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 those payments but such compromises shall be subject to review by the department of workforce development. If the spouse or domestic partner under
ch. 770 of the deceased employee compromises his or her claim for a primary death benefit, the claim of the children of the 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. Except as provided in
s. 102.65 (3), the department of justice shall represent the interests of the state in proceedings under
s. 102.44 (1),
102.49,
102.59,
102.60, or
102.66. The department of justice may compromise claims in those 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) The department of workforce development may retain the department of administration to process, investigate, and pay claims under
ss. 102.44 (1),
102.49,
102.59, and
102.66. If retained by the department of workforce development, the department of administration may compromise a claim processed by that department, but a compromise made by that department is subject to review by the department of workforce development. The department of workforce development shall pay for the services retained under this subsection from the appropriation account under
s. 20.445 (1) (t).
102.65(4)
(4) The secretary shall monitor the cash balance in, and incurred losses to, the work injury supplemental benefit fund using generally accepted actuarial principles. If the secretary determines that the expected ultimate losses to the work injury supplemental benefit fund on known claims exceed 85 percent of the cash balance in that 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 work injury supplemental benefit fund may become inadequate to fund all claims under
ss. 102.44 (1) (c),
102.49,
102.59, and
102.66, the secretary shall file with the secretary of administration a certificate attesting that the cash balance in that fund is likely to become inadequate to fund all claims under
ss. 102.44 (1) (c),
102.49,
102.59, and
102.66 and specifying one of the following:
102.65(4)(a)
(a) That payment of those claims will be made as provided in a schedule that the department shall promulgate by rule.
102.65(4)(b)
(b) A date after which payment of those claims will be reduced.
102.65(4)(c)
(c) A date after which no new claims under those provisions will be paid.
102.66
102.66
Payment of certain barred claims. 102.66(1)
(1) Subject to any certificate filed under
s. 102.65 (4), if there is an otherwise meritorious claim for occupational disease, or for a traumatic injury described in
s. 102.17 (4) in which the date of injury or death or last payment of compensation, other than for treatment or burial expenses, is before April 1, 2006, and if 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, or of a traumatic injury described in
s. 102.17 (4) in which the date of injury or death or last payment of compensation, other than for treatment for burial expenses, is before April 1, 2006, 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
(2) (ra) 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 30 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 exceed 85 percent 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.
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(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 Cross-reference
Cross-reference: See also s.
DWD 80.62, Wis. adm. code.
102.81 Annotation
Section 102.18 (1) (bp) does not govern the conduct of the Department or its agent and does not impose any penalty on the department or its agent for bad faith conduct in administering the Uninsured Employers Fund. Section 102.18 (1) (bp) constitutes the exclusive remedy for the bad faith conduct of an employer or an insurance carrier. Because s. 102.18 (1) (bp) does not apply to the department's agent, it does not provide an exclusive remedy for the agent's bad faith. Moreover, sub. (1) (a) exempts the Department and its agent from paying an employee the statutory penalties and interest imposed on an employer or an insurance carrier for their misdeeds, but nothing in sub (1) (a) exempts the department or its agent from liability for its bad faith conduct in processing claims. Aslakson v. Gallagher Bassett Services, Inc.
2007 WI 39,
300 Wis. 2d 92,
729 N.W.2d 712,
04-2588.
102.82
102.82
Uninsured employer payments. 102.82(1)
(1) Except as provided in
sub. (2) (ar), an uninsured employer shall reimburse the department for any payment made under
s. 102.81 (1) to or on behalf of an employee of the uninsured employer or to an employee's dependents and for any expenses paid by the department in administering the claim of the employee or dependents, less amounts repaid by the employee or dependents under
s. 102.81 (4) (b). The reimbursement owed under this subsection is due within 30 days after the date on which the department notifies the uninsured employer that the reimbursement is owed. Interest shall accrue on amounts not paid when due at the rate of 1% per month.
102.82(2)(a)(a) Except as provided in
pars. (ag),
(am) and
(ar), all uninsured employers shall pay to the department the greater of the following:
102.82(2)(a)1.
1. Twice the amount determined by the department to equal what the uninsured employer would have paid during periods of illegal nonpayment for worker's compensation insurance in the preceding 3-year period based on the employer's payroll in the preceding 3 years.
102.82(2)(ag)
(ag) An uninsured employer who is liable to the department under
par. (a) 2 shall pay to the department, in lieu of the payment required under
par. (a) 2., $100 per day for each day that the employer is uninsured if all of the following apply:
102.82(2)(ag)1.
1. The employer is uninsured for 7 consecutive days or less.
102.82(2)(ag)3.
3. No injury for which the employer is liable under
s. 102.03 has occurred during the period in which the employer is uninsured.
102.82(2)(am)
(am) The department may waive any payment owed under
par. (a) by an uninsured employer if the department determines that the uninsured employer is subject to this chapter only because the uninsured employer has elected to become subject to this chapter under
s. 102.05 (2) or
102.28 (2).
102.82(2)(ar)
(ar) The department may waive any payment owed under
par. (a) or
(ag) or
sub. (1) if the department determines that the sole reason for the uninsured employer's failure to comply with
s. 102.28 (2) is that the uninsured employer was a victim of fraud, misrepresentation or gross negligence by an insurance agent or insurance broker or by a person whom a reasonable person would believe is an insurance agent or insurance broker.
102.82(2)(b)
(b) The payment owed under
par. (a) or
(ag) is due within 30 days after the date on which the employer is notified. Interest shall accrue on amounts not paid when due at the rate of 1% per month.
102.82(2)(c)
(c) The department of justice or, if the department of justice consents, the department of workforce development may bring an action in circuit court to recover payments and interest owed to the department of workforce development under this section.
102.82(3)(a)(a) When an employee dies as a result of an injury for which an uninsured employer is liable under
s. 102.03, the uninsured employer shall pay $1,000 to the department.
102.82(3)(b)
(b) The payment under
par. (a) is in addition to any benefits or other compensation paid to an employee or survivors or the work injury supplemental benefit fund under
ss. 102.46 to
102.51.
