102.14
102.14
Jurisdiction of department; advisory committee. 102.14(1)(1) This chapter shall be administered by the department.
102.14(2)
(2) The council on worker's compensation shall advise the department in carrying out the purposes of this chapter. Such council shall submit its recommendations with respect to amendments to this chapter to each regular session of the legislature and shall report its views upon any pending bill relating to this chapter to the proper legislative committee. At the request of the chairpersons of the senate and assembly committees on labor, the department shall schedule a meeting of the council with the members of the senate and assembly committees on labor to review and discuss matters of legislative concern arising under this chapter.
102.14 History
History: 1975 c. 147 s.
54;
1979 c. 278.
102.15
102.15
Rules of procedure; transcripts. 102.15(1)
(1) Subject to this chapter, the department may adopt its own rules of procedure and may change the same from time to time.
102.15(2)
(2) The department may provide by rule the conditions under which transcripts of testimony and proceedings shall be furnished.
102.15(3)
(3) All testimony at any hearing held under this chapter shall be taken down by a stenographic reporter, except that in case of an emergency, as determined by the examiner conducting the hearing, testimony may be recorded by a recording machine.
102.15 History
History: 1977 c. 418;
1989 a. 64.
102.16
102.16
Submission of disputes, contributions by employees. 102.16(1)(1) Any controversy concerning compensation or a violation of
sub. (3), including controversies in which the state may be a party, shall be submitted to the department in the manner and with the effect provided in this chapter. Every compromise of any claim for compensation may be reviewed and set aside, modified or confirmed by the department within one year from the date the compromise is filed with the department, or from the date an award has been entered, based thereon, or the department may take that action upon application made within one year. Unless the word "compromise" appears in a stipulation of settlement, the settlement shall not be deemed a compromise, and further claim is not barred except as provided in
s. 102.17 (4) regardless of whether an award is made. The employer, insurer or dependent under
s. 102.51 (5) shall have equal rights with the employee to have review of a compromise or any other stipulation of settlement. Upon petition filed with the department, the department may set aside the award or otherwise determine the rights of the parties.
102.16(1m)(a)(a) If an insurer or self-insured employer concedes by compromise under
sub. (1) or stipulation under
s. 102.18 (1) (a) that the insurer or self-insured employer is liable under this chapter for any health services provided to an injured employee by a health service provider, but disputes the reasonableness of the fee charged by the health service provider, the department may include in its order confirming the compromise or stipulation 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
sub. (2) (b) that the reasonableness of the fee is in dispute.
102.16(1m)(b)
(b) If an insurer or self-insured employer concedes by compromise under
sub. (1) or stipulation under
s. 102.18 (1) (a) that the insurer or self-insured employer is liable under this chapter for any treatment provided to an injured employee by a health service provider, but disputes the necessity of the treatment, the department may include in its order confirming the compromise or stipulation a determination as to the necessity of the treatment or the department may notify, or direct the insurer or self-insured employer to notify, the health service provider under
sub. (2m) (b) that the necessity of the treatment is in dispute.
102.16(2)(a)(a) The department has jurisdiction under this subsection,
sub. (1m) (a) and
s. 102.17 to resolve a dispute between a health service provider and an insurer or self-insured employer over the reasonableness of a fee charged by the health service provider for health services provided to an injured employee who claims benefits under this chapter. The department shall deny payment of a health service fee that the department determines under this subsection,
sub. (1m) (a) or
s. 102.18 (1) (b) to be unreasonable. A health service provider and an insurer or self-insured employer that are parties to a fee dispute under this subsection are bound by the department's determination under this subsection on the reasonableness of the disputed fee, unless that determination is set aside on judicial review as provided in
par. (f). A health service provider and an insurer or self-insured employer that are parties to a fee dispute under
sub. (1m) (a) are bound by the department's determination under
sub. (1m) (a) on the reasonableness of the disputed fee, unless that determination is set aside or modified by the department under
sub. (1). An insurer or self-insured employer that is a party to a fee dispute under
s. 102.17 and a health service provider are bound by the department's determination under
s. 102.18 (1) (b) on the reasonableness of the disputed fee, unless that determination is set aside, reversed or modified by the department under
s. 102.18 (3) or by the commission under
s. 102.18 (3) or
(4) or is set aside on judicial review under
s. 102.23.
102.16(2)(b)
(b) An insurer or self-insured employer that disputes the reasonableness of a fee charged by a health service provider or the department under
sub. (1m) (a) or
s. 102.18 (1) (bg) 1. shall provide reasonable notice to the health service provider that the fee is being disputed. After receiving reasonable notice under this paragraph or under
sub. (1m) (a) or
s. 102.18 (1) (bg) 1. that a health service fee is being disputed, a health service provider may not collect the disputed fee from, or bring an action for collection of the disputed fee against, the employee who received the services for which the fee was charged.
102.16(2)(c)
(c) After a fee dispute is submitted to the department, the insurer or self-insured employer that is a party to the dispute shall provide to the department information on that fee and information on fees charged by other health service providers for comparable services. The insurer or self-insured employer shall obtain the information on comparable fees from a database that is certified by the department under
par. (h). Except as provided in
par. (e) 1., if the insurer or self-insured employer does not provide the information required under this paragraph, the department shall determine that the disputed fee is reasonable and order that it be paid. If the insurer or self-insured employer provides the information required under this paragraph, the department shall use that information to determine the reasonableness of the disputed fee.
102.16(2)(d)
(d) For fee disputes that are submitted to the department before July 1, 2002, the department shall analyze the information provided to the department under
par. (c) according to the criteria provided in this paragraph to determine the reasonableness of the disputed fee. The department shall determine that a disputed fee is reasonable and order that the disputed fee be paid if that fee is at or below the mean fee for the health service procedure for which the disputed fee was charged, plus 1.5 standard deviations from that mean, as shown by data from a database that is certified by the department under
par. (h). The department shall determine that a disputed fee is unreasonable and order that a reasonable fee be paid if the disputed fee is above the mean fee for the health service procedure for which the disputed fee was charged, plus 1.5 standard deviations from that mean, as shown by data from a database that is certified by the department under
par. (h), unless the health service provider proves to the satisfaction of the department that a higher fee is justified because the service provided in the disputed case was more difficult or more complicated to provide than in the usual case.
102.16(2)(e)1.1. Subject to
subd. 2., if an insurer or self-insured employer that disputes the reasonableness of a fee charged by a health service provider cannot provide information on fees charged by other health service providers for comparable services because the database to which the insurer or self-insured employer subscribes is not able to provide accurate information for the health service procedure at issue, the department may use any other information that the department considers to be reliable and relevant to the disputed fee to determine the reasonableness of the disputed fee.
102.16(2)(e)2.
2. Notwithstanding
subd. 1., the department may use only a hospital radiology database that has been certified by the department under
par. (h) to determine the reasonableness of a hospital fee for radiology services.
102.16(2)(f)
(f) The department may set aside, reverse or modify a determination under this subsection within 30 days after the date of the determination. A health service provider, insurer or self-insured employer that is aggrieved by a determination of the department under this subsection may seek judicial review of that determination in the same manner that compensation claims are reviewed under
s. 102.23.
102.16(2)(h)
(h) The department shall promulgate rules establishing procedures and requirements for the fee dispute resolution process under this subsection, including rules specifying the standards that health service fee databases must meet for certification under this paragraph. Using those standards, the department shall certify databases of the health service fees that various health service providers charge. In certifying databases under this paragraph, the department shall certify at least one database of hospital fees for radiology services, including diagnostic and interventional radiology, diagnostic ultrasound and nuclear medicine.
102.16(2m)(a)(a) The department has jurisdiction under this subsection,
sub. (1m) (b) and
s. 102.17 to resolve a dispute between a health service provider and an insurer or self-insured employer over the necessity of treatment provided for an injured employee who claims benefits under this chapter. The department shall deny payment for any treatment that the department determines under this subsection,
sub. (1m) (b) or
s. 102.18 (1) (b) to be unnecessary. A health service provider and an insurer or self-insured employer that are parties to a dispute under this subsection over the necessity of treatment are bound by the department's determination under this subsection on the necessity of that treatment, unless that determination is set aside on judicial review as provided in
par. (e). A health service provider and an insurer or self-insured employer that are parties to a dispute under
sub. (1m) (b) over the necessity of treatment are bound by the department's determination under
sub. (1m) (b) on the necessity of that treatment, unless that determination is set aside or modified by the department under
sub. (1). An insurer or self-insured employer that is a party to a dispute under
s. 102.17 over the necessity of treatment and a health service provider are bound by the department's determination under
s. 102.18 (1) (b) on the necessity of that treatment, unless that determination is set aside, reversed or modified by the department under
s. 102.18 (3) or by the commission under
s. 102.18 (3) or
(4) or is set aside on judicial review under
s. 102.23.
102.16(2m)(b)
(b) An insurer or self-insured employer that disputes the necessity of treatment provided by a health service provider or the department under
sub. (1m) (b) or
s. 102.18 (1) (bg) 2. shall provide reasonable notice to the health service provider that the necessity of that treatment is being disputed. After receiving reasonable notice under this paragraph or under
sub. (1m) (b) or
s. 102.18 (1) (bg) 2. that the necessity of treatment is being disputed, a health service provider may not collect a fee for that disputed treatment from, or bring an action for collection of the fee for that disputed treatment against, the employee who received the treatment.
102.16(2m)(c)
(c) Before determining the necessity of treatment provided for an injured employee who claims benefits under this chapter, the department shall obtain a written opinion on the necessity of the treatment in dispute from an expert selected by the department. To qualify as an expert, a person must be licensed to practice the same health care profession as the individual health service provider whose treatment is under review and must either be performing services for an impartial health care services review organization or be a member of an independent panel of experts established by the department under
par. (f). The department shall adopt the written opinion of the expert as the department's determination on the issues covered in the written opinion, unless the health service provider or the insurer or self-insured employer present clear and convincing written evidence that the expert's opinion is in error.
102.16(2m)(d)
(d) The department may charge a party to a dispute over the necessity of treatment provided for an injured employee who claims benefits under this chapter for the full cost of obtaining the written opinion of the expert under
par. (c). The department shall charge the insurer or self-insured employer for the full cost of obtaining the written opinion of the expert for the first dispute that a particular individual health service provider is involved in, unless the department determines that the individual health service provider's position in the dispute is frivolous or based on fraudulent representations. In a subsequent dispute involving the same individual health service provider, the department shall charge the losing party to the dispute for the full cost of obtaining the written opinion of the expert.
102.16(2m)(e)
(e) The department may set aside, reverse or modify a determination under this subsection within 30 days after the date of the determination. A health service provider, insurer or self-insured employer that is aggrieved by a determination of the department under this subsection may seek judicial review of that determination in the same manner that compensation claims are reviewed under
s. 102.23.
102.16(2m)(f)
(f) The department may contract with an impartial health care services review organization to provide the expert opinions required under
par. (c), or establish a panel of experts to provide those opinions, or both. If the department establishes a panel of experts to provide the expert opinions required under
par. (c), the department may pay the members of that panel a reasonable fee, plus actual and necessary expenses, for their services.
102.16(2m)(g)
(g) The department shall promulgate rules establishing procedures and requirements for the necessity of treatment dispute resolution process under this subsection, including rules setting the fees under
par. (f).
102.16(3)
(3) No employer subject to this chapter may solicit, receive or collect any money from an employee or any other person or make any deduction from their wages, either directly or indirectly, for the purpose of discharging any liability under this chapter or recovering premiums paid on a contract described under
s. 102.31 (1) (a); nor may any such employer sell to an employee or other person, or solicit or require the employee or other person to purchase, medical, chiropractic, podiatric, psychological, dental or hospital tickets or contracts for medical, surgical, hospital or other health care treatment which is required to be furnished by that employer.
102.16(4)
(4) The department has jurisdiction to pass on any question arising out of
sub. (3) and has jurisdiction to order the employer to reimburse an employee or other person for any sum deducted from wages or paid by him or her in violation of that subsection. In addition to the penalty provided in
s. 102.85 (1), any employer violating
sub. (3) shall be liable to an injured employee for the reasonable value of the necessary services rendered to that employee pursuant to any arrangement made in violation of
sub. (3) without regard to that employee's actual disbursements for the same.
102.16(5)
(5) Except as provided in
s. 102.28 (3), no agreement by an employee to waive the right to compensation is valid.
102.16 Annotation
The continuing obligation to compensate an employee 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 employee incurs medical expenses after that time. Schenkoski v. LIRC,
203 Wis. 2d 109,
552 N.W.2d 120 (Ct. App. 1996).
102.16 Annotation
An appeal under sub. (2m) (e) of a department determination may be served under s. 102.23 (1) (b) on the department or the commission. McDonnough v. DWD,
227 Wis. 2d 271,
595 N.W.2d 686 (1999).
102.17
102.17
Procedure; notice of hearing; witnesses, contempt; testimony, medical examination. 102.17(1)(a)(a) Upon the filing with the department by any party in interest of any application in writing stating the general nature of any claim as to which any dispute or controversy may have arisen, it shall mail a copy of such application to all other parties in interest and the insurance carrier shall be deemed a party in interest. The department may bring in additional parties by service of a copy of the application. The department shall cause notice of hearing on the application to be given to each party interested, by service of such notice on the interested party personally or by mailing a copy to the interested party's last-known address at least 10 days before such hearing. In case a party in interest is located without the state, and has no post-office address within this state, the copy of the application and copies of all notices shall be filed with the department of financial institutions and shall also be sent by registered or certified mail to the last-known post-office address of such party. Such filing and mailing shall constitute sufficient service, with the same effect as if served upon a party located within this state. The hearing may be adjourned in the discretion of the department, and hearings may be held at such places as the department designates, within or without the state. The department may also arrange to have hearing held by the commission, officer or tribunal having authority to hear cases arising under the worker's compensation law of any other state, of the District of Columbia, or of any territory of the United States, the testimony and proceedings at any such hearing to be reported to the department and to be part of the record in the case. Any evidence so taken shall be subject to rebuttal upon final hearing before the department.
102.17(1)(b)
(b) In any dispute or controversy pending before the department, the department may direct the parties to appear before an examiner for a conference to consider the clarification of issues, the joining of additional parties, the necessity or desirability of amendments to the pleadings, the obtaining of admissions of fact or of documents, records, reports and bills which may avoid unnecessary proof and such other matters as may aid in disposition of the dispute or controversy. After this conference the department may issue an order requiring disclosure or exchange of any information or written material which it considers material to the timely and orderly disposition of the dispute or controversy. If a party fails to disclose or exchange within the time stated in the order, the department may issue an order dismissing the claim without prejudice or excluding evidence or testimony relating to the information or written material. The department shall provide each party with a copy of any order.
102.17(1)(c)
(c) Either party shall have the right to be present at any hearing, in person or by attorney, or any other agent, and to present such testimony as may be pertinent to the controversy before the department. No person, firm or corporation other than an attorney at law, duly licensed to practice law in the state, may appear on behalf of any party in interest before the department or any member or employee of the department assigned to conduct any hearing, investigation or inquiry relative to a claim for compensation or benefits under this chapter, unless the person is 18 years of age or older, does not have an arrest or conviction record, subject to
ss. 111.321,
111.322 and
111.335, is otherwise qualified and has obtained from the department a license with authorization to appear in matters or proceedings before the department. Except as provided under
pars. (cm) and
(cr), the license shall be issued by the department under rules to be adopted by the department. There shall be maintained in the office of the department a current list of persons to whom licenses have been issued. Any license may be suspended or revoked by the department for fraud or serious misconduct on the part of an agent, any license may be denied, suspended, nonrenewed or otherwise withheld by the department for failure to pay court-ordered payments as provided in
par. (cm) on the part of an agent and any license may be denied or revoked if the department of revenue certifies under
s. 73.0301 that the applicant or licensee is liable for delinquent taxes. Before suspending or revoking the license of the agent on the grounds of fraud or misconduct, the department shall give notice in writing to the agent of the charges of fraud or misconduct, and shall give the agent full opportunity to be heard in relation to the same. In denying, suspending, restricting, refusing to renew or otherwise withholding a license for failure to pay court-ordered payments as provided in
par. (cm), the department shall follow the procedure provided in a memorandum of understanding entered into under
s. 49.857. The license and certificate of authority shall, unless otherwise suspended or revoked, be in force from the date of issuance until the June 30 following the date of issuance and may be renewed by the department from time to time, but each renewed license shall expire on the June 30 following the issuance thereof.
102.17(1)(cg)1.1. Except as provided in
subd. 2m., the department shall require each applicant for a license under
par. (c) who is an individual to provide the department with the applicant's social security number, and shall require each applicant for a license under
par. (c) who is not an individual to provide the department with the applicant's federal employer identification number, when initially applying for or applying to renew the license.
102.17(1)(cg)2.
2. If an applicant who is an individual fails to provide the applicant's social security number to the department or if an applicant who is not an individual fails to provide the applicant's federal employer identification number to the department, the department may not issue or renew a license under
par. (c) to or for the applicant unless the applicant is an individual who does not have a social security number and the applicant submits a statement made or subscribed under oath or affirmation as required under
subd. 2m.
102.17(1)(cg)2m.
2m. If an applicant who is an individual does not have a social security number, the applicant shall submit a statement made or subscribed under oath or affirmation to the department that the applicant does not have a social security number. The form of the statement shall be prescribed by the department. A license issued in reliance upon a false statement submitted under this subdivision is invalid.
102.17(1)(cg)3.
3. The subunit of the department that obtains a social security number or a federal employer identification number under
subd. 1. may not disclose the social security number or the federal employer identification number to any person except to the department of revenue for the sole purpose of requesting certifications under
s. 73.0301 or on the request of the subunit of the department that administers the child and spousal support program under
s. 49.22 (2m).
102.17(1)(cm)
(cm) The department shall deny, suspend, restrict, refuse to renew or otherwise withhold a license under
par. (c) for failure of the applicant or agent to pay court-ordered payments of child or family support, maintenance, birth expenses, medical expenses or other expenses related to the support of a child or former spouse or for failure of the applicant or agent to comply, after appropriate notice, with a subpoena or warrant issued by the department or a county child support agency under
s. 59.53 (5) and related to paternity or child support proceedings, as provided in a memorandum of understanding entered into under
s. 49.857. Notwithstanding
par. (c), an action taken under this paragraph is subject to review only as provided in the memorandum of understanding entered into under
s. 49.857 and not as provided in
ch. 227.
102.17(1)(cr)
(cr) The department shall deny an application for the issuance or renewal of a license under
par. (c), or revoke such a license already issued, if the department of revenue certifies under
s. 73.0301 that the applicant or licensee is liable for delinquent taxes. Notwithstanding
par. (c), an action taken under this paragraph is subject to review only as provided under
s. 73.0301 (5) and not as provided in
ch. 227.
102.17(1)(d)
(d) The contents of certified medical and surgical reports by physicians, podiatrists, surgeons, dentists, psychologists and chiropractors licensed in and practicing in this state and of certified reports by experts concerning loss of earning capacity under
s. 102.44 (2) and
(3), presented by a party for compensation constitute prima facie evidence as to the matter contained in them, subject to any rules and limitations the department prescribes. Certified reports of physicians, podiatrists, surgeons, dentists, psychologists and chiropractors, wherever licensed and practicing, who have examined or treated the claimant, and of experts, if the practitioner or expert consents to subject himself or herself to cross-examination also constitute prima facie evidence as to the matter contained in them. Certified reports of physicians, podiatrists, surgeons, psychologists and chiropractors are admissible as evidence of the diagnosis, necessity of the treatment and cause and extent of the disability. Certified reports by doctors of dentistry are admissible as evidence of the diagnosis and necessity for treatment but not of disability. Any physician, podiatrist, surgeon, dentist, psychologist, chiropractor or expert who knowingly makes a false statement of fact or opinion in such a certified report may be fined or imprisoned, or both, under
s. 943.395. The record of a hospital or sanatorium in this state operated by any department or agency of the federal or state government or by any municipality, or of any other hospital or sanatorium in this state which is satisfactory to the department, established by certificate, affidavit or testimony of the supervising officer or other person having charge of such records, or of a physician, podiatrist, surgeon, dentist, psychologist or chiropractor to be the record of the patient in question, and made in the regular course of examination or treatment of such patient, constitutes prima facie evidence in any worker's compensation proceeding as to the matter contained in it, to the extent that it is otherwise competent and relevant. The department may, by rule, establish the qualifications of and the form used for certified reports submitted by experts who provide information concerning loss of earning capacity under
s. 102.44 (2) and
(3). The department may not admit into evidence a certified report of a practitioner or other expert or a record of a hospital or sanatorium that was not filed with the department and all parties in interest at least 15 days before the date of the hearing, unless the department is satisfied that there is good cause for the failure to file the report.
102.17(1)(e)
(e) The department may, with or without notice to either party, cause testimony to be taken, or an inspection of the premises where the injury occurred to be made, or the time books and payrolls of the employer to be examined by any examiner, and may direct any employee claiming compensation to be examined by a physician, chiropractor, psychologist, dentist or podiatrist. The testimony so taken, and the results of any such inspection or examination, shall be reported to the department for its consideration upon final hearing. All ex parte testimony taken by the department shall be reduced to writing and either party shall have opportunity to rebut such testimony on final hearing.
102.17(1)(f)1.
1. Who is beyond reach of the subpoena of the department; or
102.17(1)(f)2.
2. Who is about to go out of the state, not intending to return in time for the hearing; or
102.17(1)(f)3.
3. Who is so sick, infirm or aged as to make it probable that the witness will not be able to attend the hearing; or
102.17(1)(f)4.
4. Who is a member of the legislature, if any committee of the same or the house of which the witness is a member, is in session, provided the witness waives his or her privilege.
102.17(1)(g)
(g) Whenever the testimony presented at any hearing indicates a dispute, or is such as to create doubt as to the extent or cause of disability or death, the department may direct that the injured employee be examined or autopsy be performed, or an opinion of a physician, chiropractor, dentist, psychologist or podiatrist be obtained without examination or autopsy, by an impartial, competent physician, chiropractor, dentist, psychologist or podiatrist designated by the department who is not under contract with or regularly employed by a compensation insurance carrier or self-insured employer. The expense of such examination shall be paid by the employer or, if the employee claims compensation under
s. 102.81, from the uninsured employers fund. The report of such examination shall be transmitted in writing to the department and a copy thereof shall be furnished by the department to each party, who shall have an opportunity to rebut such report on further hearing.
102.17(1)(h)
(h) The contents of certified reports of investigation, made by industrial safety specialists who are employed by the department and available for cross-examination, served upon the parties 15 days prior to hearing, shall constitute prima facie evidence as to matter contained therein.
102.17(2)
(2) If the department shall have reason to believe that the payment of compensation has not been made, it may on its own motion give notice to the parties, in the manner provided for the service of an application, of a time and place when a hearing will be held for the purpose of determining the facts. Such notice shall contain a statement of the matter to be considered. Thereafter all other provisions governing proceedings on application shall attach insofar as the same may be applicable. When the department schedules a hearing on its own motion, the department does not become a party in interest and is not required to appear at the hearing.
102.17(2m)
(2m) Any party, including the department, may require any person to produce books, papers and records at the hearing by personal service of a subpoena upon the person along with a tender of witness fees as provided in
ss. 814.67 and
885.06. Except as provided in
sub. (2s), the subpoena shall be on a form provided by the department and shall give the name and address of the party requesting the subpoena.
102.17(2s)
(2s) A party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence. A subpoena issued by an attorney must be in substantially the same form as provided in
s. 805.07 (4) and must be served in the manner provided in
s. 805.07 (5). The attorney shall, at the time of issuance, send a copy of the subpoena to the appeal tribunal or other representative of the department responsible for conducting the proceeding.
102.17(3)
(3) Any person who shall wilfully and unlawfully fail or neglect to appear or to testify or to produce books, papers and records as required, shall be fined not less than $25 nor more than $100, or imprisoned in the county jail not longer than 30 days. Each day such person shall so refuse or neglect shall constitute a separate offense.
102.17(4)
(4) The right of an employee, the employee's legal representative or dependent to proceed under this section shall not extend beyond 12 years from the date of the injury or death or from the date that compensation, other than treatment or burial expenses, was last paid, or would have been last payable if no advancement were made, whichever date is latest. In the case of occupational disease there shall be no statute of limitations, except that benefits or treatment expense becoming due after 12 years from the date of injury or death or last payment of compensation shall be paid from the work injury supplemental benefit fund under
s. 102.65 and in the manner provided in
s. 102.66. Payment of wages by the employer during disability or absence from work to obtain treatment shall be deemed payment of compensation for the purpose of this section if the employer knew of the employee's condition and its alleged relation to the employment.
102.17(5)
(5) This section does not limit the time within which the state may bring an action to recover the amounts specified in
ss. 102.49 (5) and
102.59.
102.17(6)
(6) If an employee or dependent shall, at the time of injury, or at the time the employee's or dependent's right accrues, be under 18 years of age, the limitations of time within which the employee or dependent may file application or proceed under this chapter, if they would otherwise sooner expire, shall be extended to one year after the employee or dependent attains the age of 18 years. If, within any part of the last year of any such period of limitation, an employee, the employee's personal representative, or surviving dependent be insane or on active duty in the armed forces of the United States such period of limitation shall be extended to 2 years after the date that the limitation would otherwise expire. The provision hereof with respect to persons on active duty in the armed forces of the United States shall apply only where no applicable federal statute is in effect.
102.17(7)(a)(a) Except as provided in
par. (b), in a claim under
s. 102.44 (2) and
(3), testimony or certified reports of expert witnesses on loss of earning capacity may be received in evidence and considered with all other evidence to decide on an employee's actual loss of earning capacity.
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 employee 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 employee. The itemized statement shall include, if applicable, information relating to any travel expenses incurred by the injured employee in obtaining treatment including the injured employee'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 employee if the injured employee 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 employee, 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 Wis. 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;
1999 a. 9.
102.17 Annotation
A plaintiff-employer was not deprived of any substantial due process rights by the department's refusal to invoke its rule requiring inspection of the opposing parties' medical reports when the plaintiff had ample notice of the nature of the employee's claim. Theodore Fleisner, Inc. v. DILHR,
65 Wis. 2d 317,
222 N.W.2d 600.
102.17 Annotation
Under the facts of the case, a refusal to grant an employer's request for adjournment was a denial of due process. Bituminous Cas. Co. v. DILHR,
97 Wis. 2d 730,
295 N.W.2d 183 (Ct. App. 1980).
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 Wis. 2d 60,
539 N.W.2d 713 (Ct. App. 1995).
102.17 Annotation
LIRC's authority under sub. (1) (a) to control its calender and manage its internal affairs necessarily implies the power to deny an applicant's motion to withdraw an application for hearing. An appellant's failure to appear at a hearing after a motion to withdraw the application was denied was grounds for entry of a default judgment under s. 102.18 (1) (a). Baldwin v. LIRC,
228 Wis. 2d 601,
599 N.W.2d 8 (Ct. App. 1999).
102.17 Annotation
In the absence of testimony in conflict with a claimant's medical experts, LIRC may reject the expert evidence if there is countervailing testimony raising legitimate doubt about the employee's injury. Kowalchuk v. LIRC, 2000 WI App 85,
234 Wis. 2d 203,
610 N.W.2d 122.
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 employee 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 employee 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.
