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 a DILHR order as to unemployment compensation labeled his petition "under 227.15" [now 227.52], is immaterial since the circuit court had subject matter jurisdiction. An answer by the department that s. 227.15 [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 the appellant had not served a summons and complaint. Lees v. DILHR, 49 Wis. 2d 491
, 182 N.W.2d 245
A finding of fact, whether ultimate or evidentiary, is still in its essential nature a fact, whereas a conclusion of law accepts those facts, and by judicial reasoning results from the application of rules or concepts of law to those facts whether undisputed or not. Kress Packing Co. v. Kottwitz, 61 Wis. 2d 175
, 212 N.W.2d 97
A challenge to the constitutionality of sub. (1) was 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. DILHR, 64 Wis. 2d 97
, 218 N.W.2d 314
When the claimant timely appealed an adverse worker's compensation decision in good faith, but erroneously captioned the appeal, the trial court abused its discretion by dismissing the action. Cruz v. DILHR, 81 Wis. 2d 442
, 260 N.W.2d 692
An employer whose unemployment compensation account is not affected by the commission's determination has no standing to seek judicial review. Cornwell Personnel Associates v. DILHR, 92 Wis. 2d 53
, 284 N.W.2d 706
(Ct. App. 1979).
An agency's mixed conclusions of law and findings of fact may be analyzed by using 2 methods: 1) the analytical method of separating law from fact; or 2) the practical or policy method that avoids law and fact labels and searches for a rational basis for the agency's decision. United Way of Greater Milwaukee v. DILHR, 105 Wis. 2d 447
, 313 N.W.2d 858
(Ct. App. 1981).
A failure to properly serve the commission pursuant to sub. (1) (b) results in a jurisdictional defect rather than a mere technical error. Gomez v. LIRC, 153 Wis. 2d 686
, 451 N.W.2d 475
(Ct. App. 1989).
Discretionary reversal is not applicable to judicial review of LIRC orders under ch. 102. There is no power to reopen a matter that has been fully determined under ch. 102. Kwaterski v. LIRC, 158 Wis. 2d 112
, 462 N.W.2d 534
(Ct. App. 1990).
A LIRC decision is to be upheld unless it directly contravenes the words of the statute, is clearly contrary to legislative intent, or is otherwise without a rational basis. Wisconsin Electric Power Co. v. LIRC, 226 Wis. 2d 778
, 595 N.W.2d 23
An appeal under s. 102.16 (2m) (e) of a department determination may be served under sub. (1) (b) on the department or the commission. McDonough v. Department of Workforce Development, 227 Wis. 2d 271
, 595 N.W.2d 686
Under s. 102.23 (1) (a), judicial review is available only from an order or award granting or denying compensation. Judicial review by common law certiorari was not available for a claim that LIRC failed to act within the statutory time limitations under sub. (4), which would be subject to judicial review of any subsequent order or award granting or denying compensation in that case. Vidal v. LIRC, 2002 WI 72
, 253 Wis. 2d 426
, 645 N.W.2d 870
The plaintiff complied with the requirement of sub. (1) that every adverse party be made a defendant by naming the defendant's insurer in the caption of the summons and complaint, which were timely filed and served even though the insurer was not mentioned in the complaint's body. Selaiden v. Columbia Hospital, 2002 WI App 99
, 253 Wis. 2d 553
, 644 N.W.2d 690
Sub. (5) requires an employer to make payment to a disabled employee pending appeal of a date of injury defense in an occupational disease case when the employer's liability is not disputed on appeal and the only question is who will pay benefits. Bosco v. LIRC, 2004 WI 77
, 272 Wis. 2d 586
, 681 N.W.2d 157
Because s. 102.18 (1) (bp) specifically allows for the imposition of bad faith penalties on an employer for failure to pay benefits and because sub. (5) specifically directs the employer to pay benefits pending an appeal when the only issue is who will pay benefits, an employer may be subject to bad faith penalties under s. 102.18 (1) (bp), independent from its insurer, when it fails to pay benefits in accordance with sub. (5). Bosco v. LIRC, 2004 WI 77
, 272 Wis. 2d 586
, 681 N.W.2d 157
Under Miller an "adverse party" for worker's compensation actions in circuit court includes any party bound by the Commission's order or award granting or denying compensation to the claimant. The interests of an adverse party need not necessarily be adverse to the party filing a circuit court action. Xcel Energy Services, Inc. v. LIRC, 2012 WI App 19
, 339 Wis. 2d 413
, 810 N.W.2d 865
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 Wis. 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]
A court order setting aside an administrative order and remanding the case to the administrative agency disposed of the entire matter in litigation and was appealable as of right. Bearns v. DILHR, 102 Wis. 2d 70
, 306 N.W.2d 22
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 for that enforcement or collection be enforceable when that fee, inclusive of all taxable attorney fees paid or agreed to be paid for that enforcement or collection, exceeds 20 percent of the amount at which that claim is compromised or of the amount awarded, adjudged, or collected, except that in cases of admitted liability in which there is no dispute as to the amount of compensation due and in which no hearing or appeal is necessary, the fee charged may not exceed 10 percent, but not to exceed $250, of the amount at which that 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.
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.
The claimant may request the insurer or self-insured employer to pay any compensation that is due the claimant by depositing the payment directly into an account maintained by the claimant at a financial institution. If the insurer or self-insured employer agrees to the request, the insurer or self-insured employer may deposit the payment by direct deposit, electronic funds transfer, or any other money transfer technique approved by the department. The claimant may revoke a request under this subdivision at any time by providing appropriate written notice to the insurer or self-insured employer.
Payment according to the directions of the award shall protect the employer and the employer's insurer, or the uninsured employers fund if applicable, from any claim of attorney's lien.
The charging or receiving of any fee in violation of this section shall be unlawful, and the attorney or other person guilty thereof shall forfeit double the amount retained by the attorney or other person, the same to be collected by the state in an action in debt, upon complaint of the department. Out of the sum recovered the court shall direct payment to the injured party of the amount of the overcharge.
See also s. DWD 80.43
, Wis. adm. code.
The only fee authorized to be paid to any clerk of court under sub. (1) is the fee under s. 814.61 (5), when applicable. 76 Atty. Gen. 148
Claims and awards protected; exceptions. 102.27(1)(1)
Except as provided in sub. (2)
, no claim for compensation shall be assignable, but this provision shall not affect the survival thereof; nor shall any claim for compensation, or compensation awarded, or paid, be taken for the debts of the party entitled thereto.
If a governmental unit provides public assistance under ch. 49
to pay medical costs or living expenses related to a claim under this chapter, the employer or insurance carrier owing compensation shall reimburse that governmental unit any compensation awarded or paid if the governmental unit has given the parties to the claim written notice stating that it provided the assistance and the cost of the assistance provided. Reimbursement shall equal the lesser of either the amount of assistance the governmental unit provided or two-thirds of the amount of the award or payment remaining after deduction of attorney fees and any other fees or costs chargeable under ch. 102
. The department shall comply with this paragraph when making payments under s. 102.81
Preference of claims; worker's compensation insurance. 102.28(1)(1)
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. 102.28(2)(a)(a)
Duty to insure payment for compensation.
Unless exempted by the department under par. (b)
or sub. (3)
, every employer, as described in s. 102.04 (1)
, shall insure payment for that compensation 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.
Exemption from duty to insure.
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.
Revocation of exemption.
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. The employer may, within 10 days after receipt of the notice of revocation, 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 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
, shall keep that coverage in force until another exemption under par. (b)
Effect of insuring with unauthorized insurer.
An employer who procures an exemption under par. (b)
and thereafter enters into any agreement for excess insurance coverage with an insurer not authorized to do business in this state shall report that agreement to the department immediately. The placing of such coverage shall not by itself be grounds for revocation of the exemption.
(3) Provision of alternative benefits. 102.28(3)(a)(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:
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)
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
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.
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
The department shall approve an application under par. (a)
if the department determines that all of the following conditions are satisfied:
The employee has waived all compensation under this chapter other than the alternative benefits provided under par. (c)
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.
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.
The religious sect to which the employee belongs has agreed to provide the financial and medical assistance described in subd. 3.
to the employee and to the dependents of the employee if the employee sustains an injury that, but for the waiver under par. (a) 1.
, the employer would be liable for under s. 102.03
An employee who has signed a waiver under par. (a) 1.
and an affidavit under par. (a) 2.
, who sustains an injury that, but for that waiver, the employer would be liable for under s. 102.03
, who at the time of the injury was a member of a religious sect whose authorized representative has filed an affidavit under par. (a) 3.
and an agreement under par. (a) 4.
and who as a result of the injury becomes dependent on the religious sect for financial and medical assistance, or the employee's dependent, may request a hearing under s. 102.17 (1)
to determine if the religious sect has provided the employee and his or her dependents 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. If, after hearing, the department determines that the religious sect has not provided that standard of living or medical treatment, or both, the department may order the religious sect to provide alternative benefits to that employee or his or her dependent, or both, in an amount that is reasonable under the circumstances, but not in excess of the benefits that the employee or dependent could have received under this chapter but for the waiver under par. (a) 1.
The department shall provide a form for the application for exemption of an employer under par. (a) (intro.)
, the waiver and affidavit of an employee under par. (a) 1.
, the affidavit of a religious sect under par. (a) 3.
and the agreement of a religious sect under par. (a) 4.
A properly completed form is prima facie evidence of satisfaction of the conditions under par. (b)
as to the matter contained in the form.
When the department discovers an uninsured employer, the department may order the employer to cease operations until the employer complies with sub. (2)
If the department believes that an employer may be an uninsured employer, the department shall notify the employer of the alleged violation of sub. (2)
and the possibility of closure under this subsection. The employer may request and shall receive a hearing under s. 102.17
on the matter if the employer applies for a hearing within 10 days after the notice of the alleged violation is served.
After a hearing under par. (b)
, or without a hearing if one is not requested, the department may issue an order to an employer to cease operations on a finding that the employer is an uninsured employer.
The department of justice may bring an action in any court of competent jurisdiction for an injunction or other remedy to enforce the department's order to cease operations under par. (c)
(5) Employer's liability.
If compensation is awarded under this chapter, against any employer who at the time of the accident has not complied with sub. (2)
, such employer shall not be entitled as to such award or any judgment entered thereon, to any of the exemptions of property from seizure and sale on execution allowed in ss. 815.18
. If such employer is a corporation, the officers and directors thereof shall be individually and jointly and severally liable for any portion of any such judgment as is returned unsatisfied after execution against the corporation.
(6) Reports by employer.
Every employer shall upon request of the department report to it the number of employees and the nature of their work and also the name of the insurance company with whom the employer has insured liability under this chapter and the number and date of expiration of such policy. Failure to furnish such report within 10 days from the making of a request by certified mail shall constitute presumptive evidence that the delinquent employer is violating sub. (2)
(7) Insolvent employers; assessments. 102.28(7)(a)(a)
If an employer who is currently or was formerly exempted by written order of the department under sub. (2)
is unable to pay an award, judgment is rendered in accordance with s. 102.20
against that employer, and execution is levied and returned unsatisfied in whole or in part, payments for the employer's liability shall be made from the fund established under sub. (8)
. If a currently or formerly exempted employer files for bankruptcy and not less than 60 days after that filing the department has reason to believe that compensation payments due are not being paid, the department in its discretion may make payment for the employer's liability from the fund established under sub. (8)
. The secretary of administration shall proceed to recover such payments from the employer or the employer's receiver or trustee in bankruptcy, and may commence an action or proceeding or file a claim therefor. The attorney general shall appear on behalf of the secretary of administration in any such action or proceeding. All moneys recovered in any such action or proceeding shall be paid into the fund established under sub. (8)
Each employer exempted by written order of the department under sub. (2)
shall pay into the fund established by sub. (8)
a sum equal to that assessed against each of the other such exempt employers upon the issuance of an initial order. The order shall provide for a sum sufficient to secure estimated payments of the insolvent exempt employer due for the period up to the date of the order and for one year following the date of the order and to pay the estimated cost of insurance carrier or insurance service organization services under par. (c)
. Payments ordered to be made to the fund shall be paid to the department within 30 days. If additional moneys are required, further assessments shall be made based on orders of the department with assessment prorated on the basis of the gross payroll for this state of the exempt employer, reported to the department for the previous calendar year for unemployment insurance purposes under ch. 108
. If the exempt employer is not covered under ch. 108
, then the department shall determine the comparable gross payroll for the exempt employer. If payment of any assessment made under this subsection is not made within 30 days of the order of the department, the attorney general may appear on behalf of the state to collect the assessment.
The department may retain an insurance carrier or insurance service organization to process, investigate and pay valid claims. The charge for such service shall be paid from the fund as provided under par. (b)
(8) Self-insured employers liability fund.
The moneys paid into the state treasury under sub. (7)
, together with all accrued interest, shall constitute a separate nonlapsible fund designated as the self-insured employers liability fund. Moneys in the fund may be expended only as provided in s. 20.445 (1) (s)
and may not be used for an other purpose of the state.
See also ss. DWD 80.40
, Wis. adm. code.
The "insure payment" requirement of sub. (2) (a) requires an employer to provide coverage for every employee in all possible employment situations. Substantial compliance with sub. (2) (a) is not sufficient. This provision does not violate due process. State v. Koch, 195 Wis. 2d 801
, 537 N.W.2d 39
(Ct. App. 1995), 94-1230
Third party liability. 102.29(1)(a)
The making of a claim for compensation against an employer or compensation insurer for the injury or death of an employee shall not affect the right of the employee, the employee's personal representative, or other person entitled to bring action to make claim or maintain an action in tort against any other party for such injury or death, hereinafter referred to as a 3rd party; nor shall the making of a claim by any such person against a 3rd party for damages by reason of an injury to which ss. 102.03
are applicable, or the adjustment of any such claim, affect the right of the injured employee or the employee's dependents to recover compensation. An employer or compensation insurer that has paid or is obligated to pay a lawful claim under this chapter shall have the same right to make claim or maintain an action in tort against any other party for such injury or death. If the department pays or is obligated to pay a claim under s. 102.66 (1)
or 102.81 (1)
, the department shall also have the right to maintain an action in tort against any other party for the employee's injury or death. However, each shall give to the other reasonable notice and opportunity to join in the making of such claim or the instituting of an action and to be represented by counsel.
Par. (a) was renumbered from sub. (1) to par. (a) (intro.) by 2011 Wis. Act 183
, section 8
, and renumbered to par. (a) by the legislative reference bureau under s. 13.92 (1) ( bm ) 2.
If a party entitled to notice cannot be found, the department shall become the agent of that party for the giving of a notice as required in par. (a)
and the notice, when given to the department, shall include an affidavit setting forth the facts, including the steps taken to locate that party. Each shall have an equal voice in the prosecution of the claim, and any disputes arising shall be passed upon by the court before whom the case is pending, and if no action is pending, then by a court of record or by the department. If notice is given as provided in par. (a)
, the liability of the tort-feasor shall be determined as to all parties having a right to make claim and, irrespective of whether or not all parties join in prosecuting the claim, the proceeds of the claim shall be divided as follows: