102.55
102.55
Application of schedules. 102.55(1)
(1) Whenever amputation of a member is made between any 2 joints mentioned in the schedule in
s. 102.52 the determined loss and resultant indemnity therefor shall bear such relation to the loss and indemnity applicable in case of amputation at the joint next nearer the body as such injury bears to one of amputation at the joint nearer the body.
102.55(2)
(2) For the purposes of this schedule permanent and complete paralysis of any member shall be deemed equivalent to the loss thereof.
102.55(3)
(3) For all other injuries to the members of the body or its faculties which are specified in this schedule resulting in permanent disability, though the member be not actually severed or the faculty totally lost, compensation shall bear such relation to that named in this schedule as disabilities bear to the disabilities named in this schedule. Indemnity in such cases shall be determined by allowing weekly indemnity during the healing period resulting from the injury and the percentage of permanent disability resulting thereafter as found by the department.
102.555
102.555
Occupational deafness; definitions. 102.555(1)(1) "Occupational deafness" means permanent partial or permanent total loss of hearing of one or both ears due to prolonged exposure to noise in employment. "Noise" means sound capable of producing occupational deafness. "Noisy employment" means employment in the performance of which an employee is subjected to noise.
102.555(2)
(2) No benefits shall be payable for temporary total or temporary partial disability under this chapter for loss of hearing due to prolonged exposure to noise.
102.555(3)
(3) An employee who because of occupational deafness is transferred by his or her employer to other noisy employment and thereby sustains actual wage loss shall be compensated at the rate provided in
s. 102.43 (2), not exceeding $7,000 in the aggregate from all employers. "Time of injury", "occurrence of injury", and "date of injury" in such case mean the date of wage loss.
102.555(4)
(4) Subject to the limitations provided in this section, there shall be payable for total occupational deafness of one ear, 36 weeks of compensation; for total occupational deafness of both ears, 216 weeks of compensation; and for partial occupational deafness, compensation shall bear such relation to that named in this section as disabilities bear to the maximum disabilities provided in this section. In cases covered by this subsection, "time of injury", "occurrence of injury", or "date of injury" shall, at the option of the employee, be the date of occurrence of any of the following events to an employee:
102.555(4)(a)
(a) Transfer to nonnoisy employment by an employer whose employment has caused occupational deafness;
102.555(4)(b)
(b) The last day actually worked before retiring, regardless of vacation pay or time, sick leave or any other benefit to which the employee is entitled;
102.555(4)(c)
(c) Termination of the employer-employee relationship; or
102.555(4)(d)
(d) Layoff, provided the layoff is complete and continuous for 6 months.
102.555(5)
(5) No claim under
sub. (4) may be filed until 7 consecutive days of removal from noisy employment after the time of injury except that under
sub. (4) (d) the 7 consecutive days' period may commence within the last 2 months of layoff.
102.555(6)
(6) The limitation provisions in this chapter shall control claims arising under this section. Such provisions shall run from the first date upon which claim may be filed, or from the date of subsequent death, provided that no claim shall accrue to any dependent unless an award has been issued or hearing tests have been conducted by a competent medical specialist after the employee has been removed from the noisy environment for a period of 2 months.
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 Cross-reference
Cross Reference: See also s.
DWD 80.25, Wis. adm. code.
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).
102.56(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, rule, or 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 any statute, rule, or order of the department constitutes failure by the employer to comply with that statute, rule, or order.
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 (1975).
102.58
102.58
Decreased compensation. If injury is caused by the failure of the employee to use safety devices that are provided in accordance with any statute, rule, or order of the department and that are adequately maintained, and the use of which is reasonably enforced by the employer, 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 also 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 (1970).
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 (1975).
102.58 Annotation
Whether a traveling employee's multiple drinks at a tavern was a deviation was irrelevant when the employee was injured while engaged in a later act reasonably necessary to living. Under this section, intoxication does not defeat a worker's compensation claim but only decreases the benefits. Heritage Mutual Insurance Co. v. Larsen, 2001 WI 30,
242 Wis. 2d 47,
624 N.W.2d 129.
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),
(6m), 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 $10,000 into the state treasury. The payment shall be made in all such cases regardless of whether the employee or 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 Cross-reference
Cross Reference: See also s.
DWD 80.68, Wis. adm. code.
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
subs. (1g) and
(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(1g)(a)(a) In this subsection, "suitable employment" means employment that is within an employee's permanent work restrictions, that the employee has the necessary physical capacity, knowledge, transferable skills, and ability to perform, and that pays not less than 90% of the employee's preinjury average weekly wage, except that employment that pays 90% or more of the employee's preinjury average weekly wage does not constitute suitable employment if any of the following apply:
102.61(1g)(a)1.
1. The employee's education, training, or employment experience demonstrates that the employee is on a career or vocational path, the employee's average weekly wage on the date of injury does not reflect the average weekly wage that the employee reasonably could have been expected to earn in the demonstrated career or vocational path, and the permanent work restrictions caused by the injury impede the employee's ability to pursue the demonstrated career or vocational path.
102.61(1g)(a)2.
2. The employee was performing part-time employment at the time of the injury, the employee's average weekly wage for compensation purposes is calculated under
s. 102.11 (1) (f) 1. or
2., and that average weekly wage exceeds the employee's gross average weekly wage for the part-time employment.
102.61(1g)(b)
(b) If an employer offers an employee suitable employment as provided in
par. (c), the employer or the employer's insurance carrier is not liable for temporary disability benefits under
s. 102.43 (5) or for travel and maintenance expenses under
sub. (1). Ineligibility for compensation under this paragraph does not preclude an employee from receiving vocational rehabilitation services under
29 USC 701 to
797b if the department determines that the employee is eligible to receive those services.
102.61(1g)(c)
(c) On receiving notice that he or she is eligible to receive vocational rehabilitation services under
29 USC 701 to
797a, an employee shall provide the employer with a written report from a physician, chiropractor, psychologist, or podiatrist stating the employee's permanent work restrictions. Within 60 days after receiving that report, the employer shall provide to the employee in writing an offer of suitable employment, a statement that the employer has no suitable employment for the employee, or a report from a physician, chiropractor, psychologist, or podiatrist showing that the permanent work restrictions provided by the employee's practitioner are in dispute and documentation showing that the difference in work restrictions would materially affect either the employer's ability to provide suitable employment or a vocational rehabilitation counselor's ability to recommend a rehabilitative training program. If the employer and employee cannot resolve the dispute within 30 days after the employee receives the employer's report and documentation, the employer or employee may request a hearing before the department to determine the employee's work restrictions. Within 30 days after the department determines the employee's work restrictions, the employer shall provide to the employee in writing an offer of suitable employment or a statement that the employer has no suitable employment for the employee.
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 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 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 makes its determination under
par. (a).
102.61(1m)(f)
(f) The department 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, 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 the department, the commission, and the courts determine other issues under this chapter. 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 Cross-reference
Cross Reference: See also s.
DWD 80.49, Wis. adm. code.
