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.
102.51 Cross-reference
Cross-reference: See also s.
DWD 80.48, Wis. adm. code.
102.51 Annotation
A posthumously born illegitimate child does not qualify as a dependent under sub. (4). Claimants not falling within one of the classifications under sub. (2) (a) will not qualify for benefits, regardless of dependency in fact. Larson v. DILHR,
76 Wis. 2d 595,
252 N.W.2d 33 (1977).
102.51 Annotation
Sub. (5) has no application to a claim for a death benefit because a death benefit claim is not an "employee's claim for compensation." While sub. (5) prohibits a dependent from being a party to a worker's claim for disability benefits, a dependent claiming a death benefit is prosecuting only his or her own claim. Edward Brothers, Inc. v. LIRC,
2007 WI App 128,
300 Wis. 2d 638,
731 N.W.2d 302,
06-2398.
102.52
102.52
Permanent partial disability schedule. In cases included in the following schedule of permanent partial disabilities indemnity shall be paid for the healing period, and in addition, for the period specified, at the rate of two-thirds of the average weekly earnings of the employee, to be computed as provided in
s. 102.11:
102.52(1)
(1) The loss of an arm at the shoulder, 500 weeks;
102.52(2)
(2) The loss of an arm at the elbow, 450 weeks;
102.52(4)
(4) The loss of a palm where the thumb remains, 325 weeks;
102.52(5)
(5) The loss of a thumb and the metacarpal bone thereof, 160 weeks;
102.52(6)
(6) The loss of a thumb at the proximal joint, 120 weeks;
102.52(7)
(7) The loss of a thumb at the distal joint, 50 weeks;
102.52(8)
(8) The loss of all fingers on one hand at their proximal joints, 225 weeks;
102.52(9)
(9) Losses of fingers on each hand as follows:
102.52(9)(a)
(a) An index finger and the metacarpal bone thereof, 60 weeks;
102.52(9)(b)
(b) An index finger at the proximal joint, 50 weeks;
102.52(9)(c)
(c) An index finger at the second joint, 30 weeks;
102.52(9)(d)
(d) An index finger at the distal joint, 12 weeks;
102.52(9)(e)
(e) A middle finger and the metacarpal bone thereof, 45 weeks;
102.52(9)(f)
(f) A middle finger at the proximal joint, 35 weeks;
102.52(9)(g)
(g) A middle finger at the second joint, 20 weeks;
102.52(9)(h)
(h) A middle finger at the distal joint, 8 weeks;
102.52(9)(i)
(i) A ring finger and the metacarpal bone thereof, 26 weeks;
102.52(9)(j)
(j) A ring finger at the proximal joint, 20 weeks;
102.52(9)(k)
(k) A ring finger at the second joint, 15 weeks;
102.52(9)(L)
(L) A ring finger at the distal joint, 6 weeks;
102.52(9)(m)
(m) A little finger and the metacarpal bone thereof, 28 weeks;
102.52(9)(n)
(n) A little finger at the proximal joint, 22 weeks;
102.52(9)(o)
(o) A little finger at the second joint, 16 weeks;
102.52(9)(p)
(p) A little finger at the distal joint, 6 weeks;
102.52(10)
(10) The loss of a leg at the hip joint, 500 weeks;
102.52(11)
(11) The loss of a leg at the knee, 425 weeks;
102.52(12)
(12) The loss of a foot at the ankle, 250 weeks;
102.52(13)
(13) The loss of the great toe with the metatarsal bone thereof, 83 1/3 weeks;
102.52(14)
(14) Losses of toes on each foot as follows:
102.52(14)(c)
(c) The second toe with the metatarsal bone thereof, 25 weeks;
102.52(14)(g)
(g) The third, fourth or little toe with the metatarsal bone thereof, 20 weeks;
102.52(14)(h)
(h) The third, fourth or little toe at the proximal joint, 6 weeks;
102.52(14)(i)
(i) The third, fourth or little toe at the second or distal joint, 4 weeks;
102.52(15)
(15) The loss of an eye by enucleation or evisceration, 275 weeks;
102.52(16)
(16) Total impairment of one eye for industrial use, 250 weeks;
102.52(17)
(17) Total deafness from accident or sudden trauma, 330 weeks;
102.52(18)
(18) Total deafness of one ear from accident or sudden trauma, 55 weeks.
102.52 Cross-reference
Cross-reference: See also ss.
DWD 80.32 and
80.50, Wis. adm. code.
102.52 Annotation
In a proceeding brought by an employee who suffered total deafness in one ear, a skull fracture, loss of taste and smell, facial paralysis, and periods of intermittent headaches and dizziness, the department did not err in determining that the hearing loss was a scheduled disability under sub. (18), with a separate award for the additional physical effects of the deafness, rather than considering the entire range of disabilities as a whole. When a loss is recognized by and compensable under this section, the schedule therein is exclusive. Vande Zande v. ILHR Dept.
70 Wis. 2d 1086,
236 N.W.2d 255 (1975).
102.53
102.53
Multiple injury variations. In case an injury causes more than one permanent disability specified in
ss. 102.44 (3),
102.52 and
102.55, the period for which indemnity shall be payable for each additional equal or lesser disability shall be increased as follows:
