102.40
102.40
Reports not evidence in actions. Reports furnished to the department pursuant to
ss. 102.37 and
102.38 shall not be admissible as evidence in any action or proceeding arising out of the death or accident reported.
102.42
102.42
Incidental compensation. 102.42(1)
(1)
Treatment of employee. The employer shall supply such medical, surgical, chiropractic, psychological, podiatric, dental and hospital treatment, medicines, medical and surgical supplies, crutches, artificial members, appliances, and training in the use of artificial members and appliances, or, at the option of the employee, if the employer has not filed notice as provided in
sub. (4), Christian Science treatment in lieu of medical treatment, medicines and medical supplies, as may be reasonably required to cure and relieve from the effects of the injury, and to attain efficient use of artificial members and appliances, and in case of the employer's neglect or refusal seasonably to do so, or in emergency until it is practicable for the employee to give notice of injury, the employer shall be liable for the reasonable expense incurred by or on behalf of the employee in providing such treatment, medicines, supplies and training. Where the employer has knowledge of the injury and the necessity for treatment, the employer's failure to tender the necessary treatment, medicines, supplies and training constitutes such neglect or refusal. The employer shall also be liable for reasonable expense incurred by the employee for necessary treatment to cure and relieve the employee from the effects of occupational disease prior to the time that the employee knew or should have known the nature of his or her disability and its relation to employment, and as to such treatment
subs. (2) and
(3) shall not apply. The obligation to furnish such treatment and appliances shall continue as required to prevent further deterioration in the condition of the employee or to maintain the existing status of such condition whether or not healing is completed.
102.42(1m)
(1m) Liability for unnecessary treatment. If an employee who has sustained a compensable injury undertakes in good faith invasive treatment that is generally medically acceptable, but that is unnecessary, the employer shall pay disability indemnity for all disability incurred as a result of that treatment. An employer is not liable for disability indemnity for any disability incurred as a result of any unnecessary treatment undertaken in good faith that is noninvasive or not medically acceptable. This subsection applies to all findings that an employee has sustained a compensable injury, whether the finding results from a hearing, the default of a party, or a compromise or stipulation confirmed by the department.
102.42(2)(a)(a) When the employer has notice of an injury and its relationship to the employment, the employer shall offer to the injured employee his or her choice of any physician, chiropractor, psychologist, dentist, physician assistant, advanced practice nurse prescriber, or podiatrist licensed to practice and practicing in this state for treatment of the injury. By mutual agreement, the employee may have the choice of any qualified practitioner not licensed in this state. In case of emergency, the employer may arrange for treatment without tendering a choice. After the emergency has passed the employee shall be given his or her choice of attending practitioner at the earliest opportunity. The employee has the right to a 2nd choice of attending practitioner on notice to the employer or its insurance carrier. Any further choice shall be by mutual agreement. Partners and clinics are considered to be one practitioner. Treatment by a practitioner on referral from another practitioner is considered to be treatment by one practitioner.
102.42(2)(b)
(b) The employer is liable for the expense of reasonable travel to obtain treatment at the same rate as is provided for state officers and employees under
s. 20.916 (8). The employer is not liable for the expense of unreasonable travel to obtain treatment.
102.42(3)
(3) Practitioner choice unrestricted. If the employer fails to tender treatment as provided in
sub. (1) or choice of an attending practitioner as provided in
sub. (2), the employee's right to choose the attending practitioner is not restricted and the employer is liable for the reasonable and necessary expense thereof.
102.42(4)
(4) Christian Science. Any employer may elect not to be subject to the provisions for Christian Science treatment provided for in this section by filing written notice of such election with the department.
102.42(5)
(5) Artificial members. Liability for repair and replacement of prosthetic devices is limited to the effects of normal wear and tear. Artificial members furnished at the end of the healing period for cosmetic purposes only need not be duplicated.
102.42(6)
(6) Treatment rejected by employee. Unless the employee shall have elected Christian Science treatment in lieu of medical, surgical, dental or hospital treatment, no compensation shall be payable for the death or disability of an employee, if the death be caused, or insofar as the disability may be aggravated, caused or continued by an unreasonable refusal or neglect to submit to or follow any competent and reasonable medical, surgical or dental treatment or, in the case of tuberculosis, by refusal or neglect to submit to or follow hospital or medical treatment when found by the department to be necessary. The right to compensation accruing during a period of refusal or neglect to submit to or follow hospital or medical treatment when found by the department to be necessary in the case of tuberculosis shall be barred, irrespective of whether disability was aggravated, caused or continued thereby.
102.42(8)
(8) Award to state employee. Whenever an award is made by the department in behalf of a state employee, the department of workforce development shall file duplicate copies of the award with the department of administration. Upon receipt of the copies of the award, the department of administration shall promptly issue a voucher in payment of the award from the proper appropriation under
s. 20.865 (1) (fm),
(kr) or
(ur), and shall transmit one copy of the voucher and the award to the officer, department or agency by whom the affected employee is employed.
102.42(9)
(9) Rehabilitation; physical and vocational. 102.42(9)(a)(a) One of the primary purposes of this chapter is restoration of an injured employee to gainful employment. To this end, the department shall employ a specialist in physical, medical and vocational rehabilitation.
102.42(9)(b)
(b) Such specialist shall study the problems of rehabilitation, both physical and vocational and shall refer suitable cases to the department for vocational evaluation and training. The specialist shall investigate and maintain a directory of such rehabilitation facilities, private and public, as are capable of rendering competent rehabilitation service to seriously injured employees.
102.42(9)(c)
(c) The specialist shall review and evaluate reported injuries for potential cases in which seriously injured employees may be in need of physical and medical rehabilitation and may confer with the injured employee, employer, insurance carrier or attending practitioner regarding treatment and rehabilitation.
102.42 Annotation
The requirement that medical treatment be supplied during the healing period, defined as prior to the time the condition becomes stationary, is not determined by reference to the percentage of disability, but by a determination that the injury has stabilized. Custodial care, as distinguished from nursing services, is not compensable. Mednicoff v. DILHR,
54 Wis. 2d 7,
194 N.W.2d 670 (1972).
102.42 Annotation
In appropriate cases, the department may postpone a determination of permanent disability for a reasonable period until after a claimant completes a competent and reasonable course of physical therapy or vocational rehabilitation as an essential part of the treatment required for full recovery and minimization of damages. Transamerica Insurance Co. v. DILHR,
54 Wis. 2d 272,
195 N.W.2d 656 (1972).
102.42 Annotation
An employee who wishes to consult a second doctor on the panel after the first says no further treatment is needed may do so without notice or consent. If the second doctor prescribes an operation that increases the amount of disability, the employer is liable. Spencer v. DILHR,
55 Wis. 2d 525,
200 N.W.2d 611 (1972).
102.42 Annotation
Sub. (7) [now sub. (6)] relieves an employer of liability when the employee refuses treatment provided by the employer, as required under sub. (1). An employee is not required to seek treatment from someone other than the employer. Klein Industrial Salvage v. DILHR,
80 Wis. 2d 457,
259 N.W.2d 124 (1972).
102.42 Annotation
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 Corporation v. State,
152 Wis. 2d 579,
449 N.W.2d 299 (Ct. App. 1989).
102.42 Annotation
Sub. (1) requires an employer to pay medical expenses even after a final order has been issued. Linsey v. LIRC,
171 Wis. 2d 499,
493 N.W.2d 14 (1992).
102.42 Annotation
Sub. (2) (a) does not require an employer to consent to out-of-state health care expenses that result from a referral by an in-state practitioner selected in accordance with the statute. UFE Inc. v. LIRC,
201 Wis. 2d 274,
548 N.W.2d 57 (1996),
94-2794.
102.42 Annotation
The continuing obligation to compensate an employee for work related medical expenses under s. 102.42 does not allow agency review of compromise agreements after the one-year statute of limitations in s. 102.16 (1) has run if the employee incurs medical expenses after that time. Schenkoski v. LIRC,
203 Wis. 2d 109,
552 N.W.2d 120 (Ct. App. 1996),
96-0051.
102.42 Annotation
Under sub. (2), an employee can seek reimbursement for expenses related to 2 practitioners regardless of whether they are the first 2 practitioners whom the employee has seen. Hermax Carpet Marts v. LIRC,
220 Wis. 2d 611,
583 N.W.2d 662 (Ct. App. 1998),
97-1119.
102.42 Annotation
Section 102.01 (2) (g) sets the date of injury of an occupational disease and s. 102.01 (1) provides that medical expenses incurred before an employee knows of the work-related injury are compensable. Read together, medical expenses in occupational disease cases are not compensable until the date of injury, but once the date is established all expenses associated with the disease, even if incurred before the date of injury, are compensable. United Wisconsin Insurance Co. v. LIRC,
229 Wis. 2d 416,
600 N.W.2d 186 (Ct. App. 1999),
97-3776.
102.42 Annotation
Spencer creates an exception to the general rule that compensation is permitted only if medical expenses are reasonably required and necessary. As long as a claimant engages in unnecessary and unreasonable treatment in good faith, the employer is responsible for payment. Honthaners Restaurants, Inc. v. LIRC, 2000 WI App 273,
240 Wis. 2d 234,
621 N.W.2d 660,
99-3002.
102.42 Annotation
Continuing Payments for Medical Expenses in Worker's Compensation Proceedings. Carnell & Woog. Wis. Law. Nov. 1993.
102.425
102.425
Prescription and nonprescription drug treatment. 102.425(2)
(2) Substitution of drug product equivalents. 102.425(2)(a)(a) Except as provided in
pars. (b) and
(c), when a drug is prescribed to treat an injury for which an employer or insurer is liable under this chapter, the pharmacist or practitioner dispensing the drug shall substitute a drug product equivalent in place of the prescribed drug if all of the following apply:
102.425(2)(a)1.
1. In the professional judgment of the dispensing pharmacist or practitioner, the drug product equivalent is therapeutically equivalent to the prescribed drug.
102.425(2)(a)2.
2. The charge for the drug product equivalent is less than the charge for the prescribed drug.
102.425(2)(b)
(b) A pharmacist or practitioner may not substitute a drug product equivalent under
par. (a) in place of a prescribed drug if any of the following apply:
102.425(2)(b)1.
1. The prescribed drug is a single-source patented drug for which there is no drug product equivalent.
102.425(2)(b)2.
2. The prescriber determines that the prescribed drug is medically necessary and indicates that no substitution may be made for that prescribed drug by writing on the face of the prescription order or, in the case of a prescription order that is transmitted electronically, by designating in electronic format the phrase "No substitutions" or "Dispense as written" or words of similar meaning or the initials "N.S." or "D.A.W."
102.425(2)(c)
(c) Unless
par. (b) applies, if an injured employee requests that a specific brand name drug be used to treat the employee's injury, the pharmacist or practitioner dispensing the prescription shall dispense the specific brand name drug as requested. If a specific brand name drug is dispensed under this paragraph, the employer or insurer and the employee shall share the cost of the prescription as follows:
102.425(2)(c)1.
1. The employer or insurer shall be liable in an amount equal to the average wholesale price, as determined under
sub. (3) (a) 1., of the lowest-priced drug product equivalent that the pharmacist or practitioner has in stock on the day on which the brand name drug is dispensed, plus the dispensing fee under
sub. (3) (a) 2. and any applicable taxes under
sub. (3) (a) 3. that would be payable for that drug product equivalent.
102.425(2)(c)2.
2. The employee shall be liable in an amount equal to the difference between the amount for which the employer or insurer is liable under
subd. 1. and an amount equal to the average wholesale price, as determined under
sub. (3) (a) 1., of the brand name drug on the day on which the brand name drug is dispensed, plus any applicable taxes under
sub. (3) (a) 3. that are payable for that brand name drug.
102.425(3)(a)(a) The liability of an employer or insurer for the cost of a prescription drug dispensed under
sub. (2) for outpatient use by an injured employee is limited to the sum of all of the following:
102.425(3)(a)1.
1. The average wholesale price of the prescription drug as of the date on which the prescription drug is dispensed, as quoted in the American Druggist Blue Book, published by Hearst Corporation, Inc. or its successor, or in the Drug Topics Red Book, published by Medical Economics Company, Inc. or its successor, whichever is less.
102.425(3)(a)2.
2. A dispensing fee of $3 per prescription order, which shall be payable for all prescription drugs dispensed under
sub. (2) regardless of the location from which the prescription drug is dispensed, but which shall be payable only to a pharmacist who dispenses the prescription drug.
102.425(3)(a)3.
3. Any state or federal taxes that may be applicable to the prescription drug dispensed.
102.425(3)(b)
(b) In addition to the liability under
par. (a), an employer or insurer is also liable for reimbursement to an injured employee for all out-of-pocket expenses incurred by the injured employee in obtaining the prescription drug dispensed.
102.425(3)(c)
(c) A billing statement submitted to an employer or insurer for a prescription drug dispensed under
sub. (2) shall include the national drug code number of the prescription as listed in the national drug code directory maintained by the federal food and drug administration and shall state separately the price of the prescription drug and the dispensing fee.
102.425(4)(a)(a) Except as provided in
par. (b), a pharmacist or practitioner who dispenses a prescription drug under
sub. (2) to an injured employee may not collect, or bring an action to collect, from the injured employee any charge that is in excess of the liability of the injured employee under
sub. (2) (c) 2. or the liability of the employer or insurer under
sub. (3) (a).
102.425(4)(b)
(b) If an employer denies or disputes liability for the cost of a drug prescribed to an injured employee under
sub. (2), the pharmacist or practitioner who dispensed the drug may collect, or bring an action to collect, from the injured employee the cost of the prescription drug dispensed, subject to the limitations specified in
sub. (3) (a).
102.425(5)
(5) Nonprescription drug products. The liability of an employer or insurer for the cost of a nonprescription drug product used to treat an injured employee is limited to the usual and customary charge to the general public for the nonprescription drug product.
102.425 History
History: 2005 a. 172.
102.43
102.43
Weekly compensation schedule. If the injury causes disability, an indemnity shall be due as wages commencing the 4th calendar day from the commencement of the day the scheduled work shift began, exclusive of Sundays only, excepting where the employee works on Sunday, after the employee leaves work as the result of the injury, and shall be payable weekly thereafter, during such disability. If the disability exists after 7 calendar days from the date the employee leaves work as a result of the injury and only if it so exists, indemnity shall also be due and payable for the first 3 calendar days, exclusive of Sundays only, excepting where the employee works on Sunday. Said weekly indemnity shall be as follows:
102.43(1)
(1) If the injury causes total disability, two-thirds of the average weekly earnings during such disability.
102.43(2)
(2) If the injury causes partial disability, during the partial disability, such proportion of the weekly indemnity rate for total disability as the actual wage loss of the injured employee bears to the injured employee's average weekly wage at the time of the injury.
102.43(3)
(3) If the disability caused by the injury is at times total and at times partial, the weekly indemnity during each total or partial disability shall be in accordance with
subs. (1) and
(2), respectively.
102.43(4)
(4) If the disability period involves a fractional week, indemnity shall be paid for each day of such week, except Sundays only, at the rate of one-sixth of the weekly indemnity.
102.43(5)
(5) Temporary disability, during which compensation shall be payable for loss of earnings, shall include such period as may be reasonably required for training in the use of artificial members and appliances. Except as provided in
s. 102.61 (1g), temporary disability shall also include such period as the employee may be receiving instruction pursuant to
s. 102.61 (1) or
(1m). Temporary disability on account of receiving instruction of the latter nature, and not otherwise resulting from the injury, shall not be in excess of 80 weeks. Such 80-week limitation does not apply to temporary disability benefits under this section, travel or maintenance expense under
s. 102.61 (1), or private rehabilitation counseling or rehabilitative training costs under
s. 102.61 (1m) if the department determines that additional training is warranted. The necessity for additional training as authorized by the department for any employee shall be subject to periodic review and reevaluation.
102.43(6)(a)(a) Except as provided in
par. (b), no sick leave benefits provided in connection with other employment or wages received from other employment held by the employee when the injury occurred may be considered in computing actual wage loss from the employer in whose employ the employee sustained injury.
102.43(6)(b)
(b) In the case of an employee whose average weekly earnings are calculated under
s. 102.11 (1) (a), wages received from other employment held by the employee when the injury occurred shall be considered in computing actual wage loss from the employer in whose employ the employee sustained the injury as provided in this paragraph. If an employee's average weekly earnings are calculated under
s. 102.11 (1) (a), wages received from other employment held by the employee when the injury occurred shall be offset against those average weekly earnings and not against the employee's actual earnings in the employment in which the employee was engaged at the time of the injury.
102.43(6)(c)
(c) Wages received from the employer in whose employ the employee sustained injury or from other employment obtained after the injury occurred shall be considered in computing benefits for temporary disability.
102.43(7)(a)(a) If an employee has a renewed period of temporary disability commencing more than 2 years after the date of injury and, except as provided in
par. (b), the employee returned to work for at least 10 days preceding the renewed period of disability, payment of compensation for the new period of disability shall be made as provided in
par. (c).
102.43(7)(b)
(b) An employee need not return to work at least 10 days preceding a renewed period of temporary disability to obtain benefits under
sub. (5) for rehabilitative training commenced more than 2 years after the date of injury. Benefits for rehabilitative training shall be made as provided in
par. (c).
102.43(7)(c)1.1. If the employee was entitled to maximum weekly benefits at the time of injury, payment for the renewed temporary disability or the rehabilitative training shall be at the maximum rate in effect at the commencement of the new period.
102.43(7)(c)2.
2. If the employee was entitled to less than the maximum rate, the employee shall receive the same proportion of the maximum which is in effect at the time of the commencement of the renewed period or the rehabilitative training as the employee's actual rate at the time of injury bore to the maximum rate in effect at that time.
102.43(7)(c)3.
3. For an employee who is receiving rehabilitative training, a holiday break, semester break or other, similar scheduled interruption in a course of instruction does not commence a new period of rehabilitative training under this paragraph.
102.43(8)
(8) During a compulsory vacation period scheduled in accordance with a collective bargaining agreement:
102.43(8)(a)
(a) Regardless of whether the employee's healing period has ended, no employee at work immediately before the compulsory vacation period may receive a temporary total disability benefit for injury sustained while engaged in employment for that employer.
102.43(8)(b)
(b) An employee receiving temporary partial disability benefits immediately before the compulsory vacation period for injury sustained while engaged in employment for that employer shall continue to receive those benefits.
102.43(9)
(9) Temporary disability, during which compensation shall be payable for loss of earnings, shall include the period during which an employee could return to a restricted type of work during the healing period, unless any of the following apply:
102.43(9)(a)
(a) Suitable employment that is within the physical and mental limitations of the employee is furnished to the employee by the employer or some other employer. For purposes of this paragraph, if the employer or some other employer makes a good faith offer of suitable employment that is within the physical and mental limitations of the employee and if the employee refuses without reasonable cause to accept that offer, the employee is considered to have returned to work as of the date of the offer at the earnings that the employee would have received but for the refusal. In case of a dispute as to the extent of an employee's physical or mental limitations or as to what employment is suitable within those limitations, the employee may file an application under
s. 102.17 and
ss. 102.17 to
102.26 shall apply.
102.43(9)(b)
(b) The employee's employment with the employer has been suspended or terminated due to the employee's alleged commission of a crime, the circumstances of which are substantially related to that employment, and the employee has been charged with the commission of that crime. If the employee is not found guilty of the crime, compensation for temporary disability shall be payable in full.
102.43(9)(c)
(c) The employee's employment with the employer has been suspended or terminated due to the employee's violation of the employer's policy concerning employee drug use during the period when the employee could return to a restricted type of work during the healing period. Compensation for temporary disability may be denied under this paragraph only if prior to the date of injury the employer's policy concerning employee drug use was established in writing and regularly enforced by the employer.
102.43 Annotation
Committee Note, 1971: Employees who have two jobs who have been injured at one of them have in some cases been made totally disabled for work at either job. Sick leave benefits from the other employer has suspended eligibility for compensation or has reduced compensation even though the employee suffered a wage loss. This is considered to be inequitable. Sick leave benefits from the employer where injury occurred are to be considered, however, in determining eligibility for compensation from such employer. [Bill 371-A]
102.43 Annotation
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).
