Chapter 102

102.83   Collection of uninsured employer payments.

102.835   Levy for delinquent payments.

102.84   Preference of required payments.

102.85   Uninsured employers; penalties.

102.87   Citation procedure.

102.88   Penalties; repeaters.

102.89   Parties to a violation.

Ch. 102 Cross-reference Cross-reference: See also ch. DWD 80, Wis. adm. code.

102.01 102.01 Definitions.

102.01(1) (1) This chapter may be referred to as the “Worker’s Compensation Act” and allowances, recoveries and liabilities under this chapter constitute “Worker’s Compensation”.

102.01(2) (2) In this chapter:

102.01(2)(ad) (ad) “Administrator” means the administrator of the division of hearings and appeals in the department of administration.

102.01(2)(af) (af) “Commission” means the labor and industry review commission.

102.01(2)(ag) (ag) “Commissioner” means a member of the commission.

102.01(2)(am) (am) “Compensation” means worker’s compensation.

102.01(2)(ap) (ap) “Department” means the department of workforce development.

102.01(2)(ar) (ar) “Division” means the division of hearings and appeals in the department of administration.

102.01(2)(bm) (bm) “General order” means such order as applies generally throughout the state to all persons, employments, places of employment or public buildings, or all persons, employments or places of employment or public buildings of a class under the jurisdiction of the department. All other orders of the department shall be considered special orders.

102.01(2)(c) (c) “Injury” means mental or physical harm to an employee caused by accident or disease, and also means damage to or destruction of artificial members, dental appliances, teeth, hearing aids and eyeglasses, but, in the case of hearing aids or eyeglasses, only if such damage or destruction resulted from accident which also caused personal injury entitling the employee to compensation therefor either for disability or treatment.

102.01(2)(d) (d) “Local governmental unit” means a political subdivision of this state; a special purpose district or taxing jurisdiction, as defined in s. 70.114 (1) (f), in this state; an instrumentality, corporation, combination, or subunit of any of the foregoing; or any other public or quasi-public corporation.

102.01(2)(dm) (dm) “Order” means any decision, rule, regulation, direction, requirement, or standard of the department or the division, or any other determination arrived at or decision made by the department or the division.

102.01(2)(e) (e) “Primary compensation and death benefit” means compensation or indemnity for disability or death benefit, other than increased, double or treble compensation or death benefit.

102.01(2)(eg) (eg) “Religious sect” means a religious body of persons, or a division of a religious body of persons, who unite in holding certain special doctrines or opinions concerning religion that distinguish those persons from others holding the same general religious beliefs.

102.01(2)(em) (em) “Secretary” means the secretary of workforce development.

102.01(2)(f) (f) “Temporary help agency” means an employer who places its employee with or leases its employees to another employer who controls the employee’s work activities and compensates the first employer for the employee’s services, regardless of the duration of the services.

102.01(2)(g) (g) Except as provided in s. 102.555 with respect to occupational deafness, “time of injury”, “occurrence of injury”, or “date of injury” means:

102.01(2)(g)1. 1. In the case of accidental injury, the date of the accident which caused the injury.

102.01(2)(g)2. 2. In the case of disease, the date of disability or, if that date occurs after the cessation of all employment that contributed to the disability, the last day of work for the last employer whose employment caused disability.

102.01(2)(gm) (gm) “Wisconsin compensation rating bureau” means the bureau provided for in s. 626.06.

102.01(2)(h) (h) “Uninsured employer” means an employer that is in violation of s. 102.28 (2).

102.01(2)(j) (j) “Uninsured employers fund” means the fund established under s. 102.80 (1).

102.01(2)(jm) (jm) “Uninsured employer surcharge” means the surcharge under s. 102.85 (4).

102.01(2)(k) (k) “Workweek” means a calendar week, starting on Sunday and ending on Saturday.

102.01 History History: 1975 c. 147 ss. 7 to 13, 54; 1975 c. 200; 1979 c. 89, 278; 1981 c. 92; 1983 a. 98, 189; 1985 a. 83; 1987 a. 179; 1989 a. 64; 1995 a. 27 ss. 3737 to 3741, 9130 (4); 1995 a. 117, 417; 1997 a. 3; 1999 a. 9, 14; 2001 a. 37; 2003 a. 139; 2007 a. 20; 2015 a. 55, 180.

102.01 Annotation In an occupational disease claim, the examiner may find the date of injury to be other than the last day of work. Royal-Globe Insurance Co. v. DILHR, 82 Wis. 2d 90, 260 N.W.2d 670 (1978).

102.01 Annotation An intentionally inflicted injury, unexpected and unforeseen by the injured party, is an accident under sub. (2) (c). Jenson v. Employers Mutual Casualty Co., 161 Wis. 2d 253, 468 N.W.2d 1 (1991). But see Peterson v. Arlington Hospitality Staffing, Inc., 2004 WI App 199, 276 Wis. 2d 746, 689 N.W.2d 61, 03-2811.

102.01 Annotation Cessation of employment under sub. (2) (g) 2. does not require that the employee no longer be employed, but requires that the employee no longer be employed in the employment that contributed to the disability. If that is the case, the employer that caused the injury is responsible. North River Insurance Co. v. Manpower Temporary Services, 212 Wis. 2d 63, 568 N.W.2d 15 (Ct. App. 1997), 96-2000.

102.01 Annotation Sub. (2) (g) sets the date of injury of an occupational disease, and s. 102.42 (1) provides that medical expenses incurred before an employee knows of the work-related injury are compensable. Read together, medical expenses in occupational disease cases are not compensable until the date of injury, but once the date is established all expenses associated with the disease, even if incurred before the date of injury, are compensable. United Wisconsin Insurance Co. v. LIRC, 229 Wis. 2d 416, 600 N.W.2d 186 (Ct. App. 1999), 97-3776.

102.01 Annotation Sub. (2) (g) 2. does not represent a comprehensive statement of a claimant’s burden of proof nor does it abrogate the requirement of s. 102.03 (1) (e) that the claimant must prove that the injury arose out of employment. It merely sets out a mechanism for fixing the time, occurrence, or date of an injury for purposes of identifying the proper employer against whom a claim may be made. White v. LIRC, 2000 WI App 244, 239 Wis. 2d 505, 620 N.W.2d 442, 00-0855.

102.01 Annotation In the case of disease, the date of disability under sub. (2) (g) 2. was the date when the employee could no longer work, not when the employee first underwent an employer-required medical examination. Virginia Surety Co. v. LIRC, 2002 WI App 277, 258 Wis. 2d 665, 654 N.W.2d 306, 02-0031.

102.01 Annotation A company in the business of loaning employees was not a “temporary help agency” under sub. (2) (f) when that company placed an employee with another employer who paid the loaning company, but without the loaning company’s knowledge assigned the employee to a third company. The statute requires that the employee is placed by the temporary help agency to the employer who will supervise that work. M.M. Schranz Roofing, Inc. v. First Choice Temporary, 2012 WI App 9, 338 Wis. 2d 420, 809 N.W.2d 880, 11-0345.

102.03 102.03 Conditions of liability.

102.03(1) (1) Liability under this chapter shall exist against an employer only where the following conditions concur:

102.03(1)(a) (a) Where the employee sustains an injury.

102.03(1)(b) (b) Where, at the time of the injury, both the employer and employee are subject to the provisions of this chapter.

102.03(1)(c) (c)

102.03(1)(c)1. 1. Where, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment.

102.03(1)(c)2. 2. Any employee going to and from his or her employment in the ordinary and usual way, while on the premises of the employer, or while in the immediate vicinity of those premises if the injury results from an occurrence on the premises; any employee going between an employer’s designated parking lot and the employer’s work premises while on a direct route and in the ordinary and usual way; any volunteer fire fighter, emergency medical responder, emergency medical services practitioner, rescue squad member, or diving team member while responding to a call for assistance, from the time of the call for assistance to the time of his or her return from responding to that call, including traveling to and from any place to respond to and return from that call, but excluding any deviations for private or personal purposes; or any fire fighter or municipal utility employee responding to a call for assistance outside the limits of his or her city or village, unless that response is in violation of law, is performing service growing out of and incidental to employment.

102.03(1)(c)3. 3. An employee is not performing service growing out of and incidental to his or her employment while going to or from employment in a private or group or employer-sponsored car pool, van pool, commuter bus service, or other ride-sharing program in which the employee participates voluntarily and the sole purpose of which is the mass transportation of employees to and from employment. An employee is not performing service growing out of and incidental to employment while engaging in a program, event, or activity designed to improve the physical well-being of the employee, whether or not the program, event, or activity is located on the employer’s premises, if participation in the program, event, or activity is voluntary and the employee receives no compensation for participation.

102.03(1)(c)4. 4. The premises of the employer include the premises of any other person on whose premises the employee performs service.

102.03(1)(c)5. 5. To enhance the morale and efficiency of public employees in this state and attract qualified personnel to the public service, it is the policy of the state that the benefits of this chapter shall extend and be granted to employees in the service of the state or of any municipality therein on the same basis, in the same manner, under the same conditions, and with like right of recovery as in the case of employees of persons, firms or private corporations. Accordingly, the same considerations, standards, and rules of decision shall apply in all cases in determining whether any employee under this chapter, at the time of the injury, was performing service growing out of and incidental to the employee’s employment. For the purposes of this subsection no differentiation shall be made among any of the classes of employers enumerated in s. 102.04 or of employees enumerated in s. 102.07; and no statutes, ordinances, or administrative regulations otherwise applicable to any employees enumerated in s. 102.07 shall be controlling.

102.03(1)(d) (d) Where the injury is not intentionally self-inflicted.

102.03(1)(e) (e) Where the accident or disease causing injury arises out of the employee’s employment.

102.03(1)(f) (f) Every employee whose employment requires the employee to travel shall be deemed to be performing service growing out of and incidental to the employee’s employment at all times while on a trip, except when engaged in a deviation for a private or personal purpose. Acts reasonably necessary for living or incidental thereto shall not be regarded as such a deviation. Any accident or disease arising out of a hazard of such service shall be deemed to arise out of the employee’s employment.

102.03(1)(g) (g) Members of the state legislature are covered by this chapter when they are engaged in performing their duties as state legislators including:

102.03(1)(g)1. 1. While performing services growing out of and incidental to their function as legislators;

102.03(1)(g)2. 2. While performing their official duties as members of committees or other official bodies created by the legislature;

102.03(1)(g)3. 3. While traveling to and from the state capital to perform their duties as legislators; and

102.03(1)(g)4. 4. While traveling to and from any place to perform services growing out of and incidental to their function as legislators, regardless of where the trip originated, and including acts reasonably necessary for living but excluding any deviations for private or personal purposes except that acts reasonably necessary for living are not deviations.

102.03(2) (2) Where such conditions exist the right to the recovery of compensation under this chapter shall be the exclusive remedy against the employer, any other employee of the same employer and the worker’s compensation insurance carrier. This section does not limit the right of an employee to bring action against any coemployee for an assault intended to cause bodily harm, or against a coemployee for negligent operation of a motor vehicle not owned or leased by the employer, or against a coemployee of the same employer to the extent that there would be liability of a governmental unit to pay judgments against employees under a collective bargaining agreement or a local ordinance.

102.03(3) (3) Providing or failing to provide any safety inspection or safety advisory service incident to a contract for worker’s compensation insurance or to a contract for safety inspections or safety advisory services does not by itself subject an insurer, an employer, an insurance service organization, a union, a union member or any agent or employee of the insurer, employer, insurance service organization or union to liability for damages for an injury resulting from providing or failing to provide the inspection or services.

102.03(4) (4) The right to compensation and the amount of the compensation shall in all cases be determined in accordance with the provisions of law in effect as of the date of the injury except as to employees whose rate of compensation is changed as provided in s. 102.43 (5) (c) or (7) or 102.44 (1) or (5) and employees who are eligible to receive private rehabilitative counseling and rehabilitative training under s. 102.61 (1m) and except as provided in s. 102.555 (12) (b).

102.03(5) (5) If an employee, while working outside the territorial limits of this state, suffers an injury on account of which the employee, or in the event of the employee’s death, his or her dependents, would have been entitled to the benefits provided by this chapter had such injury occurred within this state, such employee, or in the event of the employee’s death resulting from such injury, the dependents of the employee, shall be entitled to the benefits provided by this chapter, if at the time of such injury any of the following applies:

102.03(5)(a) (a) His or her employment is principally localized in this state.

102.03(5)(b) (b) He or she is working under a contract of hire made in this state in employment not principally localized in any state.

102.03(5)(c) (c) He or she is working under a contract made in this state in employment principally localized in another state whose worker’s compensation law is not applicable to that person’s employer.

102.03(5)(d) (d) He or she is working under a contract of hire made in this state for employment outside the United States.

102.03(5)(e) (e) He or she is a Wisconsin law enforcement officer acting under an agreement authorized under s. 175.46.

102.03(6) (6) 

102.03(6)(a) (a) In this subsection, “first responder” means an employee of or volunteer for an employer that provides fire fighting, law enforcement, or medical treatment of COVID-19, and who has regular, direct contact with, or is regularly in close proximity to, patients or other members of the public requiring emergency services, within the scope of the individual’s work for the employer.

102.03(6)(b) (b) For the purposes of benefits under this chapter, where an injury to a first responder is found to be caused by COVID-19 during the public health emergency declared by the governor under s. 323.10 on March 12, 2020, by executive order 72, and ending 30 days after the termination of the order, and where the employee has been exposed to persons with confirmed cases of COVID-19 in the course of employment, the injury is presumed to be caused by the individual’s employment.

102.03(6)(c) (c) An injury claimed under par. (b) must be accompanied by a specific diagnosis by a physician or by a positive COVID-19 test.

102.03(6)(d) (d) An injury claimed under par. (b) may be rebutted by specific evidence that the injury was caused by exposure to COVID-19 outside of the first responder’s work for the employer.

102.03 History History: 1971 c. 148, 307, 324; 1975 c. 147 ss. 15, 54; 1977 c. 195, 272, 418; 1979 c. 278; 1981 c. 92; 1983 a. 98; 1985 a. 83; 1993 a. 49, 370, 490, 492; 2005 a. 172; 2007 a. 185; 2009 a. 206; 2011 a. 183; 2015 a. 180; 2017 a. 12; 2019 a. 185.

102.03 Annotation Committee Note, 1971: The Wisconsin Supreme Court in the case of Halama v. ILHR Department, 48 Wis. 2d 328 (1970), suggested that consideration be given to extending coverage to an employee who is injured while going to or from work on a direct route between two portions of the employer’s premises, i.e., parking lot and work premises. [Bill 371-A]

102.03 Annotation The department correctly found on a claim for death benefits for an employee murdered while she alone remained in an office that had been vacated by all other employees, that the accident arose out of the deceased’s employment since the isolated work environment in which the deceased worked constituted a zone of special danger, and hence the positional risk doctrine was applicable. Allied Manufacturing, Inc. v. DILHR, 45 Wis. 2d 563, 173 N.W.2d 690 (1970).

102.03 Annotation The holding in Brown, 9 Wis. 2d 555 (1960), that causation legally sufficient to support compensation does not require a showing of strain or exertion greater than that normally required by the employee’s work efforts, was not intended to preclude a doctor determining causation, from considering whether the employee was engaged in usual work at the time of injury. However, the doctor should not automatically conclude each time an employee is injured while performing a task previously performed on a regular basis that the injury was caused by a preexisting condition rather than employment. Pitsch v. DILHR, 47 Wis. 2d 55, 176 N.W.2d 390 (1970).

102.03 Annotation When a herniated disc was diagnosed within a few days after the claimed injury, the evidence did not justify the department’s finding that the employee did not meet the burden of proof. Erickson v. DILHR, 49 Wis. 2d 114, 181 N.W.2d 495 (1970).

102.03 Annotation The Department of Industry, Labor and Human Relations cannot divide liability for compensation among successive employers for the effects of successive injuries in the absence of evidence to sustain a finding that the disability arose from the successive injuries, nor can it assess all liability against one of several employers nor divide liability equally among each of several employers if there is no evidence to support a finding that the injury or injuries contributed to the disability in that manner. Semons Department Store v. DILHR, 50 Wis. 2d 518, 184 N.W.2d 871 (1971).

102.03 Annotation While susceptibility to further injury does not necessarily establish a permanent disability under the “as is” doctrine, an employee’s predisposition to injury does not relieve a present employer from liability if the employee becomes injured due to the employment even though the injury may not have caused disability in another person. Semons Department Store v. DILHR, 50 Wis. 2d 518, 184 N.W.2d 871 (1971).

102.03 Annotation A salesperson on a trip who deviated to the extent of spending several hours in a tavern before being killed on his ordinary route home may have been in the course of employment, in which case his estate would be entitled to compensation. Lager v. DILHR, 50 Wis. 2d 651, 185 N.W.2d 300 (1971).

102.03 Annotation A wife cannot assert a separate and independent cause of action against her husband’s employer for loss of consortium due to injuries sustained by the husband in an industrial accident covered by this chapter. Rosencrans v. Wisconsin Telephone Co., 54 Wis. 2d 124, 194 N.W.2d 643 (1972).

102.03 Annotation A commission finding that the deceased was performing services when killed while walking on a Milwaukee street at 3 a.m. while intoxicated was sustained. City of Phillips v. DILHR, 56 Wis. 2d 569, 202 N.W.2d 249 (1972).

102.03 Annotation Members of a partnership are employers of the employees of the partnership. An employee cannot bring a third-party action against a member of the employing partnership. Candler v. Hardware Dealers Mutual Insurance Co., 57 Wis. 2d 85, 203 N.W.2d 659 (1973).

102.03 Annotation A salesperson, employed on a part-salary and part-commission basis, who travelled each day from his home, servicing and soliciting orders within a prescribed territory, using a delivery truck furnished by his employer whose office he was not required to report to, was performing services incidental to employment when he fell on his icy driveway going to his delivery truck to leave for his first call. Black River Dairy Products, Inc. v. DILHR, 58 Wis. 2d 537, 207 N.W.2d 65 (1973).

102.03 Annotation Since the decedent’s employment status for services rendered in this state was substantial and not transitory, and the relationship was not interrupted by cessation of work for the Wisconsin employer, the department erred when it predicated its denial of benefits on the employer’s conflicting testimony that during the year in which the employee met his death his working time in Wisconsin had been reduced to 10 percent. Simonton v. DILHR, 62 Wis. 2d 112, 214 N.W.2d 302 (1974).

102.03 Annotation Under sub. (1) (f), no purpose of the employer was served by an extended deviation to test road conditions in bad weather to determine if visiting a boyfriend or going on a hunting trip the next day would be feasible, nor was it a reasonably necessary for living or incidental thereto. Hunter v. DILHR, 64 Wis. 2d 97, 218 N.W.2d 314 (1974).

102.03 Annotation Under the four-element test for deciding whether a worker was a loaned or special employee, the first element, actual or implied consent to work for the special employer, was negated by the existence of a work order providing that the plaintiff would not be employed by the special employer for a period of 90 days, and by the absence of any other evidence indicating consent; hence, the plaintiff was a business invitee and not an employee at the time of the accident. Nelson v. L.&J. Press Corp., 65 Wis. 2d 770, 223 N.W.2d 607 (1974).