Chapter 102

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.

102.43(5) (5) 

102.43(5)(a) (a) Temporary disability, during which compensation shall be payable for loss of earnings, shall include such period as may be reasonably required for training in the use of artificial members and appliances.

102.43(5)(b) (b) Except as provided in s. 102.61 (1g), temporary disability shall also include such period as the employee may be receiving instruction under s. 102.61 (1) or (1m). Temporary disability on account of receiving instruction under s. 102.61 (1) or (1m), and not otherwise resulting from the injury, shall not be in excess of 80 weeks. That 80-week limitation does not apply to temporary disability benefits under this section, the cost of tuition, fees, books, travel, or maintenance under s. 102.61 (1), or the cost of private rehabilitation counseling or rehabilitative training under s. 102.61 (1m) if the department or the division determines that additional training is warranted. The necessity for additional training as authorized by the department or the division for any employee shall be subject to periodic review and reevaluation.

102.43(5)(c) (c) Compensation for temporary disability on account of receiving instruction under s. 102.61 (1) or (1m) shall not be reduced under sub. (2) on account of any wages earned for the first 24 hours worked by an employee during a week in which the employee is receiving that instruction. If an employee performs more than 24 hours of work during a week in which the employee is receiving that instruction, all wages earned for hours worked in excess of 24 during that week shall be offset against the employee’s average weekly wage in calculating compensation for temporary disability under sub. (2). An employee who is receiving compensation for temporary disability on account of receiving instruction under s. 102.61 (1) or (1m) shall report any wages earned during the period in which the employee is receiving that instruction to the insurance carrier or self-insured employer paying that compensation.

102.43(6) (6) 

102.43(6)(a) (a) Except as provided in par. (b), no sick leave benefits provided in connection with other employment or wages received from other employment held by the employee when the injury occurred may be considered in computing actual wage loss from the employer in whose employ the employee sustained injury.

102.43(6)(b) (b) In the case of an employee whose average weekly earnings are calculated under s. 102.11 (1) (ap) 2., wages received from other employment held by the employee when the injury occurred shall be considered in computing actual wage loss from the employer in whose employ the employee sustained the injury as provided in this paragraph. If an employee’s average weekly earnings are calculated under s. 102.11 (1) (ap) 2., wages received from other employment held by the employee when the injury occurred shall be offset against those average weekly earnings and not against the employee’s actual earnings in the employment in which the employee was engaged at the time of the injury.

102.43(6)(c) (c) Wages received from the employer in whose employ the employee sustained injury or from other employment obtained after the injury occurred shall be considered in computing benefits for temporary disability.

102.43(7) (7) 

102.43(7)(a) (a) If an employee has a renewed period of temporary disability commencing more than 2 years after the date of injury and, except as provided in par. (b), the employee returned to work for at least 10 days preceding the renewed period of disability, payment of compensation for the new period of disability shall be made as provided in par. (c).

102.43(7)(b) (b) An employee need not return to work at least 10 days preceding a renewed period of temporary disability to obtain benefits under sub. (5) (b) for rehabilitative training commenced more than 2 years after the date of injury. Benefits for rehabilitative training shall be made as provided in par. (c).

102.43(7)(c) (c)

102.43(7)(c)1. 1. If the employee was entitled to maximum weekly benefits at the time of injury, payment for the renewed temporary disability or the rehabilitative training shall be at the maximum rate in effect at the commencement of the new period.

102.43(7)(c)2. 2. If the employee was entitled to less than the maximum rate, the employee shall receive the same proportion of the maximum which is in effect at the time of the commencement of the renewed period or the rehabilitative training as the employee’s actual rate at the time of injury bore to the maximum rate in effect at that time.

102.43(7)(c)3. 3. For an employee who is receiving rehabilitative training, a holiday break, semester break or other, similar scheduled interruption in a course of instruction does not commence a new period of rehabilitative training under this paragraph.

102.43(8) (8) During a compulsory vacation period scheduled in accordance with a collective bargaining agreement:

102.43(8)(a) (a) Regardless of whether the employee’s healing period has ended, no employee at work immediately before the compulsory vacation period may receive a temporary total disability benefit for injury sustained while engaged in employment for that employer.

102.43(8)(b) (b) An employee receiving temporary partial disability benefits immediately before the compulsory vacation period for injury sustained while engaged in employment for that employer shall continue to receive those benefits.

102.43(9) (9) Temporary disability, during which compensation shall be payable for loss of earnings, shall include the period during which an employee could return to a restricted type of work during the healing period, unless any of the following apply:

102.43(9)(a) (a) Suitable employment that is within the physical and mental limitations of the employee is furnished to the employee by the employer or some other employer. For purposes of this paragraph, if the employer or some other employer makes a good faith offer of suitable employment that is within the physical and mental limitations of the employee and if the employee refuses without reasonable cause to accept that offer, the employee is considered to have returned to work as of the date of the offer at the earnings that the employee would have received but for the refusal. In case of a dispute as to the extent of an employee’s physical or mental limitations or as to what employment is suitable within those limitations, the employee may file an application under s. 102.17 and ss. 102.17 to 102.26 shall apply.

102.43(9)(b) (b) The employee’s employment with the employer has been suspended or terminated due to the employee’s alleged commission of a crime, the circumstances of which are substantially related to that employment, and the employee has been charged with the commission of that crime. If the employee is not found guilty of the crime, compensation for temporary disability shall be payable in full.

102.43(9)(c) (c) The employee’s employment with the employer has been suspended or terminated due to the employee’s violation of the employer’s policy concerning employee drug use during the period when the employee could return to a restricted type of work during the healing period. Compensation for temporary disability may be denied under this paragraph only if prior to the date of injury the employer’s policy concerning employee drug use was established in writing and regularly enforced by the employer.

102.43(9)(d) (d) The employee has been convicted of a crime, is incarcerated, and is not available to return to a restricted type of work during the healing period.

102.43(9)(e) (e) The employee’s employment with the employer has been suspended or terminated due to misconduct, as defined in s. 108.04 (5), or substantial fault, as defined in s. 108.04 (5g) (a), by the employee connected with the employee’s work.

102.43 History History: 1971 c. 148; 1973 c. 150; 1975 c. 147; 1977 c. 195; 1979 c. 278; 1983 a. 98; 1985 a. 83; 1987 a. 179; 1993 a. 370, 492; 1995 a. 225, 413; 2001 a. 37; 2005 a. 172; 2009 a. 206; 2011 a. 183; 2015 a. 55, 180; 2021 a. 232.

102.43 Annotation Committee Note, 1971: Employees who have two jobs who have been injured at one of them have in some cases been made totally disabled for work at either job. Sick leave benefits from the other employer has suspended eligibility for compensation or has reduced compensation even though the employee suffered a wage loss. This is considered to be inequitable. Sick leave benefits from the employer where injury occurred are to be considered, however, in determining eligibility for compensation from such employer. [Bill 371-A]

102.43 Annotation Under sub. (5) and ss. 102.42 (9) (a) 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).

102.43 Annotation The phrase “if the injury causes disability” is interpreted in light of the “as is” rule that an employee’s susceptibility to injury due to a pre-existing condition does not relieve the employer from liability. ITW Deltar v. LIRC, 226 Wis. 2d 11, 593 N.W.2d 908 (Ct. App. 1999), 98-2912.

102.43 Annotation The “as is” rule applies to delays in treatment of a work-related injury caused by a pre-existing condition. It was reasonable to find that a woman was entitled to benefits for the period she was unable to undergo surgery to repair a work-related injury due to the threat that anesthesia would cause harm to her pre-existing pregnancy. ITW Deltar v. LIRC, 226 Wis. 2d 11, 593 N.W.2d 908 (Ct. App. 1999), 98-2912.

102.43 Annotation The purpose of the worker’s compensation program is to compensate employees for loss of income due to their inability to work as a result of work-related injury. Thus, to be a compensable wage loss under this section, the wage loss must be attributable to a work-related injury. An employee who retires for reasons entirely unrelated to the employee’s injury cannot make such a showing because the employee’s wage loss was caused by the employee’s choice to voluntarily retire, not by the work-related injury. Mueller v. LIRC, 2019 WI App 50, 388 Wis. 2d 602, 933 N.W.2d 645, 18-0707.

102.44 102.44 Maximum limitations. Section 102.43 shall be subject to the following limitations:

102.44(1) (1) 

102.44(1)(ag) (ag) Notwithstanding any other provision of this chapter, every employee who is receiving compensation under this chapter for permanent total disability or continuous temporary total disability more than 24 months after the date of injury resulting from an injury that occurred prior to January 1, 2003, shall receive supplemental benefits that shall be payable by the employer or the employer’s insurance carrier, or in the case of benefits payable to an employee under s. 102.66, shall be paid by the department out of the fund created under s. 102.65. Those supplemental benefits shall be paid only for weeks of disability occurring after January 1, 2005, and shall continue during the period of such total disability subsequent to that date.

102.44(1)(am) (am) If the employee is receiving the maximum weekly benefits in effect at the time of the injury, the supplemental benefit for a week of disability occurring after March 2, 2016, shall be an amount that, when added to the regular benefit established for the case, shall equal $669.

102.44(1)(b) (b) If the employee is receiving a weekly benefit that is less than the maximum benefit that was in effect on the date of the injury, the supplemental benefit for a week of disability occurring after March 2, 2016, shall be an amount sufficient to bring the total weekly benefits to the same proportion of $669 as the employee’s weekly benefit bears to the maximum in effect on the date of injury.

102.44(1)(c) (c)

102.44(1)(c)1. 1. An insurance carrier paying the supplemental benefits required under this subsection shall be entitled to reimbursement for each such case from the worker’s compensation operations fund, commencing one year after the date of the first payment of those benefits and annually thereafter while those payments continue. To receive reimbursement under this paragraph, an insurance carrier must file a claim for that reimbursement with the department by no later than 12 months after the end of the year in which the supplemental benefits were paid and the claim must be approved by the department.

102.44(1)(c)2. 2. After the expiration of the deadline for filing a claim under subd. 1., the department shall determine the total amount of all claims filed by that deadline and shall use that total to determine the amount to be collected under s. 102.75 (1g) from each licensed worker’s compensation insurance carrier, deposited in the worker’s compensation operations fund, and used to provide reimbursement to insurance carriers paying supplemental benefits under this subsection. Subject to subd. 3., the department shall pay a claim for reimbursement approved by the department by no later than 16 months after the end of the year in which the claim was received by the department.

102.44(1)(c)3. 3. The maximum amount that the department may pay under subd. 2. in a calendar year is $5,000,000. If the amount determined payable under subd. 2. in a calendar year is $5,000,000 or less, the department shall pay that amount. If the amount determined payable under subd. 2. in a calendar year exceeds $5,000,000, the department shall pay $5,000,000 in the year in which the determination is made and, subject to the maximum amount payable of $5,000,000 per calendar year, shall pay the excess in the next calendar year or in subsequent calendar years until that excess is paid in full. The department shall pay claims for reimbursement under subd. 2. in the chronological order in which those claims are received.

102.44(1)(c)4. 4. This paragraph does not apply to supplemental benefits paid for an injury that occurs on or after January 1, 2016.

102.44(2) (2) In case of permanent total disability, aggregate indemnity shall be weekly indemnity for the period that the employee may live. Total impairment for industrial use of both eyes, the loss of both arms at or near the shoulder, the loss of both legs at or near the hip, or the loss of one arm at the shoulder and one leg at the hip constitutes permanent total disability. This enumeration is not exclusive, but in other cases the division shall find the facts.

102.44(3) (3) For permanent partial disability not covered by ss. 102.52 to 102.56, the aggregate number of weeks of indemnity shall bear such relation to 1,000 weeks as the nature of the injury bears to one causing permanent total disability and shall be payable at the rate of two-thirds of the average weekly earnings of the employee, the earnings to be computed as provided in s. 102.11. The weekly indemnity shall be in addition to compensation for the healing period and shall be for the period that the employee may live, not to exceed 1,000 weeks.

102.44(4) (4) Where the permanent disability is covered by ss. 102.52, 102.53, and 102.55, such sections shall govern; provided, that in no case shall the percentage of permanent total disability be taken as more than 100 percent.

102.44(4m) (4m) 

102.44(4m)(a) (a) The department shall promulgate rules establishing minimum permanent disability ratings for amputation levels, losses of motion, sensory losses, and surgical procedures resulting from injuries for which permanent partial disability is claimed under sub. (3) or (4). At least once every 8 years the department shall review and revise those minimum permanent disability ratings as necessary to reflect advances in the science of medicine. Before the department may revise those ratings, the department shall appoint a medical advisory committee under s. 227.13, composed of physicians practicing in one or more areas of specialization or treating disciplines within the medical profession, to review and recommend revision of those ratings, based on typical loss of function, to the department and the council on worker’s compensation.

102.44(4m)(b) (b) In considering an individual for appointment to the medical advisory committee under par. (a), the department shall consider the individual’s training and experience, the number of years the individual has been practicing in the individual’s area of specialization or treating discipline, any certifications by a recognized medical specialty board or other agency held by the individual, any recommendations made by organizations that regulate or promote profession standards in the area of specialization or treating discipline in which the individual practices, and any other factors that the department determines are relevant to the individual’s knowledge and ability to serve as a member of the medical advisory committee.

102.44(5) (5) In cases where it is determined that periodic benefits granted by the federal social security act are paid to the employee because of disability, the benefits payable under this chapter shall be reduced as follows:

102.44(5)(a) (a) For each dollar that the total monthly benefits payable under this chapter, excluding attorney fees and costs, plus the monthly benefits payable under the social security act for disability exceed 80 percent of the employee’s average current earnings as determined by the social security administration, the benefits payable under this chapter shall be reduced by the same amount so that the total benefits payable shall not exceed 80 percent of the employee’s average current earnings. However, no total benefit payable under this chapter and under the federal social security act may be reduced to an amount less than the benefit payable under this chapter.

102.44(5)(b) (b) No reduction under this section shall be made because of an increase granted by the social security administration as a cost of living adjustment.

102.44(5)(c) (c) Failure of the employee, except for excusable neglect, to report social security disability payments within 30 days after written request shall allow the employer or insurance carrier to reduce weekly compensation benefits payable under this chapter by 75 percent. Compensation benefits otherwise payable shall be reimbursed to the employee after reporting.