102.62
102.62
Primary and secondary liability; unchangeable. In case of liability for the increased compensation or increased death benefits provided for by
s. 102.57, or included in
s. 102.60, the liability of the employer shall be primary and the liability of the insurance carrier shall be secondary. In case proceedings are had before the department for the recovery of such increased compensation or increased death benefits the department shall set forth in its award the amount and order of liability as herein provided. Execution shall not be issued against the insurance carrier to satisfy any judgment covering such increased compensation or increased death benefits until execution has first been issued against the employer and has been returned unsatisfied as to any part thereof. Any provision in any insurance policy undertaking to guarantee primary liability or to avoid secondary liability for such increased compensation or increased death benefits shall be void. In case the employer shall have been adjudged bankrupt, or have made an assignment for the benefit of creditors, or if the employer, other than an individual, have gone out of business or have been dissolved, or if a corporation, its charter have been forfeited or revoked, the insurer shall be liable for the payment of increased compensation and death benefits without judgment or execution against the employer, but without altering the primary liability of the employer.
102.63
102.63
Refunds by state. Whenever the department shall certify to the state treasurer that excess payment has been made under
s. 102.59 or under
s. 102.49 (5) either because of mistake or otherwise, the state treasurer shall within 5 days after receipt of such certificate draw an order against the fund in the state treasury into which such excess was paid, reimbursing such payor of such excess payment, together with interest actually earned thereon if the excess payment has been on deposit for at least 6 months.
102.63 History
History: 1981 c. 92.
102.64
102.64
Attorney general shall represent state and commission. 102.64(1)(1) Upon request of the department of administration, a representative of the department of justice shall represent the state in cases involving payment into or out of the state treasury under
s. 20.865 (1) (fm),
(kr) or
(ur) or
102.29. The department of justice, after giving notice to the department of administration, may compromise the amount of such payments but such compromises shall be subject to review by the department of workforce development. If the spouse of the deceased employe compromises his or her claim for a primary death benefit, the claim of the children of such employe under
s. 102.49 shall be compromised on the same proportional basis, subject to approval by the department. If the persons entitled to compensation on the basis of total dependency under
s. 102.51 (1) compromise their claim, payments under
s. 102.49 (5) (a) shall be compromised on the same proportional basis.
102.64(2)
(2) Upon request of the department of administration, the attorney general shall appear on behalf of the state in proceedings upon claims for compensation against the state. The department of justice shall represent the interests of the state in proceedings under
s. 102.49,
102.59 or
102.66. The department of justice may compromise claims in such proceedings, but the compromises are subject to review by the department of workforce development. Costs incurred by the department of justice in prosecuting or defending any claim for payment into or out of the work injury supplemental benefit fund under
s. 102.65, including expert witness and witness fees but not including attorney fees or attorney travel expenses for services performed under this subsection, shall be paid from the work injury supplemental benefit fund.
102.64(3)
(3) In any action to review an order or award of the commission, and upon any appeal therein to the court of appeals, the attorney general shall appear on behalf of the commission, whether any other party defendant shall be represented or not, except that in actions brought by the state the governor shall appoint an attorney to appear on behalf of the commission.
102.64 Annotation
Alleged invalidity of (3) cannot be grounded on claimant's contention that this results in providing public counsel for a private party litigant, because nowhere does the statute make the attorney general the claimant's attorney, but expressly states he shall appear on behalf of the department. Hunter v. ILHR Dept. 64 W (2d) 97, 218 NW (2d) 314.
102.65
102.65
Work injury supplemental benefit fund. 102.65(1)
(1) The moneys payable to the state treasury under
ss. 102.47,
102.49 and
102.59, together with all accrued interest, shall constitute a fund to be known as the "Work Injury Supplemental Benefit Fund".
102.65(2)
(2) For proper administration of the moneys available in the fund the department shall by order, set aside in the state treasury suitable reserves to carry to maturity the liability for benefits under
ss. 102.44,
102.49,
102.59 and
102.66. Such moneys shall be invested by the investment board in accordance with
s. 25.14 (5).
102.65(3)
(3) If the balance in the fund on any June 30 exceeds 3 times the amount paid out of such fund during the fiscal year ending on such date, the department shall, by order, direct an appropriate proportional reduction of the payments into such fund under
ss. 102.47,
102.49 and
102.59 so that the balance in the fund will remain at 3 times the payments made in the preceding fiscal year.
102.66
102.66
Payment of certain barred claims. 102.66(1)
(1) In the event that there is an otherwise meritorious claim for occupational disease barred solely by the statute of limitations under
s. 102.17 (4), the department may in lieu of worker's compensation benefits direct payment from the work injury supplemental benefit fund under
s. 102.65 such compensation and such medical expenses as would otherwise be due, based on the date of injury to or on behalf of the injured employe. The benefits shall be supplemental to the extent of compensation liability to any disability or medical benefits payable from any group insurance policy where the premium is paid in whole or in part by any employer, or under any federal insurance or benefit program providing disability or medical benefits. Death benefits payable under any such group policy do not limit the benefits payable under this section.
102.66(2)
(2) In the case of occupational disease, appropriate benefits may be awarded from the work injury supplemental benefit fund where the status or existence of the employer or its insurance carrier cannot be determined or where there is otherwise no adequate remedy, subject to the limitations contained in
sub. (1).
102.66 History
History: 1975 c. 147;
1979 c. 278.
102.66 Annotation
Commission was authorized by s. 102.66 (1), 1975 stats., to award benefits for claim barred by statute of limitations in effect at time claim arose. State v. DILHR, 101 W (2d) 396, 304 NW (2d) 758 (1981).
102.66 Annotation
Where disabled worker could have claimed permanent total disability benefits under this section but failed to do so before dying of causes unrelated to compensable injury, surviving dependent may not claim the disability benefits. State v. LIRC, 136 W (2d) 281, 401 NW (2d) 578 (1987).
102.75
102.75
Administrative expenses. 102.75(1)
(1) The department shall assess upon and collect from each licensed worker's compensation insurance carrier and from each employer exempted under
s. 102.28 (2) by special order or by rule, the proportion of total costs and expenses incurred by the council on worker's compensation for travel and research and by the department and the commission in the administration of this chapter for the current fiscal year plus any deficiencies in collections and anticipated costs from the previous fiscal year, that the total indemnity paid or payable under this chapter by each such carrier and exempt employer in worker's compensation cases initially closed during the preceding calendar year, other than for increased, double or treble compensation bore to the total indemnity paid in cases closed the previous calendar year under this chapter by all carriers and exempt employers other than for increased, double or treble compensation. The council on worker's compensation and the commission shall annually certify any costs and expenses for worker's compensation activities to the department at such time as the secretary requires.
102.75(2)
(2) The department shall require that payments for costs and expenses for each fiscal year shall be made on such dates as the department prescribes by each licensed worker's compensation insurance carrier and employer exempted under
s. 102.28 (2). Each such payment shall be a sum equal to a proportionate share of the annual costs and expenses assessed upon each carrier and employer as estimated by the department.
102.75(4)
(4) From the appropriation under
s. 20.445 (1) (ha), the department shall allocate the amounts that it collects in application fees from employers applying for exemption under
s. 102.28 (2) and the annual amount that it collects from employers that have been exempted under
s. 102.28 (2) to fund the activities of the department under
s. 102.28 (2) (b) and
(c).
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). The reimbursement owed under this subsection is due within 30 days after the date on which the department notifies the uninsured employer that the reimbursement is owed. Interest shall accrue on amounts not paid when due at the rate of 1% per month.
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 workforce development may bring an action in circuit court to recover payments and interest owed to the department of workforce 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(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.
