following: "(b) 'Examiner' includes the deputy administrator of
the worker's compensation division of the department."
102.18(2) requires examiners to be attorneys. The current deputy is
not an attorney and has recommended the change.
? a person who is an employer under s. 102.07(8m) cannot be someone
else's employe--even if that person is an independent contractor
under s. 102.07(8)(a), and;
? a person who buys a policy is an employer subject to the
statute--even if the person has no employes and does not elect to
cover himself or herself under the policy.
clarifications should help insurers collect the correct premium
amounts (without overcharging) from each of two policyholders. The
problem arises when a general contractor hires a no-employe
subcontractor who has purchased a policy and the general
contractor's insurance carrier attempts to collect a premium from
the general contractor for payments made by the general contractor
to the no-employe subcontractor. Because the no-employe
subcontractor has a policy, the Department has consistently said
this person is an employer (not an employe) and the insurer should
not collect a premium from the general contractor.
One of the basic
principles in Chapter 102 is that a person is either an employer or
an employe, but not both at the same time. In a situation where s.
102.07(8m) and (8)(a) might both apply, this change will create a
cross-reference between the two provisions to make it clear that s.
102.07(8m) is controlling.
102.04(1)(e) defines an "employer" as a person who has
employes and who buys a policy. Section 102.05(2) says an
"employer" may elect coverage by buying a policy. However,
Ch. 102 is silent on the status of a person who buys a policy, but
who has no employes and/or who does not elect to cover himself or
herself under the policy. This codifies the Department's position
that a person buys a policy--with or without employes--is an
"employer" subject to the Act and cannot be someone else's
employer may withdraw from coverage if the employer does not pay
$500 in "any calendar quarter in a calendar year." Does
the word, "any" mean "one" calendar quarter or
"every" (that is, all four) calendar quarters? The
proposed change would clarify that it means every calendar
quarter, by substituting the word, "every" for the word
"any" in the phrase "any calendar quarter in a
Comment: The courts
have held that the statutory meaning of the word "any"
depends upon the context in which it is used. "Any" can
mean "all" or "only one" depending on the
context. In this statute the context is not clear from the statute
alone. However, the legislative history shows that the current
language was part of a department proposal adopted in 1969 after 10
years of discussion. The documents at that time clearly show the
agency's intention was that the word "any" meant
" every" calendar quarter, not "one"
Amend 102.18(3) as
follows: "A party in interest may petition the commission for
review of an examiner's decision awarding or denying compensation if
the department or commission receives the petition within 21 days
after the department mailed a copy of the examiner's findings and
order to the party's last-known address. The commission shall
dismiss a petition which is not timely filed unless the
shows probable good cause that the reason for failure to timely
file was beyond the petitioner's control...."
petition itself cannot establish good cause for a person filing a
petition late. LIRC currently gives the petitioner an opportunity to
explain the delay after the petition is filed. This change would
codify LIRC's current practice.
required insurance; exemptions. (a) Duty to insure payment for
compensation. Unless exempted by the department, every employer, as
described in the s. 102.04(1), shall insure payment for that
in through an insurance policy in its name
alone issued by an insurer authorized to do business in this
state. Two or more entities with common majority ownership that
are combinable under a rating plan authorized by Ch. 626 may be
insured through an insurance policy issued in the names of the
Assistant Attorney General representing the Department in the Koch
case recommended we clarify the statute even though he won the case.
In that case, an uninsured Wisconsin trucker attempted to argue that
he was covered under the policy of an Indiana trucker. However, by
the terms of the policy, the Indiana trucker's policy only covered
the Wisconsin trucker when the Wisconsin trucker was working for the
Indiana trucker. It did not cover the Wisconsin trucker when he was
doing local work on his own. Also, the policy did not cover the
Wisconsin trucker's clerical staff. However, the specific problem
relating to the proposed statutory change is that the trucking
companies were not eligible to insure under the same policy as
combinable entities because they lacked the necessary degree of
common ownership required by the Rating Bureau's rating plan manual.
department's method for calculating TPD benefits where the employe
has lost wages during the 3-day waiting period. Only for the
purposes of calculating TPD benefits, impute earnings to the employe
(as though wages had been paid) for days lost during the waiting
period, prior to calculating the proportional wage loss for TPD
Comment: There are
disputes with insurers and some department staff about what the
statute intends. Some have argued that the wage loss during the
waiting period should be counted (increasing the numerator in the
calculation--i.e., the wage loss--increases the TPD benefits).
Others agree, but shorten the work week by deducting from the
denominator the number of waiting period days for which a wage loss
supplemental benefit fund
Insurers pay into
the work injury supplemental benefit fund as follows:
1. Death benefits when there are no dependents;
2. $5,000 if the injury is the proximate cause of death;
3. $7,000 for loss of hand, arm, foot, leg or eye.
The fund pays
1. Children to age 18 (10% of wholly dependent spouse's amount);
2. Carriers for $150 minimum payments for pre-1976 injuries;
3. Claims with at least 200 weeks of pre-existing disability;
4. Barred occupational disease claims.
Rather than suspend
insurers' payments into the fund when the fund balance exceeds 3
times the amount of paid out of the fund in the prior year, use the
"excess" to offset insurers' assessments for department
administrative costs under 102.75(1).
into the fund and interest earnings continue to provide significant
"excess" balances. The balance at the end of fiscal 1998
was about $7.2 million, with an excess of about $0.9 million. On
roughly a 3 to 4-year cycle, the Division periodically suspends, and
then re-instates, payments. This proposal would:
1. Retain some safety incentive to prevent serious bodily harm;
2. Prevent unjust enrichment of insurers if death benefits are due;
3. Ease administrative hassles for the department and insurers
related to stopping and re-instating payments at odd intervals;
4. Eliminate the temptation to allocate the "excess" for
less defensible public purposes.
5. Reduce overall administrative costs for "safe"
employers/insurers who do not pay into the fund by reducing their
Double the minimum
penalty from $750 to $1500 for any lapse in insurance that occurs
within 3 years of a prior lapse in coverage. Unlike a $750 dollar
penalty, a $1500 penalty would not be pro-rated for the first 7 days
of lapsed coverage.
offenders within a short time period deserve tougher sanctions. It
is fair to assume that multiple offenders know their
responsibilities, but have chosen to neglect them.
Change the word
"insured" to "uninsured."
Comment: This is an
inadvertent typo. The citation procedure in this section is limited
to actions for recovering a forfeiture under s. 102.85(1) or (2)
which relate only to uninsured employers.
15.227(4) and (11)
department secretary rather than LIRC as the appointing authority
for the Council on Worker's Compensation and the Self-Insurance
statute carries over from the time that the Commission administered
the Department. This change is recommended by LIRC and the
Secretary. As a matter of practice, LIRC has always deferred to the
Secretary on all appointments to these councils. LIRC is
recommending a similar change in the UI bill for that council.