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.
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 secretary of administration that excess payment has been made under
s. 102.59 or under
s. 102.49 (5) either because of mistake or otherwise, the secretary of administration 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;
2003 a. 33.
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 (1974).
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, a traumatic injury resulting in the loss or total impairment of a hand or any part of the rest of the arm proximal to the hand or of a foot or any part of the rest of the leg proximal to the foot, any loss of vision, any permanent brain injury, or any injury causing the need for a total or partial knee or hip replacement, and the claim is 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 of 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 whose 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, a traumatic injury resulting in the loss or total impairment of a hand or any part of the rest of the arm proximal to the hand or of a foot or any part of the rest of the leg proximal to the foot, any loss of vision, any permanent brain injury, or any injury causing the need for a total or partial knee or hip replacement, appropriate benefits may be awarded from the work injury supplemental benefit fund when the status or existence of the employer or its insurance carrier cannot be determined or when there is otherwise no adequate remedy, subject to the limitations contained in
sub. (1).
102.66 Cross-reference
Cross Reference: See also s.
DWD 80.06, Wis. adm. code.
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
When 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.
102.75(2)
(2) The department shall require that payments for costs and expenses for each fiscal year shall be made on such dates as the department prescribes by each licensed worker's compensation insurance carrier and employer exempted under
s. 102.28 (2). Each such payment shall be a sum equal to a proportionate share of the annual costs and expenses assessed upon each carrier and employer as estimated by the department.
102.75(4)
(4) From the appropriation under
s. 20.445 (1) (ha), the department shall allocate the amounts that it collects in application fees from employers applying for exemption under
s. 102.28 (2) and the annual amount that it collects from employers that have been exempted under
s. 102.28 (2) to fund the activities of the department under
s. 102.28 (2) (b) and
(c).
102.75 Cross-reference
Cross Reference: See also s.
DWD 80.38, Wis. adm. code.
102.80
102.80
Uninsured employers fund. 102.80(1)
(1) There is established a separate, nonlapsible trust fund designated as the uninsured employers fund consisting of all the following:
102.80(1)(e)
(e) All moneys received by the department for the uninsured employers fund from any other source.
102.80(3)(a)(a) If the cash balance in the uninsured employers fund equals or exceeds $4,000,000, the secretary shall consult the council on worker's compensation within 45 days after that cash balance equals or exceeds $4,000,000. The secretary may file with the secretary of administration, within 15 days after consulting the council on worker's compensation, a certificate attesting that the cash balance in the uninsured employers fund equals or exceeds $4,000,000.
102.80(3)(ag)
(ag) The secretary shall monitor the cash balance in, and incurred losses to, the uninsured employers fund using generally accepted actuarial principles. If the secretary determines that the expected ultimate losses to the uninsured employers fund on known claims and on incurred, but not reported, claims exceed 85% of the cash balance in the uninsured employers fund, the secretary shall consult with the council on worker's compensation. If the secretary, after consulting with the council on worker's compensation, determines that there is a reasonable likelihood that the cash balance in the uninsured employers fund may become inadequate to fund all claims under
s. 102.81 (1), the secretary shall file with the secretary of administration a certificate attesting that the cash balance in the uninsured employer's fund is likely to become inadequate to fund all claims under
s. 102.81 (1) and specifying a date after which no new claims under
s. 102.81 (1) will be paid.
