Various changes to the worker's compensation law and granting rule-making authority. (FE)

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.

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.

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.