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 the cost of tuition, fees, books, maintenance, and travel at the same rate as is provided for state officers and employees under
s. 20.916 (8). 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 under
s. 102.57 or
102.60, the liability of the employer shall be primary and the liability of the insurance carrier shall be secondary. If proceedings are had before the department for the recovery of that liability, the department shall set forth in its award the amount and order of liability as provided in this section. Execution shall not be issued against the insurance carrier to satisfy any judgment covering that liability until execution has first been issued against the employer and has been returned unsatisfied as to any part of that liability. Any provision in any insurance policy undertaking to guarantee primary liability or to avoid secondary liability for a liability under
s. 102.57 or
102.60 is void. If the employer has been adjudged bankrupt or has made an assignment for the benefit of creditors, or if the employer, other than an individual, has gone out of business or has been dissolved, or if the employer is a corporation and its charter has been forfeited or revoked, the insurer shall be liable for the payment of that liability without judgment or execution against the employer, but without altering the primary liability of the employer.
102.62 History
History: 2005 a. 172.
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. 102.35 (1),
102.47,
102.49,
102.59, and
102.60, together with all accrued interest on those moneys, and all interest payments received under
s. 102.75 (2), shall constitute a separate nonlapsible fund designated as the work injury supplemental benefit fund. Moneys in the fund may be expended only as provided in
s. 20.445 (1) (t) and may not be used for any other purpose of the state.
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, 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, 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(1m)
(1m) The moneys collected under
sub. (1) and under
ss. 102.28 (2) and
102.31 (7), together with all accrued interest, shall constitute a separate nonlapsible fund designated as the worker's compensation operations fund. Moneys in the fund may be expended only as provided in
s. 20.445 (1) (ra),
(rb), and
(rp) and may not be used for any other purpose of the state.
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. Interest shall accrue on amounts not paid within 90 days after the date prescribed by the department under this subsection at the rate of 1 percent per month. All interest payments received under this subsection shall be deposited in the fund established under
s. 102.65.
102.75(4)
(4) From the appropriation under
s. 20.445 (1) (ra), 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(1m)
(1m) The moneys collected or received under
sub. (1), together with all accrued interest, shall constitute a separate nonlapsible fund designated as the uninsured employers fund. Moneys in the fund may be expended only as provided in
s. 20.445 (1) (sm) and may not be used for any other purpose of the state.
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.
102.80(3)(am)
(am) If the secretary files the certificate under
par. (a), the department may expend the moneys in the uninsured employers fund, beginning on the first day of the first July after the secretary files that certificate, to make payments under
s. 102.81 (1) to employees of uninsured employers and to obtain reinsurance under
s. 102.81 (2).
102.80(3)(b)
(b) If the secretary does not file the certificate under
par. (a), the department may not expend the moneys in the uninsured employers fund.
102.80(3)(c)
(c) If, after filing the certificate under
par. (a), the secretary files the certificate under
par. (ag), the department may expend the moneys in the uninsured employers fund only to make payments under
s. 102.81 (1) to employees of uninsured employers on claims made before the date specified in that certificate and to obtain reinsurance under
s. 102.81 (2) for the payment of those claims.
102.80(4)(a)(a) If an uninsured employer who owes to the department any amount under
s. 102.82 or
102.85 (4) transfers his or her business assets or activities, the transferee is liable for the amounts owed by the uninsured employer under
s. 102.82 or
102.85 (4) if the department determines that all of the following conditions are satisfied:
102.80(4)(a)1.
1. At the time of the transfer, the uninsured employer and the transferee are owned or controlled in whole or in substantial part, either directly or indirectly, by the same interest or interests. Without limitation by reason of enumeration, it is presumed unless shown to the contrary that the "same interest or interests" includes the spouse, child or parent of the individual who owned or controlled the business, or any combination of more than one of them.
102.80(4)(a)2.
2. The transferee has continued or resumed the business of the uninsured employer, either in the same establishment or elsewhere; or the transferee has employed substantially the same employees as those the uninsured employer had employed in connection with the business assets or activities transferred.
102.80(4)(b)
(b) The department may collect from a transferee described in
par. (a) an amount owed under
s. 102.82 or
102.85 (4) using the procedures specified in
ss. 102.83,
102.835 and
102.87 and the preference specified in
s. 102.84 in the same manner as the department may collect from an uninsured employer.
102.81
102.81
Compensation for injured employee of uninsured employer. 102.81(1)(a)(a) If an employee of an uninsured employer, other than an employee who is eligible to receive alternative benefits under
s. 102.28 (3), suffers an injury for which the uninsured employer is liable under
s. 102.03, the department or the department's reinsurer shall pay to or on behalf of the injured employee or to the employee's dependents an amount equal to the compensation owed them by the uninsured employer under this chapter except penalties and interest due under
ss. 102.16 (3),
102.18 (1) (b) and
(bp),
102.22 (1),
102.35 (3),
102.57, and
102.60 (6).
102.81(1)(b)
(b) The department shall make the payments required under
par. (a) from the uninsured employers fund, except that if the department has obtained reinsurance under
sub. (2) and is unable to make those payments from the uninsured employers fund, the department's reinsurer shall make those payments according to the terms of the contract of reinsurance.
102.81(2)
(2) The department may retain an insurance carrier or insurance service organization to process, investigate and pay claims under this section and may obtain excess or stop-loss reinsurance with an insurance carrier authorized to do business in this state in an amount that the secretary determines is necessary for the sound operation of the uninsured employers fund. In cases involving disputed claims, the department may retain an attorney to represent the interests of the uninsured employers fund and to make appearances on behalf of the uninsured employers fund in proceedings under
ss. 102.16 to
102.29.
Section 20.930 and all provisions of
subch. IV of ch. 16, except
s. 16.753, do not apply to an attorney hired under this subsection. The charges for the services retained under this subsection shall be paid from the appropriation under
s. 20.445 (1) (rp). The cost of any reinsurance obtained under this subsection shall be paid from the appropriation under
s. 20.445 (1) (sm).
102.81 Note
NOTE: Sub. (2) is shown as affected by 3 acts of the 2005 Wisconsin legislature and as merged by the revisor under s. 13.93 (2) (c).
102.81(3)
(3) An injured employee of an uninsured employer or his or her dependents may attempt to recover from the uninsured employer, or a 3rd party under
s. 102.29, while receiving or attempting to receive payment under
sub. (1).
102.81(4)
(4) An injured employee, or the dependent of an injured employee, who received one or more payments under
sub. (1) shall do all of the following:
102.81(4)(a)
(a) If the employee or dependent begins an action to recover compensation from the employee's employer or a 3rd party liable under
s. 102.29, provide to the department a copy of all papers filed by any party in the action.
102.81(4)(b)
(b) If the employee or dependent receives compensation from the employee's employer or a 3rd party liable under
s. 102.29, pay to the department the lesser of the following:
102.81(4)(b)1.
1. The amount after attorney fees and costs that the employee or dependent received under
sub. (1).
102.81(4)(b)2.
2. The amount after attorney fees and costs that the employee or dependent received from the employer or 3rd party.
102.81(5)
(5) The department of justice may bring an action to collect the payment under
sub. (4).
102.81(6)(a)(a) Subject to
par. (b), an employee, a dependent of an employee, an uninsured employer, a 3rd party who is liable under
s. 102.29 or the department may enter into an agreement to settle liabilities under this chapter.
102.81(6)(b)
(b) A settlement under
par. (a) is void without the department's written approval.
102.81(7)
(7) This section first applies to injuries occurring on the first day of the first July beginning after the day that the secretary files a certificate under
s. 102.80 (3) (a), except that if the secretary files a certificate under
s. 102.80 (3) (ag) this section does not apply to claims filed on or after the date specified in that certificate.
102.81 History
History: 1989 a. 64;
1995 a. 117;
2003 a. 144;
2005 a. 172,
253,
410; s. 13.93 (2) (c).
102.81 Cross-reference
Cross Reference: See also s.
DWD 80.62, Wis. adm. code.
