102.17
102.17
Procedure; notice of hearing; witnesses, contempt; testimony, medical examination. 102.17(1)(a)1.1. Upon the filing with the department by any party in interest of any application in writing stating the general nature of any claim as to which any dispute or controversy may have arisen, the department shall mail a copy of the application to all other parties in interest, and the insurance carrier shall be considered a party in interest. The department may bring in additional parties by service of a copy of the application.
102.17(1)(a)2.
2. Subject to
subd. 3., the department shall cause notice of hearing on the application to be given to each interested party, by service of that notice on the interested party personally or by mailing a copy of that notice to the interested party's last-known address at least 10 days before the hearing. If a party in interest is located without this state, and has no post-office address within this state, the copy of the application and copies of all notices shall be filed with the department of financial institutions and shall also be sent by registered or certified mail to the last-known post-office address of the party. Such filing and mailing shall constitute sufficient service, with the same effect as if served upon a party located within this state.
102.17(1)(a)3.
3. If a party in interest claims that the employer or insurer has acted with malice or bad faith as described in
s. 102.18 (1) (b) or
(bp), that party shall provide written notice stating with reasonable specificity the basis for the claim to the employer, the insurer, and the department before the department schedules a hearing on the claim of malice or bad faith.
102.17(1)(a)4.
4. The hearing may be adjourned in the discretion of the department, and hearings may be held at such places as the department designates, within or without the state. The department may also arrange to have hearings held by the commission, officer, or tribunal having authority to hear cases arising under the worker's compensation law of any other state, of the District of Columbia, or of any territory of the United States, the testimony and proceedings at any such hearing to be reported to the department and to be part of the record in the case. Any evidence so taken shall be subject to rebuttal upon final hearing before the department.
102.17(1)(b)
(b) In any dispute or controversy pending before the department, the department may direct the parties to appear before an examiner for a conference to consider the clarification of issues, the joining of additional parties, the necessity or desirability of amendments to the pleadings, the obtaining of admissions of fact or of documents, records, reports and bills which may avoid unnecessary proof and such other matters as may aid in disposition of the dispute or controversy. After this conference the department may issue an order requiring disclosure or exchange of any information or written material which it considers material to the timely and orderly disposition of the dispute or controversy. If a party fails to disclose or exchange within the time stated in the order, the department may issue an order dismissing the claim without prejudice or excluding evidence or testimony relating to the information or written material. The department shall provide each party with a copy of any order.
102.17(1)(c)
(c) Any party shall have the right to be present at any hearing, in person or by attorney or any other agent, and to present such testimony as may be pertinent to the controversy before the department. No person, firm, or corporation, other than an attorney at law who is licensed to practice law in the state, may appear on behalf of any party in interest before the department or any member or employee of the department assigned to conduct any hearing, investigation, or inquiry relative to a claim for compensation or benefits under this chapter, unless the person is 18 years of age or older, does not have an arrest or conviction record, subject to
ss. 111.321,
111.322 and
111.335, is otherwise qualified, and has obtained from the department a license with authorization to appear in matters or proceedings before the department. Except as provided under
pars. (cm) and
(cr), the license shall be issued by the department under rules promulgated by the department. The department shall maintain in its office a current list of persons to whom licenses have been issued. Any license may be suspended or revoked by the department for fraud or serious misconduct on the part of an agent, any license may be denied, suspended, nonrenewed, or otherwise withheld by the department for failure to pay court-ordered payments as provided in
par. (cm) on the part of an agent, and any license may be denied or revoked if the department of revenue certifies under
s. 73.0301 that the applicant or licensee is liable for delinquent taxes. Before suspending or revoking the license of the agent on the grounds of fraud or misconduct, the department shall give notice in writing to the agent of the charges of fraud or misconduct and shall give the agent full opportunity to be heard in relation to those charges. In denying, suspending, restricting, refusing to renew, or otherwise withholding a license for failure to pay court-ordered payments as provided in
par. (cm), the department shall follow the procedure provided in a memorandum of understanding entered into under
s. 49.857. The license and certificate of authority shall, unless otherwise suspended or revoked, be in force from the date of issuance until the June 30 following the date of issuance and may be renewed by the department from time to time, but each renewed license shall expire on the June 30 following the issuance of the renewed license.
102.17(1)(cg)1.1. Except as provided in
subd. 2m., the department shall require each applicant for a license under
par. (c) who is an individual to provide the department with the applicant's social security number, and shall require each applicant for a license under
par. (c) who is not an individual to provide the department with the applicant's federal employer identification number, when initially applying for or applying to renew the license.
102.17(1)(cg)2.
2. If an applicant who is an individual fails to provide the applicant's social security number to the department or if an applicant who is not an individual fails to provide the applicant's federal employer identification number to the department, the department may not issue or renew a license under
par. (c) to or for the applicant unless the applicant is an individual who does not have a social security number and the applicant submits a statement made or subscribed under oath or affirmation as required under
subd. 2m.
102.17(1)(cg)2m.
2m. If an applicant who is an individual does not have a social security number, the applicant shall submit a statement made or subscribed under oath or affirmation to the department that the applicant does not have a social security number. The form of the statement shall be prescribed by the department. A license issued in reliance upon a false statement submitted under this subdivision is invalid.
102.17(1)(cg)3.
3. The department of workforce development may not disclose any information received under
subd. 1. to any person except to the department of revenue for the sole purpose of requesting certifications under
s. 73.0301 or the department of children and families for purposes of administering
s. 49.22.
102.17(1)(cm)
(cm) The department of workforce development shall deny, suspend, restrict, refuse to renew, or otherwise withhold a license under
par. (c) for failure of the applicant or agent to pay court-ordered payments of child or family support, maintenance, birth expenses, medical expenses, or other expenses related to the support of a child or former spouse or for failure of the applicant or agent to comply, after appropriate notice, with a subpoena or warrant issued by the department of children and families or a county child support agency under
s. 59.53 (5) and related to paternity or child support proceedings, as provided in a memorandum of understanding entered into under
s. 49.857. Notwithstanding
par. (c), an action taken under this paragraph is subject to review only as provided in the memorandum of understanding entered into under
s. 49.857 and not as provided in
ch. 227.
102.17(1)(cr)
(cr) The department shall deny an application for the issuance or renewal of a license under
par. (c), or revoke such a license already issued, if the department of revenue certifies under
s. 73.0301 that the applicant or licensee is liable for delinquent taxes. Notwithstanding
par. (c), an action taken under this paragraph is subject to review only as provided under
s. 73.0301 (5) and not as provided in
ch. 227.
102.17(1)(d)1.1. The contents of certified medical and surgical reports by physicians, podiatrists, surgeons, dentists, psychologists, physician assistants, advanced practice nurse prescribers, and chiropractors licensed in and practicing in this state, and of certified reports by experts concerning loss of earning capacity under
s. 102.44 (2) and
(3), presented by a party for compensation constitute prima facie evidence as to the matter contained in those reports, subject to any rules and limitations the department prescribes. Certified reports of physicians, podiatrists, surgeons, dentists, psychologists, physician assistants, advanced practice nurse prescribers, and chiropractors, wherever licensed and practicing, who have examined or treated the claimant, and of experts, if the practitioner or expert consents to being subjected to cross-examination also constitute prima facie evidence as to the matter contained in those reports. Certified reports of physicians, podiatrists, surgeons, psychologists, and chiropractors are admissible as evidence of the diagnosis, necessity of the treatment, and cause and extent of the disability. Certified reports by doctors of dentistry, physician assistants, and advanced practice nurse prescribers are admissible as evidence of the diagnosis and necessity of treatment but not of the cause and extent of disability. Any physician, podiatrist, surgeon, dentist, psychologist, chiropractor, physician assistant, advanced practice nurse prescriber, or expert who knowingly makes a false statement of fact or opinion in such a certified report may be fined or imprisoned, or both, under
s. 943.395.
102.17(1)(d)2.
2. The record of a hospital or sanatorium in this state that is satisfactory to the department, established by certificate, affidavit, or testimony of the supervising officer of the hospital or sanitorium, any other person having charge of the record, or a physician, podiatrist, surgeon, dentist, psychologist, physician assistant, advanced practice nurse prescriber, or chiropractor to be the record of the patient in question, and made in the regular course of examination or treatment of the patient, constitutes prima facie evidence as to the matter contained in the record, to the extent that the record is otherwise competent and relevant.
102.17(1)(d)3.
3. The department may, by rule, establish the qualifications of and the form used for certified reports submitted by experts who provide information concerning loss of earning capacity under
s. 102.44 (2) and
(3). The department may not admit into evidence a certified report of a practitioner or other expert or a record of a hospital or sanatorium that was not filed with the department and all parties in interest at least 15 days before the date of the hearing, unless the department is satisfied that there is good cause for the failure to file the report.
102.17(1)(d)4.
4. A report or record described in
subd. 1.,
2., or
3. that is admitted or received into evidence by the department constitutes substantial evidence under
s. 102.23 (6) as to the matter contained in the report or record.
102.17(1)(e)
(e) The department may, with or without notice to any party, cause testimony to be taken, an inspection of the premises where the injury occurred to be made, or the time books and payrolls of the employer to be examined by any examiner, and may direct any employee claiming compensation to be examined by a physician, chiropractor, psychologist, dentist, or podiatrist. The testimony so taken, and the results of any such inspection or examination, shall be reported to the department for its consideration upon final hearing. All ex parte testimony taken by the department shall be reduced to writing and any party shall have opportunity to rebut that testimony on final hearing.
102.17(1)(f)1.
1. Who is beyond reach of the subpoena of the department; or
102.17(1)(f)2.
2. Who is about to go out of the state, not intending to return in time for the hearing; or
102.17(1)(f)3.
3. Who is so sick, infirm or aged as to make it probable that the witness will not be able to attend the hearing; or
102.17(1)(f)4.
4. Who is a member of the legislature, if any committee of the same or the house of which the witness is a member, is in session, provided the witness waives his or her privilege.
102.17(1)(g)
(g) Whenever the testimony presented at any hearing indicates a dispute or creates a doubt as to the extent or cause of disability or death, the department may direct that the injured employee be examined, that an autopsy be performed, or that an opinion be obtained without examination or autopsy, by or from an impartial, competent physician, chiropractor, dentist, psychologist or podiatrist designated by the department who is not under contract with or regularly employed by a compensation insurance carrier or self-insured employer. The expense of the examination, autopsy, or opinion shall be paid by the employer or, if the employee claims compensation under
s. 102.81, from the uninsured employers fund. The report of the examination, autopsy, or opinion shall be transmitted in writing to the department and a copy of the report shall be furnished by the department to each party, who shall have an opportunity to rebut such report on further hearing.
102.17(1)(h)
(h) The contents of certified reports of investigation, made by industrial safety specialists who are employed, contracted, or otherwise secured by the department and available for cross-examination, served upon the parties 15 days prior to hearing, shall constitute prima facie evidence as to matter contained in those reports. A report described in this paragraph that is admitted or received into evidence by the department constitutes substantial evidence under
s. 102.23 (6) as to the matter contained in the report.
102.17(2)
(2) If the department shall have reason to believe that the payment of compensation has not been made, it may on its own motion give notice to the parties, in the manner provided for the service of an application, of a time and place when a hearing will be held for the purpose of determining the facts. Such notice shall contain a statement of the matter to be considered. Thereafter all other provisions governing proceedings on application shall attach insofar as the same may be applicable. When the department schedules a hearing on its own motion, the department does not become a party in interest and is not required to appear at the hearing.
102.17(2m)
(2m) Any party, including the department, may require any person to produce books, papers and records at the hearing by personal service of a subpoena upon the person along with a tender of witness fees as provided in
ss. 814.67 and
885.06. Except as provided in
sub. (2s), the subpoena shall be on a form provided by the department and shall give the name and address of the party requesting the subpoena.
102.17(2s)
(2s) A party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence. A subpoena issued by an attorney must be in substantially the same form as provided in
s. 805.07 (4) and must be served in the manner provided in
s. 805.07 (5). The attorney shall, at the time of issuance, send a copy of the subpoena to the appeal tribunal or other representative of the department responsible for conducting the proceeding.
102.17(3)
(3) Any person who shall willfully and unlawfully fail or neglect to appear or to testify or to produce books, papers and records as required, shall be fined not less than $25 nor more than $100, or imprisoned in the county jail not longer than 30 days. Each day such person shall so refuse or neglect shall constitute a separate offense.
102.17(4)
(4) Except as provided in this subsection and
s. 102.555 (12) (b), the right of an employee, the employee's legal representative, or a dependent to proceed under this section shall not extend beyond 12 years after the date of the injury or death or after the date that compensation, other than for treatment or burial expenses, was last paid, or would have been last payable if no advancement were made, whichever date is latest. 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, or any permanent brain injury; or a traumatic injury causing the need for an artificial spinal disc or a total or partial knee or hip replacement, there shall be no statute of limitations, except that benefits or treatment expense for an occupational disease becoming due 12 years after the date of injury or death or last payment of compensation, other than for treatment or burial expenses, shall be paid from the work injury supplemental benefit fund under
s. 102.65 and in the manner provided in
s. 102.66 and benefits or treatment expense for such a traumatic injury becoming due 12 years after that date shall be paid from that fund and in that manner if the date of injury or death or last payment of compensation, other than for treatment or burial expenses, is before April 1, 2006. Payment of wages by the employer during disability or absence from work to obtain treatment shall be considered payment of compensation for the purpose of this section if the employer knew of the employee's condition and its alleged relation to the employment.
102.17(5)
(5) This section does not limit the time within which the state may bring an action to recover the amounts specified in
ss. 102.49 (5) and
102.59.
102.17(6)
(6) If an employee or dependent shall, at the time of injury, or at the time the employee's or dependent's right accrues, be under 18 years of age, the limitations of time within which the employee or dependent may file application or proceed under this chapter, if they would otherwise sooner expire, shall be extended to one year after the employee or dependent attains the age of 18 years. If, within any part of the last year of any such period of limitation, an employee, the employee's personal representative, or surviving dependent be insane or on active duty in the armed forces of the United States such period of limitation shall be extended to 2 years after the date that the limitation would otherwise expire. The provision hereof with respect to persons on active duty in the armed forces of the United States shall apply only where no applicable federal statute is in effect.
102.17(7)(a)(a) Except as provided in
par. (b), in a claim under
s. 102.44 (2) and
(3), testimony or certified reports of expert witnesses on loss of earning capacity may be received in evidence and considered with all other evidence to decide on an employee's actual loss of earning capacity.
102.17(7)(b)
(b) Except as provided in
par. (c), the department shall exclude from evidence testimony or certified reports from expert witnesses under
par. (a) offered by the party that raises the issue of loss of earning capacity if that party failed to notify the department and the other parties of interest, at least 60 days before the date of the hearing, of the party's intent to provide the testimony or reports and of the names of the expert witnesses involved. Except as provided in
par. (c), the department shall exclude from evidence testimony or certified reports from expert witnesses under
par. (a) offered by a party of interest in response to the party that raises the issue of loss of earning capacity if the responding party failed to notify the department and the other parties of interest, at least 45 days before the date of the hearing, of the party's intent to provide the testimony or reports and of the names of the expert witnesses involved.
102.17(7)(c)
(c) Notwithstanding the notice deadlines provided in
par. (b), the department may receive in evidence testimony or certified reports from expert witnesses under
par. (a) when the applicable notice deadline under
par. (b) is not met if good cause is shown for the delay in providing the notice required under
par. (b) and if no party is prejudiced by the delay.
102.17(8)
(8) Unless otherwise agreed to by all parties, an injured employee shall file with the department and serve on all parties at least 15 days before the date of the hearing an itemized statement of all medical expenses and incidental compensation under
s. 102.42 claimed by the injured employee. The itemized statement shall include, if applicable, information relating to any travel expenses incurred by the injured employee in obtaining treatment including the injured employee's destination, number of trips, round trip mileage and meal and lodging expenses. The department may not admit into evidence any information relating to medical expenses and incidental compensation under
s. 102.42 claimed by an injured employee if the injured employee failed to file with the department and serve on all parties at least 15 days before the date of the hearing an itemized statement of the medical expenses and incidental compensation under
s. 102.42 claimed by the injured employee, unless the department is satisfied that there is good cause for the failure to file and serve the itemized statement.
102.17 History
History: 1971 c. 148;
1971 c. 213 s.
5;
1973 c. 150,
282; Sup. Ct. Order, 67 Wis. 2d 585, 774 (1975);
1975 c. 147 ss.
20,
54;
1975 c. 199,
200;
1977 c. 29,
195,
273;
1979 c. 278;
1981 c. 92,
314;
1981 c. 317 s.
2202;
1981 c. 380;
1981 c. 391 s.
211;
1985 a. 83;
1989 a. 64,
139,
359;
1991 a. 85;
1993 a. 81,
492;
1995 a. 27,
117;
1997 a. 38,
191,
237;
1999 a. 9;
2001 a. 37;
2003 a. 144;
2005 a. 172;
2007 a. 185;
2009 a. 180,
206;
2011 a. 183.
102.17 Cross-reference
Cross-reference: See also ch.
DWD 80, Wis. adm. code.
102.17 Annotation
A plaintiff-employer was not deprived of any substantial due process rights by the department's refusal to invoke its rule requiring inspection of the opposing parties' medical reports when the plaintiff had ample notice of the nature of the employee's claim. Theodore Fleisner, Inc. v. DILHR,
65 Wis. 2d 317,
222 N.W.2d 600 (1974).
102.17 Annotation
Under the facts of the case, a refusal to grant an employer's request for adjournment was a denial of due process. Bituminous Casualty Co. v. DILHR,
97 Wis. 2d 730,
295 N.W.2d 183 (Ct. App. 1980).
102.17 Annotation
Sub. (1) (d) does not create a presumption that evidence presented by treating physicians is correct. The statute enforces the idea that LIRC determines the weight to be given medical witnesses. Conradt v. Mt. Carmel School,
197 Wis. 2d 60,
539 N.W.2d 713 (Ct. App. 1995),
94-2842.
102.17 Annotation
LIRC's authority under sub. (1) (a) to control its calendar and manage its internal affairs necessarily implies the power to deny an applicant's motion to withdraw an application for hearing. An appellant's failure to appear at a hearing after a motion to withdraw the application was denied was grounds for entry of a default judgment under s. 102.18 (1) (a). Baldwin v. LIRC,
228 Wis. 2d 601,
599 N.W.2d 8 (Ct. App. 1999),
98-3090.
102.17 Annotation
In the absence of testimony in conflict with a claimant's medical experts, LIRC may reject the expert evidence if there is countervailing testimony raising legitimate doubt about the employee's injury. Kowalchuk v. LIRC,
2000 WI App 85,
234 Wis. 2d 203,
610 N.W.2d 122,
99-1183.
102.17 Annotation
It was reasonable for LIRC to conclude that the statute of limitations under sub. (4) for death benefits begins to run at the time of death, rather than the time of injury. International Paper Co. v. LIRC,
2001 WI App 248,
248 Wis. 2d 348,
635 N.W.2d 823,
01-0126.
102.17 Annotation
Neither sub. (1) (g) or (d) provides a statutory right to cross-examine an independent physician appointed by the department. When the legislature drafted sub. (1) (g), it chose to use the general term "rebut." Because it did not specify the right to cross-examination, it appears the legislature left to the department's discretion whether to allow cross-examination in circumstances where it might provide relevant and probative evidence. Sub. (1) (d) governs experts that are presented by a party to establish a prima facie case, not experts appointed by the department to provide an impartial report. LIRC did not violate the plaintiff's due process rights when it declined to remand for cross-examination. Aurora Consolidated Health Care v. Labor and Industry Review Commission,
2012 WI 49,
340 Wis. 2d 367,
814 N.W.2d 824,
10-0208.
102.17 Annotation
Prehearing discovery under Wisconsin's worker's compensation act. Towers. 68 MLR 597 (1985).
102.175
102.175
Apportionment of liability. 102.175(1)
(1) If it is established at the hearing that 2 or more accidental injuries, for each of which a party to the proceedings is liable under this chapter, have each contributed to a physical or mental condition for which benefits would be otherwise due, liability for such benefits shall be apportioned according to the proof of the relative contribution to disability resulting from the injury.
102.175(2)
(2) If after a hearing or a prehearing conference the department determines that an injured employee is entitled to compensation but that there remains in dispute only the issue of which of 2 or more parties is liable for that compensation, the department may order one or more parties to pay compensation in an amount, time and manner as determined by the department. If the department later determines that another party is liable for compensation, the department shall order that other party to reimburse any party that was ordered to pay compensation under this subsection.
102.175 History
History: 1979 c. 278;
1993 a. 81.
102.18
102.18
Findings, orders and awards. 102.18(1)(a)(a) All parties shall be afforded opportunity for full, fair, public hearing after reasonable notice, but disposition of application may be made by compromise, stipulation, agreement, or default without hearing.
102.18(1)(b)
(b) Within 90 days after the final hearing and close of the record, the department shall make and file its findings upon the ultimate facts involved in the controversy, and its order, which shall state its determination as to the rights of the parties. Pending the final determination of any controversy before it, the department may in its discretion after any hearing make interlocutory findings, orders, and awards, which may be enforced in the same manner as final awards. The department may include in any interlocutory or final award or order an order directing the employer or insurer to pay for any future treatment that may be necessary to cure and relieve the employee from the effects of the injury. If the department finds that the employer or insurer has not paid any amount that the employer or insurer was directed to pay in any interlocutory order or award and that the nonpayment was not in good faith, the department may include in its final award a penalty not exceeding 25% of each amount that was not paid as directed. When there is a finding that the employee is in fact suffering from an occupational disease caused by the employment of the employer against whom the application is filed, a final award dismissing the application upon the ground that the applicant has suffered no disability from the disease shall not bar any claim the employee may thereafter have for disability sustained after the date of the award.
102.18(1)(bg)1.1. If the department finds under
par. (b) that an insurer or self-insured employer is liable under this chapter for any health services provided to an injured employee by a health service provider, but that the reasonableness of the fee charged by the health service provider is in dispute, the department may include in its order under
par. (b) a determination as to the reasonableness of the fee or the department may notify, or direct the insurer or self-insured employer to notify, the health service provider under
s. 102.16 (2) (b) that the reasonableness of the fee is in dispute. The department shall deny payment of a health service fee that the department determines under this subdivision to be unreasonable. An insurer or self-insured employer and a health service provider that are parties to a fee dispute under this subdivision are bound by the department's determination under this subdivision on the reasonableness of the disputed fee, unless that determination is set aside, reversed, or modified by the department under
sub. (3) or by the commission under
sub. (3) or
(4) or is set aside on judicial review under
s. 102.23.
102.18(1)(bg)2.
2. If the department finds under
par. (b) that an employer or insurance carrier is liable under this chapter for any treatment provided to an injured employee by a health service provider, but that the necessity of the treatment is in dispute, the department may include in its order under
par. (b) a determination as to the necessity of the treatment or the department may notify, or direct the employer or insurance carrier to notify, the health service provider under
s. 102.16 (2m) (b) that the necessity of the treatment is in dispute. Before determining under this subdivision the necessity of treatment provided to an injured employee, the department may, but is not required to, obtain the opinion of an expert selected by the department who is qualified as provided in
s. 102.16 (2m) (c). The standards promulgated under
s. 102.16 (2m) (g) shall be applied by an expert in rendering an opinion as to, and in determining, necessity of treatment under this subdivision. In cases in which no standards promulgated under
s. 102.16 (2m) (g) apply, the department shall find the facts regarding necessity of treatment. The department shall deny payment for any treatment that the department determines under this subdivision to be unnecessary. An insurer or self-insured employer and a health service provider that are parties to a dispute under this subdivision over the necessity of treatment are bound by the department's determination under this subdivision on the necessity of the disputed treatment, unless that determination is set aside, reversed, or modified by the department under
sub. (3) or by the commission under
sub. (3) or
(4) or is set aside on judicial review under
s. 102.23.
102.18(1)(bg)3.
3. If the department finds under
par. (b) that an insurer or self-insured employer is liable under this chapter for the cost of a prescription drug dispensed under
s. 102.425 (2) for outpatient use by an injured employee, but that the reasonableness of the amount charged for that prescription drug is in dispute, the department may include in its order under
par. (b) a determination as to the reasonableness of the prescription drug charge or the department may notify, or direct the insurer or self-insured employer to notify, the pharmacist or practitioner dispensing the prescription drug under
s. 102.425 (4m) (b) that the reasonableness of the prescription drug charge is in dispute. The department shall deny payment of a prescription drug charge that the department determines under this subdivision to be unreasonable. An insurer or self-insured employer and a pharmacist or practitioner that are parties to a dispute under this subdivision over the reasonableness of a prescription drug charge are bound by the department's determination under
par. (b) on the reasonableness of the disputed prescription drug charge, unless that determination is set aside, reversed, or modified by the department under
sub. (3) or by the commission under
sub. (3) or
(4) or is set aside on judicial review under
s. 102.23.
102.18(1)(bp)
(bp) If the department determines that the employer or insurance carrier suspended, terminated, or failed to make payments or failed to report an injury as a result of malice or bad faith, the department may include a penalty in an award to an employee for each event or occurrence of malice or bad faith. This penalty is the exclusive remedy against an employer or insurance carrier for malice or bad faith. If this penalty is imposed for an event or occurrence of malice or bad faith that causes a payment that is due an injured employee to be delayed in violation of
s. 102.22 (1) or overdue in violation of
s. 628.46 (1), the department may not also order an increased payment under
s. 102.22 (1) or the payment of interest under
s. 628.46 (1). The department may award an amount that it considers just, not to exceed the lesser of 200 percent of total compensation due or $30,000 for each event or occurrence of malice or bad faith. The department may assess the penalty against the employer, the insurance carrier or both. Neither the employer nor the insurance carrier is liable to reimburse the other for the penalty amount. The department may, by rule, define actions which demonstrate malice or bad faith.
102.18(1)(bw)
(bw) If an insurer, a self-insured employer or, if applicable, the uninsured employers fund pays compensation to an employee in excess of its liability and another insurer is liable for all or part of the excess payment, the department may order the insurer or self-insured employer that is liable to reimburse the insurer or self-insured employer that made the excess payment or, if applicable, the uninsured employers fund.
102.18(1)(c)
(c) If 2 or more examiners have conducted a formal hearing on a claim and are unable to agree on the order or award to be issued, the decision shall be the decision of the majority. If the examiners are equally divided on the decision, the department may appoint an additional examiner who shall review the record and consult with the other examiners concerning their personal impressions of the credibility of the evidence. Findings of fact and an order or award may then be issued by a majority of the examiners.
102.18(1)(d)
(d) Any award which falls within a range of 5% of the highest or lowest estimate of permanent partial disability made by a practitioner which is in evidence is presumed to be a reasonable award, provided it is not higher than the highest or lower than the lowest estimate in evidence.
102.18(1)(e)
(e) Except as provided in
s. 102.21, if the department orders a party to pay an award of compensation, the party shall pay the award no later than 21 days after the date on which the order is mailed to the last-known address of the party, unless the party files a petition for review under
sub. (3). This paragraph applies to all awards of compensation ordered by the department, whether the award results from a hearing, the default of a party, or a compromise or stipulation confirmed by the department.
102.18(2)
(2) The department shall have and maintain on its staff such examiners as are necessary to hear and decide disputed claims and to assist in the effective administration of this chapter. These examiners shall be attorneys and may be designated as administrative law judges. These examiners may make findings and orders, and approve, review, set aside, modify or confirm stipulations of settlement or compromises of claims for compensation.
102.18(3)
(3) A party in interest may petition the commission for review of an examiner's decision awarding or denying compensation if the department or commission receives the petition within 21 days after the department mailed a copy of the examiner's findings and order to the party's last-known address. The commission shall dismiss a petition which is not timely filed unless the petitioner shows probable good cause that the reason for failure to timely file was beyond the petitioner's control. If no petition is filed within 21 days from the date that a copy of the findings or order of the examiner is mailed to the last-known address of the parties in interest, the findings or order shall be considered final unless set aside, reversed or modified by the examiner within that time. If the findings or order are set aside by the examiner the status shall be the same as prior to the findings or order set aside. If the findings or order are reversed or modified by the examiner the time for filing a petition commences with the date that notice of reversal or modification is mailed to the last-known address of the parties in interest. The commission shall either affirm, reverse, set aside or modify the findings or order in whole or in part, or direct the taking of additional evidence. This action shall be based on a review of the evidence submitted.
102.18(4)(b)
(b) Within 28 days after a decision of the commission is mailed to the last-known address of each party in interest, the commission may, on its own motion, set aside the decision for further consideration.
102.18(4)(c)
(c) On its own motion, for reasons it deems sufficient, the commission may set aside any final order or award of the commission or examiner within one year after the date of the order or award, upon grounds of mistake or newly discovered evidence, and, after further consideration, do any of the following:
102.18(4)(c)1.
1. Affirm, reverse or modify, in whole or in part, the order or award.
102.18(4)(c)3.
3. Remand the case to the department for further proceedings.
102.18(4)(d)
(d) While a petition for review by the commission is pending or after entry of an order or award by the commission but before commencement of an action for judicial review or expiration of the period in which to commence an action for judicial review, the commission shall remand any compromise presented to it to the department for consideration and approval or rejection pursuant to
s. 102.16 (1). Presentation of a compromise does not affect the period in which to commence an action for judicial review.
102.18(5)
(5) If it shall appear to the department that a mistake may have been made as to cause of injury in the findings, order or award upon an alleged injury based on accident, when in fact the employee was suffering from an occupational disease, the department may upon its own motion, with or without hearing, within 3 years from the date of such findings, order or award, set aside such findings, order or award, or the department may take such action upon application made within such 3 years. Thereafter, and after opportunity for hearing, the department may, if in fact the employee is suffering from disease arising out of the employment, make new findings and award, or it may reinstate the previous findings, order or award.
102.18(6)
(6) In case of disease arising out of the employment, the department may from time to time review its findings, order or award, and make new findings, order or award, based on the facts regarding disability or otherwise as they may then appear. This subsection shall not affect the application of the limitation in
s. 102.17 (4).
102.18 Cross-reference
Cross-reference: See also LIRC and s.
DWD 80.05, Wis. adm. code.
102.18 Annotation
Committee Note, 1971: The intent is to authorize the commission within its absolute discretion to reopen final orders on the basis of mistake or newly discovered evidence within a period of one year from the date of such order where this is found to be just. It is intended that the commission have authority to grant or deny compensation, including the right to increase or to decrease benefits previously awarded. [Bill 371-A]
102.18 Annotation
Interlocutory orders issued by the department in worker's compensation cases are not res judicata. Worsch v. DILHR,
46 Wis. 2d 504,
175 N.W.2d 201 (1970).
102.18 Annotation
When the department reverses an examiner's findings and makes independent findings, the latter should be accompanied by a memorandum opinion indicating not only prior consultation with the examiner and review of the record, but a statement or statements of the reasons for reaching a different result or conclusion, particularly when the credibility of witnesses is involved. Transamerica Insurance Co. v. DILHR,
54 Wis. 2d 272,
195 N.W.2d 656 (1972). See also Mervosh v. LIRC,
2010 WI App 36,
324 Wis. 2d 134,
781 N.W.2d 236,
09-0271.
102.18 Annotation
The department could properly find no permanent disability in the case of a successful fusion of vertebrae and still retain jurisdiction to determine future disability when doctors testified that there might be future effects. Vernon County v. DILHR,
60 Wis. 2d 736,
211 N.W.2d 441 (1973).
102.18 Annotation
In a case involving conflicting testimony in which the department reverses an examiner's findings, fundamental fairness requires a separate statement by the department explaining why it reached its decision, as well as specifically setting forth in the record its consultation with the examiner with respect to impressions or conclusions in regard to the credibility of witnesses. Simonton v. DILHR,
62 Wis. 2d 112,
214 N.W.2d 302 (1974).
102.18 Annotation
Sub. (5) is inapplicable if at the original hearing the examiner considered the possibility of both accidental injury and injury caused by occupational disease and denied the applicant benefits. Murphy v. DILHR,
63 Wis. 2d 248,
217 N.W.2d 370 (1974).
102.18 Annotation
An award will be affirmed if it is supported by any credible evidence. When there are inconsistencies or conflicts in medical testimony, it is for the department and not the courts to reconcile inconsistencies. Theodore Fleisner, Inc. v. DILHR,
65 Wis. 2d 317,
222 N.W.2d 600 (1974).
