Chapter DWD 80

DWD 80.49(5) (5) Suitable employment exceptions.

DWD 80.49(5)(a) (a) A job offer at or above 85% of the average weekly wage shall not constitute suitable employment if:

DWD 80.49(5)(a)1. 1. An employee’s education, training or employment experience demonstrates a career or vocational path; the average weekly wage on the date of injury does not reflect the earnings which the employee could reasonably have expected in the demonstrated career or vocational path; and the permanent work restrictions caused by the injury impede the employee’s ability to pursue the demonstrated career or vocational path; or,

DWD 80.49(5)(a)2. 2. The employee’s average weekly wage is calculated pursuant to the part-time wage rules in s. 102.11 (1) (f), Stats., or s. DWD 80.51 (4) or (5) and the employee’s average weekly wage for compensation purposes exceeds the gross average weekly wages of the part-time employment.

DWD 80.49(5)(b) (b) The average weekly wage for purposes of determining suitable employment under par. (a) 1. shall be determined by expert vocational evidence regarding the average weekly wage that the employee may have reasonably expected in the demonstrated career or vocational path.

DWD 80.49(5)(c) (c) The average weekly wage for purposes of determining suitable employment under par. (a) 2. shall be determined by expert vocational evidence regarding the employee’s age, educational potential, past job experience, aptitude, proven abilities, and ambitions on the date of injury.

DWD 80.49(6) (6) Specialist certification.

DWD 80.49(6)(a) (a) A person may apply to the department for certification as a specialist at any time. The department may require applicants to submit, and certified specialists to regularly report, information describing their services, including the geographic areas served by the specialist and the nature, cost and outcome of services provided to employees under this section.

DWD 80.49(6)(b) (b) After evaluating the information submitted under par. (a), the department shall certify a person as a specialist if the person has a license or certificate which is current, valid and otherwise in good standing as one of the following, or may certify the person as provided in par. (c):

DWD 80.49(6)(b)1. 1. Certified professional counselor with specialty in vocational rehabilitation from the department of safety and professional services.

DWD 80.49(6)(b)2. 2. Certified disability management specialist from the certification of disability management specialist commission.

DWD 80.49(6)(b)3. 3. Certified rehabilitation counselor from the commission on rehabilitation counselor certification.

DWD 80.49(6)(b)4. 4. Certified vocational evaluator from the commission on certification of work adjustment and vocational evaluation specialists.

DWD 80.49 Note Note: The Commission on Rehabilitation Counselor Certification (CRCC) is located at 1699 E. Woodfield Road, Suite 300, Schaumburg, Illinois 60173. The Certification of Disability Management Specialist Commission (CDMS) is located at 8735 W. Higgins Road, Suite 300, Chicago, Illinois 60631. The Commission on Certification of Work Adjustment and Vocational Evaluation Specialists is located at 7910 Woodmont Avenue, Suite 1430, Bethesda, Maryland 20814-3015.

DWD 80.49(6)(c) (c) The department may certify a person as a specialist if the person has state or national certification, licensing or accreditation in vocational rehabilitation other than that required in par. (b) which is acceptable to the department. The department may require a specialist certified under this paragraph to serve a period of probation up to 3 years as a condition of certification. The department shall specify the conditions of the probationary certification. The department may revoke the probationary certification at any time without a hearing for conduct which violated the conditions of probation established by the department or conduct sufficient to decertify the specialist under par. (e).

DWD 80.49(6)(d) (d) Unless certification is suspended or revoked under par. (e), certification by the department under par. (b) is valid for 3 years. If a specialist applies to the department to renew his or her certification before the expiration of the certification period, the certification shall remain in effect until the department renews or denies the application to renew. A renewal is valid for three years.

DWD 80.49(6)(e) (e) Only the department may initiate a proceeding to suspend or revoke a specialist’s certification under this section. The department may suspend or revoke a specialist’s certification, after providing the specialist with a hearing, when the department determines that the specialist did not maintain a current, valid certificate or license specified in par. (b) or the specialist intentionally or repeatedly:

DWD 80.49(6)(e)1. 1. Fails to comply with the provisions of ch. 102, Stats., or ch. DWD 80;

DWD 80.49(6)(e)2. 2. Fails to comply with the orders, rulings, reporting requirements or other instructions of the department or its representatives;

DWD 80.49(6)(e)3. 3. Charges excessive fees compared to the value of the services performed or ordered to be performed; or,

DWD 80.49(6)(e)4. 4. Misrepresents the employee’s work history, age, education, medical history or condition, diagnostic test results or other factors significantly related to an employee’s retraining program.

DWD 80.49(6)(f) (f) The department shall maintain a current listing of all specialists certified by the department, including the areas they serve, and provide the list upon request.

DWD 80.49(7) (7) Employee choice.

DWD 80.49(7)(a) (a) At the end of the medical healing period, the self-insured employer or insurance carrier shall notify the employee, on a form provided by the department, of the employee’s potential eligibility to receive rehabilitation services.

DWD 80.49(7)(b) (b) The department shall arrange with the division of vocational rehabilitation to receive timely notice whenever the division of vocational rehabilitation determines under s. 102.61 (1m), Stats., that it cannot serve an eligible employee. When the division of vocational rehabilitation notifies the department that it cannot serve an eligible employee, the department shall mail to the employee and the self-insured employer or insurance carrier a list of certified specialists serving the area where the employee resides.

DWD 80.49(7)(c) (c) The employee may choose any certified specialist. The employee may choose a second certified specialist only by mutual agreement with the self-insured employer or insurance carrier or with the permission of the department. Partners are deemed to be one specialist.

DWD 80.49(7)(d) (d) A specialist selected by an employee under par. (c) shall notify the department and the self-insured employer or insurance carrier within 7 days of that selection. The department may develop a form for this purpose.

DWD 80.49(7)(e) (e) The self-insured employer or insurance carrier is liable for the reasonable and necessary cost of the specialist’s services and the reasonable cost of the training program recommended by the specialist provided that the employee and the specialist substantially comply with the requirements in subs. (8) to (11). Except with the prior consent of the self-insured employer or insurance carrier, the reasonable cost of any specialist’s services to the employee shall not exceed $1,000 for each date of injury as defined in s. 102.01 (2) (g), Stats. Effective on the first day of January each year after 1995, the department shall adjust the $1,000 limit by the same percentage change as the average annual percentage change in the U.S. consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor, for the 12 months ending on September 30 of the prior year. The department shall notify insurance carriers, self-insured employers and specialists likely to be affected by the annual change in the limit.

DWD 80.49 Note Note: To obtain a copy of all 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 80.49(8) (8) Employer’s duties upon receipt of permanent restrictions. Upon receiving notice that the division of vocational rehabilitation cannot serve the employee under s. 102.61 (1m), Stats., the employee or a person authorized to act on the employee’s behalf shall provide the employer with a written report from a physician, podiatrist, psychologist or chiropractor stating the employee’s permanent work restrictions. Within 60 days of receiving the practitioner’s work restrictions, the employer shall provide to the employee or the employee’s authorized representative, in writing:

DWD 80.49(8)(a) (a) An offer of suitable employment for the employee;

DWD 80.49(8)(b) (b) A statement that the employer has no suitable employment available for the employee; or,

DWD 80.49(8)(c) (c) A medical report from a physician, podiatrist, psychologist or chiropractor showing that the permanent work restrictions provided by the employee’s practitioner are in dispute, and medical or vocational documentation that the difference in work restrictions would materially affect either the employer’s ability to provide suitable employment or a specialist’s ability to recommend a retraining program. If after 30 days the employee and employer cannot resolve the dispute, either party may request a hearing before the division of hearings and appeals to determine the employee’s work restrictions. Within 30 days after the division of hearings and appeals determines the restrictions, the employer shall provide the written notice required in par. (a) or (b).

DWD 80.49(9) (9) 90-day placement effort.

DWD 80.49(9)(a) (a) If the employer fails to respond as required in sub. (8), it shall be conclusively presumed for the purposes of s. 102.61 (1m), Stats., that the employer has no suitable employment available and the employee is entitled to receive vocational rehabilitation services from a specialist.

DWD 80.49(9)(b) (b) If the employer does not make a written offer of suitable employment under sub. (8), the specialist shall determine whether there is suitable employment available for the employee in the general labor market without retraining. If suitable employment is reasonably likely to be available, the specialist shall attempt to place the employee in alternative suitable employment for at least 90 days prior to developing a retraining program. The employee shall cooperate fully in the specialist’s placement efforts and may not refuse an offer of suitable employment made within the 90-day period. In determining whether the offer is suitable the department shall consider age, education, training, previous work experience, previous earnings, present occupation and earnings, travel distance, goals of the employee, and the extent to which it would restore the employee’s preinjury earning capacity and potential.

DWD 80.49(9)(c) (c) If the employee is placed in or refuses to accept suitable employment, the self-insured employer or insurance carrier is not liable for any further costs of the specialist’s services unless that suitable employment ends within the statute of limitations in s. 102.17 (4), Stats.

DWD 80.49(10) (10) Retraining.

DWD 80.49(10)(a) (a) If, after reasonably diligent effort by the employee and the specialist, the employee does not obtain suitable employment, then there is a rebuttable presumption that the employee needs retraining. The presumption is rebuttable by evidence that:

DWD 80.49(10)(a)1. 1. No retraining program can help restore as nearly as possible the employee’s wage earning capacity;

DWD 80.49(10)(a)2. 2. The employee or the specialist did not make a reasonably diligent effort under sub. (9) (b) to obtain suitable employment for the employee; or

DWD 80.49(10)(a)3. 3. The employee or specialist withheld or misrepresented highly material facts.

DWD 80.49(10)(b) (b) A retraining program of 80 weeks or less is presumed to be reasonable and the employer shall pay the cost of the program, mileage and maintenance benefits, and temporary total disability benefits.

DWD 80.49(10)(c) (c) A retraining program more than 80 weeks may be reasonable, but there is no presumption that training over 80 weeks is required. Extension of vocational rehabilitation benefits beyond 80 weeks may not be authorized if the primary purpose of further training is to improve upon preinjury earning capacity rather than restoring it.

DWD 80.49(10)(d) (d) If the retraining program developed by the specialist is for more than 80 weeks, the self-insured employer or the insurance carrier may offer an alternative retraining program which will restore the employee’s preinjury earning capacity in less time than the retraining program developed by the specialist. An employee may not refuse a self-insured employer’s or insurance carrier’s timely, good-faith, written offer of an alternative retraining program without reasonable cause.

DWD 80.49(11) (11) Specialist’s services.

DWD 80.49(11)(a) (a) A specialist shall develop an IPE for a retraining program for the employee, and may amend it to achieve suitable employment.

DWD 80.49(11)(b) (b) A specialist shall make periodic written reports at reasonable intervals to the employee, employer and insurance carrier describing vocational rehabilitation activities which have occurred during that interval.

DWD 80.49(11)(c) (c) Within a reasonable period of time after receiving a written request from an employee, employer, worker’s compensation insurance carrier or department or their representatives, a specialist shall provide that person with any information or written material reasonably related to the specialist’s services to the employee undertaken as a result of any injury for which the employee claims compensation.

DWD 80.49 History History: Cr. Register, September, 1982, No. 321, eff. 10-1-82; emerg. am. (2), r. (3), renum. (4) to be (3), cr. (4) to (11), eff. 11-7-94, am. (2), r. (3), renum. (3) to be (4) and am., cr. (4) to (11), Register, April, 1995, No. 472, eff. 5-1-95; corrections in (2) and (5) (a) 2. made under s. 13.93 (2m) (b) 7., Stats., Register, July, 1996, No. 487; eff. 8-1-96; corrections made under s. 13.93 (2m) (b) 6., Stats., Register, December, 1997, No. 504; CR 07-019: am. (2), (7) (b) and (8), Register October 2007 No. 622, eff. 11-1-07; correction in (6) (b) 1. made under s. 13.92 (4) (b) 6., Stats., Register February 2012 No. 674; CR 15-030: am. (4) (intro.), (a), (6) (b) 1. to 3., (f), (11) (a) Register October 2015 No. 718, eff. 11-1-15; correction in (8) (c) under s. 13.92 (4) (b) 6., 35.17, Stats., Register May 2018 No. 749; EmR2212: emerg. am. (5) (a) 2., eff. 10-12-22; CR 22-072: am. (5) (a) 2., Register May 2023 No. 809, eff. 6-1-23.

DWD 80.50 DWD 80.50 Computation of permanent disabilities.

DWD 80.50(1) (1) In computing permanent partial disabilities, the number of weeks attributable to more distal disabilities shall be deducted from the number of weeks in the schedule for more proximal disabilities before applying the percentage of disability for the more proximal injury, except that:

DWD 80.50(1)(a) (a) Such a deduction shall not include multiple injury factors under s. 102.53, Stats., and the dominant hand increase under s. 102.54, Stats.; and

DWD 80.50(1)(b) (b) Such a deduction shall include preexisting disabilities.

DWD 80.50(2) (2) The number of weeks attributable to scheduled disabilities shall be deducted from 1,000 weeks before computing the number of weeks due for a non-scheduled disability resulting from the same injury. This deduction shall not include multiple injury factors under s. 102.53, Stats., and the dominant hand increase under s. 102.54, Stats.

DWD 80.50(3) (3) Multiple injury factors under s. 102.53, Stats., and the dominant hand increase under s. 102.54, Stats., do not apply to compensation for disfigurement under s. 102.56, Stats.

DWD 80.50 History History: Cr. Register, August, 1981, No. 308, eff. 9-1-81; r. and recr. Register, September, 1982, No. 321, eff. 10-1-82; CR 07-019: am. (1) (a), (2) and (3), Register October 2007 No. 622, eff. 11-1-07.

DWD 80.51 DWD 80.51 Computation of weekly wage. Pursuant to s. 102.11, Stats.

DWD 80.51(1) (1) In determining daily earnings, if the number of hours a full-time employee worked had been either decreased or increased for a period of at least 90 total days prior to the injury, then this revised schedule worked during those 90 days shall be considered to be normal full-time employment.

DWD 80.51(2) (2) When an employee furnishes his or her truck to the employer and is paid by the employer in gross to include operating expenses, one-third of that gross sum is considered as wages except as a showing is made to the contrary.

DWD 80.51(3) (3) Prisoners injured in prison industries are considered to be earning the maximum average weekly earnings under the provisions of s. 102.11, Stats., except as a showing is made to the contrary.

DWD 80.51(4) (4) The 24-hour minimum workweek under s. 102.11 (1) (f) 1., 2019 Stats., does not apply to a part-time employee unless the employee is a member of a regularly scheduled class of part-time employees. In all other cases part-time employment is on the basis of normal full-time employment in such job. However, this subsection does not apply to part-time employees described in s. 102.11 (1) (f), Stats., who restrict availability on the labor market. As to the employees so described, those wages will be expanded to the normal part-time or full-time wages unless the employer or insurance company complies with s. DWD 80.02 (2) (d). This subsection does not apply to employees who are injured on or after April 10, 2022.

DWD 80.51(5) (5) Computation of the weekly wage for an employee who is injured while employed at part-time employment shall be made pursuant to s. 102.11 (1) (ap), Stats. This subsection applies to employees who are injured on or after April 10, 2022.

DWD 80.51 History History: Cr. Register, September, 1982, No. 321, eff. 10-1-82; CR 07-019: am. (4), Register October 2007 No. 622, eff. 11-1-07; EmR2212: emerg. am. (4), cr. (5), eff. 10-15-22; CR 22-072: am. (4), cr. (5) Register May 2023 No. 809., eff. 6-1-23.

DWD 80.52 DWD 80.52 Payment of permanent disability where the degree of permanency is disputed. Where injury is conceded, but the employer or the employer’s insurer disputes the extent of permanent disability, payment of permanent disability shall begin with the later of sub. (1) or (2):

DWD 80.52(1) (1) Within 30 days of a report that provides the permanent disability rating, in the amount of the permanency set forth in the report; or

DWD 80.52(2) (2) Within 30 days after the employer or insurer receives a report from an examination performed under s. 102.13 (1) (a), Stats., in the amount of the permanent disability found as a result of that medical examination, if any. If such an examination had not previously been performed, the employer or employer’s insurer must give notice of a request for such an examination within 30 days of receiving a report that establishes the permanent disability under sub. (1). If a report from the examination is not available within 90 days of the request for the examination, the employer and insurer shall begin payment of the permanent disability set forth in the report under sub. (1).

DWD 80.52 History History: CR 03-125: cr. Register June 2004 No. 582, eff. 7-1-04.

DWD 80.60 DWD 80.60 Exemption from duty to insure (self-insurance).

DWD 80.60(1) (1) Definitions. In this section:

DWD 80.60(1)(a) (a) “Applicant” means a business entity applying for self-insurance.

DWD 80.60(1)(b) (b) “Divided-insurance” means consent to the issuance of 2 or more policies, as provided in s. 102.31 (1), Stats.

DWD 80.60(1)(c) (c) “Employer” means a business entity or its parent guaranteeing payments.

DWD 80.60(1)(d) (d) “Excess insurance” means catastrophic insurance for employers granted self-insurance, and is not full-insurance, self-insurance, partial-insurance or divided-insurance.

DWD 80.60(1)(e) (e) “Full-insurance” means the insurance of all liability by one policy, as required in s. 102.31 (1) (a), Stats.

DWD 80.60(1)(f) (f) “Partial-insurance” means self-insurance of a part of the liability and consent to the issuance of one or more policies on the remainder of the liability, as provided in ss. 102.28 (2) (b) and 102.31 (1), Stats.

DWD 80.60(1)(g) (g) “Self-insurance” means exemption from the duty to insure, as provided in s. 102.28 (2) (b), Stats.

DWD 80.60(2) (2) Excess insurance. Excess insurance may be carried without further order of the department or may be required by order of the department as set forth in sub. (4) (d) 3. and 7.

DWD 80.60(3) (3) Requirements for the state and its political subdivisions.

DWD 80.60(3)(a) (a) The state and its political subdivisions may self-insure without further order of the department, if they are not partially-insured or fully-insured, or to the extent they are not partially-insured by written order under s. 102.31 (1), Stats., under one or more policies, and if they agree to report faithfully all compensable injuries and agree to comply with ch. 102, Stats., and the rules of the department. However, any such employer desiring partial-insurance or divided-insurance must submit an application to the department and be given special consent as described in s. DWD 80.61.

DWD 80.60(3)(b) (b)

DWD 80.60(3)(b)1. 1. Any political subdivision or taxing authority of the state electing to self-insure shall notify the department in writing of the election before undertaking self-insurance, every 3 years after the initial notice, and 30 days before withdrawing from the self-insurance program.

DWD 80.60(3)(b)2. 2. The notice of election to self-insure shall be accompanied by a resolution, adopted by the governing body and signed by the elected or appointed chief executive of the applying political subdivision or taxing authority, stating its intent and agreement by the governing body to self-insure its worker’s compensation liability and an agreement to faithfully report all compensable injuries and to comply with ch. 102, Stats., and the rules of the department in accordance with s. 102.28 (2) (b) and (c), Stats.

DWD 80.60(3)(c) (c) Self-insurance granted under par. (a) is subject to revocation under s. 102.28 (2) (c), Stats. Once the privilege of self-insurance is revoked, further self-insurance may be authorized only under the procedures set forth in sub. (4).

DWD 80.60(4) (4) Requirements for other employers.

DWD 80.60(4)(a) (a) Employers other than those specified in sub. (3), but including those specified in sub. (3) (c), desiring self-insurance shall submit an application on a form available from the department. A non-refundable fee, determined by the department as described in par. (ag), per employer, shall accompany the initial application. If the application is approved, the department shall permit self-insurance by written order. Every 3 years, a self-insured employer shall submit an application to renew self-insurance at least 60 days before the expiration date specified in the department’s order. Each quarter, or more often if requested by the department, a self-insured employer shall submit the most current financial statements to the department. Each year, a self-insured employer shall report work-injury claims payments to the department and other information related to worker’s compensation liability requested by the department. A self-insured employer shall immediately report to the department in writing any change in organizational structure that differs from the information provided in the annual report submitted to the department, including mergers, acquisitions, company name changes, consolidation, sale, or divestiture of divisions or subsidiaries. After a change in organizational structure, the department may revoke or modify the exemption from the duty to insure by providing reasonable written notice to the self-insured employer. If these changes result in the creation of a new parent or subsidiary, the department may waive or modify the requirement in par. (b) 1. to submit 5 years of audited financial statements. A fee of $200, per employer, and the assessment surcharge described in par. (am) may be billed by the department at the same time as the annual assessment under s. 102.75 (1), Stats. Self-insurance shall expire on the day specified by the department in its order. Unless the context indicates otherwise, all information submitted to the department to comply with this section shall be submitted on the latest version of a department approved form.

DWD 80.60 Note Note: For information regarding forms contact the worker’s compensation division, bureau of insurance programs, 201 East Washington Avenue, P.O. Box 7901, Madison, Wisconsin 53707.

DWD 80.60(4)(ag) (ag) In addition to any fee-for-service costs under par. (ax), the department shall charge each initial applicant for self-insurance a flat fee which the department estimates is the average cost for department employees to review the application for self-insurance, including employee salary and fringe benefits, supplies services and administrative costs, and information technology charges. The department shall review and, if necessary, modify the fee at least every 2 years.

DWD 80.60(4)(am) (am) In addition to any fee-for-service costs under par. (ax), each year the department shall assess each self-insured employer except those specified in sub. (3), but including those specified in sub. (3) (c), a $200 fee and a proportionate share of the department’s remaining costs to administer the self-insurance program after deducting the total amount estimated to be collected from the $200 fees and the fees charged under par. (ag) for initial applications. The department shall determine the assessment amount under this paragraph in the same manner as costs and expenses are apportioned in s. 102.75 (1), Stats.