102.31(4)
(4) If any insurer authorized to transact worker's compensation insurance in this state fails to promptly pay claims for compensation for which it is liable or fails to make reports to the department required by
s. 102.38, the department may recommend to the commissioner of insurance, with detailed reasons, that enforcement proceedings under
s. 601.64 be invoked. The commissioner shall furnish a copy of the recommendation to the insurer and shall set a date for a hearing, at which both the insurer and the department shall be afforded an opportunity to present evidence. If after the hearing the commissioner finds that the insurer has failed to carry out its obligations under this chapter, the commissioner shall institute enforcement proceedings under
s. 601.64. If the commissioner does not so find, the commissioner shall dismiss the complaint.
102.31(5)
(5) If any employer whom the department exempted from carrying compensation insurance arbitrarily or unreasonably refuses employment to or discharges employes because of a nondisabling physical condition, the department shall revoke the exemption of that employer.
102.31(6)
(6) The department has standing to appear as a complainant and present evidence in any administrative hearing or court proceeding instituted for alleged violation of
s. 628.34 (7).
102.31(7)
(7) If the department by one or more written orders specifically consents to the issuance of one or more contracts covering only the liability incurred on a construction project and if the construction project owner designates the insurance carrier and pays for each such contract, the construction project owner shall reimburse the department for all costs incurred by the department in issuing the written orders and in ensuring minimum confusion and maximum safety on the construction project.
102.31(8)
(8) The Wisconsin compensation rating bureau shall provide the department with any information it requests relating to worker's compensation insurance coverage, including but not limited to the names of employers insured and any insured employer's address, business status, type and date of coverage, manual premium code, and policy information including numbers, cancellations, terminations, endorsements and reinstatement dates. The department may enter into contracts with the Wisconsin compensation rating bureau to share the costs of data processing and other services.
102.31 Annotation
Sub. (1) (b) does not apply to a joint venture and insurance written in the name of one adventurer is sufficient to cover his joint liability. Insurance Co. of N. A. v. ILHR Dept. 45 W (2d) 361, 173 NW (2d) 192.
102.32
102.32
Continuing liability; guarantee settlement, gross payment. In any case in which compensation payments have extended or will extend over 6 months or more from the date of the injury (or at any time in death benefit cases), any party in interest may, in the discretion of the department, be discharged from, or compelled to guarantee, future compensation payments as follows:
102.32(1)
(1) By depositing the present value of the total unpaid compensation upon a 7% interest discount basis with a credit union, savings bank, savings and loan association, bank or trust company designated by the department; or
102.32(2)
(2) By purchasing an annuity within the limitations provided by law, in such insurance company granting annuities and licensed in this state, as may be designated by the department; or
102.32(3)
(3) By making payment in gross upon a 7% interest discount basis to be approved by the department; and
102.32(4)
(4) In cases where the time for making payments or the amounts thereof cannot be definitely determined, by furnishing a bond, or other security, satisfactory to the department for the payment of compensation as may be due or become due. The acceptance of the bond, or other security, and the form and sufficiency thereof, shall be subject to the approval of the department. If the employer or insurer is unable or fails to immediately procure the bond, then, in lieu thereof, deposit shall be made with a credit union, savings bank, savings and loan association, bank or trust company designated by the department, of the maximum amount that may reasonably become payable in these cases, to be determined by the department at amounts consistent with the extent of the injuries and the law. The bonds and deposits are to be reduced only to satisfy claims and withdrawn only after the claims which they are to guarantee are fully satisfied or liquidated under
sub. (1),
(2) or
(3); and
102.32(5)
(5) Any insured employer may, within the discretion of the department, compel the insurer to discharge, or to guarantee payment of its liabilities in any such case under this section and thereby release himself or herself from compensation liability therein, but if for any reason a bond furnished or deposit made under
sub. (4) does not fully protect, the compensation insurer or uninsured employer, as the case may be, shall still be liable to the beneficiary thereof.
102.32(6)
(6) If compensation is due for permanent disability following an injury or if death benefits are payable, payments shall be made to the employe or dependent on a monthly basis. The department may direct an advance on a payment of unaccrued compensation or death benefits if it determines that the advance payment is in the best interest of the injured employe or his or her dependents. In directing the advance, the department shall give the employer or the employer's insurer an interest credit against its liability. The credit shall be computed at 7%.
102.32(7)
(7) No lump sum settlement shall be allowed in any case of permanent total disability upon an estimated life expectancy, except upon consent of all parties, after hearing and finding by the department that the interests of the injured employe will be conserved thereby.
102.33
102.33
Department forms and records; public access. 102.33(1)(1) The department shall print and furnish free to any employer or employe such blank forms as it shall deem requisite to facilitate efficient administration of this chapter; it shall keep such record books or records as it shall deem required for the proper and efficient administration of this chapter.
102.33(2)(a)(a) Except as provided in
par. (b), the records of the department related to the administration of this chapter are subject to inspection and copying under
s. 19.35 (1).
102.33(2)(b)
(b) Notwithstanding
par. (a), a record maintained by the department that reveals the identity of an employe who claims worker's compensation benefits, the nature of the employe's claimed injury, the employe's past or present medical condition, the extent of the employe's disability, the amount, type or duration of benefits paid to the employe or any financial information provided to the department by a self-insured employer or by an applicant for exemption under
s. 102.28 (2) (b) is confidential and not open to public inspection or copying under
s. 19.35 (1). The department may deny a request made under
s. 19.35 (1) or, subject to
s. 102.17 (2m) and
(2s), refuse to honor a subpoena issued by an attorney of record in a civil or criminal action or special proceeding to inspect and copy a record that is confidential under this paragraph, unless one of the following applies:
102.33(2)(b)1.
1. The requester is the employe who is the subject of the record or an attorney or authorized agent of that employe. An attorney or authorized agent of an employe who is the subject of a record shall provide a written authorization for inspection and copying from the employe if requested by the department.
102.33(2)(b)2.
2. The record that is requested contains confidential information concerning a worker's compensation claim and the requester is an insurance carrier or employer that is a party to any worker's compensation claim involving the same employe or an attorney or authorized agent of that insurance carrier or employer, except that the department is not required to do a random search of its records and may require the requester to provide the approximate date of the injury and any other relevant information that would assist the department in finding the record requested. An attorney or authorized agent of an insurance carrier or employer that is a party to an employe's worker's compensation claim shall provide a written authorization for inspection and copying from the insurance carrier or employer if requested by the department.
102.33(2)(b)3.
3. The record that is requested contains financial information provided by a self-insured employer or by an applicant for exemption under
s. 102.28 (2) (b) and the requester is the self-insured employer or applicant for exemption or an attorney or authorized agent of the self-insured employer or applicant for exemption. An attorney or authorized agent of the self-insured employer or of the applicant for exemption shall provide a written authorization for inspection and copying from the self-insured employer or applicant for exemption if requested by the department.
102.33(2)(b)4.
4. A court of competent jurisdiction in this state orders the department to release the record.
102.35(1)(1) Every employer and every insurance company that fails to keep the records or to make the reports required by this chapter or that knowingly falsifies such records or makes false reports shall forfeit to the state not less than $10 nor more than $100 for each offense.
102.35(2)
(2) Any employer, or duly authorized agent thereof, who, without reasonable cause, refuses to rehire an employe injured in the course of employment, or who, because of a claim or attempt to claim compensation benefits from such employer, discriminates or threatens to discriminate against an employe as to the employe's employment, shall forfeit to the state not less than $50 nor more than $500 for each offense. No action under this subsection may be commenced except upon request of the department.
102.35(3)
(3) Any employer who without reasonable cause refuses to rehire an employe who is injured in the course of employment, where suitable employment is available within the employe's physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employe the wages lost during the period of such refusal, not exceeding one year's wages. In determining the availability of suitable employment the continuance in business of the employer shall be considered and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall govern.
102.35 History
History: 1975 c. 147;
1977 c. 29,
195.
102.35 Annotation
Employer cannot satisfy (3) by rehiring with intent to fire at later date. Dielectric Corp. v. LIRC, 111 W (2d) 270, 330 NW (2d) 606 (Ct. App. 1983).
102.35 Annotation
Employer has burden to prove rehiring was in good faith. West Allis School Dist. v. DILHR, 116 W (2d) 410, 342 NW (2d) 415 (1984).
102.35 Annotation
One-day absence from work due to injury triggered rehire provision under (3). Link Industries, Inc. v. LIRC, 141 W (2d) 551, 415 NW (2d) 574 (Ct. App. 1987).
102.35 Annotation
Standards for determination of employer liability under sub. (3) summarized. Universal Foods Corp. v. LIRC, 161 W (2d) 1, 467 NW (2d) 793 (Ct. App. 1991).
102.35 Annotation
Sub. (3) does not bar an employe from seeking arbitration under a collective bargaining agreement to determine whether termination following an injury violated the agreement. Sub. (3) relates to harm other than worker injuries and is not subject to the exclusive remedy provision of s. 102.03 (2); the "exclusive liability" language in sub. (3) does not bar law suits but imposes a penalty for refusal to hire on the employer. County of Lacrosse v. WERC, 182 W (2d) 15, 513 NW (2d) 708 (1994).
102.35 Annotation
LIRC interpretation of sub. (3), that a violation requires an employe who is unable to return to his prior employment to express an interest in reemployment in a different capacity, was reasonable. Hill v. LIRC, 184 W (2d) 110, 516 NW (2d) 441 (Ct. App. 1994).
102.35 Annotation
If an employer shows that it refused to rehire an injured employe because the employe's position was eliminated to reduce costs and increase efficiency, reasonable cause has been shown under sub. (3). Ray Hutson Chevrolet, Inc. v. LIRC, 186 W(2d) 118, 519 NW (2d ) 649 (Ct. App. 1994).
102.35 Annotation
An attendance policy which includes absences due to work-related injuries as part of the total of absences allowed before termination violates sub. (3). Great Northern Corp. v. LIRC, 189 W (2d) 313, 525 NW (2d) 361 (Ct. App. 1994).
102.37
102.37
Employers' records. Every employer of 3 or more persons and every employer who is subject to this chapter shall keep a record of all accidents causing death or disability of any employe while performing services growing out of and incidental to the employment. This record shall give the name, address, age and wages of the deceased or injured employe, the time and causes of the accident, the nature and extent of the injury, and any other information the department may require by general order. Reports based upon this record shall be furnished to the department at such times and in such manner as it may require by general order, upon forms approved by the department.
102.37 History
History: 1975 c. 147 s.
54;
1985 a. 83.
102.38
102.38
Records of payments; reports thereon. Every insurance company which transacts the business of compensation insurance, and every employer who is subject to this chapter but whose liability is not insured, shall keep a record of all payments made under this chapter and of the time and manner of making the payments, and shall furnish reports based upon these records to the department as it may require by general order, upon forms approved by the department.
102.39
102.39
General orders; application of statutes. The provisions of
s. 103.005 relating to the adoption, publication, modification and court review of general orders of the department shall apply to all general orders adopted pursuant to this chapter.
102.39 History
History: 1995 a. 27.
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 employe. 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 employe, 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 employe to give notice of injury, the employer shall be liable for the reasonable expense incurred by or on behalf of the employe 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 employe for necessary treatment to cure and relieve the employe from the effects of occupational disease prior to the time that the employe 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 employe or to maintain the existing status of such condition whether or not healing is completed.
102.42(2)(a)(a) Where the employer has notice of an injury and its relationship to the employment the employer shall offer to the injured employe his or her choice of any physician, chiropractor, psychologist or podiatrist licensed to practice and practicing in this state for treatment of the injury. By mutual agreement, the employe 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 employe shall be given his or her choice of attending practitioner at the earliest opportunity. The employe 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 deemed to be one practitioner. Treatment by a practitioner on referral from another practitioner is deemed to be treatment by one practitioner.
102.42(2)(b)
(b) 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 employe'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 employe. Unless the employe shall have elected Christian Science treatment in lieu of medical, surgical, hospital or sanatorium treatment, no compensation shall be payable for the death or disability of an employe, if the death be caused, or insofar as the disability may be aggravated, caused or continued (a) by an unreasonable refusal or neglect to submit to or follow any competent and reasonable medical or surgical treatment, (b) or, in the case of tuberculosis, by refusal or neglect to submit to or follow hospital or sanatorium treatment when found by the department to be necessary. The right to compensation accruing during a period of refusal or neglect under (b) shall be barred, irrespective of whether disability was aggravated, caused or continued thereby.
102.42(8)
(8) Award to state employe. Whenever an award is made by the department in behalf of a state employe, the department of industry, labor and job 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 employe 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 employe 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 employes.
102.42(9)(c)
(c) The specialist shall review and evaluate reported injuries for potential cases in which seriously injured employes may be in need of physical and medical rehabilitation and may confer with the injured employe, 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. ILHR Dept. 54 W (2d) 7, 194 NW (2d) 670.
102.42 Annotation
In appropriate cases, the ILHR Department is warranted in, at the least, postponing a determination of permanent disability for a reasonable period of time 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 Ins. Co. v. ILHR Dept. 54 W (2d) 272, 195 NW (2d) 656.
102.42 Annotation
An employe who wishes to consult a 2nd doctor on the panel after the first says no further treatment is needed may do so without notice or consent, and if the 2nd doctor prescribes an operation which increases disability, the employer is liable. Spencer v. ILHR Dept. 55 W (2d) 525, 200 NW (2d) 611.
102.42 Annotation
Unreasonable refusal of medical treatment not offered by employer is not a bar to compensation under (6). Klein Industrial Salvage v. DILHR, 80 W (2d) 457, 259 NW (2d) 124.
102.42 Annotation
See note to 102.61, citing Beloit Corp. v. State, 152 W (2d) 579, 449 NW (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 W (2d) 499, 493 NW (2d) 14 (1992).
102.42 Annotation
Sub. (2) (a) does not require employer consent to out-of-state health care expenses where the expenses result from referral by an in-state practitioner selected in accordance with the statute. UFE Inc. v. LIRC, 201 W (2d) 274, 548 NW (2d) 57 (1996).
102.42 Annotation
Continuing Payments for Medical Expenses in Worker's Compensation Proceedings. Carnell & Woog. Wis. Law. Nov. 1993.
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 employe works on Sunday, after the employe 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 employe 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 employe 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 employe bears to the injured employe'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, and shall include such period as the employe 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 employe 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 employe when the injury occurred may be considered in computing actual wage loss from the employer in whose employ the employe sustained injury.
102.43(6)(b)
(b) Wages received from other employment held by the employe when the injury occurred shall be considered in computing actual wage loss from the employer in whose employ the employe sustained the injury, if the employe's weekly temporary disability benefits are calculated under
s. 102.11 (1) (a).
102.43(6)(c)
(c) Wages received from the employer in whose employ the employe 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 employe 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 employe 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 employe 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 employe 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 employe was entitled to less than the maximum rate, the employe 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 employe'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 employe 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 employe's healing period has ended, no employe 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 employe 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.
