102.29 Annotation
A parent corporation can be liable to an employee of a subsidiary as a 3rd-party tort-feasor when the parent negligently undertakes to render services to the subsidiary that the parent should have recognized were necessary for the protection of the subsidiary's employees. Miller v. Bristol-Myers,
168 Wis. 2d 863,
485 N.W.2d 31 (1992).
102.29 Annotation
Rights under sub. (1) are not a type of subrogation, but provide a direct cause of action. Campion v. Montgomery Elevator Co.
172 Wis. 2d 405,
493 N.W.2d 244 (Ct. App. 1992).
102.29 Annotation
An insurer must be paid under sub. (1) in a 3rd-party settlement for an injury that it concluded was noncompensable but was consequential to the original injury. Nelson v. Rothering,
174 Wis. 2d 296,
496 N.W.2d 87 (1993).
102.29 Annotation
A worker's compensation insurer cannot bring a 3rd-party action against an insurer who paid a claimant under uninsured motorist coverage; uninsured motorist coverage is contractual and this section only applies to tort actions. Berna-Mork v. Jones,
174 Wis. 2d 645,
498 N.W.2d 221 (1993).
102.29 Annotation
Sub. (1) does not require an interested party receiving notice of another's 3rd-party claim to give a reciprocal notice to the party making the claim in order to share in the settlement proceeds. Elliot v. Employers Mut. Cas. Co.
176 Wis. 2d 410,
500 N.W.2d 397 (Ct. App. 1993).
102.29 Annotation
The "dual persona doctrine" that allows an employee to sue an employer in tort when the employer was acting in a persona distinct from its employer persona is available to a temporary employee subject to sub. (6). Melzer v. Cooper Industries, Inc.
177 Wis. 2d 609,
503 N.W.2d 291 (Ct. App. 1993).
102.29 Annotation
Third-party claims under sub. (1) include wrongful death actions; settlement proceeds are subject to allocation under sub. (1). Stolper v. Owens-Corning Fiberglass Corp.
178 Wis. 2d 747,
505 N.W.2d 157 (Ct. App. 1993).
102.29 Annotation
An insurer had no right to reimbursement from legal malpractice settlement proceeds arising from a failure to file an action for a work related injury. The employee's injury from the malpractice was the loss of a legal right not a physical injury. Smith v. Long,
178 Wis. 2d 797,
505 N.W.2d 429 (Ct. App. 1993).
102.29 Annotation
Damages for a child's loss of a parent's society and financial support are not subject to allocation under sub. (1). Cummings v. Klawitter,
179 Wis. 2d 408,
506 N.W.2d 750 (Ct. App. 1993).
102.29 Annotation
The traditional 4-prong Seaman test for determining whether a person was a "loaned employee" subject to the exclusive remedy provisions of this chapter applies to temporary employees not covered by sub. (6). Bauernfeind v. Zell,
190 Wis. 2d 701,
528 N.W.2d 1 (1995).
102.29 Annotation
Pecuniary damages recovered in a 3rd-party wrongful death action are subject to distribution under this section. Johnson v. ABC Insurance Co.
193 Wis. 2d 35,
532 N.W.2d 130 (1995).
102.29 Annotation
An insurer is entitled to reimbursement under sub. (1) from an employee's settlement with his or her employer when the employer's basis for liability is an indemnification agreement with a 3rd-party tort-feasor. Houlihan v. ABC Insurance Co.
198 Wis. 2d 133,
542 N.W.2d 178 (Ct. App. 1995),
95-0662.
102.29 Annotation
Sub. (5) extends the statute of limitations only when s. 893.54 is the applicable statute; it does not extend the statute of another state when it is applicable under s. 893.07. That sub. (5) only applies to cases subject to the Wisconsin statute is not unconstitutional. Bell v. Employers Casualty Co.
198 Wis. 2d 347,
541 N.W.2d 824 (Ct. App. 1995),
95-0301.
102.29 Annotation
The Seaman loaned employee test has 3 elements but is often miscast because the Seaman court indicated that there are four "vital questions" that must be answered. The 3 elements are: 1) consent by the employee; 2) entry by the employee upon work for the special employer; and 3) power in the special employer to control details of the work. When an employee of one employer assists the employees of another employer as a true volunteer, a loaned employee relationship does not result. Borneman v. Corwyn Transport, Ltd.
212 Wis. 2d 25,
567 N.W.2d 887 (Ct. App. 1997),
96-2511.
102.29 Annotation
The allocation of a settlement to various plaintiffs cannot be contested by an insurer who defaults at the hearing to approve the settlement. An insurer does not lose its right to share in the proceeds by defaulting, but it does forfeit its right to object to the application of settlement proceeds to specific claims. Herlache v. Blackhawk Collision Repair, Inc.
215 Wis. 2d 99,
572 N.W.2d 121 (Ct. App. 1997),
97-0760.
102.29 Annotation
In a 3rd-party action filed by an insurer under sub. (1), the insurer has the right to maintain an action for payments it has made or will make to the employee by making a claim for all of the employees' damages, including pain and suffering. Threshermens Mutual Insurance Co. v. Page,
217 Wis. 2d 451,
577 N.W.2d 335 (1998),
95-2942.
102.29 Annotation
A variety of factors indicated that a party's participation in an action constituted "pressing" a claim under this section. Zentgraf v. The Hanover Insurance Co. 2002 WI App 13,
250 Wis. 2d 281,
640 N.W.2d 171,
01-0323.
102.29 Annotation
Under the "dual persona" doctrine, the employer's second role must be so unrelated to its role as an employer that it constitutes a separate legal person. St. Paul Fire & Marine Insurance Co. v. Keltgen, 2003 WI App 53,
260 Wis. 2d 523,
659 N.W.2d 906,
02-1249.
102.29 Annotation
A "temporary help agency" requires: 1) an employer who places its employee with a 2nd employer, 2) the 2nd employer controls the employee's work activities, and 3) the 2nd employer compensates the first employer for the employee's services. Placement turns not on the physical proximity of the employee to an employer, but upon the purpose of the employee's work. It is a matter of whose work the employee is performing, not where the work is being performed. Control requires some evidence of compulsion or specific direction concerning the employee's daily activities. Peronto v. Case Corporation, 2005 WI App 32,
278 Wis. 2d 800;
693 N.W.2d 133,
04-0846.
102.29 Annotation
Any activities that the attorney takes to bring the claim to court on behalf of his or her client, as enumerated in Zentgraf, constitute a cost of collection amenable to recovery under sub. (1). Sub. (1) does not require a worker's compensation attorney to demonstrate that his or her activities substantially contributed to obtaining recovery from the third party, or that the activities were taken on behalf of the employee, in order to join in the pressing of a claim. Anderson v. MSI Preferred Insurance Company, 2005 WI 62,
281 Wis. 2d 66,
697 N.W.2d 73,
03-1880.
102.29 Annotation
The deduction for costs of collection under sub. (1) must be reasonable. The circuit court must consider all of the circumstances to determine whether a contingency fee figure is reasonable and look to the factors in
SCR 20:1.5(a) that help determine the reasonableness of an attorney's fee. For hourly attorney fees the court must follow the lodestar approach under which the circuit court must first multiply the reasonable hours expended by a reasonable rate then make adjustments using the
SCR 20:1.5(a) factors. The sum of all the attorneys' reasonable fees and costs may, but need not, equal a reasonable cost of collection. The court must evaluate the total cost of collection and determine whether that sum is reasonable, in light of, among other things, the recovery. Anderson v. MSI Preferred Insurance Company, 2005 WI 62,
281 Wis. 2d 66,
697 N.W.2d 73,
03-1880.
102.29 Annotation
The pro rata distribution formula under Brewer,
142 Wis. 2d 864, applies whenever the insurance proceeds are insufficient to satisfy all claims regardless of the reason for that insufficiency, including a settlement by the parties. Allocating a disproportionate amount of the total settlement to claims that are exempt from sub. (1) circumvents legislative intent. The Brewer formula prevents the parties from using settlement as an end-run around the purposes of the worker's compensation scheme. Green v. Advance Finishing Technology, Inc. 2005 WI App 70,
280 Wis. 2d 743,
695 N.W.2d 856,
04-0877.
102.29 Annotation
Problems in 3rd-party action procedure under the Wisconsin worker's compensation act. Piper. 60 MLR 91.
102.29 Annotation
Impleading a negligent employer in a third-party action when the employer has provided workman's compensation benefits. 1976 WLR 1201.
102.29 Annotation
Product liability in the workplace: The effect of workers' compensation on the rights and liabilities of 3rd parties. Weisgall. 1977 WLR 1035.
102.29 Annotation
Preoccupation with Work Defense to Contributory Negligence. Parlee. Wis. Law. May 1995.
102.29 Annotation
Worker's Compensation Act No Longer Protects Against Employment Discrimination Claims. Skinner. Wis. Law. March 1998.
102.30
102.30
Other insurance not affected; liability of insured employer. 102.30(1)(1) This chapter does not affect the organization of any mutual or other insurance company or the right of the employer to insure in mutual or other companies against such liability or against the liability for the compensation provided for by this chapter.
102.30(2)
(2) An employer may provide by mutual or other insurance, by arrangement with employees or otherwise, for the payment to those employees, their families, their dependents or their representatives, of sick, accident or death benefits in addition to the compensation provided under this chapter. Liability for compensation is not affected by any insurance, contribution or other benefit due to or received by the person entitled to that compensation.
102.30(3)
(3) Unless an employee elects to receive sick leave benefits in lieu of compensation under this chapter, if sick leave benefits are paid during the period that temporary disability benefits are payable, the employer shall restore sick leave benefits to the employee in an amount equal in value to the amount payable under this chapter. The combination of temporary disability benefits and sick leave benefits paid to the employee may not exceed the employee's weekly wage.
102.30(4)
(4) Regardless of any insurance or other contract, an employee or dependent entitled to compensation under this chapter may recover compensation directly from the employer and may enforce in the person's own name, in the manner provided in this chapter, the liability of any insurance company which insured the liability for that compensation. The appearance, whether general or special, of any such insurance carrier by agent or attorney constitutes waiver of the service of copy of application and of notice of hearing required by
s. 102.17.
102.30(5)
(5) Payment of compensation under this chapter by either the employer or the insurance company shall, to the extent thereof, bar recovery against the other of the amount so paid. As between the employer and the insurance company, payment by either the employer or the insurance company directly to the employee or the person entitled to compensation is subject to the conditions of the policy.
102.30(6)
(6) The failure of the assured to do or refrain from doing any act required by the policy is not available to the insurance carrier as a defense against the claim of the injured employee or the injured employee's dependents.
102.30(7)(a)(a) The department may order direct reimbursement out of the proceeds payable under this chapter for payments made under a nonindustrial insurance policy covering the same disability and expenses compensable under
s. 102.42 when the claimant consents or when it is established that the payments under the nonindustrial insurance policy were improper. No attorney fee is due with respect to that reimbursement.
102.30(7)(b)
(b) An insurer who issues a nonindustrial insurance policy described in
par. (a) may not intervene as a party in any proceeding under this chapter for reimbursement under
par. (a).
102.30 Annotation
The prohibition of intervention by nonindustrial insurers under sub. (7) (b) is constitutional. An insurer is not denied a remedy for amounts wrongfully paid to its insured. It may bring a direct action the insured. Employers Health Insurance Co. v Tesmer,
161 Wis. 2d 733,
469 N.W.2d 203 (Ct. App. 1991).
102.30 Annotation
Although sub. (7) (a), read in isolation, authorizes the reimbursement of a subrogated insurer, when an insurer becomes subrogated by paying medical expenses arising from injuries that are compensable under this chapter, and the employer's worker's compensation insurance carrier is in liquidation, s. 646.31 (11) precludes the commission from ordering the employer to reimburse the subrogated insurer for those expenses. Wisconsin Insurance Security Fund v. Labor and Industry Review Commission, 2005 WI App 242,
288 Wis. 2d 206,
707 N.W.2d 293,
04-2157.
102.31
102.31
Worker's compensation insurance; policy regulations. 102.31(1)(a)(a) Every contract for the insurance of compensation provided under this chapter or against liability therefor is subject to this chapter and provisions inconsistent with this chapter are void.
102.31(1)(b)
(b) Except as provided in
par. (c), a contract under
par. (a) shall be construed to grant full coverage of all liability of the assured under this chapter unless the department specifically consents by written order to the issuance of a contract providing divided insurance or partial insurance.
102.31(1)(c)1.1. Liability under
s. 102.35 (3) is the sole liability of the employer, notwithstanding any agreement of the parties to the contrary.
102.31(1)(c)2.
2. An intermediate agency or publisher referred to in
s. 102.07 (6) may, under its own contract of insurance, cover liability of employees as defined in
s. 102.07 (6) for an intermediate or independent news agency, if the contract of insurance of the publisher or intermediate agency is endorsed to cover those persons. If the publisher so covers, the intermediate or independent news agency need not cover liability for those persons.
102.31(1)(d)
(d) A contract procured to insure a partnership may not be construed to cover the individual liability of the members of the partnership in the course of a trade, business, profession or occupation conducted by them as individuals. A contract procured to insure an individual may not be construed to cover the liability of a partnership of which the individual is a member or to cover the liability of the individual arising as a member of any partnership.
102.31(1)(dL)
(dL) A contract procured to insure a limited liability company may not be construed to cover the individual liability of the members of the limited liability company in the course of a trade, business, profession or occupation conducted by them as individuals. A contract procured to insure an individual may not be construed to cover the liability of a limited liability company of which the individual is a member or to cover the liability of the individual arising as a member of any limited liability company.
102.31(1)(e)
(e) An insurer who provides a contract under
par. (a) shall file the contract as provided in
s. 626.35.
102.31(2)(a)(a) No party to a contract of insurance may cancel the contract within the contract period or terminate or not renew the contract upon the expiration date until a notice in writing is given to the other party fixing the proposed date of cancellation or declaring that the party intends to terminate or does not intend to renew the policy upon expiration. Except as provided in
par. (b), when an insurance company does not renew a policy upon expiration, the nonrenewal is not effective until 60 days after the insurance company has given written notice of the nonrenewal to the insured employer and the department. Cancellation or termination of a policy by an insurance company for any reason other than nonrenewal is not effective until 30 days after the insurance company has given written notice of the cancellation or termination to the insured employer and the department. Notice to the department may be given by personal service of the notice upon the department at its office in Madison, by sending the notice by certified mail addressed to the department at its office in Madison, or by transmitting the notice to the department at its office in Madison by facsimile machine transmission, electronic mail, or any electronic, magnetic, or other medium approved by the department. The department may provide by rule that the notice of cancellation or termination be given to the Wisconsin compensation rating bureau rather than to the department and that the notice of cancellation or termination be given to the Wisconsin compensation rating bureau by certified mail, facsimile machine transmission, electronic mail, or other medium approved by the department after consultation with the Wisconsin compensation rating bureau. Whenever the Wisconsin compensation rating bureau receives such a notice of cancellation or termination it shall immediately notify the department of the notice of cancellation or termination.
102.31(2)(b)1.1. In the event of a court-ordered liquidation of an insurance company, a contract of insurance issued by that company terminates on the date specified in the court order.
102.31(2)(b)2.
2. Regardless of whether the notices required under
par. (a) have been given, a cancellation or termination is effective upon the effective date of replacement insurance coverage obtained by the employer or of an order exempting the employer from carrying insurance under
s. 102.28 (2).
102.31(2m)(a)(a) A professional employer organization or employee leasing organization that enters into an employee leasing agreement with a client shall submit to the department, within 10 working days after the effective date of the agreement, a report disclosing the identity of the client, the effective date of the leasing agreement, and such other information as the department prescribes. The notification shall be on a form prescribed by the department and shall include all of the following information:
102.31(2m)(a)1.
1. The name and mailing address of the professional employer organization or employee leasing organization.
102.31(2m)(a)2.
2. The name and mailing address of the worker's compensation insurance carrier of the professional employer organization or employee leasing organization.
102.31(2m)(a)3.
3. The names and mailing addresses of all clients of the professional employer organization or employee leasing organization.
102.31(2m)(b)
(b) If a professional employer organization or employee leasing organization and client intend to terminate an employee leasing agreement, the professional employer organization or employee leasing organization shall notify the department no later than 30 days prior to the termination date of the leasing agreement. The notification to the department shall be on a form prescribed by the department.
102.31(2m)(c)
(c) When an employee leasing agreement is terminated, termination of the client's coverage under the worker's compensation insurance policy of the professional employer organization or employee leasing organization is not effective until 30 days after the professional employer organization or employee leasing organization has given notice of the termination of the employee leasing agreement to the department under
par. (b), and coverage under that policy of the employees providing services to the client under that agreement shall remain in effect until 30 days after the date of that notice.
102.31(3)
(3) The department may examine from time to time the books and records of any insurer insuring liability or compensation for an employer in this state. The department may require an insurer to designate one mailing address for use by the department and to respond to correspondence from the department within 30 days. Any insurer that refuses or fails to answer correspondence from the department or to allow the department to examine its books and records is subject to enforcement proceedings under
s. 601.64.
102.31(4)
(4) If any insurer authorized to transact worker's compensation insurance in this state fails to promptly pay claims for compensation for which it is liable or fails to make reports to the department required by
s. 102.38, the department may recommend to the commissioner of insurance, with detailed reasons, that enforcement proceedings under
s. 601.64 be invoked. The commissioner shall furnish a copy of the recommendation to the insurer and shall set a date for a hearing, at which both the insurer and the department shall be afforded an opportunity to present evidence. If after the hearing the commissioner finds that the insurer has failed to carry out its obligations under this chapter, the commissioner shall institute enforcement proceedings under
s. 601.64. If the commissioner does not so find, the commissioner shall dismiss the complaint.
102.31(5)
(5) If any employer whom the department exempted from carrying compensation insurance arbitrarily or unreasonably refuses employment to or discharges employees because of a nondisabling physical condition, the department shall revoke the exemption of that employer.
102.31(6)
(6) The department has standing to appear as a complainant and present evidence in any administrative hearing or court proceeding instituted for alleged violation of
s. 628.34 (7).
102.31(7)
(7) If the department by one or more written orders specifically consents to the issuance of one or more contracts covering only the liability incurred on a construction project and if the construction project owner designates the insurance carrier and pays for each such contract, the construction project owner shall reimburse the department for all costs incurred by the department in issuing the written orders and in ensuring minimum confusion and maximum safety on the construction project. All moneys received under this subsection shall be deposited in the worker's compensation operations fund and credited to the appropriation account under
s. 20.445 (1) (rb).
102.31(8)
(8) The Wisconsin compensation rating bureau shall provide the department with any information that the department may request relating to worker's compensation insurance coverage, including the names of employers insured and any insured employer's address, business status, type and date of coverage, manual premium code, and policy information including numbers, cancellations, terminations, endorsements, and reinstatement dates. The department may enter into contracts with the Wisconsin compensation rating bureau to share the costs of data processing and other services. No information obtained by the department under this subsection may be made public by the department except as authorized by the Wisconsin compensation rating bureau.
102.31 Cross-reference
Cross Reference: See also ss.
DWD 80.61 and
80.65, Wis. adm. code.
102.31 Annotation
Sub. (1) (b) [now (1) (d)] does not apply to a joint venture, and insurance written in the name of one venturer is sufficient to cover his or her joint liability. Insurance Company of North America v. DILHR,
45 Wis. 2d 361,
173 N.W.2d 192 (1970).
102.32
102.32
Continuing liability; guarantee settlement, gross payment. In any case in which compensation payments have extended or will extend over 6 months or more from the date of the injury (or at any time in death benefit cases), any party in interest may, in the discretion of the department, be discharged from, or compelled to guarantee, future compensation payments as follows:
102.32(1)
(1) By depositing the present value of the total unpaid compensation upon a 7% interest discount basis with a credit union, savings bank, savings and loan association, bank or trust company designated by the department; or
102.32(2)
(2) By purchasing an annuity within the limitations provided by law, in such insurance company granting annuities and licensed in this state, as may be designated by the department; or
102.32(3)
(3) By making payment in gross upon a 7% interest discount basis to be approved by the department; and
102.32(4)
(4) In cases where the time for making payments or the amounts thereof cannot be definitely determined, by furnishing a bond, or other security, satisfactory to the department for the payment of compensation as may be due or become due. The acceptance of the bond, or other security, and the form and sufficiency thereof, shall be subject to the approval of the department. If the employer or insurer is unable or fails to immediately procure the bond, then, in lieu thereof, deposit shall be made with a credit union, savings bank, savings and loan association, bank or trust company designated by the department, of the maximum amount that may reasonably become payable in these cases, to be determined by the department at amounts consistent with the extent of the injuries and the law. The bonds and deposits are to be reduced only to satisfy claims and withdrawn only after the claims which they are to guarantee are fully satisfied or liquidated under
sub. (1),
(2) or
(3); and
102.32(5)
(5) Any insured employer may, within the discretion of the department, compel the insurer to discharge, or to guarantee payment of, the employer's liabilities in any case described in this section and thereby release the employer from compensation liability in that case, but if for any reason a bond furnished or deposit made under
sub. (4) does not fully protect, the compensation insurer or insured employer, as the case may be, shall still be liable to the beneficiary of the bond or deposit.
102.32(6)(a)(a) If compensation is due for permanent disability following an injury or if death benefits are payable, payments shall be made to the employee or dependent on a monthly basis as provided in
pars. (b) to
(e).
102.32(6)(b)
(b) Subject to
par. (d), if the employer or the employer's insurer concedes liability for an injury that results in permanent disability and if the extent of the permanent disability can be determined based on a minimum permanent disability rating promulgated by the department by rule, compensation for permanent disability shall begin within 30 days after the end of the employee's healing period or the date on which compensation for temporary disability ends due to the employee's return to work, whichever is earlier.
102.32(6)(c)
(c) Subject to
par. (d), if the employer or the employer's insurer concedes liability for an injury that results in permanent disability, but the extent of the permanent disability cannot be determined without a medical report that provides the basis for a minimum permanent disability rating, compensation for permanent disability shall begin within 30 days after the employer or the employer's insurer receives a medical report that provides a basis for a permanent disability rating.
102.32(6)(d)
(d) The department shall promulgate rules for determining when compensation for permanent disability shall begin in cases in which the employer or the employer's insurer concedes liability, but disputes the extent of permanent disability.
102.32(6)(e)
(e) Payments for permanent disability, including payments based on minimum permanent disability ratings promulgated by the department by rule, shall continue on a monthly basis and shall accrue and be payable between intermittent periods of temporary disability so long as the employer or insurer knows the nature of the permanent disability.
102.32(6m)
(6m) The department may direct an advance on a payment of unaccrued compensation for permanent disability or death benefits if the department determines that the advance payment is in the best interest of the injured employee or the employee's dependents. In directing the advance, the department shall give the employer or the employer's insurer an interest credit against its liability. The credit shall be computed at 7 percent. An injured employee or dependent may receive no more than 3 advance payments per calendar year.
102.32(7)
(7) No lump sum settlement shall be allowed in any case of permanent total disability upon an estimated life expectancy, except upon consent of all parties, after hearing and finding by the department that the interests of the injured employee will be conserved thereby.
102.32 Annotation
The interest credit under sub. (6) [now sub. (6m)] 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),
98-0051.
102.33
102.33
Department forms and records; public access.
