102.04 Annotation
When an employe simultaneously performs service for 2 employers under their joint control and the service for each is the same or closely related, both employers are liable for workmen's compensation. Insurance Co. of N. A. v. ILHR Dept. 45 W (2d) 361, 173 NW (2d) 192.
102.05
102.05
Election by employer, withdrawal. 102.05(1)
(1) An employer who has had no employe at any time within a continuous period of 2 years shall be deemed to have effected withdrawal, which shall be effective on the last day of such period. An employer who has not usually employed 3 employes and who has not paid wages of at least $500 for employment in this state in any calendar quarter in a calendar year may file a withdrawal notice with the department, which withdrawal shall take effect 30 days after the date of such filing or at such later date as is specified in the notice. If an employer who is subject to this chapter only because the employer elected to become subject to this chapter under
sub. (2) cancels or terminates his or her contract for the insurance of compensation under this chapter, that employer is deemed to have effected withdrawal, which shall be effective on the day after the contract is canceled or terminated.
102.05(2)
(2) Any employer who shall enter into a contract for the insurance of compensation, or against liability therefor, shall be deemed thereby to have elected to accept the provisions of this chapter, and such election shall include farm laborers, domestic servants and employes not in the course of a trade, business, profession or occupation of the employer if such intent is shown by the terms of the policy. Such election shall remain in force until withdrawn in the manner provided in
sub. (1).
102.05(3)
(3) Any person engaged in farming who has become subject to this chapter may withdraw by filing with the department a notice of withdrawal, if the person has not employed 6 or more employes as defined by
s. 102.07 (5) on 20 or more days during the current or previous calendar year. Such withdrawal shall be effective 30 days after the date of receipt by the department, or at such later date as is specified in the notice. Such person may again become subject to this chapter as provided by
s. 102.04 (1) (c) and
(e).
102.05 History
History: 1983 a. 98 s.
31;
1993 a. 81,
492.
102.06
102.06
Joint liability of employer and contractor. An employer shall be liable for compensation to an employe of a contractor or subcontractor under the employer who is not subject to this chapter, or who has not complied with the conditions of
s. 102.28 (2) in any case where such employer would have been liable for compensation if such employe had been working directly for the employer, including also work in the erection, alteration, repair or demolition of improvements or of fixtures upon premises of such employer which are used or to be used in the operations of such employer. The contractor or subcontractor, if subject to this chapter, shall also be liable for such compensation, but the employe shall not recover compensation for the same injury from more than one party. The employer who becomes liable for and pays such compensation may recover the same from such contractor, subcontractor or other employer for whom the employe was working at the time of the injury if such contractor, subcontractor or other employer was an employer as defined in
s. 102.04. This section does not apply to injuries occurring on or after the first day of the first July beginning after the day that the secretary files the certificate under
s. 102.80 (3) (a), except that if the secretary files the certificate under
s. 102.80 (3) (ag) this section does apply to claims for compensation filed on or after the date specified in that certificate.
102.06 Annotation
"Contractor under" is one who regularly furnishes to a principal employer materials or services which are integrally related to the finished product or service provided by that principal employer. Green Bay Packaging, Inc. v. DILHR, 72 W (2d) 26, 240 NW (2d) 422.
102.06 Annotation
Franchisee held to be "contractor under" franchisor within meaning of this section. Maryland Cas. Co. v. DILHR, 77 W (2d) 472, 253 NW (2d) 228.
102.06 Annotation
Liability of principal employer for injuries to employes of his contractors or subcontractors. 1977 WLR 185.
102.07
102.07
Employe defined. "Employe" as used in this chapter means:
102.07(1)(a)(a) Every person, including all officials, in the service of the state, or of any municipality therein whether elected or under any appointment, or contract of hire, express or implied, and whether a resident or employed or injured within or without the state. The state and any municipality may require a bond from a contractor to protect the state or municipality against compensation to employes of such contractor or employes of a subcontractor under the contractor. This paragraph does not apply beginning on the first day of the first July beginning after the day that the secretary files the certificate under
s. 102.80 (3) (a), except that if the secretary files the certificate under
s. 102.80 (3) (ag) this paragraph does apply to claims for compensation filed on or after the date specified in that certificate.
102.07(1)(b)
(b) Every person, including all officials, in the service of the state, or of any municipality therein whether elected or under any appointment, or contract of hire, express or implied, and whether a resident or employed or injured within or without the state. This paragraph first applies on the first day of the first July beginning after the day that the secretary files the certificate under
s. 102.80 (3) (a), except that if the secretary files the certificate under
s. 102.80 (3) (ag) this paragraph does apply to claims for compensation filed on or after the date specified in that certificate.
102.07(2)
(2) Any peace officer shall be considered an employe while engaged in the enforcement of peace or in the pursuit and capture of those charged with crime.
102.07(3)
(3) Nothing herein contained shall prevent municipalities from paying teachers, police officers, fire fighters and other employes full salaries during disability, nor interfere with any pension funds, nor prevent payment to teachers, police officers or fire fighters therefrom.
102.07(4)(a)(a) Every person in the service of another under any contract of hire, express or implied, all helpers and assistants of employes, whether paid by the employer or employe, if employed with the knowledge, actual or constructive, of the employer, including minors, who shall have the same power of contracting as adult employes, but not including the following:
102.07(4)(a)2.
2. Any person whose employment is not in the course of a trade, business, profession or occupation of the employer, unless as to any of said classes, the employer has elected to include them.
102.07(4)(b)
(b) Par.
(a) 2. shall not operate to exclude an employe whose employment is in the course of any trade, business, profession or occupation of the employer, however casual, unusual, desultory or isolated the employer's trade, business, profession or occupation may be.
102.07(4m)
(4m) For the purpose of determining the number of employes to be counted under
s. 102.04 (1) (b), but for no other purpose, a member of a religious sect is not considered to be an employe if the conditions specified in
s. 102.28 (3) (b) have been satisfied with respect to that member.
102.07(5)
(5) For the purpose of determining the number of employes to be counted under
s. 102.04 (1) (c), but for no other purpose, the following definitions shall apply:
102.07(5)(a)
(a) Farmers or their employes working on an exchange basis shall not be deemed employes of a farmer to whom their labor is furnished in exchange.
102.07(5)(b)
(b) The parents, spouse, child, brother, sister, son-in-law, daughter-in-law, father-in-law, mother-in-law, brother-in-law, or sister-in-law of a farmer shall not be deemed the farmer's employes.
102.07(5)(c)
(c) A shareholder-employe of a family farm corporation shall be deemed a "farmer" for purposes of this chapter and shall not be deemed an employe of a farmer. A "family farm corporation" means a corporation engaged in farming all of whose shareholders are related as lineal ancestors or lineal descendants, or as spouses, brothers, sisters, uncles, aunts, cousins, sons-in-law, daughters-in-law, fathers-in-law, mothers-in-law, brothers-in-law or sisters-in-law of such lineal ancestors or lineal descendants.
102.07(5)(d)
(d) A member of a religious sect is not considered to be an employe of a farmer if the conditions specified in
s. 102.28 (3) (b) have been satisfied with respect to that member.
102.07(6)
(6) Every person selling or distributing newspapers or magazines on the street or from house to house. Such a person shall be deemed an employe of each independent news agency which is subject to this chapter, or (in the absence of such agencies) of each publisher's (or other intermediate) selling agency which is subject to this chapter, or (in the absence of all such agencies) of each publisher, whose newspapers or magazines the person sells or distributes. Such a person shall not be counted in determining whether an intermediate agency or publisher is subject to this chapter.
102.07(7)(a)(a) Every member of any volunteer fire company or fire department organized under
ch. 213 or any legally organized rescue squad shall be deemed an employe of such company, department or squad. Every such member, while serving as an auxiliary police officer at an emergency, shall also be deemed an employe of said company, department or squad. If such company, department or squad has not insured its liability for compensation to its employes, the municipality or county within which such company, department or squad was organized shall be liable for such compensation.
102.07(7)(b)
(b) The department may issue an order under
s. 102.31 (1) (b) permitting the county within which a volunteer fire company or fire department organized under
ch. 213, a legally organized rescue squad or an ambulance service provider, as defined in
s. 146.50 (1) (c), is organized to assume full liability for the compensation provided under this chapter of all volunteer members of that company, department, squad or provider.
102.07(8)(a)(a) Except as provided in
par. (b), every independent contractor is, for the purpose of this chapter, an employe of any employer under this chapter for whom he or she is performing service in the course of the trade, business, profession or occupation of such employer at the time of the injury.
102.07(8)(b)
(b) An independent contractor is not an employe of an employer for whom the independent contractor performs work or services if the independent contractor meets all of the following conditions:
102.07(8)(b)1.
1. Maintains a separate business with his or her own office, equipment, materials and other facilities.
102.07(8)(b)2.
2. Holds or has applied for a federal employer identification number with the federal internal revenue service or has filed business or self-employment income tax returns with the federal internal revenue service based on that work or service in the previous year.
102.07(8)(b)3.
3. Operates under contracts to perform specific services or work for specific amounts of money and under which the independent contractor controls the means of performing the services or work.
102.07(8)(b)4.
4. Incurs the main expenses related to the service or work that he or she performs under contract.
102.07(8)(b)5.
5. Is responsible for the satisfactory completion of work or services that he or she contracts to perform and is liable for a failure to complete the work or service.
102.07(8)(b)6.
6. Receives compensation for work or service performed under a contract on a commission or per job or competitive bid basis and not on any other basis.
102.07(8)(b)7.
7. May realize a profit or suffer a loss under contracts to perform work or service.
102.07(8)(b)8.
8. Has continuing or recurring business liabilities or obligations.
102.07(8)(b)9.
9. The success or failure of the independent contractor's business depends on the relationship of business receipts to expenditures.
102.07(8)(c)
(c) The department may not admit in evidence state or federal laws, regulations, documents granting operating authority or licenses when determining whether an independent contractor meets the conditions specified in
par. (b) 1. or
3.
102.07(8m)
(8m) An employer who is subject to this chapter is not an employe of another employer for whom the first employer performs work or service in the course of the other employer's trade, business, profession or occupation.
102.07(9)
(9) Members of the national guard and state defense force, when on state active duty under direction of appropriate authority, but only in case federal laws, rules or regulations provide no benefits substantially equivalent to those provided in this chapter.
102.07(10)
(10) Further to effectuate the policy of the state that the benefits of this chapter shall extend and be granted to employes in the service of the state, or of any municipality therein on the same basis, in the same manner, under the same conditions, and with like right of recovery as in the case of employes of persons, firms or private corporations, any question whether any person is an employe under this chapter shall be governed by and determined under the same standards, considerations, and rules of decision in all cases under
subs. (1) to
(9). Any statutes, ordinances, or administrative regulations which may be otherwise applicable to the classes of employes enumerated in
sub. (1) shall not be controlling in deciding whether any person is an employe for the purposes of this chapter.
102.07(11)
(11) The department may by rule prescribe classes of volunteer workers who may, at the election of the person for whom the service is being performed, be deemed to be employes for the purposes of this chapter. Election shall be by endorsement upon the worker's compensation insurance policy with written notice to the department. In the case of an employer exempt from insuring liability, election shall be by written notice to the department. The department shall by rule prescribe the means and manner in which notice of election by the employer is to be provided to the volunteer workers.
102.07(11m)
(11m) Subject to
sub. (11), a volunteer for a nonprofit organization described in section
501 (c) of the internal revenue code, as defined in
s. 71.01 (6), that is exempt or eligible for exemption from federal income taxation under section
501 (a) of the internal revenue code who receives from that nonprofit organization nominal payments of money or other things of value totaling not more than $10 per week is not considered to be an employe of that nonprofit organization for purposes of this chapter.
102.07(12)
(12) A student in a technical college district while, as a part of a training program, he or she is engaged in performing services for which a school organized under
ch. 38 collects a fee or is engaged in producing a product sold by such a school is an employe of that school.
102.07(12m)
(12m) A student of a public school, as described in
s. 115.01 (1), or a private school, as defined in
s. 115.001 (3r), while he or she is engaged in performing services as part of a school work training, work experience or work study program, and who is not on the payroll of an employer that is providing the work training or work experience or who is not otherwise receiving compensation on which a worker's compensation carrier could assess premiums on that employer, is an employe of a school district or private school that elects under
s. 102.077 to name the student as its employe. This subsection does not apply after December 31, 1999.
102.07(13)
(13) A juvenile performing uncompensated community service work as a result of a deferred prosecution agreement under
s. 938.245, a consent decree under
s. 938.32 or an order under
s. 938.34 is an employe of the county in which the court ordering the community service work is located. No compensation may be paid to that employe for temporary disability during the healing period.
102.07(14)
(14) An adult performing uncompensated community service work under
s. 304.062,
943.017 (3),
971.38,
973.03 (3),
973.05 (3),
973.09 or
973.10 (1m) is an employe of the county in which the district attorney requiring or the court ordering the community service work is located or in which the place of assignment under
s. 304.062 or
973.10 (1m) is located. No compensation may be paid to that employe for temporary disability during the healing period.
102.07(15)
(15) A sole proprietor or partner or member electing under
s. 102.075 is an employe.
102.07(16)
(16) An inmate participating in a work release program under
s. 303.065 (2) or in the transitional employment program is an employe of any employer under this chapter for whom he or she is performing service at the time of the injury.
102.07(17)
(17) A prisoner of a county jail who is assigned to a work camp under
s. 303.10 is not an employe of the county or counties providing the work camp while the prisoner is working under
s. 303.10 (3).
102.07(17g)
(17g) A state employe who is on a leave of absence granted under
s. 230.35 (3) (e) to provide services to the American Red Cross in a particular disaster is not an employe of the state for the purposes of this chapter during the period in which he or she is on the leave of absence, unless one of the following occurs:
102.07(17g)(a)
(a) The American Red Cross specifies in its written request under
s. 230.35 (3) (e) 2. c. that a unit of government in this state is requesting the assistance of the American Red Cross in the particular disaster and the state employe during the leave of absence provides services related to assisting the unit of government.
102.07(17g)(b)
(b) The American Red Cross specifies in its written request under
s. 230.35 (3) (e) 2. c. that it has been requested to provide assistance outside of this state in a particular disaster and there exists between the state of Wisconsin and the state in which the services are to be provided a mutual aid agreement, entered into by the governor, which specifies that the state of Wisconsin and the other state may assist each other in the event of a disaster and which contains provisions addressing worker's compensation coverage for the employes of the other state who provide services in Wisconsin.
102.07(17m)
(17m) A participant in a trial job under
s. 49.147 (3) is an employe of any employer under this chapter for whom the participant is performing service at the time of the injury.
102.07(18)
(18) A participant in a community service job under
s. 49.147 (4) or a transitional placement under
s. 49.147 (5) is an employe of the Wisconsin works agency, as defined under
s. 49.001 (9), for the purposes of this chapter, except to the extent that the person for whom the participant is performing work provides worker's compensation coverage.
102.07 History
History: 1975 c. 147 s.
54;
1975 c. 224;
1977 c. 29;
1979 c. 278;
1981 c. 325;
1983 a. 27,
98;
1985 a. 29,
83,
135;
1985 a. 150 s.
4;
1985 a. 176,
332;
1987 a. 63;
1989 a. 31,
64,
359;
1993 a. 16,
81,
112,
399;
1995 a. 24,
77,
96,
117,
225,
281,
289,
417;
1997 a. 35,
38,
118.
102.07 Annotation
Where the claimant, owner of a truck, working exclusively for a trucking company under a lease agreement, fell and sustained injuries in the company's truck parking area while in the process of repairing his truck, the department properly found that the claimant, although an independent contractor, was at the time of his injury a statutory employe of the company under sub. (8). Employers Mut. L. Ins. Co. v. ILHR Dept. 52 W (2d) 515, 190 NW (2d) 907.
102.07 Annotation
There was no employment when a member of an organization borrowed a refrigerated truck from a packing company for use at a picnic and was injured when returning it. Kress Packing Co. v. Kottwitz, 61 W (2d) 175, 212 NW (2d) 97.
102.07 Annotation
Nothing in this chapter precludes an employer from agreeing with employes to continue salaries for injured workers in excess of worker's compensation benefits. Excess payments are not worker's compensation and may be conditioned on the parties' agreement. City of Milwaukee v. DILHR, 193 W (2d) 626, 534 NW (2d) 903 (Ct. App. 1995).
102.07 Annotation
Members of state boards, committees, commissions or councils, who are compensated by per diem or by actual and necessary expense are covered employes. 58 Atty. Gen. 10.
102.075
102.075
Election by sole proprietor, partner or member. 102.075(1)(1) Any sole proprietor, partner or member of a limited liability company engaged in a vocation, profession or business on a substantially full-time basis may elect to be an employe under this chapter by procuring insurance against injury sustained in the pursuit of that vocation, profession or business. This coverage may be obtained by endorsement on an existing policy of worker's compensation insurance or by issuance of a separate policy to the sole proprietor, partner or member on the same basis as any other policy of worker's compensation insurance.
102.075(2)
(2) For the purpose of any insurance policy other than a worker's compensation insurance policy, no sole proprietor, partner or member may be considered eligible for worker's compensation benefits unless he or she elected to be an employe under this section.
102.075(3)
(3) Any sole proprietor, partner or member who elected to be an employe under this section may withdraw that election upon 30 days' prior written notice to the insurance carrier and the Wisconsin compensation rating bureau.
102.075 History
History: 1983 a. 98;
1993 a. 112.
102.076
102.076
Election by corporate officer. 102.076(1)
(1) Not more than 2 officers of a corporation having not more than 10 stockholders may elect not to be subject to this chapter. If the corporation has been issued a policy of worker's compensation insurance, an officer of the corporation may elect not to be subject to this chapter and not to be covered under the policy at any time during the period of the policy. Except as provided in
sub. (2), the election shall be made by an endorsement, on the policy of worker's compensation insurance issued to that corporation, naming each officer who has so elected. The election is effective for the period of the policy and may not be reversed during the period of the policy. An officer who so elects is an employe for the purpose of determining whether the corporation is an employer under
s. 102.04 (1) (b).
102.076(2)
(2) If a corporation has not more than 10 stockholders, not more than 2 officers and no other employes and is not otherwise required under this chapter to have a policy of worker's compensation insurance, an officer of that corporation who elects not to be subject to this chapter shall file a notice of that election with the department on a form approved by the department. The election is effective until the officer rescinds it by notifying the department in writing.
102.077
102.077
Election by school district or private school. 102.077(1)(1) A school district or a private school, as defined in
s. 115.001 (3r), may elect to name as its employe for purposes of this chapter a student described in
s. 102.07 (12m) by an endorsement on its policy of worker's compensation insurance or, if the school district or private school is exempt from the duty to insure under
s. 102.28 (2), by filing a declaration with the department in the manner provided in
s. 102.31 (2) (a) naming the student as an employe of the school district or private school for purposes of this chapter. A declaration under this subsection shall list the name of the student to be covered under this chapter, the name and address of the employer that is providing the work training or work experience for that student and the title, if any, of the work training, work experience or work study program in which the student is participating.
102.077(2)
(2) A school district or private school may revoke a declaration under
sub. (1) by providing written notice to the department in the manner provided in
s. 102.31 (2) (a), the student and the employer who is providing the work training or work experience for that student. A revocation under this subsection is effective 30 days after the department receives notice of that revocation.
102.077(3)
(3) This section does not apply after December 31, 1999.
102.077 History
History: 1995 a. 117;
1997 a. 38.
102.08
102.08
Administration for state employes. The department of administration has responsibility for the timely delivery of benefits payable under this chapter to employes of the state and their dependents and other functions of the state as an employer under this chapter. The department of administration may delegate this authority to employing departments and agencies and require such reports as it deems necessary to accomplish this purpose. The department of administration or its delegated authorities shall file with the department of workforce development the reports that are required of all employers. The department of workforce development shall monitor the delivery of benefits to state employes and their dependents and shall consult with and advise the department of administration in the manner and at the times necessary to ensure prompt and proper delivery.
102.11
102.11
Earnings, method of computation. 102.11(1)
(1) The average weekly earnings for temporary disability, permanent total disability or death benefits for injury in each calendar year on or after January 1, 1982, shall be not less than $30 nor more than the wage rate which results in a maximum compensation rate of 100% of the state's average weekly earnings as determined under
s. 108.05 as of June 30 of the previous year, except that the average weekly earnings for temporary disability, permanent total disability or death benefits for injuries occurring on or after January 1, 1998, and before January 1, 1999, shall be not more than $784.50, resulting in a maximum compensation rate of $523, and the average weekly earnings for temporary disability, permanent total disability or death benefits for injuries occurring on or after January 1, 1999, and before January 1, 2000, shall be not more than $807, resulting in a maximum compensation rate of $538. The average weekly earnings for permanent partial disability shall be not less than $30 and, for permanent partial disability for injuries occurring on or after January 1, 1998, and before January 1, 1999, not more than $268.50, resulting in a maximum compensation rate of $179, and, for permanent partial disability for injuries occurring on or after January 1, 1999, not more than $276, resulting in a maximum compensation rate of $184. Between such limits the average weekly earnings shall be determined as follows:
102.11(1)(a)
(a) Daily earnings shall mean the daily earnings of the employe at the time of the injury in the employment in which the employe was then engaged. In determining daily earnings under this paragraph, overtime shall not be considered. If at the time of the injury the employe is working on part time for the day, the employe's daily earnings shall be arrived at by dividing the amount received, or to be received by the employe for such part-time service for the day, by the number of hours and fractional hours of such part-time service, and multiplying the result by the number of hours of the normal full-time working day for the employment involved. The words "part time for the day" shall apply to Saturday half days and all other days upon which the employe works less than normal full-time working hours. The average weekly earnings shall be arrived at by multiplying the daily earnings by the number of days and fractional days normally worked per week at the time of the injury in the business operation of the employer for the particular employment in which the employe was engaged at the time of the employe's injury.
102.11(1)(b)
(b) In case of seasonal employment, average weekly earnings shall be arrived at by the method prescribed in
par. (a), except that the number of hours of the normal full-time working day and the number of days of the normal full-time working week shall be such hours and such days in similar service in the same or similar nonseasonal employment. Seasonal employment shall mean employment which can be conducted only during certain times of the year, and in no event shall employment be considered seasonal if it extends during a period of more than fourteen weeks within a calendar year.
102.11(1)(c)
(c) In the case of persons performing service without fixed earnings, or where normal full-time days or weeks are not maintained by the employer in the employment in which the employe worked when injured, or where, for other reason, earnings cannot be determined under the methods prescribed by
par. (a) or
(b), the earnings of the injured person shall, for the purpose of calculating compensation payable under this chapter, be taken to be the usual going earnings paid for similar services on a normal full-time basis in the same or similar employment in which earnings can be determined under the methods set out in
par. (a) or
(b).
