Chapter DWD 80

DWD 80.26(6)(a) (a) Compensation shall not be computed until all adequate and reasonable operations and treatment known to medical science have been attempted to correct the defect. Further, before there shall be made the final examination on which compensation is to be computed, at least 3 months shall have elapsed after the last trace of visible inflammation has disappeared, except in cases of disturbance of extrinsic ocular muscles, optic nerve atrophy, injury of the retina, sympathetic ophthalmia, and traumatic cataract; in such cases, at least 12 months and preferably not more than 16 months shall intervene before the examination shall be made on which final compensation is to be computed. In case the injury is one which may cause cataract, optic atrophy, disturbance of the retina, or other conditions, which may further impair vision after the time of the final examination, note thereof should be made by the examining physician on his report.

DWD 80.26(6)(b) (b) In cases of additional loss in visual efficiency, when it is known that there was present a preexisting subnormal vision, compensation shall be based on the loss incurred as a result of eye injury or occupational condition specifically responsible for the additional loss. In case there exists no record or no adequate and positive evidence of preexisting subnormal vision, it shall be assumed that the visual efficiency prior to any injury was 100%. In order to effect the above purpose, the examining physician should carefully distinguish, in regard to each of the coordinate factors, between impairments resulting from the injury and impairments not so resulting as established by the type of proof here stated. Such other impairments should, however, be also reported, separately. Computation must occasionally also be made of impairment of vision not resulting from the injury, as, for instance, for the purpose of computing additional indemnity due under the provisions of the Worker’s Compensation Act on account of preexisting disability of one or both eyes.

DWD 80.26 Note Note: Example of computation covering partial disability to a single eye

DWD 80.26 Note Note: Example of computation covering partial disability to both eyes

DWD 80.26 Note Note: Example of compensation covering enucleation of one eye and partial disability of the other eye

DWD 80.27 DWD 80.27 Forms. A sample copy of all forms referred to in these rules may be obtained upon a request to the Worker’s Compensation Division, Department of Workforce Development, Post Office Box 7901, Madison, WI 53707.

DWD 80.27 History History: Cr. Register, October, 1957, No. 22, eff. 11-1-57; am. (1), Register, October, 1965, No. 118, eff. 12-1-65; am. Register, April, 1975, No. 232, eff. 5-1-75; r. and recr. Register, September, 1982, No. 321, eff. 10-1-82; correction made under s. 13.93 (2m) (b) 6., Stats., Register, July, 1996, No. 487, eff. 8-1-96.

DWD 80.29 DWD 80.29 Value of room or meals. For the purpose of determining the value of lodging and meals for wage purposes under ch. 102, Stats., the allowance provided under ch. DWD 272 shall apply.

DWD 80.29 History History: Cr. Register, October, 1960, No. 58, eff. 11-1-60; am. (1) (a) and (b), Register, October, 1963, No. 94, eff. 11-1-63; r. and recr. Register, January, 1967, No. 133, eff. 2-1-67; am. Register, November, 1970, No. 179, eff. 12-1-70; r. and recr. Register, April, 1975, No. 232, eff. 5-1-75; correction made under s. 13.93 (2m) (b) 7., Stats., Register, July, 1996, No. 487, eff. 8-1-96; correction made under s. 13.93 (2m) (b) 7., Stats., Register, December, 1997, No. 504.

DWD 80.30 DWD 80.30 Average weekly earnings for members of volunteer fire companies or fire departments. The maximum average weekly earnings under the provisions of s. 102.11, Stats., which are in effect on the date of injury shall be used in computing the amount of compensation payable to an employee as defined by s. 102.07 (7), Stats., except as specific showing may be made in an individual case that such wage is not proper.

DWD 80.30 History History: Cr. Register, June, 1961, No. 66, eff. 7-1-61.

DWD 80.32 DWD 80.32 Permanent disabilities. Minimum percentages of loss of use for amputation levels, losses of motion, sensory losses and surgical procedures.

DWD 80.32(1) (1) The disabilities set forth in this section are the minimums for the described conditions. However, findings of additional disabling elements shall result in an estimate higher than the minimum. The minimum also assumes that the member, the back, etc., was previously without disability. Appropriate reduction shall be made for any preexisting disability.

DWD 80.32 Note Note: An example would be where in addition to a described loss of motion, pain and circulatory disturbance further limits the use of an arm or a leg. A meniscectomy in a knee with less than a good result would call for an estimate higher than 5% loss of use of the leg at the knee. The same principle would apply to surgical procedures on the back. The schedule of minimum disabilities contained in this section was adopted upon the advice of a worker’s compensation advisory council subcommittee after a survey of doctors experienced in treating industrial injuries.

DWD 80.32(2) (2) Amputations, upper or lower extremities

All ranges of joint motion or degrees of ankylosis not listed below are to be interpolated from existing percent of disability listed.

DWD 80.32(3) (3) Hip

DWD 80.32(4) (4) Knee

DWD 80.32(5) (5) Ankle

DWD 80.32(6) (6) Toes

DWD 80.32(7) (7) Shoulder

DWD 80.32(8) (8) Elbow

DWD 80.32(9) (9) Wrist

DWD 80.32(10) (10) Complete Sensory Loss

DWD 80.32(11) (11) Back

DWD 80.32 Note Note: It is the subcommittee’s intention that a separate minimum 5% allowance be given for every surgical procedure (open or closed, radical or partial) that is done to relieve from the effects of a disc lesion or spinal cord pressure. Each disc treated or surgical procedure performed will qualify for a 5% rating. Due to the fact a fusion involves 2 procedures a 1) laminectomy (dissectomy) and a 2) fusion procedure, 10% permanent total disability will apply when the 2 surgical procedures are done at the same time or separately.

DWD 80.32(12) (12) Fingers

DWD 80.32(12)(a) (a) Complete ankylosis

DWD 80.32(12)(b) (b) Loss of Motion

DWD 80.32(13) (13) Kidney

DWD 80.32(14) (14) Loss of Smell

DWD 80.32 History History: Cr. Register, October, 1965, No. 118, eff. 11-1-65; r. and recr. Register, April, 1975, No. 232, eff. 5-1-75; r. and recr. (1), Register, September, 1982, No. 321, eff. 10-1-82; cr. (13) and (14), Register, September, 1986, eff. 369, eff. 10-1-86; am. (intro.), (3) to (5), (7), (9), (11) and (12) (a) and (b), Register, June, 1994, No. 462, eff. 7-1-94; reprinted to restore dropped copy in (1), Register, March, 1995, No. 471; CR 07-019: am. (11), Register October 2007 No. 622, eff. 11-1-07.

DWD 80.33 DWD 80.33 Permanent disabilities; fingertip amputations. In estimating permanent disability as a result of fingertip amputations, amputation of the distal one-third or less shall be considered the equivalent of 45% loss of use of the distal phalanx, amputation of not more than the distal two-thirds but more than the distal one-third shall be considered the equivalent of 80% loss of use of the distal phalanx, and amputation of more than the distal two-thirds shall be considered as 100% loss of the distal phalanx, provided there is not added disability as a result of malformed nail or tissue. In no case shall the allowance be greater than it would have been for amputation of the entire distal phalanx.

DWD 80.33 History History: Cr. Register, October, 1965, No. 118, eff. 11-1-65; am. Register, November, 1970, No. 179, eff. 12-1-70.

DWD 80.34 DWD 80.34 Loss of earning capacity.

DWD 80.34(1) (1) Any department determinations as to loss of earning capacity for injuries arising under s. 102.44 (2) and (3), Stats., shall take into account the effect of the injured employee’s permanent physical and mental limitations resulting from the injury upon present and potential earnings in view of the following factors:

DWD 80.34(1)(a) (a) Age;

DWD 80.34(1)(b) (b) Education;

DWD 80.34(1)(c) (c) Training;

DWD 80.34(1)(d) (d) Previous work experience;

DWD 80.34(1)(e) (e) Previous earnings;

DWD 80.34(1)(f) (f) Present occupation and earnings;

DWD 80.34(1)(g) (g) Likelihood of future suitable occupational change;

DWD 80.34(1)(h) (h) Efforts to obtain suitable employment;

DWD 80.34(1)(i) (i) Willingness to make reasonable change in a residence to secure suitable employment;

DWD 80.34(1)(j) (j) Success of and willingness to participate in reasonable physical and vocational rehabilitation program; and

DWD 80.34(1)(k) (k) Other pertinent evidence.

DWD 80.34 History History: Cr. Register, September, 1982, No. 321, eff. 10-1-82.

DWD 80.38 DWD 80.38 Assessment of administrative expenses.

DWD 80.38(1) (1) For purposes of determining assessment payments under s. 102.75, Stats., “indemnity paid or payable” excludes:

DWD 80.38(1)(a) (a) Payments made for medical, hospital or related expenses.

DWD 80.38(1)(b) (b) Additional payments for penalties and increased compensation.

DWD 80.38(1)(c) (c) Payments made into the work injury supplemental benefit fund.

DWD 80.38(1)(d) (d) Payments made from the work injury supplemental benefit fund other than those paid under s. 102.44 (1), Stats.

DWD 80.38(1)(e) (e) Payments made under ss. 102.475, 102.35, and 102.18 (1) (bp), Stats.

DWD 80.38(1)(f) (f) Payments made under statutory provisions other than those of ch. 102, Stats.

DWD 80.38(1)(g) (g) Payments made pursuant to a compromise agreement to the extent that they cannot be determined to be indemnity paid or payable under sub. (2).

DWD 80.38(2) (2) For purposes of determining assessment payments under s. 102.75, Stats., “indemnity paid or payable” includes:

DWD 80.38(2)(a) (a) Supplemental benefit payments made under s. 102.44 (1), Stats., from the work injury supplemental benefit fund if they were determined to be payable prior to the time the case is initially closed.

DWD 80.38(2)(b) (b) Death benefits paid under ss. 102.46, 102.47, 102.48 and 102.50, Stats.

DWD 80.38(2)(c) (c) Portions of social security benefits, sick leave, holiday pay, salary and other wage continuation payments which offset or are paid in lieu of the daily or weekly indemnity due.

DWD 80.38 History History: Cr. Register, September, 1984, No. 345, eff. 10-1-84.

DWD 80.39 DWD 80.39 Advance payment of unaccrued compensation.

DWD 80.39(1) (1) The department may order partial or full payment of unaccrued compensation to an employee or his or her dependents pursuant to s. 102.32 (6m), Stats., upon consideration of the following factors:

DWD 80.39(1)(a) (a) The length of time since the injury;

DWD 80.39(1)(b) (b) The total income of the employee or the dependent;

DWD 80.39(1)(c) (c) The income of others in the employee’s or the dependent’s household;

DWD 80.39(1)(d) (d) The age of the employee or the dependent;

DWD 80.39(1)(e) (e) The other available assets of the employee or the dependent;

DWD 80.39(1)(f) (f) The loss of benefits because of interest credit due to self-insured employer or insurance carrier;

DWD 80.39(1)(g) (g) The purpose for which the advancement is requested;

DWD 80.39(1)(h) (h) The other financial obligations of the employee or the dependent;

DWD 80.39(1)(i) (i) The employment status of the employee or the dependent;

DWD 80.39(1)(j) (j) If the advancement is requested for the purchase of real estate, the cost of the real estate and availability of other necessary financing for the real estate;

DWD 80.39(1)(k) (k) The employee’s or the dependent’s previous experience in and likelihood of success in a proposed business venture;

DWD 80.39(1)(L) (L) The probable income and security of any proposed investment; and

DWD 80.39(1)(m) (m) Other information indicating whether an advancement is in the best interest of the applicant.

DWD 80.39 History History: Cr. Register, September, 1982, No. 321, eff. 10-1-82; CR 07-019: am. (1), Register October 2007 No. 622, eff. 11-1-07.

DWD 80.40 DWD 80.40 Assessment for unpaid claims of insolvent self-insurer. If an employer currently or formerly exempted from the duty to insure by order of the department under s. 102.28 (7) (b), Stats., is unable to pay any award and if judgement against such employer is returned unsatisfied, the department shall determine payment into the fund established by s. 102.28 (8), Stats., as follows:

DWD 80.40(1) (1) The department shall prepare an estimate of the payments that should be made by the insolvent exempt employer for a period of one year. If the department elects to retain an insurance carrier or insurance service organization under s. 102.28 (7), Stats., the department will prepare an estimate of the charges that will be made by such carrier or organization to process, investigate and pay such claims for the same one year period. The sum of these 2 amounts shall be divided by the total number of employers exempted under s. 102.28 (2), Stats.

DWD 80.40(2) (2) The department shall assess and order payment within 30 days by each exempt employer the amount determined under sub. (1) to the state treasurer for deposit in the fund created by s. 102.28 (8), Stats.

DWD 80.40(3) (3) The department shall prepare an estimate of the total remaining liability of the insolvent exempt employer and an estimate of the amount that may be recovered from that employer, its receiver or trustee in bankruptcy. Such estimates shall be communicated to all exempt employers.

DWD 80.40(4) (4) At least annually following the original order the department shall estimate the amount due and payable during the following year and the charges expected from any insurance carrier or claims service for such year and assess and order payment by each exempt employer its pro rata share determined as provided by s. 102.28 (7) (b), Stats.

DWD 80.40(5) (5) At the time orders are issued under sub. (4) the department shall prepare an estimate of the remaining liability of the insolvent exempt employer and the amount that may reasonably be expected to be recovered from such employer, its receiver or trustee in bankruptcy. Such estimates will be communicated to all exempt employers.

DWD 80.40(6) (6) All money due and payable to injured employees which remain unpaid shall be considered money payable during the following year in making estimates.

DWD 80.40(7) (7) All money recovered by the attorney general and paid into the fund shall be used in the payment of unpaid claims and shall be taken into account in making estimates and assessments.

DWD 80.40 History History: Cr. Register, September, 1986, No. 369, eff. 10-1-86.

DWD 80.41 DWD 80.41 Computation of monthly salary and reimbursement to retirement fund under s. 66.191, 1981 Stats.

DWD 80.41(1) (1) Fringe benefits shall not be included in the computation of salary, earnings or wages under s. 66.191, 1981 Stats., unless such benefits are income for Wisconsin income tax purposes.