While a petition for review by the commission is pending or after entry of an order or award by the commission but before commencement of an action for judicial review or expiration of the period in which to commence an action for judicial review, the commission shall remand any compromise presented to it to the department for consideration and approval or rejection pursuant to s. 102.16 (1)
. Presentation of a compromise does not affect the period in which to commence an action for judicial review.
If it shall appear to the department that a mistake may have been made as to cause of injury in the findings, order or award upon an alleged injury based on accident, when in fact the employe was suffering from an occupational disease, the department may upon its own motion, with or without hearing, within 3 years from the date of such findings, order or award, set aside such findings, order or award, or the department may take such action upon application made within such 3 years. Thereafter, and after opportunity for hearing, the department may, if in fact the employe is suffering from disease arising out of the employment, make new findings and award, or it may reinstate the previous findings, order or award.
In case of disease arising out of the employment, the department may from time to time review its findings, order or award, and make new findings, order or award, based on the facts regarding disability or otherwise as they may then appear. This subsection shall not affect the application of the limitation in s. 102.17 (4)
Committee Note, 1971: The intent is to authorize the commission within its absolute discretion to reopen final orders on the basis of mistake or newly discovered evidence within a period of one year from the date of such order where this is found to be just. It is intended that the commission have authority to grant or deny compensation, including the right to increase or to decrease benefits previously awarded. [Bill 371-A]
Interlocutory orders of the ILHR department in workmen's compensation cases are not res judicata. Worsch v. ILHR Dept. 46 W (2d) 504, 175 NW (2d) 201.
Where in a workmen's compensation case the department reverses an examiner's findings and makes independent findings, the latter should be accompanied by a memorandum opinion indicating not only prior consultation with the examiner and review of the record, but a statement or statements of reasons for reaching a different result or conclusion—this particularly where credibility of witnesses is involved. Transamerica Ins. Co. v. ILHR Dept. 54 W (2d) 272, 195 NW (2d) 656.
The department could properly find no permanent disability in the case of a successful fusion of vertebrae and still retain jurisdiction to determine future disability where doctors testified that there might be future effects. Vernon County v. ILHR Dept. 60 W (2d) 736, 211 NW (2d) 441.
Where the department in a workmen's compensation case involving conflicting testimony reverses an examiner's findings, fundamental fairness requires a separate statement by it explaining the reasons it reached its decision, as well as specifically setting forth in the record its consultation with the examiner with respect to impressions or conclusions in regard to the credibility of witnesses. Simonton v. ILHR Dept. 62 W (2d) 112, 214 NW (2d) 302.
Where department increased examiner's award, resort to AMA standards to interpret rule was proper and its validity properly could be predicated on the department's uniform administrative interpretation of its rule to mean that a contact lens does not afford a "useful" correction. Employers Mut. Liability Ins. Co. v. ILHR Dept. 62 W (2d) 327, 214 NW (2d) 587.
Sub. (5) is inapplicable where at the original hearing the examiner considered the possibility of both accidental injury and injury caused by occupational disease, and denied the applicant benefits. Murphy v. ILHR Dept. 63 W (2d) 248, 217 NW (2d) 370.
It is not disputed that the shoveling, though unusual, was part of defendant's employment activities. The doctor's testimony is thus sufficient evidence to support a conclusion that the heart attack was caused by employment-related exertion. Theodore Fleisner, Inc. v. ILHR Dept. 65 W (2d) 317, 222 NW (2d) 600.
Authority granted under (3), to modify the findings of a hearing examiner in a workmen's compensation proceeding does not extend to the making of findings and order on an alternative basis of liability neither tried by the parties nor ruled on by the examiner, and where other basis of liability is applicable, it is required to set aside the examiner's findings and order and direct the taking of additional testimony, with the examiner to make new findings as to the substituted basis. Jos. Schlitz Brewing Co. v. ILHR Dept. 67 W (2d) 185, 226 NW (2d) 492.
Where dismissal of application was neither based upon stipulation or compromise nor after a hearing, dismissal is void and limitation under 102.17 does not bar claim brought 12 years later. Kohler Co. v. DILHR, 81 W (2d) 11, 259 NW (2d) 695.
While department is not required to make specific findings as to defense to worker's claim, it is better practice to either make such findings or state why none were made. Universal Foundry Co. v. DILHR, 82 W (2d) 479, 263 NW (2d) 172.
Commission guidelines, formulated as internal standards of credibility in worker's compensation cases, are irrelevant to court's review of findings of commission. E. F. Brewer Co. v. DILHR, 82 W (2d) 634, 264 NW (2d) 222.
General finding by DILHR implies all facts necessary to support it. Valadzic v. Briggs & Stratton Corp. 92 W (2d) 583, 286 NW (2d) 540 (1979).
The commission may not reject a medical opinion absent something in the record to support the rejection; countervailing expert testimony is not required in all cases. Leist v. LIRC, 183 W (2d) 450, 515 NW (2d) 268 (Ct. App. 1994).
Sub. (1) (bp) is constitutional. Messner v. Briggs & Stratton Corp. 120 W (2d) 127, 353 NW (2d) 363 (Ct. App. 1984).
Employer was penalized for denying claim which wasn't "fairly debatable". Kimberly-Clark Corp. v. LIRC, 138 W (2d) 58, 405 NW (2d) 684 (Ct. App. 1987).
Sub. (4) (c) grants review commission exclusive authority to set aside findings due to newly discovered evidence; trial court does not possess such authority. Hopp v. LIRC, 146 W (2d) 172, 430 NW (2d) 359 (Ct. App. 1988).
To show bad faith under (1) (bp) claimant must show that employer acted without reasonable basis for delay and with knowledge of or reckless disregard of lack of reasonable basis for delay. North American Mechanical v. LIRC, 157 W (2d) 801, 460 NW (2d) 835 (Ct. App. 1990).
After commission makes final order and review period has passed, commission's decision is final for all purposes. Kwaterski v. LIRC, 158 W (2d) 112, 462 NW (2d) 534 (Ct. App. 1990).
Sub. (3) does not authorize LIRC to take administrative notice of any fact; review is limited to the record before the hearing examiner. Amsoil, Inc. v. LIRC, 173 W (2d) 154, 496 NW (2d) 150 (Ct. App. 1992).
The commission may not reject a medical opinion absent something in the record to support the rejection; countervailing expert testimony is not required in all cases. Leist v. LIRC, 183 W (2d) 450, 515 NW (2d) 268 (Ct. App. 1994).
Alien dependents; payments through consular officers.
In case a deceased employe, for whose injury or death compensation is payable, leaves surviving alien dependents residing outside of the United States, the duly accredited consular officer of the country of which such dependents are citizens or such officer's designated representative residing within the state shall, except as otherwise determined by the department, be the sole representative of the deceased employe and dependents in all matters pertaining to their claims for compensation. The receipt by such officer or agent of compensation funds and the distribution thereof shall be made only upon order of the department, and payment to such officer or agent pursuant to any such order shall be a full discharge of the benefits or compensation. Such consular officer or such officer's representative shall furnish, if required by the department, a bond to be approved by it, conditioned upon the proper application of all moneys received by such person. Before such bond is discharged, such consular officer or representative shall file with the department a verified account of the items of his or her receipts and disbursements of such compensation. Such consular officer or representative shall make interim reports to the department as it may require.
History: 1977 c. 29
Employes confined in institutions; payment of benefits.
In case an employe is adjudged insane or incompetent, or convicted of a felony, and is confined in a public institution and has wholly dependent upon the employe for support a person, whose dependency is determined as if the employe were deceased, compensation payable during the period of the employe's confinement may be paid to the employe and the employe's dependents, in such manner, for such time and in such amount as the department by order provides.
History: 1993 a. 492
Judgment on award.
If either party presents a certified copy of the award to the circuit court for any county, the court shall, without notice, render judgment in accordance therewith. A judgment rendered under this section shall have the same effect as though rendered in an action tried and determined by the court, and shall, with like effect, be entered in the judgment and lien docket.
History: 1995 a. 224
"Award" under this section means award which has become final under 102.18 (3). Warren v. Link Farms, Inc. 123 W (2d) 485, 368 NW (2d) 688 (Ct. App. 1985).
Payment of awards by municipalities.
Whenever an award is made by the department under this chapter or s. 66.191
, 1981 stats., against any municipality, the person in whose favor it is made shall file a certified copy thereof with the municipal clerk. Within 20 days thereafter, unless an appeal is taken, such clerk shall draw an order on the municipal treasurer for the payment of the award. If upon appeal such award is affirmed in whole or in part the order for payment shall be drawn within 10 days after a certified copy of such judgment is filed with the proper clerk. If more than one payment is provided for in the award or judgment, orders shall be drawn as the payments become due. No statute relating to the filing of claims against, and the auditing, allowing and payment of claims by municipalities shall apply to the payment of an award or judgment under this section.
History: 1983 a. 191
Penalty for delayed payments; interest. 102.22(1)
If the employer or his or her insurer inexcusably delays in making the first payment that is due an injured employe for more than 30 days after the day on which the employe leaves work as a result of an injury and if the amount due is $500 or more, the payments as to which the delay is found shall be increased by 10%. If the employer or his or her insurer inexcusably delays in making the first payment that is due an injured employe for more than 14 days after the day on which the employe leaves work as a result of an injury, the payments as to which the delay is found may be increased by 10%. If the employer or his or her insurer inexcusably delays for any length of time in making any other payment that is due an injured employe, the payments as to which the delay is found may be increased by 10%. Where the delay is chargeable to the employer and not to the insurer s. 102.62
shall apply and the relative liability of the parties shall be fixed and discharged as therein provided. The department may also order the employer or insurance carrier to reimburse the employe for any finance charges, collection charges or interest which the employe paid as a result of the inexcusable delay by the employer or insurance carrier.
If the sum ordered by the department to be paid is not paid when due, that sum shall bear interest at the rate of 10% per year. The state is liable for such interest on awards issued against it under this chapter. The department has jurisdiction to issue award for payment of such interest at any time within one year of the date of its order, or upon appeal after final court determination. Such interest becomes due from the date the examiner's order becomes final or from the date of a decision by the labor and industry review commission, whichever is later.
If upon petition for review the commission affirms an examiner's order, interest at the rate of 7% per year on the amount ordered by the examiner shall be due for the period beginning on the 21st day after the date of the examiner's order and ending on the date paid under the commission's decision. If upon petition for judicial review under s. 102.23
the court affirms the commission's decision, interest at the rate of 7% per year on the amount ordered by the examiner shall be due up to the date of the commission's decision, and thereafter interest shall be computed under sub. (2)
The department can assess the penalty for inexcusable delay in making payments prior to the entry of an order. The question of inexcusable delay is one of law and the courts are not bound by the department's finding as to it. Milwaukee County v. ILHR Dept. 48 W (2d) 392, 180 NW (2d) 513.
Penalty under (1) does not bar action for bad faith failure to pay claim. Coleman v. American Universal Ins. Co. 86 W (2d) 615, 273 NW (2d) 220 (1979).
Judicial review. 102.23(1)(a)(a)
The findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive. The order or award granting or denying compensation, either interlocutory or final, whether judgment has been rendered on it or not, is subject to review only as provided in this section and not under ch. 227
or s. 801.02
. Within 30 days after the date of an order or award made by the commission either originally or after the filing of a petition for review with the department under s. 102.18
any party aggrieved thereby may by serving a complaint as provided in par. (b)
and filing the summons and complaint with the clerk of the circuit court commence, in circuit court, an action against the commission for the review of the order or award, in which action the adverse party shall also be made a defendant. If the circuit court is satisfied that a party in interest has been prejudiced because of an exceptional delay in the receipt of a copy of any finding or order, it may extend the time in which an action may be commenced by an additional 30 days. The proceedings shall be in the circuit court of the county where the plaintiff resides, except that if the plaintiff is a state agency, the proceedings shall be in the circuit court of the county where the defendant resides. The proceedings may be brought in any circuit court if all parties stipulate and that court agrees.
In such an action a complaint shall be served with an authenticated copy of the summons. The complaint need not be verified, but shall state the grounds upon which a review is sought. Service upon a commissioner or agent authorized by the commission to accept service constitutes complete service on all parties, but there shall be left with the person so served as many copies of the summons and complaint as there are defendants, and the commission shall mail one copy to each other defendant.
The commission shall serve its answer within 20 days after the service of the complaint, and, within the like time, the adverse party may serve an answer to the complaint, which answer may, by way of counterclaim or cross complaint, ask for the review of the order or award referred to in the complaint, with the same effect as if the party had commenced a separate action for the review thereof.
The commission shall make return to the court of all documents and papers on file in the matter, and of all testimony which has been taken, and of the commission's order, findings and award. Such return of the commission when filed in the office of the clerk of the circuit court shall, with the papers mentioned in s. 809.15
constitute a judgment roll in the action; and it shall not be necessary to have a transcript approved. The action may thereupon be brought on for hearing before the court upon the record by either party on 10 days' notice to the other; subject, however, to the provisions of law for a change of the place of trial or the calling in of another judge.
Upon such hearing, the court may confirm or set aside such order or award; and any judgment which may theretofore have been rendered thereon; but the same shall be set aside only upon the following grounds:
That the commission acted without or in excess of its powers.
That the findings of fact by the commission do not support the order or award.
Upon the trial of any such action the court shall disregard any irregularity or error of the commission or the department unless it is made to affirmatively appear that the plaintiff was damaged thereby.
The record in any case shall be transmitted to the department within 5 days after expiration of the time for appeal from the order or judgment of the court, unless appeal shall be taken from such order or judgment.
Whenever an award is made against the state the attorney general may bring an action for review thereof in the same manner and upon the same grounds as are provided by sub. (1)
The commencement of action for review shall not relieve the employer from paying compensation as directed, when such action involves only the question of liability as between the employer and one or more insurance companies or as between several insurance companies.
If the commission's order or award depends on any fact found by the commission, the court shall not substitute its judgment for that of the commission as to the weight or credibility of the evidence on any finding of fact. The court may, however, set aside the commission's order or award and remand the case to the commission if the commission's order or award depends on any material and controverted finding of fact that is not supported by credible and substantial evidence.
History: 1973 c. 150
; 1975 c. 199
; Sup. Ct. Order, 73 W (2d) xxxi (1976); 1977 c. 29
; 1977 c. 187
; 1977 c. 195
; Sup. Ct. Order, 83 W (2d) xiii (1978); 1979 c. 278
; 1981 c. 390
; 1983 a. 98
; 1985 a. 83
Judicial Council Committee's Note, 1976: The procedure for initiating a petition for judicial review under ch. 102 is governed by the provisions of s. 102.23 rather than the provisions for initiating a civil action under s. 801.02. [Re Order effective Jan. 1, 1977]
The fact that a party appealing from an order of ILHR as to unemployment compensation labeled his petition "under 227.15, 1983 stats. [now 227.52]", is immaterial since the circuit court had subject matter jurisdiction. An answer by the department that s. 227.15, 1983 stats. [now 227.52] gave no jurisdiction amounted to an appearance and the department could not later claim that the court had no personal jurisdiction because appellant had not served a summons and complaint. Lees v. ILHR Dept. 49 W (2d) 491, 182 NW (2d) 245.
A finding of fact, whether ultimate or evidentiary, is still in its essential nature a fact, whereas a conclusion of law accepts the facts ultimate and evidentiary and by judicial reasoning results from the application of rules or concepts of law to those facts whether the facts are undisputed or not. Kress Packing Co. v. Kottwitz, 61 W (2d) 175, 212 NW (2d) 97.
Challenge to the constitutionality of (1) is not sustained, since it is manifest from the statute that the legislature intended to have the department be the real party in interest and not a mere nominal party. Hunter v. ILHR Dept. 64 W (2d) 97, 218 NW (2d) 314.
See note to 807.07, citing Cruz v. DILHR, 81 W (2d) 442, 260 NW (2d) 692.
Employer whose unemployment compensation account is not affected by commission's determination has no standing to seek judicial review. Cornwell Personnel Associates v. ILHR Dept. 92 W (2d) 53, 284 NW (2d) 706 (Ct. App. 1979).
Two methods of analyzing agency's mixed conclusions of law and finding of fact discussed. United Way of Greater Milwaukee v. DILHR, 105 W (2d) 447, 313 NW (2d) 858 (Ct. App. 1981).
Failure properly to serve commission pursuant to (1) (b) results in jurisdictional defect, rather than mere technical error. Gomez v. LIRC, 153 W (2d) 686, 451 NW (2d) 475 (Ct. App. 1989).
See note to 752.35, citing Kwaterski v. LIRC, 158 W (2d) 112, 462 NW (2d) 534 (Ct. App. 1990).
Discussion of who is an "adverse party" under sub. (1) (a). Brandt v. LIRC, 166 W (2d) 623, 480 NW (2d) 673 (1992), Miller Brewing Co. v. LIRC, 173 W (2d) 700, 495 NW (2d) 660 (1993).
Judicial review of workmen's compensation cases. Haferman, 1973 WLR 576.
Remanding record. 102.24(1)(1)
Upon the setting aside of any order or award, the court may recommit the controversy and remand the record in the case to the commission for further hearing or proceedings, or it may enter the proper judgment upon the findings of the commission, as the nature of the case shall demand. An abstract of the judgment entered by the trial court upon the review of any order or award shall be made by the clerk of circuit court upon the judgment and lien docket entry of any judgment which may have been rendered upon the order or award. Transcripts of the abstract may be obtained for like entry upon the judgment and lien dockets of the courts of other counties.
After the commencement of an action to review any award of the commission the parties may have the record remanded by the court for such time and under such condition as they may provide, for the purpose of having the department act upon the question of approving or disapproving any settlement or compromise that the parties may desire to have so approved. If approved the action shall be at an end and judgment may be entered upon the approval as upon an award. If not approved the record shall forthwith be returned to the circuit court and the action shall proceed as if no remand had been made.
Appeal from judgment on award. 102.25(1)
Any party aggrieved by a judgment entered upon the review of any order or award may appeal therefrom within the time period specified in s. 808.04 (1)
. A trial court shall not require the commission or any party to the action to execute, serve or file an undertaking under s. 808.07
or to serve, or secure approval of, a transcript of the notes of the stenographic reporter or the tape of the recording machine. The state is a party aggrieved under this subsection if a judgment is entered upon the review confirming any order or award against it. At any time before the case is set down for hearing in the court of appeals or the supreme court, the parties may have the record remanded by the court to the department in the same manner and for the same purposes as provided for remanding from the circuit court to the department under s. 102.24 (2)
It shall be the duty of the clerk of any court rendering a decision affecting an award of the commission to promptly furnish the commission with a copy of such decision without charge.
History: 1971 c. 148
; Sup. Ct. Order, 67 W (2d) 585, 774 (1975); 1977 c. 29
; 1979 c. 278
; 1983 a. 219
Judicial Council Note, 1983: Sub. (1) is amended to replace the appeal deadline of 30 days after service of notice of entry of judgment or award by the standard time specified in s. 808.04 (1), stats., for greater uniformity. The subsection is further amended to eliminate the superfluous provisions for calendaring and hearing the appeal. [Bill 151-S]
Section 269.36 applies to appeals to the supreme court; when service of an entry of judgment by the circuit court is served by mail, the time for appeal is extended to 35 days. The time runs from the date of mailing. Chequamegon Telephone Cooperative v. ILHR Dept. 55 W (2d) 507, 200 NW (2d) 441.
An appeal to the supreme court by a party who has unsuccessfully sought judicial review in the circuit court of an order or award in a workmen's compensation case, must be taken, under (1), within 30 days from the date of service of the notice of entry of the circuit court judgment or within 35 days if service is effected by mail. Beloit Corp. v. ILHR Dept. 63 W (2d) 23, 216 NW (2d) 233.
See note to 808.03, citing Bearns v. DILHR, 102 W (2d) 70, 306 NW (2d) 22 (1981).
No fees may be charged by the clerk of any circuit court for the performance of any service required by this chapter, except for the entry of judgments and certified transcripts of judgments. In proceedings to review an order or award, costs as between the parties shall be in the discretion of the court, but no costs may be taxed against the commission.
Unless previously authorized by the department, no fee may be charged or received for the enforcement or collection of any claim for compensation, nor may any contract therefor be enforceable where such fee, inclusive of all taxable attorney fees paid or agreed to be paid for such enforcement or collection, exceeds 20% of the amount at which such claim is compromised or of the amount awarded, adjudged or collected, except that in cases of admitted liability where there is no dispute as to amount of compensation due and in which no hearing or appeal is necessary, the fee charged shall not exceed 10% but not to exceed $100, of the amount at which such claim is compromised or of the amount awarded, adjudged or collected. The limitation as to fees shall apply to the combined charges of attorneys, solicitors, representatives and adjusters who knowingly combine their efforts toward the enforcement or collection of any compensation claim.
In any action for the recovery of costs of hospitalization in a tuberculosis sanatorium, where such cost was incurred by a patient whose tuberculosis entitled the patient to worker's compensation, no attorney fee for the recovery of such cost shall be allowed to the attorney for such patient in such worker's compensation action, unless, by express agreement with the governing board of such institution the attorney has been retained by such governing board to also act as its attorney.
Except as provided in par. (b)
, compensation exceeding $100 in favor of any claimant shall be made payable to and delivered directly to the claimant in person.
The department may upon application of any interested party and subject to sub. (2)
fix the fee of the claimant's attorney or representative and provide in the award for that fee to be paid directly to the attorney or representative.
At the request of the claimant medical expense, witness fees and other charges associated with the claim may be ordered paid out of the amount awarded.