102.80
102.80
Uninsured employers fund. 102.80(1)
(1) There is established a separate, nonlapsible trust fund designated as the uninsured employers fund consisting of all the following:
102.80(1)(e)
(e) All moneys received by the department for the uninsured employers fund from any other source.
102.80(3)(a)(a) If the cash balance in the uninsured employers fund equals or exceeds $4,000,000, the secretary shall consult the council on worker's compensation within 45 days after that cash balance equals or exceeds $4,000,000. The secretary may file with the secretary of administration, within 15 days after consulting the council on worker's compensation, a certificate attesting that the cash balance in the uninsured employers fund equals or exceeds $4,000,000.
102.80(3)(ag)
(ag) The secretary shall monitor the cash balance in, and incurred losses to, the uninsured employers fund using generally accepted actuarial principles. If the secretary determines that the expected ultimate losses to the uninsured employers fund on known claims and on incurred, but not reported, claims exceed 85% of the cash balance in the uninsured employers fund, the secretary shall consult with the council on worker's compensation. If the secretary, after consulting with the council on worker's compensation, determines that there is a reasonable likelihood that the cash balance in the uninsured employers fund may become inadequate to fund all claims under
s. 102.81 (1), the secretary shall file with the secretary of administration a certificate attesting that the cash balance in the uninsured employer's fund is likely to become inadequate to fund all claims under
s. 102.81 (1) and specifying a date after which no new claims under
s. 102.81 (1) will be paid.
102.80(3)(am)
(am) If the secretary files the certificate under
par. (a), the department may expend the moneys in the uninsured employers fund, beginning on the first day of the first July after the secretary files that certificate, to make payments under
s. 102.81 (1) to employes of uninsured employers and to obtain reinsurance under
s. 102.81 (2).
102.80(3)(b)
(b) If the secretary does not file the certificate under
par. (a), the department may not expend the moneys in the uninsured employers fund.
102.80(3)(c)
(c) If, after filing the certificate under
par. (a), the secretary files the certificate under
par. (ag), the department may expend the moneys in the uninsured employers fund only to make payments under
s. 102.81 (1) to employes of uninsured employers on claims made before the date specified in that certificate and to obtain reinsurance under
s. 102.81 (2) for the payment of those claims.
102.80(4)(a)(a) If an uninsured employer who owes to the department any amount under
s. 102.82 or
102.85 (4) transfers his or her business assets or activities, the transferee is liable for the amounts owed by the uninsured employer under
s. 102.82 or
102.85 (4) if the department determines that all of the following conditions are satisfied:
102.80(4)(a)1.
1. At the time of the transfer, the uninsured employer and the transferee are owned or controlled in whole or in substantial part, either directly or indirectly, by the same interest or interests. Without limitation by reason of enumeration, it is presumed unless shown to the contrary that the "same interest or interests" includes the spouse, child or parent of the individual who owned or controlled the business, or any combination of more than one of them.
102.80(4)(a)2.
2. The transferee has continued or resumed the business of the uninsured employer, either in the same establishment or elsewhere; or the transferee has employed substantially the same employes as those the uninsured employer had employed in connection with the business assets or activities transferred.
102.80(4)(b)
(b) The department may collect from a transferee described in
par. (a) an amount owed under
s. 102.82 or
102.85 (4) using the procedures specified in
ss. 102.83,
102.835 and
102.87 and the preference specified in
s. 102.84 in the same manner as the department may collect from an uninsured employer.
102.81
102.81
Compensation for injured employe of uninsured employer. 102.81(1)(a)(a) If an employe of an uninsured employer, other than an employe who is eligible to receive alternative benefits under
s. 102.28 (3), suffers an injury for which the uninsured employer is liable under
s. 102.03, the department or the department's reinsurer shall pay to the injured employe or the employe's dependents an amount equal to the compensation owed them by the uninsured employer under this chapter except penalties and interest due under
ss. 102.16 (3),
102.18 (1) (b) and
(bp),
102.22 (1),
102.35 (3),
102.57 and
102.60.
102.81(1)(b)
(b) The department shall make the payments required under
par. (a) from the uninsured employers fund, except that if the department has obtained reinsurance under
sub. (2) and is unable to make those payments from the uninsured employers fund, the department's reinsurer shall make those payments according to the terms of the contract of reinsurance.
102.81(2)
(2) The department may retain an insurance carrier or insurance service organization to process, investigate and pay claims under this section and may obtain excess or stop-loss reinsurance with an insurance carrier authorized to do business in this state in an amount that the secretary determines is necessary for the sound operation of the uninsured employers fund. In cases involving disputed claims, the department may retain an attorney to represent the interests of the uninsured employers fund and to make appearances on behalf of the uninsured employers fund in proceedings under
ss. 102.16 to
102.29.
Section 20.918 and
subch. IV of ch. 16 do not apply to an attorney hired under this subsection. The charges for the services retained under this subsection shall be paid from the appropriation under
s. 20.445 (1) (hp). The cost of any reinsurance obtained under this subsection shall be paid from the appropriation under
s. 20.445 (1) (sm).
102.81(3)
(3) An injured employe of an uninsured employer or his or her dependents may attempt to recover from the uninsured employer, or a 3rd party under
s. 102.29, while receiving or attempting to receive payment under
sub. (1).
102.81(4)
(4) An injured employe, or the dependent of an injured employe, who received one or more payments under
sub. (1) shall do all of the following:
102.81(4)(a)
(a) If the employe or dependent begins an action to recover compensation from the employe's employer or a 3rd party liable under
s. 102.29, provide to the department a copy of all papers filed by any party in the action.
102.81(4)(b)
(b) If the employe or dependent receives compensation from the employe's employer or a 3rd party liable under
s. 102.29, pay to the department the lesser of the following:
102.81(4)(b)1.
1. The amount after attorney fees and costs that the employe or dependent received under
sub. (1).
102.81(4)(b)2.
2. The amount after attorney fees and costs that the employe or dependent received from the employer or 3rd party.
102.81(5)
(5) The department of justice may bring an action to collect the payment under
sub. (4).
102.81(6)(a)(a) Subject to
par. (b), an employe, a dependent of an employe, an uninsured employer, a 3rd party who is liable under
s. 102.29 or the department may enter into an agreement to settle liabilities under this chapter.
102.81(6)(b)
(b) A settlement under
par. (a) is void without the department's written approval.
102.81(7)
(7) This section first applies to injuries occurring on the first day of the first July beginning after the day that the secretary files a certificate under
s. 102.80 (3) (a), except that if the secretary files a certificate under
s. 102.80 (3) (ag) this section does not apply to claims filed on or after the date specified in that certificate.
102.81 History
History: 1989 a. 64;
1995 a. 117.
102.82
102.82
Uninsured employer payments. 102.82(1)
(1) An uninsured employer shall reimburse the department for any payment made under
s. 102.81 (1) to an employe of the uninsured employer or to an employe's dependents, less amounts repaid by the employe or dependents under
s. 102.81 (4) (b).
102.82(2)(a)(a) Except as provided in
pars. (ag),
(am) and
(ar), all uninsured employers shall pay to the department the greater of the following:
102.82(2)(a)1.
1. Twice the amount determined by the department to equal what the uninsured employer would have paid during periods of illegal nonpayment for worker's compensation insurance in the preceding 3-year period based on the employer's payroll in the preceding 3 years.
102.82(2)(ag)
(ag) An uninsured employer who is liable to the department under
par. (a) 2 shall pay to the department, in lieu of the payment required under
par. (a) 2., $100 per day for each day that the employer is uninsured if all of the following apply:
102.82(2)(ag)1.
1. The employer is uninsured for 7 consecutive days or less.
102.82(2)(ag)3.
3. No injury for which the employer is liable under
s. 102.03 has occurred during the period in which the employer is uninsured.
102.82(2)(am)
(am) The department may waive any payment owed under
par. (a) by an uninsured employer if the department determines that the uninsured employer is subject to this chapter only because the uninsured employer has elected to become subject to this chapter under
s. 102.05 (2) or
102.28 (2).
102.82(2)(ar)
(ar) The department may waive any payment owed under
par. (a) or
(ag) if the department determines that the sole reason for the uninsured employer's failure to comply with
s. 102.28 (2) is that the uninsured employer was a victim of fraud, misrepresentation or gross negligence by an insurance agent or insurance broker or by a person whom a reasonable person would believe is an insurance agent or insurance broker.
102.82(2)(b)
(b) The payment owed under
par. (a) or
(ag) is due within 30 days after the date on which the employer is notified. Interest shall accrue on amounts not paid when due at the rate of 1% per month.
102.82(2)(c)
(c) The department of justice or, if the department of justice consents, the department of industry, labor and job development may bring an action in circuit court to recover payments and interest owed to the department of industry, labor and job development under this section.
102.82(3)(a)(a) When an employe dies as a result of an injury for which an uninsured employer is liable under
s. 102.03, the uninsured employer shall pay $1,000 to the department.
102.82(3)(b)
(b) The payment under
par. (a) is in addition to any benefits or other compensation paid to an employe or survivors or the work injury supplemental benefit fund under
ss. 102.46 to
102.51.
102.83
102.83
Collection of uninsured employer payments. 102.83(1)(a)1.1. If an uninsured employer fails to pay to the department any amount owed to the department under
s. 102.82 and no proceeding for review is pending, the department or any authorized representative may issue a warrant directed to the clerk of circuit court for any county of the state.
102.83 Note
NOTE: Subd. 1. is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
102.83(1)(a)2.
2. The clerk of circuit court shall enter in the judgment and lien docket the name of the uninsured employer mentioned in the warrant and the amount of the payments, interest, costs and other fees for which the warrant is issued and the date when the warrant is entered.
102.83(1)(a)3.
3. A warrant entered under
subd. 2. shall be considered in all respects as a final judgment constituting a perfected lien on the uninsured employer's right, title and interest in all of the uninsured employer's real and personal property located in the county where the warrant is entered.
102.83(1)(a)4.
4. After the warrant is entered in the judgment and lien docket, the department or any authorized representative may file an execution with the clerk of circuit court for filing by the clerk of circuit court with the sheriff of any county where real or personal property of the uninsured employer is found, commanding the sheriff to levy upon and sell sufficient real and personal property of the uninsured employer to pay the amount stated in the warrant in the same manner as upon an execution against property issued upon the judgment of a court of record, and to return the warrant to the department and pay to it the money collected by virtue of the warrant within 60 days after receipt of the warrant.
102.83(1)(b)
(b) The clerk of circuit court shall accept and enter the warrant in the judgment and lien docket without prepayment of any fee, but the clerk of circuit court shall submit a statement of the proper fee semiannually to the department covering the periods from January 1 to June 30 and July 1 to December 31 unless a different billing period is agreed to between the clerk and the department. The fees shall then be paid by the department, but the fees provided by
s. 814.61 (5) for entering the warrants shall be added to the amount of the warrant and collected from the uninsured employer when satisfaction or release is presented for entry.
102.83(2)
(2) The department may issue a warrant of like terms, force and effect to any employe or other agent of the department, who may file a copy of the warrant with the clerk of circuit court of any county in the state, and thereupon the clerk of circuit court shall enter the warrant in the judgment and lien docket and the warrant shall become a lien in the same manner, and with the same force and effect, as provided in
sub. (1). In the execution of the warrant, the employe or other agent shall have all the powers conferred by law upon a sheriff, but may not collect from the uninsured employer any fee or charge for the execution of the warrant in excess of the actual expenses paid in the performance of his or her duty.
102.83(3)
(3) If a warrant is returned not satisfied in full, the department shall have the same remedies to enforce the amount due for payments, interest, costs and other fees as if the department had recovered judgment against the uninsured employer and an execution had been returned wholly or partially not satisfied.
102.83(4)
(4) When the payments, interest costs and other fees specified in a warrant have been paid to the department, the department shall issue a satisfaction of the warrant and file it with the clerk of circuit court. The clerk of circuit court shall immediately enter the satisfaction of the judgment in the judgment and lien docket. The department shall send a copy of the satisfaction to the uninsured employer.
102.83(5)
(5) The department, if it finds that the interests of the state will not be jeopardized, and upon such conditions as it may exact, may issue a release of any warrant with respect to any real or personal property upon which the warrant is a lien or cloud upon title. The clerk of circuit court shall enter the release upon presentation of the release to the clerk and payment of the fee for filing the release and the release shall be conclusive proof that the lien or cloud upon the title of the property covered by the release is extinguished.
102.83(6)
(6) At any time after the filing of a warrant, the department may commence and maintain a garnishee action as provided by
ch. 812 or may use the remedy of attachment as provided by
ch. 811 for actions to enforce a judgment. The place of trial of an action under
ch. 811 or
812 may be either in Dane county or the county where the debtor resides and may not be changed from the county in which the action is commenced, except upon consent of the parties.
102.83(7)
(7) If the department issues an erroneous warrant, the department shall issue a notice of withdrawal of the warrant to the clerk of circuit court for the county in which the warrant is filed. The clerk shall void the warrant and any liens attached by it.
102.83(8)
(8) Any officer or director of an uninsured employer that is a corporation may be found individually and jointly and severally liable for the payments, interest, costs and other fees specified in a warrant under this section if after proper proceedings for the collection of those amounts from the corporation, as provided in this section, the corporation is unable to pay those amounts to the department. The personal liability of the officers and directors of a corporation as provided in this subsection survives dissolution, reorganization, bankruptcy, receivership, assignment for the benefit of creditors, judicially confirmed extension or composition, or any analogous situation of the corporation and shall be set forth in a determination or decision issued under
s. 102.82.
102.83 History
History: 1993 a. 81;
1995 a. 117,
224; s. 13.93 (2) (c).
102.835
102.835
Levy for delinquent payments. 102.835(1)(d)
(d) "Levy" means all powers of distraint and seizure.
102.835(1)(e)
(e) "Payment" means a payment owed to the department under
s. 102.82 and includes interest on that payment.
102.835(1)(f)
(f) "Property" includes all tangible and intangible personal property and rights to that property, including compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus or otherwise, amounts paid periodically pursuant to a pension or retirement program, rents, proceeds of insurance and amounts paid pursuant to a contract.
102.835(2)
(2) Powers of levy and distraint. If any uninsured employer who is liable for any debt fails to pay that debt after the department has made demand for payment, the department may collect that debt and the expenses of the levy by levy upon any property belonging to the uninsured employer. If the value of any property that has been levied upon under this section is not sufficient to satisfy the claim of the department, the department may levy upon any additional property of the uninsured employer until the debt and expenses of the levy are fully paid.
102.835(3)
(3) Duties to surrender. Any person in possession of or obligated with respect to property or rights to property that is subject to levy and upon which a levy has been made shall, upon demand of the department, surrender the property or rights or discharge the obligation to the department, except that part of the property or rights which is, at the time of the demand, subject to any prior attachment or execution under any judicial process.
102.835(4)
(4) Failure to surrender; enforcement of levy. 102.835(4)(a)(a) Any uninsured employer who fails to surrender any property or rights to property that is subject to levy, upon demand by the department, is subject to proceedings to enforce the amount of the levy.
102.835(4)(b)
(b) Any 3rd party who fails to surrender any property or rights to property subject to levy, upon demand of the department, is subject to proceedings to enforce the levy. The 3rd party is not liable to the department under this paragraph for more than 25% of the debt. The department shall serve a final demand as provided under
sub. (13) on any 3rd party who fails to surrender property. Proceedings may not be initiated by the department until 5 days after service of the final demand. The department shall issue a determination under
s. 102.82 to the 3rd party for the amount of the liability.
102.835(4)(c)
(c) When a 3rd party surrenders the property or rights to the property on demand of the department or discharges the obligation to the department for which the levy is made, the 3rd party is discharged from any obligation or liability to the uninsured employer with respect to the property or rights to the property arising from the surrender or payment to the department.
102.835(5)(a)(a) If the department has levied upon property, any person, other than the uninsured employer who is liable to pay the debt out of which the levy arose, who claims an interest in or lien on that property and who claims that that property was wrongfully levied upon may bring a civil action against the state in the circuit court for Dane county. That action may be brought whether or not that property has been surrendered to the department. The court may grant only the relief under
par. (b). No other action to question the validity of or to restrain or enjoin a levy by the department may be maintained.
102.835(5)(b)
(b) In an action under
par. (a), if a levy would irreparably injure rights to property, the court may enjoin the enforcement of that levy. If the court determines that the property has been wrongfully levied upon, it may grant a judgment for the amount of money obtained by levy.
102.835(5)(c)
(c) For purposes of an adjudication under this subsection, the determination of the debt upon which the interest or lien of the department is based is conclusively presumed to be valid.
102.835(6)
(6) Determination of expenses. The department shall determine its costs and expenses to be paid in all cases of levy.
