102.29 Annotation
The "dual persona doctrine" that allows an employee to sue an employer in tort when the employer was acting in a persona distinct from its employer persona is available to a temporary employee subject to sub. (6). Melzer v. Cooper Industries, Inc.
177 Wis. 2d 609,
503 N.W.2d 291 (Ct. App. 1993).
102.29 Annotation
Third-party claims under sub. (1) include wrongful death actions; settlement proceeds are subject to allocation under sub. (1). Stolper v. Owens-Corning Fiberglass Corp.
178 Wis. 2d 747,
505 N.W.2d 157 (Ct. App. 1993).
102.29 Annotation
An insurer had no right to reimbursement from legal malpractice settlement proceeds arising from a failure to file an action for a work related injury as the employee's injury from the malpractice was the loss of a legal right not a physical injury. Smith v. Long,
178 Wis. 2d 797,
505 N.W.2d 429 (Ct. App. 1993).
102.29 Annotation
Damages for a child's loss of a parent's society and financial support are not subject to allocation under sub. (1). Cummings v. Klawitter,
179 Wis. 2d 408,
506 N.W.2d 750 (Ct. App. 1993).
102.29 Annotation
The traditional 4-prong Seaman test for determining whether a person was a "loaned employee" subject to the exclusive remedy provisions of this chapter applies to temporary employees not covered by sub. (6). Bauernfeind v. Zell,
190 Wis. 2d 701,
528 N.W.2d 1 (1995).
102.29 Annotation
Pecuniary damages recovered in a 3rd-party wrongful death action are subject to distribution under this section. Johnson v. ABC Insurance Co.
193 Wis. 2d 35,
532 N.W.2d 130 (1995).
102.29 Annotation
An insurer is entitled to reimbursement under sub. (1) from an employee's settlement with his or her employer when the employer's basis for liability is an indemnification agreement with a 3rd-party tortfeasor. Houlihan v. ABC Insurance Co.
198 Wis. 2d 133,
542 N.W.2d 178 (Ct. App. 1995).
102.29 Annotation
Sub. (5) extends the statute of limitations only when s. 893.54 is the applicable statute; it does not extend the statute of another state when it is applicable under s.893.07. That sub. (5) only applies to cases subject to the Wisconsin statute is not unconstitutional. Bell v. Employers Casualty Co.
198 Wis. 2d 347,
541 N.W.2d 824 (Ct. App. 1995).
102.29 Annotation
The Seaman loaned employee test has 3 elements but is often miscast because the Seaman court indicated that there are four "vital questions" that must be answered. The 3 elements are: (1) consent by the employee; (2) entry by the employee upon work for the special employer; and (3) power in the special employer to to control details of the work. When an employee of one employer assists the employees of another employer as a true volunteer, a loaned employee relationship does not result. Borneman v. Corwyn Transport, Ltd.
212 Wis. 2d 25,
567 N.W.2d 887 (Ct. App. 1997).
102.29 Annotation
The allocation of a settlement to various plaintiffs cannot be contested by an insurer who defaults at the hearing to approve the settlement. An insurer does not lose its right to share in the proceeds by defaulting, but it does forfeit its right to object to the application of settlement proceeds to specific claims. Herlache v. Blackhawk Collision Repair, Inc.
215 Wis. 2d 99,
572 N.W.2d 121 (Ct. App. 1997).
102.29 Annotation
In a 3rd-party action filed by an insurer under sub. (1), the insurer has the right to maintain an action for payments it has made or will make to the employee by making a claim for all of the employees' damages, including pain and suffering. Threshermens Mutual Insurance Co. v. Page,
217 Wis. 2d 451,
577 N.W.2d 335 (1998).
102.29 AnnotationThe factors listed in
SCR 20:1.5 (a) regarding reasonable attorney fees provide an appropriate assessment of reasonable attorney fees awarded as costs of collection under sub. (1). Meyer v. Michigan Mutual Insurance Co. 2000 WI App 53,
233 Wis. 2d 493,
609 N.W.2d 167.
102.29 Annotation
Problems in 3rd-party action procedure under the Wisconsin worker's compensation act. Piper. 60 MLR 91.
102.29 Annotation
Impleading a negligent employer in a third-party action when the employer has provided workman's compensation benefits. 1976 WLR 1201.
102.29 Annotation
Product liability in the workplace: The effect of workers' compensation on the rights and liabilities of 3rd parties. Weisgall. 1977 WLR 1035.
102.29 Annotation
Preoccupation with Work Defense to Contributory Negligence. Parlee. Wis. Law. May 1995.
102.29 Annotation
Worker's Compensation Act No Longer Protects Against Employment Discrimination Claims. Skinner. Wis. Law. March 1998.
102.30
102.30
Other insurance not affected; liability of insured employer. 102.30(1)(1) This chapter does not affect the organization of any mutual or other insurance company or the right of the employer to insure in mutual or other companies against such liability or against the liability for the compensation provided for by this chapter.
102.30(2)
(2) An employer may provide by mutual or other insurance, by arrangement with employees or otherwise, for the payment to those employees, their families, their dependents or their representatives, of sick, accident or death benefits in addition to the compensation provided under this chapter. Liability for compensation is not affected by any insurance, contribution or other benefit due to or received by the person entitled to that compensation.
102.30(3)
(3) Unless an employee elects to receive sick leave benefits in lieu of compensation under this chapter, if sick leave benefits are paid during the period that temporary disability benefits are payable, the employer shall restore sick leave benefits to the employee in an amount equal in value to the amount payable under this chapter. The combination of temporary disability benefits and sick leave benefits paid to the employee may not exceed the employee's weekly wage.
102.30(4)
(4) Regardless of any insurance or other contract, an employee or dependent entitled to compensation under this chapter may recover compensation directly from the employer and may enforce in the person's own name, in the manner provided in this chapter, the liability of any insurance company which insured the liability for that compensation. The appearance, whether general or special, of any such insurance carrier by agent or attorney constitutes waiver of the service of copy of application and of notice of hearing required by
s. 102.17.
102.30(5)
(5) Payment of compensation under this chapter by either the employer or the insurance company shall, to the extent thereof, bar recovery against the other of the amount so paid. As between the employer and the insurance company, payment by either the employer or the insurance company directly to the employee or the person entitled to compensation is subject to the conditions of the policy.
102.30(6)
(6) The failure of the assured to do or refrain from doing any act required by the policy is not available to the insurance carrier as a defense against the claim of the injured employee or the injured employee's dependents.
102.30(7)(a)(a) The department may order direct reimbursement out of the proceeds payable under this chapter for payments made under a nonindustrial insurance policy covering the same disability and expenses compensable under
s. 102.42 when the claimant consents or when it is established that the payments under the nonindustrial insurance policy were improper. No attorney fee is due with respect to that reimbursement.
102.30(7)(b)
(b) An insurer who issues a nonindustrial insurance policy described in
par. (a) may not intervene as a party in any proceeding under this chapter for reimbursement under
par. (a).
102.30 Annotation
A medical insurer's right to reimbursement under sub. (7) is discussed. Employers Health Insurance Co. v Tesmer,
161 Wis. 2d 733,
469 N.W.2d 203 (Ct. App. 1991).
102.31
102.31
Worker's compensation insurance; policy regulations. 102.31(1)(a)(a) Every contract for the insurance of compensation provided under this chapter or against liability therefor is subject to this chapter and provisions inconsistent with this chapter are void.
102.31(1)(b)
(b) Except as provided in
par. (c), a contract under
par. (a) shall be construed to grant full coverage of all liability of the assured under this chapter unless the department specifically consents by written order to the issuance of a contract providing divided insurance or partial insurance.
102.31(1)(c)1.1. Liability under
s. 102.35 (3) is the sole liability of the employer, notwithstanding any agreement of the parties to the contrary.
102.31(1)(c)2.
2. An intermediate agency or publisher referred to in
s. 102.07 (6) may, under its own contract of insurance, cover liability of employees as defined in
s. 102.07 (6) for an intermediate or independent news agency, if the contract of insurance of the publisher or intermediate agency is endorsed to cover those persons. If the publisher so covers, the intermediate or independent news agency need not cover liability for those persons.
102.31(1)(d)
(d) A contract procured to insure a partnership may not be construed to cover the individual liability of the members of the partnership in the course of a trade, business, profession or occupation conducted by them as individuals. A contract procured to insure an individual may not be construed to cover the liability of a partnership of which the individual is a member or to cover the liability of the individual arising as a member of any partnership.
102.31(1)(dL)
(dL) A contract procured to insure a limited liability company may not be construed to cover the individual liability of the members of the limited liability company in the course of a trade, business, profession or occupation conducted by them as individuals. A contract procured to insure an individual may not be construed to cover the liability of a limited liability company of which the individual is a member or to cover the liability of the individual arising as a member of any limited liability company.
102.31(1)(e)
(e) An insurer who provides a contract under
par. (a) shall file the contract as provided in
s. 626.35.
102.31(2)(a)(a) No party to a contract of insurance may cancel it within the contract period or terminate or not renew it upon the expiration date until a notice in writing is given to the other party fixing the proposed date of cancellation or declaring that the party intends to terminate or does not intend to renew the policy upon expiration. Except as provided in
par. (b), when an insurance company does not renew a policy upon expiration, the nonrenewal is not effective until 60 days after the insurance company has given written notice of the nonrenewal to the insured employer and the department. Cancellation or termination of a policy by an insurance company for any reason other than nonrenewal is not effective until 30 days after the insurance company has given written notice of the cancellation or termination to the insured employer and the department. Notice to the department may be given either by personal service of the notice upon the department at its office in Madison or by sending the notice by facsimile machine transmission or certified mail addressed to the department at its office in Madison. The department may provide by rule that the notice of cancellation or termination be given by certified mail or facsimile machine transmission to the Wisconsin compensation rating bureau rather than to the department. Whenever the Wisconsin compensation rating bureau receives such a notice of cancellation or termination it shall immediately notify the department of the notice of cancellation or termination.
102.31(2)(b)1.1. In the event of a court-ordered liquidation of an insurance company, a contract of insurance issued by that company terminates on the date specified in the court order.
102.31(2)(b)2.
2. Regardless of whether the notices required under
par. (a) have been given, a cancellation or termination is effective upon the effective date of replacement insurance coverage obtained by the employer or of an order exempting the employer from carrying insurance under
s. 102.28 (2).
102.31(3)
(3) The department may examine from time to time the books and records of any insurer insuring liability or compensation for an employer in this state. The department may require an insurer to designate one mailing address for use by the department and to respond to correspondence from the department within 30 days. Any insurer that refuses or fails to answer correspondence from the department or to allow the department to examine its books and records is subject to enforcement proceedings under
s. 601.64.
102.31(4)
(4) If any insurer authorized to transact worker's compensation insurance in this state fails to promptly pay claims for compensation for which it is liable or fails to make reports to the department required by
s. 102.38, the department may recommend to the commissioner of insurance, with detailed reasons, that enforcement proceedings under
s. 601.64 be invoked. The commissioner shall furnish a copy of the recommendation to the insurer and shall set a date for a hearing, at which both the insurer and the department shall be afforded an opportunity to present evidence. If after the hearing the commissioner finds that the insurer has failed to carry out its obligations under this chapter, the commissioner shall institute enforcement proceedings under
s. 601.64. If the commissioner does not so find, the commissioner shall dismiss the complaint.
102.31(5)
(5) If any employer whom the department exempted from carrying compensation insurance arbitrarily or unreasonably refuses employment to or discharges employees because of a nondisabling physical condition, the department shall revoke the exemption of that employer.
102.31(6)
(6) The department has standing to appear as a complainant and present evidence in any administrative hearing or court proceeding instituted for alleged violation of
s. 628.34 (7).
102.31(7)
(7) If the department by one or more written orders specifically consents to the issuance of one or more contracts covering only the liability incurred on a construction project and if the construction project owner designates the insurance carrier and pays for each such contract, the construction project owner shall reimburse the department for all costs incurred by the department in issuing the written orders and in ensuring minimum confusion and maximum safety on the construction project.
102.31(8)
(8) The Wisconsin compensation rating bureau shall provide the department with any information it requests relating to worker's compensation insurance coverage, including but not limited to the names of employers insured and any insured employer's address, business status, type and date of coverage, manual premium code, and policy information including numbers, cancellations, terminations, endorsements and reinstatement dates. The department may enter into contracts with the Wisconsin compensation rating bureau to share the costs of data processing and other services.
102.31 Annotation
Sub. (1) (b) [now (1) (d)] does not apply to a joint venture, and insurance written in the name of one venturer is sufficient to cover his joint liability. Insurance Company of North America v. DILHR,
45 Wis. 2d 361,
173 N.W.2d 192.
102.32
102.32
Continuing liability; guarantee settlement, gross payment. In any case in which compensation payments have extended or will extend over 6 months or more from the date of the injury (or at any time in death benefit cases), any party in interest may, in the discretion of the department, be discharged from, or compelled to guarantee, future compensation payments as follows:
102.32(1)
(1) By depositing the present value of the total unpaid compensation upon a 7% interest discount basis with a credit union, savings bank, savings and loan association, bank or trust company designated by the department; or
102.32(2)
(2) By purchasing an annuity within the limitations provided by law, in such insurance company granting annuities and licensed in this state, as may be designated by the department; or
102.32(3)
(3) By making payment in gross upon a 7% interest discount basis to be approved by the department; and
102.32(4)
(4) In cases where the time for making payments or the amounts thereof cannot be definitely determined, by furnishing a bond, or other security, satisfactory to the department for the payment of compensation as may be due or become due. The acceptance of the bond, or other security, and the form and sufficiency thereof, shall be subject to the approval of the department. If the employer or insurer is unable or fails to immediately procure the bond, then, in lieu thereof, deposit shall be made with a credit union, savings bank, savings and loan association, bank or trust company designated by the department, of the maximum amount that may reasonably become payable in these cases, to be determined by the department at amounts consistent with the extent of the injuries and the law. The bonds and deposits are to be reduced only to satisfy claims and withdrawn only after the claims which they are to guarantee are fully satisfied or liquidated under
sub. (1),
(2) or
(3); and
102.32(5)
(5) Any insured employer may, within the discretion of the department, compel the insurer to discharge, or to guarantee payment of its liabilities in any such case under this section and thereby release himself or herself from compensation liability therein, but if for any reason a bond furnished or deposit made under
sub. (4) does not fully protect, the compensation insurer or uninsured employer, as the case may be, shall still be liable to the beneficiary thereof.
102.32(6)
(6) If compensation is due for permanent disability following an injury or if death benefits are payable, payments shall be made to the employee or dependent on a monthly basis. The department may direct an advance on a payment of unaccrued compensation or death benefits if it determines that the advance payment is in the best interest of the injured employee or his or her dependents. In directing the advance, the department shall give the employer or the employer's insurer an interest credit against its liability. The credit shall be computed at 7%.
102.32(7)
(7) No lump sum settlement shall be allowed in any case of permanent total disability upon an estimated life expectancy, except upon consent of all parties, after hearing and finding by the department that the interests of the injured employee will be conserved thereby.
102.32 Annotation
The interest credit under sub. (6) was properly calculated on a per annum basis rather than a one time simple interest basis. Hamm v. LIRC,
223 Wis. 2d 183,
588 N.W.2d 358 (Ct. App. 1998).
102.33
102.33
Department forms and records; public access. 102.33(1)(1) The department shall print and furnish free to any employer or employee such blank forms as it shall deem requisite to facilitate efficient administration of this chapter; it shall keep such record books or records as it shall deem required for the proper and efficient administration of this chapter.
102.33(2)(a)(a) Except as provided in
par. (b), the records of the department related to the administration of this chapter are subject to inspection and copying under
s. 19.35 (1).
102.33(2)(b)
(b) Notwithstanding
par. (a), a record maintained by the department that reveals the identity of an employee who claims worker's compensation benefits, the nature of the employee's claimed injury, the employee's past or present medical condition, the extent of the employee's disability, the amount, type or duration of benefits paid to the employee or any financial information provided to the department by a self-insured employer or by an applicant for exemption under
s. 102.28 (2) (b) is confidential and not open to public inspection or copying under
s. 19.35 (1). The department may deny a request made under
s. 19.35 (1) or, subject to
s. 102.17 (2m) and
(2s), refuse to honor a subpoena issued by an attorney of record in a civil or criminal action or special proceeding to inspect and copy a record that is confidential under this paragraph, unless one of the following applies:
102.33(2)(b)1.
1. The requester is the employee who is the subject of the record or an attorney or authorized agent of that employee. An attorney or authorized agent of an employee who is the subject of a record shall provide a written authorization for inspection and copying from the employee if requested by the department.
102.33(2)(b)2.
2. The record that is requested contains confidential information concerning a worker's compensation claim and the requester is an insurance carrier or employer that is a party to any worker's compensation claim involving the same employee or an attorney or authorized agent of that insurance carrier or employer, except that the department is not required to do a random search of its records and may require the requester to provide the approximate date of the injury and any other relevant information that would assist the department in finding the record requested. An attorney or authorized agent of an insurance carrier or employer that is a party to an employee's worker's compensation claim shall provide a written authorization for inspection and copying from the insurance carrier or employer if requested by the department.
102.33(2)(b)3.
3. The record that is requested contains financial information provided by a self-insured employer or by an applicant for exemption under
s. 102.28 (2) (b) and the requester is the self-insured employer or applicant for exemption or an attorney or authorized agent of the self-insured employer or applicant for exemption. An attorney or authorized agent of the self-insured employer or of the applicant for exemption shall provide a written authorization for inspection and copying from the self-insured employer or applicant for exemption if requested by the department.
102.33(2)(b)4.
4. A court of competent jurisdiction in this state orders the department to release the record.
102.33(2)(b)5.
5. The requester is the subunit of the department that administers child and spousal support or a county child support agency under
s. 59.53 (5), the request is made under
s. 49.22 (2m) and the request is limited to the name and address of the employee who is the subject of the record, the name and address of the employee's employer and any financial information about that employee contained in the record.
102.33(2)(b)6.
6. The department of revenue requests the record for the purpose of locating a person, or the assets of a person, who has failed to file tax returns, who has underreported taxable income or who is a delinquent taxpayer; identifying fraudulent tax returns; or providing information for tax-related prosecutions.
102.35(1)(1) Every employer and every insurance company that fails to keep the records or to make the reports required by this chapter or that knowingly falsifies such records or makes false reports shall forfeit to the state not less than $10 nor more than $100 for each offense.
102.35(2)
(2) Any employer, or duly authorized agent thereof, who, without reasonable cause, refuses to rehire an employee injured in the course of employment, or who, because of a claim or attempt to claim compensation benefits from such employer, discriminates or threatens to discriminate against an employee as to the employee's employment, shall forfeit to the state not less than $50 nor more than $500 for each offense. No action under this subsection may be commenced except upon request of the department.
102.35(3)
(3) Any employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment, where suitable employment is available within the employee's physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employee the wages lost during the period of such refusal, not exceeding one year's wages. In determining the availability of suitable employment the continuance in business of the employer shall be considered and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall govern.
102.35 History
History: 1975 c. 147;
1977 c. 29,
195.
102.35 Annotation
An employer cannot satisfy sub. (3) by rehiring with an intent to fire at a later date. Dielectric Corporation v. LIRC,
111 Wis. 2d 270,
330 N.W.2d 606 (Ct. App. 1983).
102.35 Annotation
An employer has the burden to prove that rehiring was in good faith. West Allis School Dist. v. DILHR,
116 Wis. 2d 410,
342 N.W.2d 415 (1984).
102.35 Annotation
A one-day absence from work due to an injury triggered the rehire provision under sub. (3). Link Industries, Inc. v. LIRC,
141 Wis. 2d 551,
415 N.W.2d 574 (Ct. App. 1987).
102.35 Annotation
Standards for the determination of employer liability under sub. (3) are summarized. Universal Foods Corporation v. LIRC,
161 Wis. 2d 1,
467 N.W.2d 793 (Ct. App. 1991).
102.35 Annotation
Sub. (3) does not bar an employee from seeking arbitration under a collective bargaining agreement to determine whether termination following an injury violated the agreement. Sub. (3) relates to harm other than worker injuries and is not subject to the exclusive remedy provision of s. 102.03 (2); the "exclusive liability" language in sub. (3) does not bar lawsuits but imposes a penalty on the employer for refusal to hire. County of Lacrosse v. WERC,
182 Wis. 2d 15,
513 N.W.2d 708 (1994).
102.35 Annotation
A LIRC interpretation of sub. (3), that a violation requires an employee who is unable to return to a prior employment to express an interest in reemployment in a different capacity, was reasonable. Hill v. LIRC,
184 Wis. 2d 110,
516 N.W.2d 441 (Ct. App. 1994).
102.35 Annotation
If an employer shows that it refused to rehire an injured employee because the employee's position was eliminated to reduce costs and increase efficiency, reasonable cause has been shown under sub. (3). Ray Hutson Chevrolet, Inc. v. LIRC,
186 Wis. 2d 118,
519 N.W.2d 649 (Ct. App. 1994).
102.35 Annotation
An attendance policy that includes absences due to work-related injuries as part of the total of absences allowed before termination violates sub. (3). Great Northern Corp. v. LIRC,
189 Wis. 2d 313,
525 N.W.2d 361 (Ct. App. 1994).
102.37
102.37
Employers' records. Every employer of 3 or more persons and every employer who is subject to this chapter shall keep a record of all accidents causing death or disability of any employee while performing services growing out of and incidental to the employment. This record shall give the name, address, age and wages of the deceased or injured employee, the time and causes of the accident, the nature and extent of the injury, and any other information the department may require by general order. Reports based upon this record shall be furnished to the department at such times and in such manner as it may require by general order, upon forms approved by the department.
102.37 History
History: 1975 c. 147 s.
54;
1985 a. 83.
