102.555(7)
(7) No payment shall be made to an employee under this section unless the employee shall have worked in noisy employment for a total period of at least 90 days for the employer from whom the employee claims compensation.
102.555(8)
(8) An employer is liable for the entire occupational deafness to which his or her employment has contributed; but if previous deafness is established by a hearing test or other competent evidence, whether or not the employee was exposed to noise within the 2 months preceding such test, the employer is not liable for previous loss so established nor is the employer liable for any loss for which compensation has previously been paid or awarded.
102.555(9)
(9) Any amount paid to an employee under this section by any employer shall be credited against compensation payable by any employer to such employee for occupational deafness under
subs. (3) and
(4). No employee shall in the aggregate receive greater compensation from any or all employers for occupational deafness than that provided in this section for total occupational deafness.
102.555(10)
(10) No compensation may be paid for tinnitus unless a hearing test demonstrates a compensable hearing loss other than tinnitus. For injuries occurring on or after January 1, 1992, no compensation may be paid for tinnitus.
102.555(11)
(11) Compensation under
s. 102.66 for permanent partial disability due to occupational deafness may be paid only if the loss of hearing exceeds 20% of binaural hearing loss.
102.555 Annotation
Committee Note, 1971: Where an employer discontinues a noisy operation and transfers the employees to nonnoisy employment, they have been unable to make claim for occupational deafness until the conditions of sub. (b), (c) or (d) were met. The employee will now have the option of filing a claim at the time of transfer at the current rate of compensation with a 2-1/2% reduction for each year of age over 50 or waiting until he meets the conditions of sub. (b), (c) or (d) when he may file claim at the then-current rate of compensation with a 1/2% reduction for each year of age over 50. [Bill 371-A]
102.555 Annotation
It is a prerequisite for an award of benefits under sub. (10) that the employee must have suffered some compensable hearing loss other than tinnitus; sub. (10) does not require a compensable hearing loss in both ears or in a particular ear. General Castings Corporation v. LIRC,
152 Wis. 2d 631,
449 N.W.2d 619 (Ct. App. 1989).
102.555 Annotation
Agency interpretation and application of sub. (8) is discussed. Harnischfeger Corporation v. LIRC,
196 Wis. 2d 650,
539 N.W.2d 335 (1995).
102.56(1)(1) If an employee is so permanently disfigured as to occasion potential wage loss, the department may allow such sum as it deems just as compensation therefor, not exceeding the employee's average annual earnings as defined in
s. 102.11. In determining the potential for wage loss and the sum awarded, the department shall take into account the age, education, training and previous experience and earnings of the employee, the employee's present occupation and earnings and likelihood of future suitable occupational change. Consideration for disfigurement allowance is confined to those areas of the body that are exposed in the normal course of employment. The department shall also take into account the appearance of the disfigurement, its location, and the likelihood of its exposure in occupations for which the employee is suited.
102.56(2)
(2) Notwithstanding
sub. (1), if an employee who claims compensation under this section returns to work for the employer who employed the employee at the time of the injury at the same or a higher wage, the employee may not be compensated unless the employee shows that he or she probably has lost or will lose wages due to the disfigurement.
102.565
102.565
Toxic or hazardous exposure; medical examination; conditions of liability. 102.565(1)
(1) When an employee working subject to this chapter, as a result of exposure in the course of his or her employment over a period of time to toxic or hazardous substances or conditions, develops any clinically observable abnormality or condition which, on competent medical opinion, predisposes or renders the employ in any manner differentially susceptible to disability to such an extent that it is inadvisable for the employee to continue employment involving such exposure and the employee is discharged from or ceases to continue the employment, and suffers wage loss by reason of such discharge, or such cessation, the department may allow such sum as it deems just as compensation therefor, not exceeding $13,000. In the event a nondisabling condition may also be caused by toxic or hazardous exposure not related to employment, and the employee has a history of such exposure, compensation as provided by this section shall not be allowed nor shall any other remedy for loss of earning capacity. In case of such discharge prior to a finding by the department that it is inadvisable for the employee to continue in such employment and if it is reasonably probable that continued exposure would result in disability, the liability of the employer who so discharges the employee is primary, and the liability of the employer's insurer is secondary, under the same procedure and to the same effect as provided by
s. 102.62.
102.565(2)
(2) Upon application of any employer or employee the department may direct any employee of the employer or an employee who, in the course of his or her employment, has been exposed to toxic or hazardous substances or conditions, to submit to examination by a physician or physicians to be appointed by the department to determine whether the employee has developed any abnormality or condition under
sub. (1), and the degree thereof. The cost of the medical examination shall be borne by the person making application. The results of the examination shall be submitted by the physician to the department, which shall submit copies of the reports to the employer and employee, who shall have opportunity to rebut the reports provided request therefor is made to the department within 10 days from the mailing of the report to the parties. The department shall make its findings as to whether or not it is inadvisable for the employee to continue in his or her employment.
102.565(3)
(3) If an employee refuses to submit to the examination after direction by the commission, or any member thereof or the department or an examiner thereof, or in any way obstructs the same, the employee's right to compensation under this section shall be barred.
102.565(4)
(4) No payment shall be made to an employee under this section unless he or she shall have worked for a reasonable period of time for the employer from whom he or she claims compensation for exposing him or her to toxic or hazardous conditions.
102.565(5)
(5) Payment of a benefit under this section to an employee shall stop such employee from any further recovery whatsoever from any employer under this section.
102.565 History
History: 1977 c. 29,
195;
1979 c. 278.
102.565 Annotation
Sub. (1) requires that an employee's termination be connected to the employment that caused the susceptibility to disease. General Castings Corp. v. Winstead,
156 Wis. 2d 752,
457 N.W.2d 557 (Ct. App. 1990).
102.57
102.57
Violations of safety provisions, penalty. If injury is caused by the failure of the employer to comply with any statute or any lawful order of the department, compensation and death benefits provided in this chapter shall be increased 15% but the total increase may not exceed $15,000. Failure of an employer reasonably to enforce compliance by employees with that statute or order of the department constitutes failure by the employer to comply with that statute or order.
102.57 History
History: 1981 c. 92;
1983 a. 98.
102.57 Annotation
This section and s. 102.58 may be applicable in the same case if the negligence of both the employer and employee are causes of the employee's injury. Milwaukee Forge v. DILHR,
66 Wis. 2d 428,
225 N.W.2d 476.
102.58
102.58
Decreased compensation. If injury is caused by the failure of the employee to use safety devices which are provided in accordance with any statute or lawful order of the department and are adequately maintained, and the use of which is reasonably enforced by the employer, or if injury results from the employee's failure to obey any reasonable rule adopted and reasonably enforced by the employer for the safety of the employee and of which the employee has notice, or if injury results from the intoxication of the employee by alcohol beverages, as defined in
s. 125.02 (1), or use of a controlled substance, as defined in
s. 961.01 (4), or a controlled substance analog, as defined in
s. 961.01 (4m), the compensation and death benefit provided in this chapter shall be reduced 15% but the total reduction may not exceed $15,000.
102.58 Annotation
The burden of proof is on the employer to establish not only the fact of intoxication, but a causal connection between the condition and the injury or accident. Haller Beverage Corporation v. DILHR,
49 Wis. 2d 233,
181 N.W.2d 418.
102.58 Annotation
This section and s. 102.57 may be applicable in the same case if the negligence of both the employer and employee are causes of the employee's injury. Milwaukee Forge v. DILHR,
66 Wis. 2d 428,
225 N.W.2d 476.
102.59
102.59
Preexisting disability, indemnity. 102.59(1)
(1) If an employee has at the time of injury permanent disability which if it had resulted from such injury would have entitled him or her to indemnity for 200 weeks and, as a result of such injury, incurs further permanent disability which entitles him or her to indemnity for 200 weeks, the employee shall be paid from the funds provided in this section additional compensation equivalent to the amount which would be payable for said previous disability if it had resulted from such injury or the amount which is payable for said further disability, whichever is the lesser. If said disabilities result in permanent total disability the additional compensation shall be in such amount as will complete the payments which would have been due had said permanent total disability resulted from such injury. This additional compensation accrues from, and may not be paid to any person before, the end of the period for which compensation for permanent disability resulting from such injury is payable by the employer, and shall be subject to
s. 102.32 (6) and
(7). No compromise agreement of liability for this additional compensation may provide for any lump sum payment.
102.59(1m)
(1m) A compromise order issued under
s. 102.16 (1) may not be admitted as evidence in any action or proceeding for benefits compensable under this section.
102.59(2)
(2) In the case of the loss or of the total impairment of a hand, arm, foot, leg or eye, the employer shall pay $7,000 into the state treasury. The payment shall be made in all such cases regardless of whether the employee, the employee's dependent or personal representative commences action against a 3rd party as provided in
s. 102.29.
102.59(3)
(3) All payments received under this section shall be deposited in the fund established by
s. 102.65.
102.59 Annotation
The fund was not liable for disability benefits when an employer was liable for permanent total disability. Green Bay Soap Co. v. DILHR,
87 Wis. 2d 561,
275 N.W.2d 190 (Ct. App. 1979).
102.60
102.60
Minor illegally employed, compensation. When the injury is sustained by a minor illegally employed, compensation and death benefits shall be as follows:
102.60(1)
(1) Double the amount otherwise recoverable, if the injured employee is a minor of permit age, and at the time of the injury is employed, required, suffered or permitted to work without a written permit issued pursuant to
ch. 103, except as provided in
sub. (2).
102.60(2)
(2) Treble the amount otherwise recoverable, if the injured employee is a minor of permit age, and at the time of the injury is employed, required, suffered or permitted to work without a permit in any place of employment or at any employment in or for which the department acting under authority of
ch. 103, has adopted a written resolution providing that permits shall not be issued.
102.60(3)
(3) Treble the amount otherwise recoverable if the injured employee is a minor of permit age, and at the time of the injury is employed, required, suffered, or permitted to work at prohibited employment.
102.60(4)
(4) Treble the amount otherwise recoverable, if the injured employee is a minor under permit age and illegally employed.
102.60(5)(a)(a) A permit or certificate of age unlawfully issued by an officer specified in
ch. 103, or unlawfully altered after issuance, without fraud on the part of the employer, shall be deemed a permit within the provisions of this section.
102.60(5)(b)
(b) If the employer is misled in employing a minor illegally because of fraudulent written evidence of age presented by the minor, the increased compensation provided by this section shall not be paid to the employee, but shall be paid into the fund established by
s. 102.65.
102.60(6)
(6) If the amount recoverable under this section for temporary disability shall be less than the actual loss of wage sustained by the minor employee, then liability shall exist for such loss of wage.
102.60(7)
(7) Subsections (1) to
(6) shall not apply to employees as defined in
s. 102.07 (6) if the agency or publisher shall establish by affirmative proof that at the time of the injury the employee was not employed with the actual or constructive knowledge of such agency or publisher.
102.60(8)
(8) This section shall not apply to liability arising under
s. 102.06 unless the employer sought to be charged knew or should have known that the minor was illegally employed by the contractor or subcontractor.
102.60(9)
(9) The increased compensation or increased death benefits recoverable under
sub. (1) may not exceed $7,500. The increased compensation or increased death benefits recoverable under
subs. (2),
(3) or
(4) may not exceed $15,000.
102.61
102.61
Indemnity under rehabilitation law. 102.61(1)
(1) Subject to
sub. (1m), an employee who is entitled to receive and has received compensation under this chapter, and who is entitled to and is receiving instructions under
29 USC 701 to
797b, as administered by the state in which the employee resides or in which the employee resided at the time of becoming physically disabled, shall, in addition to other indemnity, be paid the actual and necessary expenses of travel and, if the employee receives instructions elsewhere than at the place of residence, the actual and necessary costs of maintenance, during rehabilitation, subject to the conditions and limitations specified in
sub. (1r).
102.61(1m)(a)(a) If the department has determined under
sub. (1) that an employee is eligible for vocational rehabilitation services under
29 USC 701 to
797b, but that the department cannot provide those services for the employee, the employee may select a private rehabilitation counselor certified by the department to determine whether the employee can return to suitable employment without rehabilitative training and, if that counselor determines that rehabilitative training is necessary, to develop a rehabilitative training program to restore as nearly as possible the employee to his or her preinjury earning capacity and potential.
102.61(1m)(b)
(b) Notwithstanding
s. 102.03 (4), an employee whose date of injury is before May 4, 1994, may receive private rehabilitative counseling and rehabilitative training under
par. (a).
102.61(1m)(c)
(c) The employer or insurance carrier shall pay the reasonable cost of any services provided for an employee by a private rehabilitation counselor under
par. (a) and, subject to the conditions and limitations specified in
sub. (1r) (a) to
(c) and by rule, if the private rehabilitation counselor determines that rehabilitative training is necessary, the reasonable cost of the rehabilitative training program recommended by that counselor, including tuition, fees, books and maintenance and travel expenses. Notwithstanding that the department of workforce development may authorize under
s. 102.43 (5) a rehabilitative training program that lasts longer than 80 weeks, a rehabilitative training program that lasts 80 weeks or less is presumed to be reasonable.
102.61(1m)(d)
(d) If an employee receives services from a private rehabilitation counselor under
par. (a) and later receives similar services from the department of health and family services under
sub. (1) without the prior approval of the employer or insurance carrier, the employer or insurance carrier is not liable for temporary disability benefits under
s. 102.43 (5) or for travel and maintenance expenses under
sub. (1) that exceed what the employer or insurance carrier would have been liable for under the rehabilitative training program developed by the private rehabilitation counselor.
102.61(1m)(e)
(e) Nothing in this subsection prevents an employer or insurance carrier from providing an employee with the services of a private rehabilitation counselor or with rehabilitative training under
sub. (3) before the department of health and family services makes its determination under
par. (a).
102.61(1m)(f)
(f) The department of workforce development shall promulgate rules establishing procedures and requirements for the private rehabilitation counseling and rehabilitative training process under this subsection. Those rules shall include rules specifying the procedure and requirements for certification of private rehabilitation counselors.
102.61(1r)
(1r) An employee who receives a course of instruction or other rehabilitative training under
sub. (1) or
(1m) is subject to the following conditions and limitations:
102.61(1r)(a)
(a) The employee must undertake the course of instruction within 60 days from the date when the employee has sufficiently recovered from the injury to permit so doing, or as soon thereafter as the officer or agency having charge of the instruction shall provide opportunity for the rehabilitation.
102.61(1r)(b)
(b) The employee must continue in rehabilitation training with such reasonable regularity as health and situation will permit.
102.61(1r)(c)
(c) The employee may not have expenses of travel and costs of maintenance under
sub. (1) or costs of private rehabilitation counseling and rehabilitative training under
sub. (1m) on account of training for a period in excess of 80 weeks in all, except as provided in
s. 102.43 (5).
102.61(2)
(2) The department of workforce development, the commission and the courts shall determine the rights and liabilities of the parties under this section in like manner and with like effect as that department, the commission and the courts do other issues under compensation. A determination under this subsection may include a determination based on the evidence regarding the cost or scope of the services provided by a private rehabilitation counselor under
sub. (1m) (a) or the cost or reasonableness of a rehabilitative training program developed under
sub. (1m) (a).
102.61(3)
(3) Nothing in this section prevents an employer or insurance carrier from providing an employee with the services of a private rehabilitation counselor or with rehabilitative training if the employee voluntarily accepts those services or that training.
102.61 Annotation
Because reference to the federal vocational rehabilitation law is stated as part of contingency, that eligibility for rehabilitation services under the federal law, it does not constitute unlawful delegation of legislative authority to U.S. Congress. Dane County Hospital & Home v. LIRC,
125 Wis. 2d 308,
371 N.W.2d 815 (Ct. App. 1985).
102.61 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).
102.61 Annotation
The provisions of this section encompass formalized courses of instruction only. Johnson v. LIRC,
177 Wis. 2d 736,
503 N.W.2d 1 (Ct. App. 1993).
102.62
102.62
Primary and secondary liability; unchangeable. In case of liability for the increased compensation or increased death benefits provided for by
s. 102.57, or included in
s. 102.60, the liability of the employer shall be primary and the liability of the insurance carrier shall be secondary. In case proceedings are had before the department for the recovery of such increased compensation or increased death benefits the department shall set forth in its award the amount and order of liability as herein provided. Execution shall not be issued against the insurance carrier to satisfy any judgment covering such increased compensation or increased death benefits until execution has first been issued against the employer and has been returned unsatisfied as to any part thereof. Any provision in any insurance policy undertaking to guarantee primary liability or to avoid secondary liability for such increased compensation or increased death benefits shall be void. In case the employer shall have been adjudged bankrupt, or have made an assignment for the benefit of creditors, or if the employer, other than an individual, have gone out of business or have been dissolved, or if a corporation, its charter have been forfeited or revoked, the insurer shall be liable for the payment of increased compensation and death benefits without judgment or execution against the employer, but without altering the primary liability of the employer.
102.63
102.63
Refunds by state. Whenever the department shall certify to the state treasurer that excess payment has been made under
s. 102.59 or under
s. 102.49 (5) either because of mistake or otherwise, the state treasurer shall within 5 days after receipt of such certificate draw an order against the fund in the state treasury into which such excess was paid, reimbursing such payor of such excess payment, together with interest actually earned thereon if the excess payment has been on deposit for at least 6 months.
102.63 History
History: 1981 c. 92.
102.64
102.64
Attorney general shall represent state and commission. 102.64(1)(1) Upon request of the department of administration, a representative of the department of justice shall represent the state in cases involving payment into or out of the state treasury under
s. 20.865 (1) (fm),
(kr) or
(ur) or
102.29. The department of justice, after giving notice to the department of administration, may compromise the amount of such payments but such compromises shall be subject to review by the department of workforce development. If the spouse of the deceased employee compromises his or her claim for a primary death benefit, the claim of the children of such employee under
s. 102.49 shall be compromised on the same proportional basis, subject to approval by the department. If the persons entitled to compensation on the basis of total dependency under
s. 102.51 (1) compromise their claim, payments under
s. 102.49 (5) (a) shall be compromised on the same proportional basis.
102.64(2)
(2) Upon request of the department of administration, the attorney general shall appear on behalf of the state in proceedings upon claims for compensation against the state. The department of justice shall represent the interests of the state in proceedings under
s. 102.49,
102.59 or
102.66. The department of justice may compromise claims in such proceedings, but the compromises are subject to review by the department of workforce development. Costs incurred by the department of justice in prosecuting or defending any claim for payment into or out of the work injury supplemental benefit fund under
s. 102.65, including expert witness and witness fees but not including attorney fees or attorney travel expenses for services performed under this subsection, shall be paid from the work injury supplemental benefit fund.
102.64(3)
(3) In any action to review an order or award of the commission, and upon any appeal therein to the court of appeals, the attorney general shall appear on behalf of the commission, whether any other party defendant shall be represented or not, except that in actions brought by the state the governor shall appoint an attorney to appear on behalf of the commission.
102.64 Annotation
Sub. (3) does not result in providing public counsel for a private party litigant, because nowhere does the statute make the attorney general the claimant's attorney, but expressly states that the attorney general shall appear on behalf of the department. Hunter v. DILHR,
64 Wis. 2d 97,
218 N.W.2d 314.
102.65
102.65
Work injury supplemental benefit fund. 102.65(1)
(1) The moneys payable to the state treasury under
ss. 102.47,
102.49 and
102.59, together with all accrued interest, shall constitute a fund to be known as the "Work Injury Supplemental Benefit Fund".
102.65(2)
(2) For proper administration of the moneys available in the fund the department shall by order, set aside in the state treasury suitable reserves to carry to maturity the liability for benefits under
ss. 102.44,
102.49,
102.59 and
102.66. Such moneys shall be invested by the investment board in accordance with
s. 25.14 (5).
102.65(3)
(3) If the balance in the fund on any June 30 exceeds 3 times the amount paid out of such fund during the fiscal year ending on such date, the department shall, by order, direct an appropriate proportional reduction of the payments into such fund under
ss. 102.47,
102.49 and
102.59 so that the balance in the fund will remain at 3 times the payments made in the preceding fiscal year.
102.66
102.66
Payment of certain barred claims. 102.66(1)
(1) In the event that there is an otherwise meritorious claim for occupational disease barred solely by the statute of limitations under
s. 102.17 (4), the department may in lieu of worker's compensation benefits direct payment from the work injury supplemental benefit fund under
s. 102.65 such compensation and such medical expenses as would otherwise be due, based on the date of injury to or on behalf of the injured employee. The benefits shall be supplemental to the extent of compensation liability to any disability or medical benefits payable from any group insurance policy where the premium is paid in whole or in part by any employer, or under any federal insurance or benefit program providing disability or medical benefits. Death benefits payable under any such group policy do not limit the benefits payable under this section.
102.66(2)
(2) In the case of occupational disease, appropriate benefits may be awarded from the work injury supplemental benefit fund where the status or existence of the employer or its insurance carrier cannot be determined or where there is otherwise no adequate remedy, subject to the limitations contained in
sub. (1).
102.66 History
History: 1975 c. 147;
1979 c. 278.
102.66 Annotation
This section authorizes the award of benefits for otherwise meritorious claims barred by the statute of limitations in effect at the time the claim arose. State v. DILHR,
101 Wis. 2d 396,
304 N.W.2d 758 (1981).
102.66 Annotation
Where a disabled worker could have claimed permanent total disability benefits under this section, but failed to do so before dying of causes unrelated to a compensable injury, a surviving dependent may not claim the disability benefits. State v. LIRC,
136 Wis. 2d 281,
401 N.W.2d 578 (1987).
102.75
102.75
Administrative expenses. 102.75(1)
(1) The department shall assess upon and collect from each licensed worker's compensation insurance carrier and from each employer exempted under
s. 102.28 (2) by special order or by rule, the proportion of total costs and expenses incurred by the council on worker's compensation for travel and research and by the department and the commission in the administration of this chapter for the current fiscal year plus any deficiencies in collections and anticipated costs from the previous fiscal year, that the total indemnity paid or payable under this chapter by each such carrier and exempt employer in worker's compensation cases initially closed during the preceding calendar year, other than for increased, double or treble compensation bore to the total indemnity paid in cases closed the previous calendar year under this chapter by all carriers and exempt employers other than for increased, double or treble compensation. The council on worker's compensation and the commission shall annually certify any costs and expenses for worker's compensation activities to the department at such time as the secretary requires.
