102.07(8)(b)5.
5. Is responsible for the satisfactory completion of work or services that he or she contracts to perform and is liable for a failure to complete the work or service.
102.07(8)(b)6.
6. Receives compensation for work or service performed under a contract on a commission or per job or competitive bid basis and not on any other basis.
102.07(8)(b)7.
7. May realize a profit or suffer a loss under contracts to perform work or service.
102.07(8)(b)8.
8. Has continuing or recurring business liabilities or obligations.
102.07(8)(b)9.
9. The success or failure of the independent contractor's business depends on the relationship of business receipts to expenditures.
102.07(8)(c)
(c) The department may not admit in evidence state or federal laws, regulations, documents granting operating authority or licenses when determining whether an independent contractor meets the conditions specified in
par. (b) 1. or
3.
102.07(8m)
(8m) An employer who is subject to this chapter is not an employe of another employer for whom the first employer performs work or service in the course of the other employer's trade, business, profession or occupation.
102.07(9)
(9) Members of the national guard and state defense force, when on state active duty under direction of appropriate authority, but only in case federal laws, rules or regulations provide no benefits substantially equivalent to those provided in this chapter.
102.07(10)
(10) Further to effectuate the policy of the state that the benefits of this chapter shall extend and be granted to employes in the service of the state, or of any municipality therein on the same basis, in the same manner, under the same conditions, and with like right of recovery as in the case of employes of persons, firms or private corporations, any question whether any person is an employe under this chapter shall be governed by and determined under the same standards, considerations, and rules of decision in all cases under
subs. (1) to
(9). Any statutes, ordinances, or administrative regulations which may be otherwise applicable to the classes of employes enumerated in
sub. (1) shall not be controlling in deciding whether any person is an employe for the purposes of this chapter.
102.07(11)
(11) The department may by rule prescribe classes of volunteer workers who may, at the election of the person for whom the service is being performed, be deemed to be employes for the purposes of this chapter. Election shall be by endorsement upon the worker's compensation insurance policy with written notice to the department. In the case of an employer exempt from insuring liability, election shall be by written notice to the department. The department shall by rule prescribe the means and manner in which notice of election by the employer is to be provided to the volunteer workers.
102.07(11m)
(11m) Subject to
sub. (11), a volunteer for a nonprofit organization described in section
501 (c) of the internal revenue code, as defined in
s. 71.01 (6), that is exempt or eligible for exemption from federal income taxation under section
501 (a) of the internal revenue code who receives from that nonprofit organization nominal payments of money or other things of value totaling not more than $10 per week is not considered to be an employe of that nonprofit organization for purposes of this chapter.
102.07(12)
(12) A student in a technical college district while, as a part of a training program, he or she is engaged in performing services for which a school organized under
ch. 38 collects a fee or is engaged in producing a product sold by such a school is an employe of that school.
102.07(12m)
(12m) A student of a public school, as described in
s. 115.01 (1), or a private school, as defined in
s. 115.001 (3r), 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 employe of a school district or private school that elects under
s. 102.077 to name the student as its employe. This subsection does not apply after December 31, 1997.
102.07(13)
(13) A child 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 employe of the county in which the court ordering the community service work is located. No compensation may be paid to that employe 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 employe 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 employe 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 employe.
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 employe 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 employe of the county or counties providing the work camp while the prisoner is working under
s. 303.10 (3).
102.07(17m)
(17m) A participant in a trial job under
s. 49.147 (3) is an employe of any employer under this chapter for whom the participant is performing service at the time of the injury.
102.07 Note
NOTE: Sub. (17m) is shown as renumbered from sub. (17), as created by
1995 Wis. Act 289, by the revisor under s. 13.93 (1) (b).
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 employe 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 History
History: 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; s. 13.93 (1) (b).
102.07 Annotation
Where the claimant, owner of a truck, working exclusively for a trucking company under a lease agreement, fell and sustained injuries in the company's truck parking area while in the process of repairing his truck, the department properly found that the claimant, although an independent contractor, was at the time of his injury a statutory employe of the company under sub. (8). Employers Mut. L. Ins. Co. v. ILHR Dept. 52 W (2d) 515, 190 NW (2d) 907.
102.07 Annotation
There 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 W (2d) 175, 212 NW (2d) 97.
102.07 Annotation
Nothing in this chapter precludes an employer from agreeing with employes 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 W (2d) 626, 534 NW (2d) 903 (Ct. App. 1995).
102.07 Annotation
Members of state boards, committees, commissions or councils, who are compensated by per diem or by actual and necessary expense are covered employes. 58 Atty. Gen. 10.
102.075
102.075
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 employe 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 employe under this section.
102.075(3)
(3) Any sole proprietor, partner or member who elected to be an employe 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 History
History: 1983 a. 98;
1993 a. 112.
102.076
102.076
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. 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. An officer who so elects is an employe 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 employes 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.
102.077
102.077
Election by school district or private school. 102.077(1)(1) A school district or a private school, as defined in
s. 115.001 (3r), may elect to name as its employe for purposes of this chapter a student described in
s. 102.07 (12m) by an endorsement on its policy of worker's compensation insurance or, if the school district or private school is exempt from the duty to insure under
s. 102.28 (2), by filing a declaration with the department in the manner provided in
s. 102.31 (2) (a) naming the student as an employe of the school district or private school 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 or private school 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.
102.077(3)
(3) This section does not apply after December 31, 1997.
102.077 History
History: 1995 a. 117.
102.08
102.08
Administration for state employes. The department of administration has responsibility for the timely delivery of benefits payable under this chapter to employes 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 industry, labor and job development the reports that are required of all employers. The department of industry, labor and job development shall monitor the delivery of benefits to state employes 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.
102.08 History
History: 1981 c. 20;
1995 a. 27 s.
9130 (4).
102.11
102.11
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 which results in a maximum compensation rate of 100% of the state's average weekly earnings as determined under
s. 108.05 as of June 30 of the previous year, except that the average weekly earnings for temporary disability, permanent total disability or death benefits for injuries occurring on or after January 1, 1996, and before January 1, 1997, shall be not more than $741, resulting in a maximum compensation rate of $494, and the average weekly earnings for temporary disability, permanent total disability or death benefits for injuries occurring on or after January 1, 1997, and before January 1, 1998, shall be not more than $763.50, resulting in a maximum compensation rate of $509. 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, 1996, not more than $253.50, resulting in a maximum compensation rate of $169, and, for permanent partial disability for injuries occurring on or after January 1, 1997, not more than $261, resulting in a maximum compensation rate of $174. Between such limits the average weekly earnings shall be determined as follows:
102.11(1)(a)
(a) Daily earnings shall mean the daily earnings of the employe at the time of the injury in the employment in which the employe was then engaged. In determining daily earnings under this paragraph, overtime shall not be considered. If at the time of the injury the employe is working on part time for the day, the employe's daily earnings shall be arrived at by dividing the amount received, or to be received by the employe for such part-time service for the day, by the number of hours and fractional hours of such part-time service, and multiplying the result by the number of hours of the normal full-time working day for the employment involved. The words "part time for the day" shall apply to Saturday half days and all other days upon which the employe works less than normal full-time working hours. The average weekly earnings shall be arrived at by multiplying the daily earnings by the number of days and fractional days normally worked per week at the time of the injury in the business operation of the employer for the particular employment in which the employe was engaged at the time of the employe's injury.
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 working week shall be such hours and such days in similar service in the same or similar nonseasonal employment. Seasonal employment shall mean employment which 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 persons performing service without fixed earnings, or where normal full-time days or weeks are not maintained by the employer in the employment in which the employe worked when injured, or where, 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 employe for the 4 calendar quarters before his or her injury within which the employe has been employed in the business, in the kind of employment and for the employer for whom the employe worked when injured. Calendar weeks within which no work was performed shall not be considered under this paragraph. This paragraph applies only if the employe has worked within a total of at least 6 calendar weeks during the 4 calendar quarters before his or her injury in the business, in the kind of employment and for the employer for whom the employe 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 4 calendar quarters, 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 employe.
102.11(1)(f)1.1. Except as provided in
subd. 2., average weekly earnings may not be less than 24 times the normal hourly earnings at the time of injury.
102.11(1)(f)2.
2. The weekly temporary disability benefits for a part-time employe who restricts his or her availability in the labor market to part-time work and is not employed elsewhere may not exceed the average weekly wages of the part-time employment.
102.11(1)(g)
(g) If an employe is under twenty-seven years of age, the employe'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 such employe, if not disabled, probably would earn after attaining the age of twenty-seven years. Unless otherwise established, said earnings 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 fifty times the employe'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 employe in the year immediately preceding the employe's injury in the kind of employment in which the employe worked at the time of injury.
102.11(3)
(3) The weekly wage loss referred to in this chapter, except under
s. 102.60 (6), shall be such percentage of the average weekly earnings of the injured employe computed according to the provisions of this section, as shall fairly represent the proportionate extent of the impairment of the employe's earning capacity in the employment in which the employe was working at the time of the injury, and other suitable employments, the same to be fixed as of the time of the injury, but to be determined in view of the nature and extent of the injury.
102.11 Annotation
See note to Art. I, sec. 1, citing State ex rel. Briggs & Stratton v. Noll, 100 W (2d) 650, 302 NW (2d) 487 (1981).
102.12
102.12
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 employe 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, 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 thereby. Regardless of whether notice was received, if no payment of compensation, other than medical treatment or burial expense, is made, and no application is filed with the department within 2 years from the date of the injury or death, or from the date the employe 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 therefor 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 employe had sustained the injury on which the claim is based. Issuance of notice of a hearing on the department's own motion 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 History
History: 1983 a. 98.
102.125
102.125
Fraudulent claims reporting and investigation. 102.125(1)(1) 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. If based on the investigation the department has a reasonable basis to believe that a violation of
s. 943.395 has occurred, the department shall refer the results of the investigation to the district attorney of the county in which the alleged violation occurred for prosecution.
102.125(2)
(2) Annually, the department shall submit a report to the appropriate standing committees under
s. 13.172 (3) and the governor detailing, for the previous year, the number of reports under
sub. (1) that the department received, the number of referrals for prosecution that the department made and the results of those referrals.
102.125 History
History: 1993 a. 81.
102.13
102.13
Examination; competent witnesses; exclusion of evidence; autopsy. 102.13(1)(a)(a) Except as provided in
sub. (4), whenever compensation is claimed by an employe, the employe shall, upon the written request of the employe's employer or worker's compensation insurer, submit to reasonable examinations by physicians, chiropractors, psychologists or podiatrists provided and paid for by the employer or insurer. No employe who submits to an examination under this paragraph is a patient of the examining physician, chiropractor, psychologist or podiatrist for any purpose other than for the purpose of bringing an action under
ch. 655, unless the employe specifically requests treatment from that physician, chiropractor, psychologist or podiatrist.
102.13(1)(am)
(am) When compensation is claimed for loss of earning capacity under
s. 102.44 (2) or
(3), the employe shall, on the written request of the employe'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 employe submit to reasonable examination under
par. (a) or
(am) shall tender to the employe, before the examination, all necessary expenses including transportation expenses. The employe is entitled to have a physician, chiropractor, psychologist or podiatrist provided by himself or herself present at the examination and to request and receive a copy of all reports of the examination that are prepared by the examining physician, chiropractor, psychologist, podiatrist or vocational expert. The employe is also entitled to have a translator provided by himself or herself present at the examination if the employe has difficulty speaking or understanding the English language. The employer's or insurer's written request for examination shall notify the employe of all of the following:
102.13(1)(b)1.
1. The proposed date, time and place of the examination and the identity and area of specialization of the examining physician, chiropractor, psychologist, podiatrist or vocational expert.
102.13(1)(b)2.
2. The procedure for changing the proposed date, time and place of the examination.
102.13(1)(b)3.
3. The employe's right to have his or her physician, chiropractor, psychologist or podiatrist present at the examination.
102.13(1)(b)4.
4. The employe's right to request and receive a copy of all reports of the examination that are prepared by the examining physician, chiropractor, psychologist, podiatrist or vocational expert.
102.13(1)(b)5.
5. The employe's right to have a translator provided by himself or herself present at the examination if the employe has difficulty speaking or understanding the English language.
102.13(1)(c)
(c) So long as the employe, after a written request of the employer or insurer which complies with
par. (b), refuses to submit to or in any way obstructs the examination, the employe's right to begin or maintain any proceeding for the collection of compensation is suspended, except as provided in
sub. (4). If the employe refuses to submit to the examination after direction by the department or an examiner, or in any way obstructs the examination, the employe's right to the weekly indemnity which accrues and becomes payable during the period of that refusal or obstruction, is barred, except as provided in
sub. (4).
102.13(1)(d)1.
1. Any physician, chiropractor, psychologist, podiatrist or vocational expert who is present at any examination under
par. (a) or
(am) may be required to testify as to the results thereof.
102.13(1)(d)2.
2. Any physician, chiropractor, psychologist or podiatrist who attended a worker's compensation claimant for any condition or complaint reasonably related to the condition for which the claimant claims compensation may be required to testify before the department when it so directs.
102.13(1)(d)3.
3. Notwithstanding any statutory provisions except
par. (e), any physician, chiropractor, psychologist or podiatrist attending a worker's compensation claimant for any condition or complaint reasonably related to the condition for which the claimant claims compensation may furnish to the employe, employer, worker's compensation insurer, or the department information and reports relative to a compensation claim.
102.13(1)(d)4.
4. The testimony of any physician, chiropractor, psychologist or podiatrist who is licensed to practice where he or she resides or practices in any state and the testimony of any vocational expert may be received in evidence in compensation proceedings.
102.13(1)(e)
(e) No person may testify on the issue of the reasonableness of the fees of a licensed health care professional unless the person is licensed to practice the same health care profession as the professional whose fees are the subject of the testimony. This paragraph does not apply to the fee dispute resolution process under
s. 102.16 (2).
102.13(1)(f)
(f) If an employe claims compensation under
s. 102.81 (1), the department may require the employe to submit to physical or vocational examinations under this subsection.
102.13(2)(a)(a) An employe who reports an injury alleged to be work-related or files an application for hearing waives any physician-patient, psychologist-patient or chiropractor-patient privilege with respect to any condition or complaint reasonably related to the condition for which the employe claims compensation. Notwithstanding
ss. 51.30 and
146.82 and any other law, any physician, chiropractor, psychologist, podiatrist, hospital or health care provider shall, within a reasonable time after written request by the employe, employer, worker's compensation insurer or department or its representative, provide that person with any information or written material reasonably related to any injury for which the employe claims compensation.
102.13(2)(b)
(b) A physician, chiropractor, podiatrist, psychologist, hospital or health service provider shall furnish a legible, certified duplicate of the written material requested under
par. (a) upon payment of the actual costs of preparing the certified duplicate, not to exceed the greater of 45 cents per page or $7.50 per request, plus the actual costs of postage. Any person who refuses to provide certified duplicates of written material in the person's custody that is requested under
par. (a) shall be liable for reasonable and necessary costs and, notwithstanding
s. 814.04 (1), reasonable attorney fees incurred in enforcing the requester's right to the duplicates under
par. (a).
102.13(3)
(3) If 2 or more physicians, chiropractors, psychologists or podiatrists disagree as to the extent of an injured employe's temporary disability, the end of an employe's healing period, an employe's ability to return to work at suitable available employment or the necessity for further treatment or for a particular type of treatment, the department may appoint another physician, chiropractor, psychologist or podiatrist to examine the employe and render an opinion as soon as possible. The department shall promptly notify the parties of this appointment. If the employe has not returned to work, payment for temporary disability shall continue until the department receives the opinion. The employer or its insurance carrier or both shall pay for the examination and opinion. The employer or insurance carrier or both shall receive appropriate credit for any overpayment to the employe determined by the department after receipt of the opinion.
102.13(4)
(4) The rights of employes to begin or maintain proceedings for the collection of compensation and to receive weekly indemnities which accrue and become payable shall not be suspended or barred under
sub. (1) when an employe refuses to submit to a physical examination, upon the request of the employer or worker's compensation insurer or at the direction of the department or an examiner, which would require the employe to travel a distance of 100 miles or more from his or her place of residence, unless the employe has claimed compensation for treatment from a practitioner whose office is located 100 miles or more from the employe's place of residence or the department or examiner determines that any other circumstances warrant the examination. If the employe has claimed compensation for treatment from a practitioner whose office is located 100 miles or more from the employe's place of residence, the employer or insurer may request, or the department or an examiner may direct, the employe to submit to a physical examination in the area where the employe's treatment practitioner is located.
102.13(5)
(5) The department may refuse to receive testimony as to conditions determined from an autopsy if it appears that the party offering the testimony had procured the autopsy and had failed to make reasonable effort to notify at least one party in adverse interest or the department at least 12 hours before the autopsy of the time and place it would be performed, or that the autopsy was performed by or at the direction of the coroner or medical examiner or at the direction of the district attorney for purposes not authorized by
ch. 979. The department may withhold findings until an autopsy is held in accordance with its directions.
102.14
102.14
Jurisdiction of department; advisory committee.
