Committee Note, 1971: Where an employer discontinues a noisy operation and transfers the employees to nonnoisy employment, they have been unable to make claim for occupational deafness until the conditions of sub. (b), (c) or (d) were met. The employee will now have the option of filing a claim at the time of transfer at the current rate of compensation with a 2-1/2 percent reduction for each year of age over 50 or waiting until he meets the conditions of sub. (b), (c) or (d) when he may file claim at the then-current rate of compensation with a 1/2 percent reduction for each year of age over 50. [Bill 371-A]
It is a prerequisite for an award of benefits under sub. (10) that the employee must have suffered some compensable hearing loss other than tinnitus; sub. (10) does not require a compensable hearing loss in both ears or in a particular ear. General Castings Corporation v. LIRC, 152 Wis. 2d 631
, 449 N.W.2d 619
(Ct. App. 1989).
Subject to sub. (2)
, if an employee is so permanently disfigured as to occasion potential wage loss due to the disfigurement, the department or the division may allow such sum as the department or the division considers just as compensation for the disfigurement, not exceeding the employee's average annual earnings. In determining the potential for wage loss due to the disfigurement and the sum awarded, the department or the division shall take into account the age, education, training, and previous experience and earnings of the employee, the employee's present occupation and earnings, and likelihood of future suitable occupational change. Consideration for disfigurement allowance is confined to those areas of the body that are exposed in the normal course of employment. The department or the division shall also take into account the appearance of the disfigurement, its location, and the likelihood of its exposure in occupations for which the employee is suited.
If an employee who claims compensation under sub. (1)
returns to work for the employer who employed the employee at the time of the injury, or is offered employment with that employer, at the same or a higher wage, the department or the division may not allow that compensation unless the employee suffers an actual wage loss due to the disfigurement.
LIRC's allowance of a disfigurement award based on a limp was a reasonable interpretation of this section. Nothing in sub. (1) limits disfigurement to amputations, scars, and burns. County of Dane v. Labor and Industry Review Commission, 2009 WI 9
, 315 Wis. 2d 293
, 759 N.W.2d 571
Toxic or hazardous exposure; medical examination; conditions of liability. 102.565(1)(1)
When, as a result of exposure in the course of employment over a period of time to toxic or hazardous substances or conditions, an employee performing work that is subject to this chapter develops any clinically observable abnormality or condition that, on competent medical opinion, predisposes or renders the employee in any manner differentially susceptible to disability to such an extent that it is inadvisable for the employee to continue employment involving that exposure, is discharged from or ceases to continue the employment, and suffers wage loss by reason of that discharge from, or cessation of, employment, the department or the division may allow such sum as the department or the division considers just as compensation for that wage loss, not exceeding $13,000. If a nondisabling condition may also be caused by toxic or hazardous exposure not related to employment and if the employee has a history of that exposure, compensation as provided under this section or any other remedy for loss of earning capacity shall not be allowed. If the employee is discharged from employment prior to a finding by the department or the division that it is inadvisable for the employee to continue in that employment and if it is reasonably probable that continued exposure would result in disability, the liability of the employer who discharges the employee is primary, and the liability of the employer's insurer is secondary, under the same procedure and to the same effect as provided by s. 102.62
Upon application of any employer or employee the department or the division may direct any employee of the employer or an employee who, in the course of his or her employment, has been exposed to toxic or hazardous substances or conditions to submit to examination by one or more physicians appointed by the department or the division to determine whether the employee has developed any abnormality or condition under sub. (1)
, and the degree of that abnormality or condition. The cost of the medical examination shall be borne by the person making application. The physician conducting the examination shall submit the results of the examination to the department or the division, which shall submit copies of the reports to the employer and employee, who shall have an opportunity to rebut the reports if a request to submit a rebuttal is made to the department or the division within 10 days after the department or the division mails the report to the parties. The department or the division shall make its findings as to whether it is inadvisable for the employee to continue in his or her employment.
If after direction by the commission, or any member of the commission, the department, the division, or an examiner, an employee refuses to submit to an examination or in any way obstructs the examination, the employee's right to compensation under this section shall be barred.
No payment shall be made to an employee under this section unless he or she shall have worked for a reasonable period of time for the employer from whom he or she claims compensation for exposing him or her to toxic or hazardous conditions.
Payment of a benefit under this section to an employee shall stop such employee from any further recovery whatsoever from any employer under this section.
Sub. (1) requires that an employee's termination be connected to the employment that caused the susceptibility to disease. General Castings Corp. v. Winstead, 156 Wis. 2d 752
, 457 N.W.2d 557
(Ct. App. 1990).
Violations of safety provisions, penalty.
If injury is caused by the failure of the employer to comply with any statute, rule, or order of the department of safety and professional services, compensation and death benefits provided in this chapter shall be increased by 15 percent but the total increase may not exceed $15,000. Failure of an employer reasonably to enforce compliance by employees with any statute, rule, or order of the department of safety and professional services constitutes failure by the employer to comply with that statute, rule, or order.
This section and s. 102.58 may be applicable in the same case if the negligence of both the employer and employee are causes of the employee's injury. Milwaukee Forge v. DILHR, 66 Wis. 2d 428
, 225 N.W.2d 476
Death benefits for dependent children are not increased by this section. Schwartz v. DILHR, 72 Wis. 2d 217
, 240 N.W.2d 173
The application of this section is not restricted to statutes “of the" department of workforce development. Statutes are not “of" departments of the state. The reasonable reading of this section is that “of the department" modifies “
order" and not “statute." The only word that modifies “statute" in the first sentence of the section is “any." This section allows an administrative law judge to increase worker's compensation benefits if it finds that the employer failed to comply with any statute. A violation of a federal OSHA standard was not a violation of “a statute, rule, or order of the department" but was evidence of a violation of a Wisconsin statute, the safe place statute, s. 101.11. Sohn Manufacturing Inc. v. LIRC, 2013 WI App 112
, 350 Wis. 2d 469
, 838 N.W.2d 131
This section is not preempted by federal law. It is not an attempt to regulate in an area that the state has not been authorized to regulate and does not constitute enforcement of federal workplace safety regulations. Rather, this section is a worker's compensation law “with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment" exempted from preemption under 29 U.S.C. § 653 (b) (4). Sohn Manufacturing Inc. v. LIRC, 2013 WI App 112
, 350 Wis. 2d 469
, 838 N.W.2d 131
If injury is caused by the failure of the employee to use safety devices that are provided in accordance with any statute, rule, or order of the department of safety and professional services and that are adequately maintained, and the use of which is reasonably enforced by the employer, or if injury results from the employee's failure to obey any reasonable rule adopted and reasonably enforced by the employer for the safety of the employee and of which the employee has notice, the compensation and death benefit provided in this chapter shall be reduced by 15 percent but the total reduction may not exceed $15,000. If an employee violates the employer's policy concerning employee drug or alcohol use and is injured, and if that violation is causal to the employee's injury, no compensation or death benefits shall be payable to the injured employee or a dependent of the injured employee. Nothing in this section shall reduce or eliminate an employer's liability for incidental compensation under s. 102.42 (1)
or drug treatment under s. 102.425
The burden of proof is on the employer to establish not only the fact of intoxication, but also a causal connection between the condition and the injury or accident. Haller Beverage Corporation v. DILHR, 49 Wis. 2d 233
, 181 N.W.2d 418
This section and s. 102.57 may be applicable in the same case if the negligence of both the employer and employee are causes of the employee's injury. Milwaukee Forge v. DILHR, 66 Wis. 2d 428
, 225 N.W.2d 476
Whether a traveling employee's multiple drinks at a tavern was a deviation was irrelevant when the employee was injured while engaged in a later act reasonably necessary to living. Under this section, intoxication does not defeat a worker's compensation claim but only decreases the benefits. Heritage Mutual Insurance Co. v. Larsen, 2001 WI 30
, 242 Wis. 2d 47
, 624 N.W.2d 129
Preexisting disability, indemnity. 102.59(1)(1)
Subject to any certificate filed under s. 102.65 (4)
, if at the time of injury an employee has permanent disability that if it had resulted from that injury would have entitled the employee to indemnity for 200 weeks and if as a result of that injury the employee incurs further permanent disability that entitles the employee to indemnity for 200 weeks, the employee shall be paid from the funds provided in this section additional compensation equivalent to the amount that would be payable for that previous disability if that previous disability had resulted from that injury or the amount that is payable for that further disability, whichever is less, except that an employee may not be paid that additional compensation if the employee has already received compensation under this subsection. If the previous and further disabilities result in permanent total disability, the additional compensation shall be in such amount as will complete the payments that would have been due had the permanent total disability resulted from that injury. This additional compensation accrues from, and may not be paid to any person before, the end of the period for which compensation for permanent disability resulting from the injury is payable by the employer, and shall be subject to s. 102.32 (6)
, and (7)
. No compromise agreement of liability for this additional compensation may provide for any lump sum payment.
A compromise order issued under s. 102.16 (1)
may not be admitted as evidence in any action or proceeding for benefits compensable under this section.
In the case of the loss or of the total impairment of a hand, arm, foot, leg, or eye, the employer shall pay $20,000 into the state treasury. The payment shall be made in all such cases regardless of whether the employee or the employee's dependent or personal representative commences action against a 3rd party as provided in s. 102.29
All payments received under this section shall be deposited in the fund established by s. 102.65
See also s. DWD 80.68
, Wis. adm. code.
The fund was not liable for disability benefits when an employer was liable for permanent total disability. Green Bay Soap Co. v. DILHR, 87 Wis. 2d 561
, 275 N.W.2d 190
(Ct. App. 1979).
Minor illegally employed. 102.60(1m)(1m)
When the injury is sustained by a minor who is illegally employed, the employer, in addition to paying compensation to the minor and death benefits to the dependents of the minor, shall pay the following amounts into the state treasury, for deposit in the fund established under s. 102.65
An amount equal to the amount recoverable by the injured employee, but not to exceed $7,500, if the injured employee is a minor of permit age and at the time of the injury is employed, required, suffered, or permitted to work without a written permit issued under ch. 103
, except as provided in pars. (b)
An amount equal to double the amount recoverable by the injured employee, but not to exceed $15,000, if the injured employee is a minor of permit age and at the time of the injury is employed, required, suffered, or permitted to work without a permit in any place of employment or at any employment in or for which the department acting under ch. 103
, has adopted a written resolution providing that permits shall not be issued.
An amount equal to double the amount recoverable by the injured employee, but not to exceed $15,000, if the injured employee is a minor of permit age or older and at the time of the injury is employed, required, suffered, or permitted to work at prohibited employment.
An amount equal to double the amount recoverable by the injured employee, but not to exceed $15,000, if the injured employee is a minor under permit age and is illegally employed.
A permit or certificate of age that is unlawfully issued by an officer specified in ch. 103
, or that is unlawfully altered after issuance, without fraud on the part of the employer, shall be considered a permit for purposes of this section.
If the employer is misled in employing a minor illegally because of fraudulent written evidence of age presented by the minor, the employer is not required to pay the amounts specified in sub. (1m)
This section does not apply to a person selling or distributing newspapers or magazines on the street or from house to house if the agency or publisher for whom the person sells or distributes newspapers or magazines establishes by affirmative proof that at the time of the injury the person was not employed with the actual or constructive knowledge of the agency or publisher.
This section does not apply to liability arising under s. 102.06
unless the employer sought to be charged knew or should have known that the minor was illegally employed by the contractor or subcontractor.
Indemnity under rehabilitation law. 102.61(1)(1)
Subject to subs. (1g)
, an employee who is entitled to receive and has received compensation under this chapter, and who is entitled to and is receiving instruction under 29 USC 701
, as administered by the state in which the employee resides or in which the employee resided at the time of becoming physically disabled, shall, in addition to other indemnity, be paid the actual and necessary costs of tuition, fees, books, and travel required for the employee's rehabilitation training program and, if the employee receives that instruction elsewhere than at the place of residence, the actual and necessary costs of maintenance, during rehabilitation, subject to the conditions and limitations specified in sub. (1r)
. The costs of travel under this subsection shall be paid at the same rate as is provided for state officers and employees under s. 20.916 (8)
In this subsection, “suitable employment" means employment that is within an employee's permanent work restrictions, that the employee has the necessary physical capacity, knowledge, transferable skills, and ability to perform, and that pays not less than 90 percent of the employee's preinjury average weekly wage, except that employment that pays 90 percent or more of the employee's preinjury average weekly wage does not constitute suitable employment if any of the following apply:
The employee's education, training, or employment experience demonstrates that the employee is on a career or vocational path, the employee's average weekly wage on the date of injury does not reflect the average weekly wage that the employee reasonably could have been expected to earn in the demonstrated career or vocational path, and the permanent work restrictions caused by the injury impede the employee's ability to pursue the demonstrated career or vocational path.
The employee was performing part-time employment at the time of the injury, the employee's average weekly wage for compensation purposes is calculated under s. 102.11 (1) (f) 1.
, and that average weekly wage exceeds the employee's gross average weekly wage for the part-time employment.
If an employer offers an employee suitable employment as provided in par. (c)
, the employer or the employer's insurance carrier is not liable for temporary disability benefits under s. 102.43 (5) (b)
or for the cost of tuition, fees, books, travel, and maintenance under sub. (1)
. Ineligibility for compensation under this paragraph does not preclude an employee from receiving vocational rehabilitation services under 29 USC 701
if the department determines that the employee is eligible to receive those services.
On receiving notice that he or she is eligible to receive vocational rehabilitation services under 29 USC 701
, an employee shall provide the employer with a written report from a physician, chiropractor, psychologist, or podiatrist stating the employee's permanent work restrictions. Within 60 days after receiving that report, the employer shall provide to the employee in writing an offer of suitable employment, a statement that the employer has no suitable employment for the employee, or a report from a physician, chiropractor, psychologist, or podiatrist showing that the permanent work restrictions provided by the employee's practitioner are in dispute and documentation showing that the difference in work restrictions would materially affect either the employer's ability to provide suitable employment or a vocational rehabilitation counselor's ability to recommend a rehabilitative training program. If the employer and employee cannot resolve the dispute within 30 days after the employee receives the employer's report and documentation, the employer or employee may request a hearing before the division to determine the employee's work restrictions. Within 30 days after the division determines the employee's work restrictions, the employer shall provide to the employee in writing an offer of suitable employment or a statement that the employer has no suitable employment for the employee.
If the department has determined under sub. (1)
that an employee is eligible for vocational rehabilitation services under 29 USC 701
, but that the department cannot provide those services for the employee, the employee may select a private rehabilitation counselor certified by the department to determine whether the employee can return to suitable employment without rehabilitative training and, if that counselor determines that rehabilitative training is necessary, to develop a rehabilitative training program to restore as nearly as possible the employee to his or her preinjury earning capacity and potential.
Notwithstanding s. 102.03 (4)
, an employee whose date of injury is before May 4, 1994, may receive private rehabilitative counseling and rehabilitative training under par. (a)
The employer or insurance carrier shall pay the reasonable cost of any services provided for an employee by a private rehabilitation counselor under par. (a)
and, subject to the conditions and limitations specified in sub. (1r) (a)
and by rule, if the private rehabilitation counselor determines that rehabilitative training is necessary, the reasonable cost of the rehabilitative training program recommended by that counselor, including the cost of tuition, fees, books, maintenance, and travel at the same rate as is provided for state officers and employees under s. 20.916 (8)
. Notwithstanding that the department or the division may authorize under s. 102.43 (5) (b)
a rehabilitative training program that lasts longer than 80 weeks, a rehabilitative training program that lasts 80 weeks or less is presumed to be reasonable.
If an employee receives services from a private rehabilitation counselor under par. (a)
and later receives similar services from the department under sub. (1)
without the prior approval of the employer or insurance carrier, the employer or insurance carrier is not liable for temporary disability benefits under s. 102.43 (5) (b)
or for tuition, fee, book, travel, and maintenance costs under sub. (1)
that exceed what the employer or insurance carrier would have been liable for under the rehabilitative training program developed by the private rehabilitation counselor.
Nothing in this subsection prevents an employer or insurance carrier from providing an employee with the services of a private rehabilitation counselor or with rehabilitative training under sub. (3)
before the department makes its determination under par. (a)
The department shall promulgate rules establishing procedures and requirements for the private rehabilitation counseling and rehabilitative training process under this subsection. Those rules shall include rules specifying the procedure and requirements for certification of private rehabilitation counselors.
An employee who receives a course of instruction or other rehabilitative training under sub. (1)
is subject to the following conditions and limitations:
The employee must undertake the course of instruction within 60 days from the date when the employee has sufficiently recovered from the injury to permit so doing, or as soon thereafter as the officer or agency having charge of the instruction shall provide opportunity for the rehabilitation.
The employee must continue in rehabilitation training with such reasonable regularity as health and situation will permit.
The employee may not have the costs of tuition, fees, books, travel, and maintenance paid under sub. (1)
or the costs of private rehabilitation counseling and rehabilitative training paid under sub. (1m)
on account of training for a period in excess of 80 weeks in all, except as provided in s. 102.43 (5) (b)
The division, the commission, and the courts shall determine the rights and liabilities of the parties under this section in like manner and with like effect as the division, the commission, and the courts determine other issues under this chapter. A determination under this subsection may include a determination based on the evidence regarding the cost or scope of the services provided by a private rehabilitation counselor under sub. (1m) (a)
or the cost or reasonableness of a rehabilitative training program developed under sub. (1m) (a)
Nothing in this section prevents an employer or insurance carrier from providing an employee with the services of a private rehabilitation counselor or with rehabilitative training if the employee voluntarily accepts those services or that training.
See also s. DWD 80.49
, Wis. adm. code.
Under ss. 102.42 (9) (a), 102.43 (5), and 102.61, the department may extend temporary disability, travel expense, and maintenance costs beyond 40 weeks if additional training is warranted. Beloit Corp. v. State, 152 Wis. 2d 579
, 449 N.W.2d 299
(Ct. App. 1989).
The provisions of this section encompass formalized courses of instruction only. Johnson v. LIRC, 177 Wis. 2d 736
, 503 N.W.2d 1
(Ct. App. 1993).
Nothing in sub. (1g) or ch. 102 provides that an injured employee can be denied vocational rehabilitation benefits when he or she is offered suitable employment after an injury and is subsequently fired for just cause. Oshkosh Corporation v. LIRC, 2011 WI App 42
, 332 Wis. 2d 261
, 796 N.W.2d 217
Primary and secondary liability; unchangeable.
In case of liability under s. 102.57
, the liability of the employer shall be primary and the liability of the insurance carrier shall be secondary. If proceedings are had before the division for the recovery of that liability, the division shall set forth in its award the amount and order of liability as provided in this section. Execution shall not be issued against the insurance carrier to satisfy any judgment covering that liability until execution has first been issued against the employer and has been returned unsatisfied as to any part of that liability. Any provision in any insurance policy undertaking to guarantee primary liability or to avoid secondary liability for a liability under s. 102.57
is void. If the employer has been adjudged bankrupt or has made an assignment for the benefit of creditors, if the employer, other than an individual, has gone out of business or has been dissolved, or if the employer is a corporation and its charter has been forfeited or revoked, the insurer shall be liable for the payment of that liability without judgment or execution against the employer, but without altering the primary liability of the employer.
History: 2005 a. 172
; 2015 a. 55
Refunds by state.
Whenever the department shall certify to the secretary of administration that excess payment has been made under s. 102.59
or under s. 102.49 (5)
either because of mistake or otherwise, the secretary of administration shall within 5 days after receipt of such certificate draw an order against the fund in the state treasury into which such excess was paid, reimbursing such payor of such excess payment, together with interest actually earned thereon if the excess payment has been on deposit for at least 6 months.
History: 1981 c. 92
; 2003 a. 33
Attorney general shall represent state and commission. 102.64(1)(1)
Upon request of the department of administration, a representative of the department of justice shall represent the state in cases involving payment into or out of the state treasury under s. 20.865 (1) (fm)
, or (ur)
. The department of justice, after giving notice to the department of administration, may compromise the amount of those payments but such compromises shall be subject to review by the department or the division. If the spouse or domestic partner under ch. 770
of the deceased employee compromises his or her claim for a primary death benefit, the claim of the children of the employee under s. 102.49
shall be compromised on the same proportional basis, subject to approval by the department or the division. If the persons entitled to compensation on the basis of total dependency under s. 102.51 (1)
compromise their claim, payments under s. 102.49 (5) (a)
shall be compromised on the same proportional basis.
Upon request of the department of administration, the attorney general shall appear on behalf of the state in proceedings upon claims for compensation against the state. Except as provided in s. 102.65 (3)
, the department of justice shall represent the interests of the state in proceedings under s. 102.44 (1)
, or 102.66
. The department of justice may compromise claims in those proceedings, but the compromises are subject to review by the department or the division. Costs incurred by the department of justice in prosecuting or defending any claim for payment into or out of the work injury supplemental benefit fund under s. 102.65
, including expert witness and witness fees but not including attorney fees or attorney travel expenses for services performed under this subsection, shall be paid from the work injury supplemental benefit fund.
In any action to review an order or award of the commission, and upon any appeal therein to the court of appeals, the attorney general shall appear on behalf of the commission, whether any other party defendant shall be represented or not, except that in actions brought by the state the governor shall appoint an attorney to appear on behalf of the commission.
Sub. (3) does not result in providing public counsel for a private party litigant, because nowhere does the statute make the attorney general the claimant's attorney, but expressly states that the attorney general shall appear on behalf of the department. Hunter v. DILHR, 64 Wis. 2d 97
, 218 N.W.2d 314
Work injury supplemental benefit fund. 102.65(1)(1)
The moneys payable to the state treasury under ss. 102.35 (1)
, and 102.60
, together with all accrued interest on those moneys, and all interest payments received under s. 102.75 (2)
, shall constitute a separate nonlapsible fund designated as the work injury supplemental benefit fund. Moneys in the fund may be expended only as provided in s. 20.445 (1) (t)
and may not be used for any other purpose of the state.
For proper administration of the moneys available in the fund the department shall by order, set aside in the state treasury suitable reserves to carry to maturity the liability for benefits under ss. 102.44
. Such moneys shall be invested by the investment board in accordance with s. 25.14 (5)
The department of workforce development may retain the department of administration to process, investigate, and pay claims under ss. 102.44 (1)
, and 102.66
. If retained by the department of workforce development, the department of administration may compromise a claim processed by that department, but a compromise made by that department is subject to review by the department of workforce development or the division. The department of workforce development shall pay for the services retained under this subsection from the appropriation account under s. 20.445 (1) (t)
The secretary shall monitor the cash balance in, and incurred losses to, the work injury supplemental benefit fund using generally accepted actuarial principles. If the secretary determines that the expected ultimate losses to the work injury supplemental benefit fund on known claims exceed 85 percent of the cash balance in that fund, the secretary shall consult with the council on worker's compensation. If the secretary, after consulting with the council on worker's compensation, determines that there is a reasonable likelihood that the cash balance in the work injury supplemental benefit fund may become inadequate to fund all claims under ss. 102.49
, and 102.66
, the secretary shall file with the secretary of administration a certificate attesting that the cash balance in that fund is likely to become inadequate to fund all claims under ss. 102.49
, and 102.66
and specifying one of the following:
That payment of those claims will be made as provided in a schedule that the department shall promulgate by rule.