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.
102.38
102.38
Records of payments; reports thereon. Every insurance company which transacts the business of compensation insurance, and every employer who is subject to this chapter but whose liability is not insured, shall keep a record of all payments made under this chapter and of the time and manner of making the payments, and shall furnish reports based upon these records to the department as it may require by general order, upon forms approved by the department.
102.39
102.39
General orders; application of statutes. The provisions of
s. 103.005 relating to the adoption, publication, modification and court review of general orders of the department shall apply to all general orders adopted pursuant to this chapter.
102.39 History
History: 1995 a. 27.
102.40
102.40
Reports not evidence in actions. Reports furnished to the department pursuant to
ss. 102.37 and
102.38 shall not be admissible as evidence in any action or proceeding arising out of the death or accident reported.
102.42
102.42
Incidental compensation. 102.42(1)
(1)
Treatment of employee. The employer shall supply such medical, surgical, chiropractic, psychological, podiatric, dental and hospital treatment, medicines, medical and surgical supplies, crutches, artificial members, appliances, and training in the use of artificial members and appliances, or, at the option of the employee, if the employer has not filed notice as provided in
sub. (4), Christian Science treatment in lieu of medical treatment, medicines and medical supplies, as may be reasonably required to cure and relieve from the effects of the injury, and to attain efficient use of artificial members and appliances, and in case of the employer's neglect or refusal seasonably to do so, or in emergency until it is practicable for the employee to give notice of injury, the employer shall be liable for the reasonable expense incurred by or on behalf of the employee in providing such treatment, medicines, supplies and training. Where the employer has knowledge of the injury and the necessity for treatment, the employer's failure to tender the necessary treatment, medicines, supplies and training constitutes such neglect or refusal. The employer shall also be liable for reasonable expense incurred by the employee for necessary treatment to cure and relieve the employee from the effects of occupational disease prior to the time that the employee knew or should have known the nature of his or her disability and its relation to employment, and as to such treatment
subs. (2) and
(3) shall not apply. The obligation to furnish such treatment and appliances shall continue as required to prevent further deterioration in the condition of the employee or to maintain the existing status of such condition whether or not healing is completed.
102.42(2)(a)(a) Where the employer has notice of an injury and its relationship to the employment the employer shall offer to the injured employee his or her choice of any physician, chiropractor, psychologist, dentist or podiatrist licensed to practice and practicing in this state for treatment of the injury. By mutual agreement, the employee may have the choice of any qualified practitioner not licensed in this state. In case of emergency, the employer may arrange for treatment without tendering a choice. After the emergency has passed the employee shall be given his or her choice of attending practitioner at the earliest opportunity. The employee has the right to a 2nd choice of attending practitioner on notice to the employer or its insurance carrier. Any further choice shall be by mutual agreement. Partners and clinics are deemed to be one practitioner. Treatment by a practitioner on referral from another practitioner is deemed to be treatment by one practitioner.
102.42(2)(b)
(b) The employer is not liable for the expense of unreasonable travel to obtain treatment.
102.42(3)
(3) Practitioner choice unrestricted. If the employer fails to tender treatment as provided in
sub. (1) or choice of an attending practitioner as provided in
sub. (2), the employee's right to choose the attending practitioner is not restricted and the employer is liable for the reasonable and necessary expense thereof.
102.42(4)
(4) Christian Science. Any employer may elect not to be subject to the provisions for Christian Science treatment provided for in this section by filing written notice of such election with the department.
102.42(5)
(5) Artificial members. Liability for repair and replacement of prosthetic devices is limited to the effects of normal wear and tear. Artificial members furnished at the end of the healing period for cosmetic purposes only need not be duplicated.
102.42(6)
(6) Treatment rejected by employee. Unless the employee shall have elected Christian Science treatment in lieu of medical, surgical, dental or hospital treatment, no compensation shall be payable for the death or disability of an employee, if the death be caused, or insofar as the disability may be aggravated, caused or continued by an unreasonable refusal or neglect to submit to or follow any competent and reasonable medical, surgical or dental treatment or, in the case of tuberculosis, by refusal or neglect to submit to or follow hospital or medical treatment when found by the department to be necessary. The right to compensation accruing during a period of refusal or neglect to submit to or follow hospital or medical treatment when found by the department to be necessary in the case of tuberculosis shall be barred, irrespective of whether disability was aggravated, caused or continued thereby.
102.42(8)
(8) Award to state employee. Whenever an award is made by the department in behalf of a state employee, the department of workforce development shall file duplicate copies of the award with the department of administration. Upon receipt of the copies of the award, the department of administration shall promptly issue a voucher in payment of the award from the proper appropriation under
s. 20.865 (1) (fm),
(kr) or
(ur), and shall transmit one copy of the voucher and the award to the officer, department or agency by whom the affected employee is employed.
102.42(9)
(9) Rehabilitation; physical and vocational. 102.42(9)(a)(a) One of the primary purposes of this chapter is restoration of an injured employee to gainful employment. To this end, the department shall employ a specialist in physical, medical and vocational rehabilitation.
102.42(9)(b)
(b) Such specialist shall study the problems of rehabilitation, both physical and vocational and shall refer suitable cases to the department for vocational evaluation and training. The specialist shall investigate and maintain a directory of such rehabilitation facilities, private and public, as are capable of rendering competent rehabilitation service to seriously injured employees.
102.42(9)(c)
(c) The specialist shall review and evaluate reported injuries for potential cases in which seriously injured employees may be in need of physical and medical rehabilitation and may confer with the injured employee, employer, insurance carrier or attending practitioner regarding treatment and rehabilitation.
102.42 Annotation
The requirement that medical treatment be supplied during the healing period, defined as prior to the time the condition becomes stationary, is not determined by reference to the percentage of disability, but by a determination that the injury has stabilized. Custodial care, as distinguished from nursing services, is not compensable. Mednicoff v. DILHR,
54 Wis. 2d 7,
194 N.W.2d 670.
102.42 Annotation
In appropriate cases, the department is warranted in, at the least, postponing a determination of permanent disability for a reasonable period of time until after a claimant completes a competent and reasonable course of physical therapy or vocational rehabilitation as an essential part of the treatment required for full recovery and minimization of damages. Transamerica Insurance Co. v. DILHR,
54 Wis. 2d 272,
195 N.W.2d 656.
102.42 Annotation
An employee who wishes to consult a second doctor on the panel after the first says no further treatment is needed may do so without notice or consent, and if the second doctor prescribes an operation that increases the amount of disability, the employer is liable. Spencer v. DILHR,
55 Wis. 2d 525,
200 N.W.2d 611.
102.42 Annotation
Sub. (7) [now (6)] relieves an employer of liability when the employee refuses treatment provided by the employer, as required under sub. (1), an employee is not required to seek treatment from someone other than the employer. Klein Industrial Salvage v. DILHR,
80 Wis. 2d 457,
259 N.W.2d 124.
102.42 Annotation
Under ss. 102.42 (9) (a), 102.43 (5) and 102.61, the department may extend temporary disability, travel expense, and maintenance costs beyond 40 weeks if additional training is warranted. Beloit Corporation v. State,
152 Wis. 2d 579,
449 N.W.2d 299 (Ct. App. 1989).
102.42 Annotation
Sub. (1) requires an employer to pay medical expenses even after a final order has been issued. Linsey v. LIRC,
171 Wis. 2d 499,
493 N.W.2d 14 (1992).
102.42 Annotation
Sub. (2) (a) does not require employer consent to out-of-state health care expenses that result from referral by an in-state practitioner selected in accordance with the statute. UFE Inc. v. LIRC,
201 Wis. 2d 274,
548 N.W.2d 57 (1996).
102.42 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).
102.42 Annotation
Under sub. (2) an employee can seek reimbursement for expenses related to 2 practitioners regardless of whether they are the first 2 practitioners whom the employee has seen. Hermax Carpet Marts v. LIRC,
220 Wis. 2d 611,
583 N.W.2d 662 (Ct. App. 1998).
102.42 Annotation
Section 102.01 (2) (g) sets the date of injury of an occupational disease and s. 102.01 (1) provides that medical expenses incurred before an employee knows of the work-related injury are compensable. Read together, medical expenses in occupational disease cases are not compensable until the date of injury, but once the date is established all expenses associated with the disease, even if incurred before the date of injury, are compensable. United Wisconsin Insurance Co. v. LIRC,
229 Wis. 2d 416,
600 N.W.2d 186 (Ct. App. 1999).
102.42 Annotation
Continuing Payments for Medical Expenses in Worker's Compensation Proceedings. Carnell & Woog. Wis. Law. Nov. 1993.
102.43
102.43
Weekly compensation schedule. If the injury causes disability, an indemnity shall be due as wages commencing the 4th calendar day from the commencement of the day the scheduled work shift began, exclusive of Sundays only, excepting where the employee works on Sunday, after the employee leaves work as the result of the injury, and shall be payable weekly thereafter, during such disability. If the disability exists after 7 calendar days from the date the employee leaves work as a result of the injury and only if it so exists, indemnity shall also be due and payable for the first 3 calendar days, exclusive of Sundays only, excepting where the employee works on Sunday. Said weekly indemnity shall be as follows:
102.43(1)
(1) If the injury causes total disability, two-thirds of the average weekly earnings during such disability.
102.43(2)
(2) If the injury causes partial disability, during the partial disability, such proportion of the weekly indemnity rate for total disability as the actual wage loss of the injured employee bears to the injured employee's average weekly wage at the time of the injury.
102.43(3)
(3) If the disability caused by the injury is at times total and at times partial, the weekly indemnity during each total or partial disability shall be in accordance with
subs. (1) and
(2), respectively.
102.43(4)
(4) If the disability period involves a fractional week, indemnity shall be paid for each day of such week, except Sundays only, at the rate of one-sixth of the weekly indemnity.
102.43(5)
(5) Temporary disability, during which compensation shall be payable for loss of earnings, shall include such period as may be reasonably required for training in the use of artificial members and appliances, and shall include such period as the employee may be receiving instruction pursuant to
s. 102.61 (1) or
(1m). Temporary disability on account of receiving instruction of the latter nature, and not otherwise resulting from the injury, shall not be in excess of 80 weeks. Such 80-week limitation does not apply to temporary disability benefits under this section, travel or maintenance expense under
s. 102.61 (1) or private rehabilitation counseling or rehabilitative training costs under
s. 102.61 (1m) if the department determines that additional training is warranted. The necessity for additional training as authorized by the department for any employee shall be subject to periodic review and reevaluation.
102.43(6)(a)(a) Except as provided in
par. (b), no sick leave benefits provided in connection with other employment or wages received from other employment held by the employee when the injury occurred may be considered in computing actual wage loss from the employer in whose employ the employee sustained injury.
102.43(6)(b)
(b) Wages received from other employment held by the employee when the injury occurred shall be considered in computing actual wage loss from the employer in whose employ the employee sustained the injury, if the employee's weekly temporary disability benefits are calculated under
s. 102.11 (1) (a).
102.43(6)(c)
(c) Wages received from the employer in whose employ the employee sustained injury or from other employment obtained after the injury occurred shall be considered in computing benefits for temporary disability.
102.43(7)(a)(a) If an employee has a renewed period of temporary disability commencing more than 2 years after the date of injury and, except as provided in
par. (b), the employee returned to work for at least 10 days preceding the renewed period of disability, payment of compensation for the new period of disability shall be made as provided in
par. (c).
102.43(7)(b)
(b) An employee need not return to work at least 10 days preceding a renewed period of temporary disability to obtain benefits under
sub. (5) for rehabilitative training commenced more than 2 years after the date of injury. Benefits for rehabilitative training shall be made as provided in
par. (c).
102.43(7)(c)1.1. If the employee was entitled to maximum weekly benefits at the time of injury, payment for the renewed temporary disability or the rehabilitative training shall be at the maximum rate in effect at the commencement of the new period.
102.43(7)(c)2.
2. If the employee was entitled to less than the maximum rate, the employee shall receive the same proportion of the maximum which is in effect at the time of the commencement of the renewed period or the rehabilitative training as the employee's actual rate at the time of injury bore to the maximum rate in effect at that time.
102.43(7)(c)3.
3. For an employee who is receiving rehabilitative training, a holiday break, semester break or other, similar scheduled interruption in a course of instruction does not commence a new period of rehabilitative training under this paragraph.
102.43(8)
(8) During a compulsory vacation period scheduled in accordance with a collective bargaining agreement:
102.43(8)(a)
(a) Regardless of whether the employee's healing period has ended, no employee at work immediately before the compulsory vacation period may receive a temporary total disability benefit for injury sustained while engaged in employment for that employer.
102.43(8)(b)
(b) An employee receiving temporary partial disability benefits immediately before the compulsory vacation period for injury sustained while engaged in employment for that employer shall continue to receive those benefits.
102.43 Annotation
Committee Note, 1971: Employees who have two jobs who have been injured at one of them have in some cases been made totally disabled for work at either job. Sick leave benefits from the other employer has suspended eligibility for compensation or has reduced compensation even though the employee suffered a wage loss. This is considered to be inequitable. Sick leave benefits from the employer where injury occurred are to be considered, however, in determining eligibility for compensation from such employer. [Bill 371-A]
102.43 Annotation
Under ss. 102.42 (9) (a), 102.43 (5) and 102.61, the department may extend temporary disability, travel expense, and maintenance costs beyond 40 weeks if additional training is warranted. Beloit Corp. v. State,
152 Wis. 2d 579,
449 N.W.2d 299 (Ct. App. 1989).
102.43 Annotation
The phrase "if the injury causes disability" is interpreted in light of the "as is" rule that an employee's susceptibility to injury due to a pre-existing condition does not relieve the employer from liability. ITW Deltar v. LIRC,
226 Wis. 2d 11,
593 N.W.2d 908 (Ct. App. 1999).
102.43 Annotation
The "as is" rule applies to delays in treatment of a work-related injury caused by a pre-existing condition. It was reasonable to find that a woman was entitled to benefits for the period she was unable to undergo surgery to repair the work-related injury due to the threat that anesthesia would cause to her pre-existing pregnancy. ITW Deltar v. LIRC,
226 Wis. 2d 11,
593 N.W.2d 908 (Ct. App. 1999).
102.44
102.44
Maximum limitations. Section 102.43 shall be subject to the following limitations:
102.44(1)
(1) Notwithstanding any other provision of this chapter, every employee who is receiving compensation under this chapter for permanent total disability or continuous temporary total disability more than 24 months after the date of injury resulting from an injury which occurred prior to January 1, 1976, shall receive supplemental benefits which shall be payable in the first instance by the employer or the employer's insurance carrier, or in the case of benefits payable to an employee under
s. 102.66, shall be paid by the department out of the fund created under
s. 102.65. These supplemental benefits shall be paid only for weeks of disability occurring after January 1, 1978, and shall continue during the period of such total disability subsequent to that date.
102.44(1)(a)
(a) If such employee is receiving the maximum weekly benefits in effect at the time of the injury, the supplemental benefit shall be an amount which, when added to the regular benefit established for the case, shall equal $150.
102.44(1)(b)
(b) If such employee is receiving a weekly benefit which is less than the maximum benefit which was in effect on the date of the injury, the supplemental benefit shall be an amount sufficient to bring the total weekly benefits to the same proportion of $150 as the employee's weekly benefit bears to the maximum in effect on the date of injury.
