102.44 Annotation
Committee Note, 1971: Employees who are totally disabled receive compensation at the wage level and the compensation rate in effect as of the date of their injury. This is an average of approximately $45.90 per week for the employees who are injured previous to February 1, 1970. The intent is to provide for payment of supplemental benefits; for example, an employee who was injured in October 1951 and earning wages in excess of the maximum of $52.86 is receiving $37 a week for total disability. This employee will receive supplemental benefits of $42 a week to bring the total up to $79, which was the maximum February 1, 1970. An employee injured in October 1951 with a wage of $26.43 has been receiving $18.50 per week for total disability. This is 50% of the maximum in effect in October 1951. Such employee will receive supplemental benefits of $21 a week to bring the total up to $39.50, which is 50% of the maximum in effect February 1, 1970. It is not intended that any death benefit payment be affected by this section. [Bill 371-A]
102.44 Annotation
The department must disregard total loss of earning capacity in the case of a relative scheduled injury. Mednicoff v. DILHR,
54 Wis. 2d 7,
194 N.W.2d 670 (1972).
102.44 Annotation
The "odd-lot" doctrine is a part of Wisconsin law. It provides that if a claimant makes a prima facie case that he or she was injured in an industrial accident and, because of injury, age, education, and capacity, is unable to secure continuing gainful employment, the burden of showing that the claimant is employable shifts to the employer. Balczewski v. DILHR,
76 Wis. 2d 487,
251 N.W.2d 794 (1977).
102.44 Annotation
Sub. (6) (a) includes only wage loss suffered at the employment where the injury occurred and does not include wage loss from a second job. Ruff v. LIRC,
159 Wis. 2d 239,
464 N.W.2d 56 (Ct. App. 1990).
102.44 Annotation
LIRC exceeded its authority when it ordered temporary total disability payments for an indefinite future period. Such payments are not authorized for the period after a medical condition has stabilized and before the employee undergoes surgery. GTC Auto Parts v. LIRC,
184 Wis. 2d 450,
516 N.W.2d 313 (Ct. App. 1993).
102.44 Annotation
Sub. (4) requires apportionment between scheduled and unscheduled injuries when both contribute to permanent total disability. Loss of earning capacity may not be awarded for scheduled injuries. Langhus v. LIRC,
206 Wis. 2d 494,
557 N.W.2d 450 (Ct. App. 1996),
96-0622.
102.44 Annotation
In order for sub. (6) (b) to apply, the physical limitations must be from an unscheduled injury. Mireles v. LIRC,
226 Wis. 2d 53,
593 N.W.2d 859 (Ct. App. 1999),
98-1607.
102.44 Annotation
Sub. (2) governs the permanent total disability indemnity. "Other cases" of disability under sub. (2) may include a combination of scheduled and unscheduled injuries. Mireles v. LIRC,
2000 WI 96,
237 Wis. 2d 69,
613 N.W.2d 875,
98-1607.
102.44 Annotation
Sub. (6) (b) allows the department to reopen an award to account for loss of earning capacity from an unscheduled injury, even if a scheduled injury causes the termination of employment. Mireles v. LIRC,
2000 WI 96,
237 Wis. 2d 69,
613 N.W.2d 875,
98-1607.
102.44 Annotation
Sub. (2) allows the awarding of permanent total disability that results from a combination of scheduled and unscheduled injuries, provided that the applicant establishes that a clear, ascertainable portion of the disability is attributable to the unscheduled injury or injuries. Secura Insurance v. LIRC,
2000 WI App 237,
239 Wis. 2d 315,
620 N.W.2d 626,
00-0303.
102.44 Annotation
A claimant is not required to present evidence of a job search as part of prima facie case of odd-lot unemployability, provided the claimant shows that because of the injury and other Balczewski factors such as age, education, capacity, and training, he or she is unable to secure continuing, gainful employment. If the claimant is within the odd-lot category, it falls to the employer to rebut the prima facie case by demonstrating that the claimant is employable and that jobs exist for him or her. Beecher v. LIRC,
2004 WI 88,
273 Wis. 2d 136,
682 N.W.2d 29,
02-1582.
102.44 Annotation
The burden that shifts from the claimant to the employer under Balczewski is a burden of persuasion, but only as to the sub-issue of whether a job exists that the claimant can do. The burden of persuasion on the other aspects of the claimant's case for permanent total disability benefits remains, as always, with the claimant. Beecher v. LIRC,
2004 WI 88,
273 Wis. 2d 136,
682 N.W.2d 29,
02-1582.
102.44 Annotation
The social security offset under sub. (5) may be used to reduce temporary disability benefits paid under s. 102.43 (5) during the period that the worker is engaged in a vocational rehabilitation program as described in s. 102.61. Michels Pipeline Construction v. LIRC,
2008 WI App 55,
309 Wis. 2d 470,
750 N.W.2d 485,
07-0607.
102.44 Annotation
Under Balczewski and Beecher, once a claimant has established a prima facie odd-lot case, the employer must prove that the claimant is probably employable and that an actual, suitable job is regularly and continuously available. It is not sufficient to show that the claimant is physically capable of performing light work and that light work is available. Neither Balczewski nor Beecher require an employer to disclose any descriptive information of a claimant to a prospective employer to satisfy its rebuttal burden. The employer's duty in ascertaining whether an actual job exists is to obtain information from the prospective employer about the job requirements, not provide information about the claimant. Cargill Feed Division/Cargill Malt v. LIRC,
2010 WI App 115,
329 Wis. 2d 206,
789 N.W.2d 326,
09-1877.
102.44 Annotation
LIRC improperly expanded the evidentiary burden on employers seeking to rebut a claimant's prima facie odd-lot case beyond that established in Beecher and Balczewski by establishing a preference for evidence that the employer referred the claimant to prospective employers with specific job openings actually available, although an employer may rely on evidence that it actually referred a claimant to a prospective employer to support its rebuttal case. Cargill Feed Division/Cargill Malt v. LIRC,
2010 WI App 115,
329 Wis. 2d 206,
789 N.W.2d 326,
09-1877.
102.44 Annotation
Payment of the supplemental benefit of 102.44 (1) is not precluded to former state employees by Art. IV, s. 26. The second injury fund is not impressed with a constructive trust which prevents its use for payment of such supplemental benefits. 62 Atty. Gen. 69.
102.45
102.45
Benefits payable to minors; how paid. Compensation and death benefit payable to an employee or dependent who was a minor when the employee's or dependent's right began to accrue, may, in the discretion of the department, be ordered paid to a bank, trust company, trustee, parent or guardian, for the use of such employee or dependent as may be found best calculated to conserve the employee's or dependent's interests. Such employee or dependent shall be entitled to receive payments, in the aggregate, at a rate not less than that applicable to payments of primary compensation for total disability or death benefit as accruing from the employee's or dependent's 18th birthday.
102.45 History
History: 1973 c. 150;
1993 a. 492.
102.46
102.46
Death benefit. Where death proximately results from the injury and the deceased leaves a person wholly dependent upon him or her for support, the death benefit shall equal 4 times his or her average annual earnings, but when added to the disability indemnity paid and due at the time of death, shall not exceed two-thirds of weekly wage for the number of weeks set out in
s. 102.44 (3).
102.46 History
History: 1979 c. 278;
1981 c. 92.
102.46 Annotation
Death benefits under the worker's compensation law. Fortune. WBB Apr. 1987.
102.47
102.47
Death benefit, continued. If death occurs to an injured employee other than as a proximate result of the injury, before disability indemnity ceases, death benefit and burial expense allowance shall be as follows:
102.47(1)
(1) Where the injury proximately causes permanent total disability, they shall be the same as if the injury had caused death, except that the burial expense allowance shall be included in the items subject to the limitation stated in
s. 102.46. The amount available shall be applied toward burial expense before any is applied toward death benefit. If there are no surviving dependents the amount payable to dependents shall be paid, as provided in
s. 102.49 (5) (b), to the fund created under
s. 102.65.
102.47(2)
(2) Where the injury proximately causes permanent partial disability, the unaccrued compensation shall first be applied toward funeral expenses, not to exceed the amount specified in
s. 102.50. Any remaining sum shall be paid to dependents, as provided in this section and
ss. 102.46 and
102.48, and there is no liability for any other payments. All computations under this subsection shall take into consideration the present value of future payments. If there are no surviving dependents the amount payable to dependents shall be paid, as provided in
s. 102.49 (5) (b), to the fund created under
s. 102.65.
102.47 Annotation
When a deceased worker dies before the level of permanent partial disability is established, the dependent's death benefit is not wiped out. "Unaccrued compensation" under sub. (2) is compensation that has not become due, or compensation for which a claim is not yet enforceable. It is not limited to compensation awarded but not yet paid. Edward Brothers, Inc. v. LIRC,
2007 WI App 128,
300 Wis. 2d 638,
731 N.W.2d 302,
06-2398.
102.475
102.475
Death benefit; law enforcement and correctional officers, fire fighters, rescue squad members, diving team members, national or state guard members and emergency management personnel. 102.475(1)
(1)
Special benefit. If the deceased employee is a law enforcement officer, correctional officer, fire fighter, rescue squad member, diving team member, national guard member or state defense force member on state active duty as described in
s. 102.07 (9) or if a deceased person is an employee or volunteer performing emergency management activities under
ch. 323 during a state of emergency or a circumstance described in
s. 323.12 (2) (c), who sustained an accidental injury while performing services growing out of and incidental to that employment or volunteer activity so that benefits are payable under
s. 102.46 or
102.47 (1), the department shall voucher and pay from the appropriation under
s. 20.445 (1) (aa) a sum equal to 75% of the primary death benefit as of the date of death, but not less than $50,000 to the persons wholly dependent upon the deceased. For purposes of this subsection, dependency shall be determined under
ss. 102.49 and
102.51.
102.475(2)(a)(a) If there are more than 4 persons who are wholly dependent upon the deceased employee an additional benefit of $2,000 shall be paid for each dependent in excess of 4.
102.475(2)(b)
(b) If there is more than one person who is wholly dependent upon the deceased employee, the benefits under this section shall be apportioned between such dependents on the same proportional basis as the primary death benefit.
102.475(2)(c)
(c) Notwithstanding
sub. (1), if there are partial dependents of the deceased employee who are entitled to benefits under
s. 102.48, they shall be entitled to such portion of the benefit determined under
sub. (1) that their partial dependency benefit bears to the primary benefit payable to one wholly dependent upon the deceased. No payment to a partial dependent shall be less than $1,000.
102.475(3)
(3) Disputes. In case of dispute, dependents may file applications as provided in
s. 102.17, and
ss. 102.17 to
102.27 shall apply. In such case, if the claim for a primary death benefit is compromised, any claim under this section shall be compromised on the same proportional basis. The attorney general shall represent the interests of the state in case of such dispute.
102.475(5)
(5) Minors. Benefits due to minors under this section may be paid as provided in
s. 102.45.
102.475(6)
(6) Proof. In administering this section the department may require reasonable proof of birth, marriage, domestic partnership under
ch. 770, relationship, or dependency.
102.475(7)
(7) Not to affect other rights, benefits or compensation. The compensation provided for in this section is in addition to, and not exclusive of, any pension rights, death benefits or other compensation otherwise payable by law.
102.475(8)
(8) Definitions. As used in this section:
102.475(8)(a)
(a) "Correctional officer" means any person employed by the state or any political subdivision as a guard or officer whose principal duties are supervision and discipline of inmates at a penal institution, prison, jail, house of correction or other place of penal detention.
102.475(8)(am)
(am) "Diving team member" means a member of a legally organized diving team.
102.475(8)(b)
(b) "Fire fighter" means any person employed by the state or any political subdivision as a member or officer of a fire department or a member of a volunteer department, including the state fire marshal and deputies.
102.475(8)(c)
(c) "Law enforcement officer" means any person employed by the state or any political subdivision for the purpose of detecting and preventing crime and enforcing laws or ordinances and who is authorized to make arrests for violations of the laws or ordinances the person is employed to enforce, whether that enforcement authority extends to all laws or ordinances or is limited to specific laws or ordinances.
102.475(8)(d)
(d) "Political subdivision" includes counties, municipalities and municipal corporations.
102.475(8)(dm)
(dm) "Rescue squad member" means a member of a legally organized rescue squad.
102.475(8)(e)
(e) "State" means the state of Wisconsin and its departments, divisions, boards, bureaus, commissions, authorities and colleges and universities.
102.48
102.48
Death benefit, continued. If no person who survives the deceased employee is wholly dependent upon the deceased employee for support, partial dependency and death benefits therefor shall be as follows:
102.48(1)
(1) An unestranged surviving parent or parents to whose support the deceased has contributed less than $500 in the 52 weeks next preceding the injury causing death shall receive a death benefit of $6,500. If the parents are not living together, the department shall divide this sum in such proportion as it deems to be just, considering their ages and other facts bearing on dependency.
102.48(2)
(2) In all other cases the death benefit shall be such sum as the department shall determine to represent fairly and justly the aid to support which the dependent might reasonably have anticipated from the deceased employee but for the injury. To establish anticipation of support and dependency, it shall not be essential that the deceased employee made any contribution to support. The aggregate benefits in such case shall not exceed twice the average annual earnings of the deceased; or 4 times the contributions of the deceased to the support of such dependents during the year immediately preceding the deceased employee's death, whichever amount is the greater. In no event shall the aggregate benefits in such case exceed the amount which would accrue to a person solely and wholly dependent. Where there is more than one partial dependent the weekly benefit shall be apportioned according to their relative dependency. The term "support" as used in
ss. 102.42 to
102.63 shall include contributions to the capital fund of the dependents, for their necessary comfort.
102.48(3)
(3) A death benefit, other than burial expenses, except as otherwise provided, shall be paid in weekly installments corresponding in amount to two-thirds of the weekly earnings of the employee, until otherwise ordered by the department.
102.48 Cross-reference
Cross-reference: See also s.
DWD 80.46, Wis. adm. code.
102.49
102.49
Additional death benefit for children, state fund. 102.49(1)(1) Subject to any certificate filed under
s. 102.65 (4), when the beneficiary under
s. 102.46 or
102.47 (1) is the spouse or domestic partner under
ch. 770 of the deceased employee and is wholly dependent on the deceased employee for support, an additional death benefit shall be paid from the funds provided by
sub. (5) for each child by their marriage or domestic partnership under
ch. 770 who is living at the time of the death of the employee and who is likewise wholly dependent on the deceased employee for support. That payment shall commence when primary death benefit payments are completed or, if advancement of compensation has been paid, when payments would normally have been completed. Payments shall continue at the rate of 10 percent of the surviving parent's weekly indemnity until the child's 18th birthday. If the child is physically or mentally incapacitated, payments may be continued beyond the child's 18th birthday but the payments may not continue for more than a total of 15 years.
102.49(2)
(2) A child lawfully adopted by the deceased employee and the surviving spouse or domestic partner under
ch. 770, prior to the time of the injury, and a child not the deceased employee's own by birth or adoption but living with the deceased employee as a member of the deceased employee's family at the time of the injury shall for the purpose of this section be taken as a child by their marriage or domestic partnership under
ch. 770.
102.49(3)
(3) If the employee leaves a spouse or domestic partner under
ch. 770 wholly dependent and also a child by a former marriage, domestic partnership under
ch. 770, or adoption, likewise wholly dependent, aggregate benefits shall be the same in amount as if the child were the child of the surviving spouse or partner, and the entire benefit shall be apportioned to the dependents in the amounts that the department determines to be just, considering the ages of the dependents and other factors bearing on dependency. The benefit awarded to the surviving spouse or partner shall not exceed 4 times the average annual earnings of the deceased employee.
102.49(4)
(4) Dependency of any child for the purposes of this section shall be determined according to
s. 102.51 (1), in like manner as would be done if there was no surviving dependent parent.
102.49(5)(a)(a) In each case of injury resulting in death, the employer or insurer shall pay into the state treasury the sum of $20,000.
102.49(5)(b)
(b) In addition to the payment required under
par. (a), in each case of injury resulting in death leaving no person dependent for support, the employer or insurer shall pay into the state treasury the amount of the death benefit otherwise payable, minus any payment made under
s. 102.48 (1), in 5 equal annual installments with the first installment due as of the date of death.
102.49(5)(c)
(c) In addition to the payment required under
par. (a), in each case of injury resulting in death, leaving one or more persons partially dependent for support, the employer or insurer shall pay into the state treasury an amount which, when added to the sums paid or to be paid on account of partial dependency and under
s. 102.48 (1), shall equal the death benefit payable to a person wholly dependent.
102.49(5)(d)
(d) The payment into the state treasury shall be made in all such cases regardless of whether the dependents or personal representatives of the deceased employee commence action against a 3rd party under
s. 102.29. If the payment is not made within 20 days after the department makes request therefor, any sum payable shall bear interest at the rate of 7% per year.
102.49(6)
(6) The department may award the additional benefits payable under this section to the surviving parent of the child, to the child's guardian or to such other person, bank or trust company for the child's use as may be found best calculated to conserve the interest of the child. In the case of death of a child while benefits are still payable there shall be paid the reasonable expense for burial, not exceeding $1,500.
102.49(7)
(7) All payments received under this section shall be deposited in the fund established by
s. 102.65.
102.49 Cross-reference
Cross-reference: See also s.
DWD 80.48, Wis. adm. code.
102.49 Annotation
Death benefits for dependent children are not increased by s. 102.57. Schwartz v. DILHR,
72 Wis. 2d 217,
240 N.W.2d 173 (1976).
102.50
102.50
Burial expenses. In all cases in which the death of an employee proximately results from the injury, the employer or insurer shall pay the actual expense for burial, not exceeding $10,000.
102.51(1)(a)(a) The following persons are entitled to death benefits as if they are solely and wholly dependent for support upon a deceased employee:
102.51(1)(a)1.
1. A wife upon a husband with whom she is living at the time of his death.
102.51(1)(a)2.
2. A husband upon a wife with whom he is living at the time of her death.
102.51(1)(a)2m.
2m. A domestic partner under
ch. 770 upon his or her partner with whom he or she is living at the time of the partner's death.
102.51(1)(a)3.
3. A child under the age of 18 years upon the parent with whom he or she is living at the time of the death of the parent, there being no surviving dependent parent.
102.51(1)(a)4.
4. A child over the age of 18 years, but physically or mentally incapacitated from earning, upon the parent with whom he or she is living at the time of the death of the parent, there being no surviving dependent parent.
102.51(1)(b)
(b) Where a dependent who is entitled to death benefits under this subsection survives the deceased employee, all other dependents shall be excluded. The charging of any portion of the support and maintenance of a child upon one of the parents, or any voluntary contribution toward the support of a child by a parent, or an obligation to support a child by a parent constitutes living with any such parent within the meaning of this subsection.
102.51(2)(a)(a) No person shall be considered a dependent unless that person is a spouse, a domestic partner under
ch. 770, a divorced spouse who has not remarried, or a lineal descendant, lineal ancestor, brother, sister, or other member of the family, whether by blood or by adoption, of the deceased employee.
102.51(2)(b)
(b) If for 8 years or more prior to the date of injury a deceased employee has been a resident of the United States, it shall be conclusively presumed that no person who has remained a nonresident alien during that period is either totally or partially dependent upon the deceased employee for support.
102.51(2)(c)
(c) No person who is a nonresident alien shall be found to be either totally or partially dependent on a deceased employee for support who cannot establish dependency by proving contributions from the deceased employee by written evidence or tokens of the transfer of money, such as drafts, letters of credit, microfilm or other copies of paid share drafts, canceled checks, or receipts for the payment to any bank, express company, United States post office, or other agency commercially engaged in the transfer of funds from one country to another, for transmission of funds on behalf of said deceased employee to such nonresident alien claiming dependency. This provision shall not be applicable unless the employee has been continuously in the United States for at least one year prior to his or her injury, and has been remuneratively employed therein for at least 6 months.
102.51(3)
(3) Division among dependents. If there is more than one person wholly or partially dependent, the death benefit shall be divided between such dependents in such proportion as the department shall determine to be just, considering their ages and other facts bearing on such dependency.
102.51(4)
(4) Dependency as of the date of death. Questions as to who is a dependent and the extent of his or her dependency shall be determined as of the date of the death of the employee, and the dependent's right to any death benefit becomes fixed at that time, regardless of any subsequent change in conditions. The death benefit shall be directly recoverable by and payable to the dependents entitled thereto or their legal guardians or trustees. In case of the death of a dependent whose right to a death benefit has thus become fixed, so much of the benefit as is then unpaid is payable to the dependent's personal representatives in gross, unless the department determines that the unpaid benefit shall be reassigned, under
sub. (6), and paid to any other dependent who is physically or mentally incapacitated or a minor. A posthumous child is for the purpose of this subsection a dependent as of the date of death.
102.51(5)
(5) When not interested. No dependent of an injured employee shall be deemed a party in interest to any proceeding by the employee for the enforcement of the employee's claim for compensation, nor with respect to the compromise thereof by such employee. A compromise of all liability entered into by an employee is binding upon the employee's dependents, except that any dependent of a deceased employee may submit the compromise for review under
s. 102.16 (1).
102.51(6)
(6) Division among dependents. Benefits accruing to a minor dependent child may be awarded to either parent in the discretion of the department. Notwithstanding
sub. (1), the department may reassign the death benefit, in accordance with their respective needs for the death benefit as between a surviving spouse or a domestic partner under
ch. 770 and children designated in
sub. (1) and
s. 102.49.
102.51(7)
(7) Certain defense barred. In proceedings for the collection of primary death benefit or burial expense it shall not be a defense that the applicant, either individually or as a partner or member, was an employer of the deceased.
