102.28 Preference of claims; worker’s compensation insurance.

1,879 words·~9 min read·/wi/chapter-102/102-28

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(1)Preference. The whole claim for compensation for the injury or death of any employee or any award or judgment thereon, and any claim for unpaid compensation insurance premiums are entitled to preference in bankruptcy or insolvency proceedings as is given creditors’ actions except as denied or limited by any law of this state or by the federal bankruptcy act, but this section shall not impair the lien of any judgment entered upon any award.

(2)Required insurance; exceptions.

(a)Duty to insure payment for compensation. Unless exempted under par.

(b)or

(bm)or sub.

(3), every employer, as described in s. 102.04

(1), shall insure payment for compensation under this chapter in an insurer authorized to do business in this state. A joint venture may elect to be an employer under this chapter and obtain insurance for payment of compensation. If a joint venture that is subject to this chapter only because the joint venture elected to be an employer under this chapter is dissolved and cancels or terminates its contract for the insurance of compensation under this chapter, that joint venture is deemed to have effected withdrawal, which shall be effective on the day after the contract is canceled or terminated.

(b)Exemption from duty to insure; employers generally. The department may grant a written order of exemption to an employer who shows its financial ability to pay the amount of compensation, agrees to report faithfully all compensable injuries and agrees to comply with this chapter and the rules of the department. The department may condition the granting of an exemption upon the employer’s furnishing of satisfactory security to guarantee payment of all claims under compensation. The department may require that bonds or other personal guarantees be enforceable against sureties in the same manner as an award may be enforced. The department may from time to time require proof of financial ability of the employer to pay compensation. Any exemption shall be void if the application for it contains a financial statement which is false in any material respect. An employer who files an application containing a false financial statement remains subject to par.

(a). The department may promulgate rules establishing an amount to be charged to an initial applicant for exemption under this paragraph and an annual amount to be charged to employers that have been exempted under this paragraph.

(bm)Exemption from duty to insure; governmental employers.

1. Subject to subds. 2. to 4. , if the state or a local governmental unit that has independent taxing authority is not partially insured or fully insured for its liability for the payment of compensation under this chapter, or to the extent that the state or a local governmental unit that has independent taxing authority is not partially insured for that liability under one or more contracts issued with the consent of the department under s. 102.31

(b), and if the state or local governmental unit agrees to report faithfully all compensable injuries and to comply with this chapter and all rules of the department, the state or local governmental unit may elect to self-insure that liability without further order of the department.

2. Notwithstanding the absence of an order of exemption from the duty to insure under par.

(a), the state or a local governmental unit that elects to self-insure as provided in subd. 1. is exempt from that duty. Notwithstanding that exemption, if the state or a local governmental unit that elects to self-insure as provided in subd. 1. desires partial insurance or divided insurance, the state or local governmental unit shall obtain the consent of the department under s. 102.31

(b)to the issuance of a contract providing such insurance.

a. A local governmental unit that elects to self-insure its liability for the payment of compensation under this chapter shall notify the department of that election in writing before commencing to self-insure that liability and shall notify the department of its intent to continue to self-insure that liability every 3 years after that initial notice. A local government unit that wishes to withdraw that election shall notify the department of that withdrawal not less than 30 days before the effective date of that withdrawal.

b. A notice under subd. 3. a. shall be accompanied by a resolution adopted by the governing body of the local governmental unit and signed by the elected or appointed chief executive of the local governmental unit stating that the governing body intends and agrees to self-insure the liability of the local governmental unit for the payment of compensation under this chapter and that the local government unit agrees to report faithfully all compensable injuries and to comply with this chapter and all rules of the department.

4. An election to self-insure under subd. 1. is subject to revocation under par.

(c)2. Once such an election is revoked, the employer whose election is revoked may not elect to self-insure its liability for the payment of compensation under this chapter unless at least 3 calendar years have elapsed since the revocation and the department finds that the employer’s financial condition is adequate to pay its employees’ claims for compensation, that the employer has not received an excessive number of claims for compensation, and that the employer has faithfully discharged its obligations under this chapter and the rules of the department.

(c)Revocation of exemption or election.

1. The department, after seeking the advice of the self-insurers council, may revoke an exemption granted to an employer under par.

(b), upon giving the employer 10 days’ written notice, if the department finds that the employer’s financial condition is inadequate to pay its employees’ claims for compensation, that the employer has received an excessive number of claims for compensation, or that the employer has failed to discharge faithfully its obligations according to the agreement contained in the application for exemption.

2. The department may revoke an election made by an employer under par.

(bm), upon giving the employer 10 days’ written notice, if the department finds that the employer’s financial condition is inadequate to pay its employees’ claims for compensation, that the employer has received an excessive number of claims for compensation, or that the employer has failed to discharge faithfully its obligations under this chapter and the rules of the department.

3. Within 10 days after receipt of a notice of revocation under subd. 1. or 2. , the employer may request in writing a review of the revocation by the secretary or the secretary’s designee and the secretary or the secretary’s designee shall review the revocation within 30 days after receipt of the request for review. If the employer is aggrieved by the determination of the secretary or the secretary’s designee, the employer may, within 10 days after receipt of notice of that determination, request a hearing under s. 102.17 .

If the secretary or the secretary’s designee determines that the employer’s exemption or election should be revoked, the employer shall obtain insurance coverage as required under par.

(a)immediately upon receipt of notice of that determination and, notwithstanding the pendency of proceedings under ss. 102.17 to 102.25 , shall keep that coverage in force until another exemption under par.

(b)is granted or another election under par.

(bm)is made.

(d)Effect of insuring with unauthorized insurer. If an employer that is exempted under par.

(b)or

(bm)from the duty to insure under par.

(a)enters into any agreement for excess insurance coverage with an insurer not authorized to do business in this state, the employer shall report that agreement to the department immediately. The placing of such coverage shall not by itself be grounds for revocation of the exemption.

(e)Rules. The department shall promulgate rules to implement this subsection.

(3)Provision of alternative benefits.

(a)An employer may file with the department an application for exemption from the duty to pay compensation under this chapter with respect to any employee who signs the waiver described in subd. 1. and the affidavit described in subd. 2. if an authorized representative of the religious sect to which the employee belongs signs the affidavit specified in subd. 3. and the agreement described in subd. 4. An application for exemption under this paragraph shall include all of the following:

1. A written waiver by the employee or, if the employee is a minor, by the employee and his or her parent or guardian of all compensation under this chapter other than the alternative benefits provided under par.

(c).

2. An affidavit by the employee or, if the employee is a minor, by the employee and his or her parent or guardian stating that the employee is a member of a recognized religious sect and that, as a result of the employee’s adherence to the established tenets or teachings of the religious sect, the employee is conscientiously opposed to accepting the benefits of any public or private insurance that makes payments in the event of death, disability, old age or retirement, or that makes payments toward the cost of or provides medical care, including any benefits provided under the federal social security act, 42 USC 301 to 1397mm .

3. An affidavit by an authorized representative of the religious sect to which the employee belongs stating that the religious sect has a long-standing history of providing its members who become dependent on the support of the religious sect as a result of work-related injuries, and the dependents of those members, with a standard of living and medical treatment that are reasonable when compared to the general standard of living and medical treatment for members of the religious sect.

4. An agreement signed by an authorized representative of the religious sect to which the employee belongs to provide the financial and medical assistance described in subd. 3. to the employee and to the employee’s dependents if the employee sustains an injury which, but for the waiver under subd. 1. , the employer would be liable for under s. 102.03 .

(b)The department shall approve an application under par.

(a)if the department determines that all of the following conditions are satisfied:

1. The employee has waived all compensation under this chapter other than the alternative benefits provided under par.

(c).

2. The employee is a member of a religious sect whose established tenets or teachings oppose accepting the benefits of insurance as described in par.

(a)2. and that, as a result of adherence to those tenets or teachings, the employee conscientiously opposes accepting those benefits.

3. The religious sect to which the employee belongs has a long-established history of providing its members who become dependent on the religious sect as a result of work-related injuries, and the dependents of those members, with a standard of living and medical treatment that are reasonable when compared to the general standard of living and medical treatment for members of the religious sect. In determining whether the religious sect has a long-standing history of providing the financial and medical assistance described in this subdivision, the department shall presume that a 25-year history of providing that financial and medical assistance is long-standing for purposes of this subdivision.