102.17(7)(b)
(b) Except as provided in
par. (c), the department shall exclude from evidence testimony or certified reports from expert witnesses under
par. (a) offered by the party that raises the issue of loss of earning capacity if that party failed to notify the department and the other parties of interest, at least 60 days before the date of the hearing, of the party's intent to provide the testimony or reports and of the names of the expert witnesses involved. Except as provided in
par. (c), the department shall exclude from evidence testimony or certified reports from expert witnesses under
par. (a) offered by a party of interest in response to the party that raises the issue of loss of earning capacity if the responding party failed to notify the department and the other parties of interest, at least 45 days before the date of the hearing, of the party's intent to provide the testimony or reports and of the names of the expert witnesses involved.
102.17(7)(c)
(c) Notwithstanding the notice deadlines provided in
par. (b), the department may receive in evidence testimony or certified reports from expert witnesses under
par. (a) when the applicable notice deadline under
par. (b) is not met if good cause is shown for the delay in providing the notice required under
par. (b) and if no party is prejudiced by the delay.
102.17(8)
(8) Unless otherwise agreed to by all parties, an injured employe shall file with the department and serve on all parties at least 15 days before the date of the hearing an itemized statement of all medical expenses and incidental compensation under
s. 102.42 claimed by the injured employe. The itemized statement shall include, if applicable, information relating to any travel expenses incurred by the injured employe in obtaining treatment including the injured employe's destination, number of trips, round trip mileage and meal and lodging expenses. The department may not admit into evidence any information relating to medical expenses and incidental compensation under
s. 102.42 claimed by an injured employe if the injured employe failed to file with the department and serve on all parties at least 15 days before the date of the hearing an itemized statement of the medical expenses and incidental compensation under
s. 102.42 claimed by the injured employe, unless the department is satisfied that there is good cause for the failure to file and serve the itemized statement.
102.17 History
History: 1971 c. 148;
1971 c. 213 s.
5;
1973 c. 150,
282; Sup. Ct. Order, 67 W (2d) 585, 774 (1975);
1975 c. 147 ss.
20,
54;
1975 c. 199,
200;
1977 c. 29,
195,
273;
1979 c. 278;
1981 c. 92,
314;
1981 c. 317 s.
2202;
1981 c. 380;
1981 c. 391 s.
211;
1985 a. 83;
1989 a. 64,
139,
359;
1991 a. 85;
1993 a. 81,
492;
1995 a. 27,
117;
1997 a. 38,
191,
237.
102.17 Annotation
Plaintiff-employer was not deprived of any substantial due process rights by the department's refusal to invoke its rule requiring inspection of opposing parties' medical reports where plaintiff had ample notice of the nature of the employe's claim. Theodore Fleisner, Inc. v. ILHR Dept. 65 W (2d) 317, 222 NW (2d) 600.
102.17 Annotation
See note to 102.18, citing Kohler Co. v. DILHR, 81 W (2d) 11, 259 NW (2d) 695.
102.17 Annotation
Under facts of case, refusal to grant employer's request for adjournment was denial of due process. Bituminous Cas. Co. v. DILHR, 97 W (2d) 730, 295 NW (2d) 183 (Ct. App. 1980).
102.17 Annotation
See note to 102.66, citing State v. DILHR, 101 W (2d) 396, 304 NW (2d) 758 (1981).
102.17 Annotation
Sub. (1) (d) does not create a presumption that evidence presented by treating physicians is correct. The statute enforces the idea that LIRC determines the weight to be given medical witnesses. Conradt v. Mt. Carmel School, 197 W (2d) 60, 539 NW (2d) 713 (Ct. App. 1995).
102.17 Annotation
Prehearing discovery under Wisconsin's worker's compensation act. Towers. 68 MLR 597 (1985).
102.175
102.175
Apportionment of liability. 102.175(1)
(1) If it is established at the hearing that 2 or more accidental injuries, for each of which a party to the proceedings is liable under this chapter, have each contributed to a physical or mental condition for which benefits would be otherwise due, liability for such benefits shall be apportioned according to the proof of the relative contribution to disability resulting from the injury.
102.175(2)
(2) If after a hearing or a prehearing conference the department determines that an injured employe is entitled to compensation but that there remains in dispute only the issue of which of 2 or more parties is liable for that compensation, the department may order one or more parties to pay compensation in an amount, time and manner as determined by the department. If the department later determines that another party is liable for compensation, the department shall order that other party to reimburse any party that was ordered to pay compensation under this subsection.
102.175 History
History: 1979 c. 278;
1993 a. 81.
102.18
102.18
Findings, orders and awards. 102.18(1)(a)(a) All parties shall be afforded opportunity for full, fair, public hearing after reasonable notice, but disposition of application may be made by compromise, stipulation, agreement, or default without hearing.
102.18(1)(b)
(b) Within 90 days after the final hearing and close of the record, the department shall make and file its findings upon the ultimate facts involved in the controversy, and its order, which shall state its determination as to the rights of the parties. Pending the final determination of any controversy before it, the department may in its discretion after any hearing make interlocutory findings, orders and awards which may be enforced in the same manner as final awards. The department may include in its final award, as a penalty for noncompliance with any such interlocutory order or award, if it finds that noncompliance was not in good faith, not exceeding 25% of each amount which shall not have been paid as directed thereby. Where there is a finding that the employe is in fact suffering from an occupational disease caused by the employment of the employer against whom the application is filed, a final award dismissing such application upon the ground that the applicant has suffered no disability from said disease shall not bar any claim he or she may thereafter have for disability sustained after the date of the award.
102.18(1)(bg)1.1. If the department finds under
par. (b) that an insurer or self-insured employer is liable under this chapter for any health services provided to an injured employe by a health service provider, but that the reasonableness of the fee charged by the health service provider is in dispute, the department may include in its order under
par. (b) a determination as to the reasonableness of the fee or the department may notify, or direct the insurer or self-insured employer to notify, the health service provider under
s. 102.16 (2) (b) that the reasonableness of the fee is in dispute.
102.18(1)(bg)2.
2. If the department finds under
par. (b) that an employer or insurance carrier is liable under this chapter for any treatment provided to an injured employe by a health service provider, but that the necessity of the treatment is in dispute, the department may include in its order under
par. (b) a determination as to the necessity of the treatment or the department may notify, or direct the employer or insurance carrier to notify, the health service provider under
s. 102.16 (2m) (b) that the necessity of the treatment is in dispute.
102.18(1)(bp)
(bp) The department may include a penalty in an award to an employe if it determines that the employer's or insurance carrier's suspension of, termination of or failure to make payments or failure to report injury resulted from malice or bad faith. This penalty is the exclusive remedy against an employer or insurance carrier for malice or bad faith. The department may award an amount which it considers just, not to exceed the lesser of 200% of total compensation due or $15,000. The department may assess the penalty against the employer, the insurance carrier or both. Neither the employer nor the insurance carrier is liable to reimburse the other for the penalty amount. The department may, by rule, define actions which demonstrate malice or bad faith.
102.18(1)(bw)
(bw) If an insurer, a self-insured employer or, if applicable, the uninsured employers fund pays compensation to an employe in excess of its liability and another insurer is liable for all or part of the excess payment, the department may order the insurer or self-insured employer that is liable to reimburse the insurer or self-insured employer that made the excess payment or, if applicable, the uninsured employers fund.
102.18(1)(c)
(c) If 2 or more examiners have conducted a formal hearing on a claim and are unable to agree on the order or award to be issued, the decision shall be the decision of the majority. If the examiners are equally divided on the decision, the department may appoint an additional examiner who shall review the record and consult with the other examiners concerning their personal impressions of the credibility of the evidence. Findings of fact and an order or award may then be issued by a majority of the examiners.
102.18(1)(d)
(d) Any award which falls within a range of 5% of the highest or lowest estimate of permanent partial disability made by a practitioner which is in evidence is presumed to be a reasonable award, provided it is not higher than the highest or lower than the lowest estimate in evidence.
102.18(2)
(2) The department shall have and maintain on its staff such examiners as are necessary to hear and decide disputed claims and to assist in the effective administration of this chapter. These examiners shall be attorneys and may be designated as administrative law judges. These examiners may make findings and orders, and approve, review, set aside, modify or confirm stipulations of settlement or compromises of claims for compensation.
102.18(3)
(3) A party in interest may petition the commission for review of an examiner's decision awarding or denying compensation if the department or commission receives the petition within 21 days after the department mailed a copy of the examiner's findings and order to the party's last-known address. The commission shall dismiss a petition which is not timely filed unless the petition shows probable good cause that the reason for failure to timely file was beyond the petitioner's control. If no petition is filed within 21 days from the date that a copy of the findings or order of the examiner is mailed to the last-known address of the parties in interest, the findings or order shall be considered final unless set aside, reversed or modified by the examiner within that time. If the findings or order are set aside by the examiner the status shall be the same as prior to the findings or order set aside. If the findings or order are reversed or modified by the examiner the time for filing a petition commences with the date that notice of reversal or modification is mailed to the last-known address of the parties in interest. The commission shall either affirm, reverse, set aside or modify the findings or order in whole or in part, or direct the taking of additional evidence. This action shall be based on a review of the evidence submitted.
102.18(4)(b)
(b) Within 28 days after a decision of the commission is mailed to the last-known address of each party in interest, the commission may, on its own motion, set aside the decision for further consideration.
102.18(4)(c)
(c) On its own motion, for reasons it deems sufficient, the commission may set aside any final order or award of the commission or examiner within one year after the date of the order or award, upon grounds of mistake or newly discovered evidence, and, after further consideration, do any of the following:
102.18(4)(c)1.
1. Affirm, reverse or modify, in whole or in part, the order or award.
102.18(4)(c)3.
3. Remand the case to the department for further proceedings.
102.18(4)(d)
(d) While a petition for review by the commission is pending or after entry of an order or award by the commission but before commencement of an action for judicial review or expiration of the period in which to commence an action for judicial review, the commission shall remand any compromise presented to it to the department for consideration and approval or rejection pursuant to
s. 102.16 (1). Presentation of a compromise does not affect the period in which to commence an action for judicial review.
102.18(5)
(5) If it shall appear to the department that a mistake may have been made as to cause of injury in the findings, order or award upon an alleged injury based on accident, when in fact the employe was suffering from an occupational disease, the department may upon its own motion, with or without hearing, within 3 years from the date of such findings, order or award, set aside such findings, order or award, or the department may take such action upon application made within such 3 years. Thereafter, and after opportunity for hearing, the department may, if in fact the employe is suffering from disease arising out of the employment, make new findings and award, or it may reinstate the previous findings, order or award.
102.18(6)
(6) In case of disease arising out of the employment, the department may from time to time review its findings, order or award, and make new findings, order or award, based on the facts regarding disability or otherwise as they may then appear. This subsection shall not affect the application of the limitation in
s. 102.17 (4).
102.18 Annotation
Committee Note, 1971: The intent is to authorize the commission within its absolute discretion to reopen final orders on the basis of mistake or newly discovered evidence within a period of one year from the date of such order where this is found to be just. It is intended that the commission have authority to grant or deny compensation, including the right to increase or to decrease benefits previously awarded. [Bill 371-A]
102.18 Annotation
Interlocutory orders of the ILHR department in workmen's compensation cases are not res judicata. Worsch v. ILHR Dept. 46 W (2d) 504, 175 NW (2d) 201.
102.18 Annotation
Where in a workmen's compensation case the department reverses an examiner's findings and makes independent findings, the latter should be accompanied by a memorandum opinion indicating not only prior consultation with the examiner and review of the record, but a statement or statements of reasons for reaching a different result or conclusion—this particularly where credibility of witnesses is involved. Transamerica Ins. Co. v. ILHR Dept. 54 W (2d) 272, 195 NW (2d) 656.
102.18 Annotation
The department could properly find no permanent disability in the case of a successful fusion of vertebrae and still retain jurisdiction to determine future disability where doctors testified that there might be future effects. Vernon County v. ILHR Dept. 60 W (2d) 736, 211 NW (2d) 441.
102.18 Annotation
Where the department in a workmen's compensation case involving conflicting testimony reverses an examiner's findings, fundamental fairness requires a separate statement by it explaining the reasons it reached its decision, as well as specifically setting forth in the record its consultation with the examiner with respect to impressions or conclusions in regard to the credibility of witnesses. Simonton v. ILHR Dept. 62 W (2d) 112, 214 NW (2d) 302.
102.18 Annotation
Where department increased examiner's award, resort to AMA standards to interpret rule was proper and its validity properly could be predicated on the department's uniform administrative interpretation of its rule to mean that a contact lens does not afford a "useful" correction. Employers Mut. Liability Ins. Co. v. ILHR Dept. 62 W (2d) 327, 214 NW (2d) 587.
102.18 Annotation
Sub. (5) is inapplicable where at the original hearing the examiner considered the possibility of both accidental injury and injury caused by occupational disease, and denied the applicant benefits. Murphy v. ILHR Dept. 63 W (2d) 248, 217 NW (2d) 370.
102.18 Annotation
It is not disputed that the shoveling, though unusual, was part of defendant's employment activities. The doctor's testimony is thus sufficient evidence to support a conclusion that the heart attack was caused by employment-related exertion. Theodore Fleisner, Inc. v. ILHR Dept. 65 W (2d) 317, 222 NW (2d) 600.
102.18 Annotation
Authority granted under (3), to modify the findings of a hearing examiner in a workmen's compensation proceeding does not extend to the making of findings and order on an alternative basis of liability neither tried by the parties nor ruled on by the examiner, and where other basis of liability is applicable, it is required to set aside the examiner's findings and order and direct the taking of additional testimony, with the examiner to make new findings as to the substituted basis. Jos. Schlitz Brewing Co. v. ILHR Dept. 67 W (2d) 185, 226 NW (2d) 492.
102.18 Annotation
Where dismissal of application was neither based upon stipulation or compromise nor after a hearing, dismissal is void and limitation under 102.17 does not bar claim brought 12 years later. Kohler Co. v. DILHR, 81 W (2d) 11, 259 NW (2d) 695.
102.18 Annotation
While department is not required to make specific findings as to defense to worker's claim, it is better practice to either make such findings or state why none were made. Universal Foundry Co. v. DILHR, 82 W (2d) 479, 263 NW (2d) 172.
102.18 Annotation
Commission guidelines, formulated as internal standards of credibility in worker's compensation cases, are irrelevant to court's review of findings of commission. E. F. Brewer Co. v. DILHR, 82 W (2d) 634, 264 NW (2d) 222.
102.18 Annotation
General finding by DILHR implies all facts necessary to support it. Valadzic v. Briggs & Stratton Corp. 92 W (2d) 583, 286 NW (2d) 540 (1979).
102.18 Annotation
The commission may not reject a medical opinion absent something in the record to support the rejection; countervailing expert testimony is not required in all cases. Leist v. LIRC, 183 W (2d) 450, 515 NW (2d) 268 (Ct. App. 1994).
102.18 Annotation
Sub. (1) (bp) is constitutional. Messner v. Briggs & Stratton Corp. 120 W (2d) 127, 353 NW (2d) 363 (Ct. App. 1984).
102.18 Annotation
Employer was penalized for denying claim which wasn't "fairly debatable". Kimberly-Clark Corp. v. LIRC, 138 W (2d) 58, 405 NW (2d) 684 (Ct. App. 1987).
102.18 Annotation
Sub. (4) (c) grants review commission exclusive authority to set aside findings due to newly discovered evidence; trial court does not possess such authority. Hopp v. LIRC, 146 W (2d) 172, 430 NW (2d) 359 (Ct. App. 1988).
102.18 Annotation
To show bad faith under (1) (bp) claimant must show that employer acted without reasonable basis for delay and with knowledge of or reckless disregard of lack of reasonable basis for delay. North American Mechanical v. LIRC, 157 W (2d) 801, 460 NW (2d) 835 (Ct. App. 1990).
102.18 Annotation
After commission makes final order and review period has passed, commission's decision is final for all purposes. Kwaterski v. LIRC, 158 W (2d) 112, 462 NW (2d) 534 (Ct. App. 1990).
102.18 Annotation
Sub. (3) does not authorize LIRC to take administrative notice of any fact; review is limited to the record before the hearing examiner. Amsoil, Inc. v. LIRC, 173 W (2d) 154, 496 NW (2d) 150 (Ct. App. 1992).
102.18 Annotation
The commission may not reject a medical opinion absent something in the record to support the rejection; countervailing expert testimony is not required in all cases. Leist v. LIRC, 183 W (2d) 450, 515 NW (2d) 268 (Ct. App. 1994).
102.18 Annotation
Issuance of a default order under sub. (1) (a) is discretionary. Rules of civil procedure do not apply to administrative proceedings. Nothing in the law suggests a default order must be issued in the absence of excusable neglect. Verhaagh v. LIRC, 204 W (2d) 154, 554 NW (2d) 678 (Ct. App. 1996).
102.18 Annotation
The commission may not rule on and consider issues on appeal that were not litigated and may not consider evidence not considered by the administrative law judge unless the parties are allowed to offer rebuttal evidence. Wright v. LIRC, 210 W (2d) 290, 565 NW (2d) 221 (Ct. App. 1997).
102.19
102.19
Alien dependents; payments through consular officers. In case a deceased employe, for whose injury or death compensation is payable, leaves surviving alien dependents residing outside of the United States, the duly accredited consular officer of the country of which such dependents are citizens or such officer's designated representative residing within the state shall, except as otherwise determined by the department, be the sole representative of the deceased employe and dependents in all matters pertaining to their claims for compensation. The receipt by such officer or agent of compensation funds and the distribution thereof shall be made only upon order of the department, and payment to such officer or agent pursuant to any such order shall be a full discharge of the benefits or compensation. Such consular officer or such officer's representative shall furnish, if required by the department, a bond to be approved by it, conditioned upon the proper application of all moneys received by such person. Before such bond is discharged, such consular officer or representative shall file with the department a verified account of the items of his or her receipts and disbursements of such compensation. Such consular officer or representative shall make interim reports to the department as it may require.
102.19 History
History: 1977 c. 29.
102.195
102.195
Employes confined in institutions; payment of benefits. In case an employe is adjudged insane or incompetent, or convicted of a felony, and is confined in a public institution and has wholly dependent upon the employe for support a person, whose dependency is determined as if the employe were deceased, compensation payable during the period of the employe's confinement may be paid to the employe and the employe's dependents, in such manner, for such time and in such amount as the department by order provides.
102.195 History
History: 1993 a. 492.
102.20
102.20
Judgment on award. If either party presents a certified copy of the award to the circuit court for any county, the court shall, without notice, render judgment in accordance therewith. A judgment rendered under this section shall have the same effect as though rendered in an action tried and determined by the court, and shall, with like effect, be entered in the judgment and lien docket.
102.20 History
History: 1995 a. 224.
102.20 Annotation
"Award" under this section means award which has become final under 102.18 (3). Warren v. Link Farms, Inc. 123 W (2d) 485, 368 NW (2d) 688 (Ct. App. 1985).
102.21
102.21
Payment of awards by municipalities. Whenever an award is made by the department under this chapter or s.
66.191, 1981 stats., against any municipality, the person in whose favor it is made shall file a certified copy thereof with the municipal clerk. Within 20 days thereafter, unless an appeal is taken, such clerk shall draw an order on the municipal treasurer for the payment of the award. If upon appeal such award is affirmed in whole or in part the order for payment shall be drawn within 10 days after a certified copy of such judgment is filed with the proper clerk. If more than one payment is provided for in the award or judgment, orders shall be drawn as the payments become due. No statute relating to the filing of claims against, and the auditing, allowing and payment of claims by municipalities shall apply to the payment of an award or judgment under this section.
102.21 History
History: 1983 a. 191 s.
6.
102.22
102.22
Penalty for delayed payments; interest. 102.22(1)
(1) If the employer or his or her insurer inexcusably delays in making the first payment that is due an injured employe for more than 30 days after the day on which the employe leaves work as a result of an injury and if the amount due is $500 or more, the payments as to which the delay is found shall be increased by 10%. If the employer or his or her insurer inexcusably delays in making the first payment that is due an injured employe for more than 14 days after the day on which the employe leaves work as a result of an injury, the payments as to which the delay is found may be increased by 10%. If the employer or his or her insurer inexcusably delays for any length of time in making any other payment that is due an injured employe, the payments as to which the delay is found may be increased by 10%. Where the delay is chargeable to the employer and not to the insurer
s. 102.62 shall apply and the relative liability of the parties shall be fixed and discharged as therein provided. The department may also order the employer or insurance carrier to reimburse the employe for any finance charges, collection charges or interest which the employe paid as a result of the inexcusable delay by the employer or insurance carrier.
102.22(2)
(2) If the sum ordered by the department to be paid is not paid when due, that sum shall bear interest at the rate of 10% per year. The state is liable for such interest on awards issued against it under this chapter. The department has jurisdiction to issue award for payment of such interest at any time within one year of the date of its order, or upon appeal after final court determination. Such interest becomes due from the date the examiner's order becomes final or from the date of a decision by the labor and industry review commission, whichever is later.
102.22(3)
(3) If upon petition for review the commission affirms an examiner's order, interest at the rate of 7% per year on the amount ordered by the examiner shall be due for the period beginning on the 21st day after the date of the examiner's order and ending on the date paid under the commission's decision. If upon petition for judicial review under
s. 102.23 the court affirms the commission's decision, interest at the rate of 7% per year on the amount ordered by the examiner shall be due up to the date of the commission's decision, and thereafter interest shall be computed under
sub. (2).
102.22 Annotation
The department can assess the penalty for inexcusable delay in making payments prior to the entry of an order. The question of inexcusable delay is one of law and the courts are not bound by the department's finding as to it. Milwaukee County v. ILHR Dept. 48 W (2d) 392, 180 NW (2d) 513.
102.22 Annotation
Penalty under (1) does not bar action for bad faith failure to pay claim. Coleman v. American Universal Ins. Co. 86 W (2d) 615, 273 NW (2d) 220 (1979).
102.23
102.23
Judicial review. 102.23(1)(a)(a) The findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive. The order or award granting or denying compensation, either interlocutory or final, whether judgment has been rendered on it or not, is subject to review only as provided in this section and not under
ch. 227 or
s. 801.02. Within 30 days after the date of an order or award made by the commission either originally or after the filing of a petition for review with the department under
s. 102.18 any party aggrieved thereby may by serving a complaint as provided in
par. (b) and filing the summons and complaint with the clerk of the circuit court commence, in circuit court, an action against the commission for the review of the order or award, in which action the adverse party shall also be made a defendant. If the circuit court is satisfied that a party in interest has been prejudiced because of an exceptional delay in the receipt of a copy of any finding or order, it may extend the time in which an action may be commenced by an additional 30 days. The proceedings shall be in the circuit court of the county where the plaintiff resides, except that if the plaintiff is a state agency, the proceedings shall be in the circuit court of the county where the defendant resides. The proceedings may be brought in any circuit court if all parties stipulate and that court agrees.
102.23(1)(b)
(b) In such an action a complaint shall be served with an authenticated copy of the summons. The complaint need not be verified, but shall state the grounds upon which a review is sought. Service upon a commissioner or agent authorized by the commission to accept service constitutes complete service on all parties, but there shall be left with the person so served as many copies of the summons and complaint as there are defendants, and the commission shall mail one copy to each other defendant.
102.23(1)(c)
(c) The commission shall serve its answer within 45 days after the service of the complaint, and, within the like time, the adverse party may serve an answer to the complaint, which answer may, by way of counterclaim or cross complaint, ask for the review of the order or award referred to in the complaint, with the same effect as if the party had commenced a separate action for the review thereof.
102.23(1)(d)
(d) The commission shall make return to the court of all documents and papers on file in the matter, and of all testimony which has been taken, and of the commission's order, findings and award. Such return of the commission when filed in the office of the clerk of the circuit court shall, with the papers mentioned in
s. 809.15 constitute a judgment roll in the action; and it shall not be necessary to have a transcript approved. The action may thereupon be brought on for hearing before the court upon the record by either party on 10 days' notice to the other; subject, however, to the provisions of law for a change of the place of trial or the calling in of another judge.
102.23(1)(e)
(e) Upon such hearing, the court may confirm or set aside such order or award; and any judgment which may theretofore have been rendered thereon; but the same shall be set aside only upon the following grounds:
102.23(1)(e)1.
1. That the commission acted without or in excess of its powers.
102.23(1)(e)3.
3. That the findings of fact by the commission do not support the order or award.
102.23(2)
(2) Upon the trial of any such action the court shall disregard any irregularity or error of the commission or the department unless it is made to affirmatively appear that the plaintiff was damaged thereby.
102.23(3)
(3) The record in any case shall be transmitted to the department within 5 days after expiration of the time for appeal from the order or judgment of the court, unless appeal shall be taken from such order or judgment.
