Chapter 102

102.315(8) (8) Coverage of certain employees.

102.315(8)(a) (a) A sole proprietor, a partner, or a member of a limited liability company is not eligible for worker’s compensation benefits under a policy issued under sub. (3), (4), or (5) (a) unless the sole proprietor, partner, or member elects coverage under s. 102.075 by an endorsement on the policy naming the sole proprietor, partner, or member who has so elected.

102.315(8)(b) (b) An officer of a corporation is covered for worker’s compensation benefits under a policy issued under sub. (3), (4), or (5) (a), unless the officer elects under s. 102.076 not to be covered under the policy by an endorsement on the policy naming the officer who has so elected.

102.315(8)(c) (c) An employee leasing company shall obtain a worker’s compensation insurance policy that is separate from a policy covering the employees whom it leases to its clients to cover the employees of the employee leasing company who are not leased employees.

102.315(9) (9) Premiums.

102.315(9)(a) (a) An insurer that issues a policy under sub. (3), (4), or (5) (a) may charge a premium for coverage under that policy that complies with the applicable classifications, rules, rates, and rating plans filed with and approved by the commissioner of insurance under s. 626.13.

102.315(9)(b) (b) For a policy issued under sub. (3) in which an employee leasing company is the first named insured or for a master policy issued under sub. (4) or (5) (a), an insurer may obligate only the employee leasing company to pay premiums due for a client’s coverage under the policy and may not recover any unpaid premiums due for that coverage from the client.

102.315(9)(c) (c) This subsection does not prohibit an insurer from doing any of the following:

102.315(9)(c)1. 1. Collecting premiums or other charges due with respect to a client by means of list billing through an employee leasing company.

102.315(9)(c)2. 2. Requiring an employee leasing company to maintain a letter of credit or other form of security to ensure payment of a premium.

102.315(9)(c)3. 3. Issuing policies that have a common renewal date to all, or a class of all, clients of an employee leasing company.

102.315(9)(c)4. 4. Grouping together the clients of an employee leasing company for the purpose of offering dividend eligibility and paying dividends to those clients in compliance with s. 631.51.

102.315(9)(c)5. 5. Applying a discount to the premium charged with respect to a client as permitted by the bureau.

102.315(9)(c)6. 6. Applying a retrospective rating option for determining the premium charged with respect to a client. No insurer or employee leasing company may impose on, allocate to, or collect from a client a penalty under a retrospective rating option arrangement. This subdivision does not prohibit an insurer from requiring an employee leasing company to pay a penalty under a retrospective rating option arrangement with respect to a client of the employee leasing company.

102.315(10) (10) Cancellation, termination, and nonrenewal of policies.

102.315(10)(a) (a)

102.315(10)(a)1. 1. A policy issued under sub. (3) in which the employee leasing company is the first named insured and a policy issued under sub. (4) or (5) (a) may be cancelled, terminated, or nonrenewed as provided in subds. 2. to 4.

102.315(10)(a)2. 2. The insureds under a policy described in subd. 1. may cancel the policy during the policy period if both the employee leasing company and the client agree to the cancellation, the cancellation is confirmed by the employee leasing company promptly providing written confirmation of the cancellation to the client or by the client agreeing to the cancellation in writing, and the insurer provides written notice of the cancellation to the department as required under s. 102.31 (2) (a).

102.315(10)(a)3. 3. Subject to subd. 4., an insurer may cancel, terminate, or nonrenew a policy described in subd. 1. by providing written notice of the cancellation, termination, or nonrenewal to the insured employee leasing company and to the department as required under s. 102.31 (2) (a) and by providing that notice to the insured client. The insurer is not required to state in the notice to the insured client the facts on which the decision to cancel, terminate, or nonrenew the policy is based. Except as provided in s. 102.31 (2) (b), cancellation or termination of a policy under this subdivision for any reason other than nonrenewal is not effective until 30 days after the insurer has provided written notice of the cancellation or termination to the insured employee leasing company, the insured client, and the department. Except as provided in s. 102.31 (2) (b), nonrenewal of a policy under this subdivision is not effective until 60 days after the insurer has provided written notice of the cancellation or termination to the insured employee leasing company, the insured client, and the department.

102.315(10)(a)4. 4. If an employee leasing company terminates an employee leasing agreement with a client in its entirety, an insurer may cancel or terminate a policy described in subd. 1. covering that client during the policy period by providing written notice of the cancellation or termination to the insured employee leasing company and the department as required under s. 102.31 (2) (a) and by providing that notice to the insured client. The insurer shall state in the notice to the insured client that the policy is being cancelled or terminated due to the termination of the employee leasing agreement. Except as provided in s. 102.31 (2) (b), cancellation or termination of a policy under this subdivision is not effective until 30 days after the insurer has provided written notice of the cancellation or termination to the insured employee leasing company, the insured client, and the department.

102.315(10)(b) (b)

102.315(10)(b)1. 1. A policy issued under sub. (3) in which the client is the first named insured may be cancelled, terminated, or nonrenewed as provided in subds. 2. to 4.

102.315(10)(b)2. 2. The insureds under a policy described in subd. 1. may cancel the policy during the policy period if both the employee leasing company and the client agree to the cancellation, the cancellation is confirmed by the employee leasing company promptly providing written confirmation of the cancellation to the client or by the client agreeing to the cancellation in writing, and the insurer provides written notice of the cancellation to the department as required under s. 102.31 (2) (a).

102.315(10)(b)3. 3. An insurer may cancel, terminate, or nonrenew a policy described in subd. 1., including cancellation or termination of a policy providing continued coverage under subd. 4., by providing written notice of the cancellation, termination, or nonrenewal to the insured employee leasing company and to the department as required under s. 102.31 (2) (a) and by providing that notice to the insured client. Except as provided in s. 102.31 (2) (b), cancellation or termination of a policy under this subdivision for any reason other than nonrenewal is not effective until 30 days after the insurer has provided written notice of the cancellation or termination to the insured employee leasing company, the insured client, and the department. Except as provided in s. 102.31 (2) (b), nonrenewal of a policy under this subdivision is not effective until 60 days after the insurer has provided written notice of the cancellation or termination to the insured employee leasing company, the insured client, and the department.

102.315(10)(b)4. 4. If an employee leasing agreement is terminated during the policy period of a policy described in subd. 1., an insurer shall cancel the employee leasing company’s coverage under the policy by an endorsement to the policy and coverage of the client under the policy shall continue as to all employees of the client unless the policy is cancelled or terminated as permitted under subd. 3.

102.315 History History: 2007 a. 185; 2015 a. 180; 2021 a. 29.

102.32 102.32 Continuing liability; guarantee settlement, gross payment.

102.32(1m) (1m) In any case in which compensation payments for an injury have extended or will extend over 6 months or more after the date of the injury or in any case in which death benefits are payable, any party in interest may, in the discretion of the department or the division, be discharged from, or compelled to guarantee, future compensation payments by doing any of the following:

102.32(1m)(a) (a) Depositing the present value of the total unpaid compensation upon a 5 percent interest discount basis with a credit union, savings bank, savings and loan association, bank, or trust company designated by the department or the division.

102.32(1m)(b) (b) Purchasing an annuity, within the limitations provided by law, from an insurance company licensed in this state that is designated by the department.

102.32(1m)(c) (c) Making payment in gross upon a 5 percent interest discount basis to be approved by the department or the division.

102.32(1m)(d) (d) In cases in which the time for making payments or the amounts of payments cannot be definitely determined, furnishing a bond, or other security, satisfactory to the department or the division for the payment of compensation as may be due or become due. The acceptance of the bond, or other security, and the form and sufficiency of the bond or other security, shall be subject to the approval of the department or the division. If the employer or insurer is unable or fails to immediately procure the bond, the employer or insurer, in lieu of procuring the bond, shall deposit with a credit union, savings bank, savings and loan association, bank, or trust company designated by the department or the division the maximum amount that may reasonably become payable in those cases, to be determined by the department or the division at amounts consistent with the extent of the injuries and the law. The bonds and deposits may be reduced only to satisfy claims and may be withdrawn only after the claims which they are to guarantee are fully satisfied or liquidated under par. (a), (b), or (c).

102.32(5) (5) Any insured employer may, in the discretion of the department or the division, compel the insurer to discharge, or to guarantee payment of, the employer’s liabilities in any case described in sub. (1m) and by that discharge or guarantee release the employer from liability for compensation in that case, except that if for any reason a bond furnished or deposit made under sub. (1m) (d) does not fully protect the beneficiary of the bond or deposit, the compensation insurer or insured employer, as the case may be, shall still be liable to that beneficiary.

102.32(6) (6) 

102.32(6)(a) (a) If compensation is due for permanent disability following an injury or if death benefits are payable, payments shall be made to the employee or dependent on a monthly basis as provided in pars. (b) to (e).

102.32(6)(b) (b) Subject to par. (d), if the employer or the employer’s insurer concedes liability for an injury that results in permanent disability and if the extent of the permanent disability can be determined based on a minimum permanent disability rating promulgated by the department by rule, compensation for permanent disability shall begin within 30 days after the end of the employee’s healing period or the date on which compensation for temporary disability ends due to the employee’s return to work, whichever is earlier.

102.32(6)(c) (c) Subject to par. (d), if the employer or the employer’s insurer concedes liability for an injury that results in permanent disability, but the extent of the permanent disability cannot be determined without a medical report that provides the basis for a minimum permanent disability rating, compensation for permanent disability shall begin within 30 days after the employer or the employer’s insurer receives a medical report that provides a basis for a permanent disability rating.

102.32(6)(d) (d) The department shall promulgate rules for determining when compensation for permanent disability shall begin in cases in which the employer or the employer’s insurer concedes liability, but disputes the extent of permanent disability.

102.32(6)(e) (e) Payments for permanent disability, including payments based on minimum permanent disability ratings promulgated by the department by rule, shall continue on a monthly basis and shall accrue and be payable between intermittent periods of temporary disability so long as the employer or insurer knows the nature of the permanent disability.

102.32(6m) (6m) 

102.32(6m)(a) (a) The department or the division may direct an advance on a payment of unaccrued compensation for permanent disability or death benefits if the department or the division determines that the advance payment is in the best interest of the injured employee or the employee’s dependents. In directing the advance, the department or the division shall give the employer or the employer’s insurer an interest credit against its liability. The credit shall be computed at 5 percent. An injured employee or dependent may receive no more than 3 advance payments per calendar year under this paragraph.

102.32(6m)(b) (b) Notwithstanding par. (a), an employer or an employer’s insurer may voluntarily make a lump sum payment of unaccrued compensation for permanent partial disability in undisputed claims to an injured employee or the employee’s dependents with no interest credit against the liability of the employer or the employer’s insurer.

102.32(7) (7) No lump sum settlement shall be allowed in any case of permanent total disability upon an estimated life expectancy, except upon consent of all parties, after hearing and finding by the division that the interests of the injured employee will be conserved by the lump sum settlement.

102.32 History History: 1977 c. 195; 1979 c. 278; 1983 a. 98, 368, 538; 1991 a. 221; 1993 a. 492; 2001 a. 37; 2003 a. 144; 2005 a. 172; 2007 a. 185; 2015 a. 55; 2023 a. 213.

102.32 Cross-reference Cross-reference: See also ss. DWD 80.32, 80.33, 80.39, and 80.50, Wis. adm. code.

102.32 Annotation The interest credit under sub. (6) [now sub. (6m) (a)] was properly calculated on a per annum basis rather than a one-time simple interest basis. Hamm v. LIRC, 223 Wis. 2d 183, 588 N.W.2d 358 (Ct. App. 1998), 98-0051.

102.33 102.33 Forms and records; public access.

102.33(1) (1) The department and the division shall print and furnish free to any employer or employee any blank forms that are necessary to facilitate efficient administration of this chapter. The department and the division shall keep any record books or records that are necessary for the proper and efficient administration of this chapter.

102.33(2) (2) 

102.33(2)(a) (a) Except as provided in pars. (b) and (c), the records of the department, the division, and the commission, related to the administration of this chapter are subject to inspection and copying under s. 19.35 (1).

102.33(2)(b) (b) Except as provided in this paragraph and par. (d), a record maintained by the department, the division, or the commission that reveals the identity of an employee who claims worker’s compensation benefits, the nature of the employee’s claimed injury, the employee’s past or present medical condition, the extent of the employee’s disability, or the amount, type, or duration of benefits paid to the employee and a record maintained by the department that reveals any financial information provided to the department by a self-insured employer or by an applicant for exemption under s. 102.28 (2) (b) are confidential and not open to public inspection or copying under s. 19.35 (1). The department, the division, or the commission may deny a request made under s. 19.35 (1) or, subject to s. 102.17 (2m) and (2s), refuse to honor a subpoena issued by an attorney of record in a civil or criminal action or special proceeding to inspect and copy a record that is confidential under this paragraph, unless one of the following applies:

102.33(2)(b)1. 1. The requester is the employee who is the subject of the record or an attorney or authorized agent of that employee. An attorney or authorized agent of an employee who is the subject of a record shall provide a written authorization for inspection and copying from the employee if requested by the department, the division, or the commission.

102.33(2)(b)2. 2. The record that is requested contains confidential information concerning a worker’s compensation claim and the requester is an insurance carrier or employer that is a party to any worker’s compensation claim involving the same employee or an attorney or authorized agent of that insurance carrier or employer, except that the department, the division, or the commission is not required to do a random search of its records and may require the requester to provide the approximate date of the injury and any other relevant information that would assist the department, the division, or the commission in finding the record requested. An attorney or authorized agent of an insurance carrier or employer that is a party to an employee’s worker’s compensation claim shall provide a written authorization for inspection and copying from the insurance carrier or employer if requested by the department, the division, or the commission.

102.33(2)(b)3. 3. The record that is requested contains financial information provided by a self-insured employer or by an applicant for exemption under s. 102.28 (2) (b) and the requester is the self-insured employer or applicant for exemption or an attorney or authorized agent of the self-insured employer or applicant for exemption. An attorney or authorized agent of the self-insured employer or of the applicant for exemption shall provide a written authorization for inspection and copying from the self-insured employer or applicant for exemption if requested by the department.

102.33(2)(b)4. 4. A court of competent jurisdiction in this state orders the department, the division, or the commission to release the record.

102.33(2)(b)5. 5. The requester is the department of children and families or a county child support agency under s. 59.53 (5), the request is made under s. 49.22 (2m), and the request is limited to the name and address of the employee who is the subject of the record, the name and address of the employee’s employer, and any financial information about that employee contained in the record.

102.33(2)(b)6. 6. The department of revenue requests the record for the purpose of locating a person, or the assets of a person, who has failed to file tax returns, who has underreported taxable income or who is a delinquent taxpayer; identifying fraudulent tax returns; or providing information for tax-related prosecutions.

102.33(2)(b)7. 7. The requester is the department of health services, a county department of social services under s. 46.215 or 46.22, or a county department of human services under s. 46.23, and the request is limited to the name and address of the employee who is the subject of the record, the name and address of the employee’s employer, and any financial information about that employee contained in the record.

102.33(2)(c) (c) A record maintained by the department, the division, or the commission that contains employer or insurer information obtained from the Wisconsin compensation rating bureau under s. 102.31 (8) or 626.32 (1) (a) is confidential and not open to public inspection or copying under s. 19.35 (1) unless the Wisconsin compensation rating bureau authorizes public inspection or copying of that information.

102.33(2)(d) (d)

102.33(2)(d)1. 1. In this paragraph:

102.33(2)(d)1.a. a. “Government unit” has the meaning given in s. 108.02 (17) and also includes a corresponding unit in the government of another state or a unit of the federal government.

102.33(2)(d)1.b. b. “Institution of higher education” has the meaning given in s. 108.02 (18).

102.33(2)(d)1.c. c. “Nonprofit research organization” means an organization that is exempt from federal income tax under section 501 (a) of the Internal Revenue Code and whose mission is to engage in research.

102.33(2)(d)2. 2. The department, the division, or the commission may release information that is confidential under par. (b) to a government unit, an institution of higher education, or a nonprofit research organization for purposes of research and may release information that is confidential under par. (c) to those persons for that purpose if the Wisconsin compensation rating bureau authorizes that release. A government unit, institution of higher education, or nonprofit research organization may not permit inspection or disclosure of any information released to it under this subdivision that is confidential under par. (b) unless the department, the division, or the commission authorizes that inspection or disclosure and may not permit inspection or disclosure of any information released to it under this subdivision that is confidential under par. (c) unless the department, the division, or the commission, and the Wisconsin compensation rating bureau, authorize the inspection or disclosure. A government unit, institution of higher education, or nonprofit research organization that obtains any confidential information under this subdivision for purposes of research shall provide the results of that research free of charge to the person that released or authorized the release of that information.

102.33 History History: 1975 c. 147 s. 54; 1989 a. 64; 1991 a. 85; 1995 a. 117; 1997 a. 191, 237; 2001 a. 37, 107; 2005 a. 172; 2009 a. 180; 2015 a. 55; 2021 a. 232.

102.35 102.35 Penalties.

102.35(1) (1) Every employer and every insurance company that fails to keep the records or to make the reports required by this chapter or that knowingly falsifies such records or makes false reports shall pay a work injury supplemental benefit surcharge to the state of not less than $10 nor more than $100 for each offense. The department may waive or reduce a surcharge imposed under this subsection if the employer or insurance company that violated this subsection requests a waiver or reduction of the surcharge within 45 days after the date on which notice of the surcharge is mailed to the employer or insurance company and shows that the violation was due to mistake or an absence of information. A surcharge imposed under this subsection is due within 30 days after the date on which notice of the surcharge is mailed to the employer or insurance company. Interest shall accrue on amounts that are not paid when due at the rate of 1 percent per month. All surcharges and interest payments received under this subsection shall be deposited in the fund established under s. 102.65.

102.35(2) (2) Any employer, or duly authorized agent thereof, who, without reasonable cause, refuses to rehire an employee injured in the course of employment, or who, because of a claim or attempt to claim compensation benefits from such employer, discriminates or threatens to discriminate against an employee as to the employee’s employment, shall forfeit to the state not less than $50 nor more than $500 for each offense. No action under this subsection may be commenced except upon request of the department.

102.35(3) (3) Any employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment, when suitable employment is available within the employee’s physical and mental limitations, upon order of the department or the division, has exclusive liability to pay to the employee, in addition to other benefits, the wages lost during the period of such refusal, not exceeding one year’s wages. In determining the availability of suitable employment the continuance in business of the employer shall be considered and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall govern.

102.35 History History: 1975 c. 147; 1977 c. 29, 195; 2003 a. 144; 2005 a. 172; 2011 a. 183; 2015 a. 55.

102.35 Annotation An employer cannot satisfy sub. (3) by rehiring with an intent to fire at a later date. Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 330 N.W.2d 606 (Ct. App. 1983).

102.35 Annotation An employer’s termination of an employee, during the healing period, because of the work-related injury constitutes a refusal to rehire without reasonable cause in violation of sub. (3). To require a terminated employee to report to work in order to recover under sub. (3) as a prerequisite to recovery under sub. (3) is an unreasonable construction of the statute and would impose an unreasonable burden on any employee. L&H Wrecking Co. v. LIRC, 114 Wis. 2d 504, 339 N.W.2d 344 (Ct. App. 1983). But see Anderson v. LIRC, 2021 WI App 44, 398 Wis. 2d 668, 963 N.W.2d 89, 20-0027.

102.35 Annotation An employer has the burden to prove that rehiring was in good faith. West Allis School District v. DILHR, 116 Wis. 2d 410, 342 N.W.2d 415 (1984).

102.35 Annotation A one-day absence from work due to an injury triggered the rehire provision under sub. (3). Link Industries, Inc. v. LIRC, 141 Wis. 2d 551, 415 N.W.2d 574 (Ct. App. 1987).

102.35 Annotation For liability under sub. (3), the employee must show that the employee: 1) was an employee; 2) sustained a compensable injury; 3) applied for rehire; and 4) had the application for rehire refused due to the injury. Universal Foods Corp. v. LIRC, 161 Wis. 2d 1, 467 N.W.2d 793 (Ct. App. 1991).

102.35 Annotation Sub. (3) does not bar an employee from seeking arbitration under a collective bargaining agreement to determine whether termination following an injury violated the agreement. Sub. (3) relates to harm other than worker injuries and is not subject to the exclusive remedy provision of s. 102.03 (2); the “exclusive liability” language in sub. (3) does not bar lawsuits but imposes a penalty on the employer for refusal to hire. County of La Crosse v. WERC, 182 Wis. 2d 15, 513 N.W.2d 579 (1994).

102.35 Annotation A Labor and Industry Review Commission interpretation of sub. (3), that a violation requires an employee who is unable to return to a prior employment to express an interest in reemployment in a different capacity, was reasonable. Hill v. LIRC, 184 Wis. 2d 101, 516 N.W.2d 441 (Ct. App. 1994). See also Anderson v. LIRC, 2021 WI App 44, 398 Wis. 2d 668, 963 N.W.2d 89, 20-0027.

102.35 Annotation If an employer shows that it refused to rehire an injured employee because the employee’s position was eliminated to reduce costs and increase efficiency, reasonable cause has been shown under sub. (3). Ray Hutson Chevrolet, Inc. v. LIRC, 186 Wis. 2d 118, 519 N.W.2d 713 (Ct. App. 1994).

102.35 Annotation An attendance policy that includes absences due to work-related injuries as part of the total of absences allowed before termination violates sub. (3). Great Northern Corp. v. LIRC, 189 Wis. 2d 313, 525 N.W.2d 361 (Ct. App. 1994).

102.35 Annotation Sub. (3) does not contemplate requiring employers to either deviate from a facially reasonable and uniformly applied policy, or explain why it would be burdensome to do so, when a returning employee requests the deviation to accommodate a non-work and non-injury-related personal need. Sub. (3) does not contain “accommodation” requirements and does not require an employer to change its legitimate and long-standing safety policies in order to assist an employee in meeting personal obligations. DeBoer Transportation, Inc. v. Swenson, 2011 WI 64, 335 Wis. 2d 599, 804 N.W.2d 658, 09-0564.

102.35 Annotation When an employee’s sub. (3) claim is predicated upon an employer’s allegedly unreasonable refusal to rehire the employee to fill a different position than the one the employee previously occupied, the employee must demonstrate that he or she made the employer aware, in some fashion, of the employee’s willingness to accept other work. Anderson v. LIRC, 2021 WI App 44, 398 Wis. 2d 668, 963 N.W.2d 89, 20-0027.

102.35 Annotation Neither sub. (2) nor case law authorizes employees who are terminated for filing worker’s compensation claims to bring wrongful discharge claims against their employers. Brown v. Pick ’n Save Food Stores, 138 F. Supp. 2d 1133 (2001).

102.37 102.37 Employers’ records. Every employer of 3 or more persons and every employer who is subject to this chapter shall keep a record of all accidents causing death or disability of any employee while performing services growing out of and incidental to the employment. This record shall give the name, address, age, and wages of the deceased or injured employee, the time and causes of the accident, the nature and extent of the injury, and any other information the department may require by rule or general order. Reports based upon this record shall be furnished to the department at such times and in such manner as the department may require by rule or general order, in a format approved by the department.

102.37 History History: 1975 c. 147 s. 54; 1985 a. 83; 2001 a. 37.

102.38 102.38 Records and reports of payments. Every insurance company that transacts the business of compensation insurance, and every employer who is subject to this chapter, but whose liability is not insured, shall keep a record of all payments made under this chapter and of the time and manner of making the payments and shall furnish reports based upon these records and any other information to the department as the department may require by rule or general order, in a format approved by the department.

102.38 History History: 1975 c. 147 s. 54; 1975 c. 199; 1979 c. 89; 1985 a. 83; 2001 a. 37.

102.40 102.40 Reports not evidence in actions. Reports furnished to the department pursuant to ss. 102.37 and 102.38 shall not be admissible as evidence in any action or proceeding arising out of the death or accident reported.

102.42 102.42 Incidental compensation.