The department or the division may award the additional benefits payable under this section to the surviving parent of the child, to the child's guardian, or to such other person, bank, or trust company for the child's use as may be found best calculated to conserve the interests of the child. If the child dies while benefits are still payable, there shall be paid the reasonable expense for burial, not exceeding $1,500.
All payments received under this section shall be deposited in the fund established by s. 102.65
See also s. DWD 80.48
, Wis. adm. code.
In all cases in which the death of an employee proximately results from the injury, the employer or insurer shall pay the actual expense for burial, not exceeding $10,000.
The following persons are entitled to death benefits as if they are solely and wholly dependent for support upon a deceased employee:
A wife upon a husband with whom she is living at the time of his death.
A husband upon a wife with whom he is living at the time of her death.
A domestic partner under ch. 770
upon his or her partner with whom he or she is living at the time of the partner's death.
A child under the age of 18 years upon the parent with whom he or she is living at the time of the death of the parent, there being no surviving dependent parent.
A child over the age of 18 years, but physically or mentally incapacitated from earning, upon the parent with whom he or she is living at the time of the death of the parent, there being no surviving dependent parent.
Where a dependent who is entitled to death benefits under this subsection survives the deceased employee, all other dependents shall be excluded. The charging of any portion of the support and maintenance of a child upon one of the parents, or any voluntary contribution toward the support of a child by a parent, or an obligation to support a child by a parent constitutes living with any such parent within the meaning of this subsection.
No person shall be considered a dependent unless that person is a spouse, a domestic partner under ch. 770
, a divorced spouse who has not remarried, or a lineal descendant, lineal ancestor, brother, sister, or other member of the family, whether by blood or by adoption, of the deceased employee.
If for 8 years or more prior to the date of injury a deceased employee has been a resident of the United States, it shall be conclusively presumed that no person who has remained a nonresident alien during that period is either totally or partially dependent upon the deceased employee for support.
No person who is a nonresident alien shall be found to be either totally or partially dependent on a deceased employee for support who cannot establish dependency by proving contributions from the deceased employee by written evidence or tokens of the transfer of money, such as drafts, letters of credit, microfilm or other copies of paid share drafts, canceled checks, or receipts for the payment to any bank, express company, United States post office, or other agency commercially engaged in the transfer of funds from one country to another, for transmission of funds on behalf of said deceased employee to such nonresident alien claiming dependency. This provision shall not be applicable unless the employee has been continuously in the United States for at least one year prior to his or her injury, and has been remuneratively employed therein for at least 6 months.
(3) Division among dependents.
If there is more than one person wholly or partially dependent on a deceased employee, the death benefit shall be divided between those dependents in such proportion as the department or the division determines to be just, considering their ages and other facts bearing on their dependency.
(4) Dependency as of the date of death.
Questions as to who is a dependent and the extent of his or her dependency shall be determined as of the date of the death of the employee, and the dependent's right to any death benefit becomes fixed at that time, regardless of any subsequent change in conditions. The death benefit shall be directly recoverable by and payable to the dependents entitled to the death benefit or their legal guardians or trustees. In case of the death of a dependent whose right to a death benefit has become fixed, so much of the benefit as is unpaid is payable to the dependent's personal representatives in gross, unless the department or the division determines that the unpaid benefit shall be reassigned under sub. (6)
and paid to any other dependent who is physically or mentally incapacitated or a minor. For purposes of this subsection, a child of the employee who is born after the death of the employee is considered to be a dependent as of the date of death.
(5) When not interested.
No dependent of an injured employee shall be deemed a party in interest to any proceeding by the employee for the enforcement of the employee's claim for compensation, nor with respect to the compromise thereof by such employee. A compromise of all liability entered into by an employee is binding upon the employee's dependents, except that any dependent of a deceased employee may submit the compromise for review under s. 102.16 (1)
(6) Division among dependents.
Benefits accruing to a minor dependent child may be awarded to either parent in the discretion of the department or the division. Notwithstanding sub. (1)
, the department or the division may reassign the death benefit as between a surviving spouse or a domestic partner under ch. 770
and any children specified in sub. (1)
and s. 102.49
in accordance with their respective needs for the death benefit.
(7) Certain defense barred.
In proceedings for the collection of primary death benefit or burial expense it shall not be a defense that the applicant, either individually or as a partner or member, was an employer of the deceased.
See also s. DWD 80.48
, Wis. adm. code.
A posthumously born illegitimate child does not qualify as a dependent under sub. (4). Claimants not falling within one of the classifications under sub. (2) (a) will not qualify for benefits, regardless of dependency in fact. Larson v. DILHR, 76 Wis. 2d 595
, 252 N.W.2d 33
Sub. (5) has no application to a claim for a death benefit because a death benefit claim is not an “employee's claim for compensation." While sub. (5) prohibits a dependent from being a party to a worker's claim for disability benefits, a dependent claiming a death benefit is prosecuting only his or her own claim. Edward Brothers, Inc. v. LIRC, 2007 WI App 128
, 300 Wis. 2d 638
, 731 N.W.2d 302
Permanent partial disability schedule.
In cases included in the following schedule of permanent partial disabilities indemnity shall be paid for the healing period, and in addition, for the period specified, at the rate of two-thirds of the average weekly earnings of the employee, to be computed as provided in s. 102.11
The loss of an arm at the shoulder, 500 weeks;
The loss of an arm at the elbow, 450 weeks;
The loss of a palm where the thumb remains, 325 weeks;
The loss of a thumb and the metacarpal bone thereof, 160 weeks;
The loss of a thumb at the proximal joint, 120 weeks;
The loss of a thumb at the distal joint, 50 weeks;
The loss of all fingers on one hand at their proximal joints, 225 weeks;
Losses of fingers on each hand as follows:
An index finger and the metacarpal bone thereof, 60 weeks;
An index finger at the proximal joint, 50 weeks;
An index finger at the second joint, 30 weeks;
An index finger at the distal joint, 12 weeks;
A middle finger and the metacarpal bone thereof, 45 weeks;
A middle finger at the proximal joint, 35 weeks;
A middle finger at the second joint, 20 weeks;
A middle finger at the distal joint, 8 weeks;
A ring finger and the metacarpal bone thereof, 26 weeks;
A ring finger at the proximal joint, 20 weeks;
A ring finger at the second joint, 15 weeks;
A ring finger at the distal joint, 6 weeks;
A little finger and the metacarpal bone thereof, 28 weeks;
A little finger at the proximal joint, 22 weeks;
A little finger at the second joint, 16 weeks;
A little finger at the distal joint, 6 weeks;
The loss of a leg at the hip joint, 500 weeks;
The loss of a leg at the knee, 425 weeks;
The loss of a foot at the ankle, 250 weeks;
The loss of the great toe with the metatarsal bone thereof, 83 1/3 weeks;
Losses of toes on each foot as follows:
The second toe with the metatarsal bone thereof, 25 weeks;
The third, fourth or little toe with the metatarsal bone thereof, 20 weeks;
The third, fourth or little toe at the proximal joint, 6 weeks;
The third, fourth or little toe at the second or distal joint, 4 weeks;
The loss of an eye by enucleation or evisceration, 275 weeks;
Total impairment of one eye for industrial use, 250 weeks;
Total deafness from accident or sudden trauma, 330 weeks;
Total deafness of one ear from accident or sudden trauma, 55 weeks.
See also ss. DWD 80.32
, Wis. adm. code.
In a proceeding brought by an employee who suffered total deafness in one ear, a skull fracture, loss of taste and smell, facial paralysis, and periods of intermittent headaches and dizziness, the department did not err in determining that the hearing loss was a scheduled disability under sub. (18), with a separate award for the additional physical effects of the deafness, rather than considering the entire range of disabilities as a whole. When a loss is recognized by and compensable under this section, the schedule therein is exclusive. Vande Zande v. ILHR Dept. 70 Wis. 2d 1086
, 236 N.W.2d 255
Multiple injury variations.
In case an injury causes more than one permanent disability specified in ss. 102.44 (3)
, the period for which indemnity shall be payable for each additional equal or lesser disability shall be increased as follows:
In the case of impairment of both eyes, by 200 percent.
In the case of disabilities on the same hand covered by s. 102.52 (9)
, by 100 percent for the first equal or lesser disability and by 150 percent for the 2nd and 3rd equal or lesser disabilities.
In the case of disabilities on the same foot covered by s. 102.52 (14)
, by 20 percent.
In all other cases, by 20 percent.
The aggregate result as computed by applying sub. (1)
, and the aggregate result for members on the same hand or foot as computed by applying subs. (2)
, shall each be taken as a unit for applying sub. (4)
as between such units, and as between such units and each other disability.
History: 1973 c. 150
; 1979 c. 278
Injury to dominant hand.
If an injury to an employee's dominant hand causes a disability specified in s. 102.52 (1)
or amputation of more than two-thirds of the distal joint of a finger, the period for which indemnity is payable for that disability or amputation is increased by 25 percent. This increase is in addition to any other increase payable under s. 102.53
but, for cases in which an injury causes more than one permanent disability, the increase under this section shall be based on the periods specified in s. 102.52 (1)
for each disability and not on any increased period specified in s. 102.53
History: 1993 a. 81
Application of schedules. 102.55(1)(1)
Whenever amputation of a member is made between any 2 joints mentioned in the schedule in s. 102.52
the determined loss and resultant indemnity therefor shall bear such relation to the loss and indemnity applicable in case of amputation at the joint next nearer the body as such injury bears to one of amputation at the joint nearer the body.
For the purposes of this schedule permanent and complete paralysis of any member shall be deemed equivalent to the loss thereof.
For all other injuries to the members of the body or its faculties that are specified in the schedule under s. 102.52
resulting in permanent disability, though the member is not actually severed or the faculty is not totally lost, compensation shall bear such relation to the compensation named in the schedule as the disability bears to the disability named in the schedule. Indemnity in those cases shall be determined by allowing weekly indemnity during the healing period resulting from the injury and the percentage of permanent disability resulting after the healing period as found by the department or the division.