).
SB409, s. 4 3Section 4. 102.11 (1) (intro.) of the statutes is amended to read:
SB409,7,204 102.11 (1) (intro.) The average weekly earnings for temporary disability,
5permanent total disability, or death benefits for injury in each calendar year on or
6after January 1, 1982, shall be not less than $30 nor more than the wage rate that
7results in a maximum compensation rate of 110 percent of the state's average weekly
8earnings as determined under s. 108.05 as of June 30 of the previous year. The
9average weekly earnings for permanent partial disability shall be not less than $30
10and, for permanent partial disability for injuries occurring on or after May 6, 2010,
11and before January 1, 2011, not more than $438, resulting in a maximum
12compensation rate of $292, and, for permanent partial disability for injuries
13occurring on or after January 1, 2011, not more than $453, resulting in a maximum
14compensation rate of $302
the effective date of this subsection .... [LRB inserts date],
15and before January 1, 2013, not more than $468, resulting in a maximum
16compensation rate of $312, and, for permanent partial disability for injuries
17occurring on or after January 1, 2013, not more than $483, resulting in a maximum
18compensation rate of $322, except as provided in 2011 Wisconsin Act .... (this act),
19section 30 (2) (a )
. Between such limits the average weekly earnings shall be
20determined as follows:
SB409, s. 5 21Section 5. 102.13 (2) (c) of the statutes is amended to read:
SB409,8,1122 102.13 (2) (c) If Except as provided in this paragraph, if an injured employee
23has a period of temporary disability that exceeds 3 weeks or a permanent disability
24or, if the injured employee has undergone surgery to treat his or her injury, other than
25surgery to correct a hernia, or if the injured employee sustained an eye injury

1requiring medical treatment on 3 or more occasions off the employer's premises,
the
2department may by rule require the insurer or self-insured employer to submit to
3the department a final report of the employee's treating practitioner. The
4department may not require an insurer or self-insured employer to submit to the
5department a final report of an employee's treating practitioner when the insurer or
6self-insured employer denies the employee's claim for compensation and the
7employee does not contest that denial.
A treating practitioner may charge a
8reasonable fee for the completion of the final report, but may not require prepayment
9of that fee. An insurer or self-insured employer that disputes the reasonableness of
10a fee charged for the completion of a treatment practitioner's final report may submit
11that dispute to the department for resolution under s. 102.16 (2).
SB409, s. 6 12Section 6. 102.16 (2) (d) of the statutes is amended to read:
SB409,9,313 102.16 (2) (d) The department shall analyze the information provided to the
14department under par. (c) according to the criteria provided in this paragraph to
15determine the reasonableness of the disputed fee. The Except as provided in 2011
16Wisconsin Act .... (this act), section 30 (2) (b ), the
department shall determine that
17a disputed fee is reasonable and order that the disputed fee be paid if that fee is at
18or below the mean fee for the health service procedure for which the disputed fee was
19charged, plus 1.4 1.2 standard deviations from that mean, as shown by data from a
20database that is certified by the department under par. (h). The Except as provided
21in 2011 Wisconsin Act .... (this act), section 30 (2) (b ), the
department shall determine
22that a disputed fee is unreasonable and order that a reasonable fee be paid if the
23disputed fee is above the mean fee for the health service procedure for which the
24disputed fee was charged, plus 1.4 1.2 standard deviations from that mean, as shown
25by data from a database that is certified by the department under par. (h), unless the

1health service provider proves to the satisfaction of the department that a higher fee
2is justified because the service provided in the disputed case was more difficult or
3more complicated to provide than in the usual case.
SB409, s. 7 4Section 7. 102.17 (4) of the statutes is amended to read:
SB409,9,245 102.17 (4) Except as provided in this subsection and s. 102.555 (12) (b), the
6right of an employee, the employee's legal representative, or a dependent to proceed
7under this section shall not extend beyond 12 years after the date of the injury or
8death or after the date that compensation, other than for treatment or burial
9expenses, was last paid, or would have been last payable if no advancement were
10made, whichever date is latest. In the case of occupational disease; a traumatic
11injury resulting in the loss or total impairment of a hand or any part of the rest of
12the arm proximal to the hand or of a foot or any part of the rest of the leg proximal
13to the foot, any loss of vision, or any permanent brain injury; or a traumatic injury
14causing the need for an artificial spinal disc or a total or partial knee or hip
15replacement, there shall be no statute of limitations, except that benefits or
16treatment expense for an occupational disease becoming due 12 years after the date
17of injury or death or last payment of compensation, other than for treatment or burial
18expenses,
shall be paid from the work injury supplemental benefit fund under s.
19102.65 and in the manner provided in s. 102.66 and benefits or treatment expense
20for such a traumatic injury becoming due 12 years after that date shall be paid by
21the employer or insurer
from that fund and in that manner if the date of injury or
22death or last payment of compensation, other than for treatment or burial expenses,
23is before April 1, 2006
. Payment of wages by the employer during disability or
24absence from work to obtain treatment shall be considered payment of compensation

1for the purpose of this section if the employer knew of the employee's condition and
2its alleged relation to the employment.
SB409, s. 8 3Section 8. 102.29 (1) of the statutes is renumbered 102.29 (1) (a) (intro.) and
4amended to read:
SB409,10,215 102.29 (1) (a) (intro.) The making of a claim for compensation against an
6employer or compensation insurer for the injury or death of an employee shall not
7affect the right of the employee, the employee's personal representative, or other
8person entitled to bring action, to make claim or maintain an action in tort against
9any other party for such injury or death, hereinafter referred to as a 3rd party; nor
10shall the making of a claim by any such person against a 3rd party for damages by
11reason of an injury to which ss. 102.03 to 102.64 102.66 are applicable, or the
12adjustment of any such claim, affect the right of the injured employee or the
13employee's dependents to recover compensation. The An employer or compensation
14insurer who shall have that has paid or is obligated to pay a lawful claim under this
15chapter shall have the same right to make claim or maintain an action in tort against
16any other party for such injury or death. If the department pays or is obligated to
17pay a claim under s. 102.66 (1) or 102.81 (1), the department shall also have the right
18to maintain an action in tort against any other party for the employee's injury or
19death. However, each shall give to the other reasonable notice and opportunity to
20join in the making of such claim or the instituting of an action and to be represented
21by counsel.
SB409,11,7 22(b) If a party entitled to notice cannot be found, the department shall become
23the agent of such that party for the giving of a notice as required in this subsection
24par. (a) and the notice, when given to the department, shall include an affidavit
25setting forth the facts, including the steps taken to locate such that party. Each shall

1have an equal voice in the prosecution of said the claim, and any disputes arising
2shall be passed upon by the court before whom the case is pending, and if no action
3is pending, then by a court of record or by the department. If notice is given as
4provided in this subsection par. (a), the liability of the tort-feasor shall be
5determined as to all parties having a right to make claim, and, irrespective of
6whether or not all parties join in prosecuting such the claim, the proceeds of such the
7claim shall be divided as follows:
SB409,11,10 81. After deducting the reasonable cost of collection, one-third of the remainder
9shall in any event be paid to the injured employee or the employee's personal
10representative or other person entitled to bring action.
SB409,11,18 112. Out of the balance remaining after the deduction and payment specified in
12subd. 1.
, the employer, the insurance carrier, or, if applicable, the uninsured
13employers fund or the work injury supplemental benefit fund shall be reimbursed
14for all payments made by it the employer, insurance carrier, or department, or which
15it the employer, insurance carrier, or department may be obligated to make in the
16future, under this chapter, except that it the employer, insurance carrier, or
17department
shall not be reimbursed for any payments made or to be made under s.
18102.18 (1) (bp), 102.22, 102.35 (3), 102.57, or 102.60.
SB409,11,21 193. Any balance remaining after the reimbursement described in subd. 2. shall
20be paid to the employee or the employee's personal representative or other person
21entitled to bring action.
SB409,12,2 22(c) If both the employee or the employee's personal representative or other
23person entitled to bring action, and the employer, compensation insurer, or
24department, join in the pressing of said claim and are represented by counsel, the
25attorney fees allowed as a part of the costs of collection shall be, unless otherwise

1agreed upon, divided between such the attorneys for those parties as directed by the
2court or by the department.
SB409,12,6 3(d) A settlement of any a 3rd-party claim shall be void unless said the
4settlement and the distribution of the proceeds thereof is of the settlement are
5approved by the court before whom the action is pending and or, if no action is
6pending, then by a court of record or by the department.
SB409, s. 9 7Section 9. 102.35 (1) of the statutes is amended to read:
SB409,12,218 102.35 (1) Every employer and every insurance company that fails to keep the
9records or to make the reports required by this chapter or that knowingly falsifies
10such records or makes false reports shall pay a work injury supplemental benefit
11surcharge to the state of not less than $10 nor more than $100 for each offense. The
12department may waive or reduce a surcharge imposed under this subsection if the
13employer or insurance company that violated this subsection requests a waiver or
14reduction of the surcharge within 45 days after the date on which notice of the
15surcharge is mailed to the employer or insurance company and shows that the
16violation was due to mistake or an absence of information. A surcharge imposed
17under this subsection is due within 90 30 days after the date on which notice of the
18surcharge is mailed to the employer or insurance company. Interest shall accrue on
19amounts that are not paid when due at the rate of 1 percent per month. All
20surcharges and interest payments received under this subsection shall be deposited
21in the fund established under s. 102.65.
SB409, s. 10 22Section 10. 102.43 (5) of the statutes is amended to read:
SB409,12,2523 102.43 (5) (a) Temporary disability, during which compensation shall be
24payable for loss of earnings, shall include such period as may be reasonably required
25for training in the use of artificial members and appliances.
SB409,13,11
1(b) Except as provided in s. 102.61 (1g), temporary disability shall also include
2such period as the employee may be receiving instruction pursuant to under s. 102.61
3(1) or (1m). Temporary disability on account of receiving instruction of the latter
4nature
under s. 102.61 (1) or (1m), and not otherwise resulting from the injury, shall
5not be in excess of 80 weeks. Such 80-week limitation does not apply to temporary
6disability benefits under this section, the cost of tuition, fees, books, travel, or
7maintenance expense under s. 102.61 (1), or the cost of private rehabilitation
8counseling or rehabilitative training costs under s. 102.61 (1m) if the department
9determines that additional training is warranted. The necessity for additional
10training as authorized by the department for any employee shall be subject to
11periodic review and reevaluation.
SB409, s. 11 12Section 11. 102.43 (5) (c) of the statutes is created to read:
SB409,13,2513 102.43 (5) (c) Compensation for temporary disability on account of receiving
14instruction under s. 102.61 (1) or (1m) shall not be reduced under sub. (2) on account
15of any wages earned for the first 24 hours worked by an employee during a week in
16which the employee is receiving that instruction. If an employee performs more than
1724 hours of work during a week in which the employee is receiving that instruction,
18all wages earned for hours worked in excess of 24 during that week shall be offset
19against the employee's average weekly wage in calculating compensation for
20temporary disability under sub. (2). An employee who is receiving compensation for
21temporary disability on account of receiving instruction under s. 102.61 (1) or (1m)
22shall report any wages earned during the period in which the employee is receiving
23that instruction to the insurance carrier or self-insured employer paying that
24compensation. This paragraph does not apply after the last day of the 24th month
25beginning after the effective date of this paragraph .... [LRB inserts date].
SB409, s. 12
1Section 12. 102.43 (7) (b) of the statutes is amended to read:
SB409,14,52 102.43 (7) (b) An employee need not return to work at least 10 days preceding
3a renewed period of temporary disability to obtain benefits under sub. (5) (b) for
4rehabilitative training commenced more than 2 years after the date of injury.
5Benefits for rehabilitative training shall be made as provided in par. (c).
SB409, s. 13 6Section 13. 102.44 (1) (am) of the statutes is amended to read:
SB409,14,107 102.44 (1) (am) If the employee is receiving the maximum weekly benefits in
8effect at the time of the injury, the supplemental benefit for a week of disability
9occurring after May 6 1, 2010, shall be an amount that, when added to the regular
10benefit established for the case, shall equal $582.
SB409, s. 14 11Section 14. 102.44 (1) (b) of the statutes is amended to read:
SB409,14,1612 102.44 (1) (b) If the employee is receiving a weekly benefit that is less than the
13maximum benefit that was in effect on the date of the injury, the supplemental
14benefit for a week of disability occurring after May 6 1, 2010, shall be an amount
15sufficient to bring the total weekly benefits to the same proportion of $582 as the
16employee's weekly benefit bears to the maximum in effect on the date of injury.
SB409, s. 15 17Section 15. 102.44 (1) (c) of the statutes is amended to read:
SB409,15,218 102.44 (1) (c) The Subject to any certificate filed under s. 102.65 (4), an
19employer or insurance carrier paying the supplemental benefits required under this
20subsection shall be entitled to reimbursement for each such case from the fund
21established by s. 102.65, commencing one year from after the date of the first such
22payment of those benefits and annually thereafter while such those payments
23continue. Claims To receive reimbursement under this paragraph, an employer or
24insurance carrier must file a claim
for such that reimbursement shall with the

1department by no later than 12 months after the end of the year in which the
2supplemental benefits were paid and the claim must
be approved by the department.
SB409, s. 16 3Section 16. 102.49 (1) of the statutes is amended to read:
SB409,15,174 102.49 (1) When Subject to any certificate filed under s. 102.65 (4), when the
5beneficiary under s. 102.46 or 102.47 (1) is the spouse or domestic partner under ch.
6770 of the deceased employee and is wholly dependent on the deceased employee for
7support, an additional death benefit shall be paid from the funds provided by sub.
8(5) for each child by their marriage or domestic partnership under ch. 770 who is
9living at the time of the death of the employee, and who is likewise wholly dependent
10upon the on the deceased employee for support. That payment shall commence at
11the time that
when primary death benefit payments are completed or, if
12advancement of compensation has been paid, at the time when payments would
13normally have been completed. Payments shall continue at the rate of 10% 10
14percent
of the surviving parent's weekly indemnity until the child's 18th birthday.
15If the child is physically or mentally incapacitated, payments may be continued
16beyond the child's 18th birthday but the payments may not continue for more than
17a total of 15 years.
SB409, s. 17 18Section 17. 102.56 (1) of the statutes is amended to read:
SB409,16,519 102.56 (1) If Subject to sub. (2), if an employee is so permanently disfigured as
20to occasion potential wage loss due to the disfigurement, the department may allow
21such sum as it deems the department considers just as compensation therefor for the
22disfigurement
, not exceeding the employee's average annual earnings as defined in
23s. 102.11
. In determining the potential for wage loss due to the disfigurement and
24the sum awarded, the department shall take into account the age, education,
25training, and previous experience and earnings of the employee, the employee's

1present occupation and earnings, and likelihood of future suitable occupational
2change. Consideration for disfigurement allowance is confined to those areas of the
3body that are exposed in the normal course of employment. The department shall
4also take into account the appearance of the disfigurement, its location, and the
5likelihood of its exposure in occupations for which the employee is suited.
SB409, s. 18 6Section 18. 102.56 (2) of the statutes is amended to read:
SB409,16,137 102.56 (2) Notwithstanding sub. (1), if If an employee who claims
8compensation under this section sub. (1) returns to work for the employer who
9employed the employee at the time of the injury, or is offered employment with that
10employer,
at the same or a higher wage, the employee may not be compensated unless
11the employee shows that he or she probably has lost or will lose wages
department
12may not allow that compensation unless the employee suffers an actual wage loss

13due to the disfigurement.
SB409, s. 19 14Section 19. 102.59 (1) of the statutes is amended to read:
SB409,17,915 102.59 (1) If an employee has Subject to any certificate filed under s. 102.65
16(4), if
at the time of injury an employee has permanent disability which that if it had
17resulted from such that injury would have entitled him or her the employee to
18indemnity for 200 weeks and, if as a result of such that injury, the employee incurs
19further permanent disability which that entitles him or her the employee to
20indemnity for 200 weeks, the employee shall be paid from the funds provided in this
21section additional compensation equivalent to the amount which that would be
22payable for said that previous disability if it that previous disability had resulted
23from such that injury or the amount which that is payable for said that further
24disability, whichever is the lesser less, except that an employee may not be paid that
25additional compensation if the employee has already received compensation under

1this subsection
. If said the previous and further disabilities result in permanent
2total disability, the additional compensation shall be in such amount as will complete
3the payments which that would have been due had said the permanent total
4disability resulted from such that injury. This additional compensation accrues
5from, and may not be paid to any person before, the end of the period for which
6compensation for permanent disability resulting from such the injury is payable by
7the employer, and shall be subject to s. 102.32 (6), (6m), and (7). No compromise
8agreement of liability for this additional compensation may provide for any lump
9sum payment.
SB409, s. 20 10Section 20. 102.61 (1) of the statutes is amended to read:
SB409,17,2311 102.61 (1) Subject to subs. (1g) and (1m), an employee who is entitled to receive
12and has received compensation under this chapter, and who is entitled to and is
13receiving instructions instruction under 29 USC 701 to 797b, as administered by the
14state in which the employee resides or in which the employee resided at the time of
15becoming physically disabled, shall, in addition to other indemnity, be paid the
16actual and necessary expenses of costs of tuition, fees, books, and travel at the same
17rate as is provided for state officers and employees under s. 20.916 (8)
required for
18the employee's rehabilitation training program
and, if the employee receives
19instructions that instruction elsewhere than at the place of residence, the actual and
20necessary costs of maintenance, during rehabilitation, subject to the conditions and
21limitations specified in sub. (1r). The costs of travel under this subsection shall be
22paid at the same rate as is provided for state officers and employees under s. 20.916
23(8).
SB409, s. 21 24Section 21. 102.61 (1g) (b) of the statutes is amended to read:
SB409,18,7
1102.61 (1g) (b) If an employer offers an employee suitable employment as
2provided in par. (c), the employer or the employer's insurance carrier is not liable for
3temporary disability benefits under s. 102.43 (5) (b) or for the cost of tuition, fees,
4books,
travel, and maintenance expenses under sub. (1). Ineligibility for
5compensation under this paragraph does not preclude an employee from receiving
6vocational rehabilitation services under 29 USC 701 to 797b if the department
7determines that the employee is eligible to receive those services.
SB409, s. 22 8Section 22. 102.61 (1m) (c) of the statutes is amended to read:
SB409,18,199 102.61 (1m) (c) The employer or insurance carrier shall pay the reasonable cost
10of any services provided for an employee by a private rehabilitation counselor under
11par. (a) and, subject to the conditions and limitations specified in sub. (1r) (a) to (c)
12and by rule, if the private rehabilitation counselor determines that rehabilitative
13training is necessary, the reasonable cost of the rehabilitative training program
14recommended by that counselor, including the cost of tuition, fees, books,
15maintenance, and travel at the same rate as is provided for state officers and
16employees under s. 20.916 (8). Notwithstanding that the department may authorize
17under s. 102.43 (5) (b) a rehabilitative training program that lasts longer than 80
18weeks, a rehabilitative training program that lasts 80 weeks or less is presumed to
19be reasonable.
SB409, s. 23 20Section 23. 102.61 (1m) (d) of the statutes is amended to read:
SB409,19,321 102.61 (1m) (d) If an employee receives services from a private rehabilitation
22counselor under par. (a) and later receives similar services from the department
23under sub. (1) without the prior approval of the employer or insurance carrier, the
24employer or insurance carrier is not liable for temporary disability benefits under s.
25102.43 (5) (b) or for tuition, fee, book, travel, and maintenance expenses costs under

1sub. (1) that exceed what the employer or insurance carrier would have been liable
2for under the rehabilitative training program developed by the private rehabilitation
3counselor.
SB409, s. 24 4Section 24. 102.61 (1r) (c) of the statutes is amended to read:
SB409,19,95 102.61 (1r) (c) The employee may not have expenses of travel and the costs of
6tuition, fees, books, travel, and maintenance paid under sub. (1) or the costs of
7private rehabilitation counseling and rehabilitative training paid under sub. (1m) on
8account of training for a period in excess of 80 weeks in all, except as provided in s.
9102.43 (5) (b).
SB409, s. 25 10Section 25. 102.64 (2) of the statutes is amended to read:
SB409,19,2211 102.64 (2) Upon request of the department of administration, the attorney
12general shall appear on behalf of the state in proceedings upon claims for
13compensation against the state. The Except as provided in s. 102.65 (3), the
14department of justice shall represent the interests of the state in proceedings under
15s. 102.44 (1), 102.49, 102.59, 102.60, or 102.66. The department of justice may
16compromise claims in those proceedings, but the compromises are subject to review
17by the department of workforce development. Costs incurred by the department of
18justice in prosecuting or defending any claim for payment into or out of the work
19injury supplemental benefit fund under s. 102.65, including expert witness and
20witness fees but not including attorney fees or attorney travel expenses for services
21performed under this subsection, shall be paid from the work injury supplemental
22benefit fund.
SB409, s. 26 23Section 26. 102.65 (3) of the statutes is created to read:
SB409,20,624 102.65 (3) The department of workforce development may retain the
25department of administration to process, investigate, and pay claims under ss.

1102.44 (1), 102.49, 102.59, and 102.66. If retained by the department of workforce
2development, the department of administration may compromise a claim processed
3by that department, but a compromise made by that department is subject to review
4by the department of workforce development. The department of workforce
5development shall pay for the services retained under this subsection from the
6appropriation account under s. 20.445 (1) (t).
SB409, s. 27 7Section 27. 102.65 (4) of the statutes is created to read:
SB409,20,198 102.65 (4) The secretary shall monitor the cash balance in, and incurred losses
9to, the work injury supplemental benefit fund using generally accepted actuarial
10principles. If the secretary determines that the expected ultimate losses to the work
11injury supplemental benefit fund on known claims exceed 85 percent of the cash
12balance in that fund, the secretary shall consult with the council on worker's
13compensation. If the secretary, after consulting with the council on worker's
14compensation, determines that there is a reasonable likelihood that the cash balance
15in the work injury supplemental benefit fund may become inadequate to fund all
16claims under ss. 102.44 (1) (c), 102.49, 102.59, and 102.66, the secretary shall file
17with the secretary of administration a certificate attesting that the cash balance in
18that fund is likely to become inadequate to fund all claims under ss. 102.44 (1) (c),
19102.49, 102.59, and 102.66 and specifying one of the following:
SB409,20,2120 (a) That payment of those claims will be made as provided in a schedule that
21the department shall promulgate by rule.
SB409,20,2222 (b) A date after which payment of those claims will be reduced.
SB409,20,2323 (c) A date after which no new claims under those provisions will be paid.
SB409, s. 28 24Section 28. 102.66 (1) of the statutes is amended to read:
SB409,21,14
1102.66 (1) In the event that Subject to any certificate filed under s. 102.65 (4),
2if
there is an otherwise meritorious claim for occupational disease, or for a traumatic
3injury described in s. 102.17 (4) in which the date of injury or death or last payment
4of compensation, other than for treatment or burial expenses, is before April 1, 2006,

5and if the claim is barred solely by the statute of limitations under s. 102.17 (4), the
6department may, in lieu of worker's compensation benefits, direct payment from the
7work injury supplemental benefit fund under s. 102.65 of such compensation and
8such medical expenses as would otherwise be due, based on the date of injury, to or
9on behalf of the injured employee. The benefits shall be supplemental, to the extent
10of compensation liability, to any disability or medical benefits payable from any
11group insurance policy whose premium is paid in whole or in part by any employer,
12or under any federal insurance or benefit program providing disability or medical
13benefits. Death benefits payable under any such group policy do not limit the
14benefits payable under this section.
SB409, s. 29 15Section 29. 102.66 (2) of the statutes is amended to read:
SB409,21,2216 102.66 (2) In the case of occupational disease, or of a traumatic injury described
17in s. 102.17 (4) in which the date of injury or death or last payment of compensation,
18other than for treatment for burial expenses, is before April 1, 2006,
appropriate
19benefits may be awarded from the work injury supplemental benefit fund when the
20status or existence of the employer or its insurance carrier cannot be determined or
21when there is otherwise no adequate remedy, subject to the limitations contained in
22sub. (1).
SB409, s. 30 23Section 30 . Nonstatutory provisions.
Loading...
Loading...