Fourth Quarter 2020

Wisconsin

By: Adam Barraza

Question:

In a compensable Wisconsin workers compensation claim, can a medical provider seek reimbursement from an employee?

Short Answer:

Yes, in Wisconsin a medical provider can seek reimbursement from an employee in a workers’ compensation claim if certain procedures as outlined below are not followed, even if the claim is otherwise compensable.  The process regarding how a medical provider seeks reimbursement from either an employee or employer will be discussed in the next newsletter.

Discussion:

Even if there is an otherwise compensable Wisconsin workers’ compensation claim, a medical provider can in theory seek reimbursement from an employee unless the Respondent-carrier formally invokes a reasonableness of fee or necessity of treatment dispute. See, Wis. Stat. §§ 102.16(2), 102.16(2m). Where the reasonableness of a provider’s fee or the necessity of a provider’s treatment is subject to dispute, and that dispute is communicated in writing to the provider, then the provider is prohibited from attempting to seek reimbursement from the injured worker. In fact, carriers must invoke reasonableness of fee and necessity of treatment defenses through specific written communications that require the Respondent-carrier to put the provider on notice regarding this prohibition on direct collection. Id. By rule, the written notice of dispute from the Respondent-carrier must include language confirming “the provider may not collect a fee for the disputed treatment from, or bring an action for collection of the fee for that disputed treatment against, the employee who received the treatment.” DWD 80.72(3)(a)8; see also, DWD 80.73(3)(a)8.

If the claim is compensable but a reasonableness of fee or necessity of treatment dispute notice has not been sent to a provider, then that provider is free to bill the injured worker’s insurance or otherwise seek reimbursement from an employee. See Wis. Stat. §§ 102.16(2), 102.16(2m) (both provisions, for fees and necessity of treatment issues, discuss how the prohibition on direct billing occurs “[a]fter receiving reasonable written notice under this paragraph . . . ”). Wisconsin workers’ compensation law should not be read to prevent the employee from seeking and using coverage afforded regardless of the claim. See Wis. Stat. § 102.30(1). That the practice of direct billing is otherwise permitted is evidenced by the manner in which Wisconsin courts have found non-industrial carriers can proceed against injured workers regarding  claims surrounding work-related medical expense liability. While only the injured worker and employer (and by extension the employer’s WC carrier) can become parties to Wisconsin workers’ compensation litigation, a non-industrial carrier such as a group health provider can proceed directly against the employee for claims for reimbursement for medical expenses related to a work injury. Employers Health Ins. Co. v. Tesmer, 161 Wis. 2d 733, 738, 469 N.W.2d 203, 205 (Ct. App. 1991).

Practice Tip:

If you are handling a compensable claim, where appropriate, assert the reasonableness of the medical provider’s fee or the necessity of the medical provider’s treatment to avoid the medical provider seeking reimbursement from the employee directly.