102.07(12m)(a)1.1. “Institution of higher education” means an institution within the University of Wisconsin System, a technical college, a tribally controlled college controlled by an Indian tribe that has elected under s. 102.05 (2) to become subject to this chapter, a school approved under s. 440.52, or a private, nonprofit institution of higher education located in this state. 102.07(12m)(b)(b) A student of a public school, a private school, or an institution of higher education, while he or she is engaged in performing services as part of a school work training, work experience, or work study program, and who is not on the payroll of an employer that is providing the work training or work experience or who is not otherwise receiving compensation on which a worker’s compensation carrier could assess premiums on that employer, is an employee of a school district, private school, or institution of higher education that elects under s. 102.077 to name the student as its employee. 102.07(13)(13) A juvenile performing uncompensated community service work as a result of a deferred prosecution agreement under s. 938.245, a consent decree under s. 938.32 or an order under s. 938.34 is an employee of the county in which the court ordering the community service work is located. No compensation may be paid to that employee for temporary disability during the healing period. 102.07(14)(14) An adult performing uncompensated community service work under s. 304.062, 943.017 (3), 971.38, 973.03 (3), 973.05 (3), 973.09 or 973.10 (1m) is an employee of the county in which the district attorney requiring or the court ordering the community service work is located or in which the place of assignment under s. 304.062 or 973.10 (1m) is located. No compensation may be paid to that employee for temporary disability during the healing period. 102.07(15)(15) A sole proprietor or partner or member electing under s. 102.075 is an employee. 102.07(16)(16) An inmate participating in a work release program under s. 303.065 (2) or in the transitional employment program is an employee of any employer under this chapter for whom he or she is performing service at the time of the injury. 102.07(17)(17) A prisoner of a county jail who is assigned to a work camp under s. 303.10 is not an employee of the county or counties providing the work camp while the prisoner is working under s. 303.10 (3). 102.07(17g)(17g) A state employee who is on a leave of absence granted under s. 230.35 (3) (e) to provide services to the American Red Cross in a particular disaster is not an employee of the state for the purposes of this chapter during the period in which he or she is on the leave of absence, unless one of the following occurs: 102.07(17g)(a)(a) The American Red Cross specifies in its written request under s. 230.35 (3) (e) 2. c. that a unit of government in this state is requesting the assistance of the American Red Cross in the particular disaster and the state employee during the leave of absence provides services related to assisting the unit of government. 102.07(17g)(b)(b) The American Red Cross specifies in its written request under s. 230.35 (3) (e) 2. c. that it has been requested to provide assistance outside of this state in a particular disaster and there exists between the state of Wisconsin and the state in which the services are to be provided a mutual aid agreement, entered into by the governor, which specifies that the state of Wisconsin and the other state may assist each other in the event of a disaster and which contains provisions addressing worker’s compensation coverage for the employees of the other state who provide services in Wisconsin. 102.07(17m)(17m) A participant in a trial employment match program job under s. 49.147 (3) is an employee of any employer under this chapter for whom the participant is performing service at the time of the injury. 102.07(18)(18) A participant in a community service job under s. 49.147 (4) or a transitional placement under s. 49.147 (5) is an employee of the Wisconsin works agency, as defined under s. 49.001 (9), for the purposes of this chapter, except to the extent that the person for whom the participant is performing work provides worker’s compensation coverage. 102.07(20)(20) An individual who is performing services for a person participating in the self-directed services option, as defined in s. 46.2897 (1), for a person receiving long-term care benefits under s. 46.275 or 46.277 or under any children’s long-term support waiver program on a self-directed basis, or for a person receiving the Family Care benefit, as defined in s. 46.2805 (4), or benefits under the Family Care Partnership program, as described in s. 49.496 (1) (bk) 3., on a self-directed basis and who does not otherwise have worker’s compensation coverage for those services is considered to be an employee of the entity that is providing financial management services for that person. 102.07 HistoryHistory: 1975 c. 147 s. 54; 1975 c. 224; 1977 c. 29; 1979 c. 278; 1981 c. 325; 1983 a. 27, 98; 1985 a. 29, 83, 135; 1985 a. 150 s. 4; 1985 a. 176, 332; 1987 a. 63; 1989 a. 31, 64, 359; 1993 a. 16, 81, 112, 399; 1995 a. 24, 77, 96, 117, 225, 281, 289, 417; 1997 a. 35, 38, 118; 1999 a. 14, 162; 2001 a. 37; 2005 a. 96; 2007 a. 130; 2009 a. 28, 42, 288; 2011 a. 123; 2013 a. 20; 2015 a. 55, 180, 258, 334; 2017 a. 59; 2019 a. 9. 102.07 AnnotationA truck owner who fell and sustained injuries in a company’s truck parking area while in the process of repairing his truck was properly found under sub. (8) to be a statutory employee of the company at the time of his injury although he was an independent contractor who worked exclusively for the trucking company under a lease agreement. Employers Mutual Liability Insurance Co. v. DILHR, 52 Wis. 2d 515, 190 N.W.2d 907 (1971). 102.07 AnnotationThere was no employment when a member of an organization borrowed a refrigerated truck from a packing company for use at a picnic and was injured when returning it. Kress Packing Co. v. Kottwitz, 61 Wis. 2d 175, 212 N.W.2d 97 (1973). 102.07 AnnotationNothing in this chapter precludes an employer from agreeing with employees to continue salaries for injured workers in excess of worker’s compensation benefits. Excess payments are not worker’s compensation and may be conditioned on the parties’ agreement. City of Milwaukee v. DILHR, 193 Wis. 2d 626, 534 N.W.2d 903 (Ct. App. 1995). 102.07 AnnotationA person injured upon the premises of a temporary help agency prior to receiving a work assignment was an employee under this section when the agency operated essentially as a hiring hall contracting with persons seeking work assignments and requiring that the persons seeking work physically present themselves each day at the hall and remain there until they have a work assignment. Labor Ready, Inc. v. LIRC, 2005 WI App 153, 285 Wis. 2d 506, 702 N.W.2d 27, 04-1440. 102.07 AnnotationThe primary test for determining an employer-employee relationship is whether the alleged employer has a right to control the details of the work. In assessing the right to control, four secondary factors are considered: 1) direct evidence of the exercise of the right of control; 2) the method of payment of compensation; 3) the furnishing of equipment or tools for the performance of the work; and 4) the right to terminate the employment relationship. Acuity Mutual Insurance Co. v. Olivas, 2007 WI 12, 298 Wis. 2d 640, 726 N.W.2d 258, 05-0685. 102.07 AnnotationSub. (8m) allows for a distinction between a person as an employee and as the proprietor of a side business that the employee runs separately. Acuity Insurance Co. v. Whittingham, 2007 WI App 210, 305 Wis. 2d 613, 740 N.W.2d 154, 06-2379. 102.07 AnnotationThe county was found to be the employer, for worker’s compensation purposes, of a care giver for a service recipient under the long-term support community options waiver program under s. 46.27 (11). County of Barron v. LIRC, 2010 WI App 149, 330 Wis. 2d 203, 792 N.W.2d 584, 09-1845. 102.07 AnnotationMembers of state boards, committees, commissions, or councils who are compensated by per diem or by actual and necessary expense are covered employees. 58 Atty. Gen. 10.
102.075102.075 Election by sole proprietor, partner or member. 102.075(1)(1) Any sole proprietor, partner or member of a limited liability company engaged in a vocation, profession or business on a substantially full-time basis may elect to be an employee under this chapter by procuring insurance against injury sustained in the pursuit of that vocation, profession or business. This coverage may be obtained by endorsement on an existing policy of worker’s compensation insurance or by issuance of a separate policy to the sole proprietor, partner or member on the same basis as any other policy of worker’s compensation insurance. 102.075(2)(2) For the purpose of any insurance policy other than a worker’s compensation insurance policy, no sole proprietor, partner or member may be considered eligible for worker’s compensation benefits unless he or she elected to be an employee under this section. 102.075(3)(3) Any sole proprietor, partner or member who elected to be an employee under this section may withdraw that election upon 30 days’ prior written notice to the insurance carrier and the Wisconsin compensation rating bureau. 102.075 HistoryHistory: 1983 a. 98; 1993 a. 112. 102.076102.076 Election by corporate officer. 102.076(1)(1) Not more than 2 officers of a corporation having not more than 10 stockholders may elect not to be subject to this chapter. If the corporation has been issued a policy of worker’s compensation insurance, an officer of the corporation may elect not to be subject to this chapter and not to be covered under the policy at any time during the period of the policy. Except as provided in sub. (2), the election shall be made by an endorsement, on the policy of worker’s compensation insurance issued to that corporation, naming each officer who has so elected. The election is effective for the period of the policy and may not be reversed during the period of the policy. An officer who so elects is an employee for the purpose of determining whether the corporation is an employer under s. 102.04 (1) (b). 102.076(2)(2) If a corporation has not more than 10 stockholders, not more than 2 officers and no other employees and is not otherwise required under this chapter to have a policy of worker’s compensation insurance, an officer of that corporation who elects not to be subject to this chapter shall file a notice of that election with the department on a form approved by the department. The election is effective until the officer rescinds it by notifying the department in writing. 102.077102.077 Election by school district or private school. 102.077(1)(1) A school district, private school, or institution of higher education may elect to name as its employee for purposes of this chapter a student described in s. 102.07 (12m) (b) by an endorsement on its policy of worker’s compensation insurance or, if the school district, private school, or institution of higher education is exempt from the duty to insure under s. 102.28 (2) (a), by filing a declaration with the department in the manner provided in s. 102.31 (2) (a) naming the student as an employee of the school district, private school, or institution of higher education for purposes of this chapter. A declaration under this subsection shall list the name of the student to be covered under this chapter, the name and address of the employer that is providing the work training or work experience for that student, and the title, if any, of the work training, work experience, or work study program in which the student is participating. 102.077(2)(2) A school district, private school, or institution of higher education may revoke a declaration under sub. (1) by providing written notice to the department in the manner provided in s. 102.31 (2) (a), the student, and the employer who is providing the work training or work experience for that student. A revocation under this subsection is effective 30 days after the department receives notice of that revocation. 102.078102.078 Election by real estate firm. 102.078(1)(1) A firm, as defined in s. 452.01 (4w), may elect to name as its employee for purposes of this chapter a real estate broker or salesperson who is excluded under s. 452.38 by an endorsement on its policy of worker’s compensation insurance or, if the firm is self-insured under s. 102.28 (2) (b), by filing a declaration with the department in the manner provided in s. 102.31 (2) (a) naming the real estate broker or salesperson as an employee of the firm for purposes of this chapter. A declaration under this subsection shall state all of the following: 102.078(1)(a)(a) The name of the real estate broker or salesperson to be covered under this chapter. 102.078(1)(b)(b) That a written agreement has been entered into that provides that the real estate broker or salesperson shall not be treated as an employee for federal and state tax purposes. 102.078(1)(c)(c) That 75 percent or more of the compensation related to sales or other output, as measured on a calendar year basis, paid to the real estate broker or salesperson under the written agreement specified in par. (b) is directly related to the brokerage services performed by the real estate broker or salesperson on behalf of the firm. 102.078(2)(2) A firm, as defined in s. 452.01 (4w), may revoke a declaration under sub. (1) by providing written notice to the department in the manner provided in s. 102.31 (2) (a) and to the real estate broker or salesperson named in the declaration. A revocation under this subsection is effective 30 days after the department receives notice of that revocation. 102.078 HistoryHistory: 2015 a. 258. 102.08102.08 Administration for state employees. The department of administration has responsibility for the timely delivery of benefits payable under this chapter to employees of the state and their dependents and other functions of the state as an employer under this chapter. The department of administration may delegate this authority to employing departments and agencies and require such reports as it deems necessary to accomplish this purpose. The department of administration or its delegated authorities shall file with the department of workforce development the reports that are required of all employers. The department of workforce development shall monitor the delivery of benefits to state employees and their dependents and shall consult with and advise the department of administration in the manner and at the times necessary to ensure prompt and proper delivery. 102.11102.11 Earnings, method of computation. 102.11(1)(1) The average weekly earnings for temporary disability, permanent total disability, or death benefits for injury in each calendar year on or after January 1, 1982, shall be not less than $30 nor more than the wage rate that results in a maximum compensation rate of 110 percent of the state’s average weekly earnings as determined under s. 108.05 as of June 30 of the previous year. The average weekly earnings for permanent partial disability shall be not less than $30 and, for permanent partial disability for injuries occurring on or after January 1, 2023, and before March 24, 2024, not more than $645, resulting in a maximum compensation rate of $430; for permanent partial disability for injuries occurring on or after March 24, 2024, and before January 1, 2025, not more than $657, resulting in a maximum compensation rate of $438; and for permanent partial disability for injuries occurring on or after January 1, 2025, not more than $669, resulting in a maximum compensation rate of $446. Between such limits the average weekly earnings shall be determined as follows: 102.11(1)(a)1.1. Daily earnings shall mean the daily earnings of the employee at the time of the injury in the employment in which the employee was then engaged. In determining daily earnings under this subdivision, any hours worked beyond the normal full-time working day as established by the employer, whether compensated at the employee’s regular rate of pay or at an increased rate of pay, shall not be considered. 102.11(1)(a)2.a.a. In this subdivision, “part time for the day” means Saturday half days and any other day during which an employee works less than the normal full-time working hours established by the employer. 102.11(1)(a)2.b.b. If at the time of the injury the employee is working part time for the day, the employee’s daily earnings shall be arrived at by dividing the amount received, or to be received by the employee for such part-time service for the day, by the number of hours and fractional hours of the part-time service, and multiplying the result by the number of hours of the normal full-time working day established by the employer for the employment involved. 102.11(1)(a)3.3. The average weekly earnings shall be arrived at by multiplying the employee’s hourly earnings by the hours in the normal full-time workweek as established by the employer, or by multiplying the employee’s daily earnings by the number of days and fractional days in the normal full-time workweek as established by the employer, at the time of the injury in the business operation of the employer for the particular employment in which the employee was engaged at the time of the employee’s injury, whichever is greater. 102.11(1)(a)4.4. It is presumed, unless rebutted by reasonably clear and complete documentation, that the normal full-time workweek established by the employer is 24 hours for a flight attendant, 56 hours for a fire fighter, and not less than 40 hours for any other employee. If the employer has established a multi-week schedule with regular hours alternating between weeks, the normal full-time workweek is the average number of hours worked per week under the multi-week schedule. 102.11(1)(ap)1.1. Except as provided in subd. 2., in the case of an employee who works less than full time, average weekly earnings shall be calculated by whichever of the following is greater: 102.11(1)(ap)1.a.a. The actual average weekly earnings of the employee for the 52 calendar weeks before his or her injury, except that calendar weeks within which no work was performed shall not be considered. 102.11(1)(ap)1.b.b. The employee’s hourly earnings on the date of injury multiplied by the average number of hours worked in that employment for the 52 calendar weeks before his or her injury, except that calendar weeks within which no work was performed shall not be considered. 102.11(1)(ap)2.2. An employee may, subject to subd. 3., demonstrate that he or she is eligible for temporary disability benefits based on full-time work rather than part-time work as provided in subd. 1. a. by providing evidence of qualifying taxable earnings with an employer other than the employer liable for the employee’s injury or demonstrating that the employee has worked less than full time for less than 12 months before the date of the employee’s injury. If the employee so demonstrates, the employee’s average weekly wage shall be calculated using the normal full-time workweek established by the employer under par. (a). 102.11(1)(ap)3.3. An employer may rebut the employee’s evidence of eligibility for temporary disability benefits based on full-time work under subd. 2. by providing evidence that the employee chose to work less than full time. Such evidence of a choice to restrict employment to less than full time may include a written statement signed by the employee or an employment application that indicates an hour or shift preference. 102.11(1)(b)(b) In case of seasonal employment, average weekly earnings shall be arrived at by the method prescribed in par. (a), except that the number of hours of the normal full-time working day and the number of days of the normal full-time workweek shall be the hours and the days in similar service in the same or similar nonseasonal employment. Seasonal employment shall mean employment that can be conducted only during certain times of the year, and in no event shall employment be considered seasonal if it extends during a period of more than fourteen weeks within a calendar year. 102.11(1)(c)(c) In the case of a person performing service without fixed earnings, or when normal full-time days or weeks are not maintained by the employer in the employment in which the employee worked when injured, or when, for other reason, earnings cannot be determined under the methods prescribed by par. (a) or (b), the earnings of the injured person shall, for the purpose of calculating compensation payable under this chapter, be taken to be the usual going earnings paid for similar services on a normal full-time basis in the same or similar employment in which earnings can be determined under the methods set out in par. (a) or (b). 102.11(1)(d)(d) Except in situations where par. (b) applies, average weekly earnings shall in no case be less than actual average weekly earnings of the employee for the 52 calendar weeks before his or her injury within which the employee has been employed in the business, in the kind of employment and for the employer for whom the employee worked when injured. Calendar weeks within which no work was performed shall not be considered under this paragraph. This paragraph applies only if the employee has worked within a total of at least 6 calendar weeks during the 52 calendar weeks before his or her injury in the business, in the kind of employment and for the employer for whom the employee worked when injured. For purposes of this section, earnings for part-time services performed for a labor organization pursuant to a collective bargaining agreement between the employer and that labor organization shall be considered as part of the total earnings in the preceding 52 calendar weeks, whether payment is made by the labor organization or the employer. 102.11(1)(e)(e) Where any things of value are received in addition to monetary earnings as a part of the wage contract, they shall be deemed a part of earnings and computed at the value thereof to the employee. 102.11(1)(f)(f) The weekly temporary disability benefits for a part-time employee who restricts his or her availability in the labor market to part-time work and is not employed elsewhere, or who has worked less than full time for 12 months or longer before the employee’s injury, may not exceed the average weekly wages of the part-time employment. 102.11(1)(g)(g) If an employee is under 27 years of age, the employee’s average weekly earnings on which to compute the benefits accruing for permanent disability or death shall be determined on the basis of the earnings that the employee, if not disabled, probably would earn after attaining the age of 27 years. Unless otherwise established, the projected earnings determined under this paragraph shall be taken as equivalent to the amount upon which maximum weekly indemnity is payable. 102.11(2)(2) The average annual earnings when referred to in this chapter shall consist of 50 times the employee’s average weekly earnings. Subject to the maximum limitation, average annual earnings shall in no case be taken at less than the actual earnings of the employee in the year immediately preceding the employee’s injury in the kind of employment in which the employee worked at the time of injury. 102.11(3)(3) The weekly wage loss referred to in this chapter shall be the percentage of the average weekly earnings of the injured employee computed under this section that fairly represents the proportionate extent of the impairment of the employee’s earning capacity in the employment in which the employee was working at the time of the injury and other suitable employments. Weekly wage loss shall be fixed as of the time of the injury, but shall be determined in view of the nature and extent of the injury. 102.11 Cross-referenceCross-reference: See also s. DWD 80.51, Wis. adm. code. 102.11 AnnotationIt was reasonable for the Labor and Industry Review Commission to determine that health insurance premiums were not things of value that are received in addition to monetary earnings under sub. (1) (e). Theuer v. LIRC, 2001 WI 26, 242 Wis. 2d 29, 624 N.W.2d 110, 00-1085. 102.12102.12 Notice of injury, exception, laches. No claim for compensation may be maintained unless, within 30 days after the occurrence of the injury or within 30 days after the employee knew or ought to have known the nature of his or her disability and its relation to the employment, actual notice was received by the employer or by an officer, manager or designated representative of an employer. If no representative has been designated by posters placed in one or more conspicuous places where notices to employees are customarily posted, then notice received by any superior is sufficient. Absence of notice does not bar recovery if it is found that the employer was not misled by that absence. Regardless of whether notice was received, if no payment of compensation, other than medical treatment or burial expense, is made, and if no application is filed with the department within 2 years after the date of the injury or death or the date the employee or his or her dependent knew or ought to have known the nature of the disability and its relation to the employment, the right to compensation for the injury or death is barred, except that the right to compensation is not barred if the employer knew or should have known, within the 2-year period, that the employee had sustained the injury on which the claim is based. Issuance of notice of a hearing on the motion of the department or the division has the same effect for the purposes of this section as the filing of an application. This section does not affect any claim barred under s. 102.17 (4). 102.12 HistoryHistory: 1983 a. 98; 2015 a. 55. 102.123102.123 Statement of employee. If an employee provides to the employer or the employer’s insurer a signed statement relating to a claim for compensation by the employee, the employer or insurer shall provide a copy of the statement to the employee within a reasonable time after the statement is made. If an employer or insurer uses a recording device to take a statement from an employee relating to a claim for compensation by the employee, the employer or insurer, on the request of the employee or the employee’s attorney or other authorized agent, shall reduce the statement to writing and provide a written copy of the entire statement to the employee, attorney, or agent within a reasonable time after the statement is taken. The employer or insurer shall also make the actual recording of the statement available as an exhibit if a hearing on the claim is held. An employer or insurer that fails to provide an employee with a copy of the employee’s statement as required by this section or that fails to make available as an exhibit the actual recording of a statement recorded by a recording device as required by this section may not use that statement in any manner in connection with the employee’s claim for compensation. 102.123 HistoryHistory: 2001 a. 37. 102.125102.125 Fraud reporting, investigation, and prosecution. 102.125(1)(1) Fraudulent claims reporting and investigation. If an insurer or self-insured employer has evidence that a claim is false or fraudulent in violation of s. 943.395 and if the insurer or self-insured employer is satisfied that reporting the claim to the department will not impede its ability to defend the claim, the insurer or self-insured employer shall report the claim to the department. The department may require an insurer or self-insured employer to investigate an allegedly false or fraudulent claim and may provide the insurer or self-insured employer with any records of the department relating to that claim. An insurer or self-insured employer that investigates a claim under this subsection shall report on the results of that investigation to the department. 102.125(2)(2) Assistance by department of justice. The department of workforce development may request the department of justice to assist the department of workforce development in an investigation under sub. (1) or in the investigation of any other suspected fraudulent activity on the part of an employer, employee, insurer, health care provider, or other person related to worker’s compensation. 102.125(3)(3) Prosecution. If based on an investigation under sub. (1) or (2) the department has a reasonable basis to believe that a violation of s. 943.20, 943.38, 943.39, 943.392, 943.395, 943.40, or any other criminal law has occurred, the department shall refer the results of the investigation to the department of justice or to the district attorney of the county in which the alleged violation occurred for prosecution. 102.13102.13 Examination; competent witnesses; exclusion of evidence; autopsy. 102.13(1)(a)(a) Except as provided in sub. (4), whenever compensation is claimed by an employee, the employee shall, upon the written request of the employee’s employer or worker’s compensation insurer, submit to reasonable examinations by physicians, chiropractors, psychologists, dentists, physician assistants, advanced practice registered nurses, or podiatrists provided and paid for by the employer or insurer. No employee who submits to an examination under this paragraph is a patient of the examining physician, chiropractor, psychologist, dentist, physician assistant, advanced practice registered nurse, or podiatrist for any purpose other than for the purpose of bringing an action under ch. 655, unless the employee specifically requests treatment from that physician, chiropractor, psychologist, dentist, physician assistant, advanced practice registered nurse, or podiatrist. 102.13(1)(am)(am) When compensation is claimed for loss of earning capacity under s. 102.44 (2) or (3), the employee shall, on the written request of the employee’s employer or insurer, submit to reasonable examinations by vocational experts provided and paid for by the employer or insurer. 102.13(1)(b)(b) An employer or insurer who requests that an employee submit to reasonable examination under par. (a) or (am) shall tender to the employee, before the examination, all necessary expenses including transportation expenses. The employee is entitled to have a physician, chiropractor, psychologist, dentist, physician assistant, advanced practice registered nurse, or podiatrist provided by himself or herself present at the examination and to receive a copy of all reports of the examination that are prepared by the examining physician, chiropractor, psychologist, podiatrist, dentist, physician assistant, advanced practice registered nurse, or vocational expert immediately upon receipt of those reports by the employer or worker’s compensation insurer. The employee is entitled to have one observer provided by himself or herself present at the examination. The employee is also entitled to have a translator provided by himself or herself present at the examination if the employee has difficulty speaking or understanding the English language. The employer’s or insurer’s written request for examination shall notify the employee of all of the following:
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Chs. 101-114, Regulation of Industry
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