102.17(7) (7) 

102.17(7)(a) (a) Except as provided in par. (b), in a claim under s. 102.44 (2) and (3), testimony or certified reports of expert witnesses on loss of earning capacity may be received in evidence and considered with all other evidence to decide on an employee’s actual loss of earning capacity.

102.17(7)(b) (b) Except as provided in par. (c), the division shall exclude from evidence testimony or certified reports from expert witnesses under par. (a) offered by the party that raises the issue of loss of earning capacity if that party failed to notify the division and the other parties of interest, at least 60 days before the date of the hearing, of the party’s intent to provide the testimony or reports and of the names of the expert witnesses involved. Except as provided in par. (c), the division shall exclude from evidence testimony or certified reports from expert witnesses under par. (a) offered by a party of interest in response to the party that raises the issue of loss of earning capacity if the responding party failed to notify the division and the other parties of interest, at least 45 days before the date of the hearing, of the party’s intent to provide the testimony or reports and of the names of the expert witnesses involved.

102.17(7)(c) (c) Notwithstanding the notice deadlines provided in par. (b), the division may receive in evidence testimony or certified reports from expert witnesses under par. (a) when the applicable notice deadline under par. (b) is not met if good cause is shown for the delay in providing the notice required under par. (b) and if no party is prejudiced by the delay.

102.17(8) (8) Unless otherwise agreed to by all parties, an injured employee shall file with the division and serve on all parties at least 15 days before the date of the hearing an itemized statement of all medical expenses and incidental compensation under s. 102.42 claimed by the injured employee. The itemized statement shall include, if applicable, information relating to any travel expenses incurred by the injured employee in obtaining treatment including the injured employee’s destination, number of trips, round trip mileage, and meal and lodging expenses. The division may not admit into evidence any information relating to medical expenses and incidental compensation under s. 102.42 claimed by an injured employee if the injured employee failed to file with the division and serve on all parties at least 15 days before the date of the hearing an itemized statement of the medical expenses and incidental compensation under s. 102.42 claimed by the injured employee, unless the division is satisfied that there is good cause for the failure to file and serve the itemized statement.

102.17(9) (9) 

102.17(9)(a) (a) In this subsection:

102.17(9)(a)1. 1. “Fire fighter” means any person employed on a full-time basis by the state or any political subdivision as a member or officer of a fire department, including the 1st class cities and state fire marshal and deputies.

102.17(9)(a)2. 2. “Post-traumatic stress disorder” means that condition, as described in the 5th edition of the Diagnostic and Statistical Manual of Mental Disorders by the American Psychiatric Association.

102.17(9)(b) (b) Subject to par. (c), in the case of a mental injury that is not accompanied by a physical injury and that results in a diagnosis of post-traumatic stress disorder in a law enforcement officer, as defined in s. 23.33 (1) (ig), or a fire fighter, the claim for compensation for the mental injury, in order to be compensable under this chapter, is subject to all of the following:

102.17(9)(b)1. 1. The mental injury must satisfy all of the following conditions:

102.17(9)(b)1.a. a. The diagnosis of post-traumatic stress disorder is made by a licensed psychiatrist or psychologist.

102.17(9)(b)1.b. b. The conditions of liability under s. 102.03 (1) are proven by the preponderance of the evidence.

102.17(9)(b)2. 2. The mental injury may not be a result of any of the following actions taken in good faith by the employer:

102.17(9)(b)2.a. a. A disciplinary action.

102.17(9)(b)2.b. b. A work evaluation.

102.17(9)(b)2.c. c. A job transfer.

102.17(9)(b)2.d. d. A layoff.

102.17(9)(b)2.e. e. A demotion.

102.17(9)(b)2.f. f. A termination.

102.17(9)(b)3. 3. The diagnosis does not need to be based on unusual stress of greater dimensions than the day-to-day emotional strain and tension experienced by similarly situated employees.

102.17(9)(c) (c) No individual may receive compensation for a claim of mental injury under this subsection more than 3 times in his or her lifetime. The limitation under this paragraph applies irrespective of whether the individual becomes employed by a different employer or in a different position with the same employer.

102.17 History History: 1971 c. 148; 1971 c. 213 s. 5; 1973 c. 150, 282; Sup. Ct. Order, 67 Wis. 2d 585, 774 (1975); 1975 c. 147 ss. 20, 54; 1975 c. 199, 200; 1977 c. 29, 195, 273; 1979 c. 278; 1981 c. 92, 314; 1981 c. 317 s. 2202; 1981 c. 380; 1981 c. 391 s. 211; 1985 a. 83; 1989 a. 64, 139, 359; 1991 a. 85; 1993 a. 81, 492; 1995 a. 27, 117; 1997 a. 38, 191, 237; 1999 a. 9; 2001 a. 37; 2003 a. 144; 2005 a. 172; 2007 a. 185; 2009 a. 180, 206; 2011 a. 183; 2013 a. 36; 2015 a. 55, 180; 2021 a. 29, 232; 2021 a. 238 s. 45; 2023 a. 213.

102.17 Cross-reference Cross-reference: See also ch. DWD 80, Wis. adm. code.

102.17 Annotation A plaintiff-employer was not deprived of any substantial due process rights by the Department of Industry, Labor and Human Relations’ refusal to invoke its rule requiring inspection of the opposing parties’ medical reports when the plaintiff had ample notice of the nature of the employee’s claim. Theodore Fleisner, Inc. v. DILHR, 65 Wis. 2d 317, 222 N.W.2d 600 (1974).

102.17 Annotation Under the facts of this case, the refusal to grant an employer’s request for adjournment was a denial of due process. Bituminous Casualty Co. v. DILHR, 97 Wis. 2d 730, 295 N.W.2d 183 (Ct. App. 1980).

102.17 Annotation Sub. (1) (d) does not create a presumption that evidence presented by treating physicians is correct. The statute enforces the idea that the Labor and Industry Review Commission determines the weight to be given medical witnesses. Conradt v. Mt. Carmel School Fireman’s Fund Insurance Co., 197 Wis. 2d 60, 539 N.W.2d 713 (Ct. App. 1995), 94-2842.

102.17 Annotation The Labor and Industry Review Commission’s authority under sub. (1) (a) to control its calendar and manage its internal affairs necessarily implies the power to deny an applicant’s motion to withdraw an application for hearing. An appellant’s failure to appear at a hearing after a motion to withdraw the application was denied was grounds for entry of a default judgment under s. 102.18 (1) (a). Baldwin v. LIRC, 228 Wis. 2d 601, 599 N.W.2d 8 (Ct. App. 1999), 98-3090.

102.17 Annotation In the absence of testimony in conflict with a claimant’s medical experts, the Labor and Industry Review Commission may reject the expert evidence if there is countervailing testimony raising legitimate doubt about the employee’s injury. Kowalchuk v. LIRC, 2000 WI App 85, 234 Wis. 2d 203, 610 N.W.2d 122, 99-1183.