Chapter 102

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.

102.42(1) (1) Treatment of employee. Subject to the limitations under sub. (1p), the employer shall supply such medical, surgical, chiropractic, psychological, podiatric, dental, and hospital treatment, medicines, medical and surgical supplies, crutches, artificial members, appliances, and training in the use of artificial members and appliances, or, at the option of the employee, Christian Science treatment in lieu of medical treatment, medicines, and medical supplies, as may be reasonably required to cure and relieve from the effects of the injury, and to attain efficient use of artificial members and appliances, and in case of the employer’s neglect or refusal seasonably to do so, or in emergency until it is practicable for the employee to give notice of injury, the employer shall be liable for the reasonable expense incurred by or on behalf of the employee in providing such treatment, medicines, supplies, and training. When the employer has knowledge of the injury and the necessity for treatment, the employer’s failure to tender the necessary treatment, medicines, supplies, and training constitutes such neglect or refusal. The employer shall also be liable for reasonable expense incurred by the employee for necessary treatment to cure and relieve the employee from the effects of occupational disease prior to the time that the employee knew or should have known the nature of his or her disability and its relation to employment, and as to such treatment subs. (2) and (3) shall not apply. The obligation to furnish such treatment and appliances shall continue as required to prevent further deterioration in the condition of the employee or to maintain the existing status of such condition whether or not healing is completed.

102.42(1m) (1m) Liability for unnecessary treatment. If an employee who has sustained a compensable injury undertakes in good faith invasive treatment that is generally medically acceptable, but that is unnecessary, the employer shall pay disability indemnity for all disability incurred as a result of that treatment. An employer is not liable for disability indemnity for any disability incurred as a result of any unnecessary treatment undertaken in good faith that is noninvasive or not medically acceptable. This subsection applies to all findings that an employee has sustained a compensable injury, whether the finding results from a hearing, the default of a party, or a compromise or stipulation confirmed by the department or the division.

102.42(1p) (1p) Liability for treatment of certain mental injuries. The employer of an employee whose injury is a mental injury that is compensable under s. 102.17 (9) is liable for the employee’s treatment of the mental injury for no more than 32 weeks after the injury is first reported.

102.42(2) (2) Choice of practitioner.

102.42(2)(a) (a) When the employer has notice of an injury and its relationship to the employment, the employer shall offer to the injured employee his or her choice of any physician, chiropractor, psychologist, dentist, physician assistant, advanced practice registered nurse, or podiatrist licensed to practice and practicing in this state for treatment of the injury. By mutual agreement, the employee may have the choice of any qualified practitioner not licensed in this state. In case of emergency, the employer may arrange for treatment without tendering a choice. After the emergency has passed the employee shall be given his or her choice of attending practitioner at the earliest opportunity. The employee has the right to a 2nd choice of attending practitioner on notice to the employer or its insurance carrier. Any further choice shall be by mutual agreement. Partners and clinics are considered to be one practitioner. Treatment by a practitioner on referral from another practitioner is considered to be treatment by one practitioner.

102.42(2)(b) (b) The employer is liable for the expense of reasonable travel to obtain treatment at the same rate as is provided for state officers and employees under s. 20.916 (8). The employer is not liable for the expense of unreasonable travel to obtain treatment.

102.42(3) (3) Practitioner choice unrestricted. If the employer fails to tender treatment as provided in sub. (1) or choice of an attending practitioner as provided in sub. (2), the employee’s right to choose the attending practitioner is not restricted and the employer is liable for the reasonable and necessary expense thereof.

102.42(4) (4) Christian Science. The liability of an employer for the cost of Christian Science treatment provided to an injured employee is limited to the usual and customary charge for that treatment.

102.42(5) (5) Artificial members. Liability for repair and replacement of prosthetic devices is limited to the effects of normal wear and tear. Artificial members furnished at the end of the healing period for cosmetic purposes only need not be duplicated.

102.42(6) (6) Treatment rejected by employee. Unless the employee has elected Christian Science treatment in lieu of medical, surgical, dental, or hospital treatment, no compensation shall be payable for the death or disability of an employee, if the death is caused, or insofar as the disability may be aggravated, caused, or continued by an unreasonable refusal or neglect to submit to or follow any competent and reasonable medical, surgical, or dental treatment or, in the case of tuberculosis, by refusal or neglect to submit to or follow hospital or medical treatment when found by the department or the division to be necessary. The right to compensation accruing during a period of refusal or neglect to submit to or follow hospital or medical treatment when found by the department or the division to be necessary in the case of tuberculosis shall be barred, irrespective of whether disability was aggravated, caused, or continued by that refusal or neglect.

102.42(8) (8) Award to state employee. Whenever the department or the division makes an award on behalf of a state employee, the department or the division shall file duplicate copies of the award with the subunit of the department of administration responsible for risk management. Upon receipt of the copies of the award, the department of administration shall promptly issue a voucher in payment of the award from the proper appropriation under s. 20.865 (1) (fm), (kr) or (ur), and shall transmit one copy of the voucher and the award to the officer, department, or agency by whom the affected employee is employed.

102.42(9) (9) Rehabilitation; physical and vocational.

102.42(9)(a) (a) One of the primary purposes of this chapter is restoration of an injured employee to gainful employment. To this end, the department shall employ a specialist in physical, medical and vocational rehabilitation.

102.42(9)(b) (b) Such specialist shall study the problems of rehabilitation, both physical and vocational and shall refer suitable cases to the department for vocational evaluation and training. The specialist shall investigate and maintain a directory of such rehabilitation facilities, private and public, as are capable of rendering competent rehabilitation service to seriously injured employees.

102.42(9)(c) (c) The specialist shall review and evaluate reported injuries for potential cases in which seriously injured employees may be in need of physical and medical rehabilitation and may confer with the injured employee, employer, insurance carrier or attending practitioner regarding treatment and rehabilitation.

102.42 History History: 1971 c. 61; 1973 c. 150, 282; 1975 c. 147; 1977 c. 195 ss. 24 to 28, 45; 1977 c. 273; 1979 c. 278; 1981 c. 20; 1987 a. 179; 1989 a. 64; 1995 a. 27 ss. 3743m, 3744, 9130 (4); 1997 a. 3, 38; 1999 a. 9; 2001 a. 37; 2003 a. 144; 2005 a. 172; 2007 a. 185; 2015 a. 55; 2021 a. 29; 2023 a. 213.

102.42 Annotation The requirement that medical treatment be supplied during the healing period, defined as prior to the time the condition becomes stationary, is not determined by reference to the percentage of disability, but by a determination that the injury has stabilized. Custodial care, as distinguished from nursing services, is not compensable. Mednicoff v. DILHR, 54 Wis. 2d 7, 194 N.W.2d 670 (1972).

102.42 Annotation In appropriate cases, the Department of Industry, Labor and Human Relations may postpone a determination of permanent disability for a reasonable period until after a claimant completes a competent and reasonable course of physical therapy or vocational rehabilitation as an essential part of the treatment required for full recovery and minimization of damages. Transamerica Insurance Co. v. DILHR, 54 Wis. 2d 272, 195 N.W.2d 656 (1972).

102.42 Annotation An employee who wishes to consult a second doctor on the panel after the first says no further treatment is needed may do so without notice or consent. If the second doctor prescribes an operation that increases the amount of disability, the employer is liable. Spencer v. DILHR, 55 Wis. 2d 525, 200 N.W.2d 611 (1972).

102.42 Annotation Sub. (7) [now sub. (6)] relieves an employer of liability when the employee refuses treatment provided by the employer, as required under sub. (1). An employee is not required to seek treatment from someone other than the employer. Klein Industrial Salvage v. DILHR, 80 Wis. 2d 457, 259 N.W.2d 124 (1977).

102.42 Annotation Under sub. (9) (a) and ss. 102.43 (5) and 102.61, the Department of Industry, Labor and Human Relations may extend temporary disability, travel expense, and maintenance costs beyond 40 weeks if additional training is warranted. Beloit Corp. v. LIRC, 152 Wis. 2d 579, 449 N.W.2d 299 (Ct. App. 1989).

102.42 Annotation Sub. (1) requires an employer to pay medical expenses even after a final order has been issued. Lisney v. LIRC, 171 Wis. 2d 499, 493 N.W.2d 14 (1992).

102.42 Annotation Sub. (2) (a) does not require an employer to consent to out-of-state health care expenses that result from a referral by an in-state practitioner selected in accordance with the statute. UFE Inc. v. LIRC, 201 Wis. 2d 274, 548 N.W.2d 57 (1996), 94-2794.

102.42 Annotation The continuing obligation to compensate an employee for work related medical expenses under this section does not allow agency review of compromise agreements after the one-year statute of limitations in s. 102.16 (1) has run if the employee incurs medical expenses after that time. Schenkoski v. LIRC, 203 Wis. 2d 109, 552 N.W.2d 120 (Ct. App. 1996), 96-0051.

102.42 Annotation Under sub. (2), an employee can seek reimbursement for expenses related to two practitioners regardless of whether they are the first two practitioners whom the employee has seen. Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 583 N.W.2d 662 (Ct. App. 1998), 97-1119.

102.42 Annotation Section 102.01 (2) (g) sets the date of injury of an occupational disease and s. 102.01 (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.

102.42 Annotation Spencer, 55 Wis. 2d 525 (1972), creates an exception to the general rule that compensation is permitted only if medical expenses are reasonably required and necessary. As long as a claimant engages in unnecessary and unreasonable treatment in good faith, the employer is responsible for payment. Honthaners Restaurants, Inc. v. LIRC, 2000 WI App 273, 240 Wis. 2d 234, 621 N.W.2d 660, 99-3002.

102.42 Annotation An employee is not eligible for benefits under sub. (1m) if the disability-causing treatment was directed at treating something other than the employee’s compensable injury. Because the claimant’s surgery treated her preexisting condition, not her compensable injury, her claim was disallowed. Flug v. LIRC, 2017 WI 72, 376 Wis. 2d 571, 898 N.W.2d 91, 15-1989.

102.42 Annotation Continuing Payments for Medical Expenses in Worker’s Compensation Proceedings. Carnell & Woog. Wis. Law. Nov. 1993.

102.425 102.425 Prescription and nonprescription drug treatment.

102.425(1) (1) Definitions. In this section:

102.425(1)(a) (a) “Dispense” has the meaning given in s. 450.01 (7).

102.425(1)(b) (b) “Drug” has the meaning given in s. 450.01 (10).

102.425(1)(c) (c) “Drug product equivalent” has the meaning given in s. 450.13 (1e).

102.425(1)(cm) (cm) “Licensed pharmacy” means a pharmacy licensed under s. 450.06 or 450.065.

102.425(1)(d) (d) “Nonprescription drug product” has the meaning given in s. 450.01 (13m).

102.425(1)(e) (e) “Pharmacist” has the meaning given in s. 450.01 (15).

102.425(1)(f) (f) “Practitioner” has the meaning given in s. 450.01 (17).

102.425(1)(g) (g) “Prescription” has the meaning given in s. 450.01 (19).

102.425(1)(h) (h) “Prescription drug” has the meaning given in s. 450.01 (20).

102.425(1)(i) (i) “Prescription order” has the meaning given in s. 450.01 (21).

102.425(2) (2) Substitution of drug product equivalents.

102.425(2)(a) (a) Except as provided in pars. (b) and (c), when a drug is prescribed to treat an injury for which an employer or insurer is liable under this chapter, the pharmacist or practitioner dispensing the drug shall substitute a drug product equivalent in place of the prescribed drug if all of the following apply:

102.425(2)(a)1. 1. In the professional judgment of the dispensing pharmacist or practitioner, the drug product equivalent is therapeutically equivalent to the prescribed drug.

102.425(2)(a)2. 2. The charge for the drug product equivalent is less than the charge for the prescribed drug.

102.425(2)(b) (b) A pharmacist or practitioner may not substitute a drug product equivalent under par. (a) in place of a prescribed drug if any of the following apply:

102.425(2)(b)1. 1. The prescribed drug is a single-source patented drug for which there is no drug product equivalent.

102.425(2)(b)2. 2. The prescriber determines that the prescribed drug is medically necessary and indicates that no substitution may be made for that prescribed drug by writing on the face of the prescription order or, in the case of a prescription order that is transmitted electronically, by designating in electronic format the phrase “No substitutions” or “Dispense as written” or words of similar meaning or the initials “N.S.” or “D.A.W.”

102.425(2)(c) (c) Unless par. (b) applies, if an injured employee requests that a specific brand name drug be used to treat the employee’s injury, the pharmacist or practitioner dispensing the prescription shall dispense the specific brand name drug as requested. If a specific brand name drug is dispensed under this paragraph, the employer or insurer and the employee shall share the cost of the prescription as follows:

102.425(2)(c)1. 1. The employer or insurer shall be liable in an amount equal to the average wholesale price, as determined under sub. (3) (a) 1., of the lowest-priced drug product equivalent that the pharmacist or practitioner has in stock on the day on which the brand name drug is dispensed, plus the dispensing fee under sub. (3) (a) 2. and any applicable taxes under sub. (3) (a) 3. that would be payable for that drug product equivalent.

102.425(2)(c)2. 2. The employee shall be liable in an amount equal to the difference between the amount for which the employer or insurer is liable under subd. 1. and an amount equal to the average wholesale price, as determined under sub. (3) (a) 1., of the brand name drug on the day on which the brand name drug is dispensed, plus any applicable taxes under sub. (3) (a) 3. that are payable for that brand name drug.

102.425(3) (3) Liability of employer or insurer.

102.425(3)(a) (a) The liability of an employer or insurer for the cost of a prescription drug dispensed under sub. (2) for outpatient use by an injured employee, including a prescription drug dispensed outside of a licensed pharmacy, is limited to the sum of all of the following:

102.425(3)(a)1. 1. The average wholesale price of the prescription drug as of the date on which the prescription drug is dispensed, as quoted in the Drug Topics Red Book, published by Medical Economics Company, Inc., or its successor, or, if that book is discontinued and becomes unavailable, as quoted in another nationally recognized pricing source determined by the department.

102.425(3)(a)2. 2. A dispensing fee of $3 per prescription order, which shall be payable for all prescription drugs dispensed under sub. (2) regardless of the location from which the prescription drug is dispensed, but which shall be payable only to a pharmacist who dispenses the prescription drug.

102.425(3)(a)3. 3. Any state or federal taxes that may be applicable to the prescription drug dispensed.

102.425(3)(b) (b) In addition to the liability under par. (a), an employer or insurer is also liable for reimbursement to an injured employee for all out-of-pocket expenses incurred by the injured employee in obtaining the prescription drug dispensed.

102.425(3)(c) (c) A billing statement submitted to an employer or insurer for a prescription drug dispensed under sub. (2) shall include the national drug code number of the prescription as listed in the national drug code directory maintained by the federal food and drug administration and shall state separately the price of the prescription drug and the dispensing fee.

102.425(4) (4) Liability of employee.

102.425(4)(a) (a) Except as provided in par. (b), a pharmacist or practitioner who dispenses a prescription drug under sub. (2) to an injured employee may not collect, or bring an action to collect, from the injured employee any charge that is in excess of the liability of the injured employee under sub. (2) (c) 2. or the liability of the employer or insurer under sub. (3) (a).

102.425(4)(b) (b) If an employer or insurer denies or disputes liability for the cost of a drug prescribed to an injured employee under sub. (2), the pharmacist or practitioner who dispensed the drug may collect, or bring an action to collect, from the injured employee the cost of the prescription drug dispensed, subject to the limitations specified in sub. (3) (a). If an employer or insurer concedes liability for the cost of a drug prescribed to an injured employee under sub. (2), but disputes the reasonableness of the amount charged for the prescription drug, the employer or insurer shall provide notice under sub. (4m) (b) to the pharmacist or practitioner that the reasonableness of the amount charged is in dispute and the pharmacist or practitioner who dispensed the drug may not collect, or bring an action to collect, from the injured employee the cost of the prescription drug dispensed after receiving that notice.

102.425(4m) (4m) Resolution of prescription drug charge disputes.

102.425(4m)(a) (a) The department has jurisdiction under this subsection, the department and the division have jurisdiction under s. 102.16 (1m) (c), and the division has jurisdiction under s. 102.17 to resolve a dispute between a pharmacist or practitioner and an employer or insurer over the reasonableness of the amount charged for a prescription drug dispensed under sub. (2) for outpatient use by an injured employee who claims benefits under this chapter.

102.425(4m)(b) (b) An employer or insurer that disputes the reasonableness of the amount charged for a prescription drug dispensed under sub. (2) for outpatient use by an injured employee or the department or division under sub. (4) (b) or s. 102.16 (1m) (c) or 102.18 (1) (bg) 3. shall provide, within 30 days after receiving a completed bill for the prescription drug, reasonable written notice to the pharmacist or practitioner that the charge is being disputed. After receiving reasonable written notice under this paragraph or under sub. (4) (b) or s. 102.16 (1m) (c) or 102.18 (1) (bg) 3. that a prescription drug charge is being disputed, a pharmacist or practitioner may not collect the disputed charge from, or bring an action for collection of the disputed charge against, the employee who received the prescription drug.

102.425(4m)(c) (c) A pharmacist or practitioner that receives notice under par. (b) that the reasonableness of the amount charged for a prescription drug dispensed under sub. (2) for outpatient use by an injured employee is in dispute shall file the dispute with the department within 6 months after receiving that notice.

102.425(4m)(d) (d) The department shall deny payment of a prescription drug charge that the department determines under this subsection to be unreasonable. A pharmacist or practitioner and an employer or insurer that are parties to a dispute under this subsection over the reasonableness of a prescription drug charge are bound by the department’s determination under this subsection on the reasonableness of the disputed charge, unless that determination is set aside on judicial review as provided in par. (e).

102.425(4m)(e) (e) Within 30 days after a determination under this subsection, the department may set aside, reverse, or modify the determination for any reason that the department considers sufficient. Within 60 days after a determination under this subsection, the department may set aside, reverse, or modify the determination on grounds of mistake. A pharmacist, practitioner, employer, or insurer that is aggrieved by a determination of the department under this subsection may seek judicial review of that determination in the same manner that compensation claims are reviewed under s. 102.23.

102.425(5) (5) Nonprescription drug products. The liability of an employer or insurer for the cost of a nonprescription drug product used to treat an injured employee is limited to the usual and customary charge to the general public for the nonprescription drug product.

102.425 History History: 2005 a. 172; 2007 a. 185; 2009 a. 206; 2015 a. 55, 180; 2017 a. 149.

102.43 102.43 Weekly compensation schedule. If the injury causes disability, an indemnity shall be due as wages commencing the 4th calendar day from the commencement of the day the scheduled work shift began, exclusive of Sundays only, excepting where the employee works on Sunday, after the employee leaves work as the result of the injury, and shall be payable weekly thereafter, during such disability. If the disability exists after 7 calendar days from the date the employee leaves work as a result of the injury and only if it so exists, indemnity shall also be due and payable for the first 3 calendar days, exclusive of Sundays only, excepting where the employee works on Sunday. Said weekly indemnity shall be as follows:

102.43(1) (1) If the injury causes total disability, two-thirds of the average weekly earnings during such disability.

102.43(2) (2) If the injury causes partial disability, during the partial disability, such proportion of the weekly indemnity rate for total disability as the actual wage loss of the injured employee bears to the injured employee’s average weekly wage at the time of the injury.

102.43(3) (3) If the disability caused by the injury is at times total and at times partial, the weekly indemnity during each total or partial disability shall be in accordance with subs. (1) and (2), respectively.

102.43(4) (4) If the disability period involves a fractional week, indemnity shall be paid for each day of such week, except Sundays only, at the rate of one-sixth of the weekly indemnity.