(3) Division among dependents.
If there is more than one person wholly or partially dependent on a deceased employee, the death benefit shall be divided between those dependents in such proportion as the department or the division determines to be just, considering their ages and other facts bearing on their dependency.
(4) Dependency as of the date of death.
Questions as to who is a dependent and the extent of his or her dependency shall be determined as of the date of the death of the employee, and the dependent's right to any death benefit becomes fixed at that time, regardless of any subsequent change in conditions. The death benefit shall be directly recoverable by and payable to the dependents entitled to the death benefit or their legal guardians or trustees. In case of the death of a dependent whose right to a death benefit has become fixed, so much of the benefit as is unpaid is payable to the dependent's personal representatives in gross, unless the department or the division determines that the unpaid benefit shall be reassigned under sub. (6)
and paid to any other dependent who is physically or mentally incapacitated or a minor. For purposes of this subsection, a child of the employee who is born after the death of the employee is considered to be a dependent as of the date of death.
(5) When not interested.
No dependent of an injured employee shall be deemed a party in interest to any proceeding by the employee for the enforcement of the employee's claim for compensation, nor with respect to the compromise thereof by such employee. A compromise of all liability entered into by an employee is binding upon the employee's dependents, except that any dependent of a deceased employee may submit the compromise for review under s. 102.16 (1)
(6) Division among dependents.
Benefits accruing to a minor dependent child may be awarded to either parent in the discretion of the department or the division. Notwithstanding sub. (1)
, the department or the division may reassign the death benefit as between a surviving spouse or a domestic partner under ch. 770
and any children specified in sub. (1)
and s. 102.49
in accordance with their respective needs for the death benefit.
(7) Certain defense barred.
In proceedings for the collection of primary death benefit or burial expense it shall not be a defense that the applicant, either individually or as a partner or member, was an employer of the deceased.
See also s. DWD 80.48
, Wis. adm. code.
A posthumously born illegitimate child does not qualify as a dependent under sub. (4). Claimants not falling within one of the classifications under sub. (2) (a) will not qualify for benefits, regardless of dependency in fact. Larson v. DILHR, 76 Wis. 2d 595
, 252 N.W.2d 33
Sub. (5) has no application to a claim for a death benefit because a death benefit claim is not an “employee's claim for compensation." While sub. (5) prohibits a dependent from being a party to a worker's claim for disability benefits, a dependent claiming a death benefit is prosecuting only the dependent's own claim. Edward Brothers, Inc. v. LIRC, 2007 WI App 128
, 300 Wis. 2d 638
, 731 N.W.2d 302
Permanent partial disability schedule.
In cases included in the following schedule of permanent partial disabilities indemnity shall be paid for the healing period, and in addition, for the period specified, at the rate of two-thirds of the average weekly earnings of the employee, to be computed as provided in s. 102.11
The loss of an arm at the shoulder, 500 weeks;
The loss of an arm at the elbow, 450 weeks;
The loss of a palm where the thumb remains, 325 weeks;
The loss of a thumb and the metacarpal bone thereof, 160 weeks;
The loss of a thumb at the proximal joint, 120 weeks;
The loss of a thumb at the distal joint, 50 weeks;
The loss of all fingers on one hand at their proximal joints, 225 weeks;
Losses of fingers on each hand as follows:
An index finger and the metacarpal bone thereof, 60 weeks;
An index finger at the proximal joint, 50 weeks;
An index finger at the second joint, 30 weeks;
An index finger at the distal joint, 12 weeks;
A middle finger and the metacarpal bone thereof, 45 weeks;
A middle finger at the proximal joint, 35 weeks;
A middle finger at the second joint, 20 weeks;
A middle finger at the distal joint, 8 weeks;
A ring finger and the metacarpal bone thereof, 26 weeks;
A ring finger at the proximal joint, 20 weeks;
A ring finger at the second joint, 15 weeks;
A ring finger at the distal joint, 6 weeks;
A little finger and the metacarpal bone thereof, 28 weeks;
A little finger at the proximal joint, 22 weeks;
A little finger at the second joint, 16 weeks;
A little finger at the distal joint, 6 weeks;
The loss of a leg at the hip joint, 500 weeks;
The loss of a leg at the knee, 425 weeks;
The loss of a foot at the ankle, 250 weeks;
The loss of the great toe with the metatarsal bone thereof, 83 1/3 weeks;
Losses of toes on each foot as follows:
The second toe with the metatarsal bone thereof, 25 weeks;
The third, fourth or little toe with the metatarsal bone thereof, 20 weeks;
The third, fourth or little toe at the proximal joint, 6 weeks;
The third, fourth or little toe at the second or distal joint, 4 weeks;
The loss of an eye by enucleation or evisceration, 275 weeks;
Total impairment of one eye for industrial use, 250 weeks;
Total deafness from accident or sudden trauma, 330 weeks;
Total deafness of one ear from accident or sudden trauma, 55 weeks.
See also ss. DWD 80.32
, Wis. adm. code.
In a proceeding brought by an employee who suffered total deafness in one ear, a skull fracture, loss of taste and smell, facial paralysis, and periods of intermittent headaches and dizziness, the Department of Industry, Labor and Human Relations did not err in determining that the hearing loss was a scheduled disability under sub. (18), with a separate award for the additional physical effects of the deafness, rather than considering the entire range of disabilities as a whole. When a loss is recognized by and compensable under this section, the schedule therein is exclusive. Vande Zande v. DILHR, 70 Wis. 2d 1086
, 236 N.W.2d 255
Multiple injury variations.
In case an injury causes more than one permanent disability specified in ss. 102.44 (3)
, the period for which indemnity shall be payable for each additional equal or lesser disability shall be increased as follows:
In the case of impairment of both eyes, by 200 percent.
In the case of disabilities on the same hand covered by s. 102.52 (9)
, by 100 percent for the first equal or lesser disability and by 150 percent for the 2nd and 3rd equal or lesser disabilities.
In the case of disabilities on the same foot covered by s. 102.52 (14)
, by 20 percent.
In all other cases, by 20 percent.
The aggregate result as computed by applying sub. (1)
, and the aggregate result for members on the same hand or foot as computed by applying subs. (2)
, shall each be taken as a unit for applying sub. (4)
as between such units, and as between such units and each other disability.
History: 1973 c. 150
; 1979 c. 278
Injury to dominant hand.
If an injury to an employee's dominant hand causes a disability specified in s. 102.52 (1)
or amputation of more than two-thirds of the distal joint of a finger, the period for which indemnity is payable for that disability or amputation is increased by 25 percent. This increase is in addition to any other increase payable under s. 102.53
but, for cases in which an injury causes more than one permanent disability, the increase under this section shall be based on the periods specified in s. 102.52 (1)
for each disability and not on any increased period specified in s. 102.53
History: 1993 a. 81
Application of schedules. 102.55(1)(1)
Whenever amputation of a member is made between any 2 joints mentioned in the schedule in s. 102.52
the determined loss and resultant indemnity therefor shall bear such relation to the loss and indemnity applicable in case of amputation at the joint next nearer the body as such injury bears to one of amputation at the joint nearer the body.
For the purposes of this schedule permanent and complete paralysis of any member shall be deemed equivalent to the loss thereof.
For all other injuries to the members of the body or its faculties that are specified in the schedule under s. 102.52
resulting in permanent disability, though the member is not actually severed or the faculty is not totally lost, compensation shall bear such relation to the compensation named in the schedule as the disability bears to the disability named in the schedule. Indemnity in those cases shall be determined by allowing weekly indemnity during the healing period resulting from the injury and the percentage of permanent disability resulting after the healing period as found by the department or the division.
History: 2015 a. 55
Occupational deafness; definitions. 102.555(1)(a)
“Noise" means sound capable of producing occupational deafness.
“Noisy employment" means employment in the performance of which an employee is subjected to noise.
“Occupational deafness" means permanent partial or permanent total loss of hearing of one or both ears due to prolonged exposure to noise in employment.
No benefits shall be payable for temporary total or temporary partial disability under this chapter for loss of hearing due to prolonged exposure to noise.
An employee who because of occupational deafness is transferred by his or her employer to other noisy employment and thereby sustains actual wage loss shall be compensated at the rate provided in s. 102.43 (2)
, not exceeding $7,000 in the aggregate from all employers. “Time of injury", “occurrence of injury", and “date of injury" in such case mean the date of wage loss.
Subject to the limitations provided in this section, there shall be payable for total occupational deafness of one ear, 36 weeks of compensation; for total occupational deafness of both ears, 216 weeks of compensation; and for partial occupational deafness, compensation shall bear such relation to that named in this section as disabilities bear to the maximum disabilities provided in this section. In cases covered by this subsection, “time of injury", “occurrence of injury", or “date of injury" shall, at the option of the employee, be the date of occurrence of any of the following events to an employee:
Transfer to nonnoisy employment by an employer whose employment has caused occupational deafness;
The last day actually worked before retiring, regardless of vacation pay or time, sick leave or any other benefit to which the employee is entitled;
Termination of the employer-employee relationship; or
Layoff, provided the layoff is complete and continuous for 6 months.
No claim under sub. (4)
may be filed until 7 consecutive days of removal from noisy employment after the time of injury except that under sub. (4) (d)
the 7 consecutive days' period may commence within the last 2 months of layoff.
The limitation provisions in this chapter shall control claims arising under this section. Such provisions shall run from the first date upon which claim may be filed, or from the date of subsequent death, provided that no claim shall accrue to any dependent unless an award has been issued or hearing tests have been conducted by a competent medical specialist after the employee has been removed from the noisy environment for a period of 2 months.
No payment shall be made to an employee under this section unless the employee shall have worked in noisy employment for a total period of at least 90 days for the employer from whom the employee claims compensation.
An employer is liable for the entire occupational deafness to which his or her employment has contributed; but if previous deafness is established by a hearing test or other competent evidence, whether or not the employee was exposed to noise within the 2 months preceding such test, the employer is not liable for previous loss so established nor is the employer liable for any loss for which compensation has previously been paid or awarded.
Any amount paid to an employee under this section by any employer shall be credited against compensation payable by any employer to such employee for occupational deafness under subs. (3)
. No employee shall in the aggregate receive greater compensation from any or all employers for occupational deafness than that provided in this section for total occupational deafness.
No compensation may be paid for tinnitus unless a hearing test demonstrates a compensable hearing loss other than tinnitus. For injuries occurring on or after January 1, 1992, no compensation may be paid for tinnitus.