Wisconsin Legislature: DWD 80.40(4)

(d) Payments made from the work injury supplemental benefit fund other than those paid under s. 102.44 (1), Stats.

(e) Payments made under ss. 102.475, 102.35, and 102.18 (1) (bp), Stats.

(f) Payments made under statutory provisions other than those of ch. 102, Stats.

(g) Payments made pursuant to a compromise agreement to the extent that they cannot be determined to be indemnity paid or payable under sub. (2).

(2) For purposes of determining assessment payments under s. 102.75, Stats., “indemnity paid or payable” includes:

(a) Supplemental benefit payments made under s. 102.44 (1), Stats., from the work injury supplemental benefit fund if they were determined to be payable prior to the time the case is initially closed.

(b) Death benefits paid under ss. 102.46, 102.47, 102.48 and 102.50, Stats.

(c) Portions of social security benefits, sick leave, holiday pay, salary and other wage continuation payments which offset or are paid in lieu of the daily or weekly indemnity due.

History: Cr. Register, September, 1984, No. 345, eff. 10-1-84.

DWD 80.39 Advance payment of unaccrued compensation.

(1) The department may order partial or full payment of unaccrued compensation to an employee or his or her dependents pursuant to s. 102.32 (6m), Stats., upon consideration of the following factors:

(a) The length of time since the injury;

(b) The total income of the employee or the dependent;

(d) The age of the employee or the dependent;

(e) The other available assets of the employee or the dependent;

(f) The loss of benefits because of interest credit due to self-insured employer or insurance carrier;

(g) The purpose for which the advancement is requested;

(h) The other financial obligations of the employee or the dependent;

(i) The employment status of the employee or the dependent;

(j) If the advancement is requested for the purchase of real estate, the cost of the real estate and availability of other necessary financing for the real estate;

(k) The employee’s or the dependent’s previous experience in and likelihood of success in a proposed business venture;

(L) The probable income and security of any proposed investment; and

(m) Other information indicating whether an advancement is in the best interest of the applicant.

History: Cr. Register, September, 1982, No. 321, eff. 10-1-82; CR 07-019: am. (1), Register October 2007 No. 622, eff. 11-1-07.

DWD 80.40 Assessment for unpaid claims of insolvent self-insurer. If an employer currently or formerly exempted from the duty to insure by order of the department under s. 102.28 (7) (b), Stats., is unable to pay any award and if judgement against such employer is returned unsatisfied, the department shall determine payment into the fund established by s. 102.28 (8), Stats., as follows:

(1) The department shall prepare an estimate of the payments that should be made by the insolvent exempt employer for a period of one year. If the department elects to retain an insurance carrier or insurance service organization under s. 102.28 (7), Stats., the department will prepare an estimate of the charges that will be made by such carrier or organization to process, investigate and pay such claims for the same one year period. The sum of these 2 amounts shall be divided by the total number of employers exempted under s. 102.28 (2), Stats.

(2) The department shall assess and order payment within 30 days by each exempt employer the amount determined under sub. (1) to the state treasurer for deposit in the fund created by s. 102.28 (8), Stats.

(3) The department shall prepare an estimate of the total remaining liability of the insolvent exempt employer and an estimate of the amount that may be recovered from that employer, its receiver or trustee in bankruptcy. Such estimates shall be communicated to all exempt employers.

(4) At least annually following the original order the department shall estimate the amount due and payable during the following year and the charges expected from any insurance carrier or claims service for such year and assess and order payment by each exempt employer its pro rata share determined as provided by s. 102.28 (7) (b), Stats.

(5) At the time orders are issued under sub. (4) the department shall prepare an estimate of the remaining liability of the insolvent exempt employer and the amount that may reasonably be expected to be recovered from such employer, its receiver or trustee in bankruptcy. Such estimates will be communicated to all exempt employers.

(6) All money due and payable to injured employees which remain unpaid shall be considered money payable during the following year in making estimates.

(7) All money recovered by the attorney general and paid into the fund shall be used in the payment of unpaid claims and shall be taken into account in making estimates and assessments.

History: Cr. Register, September, 1986, No. 369, eff. 10-1-86.

DWD 80.41 Computation of monthly salary and reimbursement to retirement fund under s. 66.191, 1981 Stats.

(1) Fringe benefits shall not be included in the computation of salary, earnings or wages under s. 66.191, 1981 Stats., unless such benefits are income for Wisconsin income tax purposes.

(2) An eligible employee under s. 66.191, 1981 Stats., shall file with the department before an award is entered, as provided in s. 66.191, 1981 Stats., a waiver of disability annuity payments which may be due under s. 40.63, Stats., and further shall consent to reimbursement to the Wisconsin retirement fund of all disability benefits recovered under the provisions of s. 40.63, Stats.

Note: 1983 Wis. Act 191 repealed s. 66.191, 1981 Stats. However, people are still receiving benefits under this statute.

History: Cr. Register, September, 1982, No. 321, eff. 10-1-82; corrections in (title), (1), (2) made under s. 13.92 (4) (b) 7., Stats., Register March 2015 No. 711.

DWD 80.42 Vocational rehabilitation; reporting requirement. In order to determine whether or not an employee should be referred to the division of vocational rehabilitation for services, the self-insured employer or insurance carrier shall notify the department whenever temporary total disability will exceed 13 weeks. This report shall be made within 13 weeks from the date of the initial disability or when such disability can be determined, whichever is earlier, and shall include a current practitioner’s report.

History: Cr. Register, September, 1982, No. 321, eff. 10-1-82.

DWD 80.43 Fees and costs. Section 102.26, Stats., provides for a maximum attorney’s fee of 20% of the amount in dispute. Section 102.26 (3), Stats., places upon the department the responsibilities for fixing the fee and providing for the direct payment of the fee. In the exercise of this responsibility, the department shall take into account the following considerations:

(1) The department shall balance the need to preserve the maximum amount of benefits for the injured employee and the need for fees which are sufficient to insure adequate representation for claimants under ch. 102, Stats.

(2) Fees shall not be allowed on medical expenses to the extent that other sources, such as group insurance, are available to pay such expenses.

(3) Fees for permanent total disability shall not be allowed on compensation awards due beyond 500 weeks.

(4) The existence of a dispute under s. 102.26 (2), Stats., is dependent upon a disagreement after the employer or insurer has had adequate time and information to take a position on liability. Neither the holding of a hearing nor the filing of an application for a hearing alone may determine the existence of a dispute. However, a finding that a dispute exists shall not be precluded by an employer’s or insurer’s purposeful inactivity on the issue of liability.

(5) Where representation is the result of the representative’s employment by an insurance carrier, an employer, a union, a social service agency or a public agency, the representative may not charge a fee on a contingency basis.

(6) Where there has been successive representation by various representatives, the division of fees by the department shall take into account the relative value of the services performed by each representative, any concessions of disability, offers of settlement and other matters.

(7) Where a claimant appears by an attorney of record any fee shall be payable to such attorney regardless of the cooperation or involvement of agents or other non-attorneys. The division of such fee with agents or other non-attorneys shall be at the discretion of the attorney of record. If there is disagreement among successive attorneys the department will make appropriate apportionment of any or all fees for services.

History: Cr. Register, September, 1982, No. 321, eff. 10-1-82; cr. (7), Register, September, 1986, No. 369, eff. 10-1-86.

DWD 80.46 Contribution to support of unestranged surviving parent. In assessing support under s. 102.48, Stats., the payment of room and board by a child to his or her parent shall not be considered as contribution to support of the parent.

History: Cr. Register, September, 1982, No. 321, eff. 10-1-82.

DWD 80.47 Medical release of employee for restricted work in the healing period. Even though an employee could return to a restricted type of work during the healing period, unless suitable employment within the physical and mental limitations of the employee is furnished by the employer or some other employer, compensation for temporary disability shall continue during the healing period.

History: Cr. Register, September, 1982, No. 321, eff. 10-1-82.

DWD 80.48 Reassignment of death benefits. When a spouse who is entitled to death benefits remarries, the department shall reassign the death benefits to the children designated in ss. 102.51 (1) and 102.49, Stats., unless a showing is made that undue hardship would result for the spouse because of the reassignment.

History: Cr. Register, September, 1982, No. 321, eff. 10-1-82.

DWD 80.49 Vocational rehabilitation benefits.

(1) Purpose. The primary purpose of vocational rehabilitation benefits is to provide a method to restore an injured worker as nearly as possible to the worker’s preinjury earning capacity and potential.

(2) Eligibility. The determination of eligibility for vocational rehabilitation training and whether a person is a suitable subject for training is the responsibility of the division of vocational rehabilitation. If the division of vocational rehabilitation determines that an employee is eligible to receive services under 29 USC 701 to 797b, but that the division of vocational rehabilitation cannot provide those services for the employee, the employee may select a private rehabilitation specialist certified by the department to determine whether the employee can return to suitable employment without rehabilitative training and whether rehabilitative training is necessary to develop a retraining program to restore as nearly as possible the employee to his or her preinjury earning capacity and potential.

(3) 80-week rule. Extension of vocational rehabilitation benefits beyond 80 weeks may not be authorized pursuant to s. 102.61 (1) or (1m), Stats., if the primary purpose of further training is to improve upon preinjury earning capacity rather than restoring it.

(4) Definitions. In subs. (4) to (11), all of the following definitions apply:

(a) “IPE” means an individualized plan for employment developed by a specialist which identifies the vocational goal of a retraining program, the intermediate objectives to reach that goal and the methods by which progress will be measured.

(b) “Retraining program” means a course of instruction on a regular basis which provides an employee with marketable job skills or enhances existing job skills to make them marketable.

(c) “Specialist” means a person certified by the department to provide vocational rehabilitation services to injured employees under s. 102.61 (1m), Stats.

(d) Except as provided in sub. (5), “suitable employment” means a job within the employee’s permanent work restrictions for which the employee has the necessary physical capacity, knowledge, transferable skills and ability and which pays at least 85 percent of the employee’s preinjury average weekly wage.

(5) Suitable employment exceptions.

(a) A job offer at or above 85% of the average weekly wage shall not constitute suitable employment if:

1. An employee’s education, training or employment experience demonstrates a career or vocational path; the average weekly wage on the date of injury does not reflect the earnings which the employee could reasonably have expected in the demonstrated career or vocational path; and the permanent work restrictions caused by the injury impede the employee’s ability to pursue the demonstrated career or vocational path; or,

2. The employee’s average weekly wage is calculated pursuant to the part-time wage rules in s. 102.11 (1) (f), Stats., or s. DWD 80.51 (4) or (5) and the employee’s average weekly wage for compensation purposes exceeds the gross average weekly wages of the part-time employment.

(b) The average weekly wage for purposes of determining suitable employment under par. (a) 1. shall be determined by expert vocational evidence regarding the average weekly wage that the employee may have reasonably expected in the demonstrated career or vocational path.

(c) The average weekly wage for purposes of determining suitable employment under par. (a) 2. shall be determined by expert vocational evidence regarding the employee’s age, educational potential, past job experience, aptitude, proven abilities, and ambitions on the date of injury.

(6) Specialist certification.

(a) A person may apply to the department for certification as a specialist at any time. The department may require applicants to submit, and certified specialists to regularly report, information describing their services, including the geographic areas served by the specialist and the nature, cost and outcome of services provided to employees under this section.

(b) After evaluating the information submitted under par. (a), the department shall certify a person as a specialist if the person has a license or certificate which is current, valid and otherwise in good standing as one of the following, or may certify the person as provided in par. (c):

1. Certified professional counselor with specialty in vocational rehabilitation from the department of safety and professional services.

2. Certified disability management specialist from the certification of disability management specialist commission.

3. Certified rehabilitation counselor from the commission on rehabilitation counselor certification.

4. Certified vocational evaluator from the commission on certification of work adjustment and vocational evaluation specialists.

Note: The Commission on Rehabilitation Counselor Certification (CRCC) is located at 1699 E. Woodfield Road, Suite 300, Schaumburg, Illinois 60173. The Certification of Disability Management Specialist Commission (CDMS) is located at 8735 W. Higgins Road, Suite 300, Chicago, Illinois 60631. The Commission on Certification of Work Adjustment and Vocational Evaluation Specialists is located at 7910 Woodmont Avenue, Suite 1430, Bethesda, Maryland 20814-3015.

(c) The department may certify a person as a specialist if the person has state or national certification, licensing or accreditation in vocational rehabilitation other than that required in par. (b) which is acceptable to the department. The department may require a specialist certified under this paragraph to serve a period of probation up to 3 years as a condition of certification. The department shall specify the conditions of the probationary certification. The department may revoke the probationary certification at any time without a hearing for conduct which violated the conditions of probation established by the department or conduct sufficient to decertify the specialist under par. (e).

(d) Unless certification is suspended or revoked under par. (e), certification by the department under par. (b) is valid for 3 years. If a specialist applies to the department to renew his or her certification before the expiration of the certification period, the certification shall remain in effect until the department renews or denies the application to renew. A renewal is valid for three years.

(e) Only the department may initiate a proceeding to suspend or revoke a specialist’s certification under this section. The department may suspend or revoke a specialist’s certification, after providing the specialist with a hearing, when the department determines that the specialist did not maintain a current, valid certificate or license specified in par. (b) or the specialist intentionally or repeatedly:

1. Fails to comply with the provisions of ch. 102, Stats., or ch. DWD 80;

2. Fails to comply with the orders, rulings, reporting requirements or other instructions of the department or its representatives;

3. Charges excessive fees compared to the value of the services performed or ordered to be performed; or,

4. Misrepresents the employee’s work history, age, education, medical history or condition, diagnostic test results or other factors significantly related to an employee’s retraining program.

(f) The department shall maintain a current listing of all specialists certified by the department, including the areas they serve, and provide the list upon request.

(7) Employee choice.

(a) At the end of the medical healing period, the self-insured employer or insurance carrier shall notify the employee, on a form provided by the department, of the employee’s potential eligibility to receive rehabilitation services.