Chapter DWD 80

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.

DWD 80.41(2) (2) An eligible employee under s. 66.191, 1981 Stats., shall file with the department before an award is entered, as provided in s. 66.191, 1981 Stats., a waiver of disability annuity payments which may be due under s. 40.63, Stats., and further shall consent to reimbursement to the Wisconsin retirement fund of all disability benefits recovered under the provisions of s. 40.63, Stats.

DWD 80.41 Note Note: 1983 Wis. Act 191 repealed s. 66.191, 1981 Stats. However, people are still receiving benefits under this statute.

DWD 80.41 History History: Cr. Register, September, 1982, No. 321, eff. 10-1-82; corrections in (title), (1), (2) made under s. 13.92 (4) (b) 7., Stats., Register March 2015 No. 711.

DWD 80.42 DWD 80.42 Vocational rehabilitation; reporting requirement. In order to determine whether or not an employee should be referred to the division of vocational rehabilitation for services, the self-insured employer or insurance carrier shall notify the department whenever temporary total disability will exceed 13 weeks. This report shall be made within 13 weeks from the date of the initial disability or when such disability can be determined, whichever is earlier, and shall include a current practitioner’s report.

DWD 80.42 History History: Cr. Register, September, 1982, No. 321, eff. 10-1-82.

DWD 80.43 DWD 80.43 Fees and costs. Section 102.26, Stats., provides for a maximum attorney’s fee of 20% of the amount in dispute. Section 102.26 (3), Stats., places upon the department the responsibilities for fixing the fee and providing for the direct payment of the fee. In the exercise of this responsibility, the department shall take into account the following considerations:

DWD 80.43(1) (1) The department shall balance the need to preserve the maximum amount of benefits for the injured employee and the need for fees which are sufficient to insure adequate representation for claimants under ch. 102, Stats.

DWD 80.43(2) (2) Fees shall not be allowed on medical expenses to the extent that other sources, such as group insurance, are available to pay such expenses.

DWD 80.43(3) (3) Fees for permanent total disability shall not be allowed on compensation awards due beyond 500 weeks.

DWD 80.43(4) (4) The existence of a dispute under s. 102.26 (2), Stats., is dependent upon a disagreement after the employer or insurer has had adequate time and information to take a position on liability. Neither the holding of a hearing nor the filing of an application for a hearing alone may determine the existence of a dispute. However, a finding that a dispute exists shall not be precluded by an employer’s or insurer’s purposeful inactivity on the issue of liability.

DWD 80.43(5) (5) Where representation is the result of the representative’s employment by an insurance carrier, an employer, a union, a social service agency or a public agency, the representative may not charge a fee on a contingency basis.

DWD 80.43(6) (6) Where there has been successive representation by various representatives, the division of fees by the department shall take into account the relative value of the services performed by each representative, any concessions of disability, offers of settlement and other matters.