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, dentist 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 licensed to practice and practicing in this state on referral from another practitioner is deemed to be treatment by one practitioner. Except by mutual agreement, an employer or worker's compensation insurer is not liable for treatment provided by a practitioner not licensed to practice and practicing in this state on referral from another practitioner.
Effective date note
NOTE: Par. (a) is repealed and recreated eff. 1-1-00 by
1997 Wis Act 38 to read:
Effective date text
(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, dentist 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, dental, 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 by an unreasonable refusal or neglect to submit to or follow any competent and reasonable medical, surgical or dental treatment 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 to submit to or follow hospital or sanatorium treatment when found by the department to be necessary in the case of tuberculosis 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 workforce 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
The continuing obligation to compensate an employe for work related medical expenses under s. 102.42 does not allow agency review of compromise agreements after the one-year statute of limitations in s. 102.16 (1) has run if the employe incurs medical expenses after that time. Schenkoski v. LIRC, 203 W (2d) 109, 552 NW (2d) 120 (Ct. App. 1996)
102.42 Annotation
Under sub. (2) an employe can seek reimbursement for expenses related to 2 practitioners regardless of whether they are the first 2 practitioners whom the employe has seen. Hermax Carpet Marts v. LIRC, 220 W (2d) 611, 583 NW (2d) 662 (Ct. App. 1998).
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.
102.43 Annotation
Committee Note, 1971: Employes who have two jobs who have been injured at one of them have in some cases been made totally disabled for work at either job. Sick leave benefits from the other employer has suspended eligibility for compensation or has reduced compensation even though the employe suffered a wage loss. This is considered to be inequitable. Sick leave benefits from the employer where injury occurred are to be considered, however, in determining eligibility for compensation from such employer. [Bill 371-A]
102.43 Annotation
Retroactive application of 102.43 (7), 1979 stats., doesn't violate contract clause or due process clause of constitution. Chappy v. LIRC, 136 W (2d) 172, 401 NW (2d) 568 (1987).
102.43 Annotation
See note to 102.61, citing Beloit Corp. v. State, 152 W (2d) 579, 449 NW (2d) 299 (Ct. App. 1989).
102.44
102.44
Maximum limitations. Section 102.43 shall be subject to the following limitations:
102.44(1)
(1) Notwithstanding any other provision of this chapter, every employe who is receiving compensation under this chapter for permanent total disability or continuous temporary total disability more than 24 months after the date of injury resulting from an injury which occurred prior to January 1, 1976, shall receive supplemental benefits which shall be payable in the first instance by the employer or the employer's insurance carrier, or in the case of benefits payable to an employe under
s. 102.66, shall be paid by the department out of the fund created under
s. 102.65. These supplemental benefits shall be paid only for weeks of disability occurring after January 1, 1978, and shall continue during the period of such total disability subsequent to that date.
102.44(1)(a)
(a) If such employe is receiving the maximum weekly benefits in effect at the time of the injury, the supplemental benefit shall be an amount which, when added to the regular benefit established for the case, shall equal $150.
102.44(1)(b)
(b) If such employe is receiving a weekly benefit which is less than the maximum benefit which was in effect on the date of the injury, the supplemental benefit shall be an amount sufficient to bring the total weekly benefits to the same proportion of $150 as the employe's weekly benefit bears to the maximum in effect on the date of injury.
102.44(1)(c)
(c) The employer or insurance carrier paying the supplemental benefits required under this subsection shall be entitled to reimbursement for each such case from the fund established by
s. 102.65, commencing one year from the date of the first such payment and annually thereafter while such payments continue. Claims for such reimbursement shall be approved by the department.
102.44(2)
(2) In case of permanent total disability aggregate indemnity shall be weekly indemnity for the period that the employe may live. Total impairment for industrial use of both eyes, or the loss of both arms at or near the shoulder, or of both legs at or near the hip, or of one arm at the shoulder and one leg at the hip, constitutes permanent total disability. This enumeration is not exclusive, but in other cases the department shall find the facts.
102.44(3)
(3) For permanent partial disability not covered by
ss. 102.52 to
102.56, the aggregate number of weeks of indemnity shall bear such relation to 1,000 weeks as the nature of the injury bears to one causing permanent total disability and shall be payable at the rate of two-thirds of the average weekly earnings of the employe, the earnings to be computed as provided in
s. 102.11. The weekly indemnity shall be in addition to compensation for the healing period and shall be for the period that the employe may live, not to exceed 1,000 weeks.
102.44(4)
(4) Where the permanent disability is covered by
ss. 102.52,
102.53 and
102.55, such sections shall govern; provided, that in no case shall the percentage of permanent total disability be taken as more than 100 per cent.
102.44(5)
(5) In cases where it is determined that periodic benefits granted by the federal social security act are paid to the employe because of disability, the benefits payable under this chapter shall be reduced as follows:
102.44(5)(a)
(a) For each dollar that the total monthly benefits payable under this chapter, excluding attorney fees and costs, plus the monthly benefits payable under the social security act for disability exceed 80% of the employe's average current earnings as determined by the social security administration, the benefits payable under this chapter shall be reduced by the same amount so that the total benefits payable shall not exceed 80% of the employe's average current earnings. However, no total benefit payable under this chapter and under the federal social security act may be reduced to an amount less than the benefit payable under this chapter.
102.44(5)(b)
(b) No reduction under this section shall be made because of an increase granted by the social security administration as a cost of living adjustment.
102.44(5)(c)
(c) Failure of the employe, except for excusable neglect, to report social security disability payments within 30 days after written request shall allow the employer or insurance carrier to reduce weekly compensation benefits payable under this chapter by 75%. Compensation benefits otherwise payable shall be reimbursed to the employe after reporting.
102.44(5)(d)
(d) The employer or insurance carrier making such reduction shall report to the department the reduction and as requested by the department, furnish to the department satisfactory proof of the basis for the reduction.
102.44(5)(e)
(e) The reduction prescribed by this section shall be allowed only as to payments made on or after July 1, 1980, and shall be computed on the basis of payments made for temporary total, temporary partial, permanent total and permanent partial disability.
102.44(5)(f)
(f) No reduction shall take into account payments made under the social security act to dependents of an employe.
102.44(6)(a)(a) Where an injured employe claiming compensation for disability under
sub. (2) or
(3) has returned to work for the employer for whom he or she worked at the time of the injury, the permanent disability award shall be based upon the physical limitations resulting from the injury without regard to loss of earning capacity unless the actual wage loss in comparison with earnings at the time of injury equals or exceeds 15%.
102.44(6)(b)
(b) If, during the period set forth in
s. 102.17 (4) the employment relationship is terminated by the employer at the time of the injury, or by the employe because his or her physical or mental limitations prevent his or her continuing in such employment, or if during such period a wage loss of 15% or more occurs the department may reopen any award and make a redetermination taking into account loss of earning capacity.
102.44(6)(c)
(c) The determination of wage loss shall not take into account any period during which benefits are payable for temporary disability.
