If the disability caused by the injury is at times total and at times partial, the weekly indemnity during each total or partial disability shall be in accordance with subs. (1)
If the disability period involves a fractional week, indemnity shall be paid for each day of such week, except Sundays only, at the rate of one-sixth of the weekly indemnity.
Temporary disability, during which compensation shall be payable for loss of earnings, shall include such period as may be reasonably required for training in the use of artificial members and appliances, and shall include such period as the employe may be receiving instruction pursuant to s. 102.61 (1)
. Temporary disability on account of receiving instruction of the latter nature, and not otherwise resulting from the injury, shall not be in excess of 80 weeks. Such 80-week limitation does not apply to temporary disability benefits under this section, travel or maintenance expense under s. 102.61 (1)
or private rehabilitation counseling or rehabilitative training costs under s. 102.61 (1m)
if the department determines that additional training is warranted. The necessity for additional training as authorized by the department for any employe shall be subject to periodic review and reevaluation.
Except as provided in par. (b)
, no sick leave benefits provided in connection with other employment or wages received from other employment held by the employe when the injury occurred may be considered in computing actual wage loss from the employer in whose employ the employe sustained injury.
Wages received from other employment held by the employe when the injury occurred shall be considered in computing actual wage loss from the employer in whose employ the employe sustained the injury, if the employe's weekly temporary disability benefits are calculated under s. 102.11 (1) (a)
Wages received from the employer in whose employ the employe sustained injury or from other employment obtained after the injury occurred shall be considered in computing benefits for temporary disability.
If an employe has a renewed period of temporary disability commencing more than 2 years after the date of injury and, except as provided in par. (b)
, the employe returned to work for at least 10 days preceding the renewed period of disability, payment of compensation for the new period of disability shall be made as provided in par. (c)
An employe need not return to work at least 10 days preceding a renewed period of temporary disability to obtain benefits under sub. (5)
for rehabilitative training commenced more than 2 years after the date of injury. Benefits for rehabilitative training shall be made as provided in par. (c)
If the employe was entitled to maximum weekly benefits at the time of injury, payment for the renewed temporary disability or the rehabilitative training shall be at the maximum rate in effect at the commencement of the new period.
If the employe was entitled to less than the maximum rate, the employe shall receive the same proportion of the maximum which is in effect at the time of the commencement of the renewed period or the rehabilitative training as the employe's actual rate at the time of injury bore to the maximum rate in effect at that time.
For an employe who is receiving rehabilitative training, a holiday break, semester break or other, similar scheduled interruption in a course of instruction does not commence a new period of rehabilitative training under this paragraph.
During a compulsory vacation period scheduled in accordance with a collective bargaining agreement:
Regardless of whether the employe's healing period has ended, no employe at work immediately before the compulsory vacation period may receive a temporary total disability benefit for injury sustained while engaged in employment for that employer.
An employe receiving temporary partial disability benefits immediately before the compulsory vacation period for injury sustained while engaged in employment for that employer shall continue to receive those benefits.
Committee Note, 1971: Employes who have two jobs who have been injured at one of them have in some cases been made totally disabled for work at either job. Sick leave benefits from the other employer has suspended eligibility for compensation or has reduced compensation even though the employe suffered a wage loss. This is considered to be inequitable. Sick leave benefits from the employer where injury occurred are to be considered, however, in determining eligibility for compensation from such employer. [Bill 371-A]
Retroactive application of 102.43 (7), 1979 stats., doesn't violate contract clause or due process clause of constitution. Chappy v. LIRC, 136 W (2d) 172, 401 NW (2d) 568 (1987).
See note to 102.61, citing Beloit Corp. v. State, 152 W (2d) 579, 449 NW (2d) 299 (Ct. App. 1989).
Maximum limitations. Section 102.43
shall be subject to the following limitations:
Notwithstanding any other provision of this chapter, every employe who is receiving compensation under this chapter for permanent total disability or continuous temporary total disability more than 24 months after the date of injury resulting from an injury which occurred prior to January 1, 1976, shall receive supplemental benefits which shall be payable in the first instance by the employer or the employer's insurance carrier, or in the case of benefits payable to an employe under s. 102.66
, shall be paid by the department out of the fund created under s. 102.65
. These supplemental benefits shall be paid only for weeks of disability occurring after January 1, 1978, and shall continue during the period of such total disability subsequent to that date.
If such employe is receiving the maximum weekly benefits in effect at the time of the injury, the supplemental benefit shall be an amount which, when added to the regular benefit established for the case, shall equal $150.
If such employe is receiving a weekly benefit which is less than the maximum benefit which was in effect on the date of the injury, the supplemental benefit shall be an amount sufficient to bring the total weekly benefits to the same proportion of $150 as the employe's weekly benefit bears to the maximum in effect on the date of injury.
The employer or insurance carrier paying the supplemental benefits required under this subsection shall be entitled to reimbursement for each such case from the fund established by s. 102.65
, commencing one year from the date of the first such payment and annually thereafter while such payments continue. Claims for such reimbursement shall be approved by the department.
In case of permanent total disability aggregate indemnity shall be weekly indemnity for the period that the employe may live. Total impairment for industrial use of both eyes, or the loss of both arms at or near the shoulder, or of both legs at or near the hip, or of one arm at the shoulder and one leg at the hip, constitutes permanent total disability. This enumeration is not exclusive, but in other cases the department shall find the facts.
For permanent partial disability not covered by ss. 102.52
, the aggregate number of weeks of indemnity shall bear such relation to 1,000 weeks as the nature of the injury bears to one causing permanent total disability and shall be payable at the rate of two-thirds of the average weekly earnings of the employe, the earnings to be computed as provided in s. 102.11
. The weekly indemnity shall be in addition to compensation for the healing period and shall be for the period that the employe may live, not to exceed 1,000 weeks.
Where the permanent disability is covered by ss. 102.52
, such sections shall govern; provided, that in no case shall the percentage of permanent total disability be taken as more than 100 per cent.
In cases where it is determined that periodic benefits granted by the federal social security act are paid to the employe because of disability, the benefits payable under this chapter shall be reduced as follows:
For each dollar that the total monthly benefits payable under this chapter, excluding attorney fees and costs, plus the monthly benefits payable under the social security act for disability exceed 80% of the employe's average current earnings as determined by the social security administration, the benefits payable under this chapter shall be reduced by the same amount so that the total benefits payable shall not exceed 80% of the employe's average current earnings. However, no total benefit payable under this chapter and under the federal social security act may be reduced to an amount less than the benefit payable under this chapter.
No reduction under this section shall be made because of an increase granted by the social security administration as a cost of living adjustment.
Failure of the employe, except for excusable neglect, to report social security disability payments within 30 days after written request shall allow the employer or insurance carrier to reduce weekly compensation benefits payable under this chapter by 75%. Compensation benefits otherwise payable shall be reimbursed to the employe after reporting.
The employer or insurance carrier making such reduction shall report to the department the reduction and as requested by the department, furnish to the department satisfactory proof of the basis for the reduction.
The reduction prescribed by this section shall be allowed only as to payments made on or after July 1, 1980, and shall be computed on the basis of payments made for temporary total, temporary partial, permanent total and permanent partial disability.
No reduction shall take into account payments made under the social security act to dependents of an employe.
Where an injured employe claiming compensation for disability under sub. (2)
has returned to work for the employer for whom he or she worked at the time of the injury, the permanent disability award shall be based upon the physical limitations resulting from the injury without regard to loss of earning capacity unless the actual wage loss in comparison with earnings at the time of injury equals or exceeds 15%.
If, during the period set forth in s. 102.17 (4)
the employment relationship is terminated by the employer at the time of the injury, or by the employe because his or her physical or mental limitations prevent his or her continuing in such employment, or if during such period a wage loss of 15% or more occurs the department may reopen any award and make a redetermination taking into account loss of earning capacity.
The determination of wage loss shall not take into account any period during which benefits are payable for temporary disability.
The determination of wage loss shall not take into account any period during which benefits are paid under ch. 108
For the purpose of determining wage loss, payment of benefits for permanent partial disability shall not be considered payment of wages.
Wage loss shall be determined on wages, as defined in s. 102.11
. Percentage of wage loss shall be calculated on the basis of actual average wages over a period of at least 13 weeks.
For purposes of this subsection, if the employer in good faith makes an offer of employment which is refused by the employe without reasonable cause, the employe is considered to have returned to work with the earnings the employe would have received had it not been for the refusal.
In all cases of permanent partial disability not covered by ss. 102.52
, whether or not the employe has returned to work, the permanent partial disability shall not be less than that imposed by the physical limitations.
Committee Note, 1971: Employes who are totally disabled receive compensation at the wage level and the compensation rate in effect as of the date of their injury. This is an average of approximately $45.90 per week for the employes who are injured previous to February 1, 1970. The intent is to provide for payment of supplemental benefits; for example, an employe who was injured in October 1951 and earning wages in excess of the maximum of $52.86 is receiving $37 a week for total disability. This employe will receive supplemental benefits of $42 a week to bring the total up to $79, which was the maximum February 1, 1970. An employe injured in October 1951 with a wage of $26.43 has been receiving $18.50 per week for total disability. This is 50% of the maximum in effect in October 1951. Such employe will receive supplemental benefits of $21 a week to bring the total up to $39.50, which is 50% of the maximum in effect February 1, 1970. It is not intended that any death benefit payment be affected by this section. [Bill 371-A]
The department must disregard total loss of earning capacity in the case of a relative scheduled injury. Mednicoff v. ILHR Dept. 54 W (2d) 7, 194 NW (2d) 670.
"Odd-lot" doctrine discussed. Balczewski v. DILHR, 76 W (2d) 487, 251 NW (2d) 794.
Sub. (6) (a) includes only wage loss suffered at employment where injury occurred and does not include wage loss from second job. Ruff v. LIRC, 159 W (2d) 239, 464 NW (2d) 56 (Ct. App. 1990).
LIRC exceeded its authority when it ordered temporary total disability payments for an indefinite future period. TTD payments are not authorized for the period after a medical condition has stabilized and before the employe undergoes surgery. GTC Auto Parts v. LIRC, 184 W (2d) 450, 516 NW (2d) 313 (Ct. App. 1993).
See note to Art. IV, s. 26 as to (1), citing 62 Atty. Gen. 69.
Benefits payable to minors; how paid.
Compensation and death benefit payable to an employe or dependent who was a minor when the employe's or dependent's right began to accrue, may, in the discretion of the department, be ordered paid to a bank, trust company, trustee, parent or guardian, for the use of such employe or dependent as may be found best calculated to conserve the employe's or dependent's interests. Such employe or dependent shall be entitled to receive payments, in the aggregate, at a rate not less than that applicable to payments of primary compensation for total disability or death benefit as accruing from the employe's or dependent's 18th birthday.
History: 1973 c. 150
; 1993 a. 492
Where death proximately results from the injury and the deceased leaves a person wholly dependent upon him or her for support, the death benefit shall equal 4 times his or her average annual earnings, but when added to the disability indemnity paid and due at the time of death, shall not exceed two-thirds of weekly wage for the number of weeks set out in s. 102.44 (3)
History: 1979 c. 278
; 1981 c. 92
Death benefits under the worker's compensation law. Fortune. WBB Apr. 1987.
Death benefit, continued.
If death occurs to an injured employe other than as a proximate result of the injury, before disability indemnity ceases, death benefit and burial expense allowance shall be as follows:
Where the injury proximately causes permanent total disability, they shall be the same as if the injury had caused death, except that the burial expense allowance shall be included in the items subject to the limitation stated in s. 102.46
. The amount available shall be applied toward burial expense before any is applied toward death benefit. If there are no surviving dependents the amount payable to dependents shall be paid, as provided in s. 102.49 (5) (b)
, to the fund created under s. 102.65
Where the injury proximately causes permanent partial disability, the unaccrued compensation shall first be applied toward funeral expenses, not to exceed the amount specified in s. 102.50
. Any remaining sum shall be paid to dependents, as provided in this section and ss. 102.46
, and there is no liability for any other payments. All computations under this subsection shall take into consideration the present value of future payments. If there are no surviving dependents the amount payable to dependents shall be paid, as provided in s. 102.49 (5) (b)
, to the fund created under s. 102.65
Death benefit; law enforcement and correctional officers, fire fighters, rescue squad members, national or state guard members and emergency management personnel. 102.475(1)(1)
If the deceased employe is a law enforcement officer, correctional officer, fire fighter, rescue squad member, national guard member or state defense force member on state active duty as described in s. 102.07 (9)
or if a deceased person is an employe or volunteer performing emergency management activities under ch. 166
during a state of emergency or a circumstance described in s. 166.04
, who sustained an accidental injury while performing services growing out of and incidental to that employment or volunteer activity so that benefits are payable under s. 102.46
or 102.47 (1)
, the department shall voucher and pay from the appropriation under s. 20.445 (1) (aa)
a sum equal to 75% of the primary death benefit as of the date of death, but not less than $50,000 to the persons wholly dependent upon the deceased. For purposes of this subsection, dependency shall be determined under ss. 102.49
If there are more than 4 persons who are wholly dependent upon the deceased employe an additional benefit of $2,000 shall be paid for each dependent in excess of 4.
If there is more than one person who is wholly dependent upon the deceased employe, the benefits under this section shall be apportioned between such dependents on the same proportional basis as the primary death benefit.
Notwithstanding sub. (1)
, if there are partial dependents of the deceased employe who are entitled to benefits under s. 102.48
, they shall be entitled to such portion of the benefit determined under sub. (1)
that their partial dependency benefit bears to the primary benefit payable to one wholly dependent upon the deceased. No payment to a partial dependent shall be less than $1,000.
In case of dispute, dependents may file applications as provided in s. 102.17
, and ss. 102.17
shall apply. In such case, if the claim for a primary death benefit is compromised, any claim under this section shall be compromised on the same proportional basis. The attorney general shall represent the interests of the state in case of such dispute.
Benefits due to minors under this section may be paid as provided in s. 102.45
In administering this section the department may require reasonable proof of birth, marriage, relationship or dependency.
(7) Not to affect other rights, benefits or compensation.
The compensation provided for in this section is in addition to, and not exclusive of, any pension rights, death benefits or other compensation otherwise payable by law.
As used in this section:
"Correctional officer" means any person employed by the state or any political subdivision as a guard or officer whose principal duties are supervision and discipline of inmates at a penal institution, prison, jail, house of correction or other place of penal detention.
"Fire fighter" means any person employed by the state or any political subdivision as a member or officer of a fire department or a member of a volunteer department, including the state fire marshal and deputies or a member of a legally organized rescue squad.
"Law enforcement officer" means any person employed by the state or any political subdivision for the purpose of detecting and preventing crime and enforcing laws or ordinances and who is authorized to make arrests for violations of the laws or ordinances the person is employed to enforce, whether that enforcement authority extends to all laws or ordinances or is limited to specific laws or ordinances.
"Political subdivision" includes counties, municipalities and municipal corporations.
"State" means the state of Wisconsin and its departments, divisions, boards, bureaus, commissions, authorities and colleges and universities.
Death benefit, continued.
If no person who survives the deceased employe is wholly dependent upon the deceased employe for support, partial dependency and death benefits therefor shall be as follows:
An unestranged surviving parent or parents to whose support the deceased has contributed less than $500 in the 52 weeks next preceding the injury causing death shall receive a death benefit of $6,500. If the parents are not living together, the department shall divide this sum in such proportion as it deems to be just, considering their ages and other facts bearing on dependency.
In all other cases the death benefit shall be such sum as the department shall determine to represent fairly and justly the aid to support which the dependent might reasonably have anticipated from the deceased employe but for the injury. To establish anticipation of support and dependency, it shall not be essential that the deceased employe made any contribution to support. The aggregate benefits in such case shall not exceed twice the average annual earnings of the deceased; or 4 times the contributions of the deceased to the support of such dependents during the year immediately preceding the deceased employe's death, whichever amount is the greater. In no event shall the aggregate benefits in such case exceed the amount which would accrue to a person solely and wholly dependent. Where there is more than one partial dependent the weekly benefit shall be apportioned according to their relative dependency. The term "support" as used in ss. 102.42
shall include contributions to the capital fund of the dependents, for their necessary comfort.
A death benefit, other than burial expenses, except as otherwise provided, shall be paid in weekly instalments corresponding in amount to two-thirds of the weekly earnings of the employe, until otherwise ordered by the department.
Additional death benefit for children, state fund. 102.49(1)(1)
Where the beneficiary under s. 102.46
or 102.47 (1)
is the wife or husband of the deceased employe and is wholly dependent for support, an additional death benefit shall be paid from the funds provided by sub. (5)
for each child by their marriage who is living at the time of the death of the employe, and who is likewise wholly dependent upon the employe for support. Such payment shall commence at the time that primary death benefit payments are completed, or if advancement of compensation has been paid at the time when payments would normally have been completed. Payments shall continue at the rate of 10% of the surviving parent's weekly indemnity until the child's 18th birthday. If the child is physically or mentally incapacitated, such payments may be continued beyond the 18th birthday but the payments may not continue for more than a total of 15 years.
A child lawfully adopted by the deceased employe and the surviving spouse, prior to the time of the injury, and a child not the deceased employe's own by birth or adoption but living with the deceased employe as a member of the deceased employe's family at the time of the injury shall for the purpose of this section be taken as a child by their marriage.
Where the employe leaves a wife or husband wholly dependent and also a child or children by a former marriage or adoption, likewise wholly dependent, aggregate benefits shall be the same in amount as if the children were the children of such surviving spouse, and the entire benefit shall be apportioned to the dependents in such amounts as the department shall determine to be just, considering their ages and other facts bearing on dependency. The benefit awarded to the surviving spouse shall not exceed four times the average annual earnings of the deceased employe.
Dependency of any child for the purposes of this section shall be determined according to s. 102.51 (1)
, in like manner as would be done if there was no surviving dependent parent.