102.18 Annotation
Sub. (4) (c) grants the review commission exclusive authority to set aside findings due to newly discovered evidence; the trial court does not possess that authority. Hopp v. LIRC,
146 Wis. 2d 172,
430 N.W.2d 359 (Ct. App. 1988).
102.18 Annotation
To show bad faith under sub. (1) (bp) a claimant must show that the employer acted without a reasonable basis for the delay and with knowledge or a reckless disregard of the lack of reasonable basis for the delay. North American Mechanical v. LIRC,
157 Wis. 2d 801,
460 N.W.2d 835 (Ct. App. 1990).
102.18 Annotation
After the commission makes a final order and the review period has passed, the commission's decision is final for all purposes. Kwaterski v. LIRC,
158 Wis. 2d 112,
462 N.W.2d 534 (Ct. App. 1990).
102.18 Annotation
Sub. (3) does not authorize LIRC to take administrative notice of any fact; review is limited to the record before the hearing examiner. Amsoil, Inc. v. LIRC,
173 Wis. 2d 154,
496 N.W.2d 150 (Ct. App. 1992).
102.18 Annotation
The commission may not reject a medical opinion absent something in the record to support the rejection; countervailing expert testimony is not required in all cases. Leist v. LIRC,
183 Wis. 2d 450,
515 N.W.2d 268 (Ct. App. 1994).
102.18 Annotation
Issuance of a default order under sub. (1) (a) is discretionary. Rules of civil procedure do not apply to administrative proceedings. Nothing in the law suggests a default order must be issued in the absence of excusable neglect. Verhaagh v. LIRC,
204 Wis. 2d 154,
554 N.W.2d 678 (Ct. App. 1996).
102.18 Annotation
The commission may not rule on and consider issues on appeal that were not litigated and may not consider evidence not considered by the administrative law judge unless the parties are allowed to offer rebuttal evidence. Wright v. LIRC,
210 Wis. 2d 290,
565 N.W.2d 221 (Ct. App. 1997).
102.18 Annotation
LIRC's authority under s. 102.17 (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 sub. (1) (a). Baldwin v. LIRC,
228 Wis. 2d 601,
599 N.W.2d 8 (Ct. App. 1999).
102.19
102.19
Alien dependents; payments through consular officers. In case a deceased employee, for whose injury or death compensation is payable, leaves surviving alien dependents residing outside of the United States, the duly accredited consular officer of the country of which such dependents are citizens or such officer's designated representative residing within the state shall, except as otherwise determined by the department, be the sole representative of the deceased employee and dependents in all matters pertaining to their claims for compensation. The receipt by such officer or agent of compensation funds and the distribution thereof shall be made only upon order of the department, and payment to such officer or agent pursuant to any such order shall be a full discharge of the benefits or compensation. Such consular officer or such officer's representative shall furnish, if required by the department, a bond to be approved by it, conditioned upon the proper application of all moneys received by such person. Before such bond is discharged, such consular officer or representative shall file with the department a verified account of the items of his or her receipts and disbursements of such compensation. Such consular officer or representative shall make interim reports to the department as it may require.
102.19 History
History: 1977 c. 29.
102.195
102.195
Employees confined in institutions; payment of benefits. In case an employee is adjudged insane or incompetent, or convicted of a felony, and is confined in a public institution and has wholly dependent upon the employee for support a person, whose dependency is determined as if the employee were deceased, compensation payable during the period of the employee's confinement may be paid to the employee and the employee's dependents, in such manner, for such time and in such amount as the department by order provides.
102.195 History
History: 1993 a. 492.
102.20
102.20
Judgment on award. If either party presents a certified copy of the award to the circuit court for any county, the court shall, without notice, render judgment in accordance therewith. A judgment rendered under this section shall have the same effect as though rendered in an action tried and determined by the court, and shall, with like effect, be entered in the judgment and lien docket.
102.20 History
History: 1995 a. 224.
102.20 Annotation
"Award" under this section means an award that has become final under s. 102.18 (3). Warren v. Link Farms, Inc.
123 Wis. 2d 485,
368 N.W.2d 688 (Ct. App. 1985).
102.21
102.21
Payment of awards by municipalities. Whenever an award is made by the department under this chapter or s.
66.191, 1981 stats., against any municipality, the person in whose favor it is made shall file a certified copy thereof with the municipal clerk. Within 20 days thereafter, unless an appeal is taken, such clerk shall draw an order on the municipal treasurer for the payment of the award. If upon appeal such award is affirmed in whole or in part the order for payment shall be drawn within 10 days after a certified copy of such judgment is filed with the proper clerk. If more than one payment is provided for in the award or judgment, orders shall be drawn as the payments become due. No statute relating to the filing of claims against, and the auditing, allowing and payment of claims by municipalities shall apply to the payment of an award or judgment under this section.
102.21 History
History: 1983 a. 191 s.
6.
102.22
102.22
Penalty for delayed payments; interest. 102.22(1)
(1) If the employer or his or her insurer inexcusably delays in making the first payment that is due an injured employee for more than 30 days after the day on which the employee leaves work as a result of an injury and if the amount due is $500 or more, the payments as to which the delay is found shall be increased by 10%. If the employer or his or her insurer inexcusably delays in making the first payment that is due an injured employee for more than 14 days after the day on which the employee leaves work as a result of an injury, the payments as to which the delay is found may be increased by 10%. If the employer or his or her insurer inexcusably delays for any length of time in making any other payment that is due an injured employee, the payments as to which the delay is found may be increased by 10%. Where the delay is chargeable to the employer and not to the insurer
s. 102.62 shall apply and the relative liability of the parties shall be fixed and discharged as therein provided. The department may also order the employer or insurance carrier to reimburse the employee for any finance charges, collection charges or interest which the employee paid as a result of the inexcusable delay by the employer or insurance carrier.
102.22(2)
(2) If the sum ordered by the department to be paid is not paid when due, that sum shall bear interest at the rate of 10% per year. The state is liable for such interest on awards issued against it under this chapter. The department has jurisdiction to issue award for payment of such interest at any time within one year of the date of its order, or upon appeal after final court determination. Such interest becomes due from the date the examiner's order becomes final or from the date of a decision by the labor and industry review commission, whichever is later.
102.22(3)
(3) If upon petition for review the commission affirms an examiner's order, interest at the rate of 7% per year on the amount ordered by the examiner shall be due for the period beginning on the 21st day after the date of the examiner's order and ending on the date paid under the commission's decision. If upon petition for judicial review under
s. 102.23 the court affirms the commission's decision, interest at the rate of 7% per year on the amount ordered by the examiner shall be due up to the date of the commission's decision, and thereafter interest shall be computed under
sub. (2).
102.22 Annotation
The department can assess the penalty for inexcusable delay in making payments prior to the entry of an order. The question of inexcusable delay is one of law and the courts are not bound by the department's finding as to it. Milwaukee County v. DILHR,
48 Wis. 2d 392,
180 N.W.2d 513.
102.22 Annotation
The penalty under sub. (1) does not bar an action for bad faith for failure to pay a claim. Coleman v. American Universal Insurance Co.
86 Wis. 2d 615,
273 N.W.2d 220 (1979).
102.23
102.23
Judicial review. 102.23(1)(a)(a) The findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive. The order or award granting or denying compensation, either interlocutory or final, whether judgment has been rendered on it or not, is subject to review only as provided in this section and not under
ch. 227 or
s. 801.02. Within 30 days after the date of an order or award made by the commission either originally or after the filing of a petition for review with the department under
s. 102.18 any party aggrieved thereby may by serving a complaint as provided in
par. (b) and filing the summons and complaint with the clerk of the circuit court commence, in circuit court, an action against the commission for the review of the order or award, in which action the adverse party shall also be made a defendant. If the circuit court is satisfied that a party in interest has been prejudiced because of an exceptional delay in the receipt of a copy of any finding or order, it may extend the time in which an action may be commenced by an additional 30 days. The proceedings shall be in the circuit court of the county where the plaintiff resides, except that if the plaintiff is a state agency, the proceedings shall be in the circuit court of the county where the defendant resides. The proceedings may be brought in any circuit court if all parties stipulate and that court agrees.
102.23(1)(b)
(b) In such an action a complaint shall be served with an authenticated copy of the summons. The complaint need not be verified, but shall state the grounds upon which a review is sought. Service upon a commissioner or agent authorized by the commission to accept service constitutes complete service on all parties, but there shall be left with the person so served as many copies of the summons and complaint as there are defendants, and the commission shall mail one copy to each other defendant.
102.23(1)(c)
(c) The commission shall serve its answer within 45 days after the service of the complaint, and, within the like time, the adverse party may serve an answer to the complaint, which answer may, by way of counterclaim or cross complaint, ask for the review of the order or award referred to in the complaint, with the same effect as if the party had commenced a separate action for the review thereof.
102.23(1)(d)
(d) The commission shall make return to the court of all documents and papers on file in the matter, and of all testimony which has been taken, and of the commission's order, findings and award. Such return of the commission when filed in the office of the clerk of the circuit court shall, with the papers mentioned in
s. 809.15 constitute a judgment roll in the action; and it shall not be necessary to have a transcript approved. The action may thereupon be brought on for hearing before the court upon the record by either party on 10 days' notice to the other; subject, however, to the provisions of law for a change of the place of trial or the calling in of another judge.
102.23(1)(e)
(e) Upon such hearing, the court may confirm or set aside such order or award; and any judgment which may theretofore have been rendered thereon; but the same shall be set aside only upon the following grounds:
102.23(1)(e)1.
1. That the commission acted without or in excess of its powers.
102.23(1)(e)3.
3. That the findings of fact by the commission do not support the order or award.
102.23(2)
(2) Upon the trial of any such action the court shall disregard any irregularity or error of the commission or the department unless it is made to affirmatively appear that the plaintiff was damaged thereby.
102.23(3)
(3) The record in any case shall be transmitted to the department within 5 days after expiration of the time for appeal from the order or judgment of the court, unless appeal shall be taken from such order or judgment.
102.23(4)
(4) Whenever an award is made against the state the attorney general may bring an action for review thereof in the same manner and upon the same grounds as are provided by
sub. (1).
102.23(5)
(5) The commencement of action for review shall not relieve the employer from paying compensation as directed, when such action involves only the question of liability as between the employer and one or more insurance companies or as between several insurance companies.
102.23(6)
(6) If the commission's order or award depends on any fact found by the commission, the court shall not substitute its judgment for that of the commission as to the weight or credibility of the evidence on any finding of fact. The court may, however, set aside the commission's order or award and remand the case to the commission if the commission's order or award depends on any material and controverted finding of fact that is not supported by credible and substantial evidence.
102.23 History
History: 1973 c. 150;
1975 c. 199; Sup. Ct. Order, 73 Wis. 2d xxxi (1976);
1977 c. 29;
1977 c. 187 ss.
59,
135;
1977 c. 195,
272,
447; Sup. Ct. Order, 83 Wis. 2d xiii (1978);
1979 c. 278;
1981 c. 390 s.
252;
1983 a. 98,
122,
538;
1985 a. 83;
1997 a. 187.
102.23 Note
Judicial Council Committee's Note, 1976: The procedure for initiating a petition for judicial review under ch. 102 is governed by the provisions of s. 102.23 rather than the provisions for initiating a civil action under s. 801.02. [Re Order effective Jan. 1, 1977]
102.23 Annotation
The fact that a party appealing from a DILHR order as to unemployment compensation labeled his petition "under 227.15, 1983 stats. [now 227.52]", is immaterial since the circuit court had subject matter jurisdiction. An answer by the department that s. 227.15, 1983 stats. [now 227.52] gave no jurisdiction amounted to an appearance and the department could not later claim that the court had no personal jurisdiction because appellant had not served a summons and complaint. Lees v. DILHR,
49 Wis. 2d 491,
182 N.W.2d 245.
102.23 Annotation
A finding of fact, whether ultimate or evidentiary, is still in its essential nature a fact, whereas a conclusion of law accepts those facts and, by judicial reasoning, results from the application of rules or concepts of law to those facts whether undisputed or not. Kress Packing Co. v. Kottwitz,
61 Wis. 2d 175,
212 N.W.2d 97.
102.23 Annotation
Challenge to the constitutionality of (1) is not sustained, since it is manifest from the statute that the legislature intended to have the department be the real party in interest and not a mere nominal party. Hunter v. DILHR,
64 Wis. 2d 97,
218 N.W.2d 314.
102.23 Annotation
When the claimant timely appealed an adverse worker's compensation decision in good faith, but erroneously captioned the appeal papers, the trial court abused its discretion by dismissing the action. Cruz v. DILHR,
81 Wis. 2d 442,
260 N.W.2d 692.
102.23 Annotation
An employer whose unemployment compensation account is not affected by the commission's determination has no standing to seek judicial review. Cornwell Personnel Associates v. ILHR Dept.
92 Wis. 2d 53,
284 N.W.2d 706 (Ct. App. 1979).
102.23 Annotation
Two methods of analyzing an agency's mixed conclusions of law and finding of fact are discussed. United Way of Greater Milwaukee v. DILHR,
105 Wis. 2d 447,
313 N.W.2d 858 (Ct. App. 1981).
102.23 Annotation
A failure to properly serve the commission pursuant to sub. (1) (b) results in a jurisdictional defect rather than a mere technical error. Gomez v. LIRC,
153 Wis. 2d 686,
451 N.W.2d 475 (Ct. App. 1989).
102.23 Annotation
Discretionary reversal is not applicable to judicial review of LIRC orders under the Worker's Compensation Act, ch. 102. There is no power to reopen a matter that has been fully determined under the Act. Kwaterski v. LIRC,
158 Wis. 2d 112,
462 N.W.2d 534 (Ct. App. 1990).
102.23 Annotation
A LIRC decision is to be upheld unless it directly contravenes the words of the statute, is clearly contrary to legislative intent, or is otherwise without a rational basis. Wisconsin Electric Power Co. v. LIRC,
226 Wis. 2d 778,
595 N.W.2d 23 (1999).
102.23 Annotation
An appeal under s. 102.16 (2m) (e) of a department determination may be served under sub. (1) (b) on the department or the commission. McDonnough v. Department of Workforce Development,
227 Wis. 2d 271,
595 N.W.2d 686 (1999).
102.23 Annotation
Judicial review of workmen's compensation cases. Haferman, 1973 WLR 576.
102.24
102.24
Remanding record. 102.24(1)(1) Upon the setting aside of any order or award, the court may recommit the controversy and remand the record in the case to the commission for further hearing or proceedings, or it may enter the proper judgment upon the findings of the commission, as the nature of the case shall demand. An abstract of the judgment entered by the trial court upon the review of any order or award shall be made by the clerk of circuit court upon the judgment and lien docket entry of any judgment which may have been rendered upon the order or award. Transcripts of the abstract may be obtained for like entry upon the judgment and lien dockets of the courts of other counties.
102.24(2)
(2) After the commencement of an action to review any award of the commission the parties may have the record remanded by the court for such time and under such condition as they may provide, for the purpose of having the department act upon the question of approving or disapproving any settlement or compromise that the parties may desire to have so approved. If approved the action shall be at an end and judgment may be entered upon the approval as upon an award. If not approved the record shall forthwith be returned to the circuit court and the action shall proceed as if no remand had been made.
102.25
102.25
Appeal from judgment on award. 102.25(1)
(1) Any party aggrieved by a judgment entered upon the review of any order or award may appeal therefrom within the time period specified in
s. 808.04 (1). A trial court shall not require the commission or any party to the action to execute, serve or file an undertaking under
s. 808.07 or to serve, or secure approval of, a transcript of the notes of the stenographic reporter or the tape of the recording machine. The state is a party aggrieved under this subsection if a judgment is entered upon the review confirming any order or award against it. At any time before the case is set down for hearing in the court of appeals or the supreme court, the parties may have the record remanded by the court to the department in the same manner and for the same purposes as provided for remanding from the circuit court to the department under
s. 102.24 (2).
102.25(2)
(2) It shall be the duty of the clerk of any court rendering a decision affecting an award of the commission to promptly furnish the commission with a copy of such decision without charge.
102.25 History
History: 1971 c. 148; Sup. Ct. Order,
67 Wis. 2d 585, 774 (1975);
1977 c. 29,
187,
195,
418;
1979 c. 278;
1983 a. 219.
102.25 Note
Judicial Council Note, 1983: Sub. (1) is amended to replace the appeal deadline of 30 days after service of notice of entry of judgment or award by the standard time specified in s. 808.04 (1), stats., for greater uniformity. The subsection is further amended to eliminate the superfluous provisions for calendaring and hearing the appeal. [Bill 151-S]
102.25 Annotation
A court order setting aside an administrative order and remanding the case to the administrative agency disposed of the entire matter in litigation and was appealable as of right. Bearns v. DILHR,
102 Wis. 2d 70,
306 N.W.2d 22 (1981).
102.26(1)(1) No fees may be charged by the clerk of any circuit court for the performance of any service required by this chapter, except for the entry of judgments and certified transcripts of judgments. In proceedings to review an order or award, costs as between the parties shall be in the discretion of the court, but no costs may be taxed against the commission.
102.26(2)
(2) Unless previously authorized by the department, no fee may be charged or received for the enforcement or collection of any claim for compensation, nor may any contract therefor be enforceable where such fee, inclusive of all taxable attorney fees paid or agreed to be paid for such enforcement or collection, exceeds 20% of the amount at which such claim is compromised or of the amount awarded, adjudged or collected, except that in cases of admitted liability where there is no dispute as to amount of compensation due and in which no hearing or appeal is necessary, the fee charged shall not exceed 10% but not to exceed $100, of the amount at which such claim is compromised or of the amount awarded, adjudged or collected. The limitation as to fees shall apply to the combined charges of attorneys, solicitors, representatives and adjusters who knowingly combine their efforts toward the enforcement or collection of any compensation claim.
102.26(3)(a)(a) Except as provided in
par. (b), compensation exceeding $100 in favor of any claimant shall be made payable to and delivered directly to the claimant in person.
102.26(3)(b)1.1. The department may upon application of any interested party and subject to
sub. (2) fix the fee of the claimant's attorney or representative and provide in the award for that fee to be paid directly to the attorney or representative.
102.26(3)(b)2.
2. At the request of the claimant medical expense, witness fees and other charges associated with the claim may be ordered paid out of the amount awarded.
102.26(3)(c)
(c) Payment according to the directions of the award shall protect the employer and the employer's insurer, or the uninsured employers fund if applicable, from any claim of attorney's lien.
102.26(4)
(4) The charging or receiving of any fee in violation of this section shall be unlawful, and the attorney or other person guilty thereof shall forfeit double the amount retained by the attorney or other person, the same to be collected by the state in an action in debt, upon complaint of the department. Out of the sum recovered the court shall direct payment to the injured party of the amount of the overcharge.
102.26 Annotation
The only fee authorized to be paid to any clerk of court under sub. (1) is the fee under s. 814.61 (5), when applicable.
76 Atty. Gen. 148.
102.27
102.27
Claims and awards protected; exceptions. 102.27(1)(1) Except as provided in
sub. (2), no claim for compensation shall be assignable, but this provision shall not affect the survival thereof; nor shall any claim for compensation, or compensation awarded, or paid, be taken for the debts of the party entitled thereto.
102.27(2)(b)
(b) If a governmental unit provides public assistance under
ch. 49 to pay medical costs or living expenses related to a claim under this chapter, the employer or insurance carrier owing compensation shall reimburse that governmental unit any compensation awarded or paid if the governmental unit has given the parties to the claim written notice stating that it provided the assistance and the cost of the assistance provided. Reimbursement shall equal the lesser of either the amount of assistance the governmental unit provided or two-thirds of the amount of the award or payment remaining after deduction of attorney fees and any other fees or costs chargeable under
ch. 102. The department shall comply with this paragraph when making payments under
s. 102.81.
102.28
102.28
Preference of claims; worker's compensation insurance. 102.28(1)(1)
Preference. The whole claim for compensation for the injury or death of any employee or any award or judgment thereon, and any claim for unpaid compensation insurance premiums are entitled to preference in bankruptcy or insolvency proceedings as is given creditors' actions except as denied or limited by any law of this state or by the federal bankruptcy act, but this section shall not impair the lien of any judgment entered upon any award.
102.28(2)
(2) Required insurance; exceptions. 102.28(2)(a)(a)
Duty to insure payment for compensation. Unless exempted by the department under
par. (b) or
sub. (3), every employer, as described in
s. 102.04 (1), shall insure payment for that compensation in an insurer authorized to do business in this state. A joint venture may elect to be an employer under this chapter and obtain insurance for payment of compensation. If a joint venture that is subject to this chapter only because the joint venture elected to be an employer under this chapter is dissolved and cancels or terminates its contract for the insurance of compensation under this chapter, that joint venture is deemed to have effected withdrawal, which shall be effective on the day after the contract is canceled or terminated.
102.28(2)(b)
(b)
Exemption from duty to insure. The department may grant a written order of exemption to an employer who shows its financial ability to pay the amount of compensation, agrees to report faithfully all compensable injuries and agrees to comply with this chapter and the rules of the department. The department may condition the granting of an exemption upon the employer's furnishing of satisfactory security to guarantee payment of all claims under compensation. The department may require that bonds or other personal guarantees be enforceable against sureties in the same manner as an award may be enforced. The department may from time to time require proof of financial ability of the employer to pay compensation. Any exemption shall be void if the application for it contains a financial statement which is false in any material respect. An employer who files an application containing a false financial statement remains subject to
par. (a). The department may promulgate rules establishing an amount to be charged to an initial applicant for exemption under this paragraph and an annual amount to be charged to employers that have been exempted under this paragraph.
102.28(2)(c)
(c)
Revocation of exemption. The department, after seeking the advice of the self-insurers council, may revoke an exemption granted to an employer under
par. (b), upon giving the employer 10 days' written notice, if the department finds that the employer's financial condition is inadequate to pay its employees' claims for compensation, that the employer has received an excessive number of claims for compensation or that the employer has failed to discharge faithfully its obligations according to the agreement contained in the application for exemption. The employer may, within 10 days after receipt of the notice of revocation, request in writing a review of the revocation by the secretary or the secretary's designee and the secretary or the secretary's designee shall review the revocation within 30 days after receipt of the request for review. If the employer is aggrieved by the determination of the secretary or the secretary's designee, the employer may, within 10 days after receipt of notice of that determination, request a hearing under
s. 102.17. If the secretary or the secretary's designee determines that the employer's exemption should be revoked, the employer shall obtain insurance coverage as required under
par. (a) immediately upon receipt of notice of that determination and, notwithstanding the pendency of proceedings under
ss. 102.17 to
102.25, shall keep that coverage in force until another exemption under
par. (b) is granted.
102.28(2)(d)
(d)
Effect of insuring with unauthorized insurer. An employer who procures an exemption under
par. (b) and thereafter enters into any agreement for excess insurance coverage with an insurer not authorized to do business in this state shall report that agreement to the department immediately. The placing of such coverage shall not by itself be grounds for revocation of the exemption.
102.28(3)
(3) Provision of alternative benefits.
