2021 - 2022 LEGISLATURE
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2021 ASSEMBLY BILL 17
January 29, 2021 - Introduced by Representatives HORLACHER, EMERSON, ALLEN,
BRANDTJEN, CALLAHAN, DITTRICH, EDMING, KERKMAN, KUGLITSCH, LOUDENBECK,
MILROY, MURSAU, NOVAK, PETRYK, RAMTHUN, THIESFELDT, SHELTON and
SPREITZER, cosponsored by Senators JACQUE, WANGGAARD, BEWLEY, AGARD,
BALLWEG, NASS, PFAFF, RINGHAND, L. TAYLOR and JOHNSON. Referred to
Committee on Government Accountability and Oversight.
1 AN ACT to renumber and amend 102.17 (4) and 102.58; to amend 102.04 (2m),
2 102.13 (2) (a), 102.29 (6m) (a) 3., 102.315 (1) (c), 102.315 (2), 102.42 (1), 102.49
3 (5) (b), 102.49 (5) (c) and 102.49 (5) (e); and to create 102.04 (2g), 102.17 (9),
4 102.29 (6m) (a) 1m., 102.315 (2e), 102.315 (2m), 102.315 (2s), 102.42 (1p),
5 102.44 (7) and 102.49 (5) (cm) of the statutes; relating to: various changes to
6 the worker's compensation law.
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).
PAYMENT OF BENEFITS; OTHER PAYMENTS
Liability for public safety officers
This bill makes changes to the conditions of liability for worker's compensation
benefits for a law enforcement officer or a fire fighter (public safety officer) who is
diagnosed with post-traumatic stress disorder (PTSD).
The bill provides that if a public safety officer is diagnosed with PTSD by a
licensed psychiatrist or psychologist and the mental injury that resulted in that
diagnosis is not accompanied by a physical injury, that public safety officer can bring
a claim for worker's compensation benefits if the conditions of liability are proven by
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ASSEMBLY BILL 17
a preponderance of the evidence and the mental injury is not the result of a good-faith
employment action by the person's employer. Under current law, an injured
employee who does not have an accompanying physical injury must demonstrate a
diagnosis based on unusual stress of greater dimensions than the day-to-day
emotional strain and tension experienced by all employees as required under School
District No. 1 v. DILHR, 62 Wis. 2d 370, 215 N.W.2d 373 (1974). Under the bill, such
an injured public safety employee is not required to demonstrate a diagnosis based
on that standard, and instead must demonstrate a diagnosis based on the new
standard.
The bill also limits liability for treatment for a mental injury that is
compensable under the bill's provisions to no more than 32 weeks after the injury is
first reported. Under the bill, a public safety officer is restricted to compensation for
a mental injury that is not accompanied by a physical injury and that results in a
diagnosis of PTSD three times in his or her lifetime irrespective of a change of
employer or employment.
Payments in cases of injuries resulting in death
Current law provides that, in each case of an injury resulting in death leaving
no person dependent for support or leaving one or more persons partially dependent
for support, the employer or insurer must pay into the work injury supplemental
benefit fund (WISBF) the amount of the death benefit otherwise payable. This bill
does the following:
1. Allows such amounts due to be paid in advance of when they would otherwise
be due, including as a single, lump-sum payment. If an employer or insurer makes
an advance or lump-sum payment, the bill requires DWD to give the employer or the
insurer an interest credit, computed as otherwise provided under current law.
Current law requires, in the case of a death leaving no dependents, that the
payments be made in five equal annual installments.
2. Provides that, in the case of a violation of an employer policy against drug
or alcohol use that is causal to an employee's injury resulting in death who leaves no
person dependent for support or leaving one or more persons partially dependent for
support, no payment is required to be made to WISBF. Current law provides that,
in the case of such a violation, then neither the employee nor the employee's
dependents may receive any compensation under the worker's compensation law for
that injury, other than costs for treating the injury, but does not exempt the employer
or insurer from the payment to WISBF.
Furnishing of billing statements
This bill requires a health care provider to furnish to the representative or
agent of a worker's compensation insurer a complete billing statement for treatment
of an injury for which an employee claims compensation upon request.
COVERAGE; LIABILITY
Leased employees
Under current law, employee leasing companies are generally liable for injuries
to their leased employees under the worker's compensation law. This bill provides
that a client of an employee leasing company may instead assume the liability for
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ASSEMBLY BILL 17
leased employees under an employee leasing agreement. The bill also provides that
if a client terminates or otherwise does not provide worker's compensation insurance
coverage for the leased employees, the employee leasing company is liable for
injuries to those leased employees under the worker's compensation law.
Statute of limitations
This bill clarifies that for worker's compensation claims the statute of
limitations applies to an individual's employer, the employer's insurance company,
and any other named party.
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. 102.04 (2g) of the statutes is created to read:
2 102.04 (2g) Liability under s. 102.03 with respect to a leased employee, as
3 defined in s. 102.315 (1) (g), shall be determined as provided in s. 102.315 (2) or (2m)
4 (c), whichever is applicable.
5 SECTION 2. 102.04 (2m) of the statutes is amended to read:
6 102.04 (2m) A Except as otherwise provided in an employee leasing agreement
7 that meets the requirements of s. 102.315 (2m), a temporary help agency is the
8 employer of an employee whom the temporary help agency has placed with or leased
9 to another employer that compensates the temporary help agency for the employee's
10 services. A Except as provided in s. 102.315 (2m) (c), a temporary help agency is
11 liable under s. 102.03 for all compensation and other payments payable under this
12 chapter to or with respect to that employee, including any payments required under
13 s. 102.16 (3), 102.18 (1) (b) 3. or (bp), 102.22 (1), 102.35 (3), 102.57, or 102.60. Except
14 as permitted under s. 102.29, a temporary help agency may not seek or receive
15 reimbursement from another employer for any payments made as a result of that
16 liability.
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ASSEMBLY BILL 17 SECTION 3
1 SECTION 3. 102.13 (2) (a) of the statutes is amended to read:
2 102.13 (2) (a) An employee who reports an injury alleged to be work-related
3 or files an application for hearing waives any physician-patient,
4 psychologist-patient, or chiropractor-patient privilege with respect to any condition
5 or complaint reasonably related to the condition for which the employee claims
6 compensation. Notwithstanding ss. 51.30 and 146.82 and any other law, any
7 physician, chiropractor, psychologist, dentist, podiatrist, physician assistant,
8 advanced practice nurse prescriber, hospital, or health care provider shall, within a
9 reasonable time after written request by the employee, employer, worker's
10 compensation insurer, or department, or division, or its representative, provide that
11 person with any information or written material reasonably related to any injury for
12 which the employee claims compensation. If the request is by a representative of a
13 worker's compensation insurer for a billing statement, the physician, chiropractor,
14 psychologist, dentist, podiatrist, physician assistant, advanced practice nurse
15 prescriber, hospital, or health care provider shall, within 30 days after receiving the
16 request, provide that person with a complete copy of an itemized billing statement
17 or a billing statement in a standard billing format recognized by the federal
18 government.
19 SECTION 4. 102.17 (4) of the statutes is renumbered 102.17 (4) (a) and amended
20 to read:
21 102.17 (4) (a) Except as provided in this subsection and s. 102.555 (12) (b), in
22 the case of occupational disease, the right of an employee, the employee's legal
23 representative, or a dependent, the employee's employer or the employer's insurance
24 company, or other named party to proceed under this section shall not extend beyond
25 12 years after the date of the injury or death or after the date that compensation,
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ASSEMBLY BILL 17 SECTION 4
1 other than for treatment or burial expenses, was last paid, or would have been last
2 payable if no advancement were made, whichever date is latest, and in the case of
3 traumatic injury, that right shall not extend beyond 6 years after that date.
4 (b) In the case of occupational disease; a traumatic injury resulting in the loss
5 or total impairment of a hand or any part of the rest of the arm proximal to the hand
6 or of a foot or any part of the rest of the leg proximal to the foot, any loss of vision,
7 or any permanent brain injury; or a traumatic injury causing the need for an
8 artificial spinal disc or a total or partial knee or hip replacement, there shall be no
9 statute of limitations, except that benefits or treatment expense for an occupational
10 disease becoming due 12 years after the date of injury or death or last payment of
11 compensation, other than for treatment or burial expenses, shall be paid from the
12 work injury supplemental benefit fund under s. 102.65 and in the manner provided
13 in s. 102.66 and benefits or treatment expense for such a traumatic injury becoming
14 due 6 years after that date shall be paid from that fund and in that manner if the date
15 of injury or death or last payment of compensation, other than for treatment or burial
16 expenses, is before April 1, 2006.
17 (c) Payment of wages by the employer during disability or absence from work
18 to obtain treatment shall be considered payment of compensation for the purpose of
19 this section if the employer knew of the employee's condition and its alleged relation
20 to the employment.
21 SECTION 5. 102.17 (9) of the statutes is created to read:
22 102.17 (9) (a) In this subsection:
23 1. “Fire fighter" means any person employed on a full-time basis by the state
24 or any political subdivision as a member or officer of a fire department, including the
25 1st class cities and state fire marshal and deputies.
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ASSEMBLY BILL 17 SECTION 5
1 2. “Post-traumatic stress disorder” means that condition, as described in the
2 5th edition of the Diagnostic and Statistical Manual of Mental Disorders by the
3 American Psychiatric Association.
4 (b) Subject to par. (c), in the case of a mental injury that is not accompanied by
5 a physical injury and that results in a diagnosis of post-traumatic stress disorder in
6 a law enforcement officer, as defined in s. 23.33 (1) (ig), or a fire fighter, the claim for
7 compensation for the mental injury, in order to be compensable under this chapter,
8 is subject to all of the following:
9 1. The mental injury must satisfy all of the following conditions:
10 a. The diagnosis of post-traumatic stress disorder is made by a licensed
11 psychiatrist or psychologist.
12 b. The conditions of liability under s. 102.03 (1) are proven by the
13 preponderance of the evidence.
14 2. The mental injury may not be a result of any of the following actions taken
15 in good faith by the employer:
16 a. A disciplinary action.
17 b. A work evaluation.
18 c. A job transfer.
19 d. A layoff.
20 e. A demotion.
21 f. A termination.
22 3. The diagnosis does not need to be based on unusual stress of greater
23 dimensions than the day-to-day emotional strain and tension experienced by
24 similarly situated employees.
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ASSEMBLY BILL 17 SECTION 5
1 (c) No individual may receive compensation for a claim of mental injury under
2 this subsection more than 3 times in his or her lifetime. The limitation under this
3 paragraph applies irrespective of whether the individual becomes employed by a
4 different employer or in a different position with the same employer.
5 SECTION 6. 102.29 (6m) (a) 1m. of the statutes is created to read:
6 102.29 (6m) (a) 1m. The employee leasing company that employs the leased
7 employee.
8 SECTION 7. 102.29 (6m) (a) 3. of the statutes is amended to read:
9 102.29 (6m) (a) 3. Any employee of the client or, any employee of that other an
10 employee leasing company described in subd. 2., or the employee leasing company
11 that employs the leased employee, unless the leased employee who has the right to
12 make a claim for compensation would have a right under s. 102.03 (2) to bring an
13 action against the employee of the client, the employee leasing company that
14 employs the leased employee, or the leased employee of the other employee leasing
15 company described in subd. 2., if the employees and leased employees were
16 coemployees.
17 SECTION 8. 102.315 (1) (c) of the statutes is amended to read:
18 102.315 (1) (c) “Divided workforce" means a workforce in which some of the
19 employees of a client are leased employees and some of the employees of the client
20 are not leased employees, but does not include a workforce with respect to a client
21 that has elected to provide insurance coverage for leased employees under sub. (2m).
22 SECTION 9. 102.315 (2) of the statutes is amended to read:
23 102.315 (2) EMPLOYEE LEASING COMPANY LIABLE. An Except as otherwise
24 provided in an employee leasing agreement that meets the requirements of sub.
25 (2m), an employee leasing company is liable under s. 102.03 for all compensation
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ASSEMBLY BILL 17 SECTION 9
1 payable under this chapter to a leased employee, including any payments required
2 under s. 102.16 (3), 102.18 (1) (b) 3. or (bp), 102.22 (1), 102.35 (3), 102.57, or 102.60.
3 If a client that makes an election under sub. (2m) (a) terminates the election, fails
4 to provide the required coverage, or allows coverage to lapse, the employee leasing
5 company is liable under s. 102.03 as set forth in this subsection. Except as permitted
6 allowed under s. 102.29, an employee leasing company may not seek or receive
7 reimbursement from another employer for any payments made as a result of that
8 liability. An employee leasing company is not liable under s. 102.03 for any
9 compensation payable under this chapter to an employee of a client who is not a
10 leased employee.
11 SECTION 10. 102.315 (2e) of the statutes is created to read:
12 102.315 (2e) TERMINATION OF EMPLOYEE LEASING AGREEMENT. If an employee
13 leasing company terminates an employee leasing agreement with a client that has
14 made an election under sub. (2m) (a), the company shall provide notice of the
15 termination of an employee leasing agreement to the department and the client, on
16 a form prescribed by the department, at least 30 days before the termination of the
17 employee leasing agreement. The notice provided under this subsection must
18 contain all of the following information:
19 (a) The name, mailing address, and federal employer identification number of
20 the employee leasing company.
21 (b) The name, mailing address, and federal employer identification number of
22 the client.
23 (c) The effective date of the termination of the employee leasing agreement.
24 (d) The signatures of the authorized representatives of the client and the
25 employee leasing company.