Chapter DWD 80

DWD 80.60   Exemption from duty to insure (self-insurance).

DWD 80.61   Divided-insurance and partial-insurance requirements under s. 102.31 (1) and (6), for all employers, including contractors working on a wrap-up project.

DWD 80.62   Uninsured employers fund.

DWD 80.65   Notice of cancellation, termination, or nonrenewal.

DWD 80.67   Insurer name change.

DWD 80.68   Payment of benefits under s. 102.59, Stats.

DWD 80.70   Malice or bad faith.

DWD 80.72   Health service fee dispute resolution process.

DWD 80.73   Health service necessity of treatment dispute resolution process.

Ch. DWD 80 Note Note: Chapter Ind 80 was renumbered chapter DWD 80 under s. 13.93 (2m) (b) 1., Stats., Register, July, 1996, No. 487.

Ch. DWD 80 Note Note: Sections DWD 80.05, 80.08, 80.09, 80.11, 80.12, 80.13, 80.14, 80.22, 80.31, and 80.44 were renumbered to ss. HA 4.04, 4.07, 4.08, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, and 4.17 by the legislative reference bureau under s. 13.92 (4) (b) 1. and 2. and pursuant to 2015 Wisconsin Act 55, section 9151 (2) (g) in Register May 2018 No. 749. Section DWD 80.20 was renumbered to s. HA 4.05 (2) by the legislative reference bureau under s. 13.92 (4) (b) 1. and pursuant to 2021 Wisconsin Act 232, section 49 (1), in Register May 2022 No. 797.

DWD 80.01 DWD 80.01 Definitions.

DWD 80.01(1) (1) “Act,” “compensation act” or “worker’s compensation act” means ch. 102, Stats.

DWD 80.01(2) (2) “Department” means the department of workforce development.

DWD 80.01(3) (3) “Commission” means the labor and industry review commission.

DWD 80.01 History History: 1-2-56; am. Register, April, 1975, No. 232, eff. 5-1-75; r. and recr. Register, September, 1982, No. 321, eff. 10-1-82; correction in (2) made under s. 13.93 (2m) (b) 6., Stats., July, 1996, No. 487.

DWD 80.02 DWD 80.02 Reports.

DWD 80.02(1) (1) Employers. An employer covered by the provisions of ch. 102, Stats., shall, within one day after the death of an employee due to a compensable injury, report the death to the department and the employer’s insurance carrier by telegraph, telephone, letter, facsimile transmission or other means authorized by the department on a case-by-case basis as communication technologies change. An insured employer shall also notify its insurance carrier of a compensable injury within 7 days after the accident or beginning of a disability from occupational disease related to the employee’s compensable injury if any of the following occurs:

DWD 80.02(1)(a) (a) Disability exists beyond the 3rd day after the employee leaves work as a result of the accident or disease. In counting the days on which disability exists, include Sunday only if the employee usually works on Sunday.

DWD 80.02(1)(b) (b) An employer’s insurance carrier has primary liability for unpaid medical treatment.

DWD 80.02(2) (2) Self-insured employers and insurance companies; reports. Except as provided in sub. (3m), for injuries under sub. (1) (a) self-insured employers and insurance companies shall submit all of the following to the department:

DWD 80.02(2)(a) (a) A first report of injury with the information required by a completed form WKC-12 on or before the 14th day after an accident or the beginning of a disability from occupational disease. If an employer does not notify the insurance carrier of the injury until after the 14th day, the insurance carrier shall submit the WKC-12 to the department within 7 days of receiving notice of the injury from any source.

DWD 80.02(2)(b) (b) A supplementary report with the information required by form WKC-13 on or before the 30th day following the day on which the injury in par. (a) occurred or on or before the 30th day following the day the injury was reported to the department, if the injury was not required to be reported under par. (a).

DWD 80.02(2)(c) (c) For injuries occurring before April 10, 2022, the wage information required by form WKC-13-A if the wage is less than the maximum wage as defined by s. 102.11 (1), Stats. The WKC-13 required in par. (b) and the WKC-13-A shall be submitted together, except that if the wage information required by form WKC-13-A is not available at the time the WKC-13 is submitted, the insurance carrier or self-insured employer shall estimate on the WKC-13 the date by which the WKC-13-A will be submitted.

DWD 80.02(2)(cm) (cm) For injuries occurring on or after April 10, 2022, the wage information required by the form WKC-13-A1 if the wage is less than the maximum wage as defined by s. 102.11 (1), Stats. The WKC-13 required in par. (b) and the WKC-13-A1 shall be submitted together, except that if the wage information required by form WKC-13-A1 is not available at the time the WKC-13 is submitted, the insurance carrier or self-insured employer shall estimate on the WKC-13 the date on which the WKC-13-A1 will be submitted.

DWD 80.02(2)(d) (d) For injuries occurring before April 10, 2022, if applicable, a signed statement from the employee verifying that the employee restricts his or her availability on the labor market to part-time employment, and is not actively employed elsewhere. The employee’s self-restriction statement shall accompany the WKC-13-A, but no statement is required if the employee is under the age of 16.

DWD 80.02(2)(dm) (dm) For injuries occurring on or after April 10, 2022, if applicable, a signed statement from the employee verifying that the employee restricts his or her availability to part-time employment, an employment application indicating an hour or shift preference, or other evidence to establish the employee chose to work less than full-time. The employee’s self-restriction statement, employment application, or other evidence to establish the employee chose to work less than full-time shall accompany the WKC-13-A1.

DWD 80.02(2)(e) (e) A report within 30 days after each of the following events occurs, with a copy to the employee, using form WKC-13 indicating all worker’s compensation payments to date and the periods of time for which any of the following payments were made or salary continuation paid in lieu of compensation:

DWD 80.02(2)(e)1. 1. Payment of compensation is changed from temporary disability or salary continuation in lieu of compensation to permanent disability.

DWD 80.02(2)(e)2. 2. Temporary disability benefits or salary continuation in lieu of compensation are reinstated.

DWD 80.02(2)(e)3. 3. Temporary partial disability is paid. The insurance carrier or self-insured employer shall also include the information required by form WKC-7359.

DWD 80.02(2)(e)4. 4. Final payment of compensation is made or salary continuation paid in lieu of compensation ended. If there are more than 3 weeks of temporary disability or any permanent disability, or if the employee has undergone surgery to treat the injured employee’s injury, other than surgery to correct a hernia, or if the injured employee sustained an eye injury requiring treatment on 3 or more occasions outside of the employers premises, the insurance carrier or self-insured employer shall submit a final treating practitioner’s report together with the final form WKC-13 or shall explain why the report is not being submitted and shall estimate when the final treating practitioner’s report will be submitted.

DWD 80.02(2)(e)5. 5. When a self-insured employer or insurance company transfers an open claim, with 26 weeks or more of temporary disability or permanent total disability paid, to a new claims handling office or third party administrator, the self-insured employer or insurance company shall file a paper form WKC-13 with the new claims handling office or third party administrator. The self-insured employer or insurance company shall file a paper copy of the form WKC-13 with the department upon request made by the department. The department may require a self-insured employer or insurance company to submit form WKC-13 for open claims with less than 26 weeks of temporary disability or permanent total disability paid upon request made by the department.

DWD 80.02(2)(f) (f) When submitting a stipulation or compromise, and at the time of hearing, a current form WKC-13 indicating all worker’s compensation payments to date and the periods of time for which these payments were made.

DWD 80.02(2)(g) (g) Written notice within 7 days, with a copy to the employee, after each of the following:

DWD 80.02(2)(g)1. 1. Payments are stopped for any reason. If any payments are stopped for a reason other than the employee’s return to work, the self-insured employer or insurance carrier shall explain why it stopped payments and shall advise the employee what to do to reinstate payments.

DWD 80.02(2)(g)2. 2. A decision to deny liability for payment of compensation for reported claims after a concession of liability is made, giving the reason for the denial and advising the employee of the right to a hearing before the division of hearings and appeals.

DWD 80.02(2)(g)3. 3. Amputation will require an artificial member or appliance.

DWD 80.02(2)(i) (i) If increased compensation is due, a final receipt within 30 days of the final payment to the employee, as proof of payment of that increased compensation.

DWD 80.02(2)(j) (j) If the employee fails to return to a practitioner for a final examination, written notice within 30 days, with a copy to the employee, advising the employee that in order to determine permanent disability, if any, the final examination is necessary.

DWD 80.02(2)(k) (k) By June 30 of each calendar year, a self-insured employer or insurance company shall file a report with the department that lists the date and amount of payment for permanent total disability and supplemental benefits paid during the previous calendar year on a form prescribed by the department.

DWD 80.02 Note Note: To obtain a copy of the forms under this subsection, contact the Department of Workforce Development, 201 East Washington Avenue, P.O. Box 7901, Madison, Wisconsin 53707-7901 or access forms online at http://www.dwd.wisconsin.gov.

DWD 80.02(2m) (2m) Self-insured employers and insurance companies; notice to employee.

DWD 80.02(2m)(a) (a) For all injuries under sub. (1) (a), self-insured employers and insurance companies shall provide written notice to the employee within 14 days of the date of an alleged injury indicating one of the following:

DWD 80.02(2m)(a)1. 1. A decision to deny liability for payment of compensation giving the specific reason for the denial and advising the employee of the right to a hearing before the division of hearings and appeals.

DWD 80.02(2m)(a)2. 2. An explanation that the claim is not paid because the insurance company or self-insured employer is still investigating the claim. The notice shall specify if additional medical or other information is needed to complete the investigation. The notice shall advise the employee of the right to a hearing before the department if the claim is subsequently denied.

DWD 80.02(2m)(b) (b) If the notice of injury from the employee to the insured employer or from the insured employer to its insurance company was not made within 7 days of the date of the alleged injury, the insurance company shall provide notice under par. (a) 1. or 2. within 14 days of receiving notice of the alleged injury from any source.

DWD 80.02(3) (3) Evaluation. In evaluating whether payments of compensation and reports made by insurance carriers and self-insured employers were prompt and proper under the provisions of ss. 102.28 (2) and 102.31 (3), Stats., and before undertaking to revoke the exemption from insurance under s. 102.28 (2) (c), Stats., or before recommending under s. 102.31 (3), Stats., to the commissioner of insurance that enforcement proceedings under s. 601.64, Stats., be invoked the department will consider all of the following performance standards together with all other factors bearing on the performance and activities of the insurance carrier or self-insured employer:

DWD 80.02(3)(a) (a) Payment of first indemnity. Whether 80% or more of first indemnity payments are mailed to the injured employee in 14 days or less following the date of injury or the last day worked after the injury before the first day of compensable lost time.

DWD 80.02(3)(b) (b) First report of injury. Whether 70% or more of reports required under sub. (2) (a) are received by the department within 14 days of the date of injury or the last day worked after injury before the first day of compensable lost time.

DWD 80.02(3)(c) (c) Correct and complete names. Names of self-insured employers on reports filed with the department must be correct and complete. The name of an insurance group is not a substitute for the name of the individual company insuring the risk. The name of an insurance service company is not a substitute.

DWD 80.02(3)(d) (d) Penalty frequency and severity. The number and amount of penalties assessed for violations of ss. 102.18 (1) (bp), 102.22 (1), 102.57, and 102.60, Stats.

DWD 80.02(3m) (3m) Reporting by electronic, magnetic or other media.

DWD 80.02(3m)(a) (a) Employer or insurer request.

DWD 80.02(3m)(a)1. 1. An employer, self-insured employer or insurer may make a written request to the department to submit the information in reports or amendments to reports required to be filed with the department in sub. (1) or (2) via electronic, magnetic or other media satisfactory to the department. The department may authorize an employer, self-insured employer or insurer to use electronic, magnetic or other reporting media after considering the extent to which it will help the employer, self-insured employer or insurer meet or exceed the applicable reporting requirements and performance standards in subs. (1) to (3).

DWD 80.02(3m)(a)2. 2. The authorization shall be in writing and shall state the terms and conditions for granting and revoking the privilege to use electronic, magnetic or other reporting media, including any terms and conditions relating to reporting requirements or performance standards in subs. (1) to (3). The written authorization shall specify what variations exist, if any, between the data required to be submitted on forms WKC-12, WKC-13, WKC-13-A, or other forms that are used by the department and the data required to be submitted via electronic, magnetic or other media.

DWD 80.02(3m)(b) (b) Department requirement.

DWD 80.02(3m)(b)1. 1. The department may require an employer, self-insured employer, or insurer to submit all or selected information in reports or amendments to reports required to be filed with the department in sub. (1) or (2) via electronic, magnetic, or other media satisfactory to the department. The department may require an employer, self-insured employer, or insurer to use electronic, magnetic, or other reporting media after considering the extent to which it will help the employer, self-insured employer, or insurer meet or exceed the applicable reporting requirements and performance standards in subs. (1) to (3).

DWD 80.02(3m)(b)2. 2. The directive that requires reporting by electronic, magnetic, or other media shall be in writing and shall set forth terms and conditions that include a deadline for compliance.

DWD 80.02(3m)(b)3. 3. An employer, self-insured employer, or insurer may request a waiver within 60 days of the date of the department’s directive that requires reporting by electronic, magnetic, or other media. The department may grant the waiver if the department is satisfied that the employer, self-insured employer, or insurer has established good cause.

DWD 80.02 History History: 1-2-56; am. (1) and (2), Register, October, 1965, No. 118, eff. 11-1-66; am. Register, April, 1975, No. 232, eff. 5-1-75; am. (1), r. and recr. (2), Register, September, 1982, No. 321, eff. 10-1-82; am. (2) (intro.) and cr. (3), Register, September, 1986, No. 369, eff. 10-1-86; renum. (1) to be (1) (a) and am., cr. (1) (b) and (3m), am. (2) (intro.), Register, November, 1993, No. 455, eff. 12-1-.93; r. and recr. (1) and (2), am. (3) (intro.), (a), (b), (3m) (b) and r. (3m) (c), Register, December, 1997, No. 504, eff. 1-1-98; CR 03-125: am. (2) (b) and (g) 2., r. (2) (h), cr. (2m) and (3m) (b), renum. (3m) (a) and (b) to be (3m) (a) 1. and 2. Register June 2004 No. 582, eff. 7-1-04; CR 07-019: am. (2) (e) 4., Register October 2007 No. 622, eff. 11-1-07; CR 15-030: am. (2) (e) (intro.), 1., 2., 4., cr. (2) (e) 5., (k) Register October 2015 No. 718, eff. 11-1-15; correction in (2) (g) 2., (2m) (a) 1., 2. under s. 13.92 (4) (b) 6., 35.17, Stats., Register May 2018 No. 749; EmR2212: emerg. am. (2) (intro.), (c), cr. (2) (cm), am. (2) (d), cr. (2) (dm), eff. 10-15-22; CR 22-072: am. (2) (intro.), (c), cr. (2) (cm), am. (2) (d), cr. (2) (dm) Register May 2023 No. 809, eff. 6-1-23.

DWD 80.025 DWD 80.025 Inspection and copying of records.

DWD 80.025(1) (1) The policy of the state on public access to records is set forth in ss. 19.31 to 19.37, Stats. The policy of the department is to provide, to the greatest extent possible, ready and open access to public records. In the worker’s compensation division, access may be limited in particular cases only when consideration of the information in a file leads to the conclusion that the public interest served by nondisclosure is greater than the public interest served by disclosure. The inspection and copying of worker’s compensation records shall be subject to the conditions specified in this section.

DWD 80.025(2) (2) The requester shall provide sufficient information on each individual file requested to permit identification and location of the specific file. Desirable information on claim files includes:

DWD 80.025(2)(a) (a) The correct name of the individual who has claimed a work-related disability;

DWD 80.025(2)(b) (b) The claimant’s social security number;

DWD 80.025(2)(c) (c) The date the claimed injury or illness occurred;

DWD 80.025(2)(d) (d) The name of the employing firm or firms at the time of the claimed injury or illness;

DWD 80.025(2)(e) (e) The name of the employing firm’s insurance carrier.

DWD 80.025(3) (3) Requesters may inspect claim files only in the division’s Madison office and under the supervision of division staff. Requesters shall direct requests to inspect files to the receptionist between the hours of 7:45 a.m. and 4:30 p.m. Requesters shall return all files by 4:30 p.m.

DWD 80.025(4) (4) Requesters may not remove files from the division offices without written authorization from the administrator of the division.

DWD 80.025(5) (5) Requesters wishing to make copies of all or a part of a file may do so under the supervision of division staff on the coin-operated copy machine provided for that purpose.

DWD 80.025(6) (6) The division of hearings and appeals shall provide transcripts of testimony taken or proceedings had before the division only in accordance with s. HA 4.13.

DWD 80.025(7) (7) The division shall furnish copies of documents from worker’s compensation claim files as requested, with the following limits:

DWD 80.025(7)(a) (a) At least one week must be allowed before copies can be delivered or mailed.

DWD 80.025(7)(b) (b) Advance payment shall not be required except as provided in par. (e). The division shall send an invoice to the requester for the necessary costs as set forth in par. (c).

DWD 80.025(7)(c) (c) The following fees shall apply:

DWD 80.025(7)(c)1. 1. 20 cents per page for photocopying.

DWD 80.025(7)(c)2. 2. $2.00 for certifying copies.

DWD 80.025(7)(c)3. 3. $3.00 per request for postage and handling when copies are to be mailed.

DWD 80.025(7)(d) (d) Upon a proper showing of inability to pay, the division shall furnish the requested copies upon such terms as may be agreed.

DWD 80.025(7)(e) (e) If the requester has unpaid copying fees from prior requests outstanding in an amount that exceeds $5.00, the division shall require the requester to pay the amount owed before providing more copies.

DWD 80.025 History History: Cr. Register, March, 1986, No. 363, eff. 4-1-86; correction in (6) under s. 13.92 (4) (b) 6., 7., Stats., Register May 2018 No. 749.

DWD 80.03 DWD 80.03 Compromise.

DWD 80.03(1) (1) Whenever an employer and an employee enter into a compromise agreement concerning the employer’s liability under ch. 102, Stats., for a particular injury to that employee, the following conditions shall be fulfilled:

DWD 80.03(1)(a) (a) The compromise agreement shall be in writing, or in the alternative, oral on the record at the time of scheduled hearing;

DWD 80.03(1)(b) (b) The compromise agreement shall be mailed to the department unless made on the record;

DWD 80.03(1)(c) (c) The compromise agreement must be approved by the department; and