2021 - 2022 LEGISLATURE
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2021 ASSEMBLY BILL 911
January 26, 2022 - Introduced by COMMITTEE ON LABOR AND INTEGRATED
EMPLOYMENT. Referred to Committee on Labor and Integrated Employment.
1 AN ACT to repeal 102.11 (1) (am), 102.11 (1) (f) 1. and 102.39 (title); to renumber
2 102.05 (3), 102.15 (1) and 102.16 (1) (b); to renumber and amend 102.11 (1)
3 (f) 2. and 102.39; to amend 46.275 (4m), 46.277 (3r), 46.281 (1k), 46.2897 (3),
4 46.995 (3), 73.0301 (1) (d) 3m., 73.0301 (1) (e), 102.04 (1) (b) 1., 102.04 (1) (b) 2.,
5 102.05 (1), 102.05 (2), 102.11 (1) (intro.), 102.13 (1) (b) (intro.), 102.15 (title),
6 102.17 (1) (c), 102.17 (1) (cg), 102.17 (1) (cr), 102.18 (2) (a), 102.18 (3), 102.43 (6)
7 (b), 102.61 (1g) (a) 2., 102.80 (1) (d), 102.81 (4) (b) (intro.), 102.81 (4) (b) 2.,
8 102.81 (5), 102.82 (1), 108.227 (1) (f), 108.227 (1m) (intro.), 108.227 (3) (a) 3.,
9 108.227 (5) (a), 108.227 (5) (b) 1. and 108.227 (5) (b) 2.; to repeal and recreate
10 102.17 (1) (ct); and to create 73.0301 (1) (d) 15., 102.11 (1) (ap), 102.13 (1) (b)
11 6., 102.16 (1) (b) 2., 102.33 (2) (b) 7., 102.81 (4) (c) and 108.227 (1) (e) 16. of the
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ASSEMBLY BILL 911
1 statutes; relating to: various changes to the worker's compensation law and
2 granting rule-making authority.
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).
CLAIMS AND PAYMENTS
Maximum weekly compensation for permanent partial disability
The bill increases the maximum weekly compensation rate for permanent
partial disability from $362 to $415 for injuries occurring before January 1, 2023, and
to $430 for injuries occurring on or after that date.
Part-time employment and wage expansion
Generally, under current law, when calculating average weekly earnings for
purposes of worker's compensation benefit amounts, the the normal full-time
workweek is used, and it is generally presumed that the normal full-time workweek
is not less than 40 hours per week. Current law provides, however, that if an
employee is a member of a regularly-scheduled class of part-time employees,
average weekly earnings are determined using the hours and days established by the
employer for that class, but not less than 24 hours. Current law also provides that
the weekly temporary disability benefits for a part-time employee who restricts his
or her availability in the labor market to part-time work and is not employed
elsewhere may not exceed the average weekly wages of the part-time employment.
The bill replaces the provision in current law regarding employees who are
members of a regularly-scheduled class of part-time employees with a provision
that applies to employees who work less than full time. Under this provision, an
injured employee's average weekly wage is calculated as the greater of 1) the hourly
rate at the time of injury multiplied by the average number of hours worked per week
for the 52 calendar weeks before his or her injury or 2) the actual average weekly
earnings of the employee for the 52 calendar weeks before his or her injury. Weeks
not worked are not counted under either calculation.
Under the bill, however, earnings are expanded to be based on full-time work
if the employee shows that he or she is employed by another employer, by providing
evidence of taxable earnings or evidence that the employee worked less than full time
for a period of less than 12 months. An employer may rebut the employee's evidence
of eligibility for temporary disability benefits based on full-time work by providing
evidence that the employee chose to work less than full time.
Observers in examinations
The bill allows an employee to have an observer, chosen and provided by the
employee, present during a medical examination that is requested by an employer
or insurer following a claim for worker's compensation.
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ASSEMBLY BILL 911
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 another 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 of the payments
up to the amount recovered from the third party.
The 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
Employers subject to worker's compensation law; withdrawal
Current law generally provides that, with certain exceptions, every person who
usually employs three or more employees for services performed in this state is
subject to the worker's compensation law and provides that a covered employer who
has not usually employed three employees in every calendar quarter in a calendar
year may file a notice with DWD to withdraw from coverage under the law. The bill
provides that any 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. The bill
provides that an employer who has not employed three employees in every calendar
quarter in a calendar year may file a notice with DWD to withdraw from coverage
under the law.
Current law also provides that an employer who has had no employee at any
time within a continuous period of two years shall be deemed to have effected
withdrawal, which shall be effective on the last day of such period. The bill clarifies
that this provision applies to farm employers.
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.
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ASSEMBLY BILL 911
PROGRAM ADMINISTRATION
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.
Other changes
The bill makes various other changes regarding the administration of the
worker's compensation law, including:
1. Granting explicit rule-making authority to DWD to carry out the worker's
compensation law.
2. Expressly providing that DWD may conduct alternative dispute resolution
activities for certain cases.
3. Transferring from DWD to DHA the authority to grant licenses for
non-attorneys to appear in worker's compensation cases.
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:
1 SECTION 1. 46.275 (4m) of the statutes is amended to read:
2 46.275 (4m) WORKER'S COMPENSATION COVERAGE. An individual who is
3 performing services for a person receiving long-term care benefits under this section
4 on a self-directed basis and who does not otherwise have worker's compensation
5 coverage for those services is considered, for purposes of worker's compensation
6 coverage, to be an employee of the entity that is providing financial management
7 services for that person.
8 SECTION 2. 46.277 (3r) of the statutes is amended to read:
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ASSEMBLY BILL 911 SECTION 2
1 46.277 (3r) WORKER'S COMPENSATION COVERAGE. An individual who is
2 performing services for a person receiving long-term care benefits under this section
3 on a self-directed basis and who does not otherwise have worker's compensation
4 coverage for those services is considered, for purposes of worker's compensation
5 coverage, to be an employee of the entity that is providing financial management
6 services for that person.
7 SECTION 3. 46.281 (1k) of the statutes is amended to read:
8 46.281 (1k) WORKER'S COMPENSATION COVERAGE. An individual who is
9 performing services for a person receiving the Family Care benefit, or benefits under
10 Family Care Partnership, on a self-directed basis and who does not otherwise have
11 worker's compensation coverage for those services is considered, for purposes of
12 worker's compensation coverage, to be an employee of the entity that is providing
13 financial management services for that person.
14 SECTION 4. 46.2897 (3) of the statutes is amended to read:
15 46.2897 (3) WORKER'S COMPENSATION COVERAGE. An individual who is
16 performing services for a person participating in the self-directed services option
17 and who does not otherwise have worker's compensation coverage for those services
18 is considered, for purposes of worker's compensation coverage, to be an employee of
19 the entity that is providing financial management services for that person.
20 SECTION 5. 46.995 (3) of the statutes is amended to read:
21 46.995 (3) An individual who is performing services for a person receiving
22 long-term care benefits under any children's long-term support waiver program on
23 a self-directed basis and who does not otherwise have worker's compensation
24 coverage for those services is considered, for purposes of worker's compensation
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ASSEMBLY BILL 911 SECTION 5
1 coverage, to be an employee of the entity that is providing financial management
2 services for that person.
3 SECTION 6. 73.0301 (1) (d) 3m. of the statutes is amended to read:
4 73.0301 (1) (d) 3m. A license or certificate issued by the department of
5 workforce development under s. 102.17 (1) (c), 103.275 (2) (b), 103.34 (3) (c), 103.91
6 (1), 103.92 (3), 104.07 (1) or (2), or 105.13 (1).
7 SECTION 7. 73.0301 (1) (d) 15. of the statutes is created to read:
8 73.0301 (1) (d) 15. A license issued by the division of hearings and appeals
9 under s. 102.17 (1) (c).
10 SECTION 8. 73.0301 (1) (e) of the statutes is amended to read:
11 73.0301 (1) (e) “Licensing department" means the department of
12 administration; the division of hearings and appeals; the department of agriculture,
13 trade and consumer protection; the board of commissioners of public lands; the
14 department of children and families; the ethics commission; the department of
15 financial institutions; the department of health services; the department of natural
16 resources; the department of public instruction; the department of safety and
17 professional services; the department of workforce development; the office of the
18 commissioner of insurance; or the department of transportation.
19 SECTION 9. 102.04 (1) (b) 1. of the statutes is amended to read:
20 102.04 (1) (b) 1. Every person who usually at any time employs 3 or more
21 employees for services performed in this state, whether in one or more trades,
22 businesses, professions, or occupations, and whether in one or more locations. A
23 person who employs 3 or more employees for services performed in this state becomes
24 subject to this chapter on the day on which the person employs 3 or more such
25 employees.
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ASSEMBLY BILL 911 SECTION 10
1 SECTION 10. 102.04 (1) (b) 2. of the statutes is amended to read:
2 102.04 (1) (b) 2. Every person who usually employs less fewer than 3
3 employees, provided the person has paid wages of $500 or more in any calendar
4 quarter for services performed in this state. Such employer a person shall become
5 subject to this chapter on the 10th day of the month next succeeding such quarter.
6 SECTION 11. 102.05 (1) of the statutes is amended to read:
7 102.05 (1) WITHDRAWAL. (a) An employer, including a person engaged in
8 farming who has become subject to this chapter, who has had no employee at any time
9 within a continuous period of 2 years shall be deemed to have effected withdrawal,
10 which shall be effective on the last day of such that 2-year period. An
11 (b) 1. If an employer who has not usually, in every calendar quarter in a
12 calendar year, employed 3 employees and who has not paid wages of at least $500 for
13 employment in this state in every calendar quarter in a calendar year, the employer
14 may file a withdrawal notice with the department, which withdrawal shall take
15 effect 30 days after the date of such filing or at such later date as is specified in the
16 notice. Such employer may again become subject to this chapter as provided by s.
17 102.04 (1) (b) and (e). This subdivision shall not apply to farmers.
18 (c) If an employer who is subject to this chapter only because the employer
19 elected to become subject to this chapter under sub. (2) cancels or terminates his or
20 her contract for the insurance of compensation under this chapter, that employer is
21 deemed to have effected withdrawal, which shall be effective on the day after the
22 contract is canceled or terminated.
23 SECTION 12. 102.05 (2) of the statutes is amended to read:
24 102.05 (2) ELECTION. Any employer who shall enter enters into a contract for
25 the insurance of compensation, or against liability therefor, shall be deemed thereby
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ASSEMBLY BILL 911 SECTION 12
1 to have elected to accept the provisions of this chapter, and such election shall include
2 farm laborers, domestic servants and employees not in the course of a trade,
3 business, profession or occupation of the employer if such intent is shown by the
4 terms of the policy. Such election shall remain in force until withdrawn in the
5 manner provided in sub. (1) (c).
6 SECTION 13. 102.05 (3) of the statutes is renumbered 102.05 (1) (b) 2.
7 SECTION 14. 102.11 (1) (intro.) of the statutes is amended to read:
8 102.11 (1) (intro.) The average weekly earnings for temporary disability,
9 permanent total disability, or death benefits for injury in each calendar year on or
10 after January 1, 1982, shall be not less than $30 nor more than the wage rate that
11 results in a maximum compensation rate of 110 percent of the state's average weekly
12 earnings as determined under s. 108.05 as of June 30 of the previous year. The
13 average weekly earnings for permanent partial disability shall be not less than $30
14 and, for permanent partial disability for injuries occurring on or after March 2, 2016,
15 and before January 1, 201