Chapter DWD 80

DWD 80.02(2)(g)1. 1. Payments are stopped for any reason. If any payments are stopped for a reason other than the employee’s return to work, the self-insured employer or insurance carrier shall explain why it stopped payments and shall advise the employee what to do to reinstate payments.

DWD 80.02(2)(g)2. 2. A decision to deny liability for payment of compensation for reported claims after a concession of liability is made, giving the reason for the denial and advising the employee of the right to a hearing before the division of hearings and appeals.

DWD 80.02(2)(g)3. 3. Amputation will require an artificial member or appliance.

DWD 80.02(2)(i) (i) If increased compensation is due, a final receipt within 30 days of the final payment to the employee, as proof of payment of that increased compensation.

DWD 80.02(2)(j) (j) If the employee fails to return to a practitioner for a final examination, written notice within 30 days, with a copy to the employee, advising the employee that in order to determine permanent disability, if any, the final examination is necessary.

DWD 80.02(2)(k) (k) By June 30 of each calendar year, a self-insured employer or insurance company shall file a report with the department that lists the date and amount of payment for permanent total disability and supplemental benefits paid during the previous calendar year on a form prescribed by the department.

DWD 80.02 Note Note: To obtain a copy of the forms under this subsection, contact the Department of Workforce Development, 201 East Washington Avenue, P.O. Box 7901, Madison, Wisconsin 53707-7901 or access forms online at http://www.dwd.wisconsin.gov.

DWD 80.02(2m) (2m) Self-insured employers and insurance companies; notice to employee.

DWD 80.02(2m)(a) (a) For all injuries under sub. (1) (a), self-insured employers and insurance companies shall provide written notice to the employee within 14 days of the date of an alleged injury indicating one of the following:

DWD 80.02(2m)(a)1. 1. A decision to deny liability for payment of compensation giving the specific reason for the denial and advising the employee of the right to a hearing before the division of hearings and appeals.

DWD 80.02(2m)(a)2. 2. An explanation that the claim is not paid because the insurance company or self-insured employer is still investigating the claim. The notice shall specify if additional medical or other information is needed to complete the investigation. The notice shall advise the employee of the right to a hearing before the department if the claim is subsequently denied.

DWD 80.02(2m)(b) (b) If the notice of injury from the employee to the insured employer or from the insured employer to its insurance company was not made within 7 days of the date of the alleged injury, the insurance company shall provide notice under par. (a) 1. or 2. within 14 days of receiving notice of the alleged injury from any source.

DWD 80.02(3) (3) Evaluation. In evaluating whether payments of compensation and reports made by insurance carriers and self-insured employers were prompt and proper under the provisions of ss. 102.28 (2) and 102.31 (3), Stats., and before undertaking to revoke the exemption from insurance under s. 102.28 (2) (c), Stats., or before recommending under s. 102.31 (3), Stats., to the commissioner of insurance that enforcement proceedings under s. 601.64, Stats., be invoked the department will consider all of the following performance standards together with all other factors bearing on the performance and activities of the insurance carrier or self-insured employer:

DWD 80.02(3)(a) (a) Payment of first indemnity. Whether 80% or more of first indemnity payments are mailed to the injured employee in 14 days or less following the date of injury or the last day worked after the injury before the first day of compensable lost time.

DWD 80.02(3)(b) (b) First report of injury. Whether 70% or more of reports required under sub. (2) (a) are received by the department within 14 days of the date of injury or the last day worked after injury before the first day of compensable lost time.

DWD 80.02(3)(c) (c) Correct and complete names. Names of self-insured employers on reports filed with the department must be correct and complete. The name of an insurance group is not a substitute for the name of the individual company insuring the risk. The name of an insurance service company is not a substitute.

DWD 80.02(3)(d) (d) Penalty frequency and severity. The number and amount of penalties assessed for violations of ss. 102.18 (1) (bp), 102.22 (1), 102.57, and 102.60, Stats.

DWD 80.02(3m) (3m) Reporting by electronic, magnetic or other media.

DWD 80.02(3m)(a) (a) Employer or insurer request.

DWD 80.02(3m)(a)1. 1. An employer, self-insured employer or insurer may make a written request to the department to submit the information in reports or amendments to reports required to be filed with the department in sub. (1) or (2) via electronic, magnetic or other media satisfactory to the department. The department may authorize an employer, self-insured employer or insurer to use electronic, magnetic or other reporting media after considering the extent to which it will help the employer, self-insured employer or insurer meet or exceed the applicable reporting requirements and performance standards in subs. (1) to (3).

DWD 80.02(3m)(a)2. 2. The authorization shall be in writing and shall state the terms and conditions for granting and revoking the privilege to use electronic, magnetic or other reporting media, including any terms and conditions relating to reporting requirements or performance standards in subs. (1) to (3). The written authorization shall specify what variations exist, if any, between the data required to be submitted on forms WKC-12, WKC-13, WKC-13-A, or other forms that are used by the department and the data required to be submitted via electronic, magnetic or other media.

DWD 80.02(3m)(b) (b) Department requirement.

DWD 80.02(3m)(b)1. 1. The department may require an employer, self-insured employer, or insurer to submit all or selected information in reports or amendments to reports required to be filed with the department in sub. (1) or (2) via electronic, magnetic, or other media satisfactory to the department. The department may require an employer, self-insured employer, or insurer to use electronic, magnetic, or other reporting media after considering the extent to which it will help the employer, self-insured employer, or insurer meet or exceed the applicable reporting requirements and performance standards in subs. (1) to (3).

DWD 80.02(3m)(b)2. 2. The directive that requires reporting by electronic, magnetic, or other media shall be in writing and shall set forth terms and conditions that include a deadline for compliance.

DWD 80.02(3m)(b)3. 3. An employer, self-insured employer, or insurer may request a waiver within 60 days of the date of the department’s directive that requires reporting by electronic, magnetic, or other media. The department may grant the waiver if the department is satisfied that the employer, self-insured employer, or insurer has established good cause.

DWD 80.02 History History: 1-2-56; am. (1) and (2), Register, October, 1965, No. 118, eff. 11-1-66; am. Register, April, 1975, No. 232, eff. 5-1-75; am. (1), r. and recr. (2), Register, September, 1982, No. 321, eff. 10-1-82; am. (2) (intro.) and cr. (3), Register, September, 1986, No. 369, eff. 10-1-86; renum. (1) to be (1) (a) and am., cr. (1) (b) and (3m), am. (2) (intro.), Register, November, 1993, No. 455, eff. 12-1-.93; r. and recr. (1) and (2), am. (3) (intro.), (a), (b), (3m) (b) and r. (3m) (c), Register, December, 1997, No. 504, eff. 1-1-98; CR 03-125: am. (2) (b) and (g) 2., r. (2) (h), cr. (2m) and (3m) (b), renum. (3m) (a) and (b) to be (3m) (a) 1. and 2. Register June 2004 No. 582, eff. 7-1-04; CR 07-019: am. (2) (e) 4., Register October 2007 No. 622, eff. 11-1-07; CR 15-030: am. (2) (e) (intro.), 1., 2., 4., cr. (2) (e) 5., (k) Register October 2015 No. 718, eff. 11-1-15; correction in (2) (g) 2., (2m) (a) 1., 2. under s. 13.92 (4) (b) 6., 35.17, Stats., Register May 2018 No. 749; EmR2212: emerg. am. (2) (intro.), (c), cr. (2) (cm), am. (2) (d), cr. (2) (dm), eff. 10-15-22; CR 22-072: am. (2) (intro.), (c), cr. (2) (cm), am. (2) (d), cr. (2) (dm) Register May 2023 No. 809, eff. 6-1-23.

DWD 80.025 DWD 80.025 Inspection and copying of records.

DWD 80.025(1) (1) The policy of the state on public access to records is set forth in ss. 19.31 to 19.37, Stats. The policy of the department is to provide, to the greatest extent possible, ready and open access to public records. In the worker’s compensation division, access may be limited in particular cases only when consideration of the information in a file leads to the conclusion that the public interest served by nondisclosure is greater than the public interest served by disclosure. The inspection and copying of worker’s compensation records shall be subject to the conditions specified in this section.

DWD 80.025(2) (2) The requester shall provide sufficient information on each individual file requested to permit identification and location of the specific file. Desirable information on claim files includes:

DWD 80.025(2)(a) (a) The correct name of the individual who has claimed a work-related disability;

DWD 80.025(2)(b) (b) The claimant’s social security number;

DWD 80.025(2)(c) (c) The date the claimed injury or illness occurred;

DWD 80.025(2)(d) (d) The name of the employing firm or firms at the time of the claimed injury or illness;

DWD 80.025(2)(e) (e) The name of the employing firm’s insurance carrier.

DWD 80.025(3) (3) Requesters may inspect claim files only in the division’s Madison office and under the supervision of division staff. Requesters shall direct requests to inspect files to the receptionist between the hours of 7:45 a.m. and 4:30 p.m. Requesters shall return all files by 4:30 p.m.

DWD 80.025(4) (4) Requesters may not remove files from the division offices without written authorization from the administrator of the division.

DWD 80.025(5) (5) Requesters wishing to make copies of all or a part of a file may do so under the supervision of division staff on the coin-operated copy machine provided for that purpose.

DWD 80.025(6) (6) The division of hearings and appeals shall provide transcripts of testimony taken or proceedings had before the division only in accordance with s. HA 4.13.

DWD 80.025(7) (7) The division shall furnish copies of documents from worker’s compensation claim files as requested, with the following limits:

DWD 80.025(7)(a) (a) At least one week must be allowed before copies can be delivered or mailed.

DWD 80.025(7)(b) (b) Advance payment shall not be required except as provided in par. (e). The division shall send an invoice to the requester for the necessary costs as set forth in par. (c).

DWD 80.025(7)(c) (c) The following fees shall apply:

DWD 80.025(7)(c)1. 1. 20 cents per page for photocopying.

DWD 80.025(7)(c)2. 2. $2.00 for certifying copies.

DWD 80.025(7)(c)3. 3. $3.00 per request for postage and handling when copies are to be mailed.

DWD 80.025(7)(d) (d) Upon a proper showing of inability to pay, the division shall furnish the requested copies upon such terms as may be agreed.

DWD 80.025(7)(e) (e) If the requester has unpaid copying fees from prior requests outstanding in an amount that exceeds $5.00, the division shall require the requester to pay the amount owed before providing more copies.

DWD 80.025 History History: Cr. Register, March, 1986, No. 363, eff. 4-1-86; correction in (6) under s. 13.92 (4) (b) 6., 7., Stats., Register May 2018 No. 749.

DWD 80.03 DWD 80.03 Compromise.

DWD 80.03(1) (1) Whenever an employer and an employee enter into a compromise agreement concerning the employer’s liability under ch. 102, Stats., for a particular injury to that employee, the following conditions shall be fulfilled:

DWD 80.03(1)(a) (a) The compromise agreement shall be in writing, or in the alternative, oral on the record at the time of scheduled hearing;

DWD 80.03(1)(b) (b) The compromise agreement shall be mailed to the department unless made on the record;

DWD 80.03(1)(c) (c) The compromise agreement must be approved by the department; and

DWD 80.03(1)(d) (d) No compromise agreement may provide for a lump sum payment of more than the incurred medical expenses plus sums accrued as compensation or death benefits to the date of the agreement and $10,000 in unaccrued benefits where the compromise settlement in a claim other than for death benefits involves a dispute as to the extent of permanent disability. Lump sum payments will be considered after approval of the compromise in accordance with s. DWD 80.39.

DWD 80.03(1)(e) (e) Compromise agreements which provide for payment of a lump sum into an account in a bank, trust company or other financial institution, which account is subject to release as the department directs, will be authorized.

DWD 80.03(1)(f) (f) Appropriate structured settlements will be approved.

DWD 80.03(1)(g) (g) All written compromise agreements submitted to the department shall contain the following:

The employee has the right to petition the department of workforce development to set aside or modify this compromise agreement within one year of its approval by the department. The department may set aside or modify the compromise agreement. The right to request the department to set aside or modify the compromise agreement does not guarantee that the compromise will in fact be reopened.

DWD 80.03(2) (2) If the department approves the compromise agreement, an order shall be issued by the department directing payment in accordance with the terms of the compromise agreement. No compromise agreement is valid without an order of the department approving the agreement.

DWD 80.03(3) (3) Section 102.16 (1), Stats., places upon the department the responsibility for reviewing, approving, modifying, setting aside and issuing awards on compromise agreements. The action that is taken on any individual claim is dependent upon the facts, circumstances and judgment of the merits of compromise in that specific case. In arriving at a judgment of the merits the department will take into account the following general considerations:

DWD 80.03(3)(a) (a) Medical reports, statements or other information submitted by the parties to show that there is a genuine and significant basis for a dispute between the parties.

DWD 80.03(3)(b) (b) Estimates of the disability by the physicians, chiropractors or podiatrists which do not vary significantly in estimates of the scheduled or nonscheduled disability will not be presumed to demonstrate a basis for dispute.

DWD 80.03(3)(c) (c) The length of time since active treatment has been necessary. The presumption is that the longer the interval the less likely that treatment will be required in the future.

DWD 80.03(3)(d) (d) Scientific knowledge or experience indicating that there may be further progression of the disability or that future treatment may be required. Examples of such conditions are: skull fractures with laceration of the dura, sub-capitol fractures of the femur, silicosis and asbestosis.

DWD 80.03(3)(e) (e) The length of time since the date of injury.

DWD 80.03(3)(f) (f) Any and all other factors that bear on the equity of the proposed compromise.

DWD 80.03 History History: 1-2-56; am., Register, April, 1975, No. 232, eff. 5-1-75; r. and recr. Register, September, 1982, No. 321, eff. 10-1-82; am. (1) (d), cr. (1) (f) and (g) and (3), Register, September, 1986, No. 369, eff. 10-1-86; CR 07-019: am. (1) (d) and (g), Register October 2007 No. 622, eff. 11-1-07.

DWD 80.06 DWD 80.06 Parties. The parties to the controversy shall be known as the applicant and the respondent. The party filing the application for relief shall be known as the applicant and an adverse party as the respondent. Any party may appear in person or by an attorney or agent.

DWD 80.06 History History: 1-2-56; am. Register, September, 1982, No. 321, eff. 10-1-82.

DWD 80.07 DWD 80.07 Service. All service of papers, unless otherwise directed by the department or by law, may be made by mail and proof of such mailing shall be prima facie proof of such service. Time within which service shall be made shall be the same as in courts of record unless otherwise specified by rule or order of the department.

DWD 80.07 History History: 1-2-56; am. Register, April, 1975, No. 232, eff. 5-1-75.

DWD 80.10 DWD 80.10 Stipulations. Parties to a controversy may stipulate the facts in writing, and the department may thereupon make its order or award. Stipulations must set forth in detail the manner of computing the compensation due and must be accompanied by a report from a physician stating the extent of the disability.

DWD 80.10 History History: 1-2-56; am. Register, April, 1975, No. 232, eff. 5-1-75.

DWD 80.21 DWD 80.21 Reports by practitioners and expert witnesses.

DWD 80.21(1) (1) Upon the request of the department, any party in interest to a claim under ch. 102, Stats., shall furnish to the department and to all parties in interest copies of all reports by practitioners and expert witnesses in their possession or procurable by them.

DWD 80.21(2) (2) In cases involving nonscheduled injuries under s. 102.44 (2) or (3), Stats., any party in interest to a claim under the act shall, upon the request of the department, also furnish to the department and to all parties in interest any reports in their possession or reasonably available to them relating to the loss of earning capacity as set forth in s. DWD 80.34.

DWD 80.21(3) (3) Any party who does not comply with the request of the department under sub. (1) or (2) shall be barred from presenting the reports or the testimony contained therein at the hearing.

DWD 80.21(4) (4) No testimony or reports from expert witnesses on the issue of loss of earning capacity may be received unless the party offering the evidence has notified the department and the other parties of interest of the party’s intent to provide the testimony or reports and the names of expert witnesses involved as required under the provisions of s. 102.17 (7), Stats.

DWD 80.21 History History: 1-2-56; am. Register, April, 1975, No. 232, eff. 5-1-75; am. (1), cr. (2), (3) and (4), Register, September, 1982, No. 321, eff. 10-1-82; CR 02-094: r. and recr. (4) Register November 2002 No. 563, eff. 12-1-02.

DWD 80.23 DWD 80.23 Common insurance of employer and third party. In all cases where compensation becomes payable and the insurance carrier of an employer and of a third party shall be the same, or if there is common control of the insurer of each, the insurance carrier of the employer shall promptly notify the parties in interest and the department of that fact.

DWD 80.23 History History: 1-2-56; am. Register, April, 1975, No. 232, eff. 5-1-75.

DWD 80.25 DWD 80.25 Loss of hearing. The department adopts the following standards for the determination and evaluation of noise induced hearing loss, other occupational hearing loss and accidental hearing loss:

DWD 80.25(1) (1) Harmful noise. Hearing loss resulting from hazardous noise exposure depends upon several factors, namely, the overall intensity (sound pressure level), the daily exposure, the frequency characteristic of the noise spectrum and the total lifetime exposure. Noise exposure level of 90 decibels or more as measured on the A scale of a sound level meter for 8 hours a day is considered to be harmful.

DWD 80.25(2) (2) Measurement of noise. Noise shall be measured with a sound level meter which meets ANSI standard 1983 and shall be measured on the “A” weighted network for “slow response.” Noise levels reaching maxima at intervals of one second or less shall be classified as being continuous. The measurement of noise is primarily the function of acoustical engineers and properly trained personnel. Noise should be scientifically measured by properly trained individuals using approved calibrated instruments which at the present time include sound level meters, octave band analyzers and oscilloscopes, the latter particularly for impact-type noises.

DWD 80.25(3) (3) Measure of hearing acuity. The use of pure tone air and bone conduction audiometry performed under proper testing conditions is recommended for establishing the hearing acuity of workers. The audiometer should be one which meets the specifications of ANSI standard 53.6-1969 (4). The audiometer should be periodically calibrated. Preemployment records should include a satisfactory personal and occupational history as they may pertain to hearing status. Otological examination should be made where indicated.

DWD 80.25(4) (4) Formula for measuring hearing impairment. For the purpose of determining the hearing impairment, pure tone air conduction audiometry is used, measuring all frequencies between 500 and 6,000 Hz. This formula uses the average of the 4 speech frequencies of 500, 1,000, 2,000, and 3,000 Hz. Audiometric measurement for these 4 frequencies averaging 30 decibels or less on the ANSI calibration does not constitute any practical hearing impairment. A table for evaluating hearing impairment based upon the average readings of these 4 frequencies follows below. No deduction is made for presbycusis.

DWD 80.25(5) (5) Diagnosis and evaluation. The diagnosis of occupational hearing loss is based upon the occupational and medical history, the results of the otological and audiometric examinations and their evaluation.

DWD 80.25(6) (6) Treatment. There is no known medical or surgical treatment for improving or restoring hearing loss due to hazardous noise exposure. Hearing loss will be improved in non-occupational settings with the use of a hearing aid. Since a hearing aid relieves from the effect of injury the cost is compensable where prescribed by a physician.

DWD 80.25(7) (7) Allowance for tinnitus. In addition to the above impairment, if tinnitus has permanently resulted due to work exposure, an allowance of 5% loss of hearing impairment for the affected ear or ears shall be computed.