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.
Compensation under s. 102.66
for permanent partial disability due to occupational deafness may be paid only if the loss of hearing exceeds 20 percent of binaural hearing loss.
An employer, the department, or the division is not liable for the expense of any examination or test for hearing loss, any evaluation of such an exam or test, any medical treatment for improving or restoring hearing, or any hearing aid to relieve the effect of hearing loss unless it is determined that compensation for occupational deafness is payable under sub. (3)
, or (11)
For a case of occupational deafness in which the date of injury is on or after April 1, 2008, this subsection applies beginning on that date. Notwithstanding ss. 102.03 (4)
and 102.17 (4)
, for a case of occupational deafness in which the date of injury is before April 1, 2008, this subsection applies beginning on January 1, 2012.
See also s. DWD 80.25
, Wis. adm. code.
Committee Note, 1971: Where an employer discontinues a noisy operation and transfers the employees to nonnoisy employment, they have been unable to make claim for occupational deafness until the conditions of sub. (b), (c) or (d) were met. The employee will now have the option of filing a claim at the time of transfer at the current rate of compensation with a 2-1/2 percent reduction for each year of age over 50 or waiting until he meets the conditions of sub. (b), (c) or (d) when he may file claim at the then-current rate of compensation with a 1/2 percent reduction for each year of age over 50. [Bill 371-A]
It is a prerequisite for an award of benefits under sub. (10) that the employee must have suffered some compensable hearing loss other than tinnitus; sub. (10) does not require a compensable hearing loss in both ears or in a particular ear. General Castings Corp. v. LIRC, 152 Wis. 2d 631
, 449 N.W.2d 619
(Ct. App. 1989).
Subject to sub. (2)
, if an employee is so permanently disfigured as to occasion potential wage loss due to the disfigurement, the department or the division may allow such sum as the department or the division considers just as compensation for the disfigurement, not exceeding the employee's average annual earnings. In determining the potential for wage loss due to the disfigurement and the sum awarded, the department or the division shall take into account the age, education, training, and previous experience and earnings of the employee, the employee's present occupation and earnings, and likelihood of future suitable occupational change. Consideration for disfigurement allowance is confined to those areas of the body that are exposed in the normal course of employment. The department or the division shall also take into account the appearance of the disfigurement, its location, and the likelihood of its exposure in occupations for which the employee is suited.
If an employee who claims compensation under sub. (1)
returns to work for the employer who employed the employee at the time of the injury, or is offered employment with that employer, at the same or a higher wage, the department or the division may not allow that compensation unless the employee suffers an actual wage loss due to the disfigurement.
The Labor and Industry Review Commission's allowance of a disfigurement award based on a limp was a reasonable interpretation of this section. Nothing in sub. (1) limits disfigurement to amputations, scars, and burns. County of Dane v. LIRC, 2009 WI 9
, 315 Wis. 2d 293
, 759 N.W.2d 571
Toxic or hazardous exposure; medical examination; conditions of liability. 102.565(1)(1)
When, as a result of exposure in the course of employment over a period of time to toxic or hazardous substances or conditions, an employee performing work that is subject to this chapter develops any clinically observable abnormality or condition that, on competent medical opinion, predisposes or renders the employee in any manner differentially susceptible to disability to such an extent that it is inadvisable for the employee to continue employment involving that exposure, is discharged from or ceases to continue the employment, and suffers wage loss by reason of that discharge from, or cessation of, employment, the department or the division may allow such sum as the department or the division considers just as compensation for that wage loss, not exceeding $13,000. If a nondisabling condition may also be caused by toxic or hazardous exposure not related to employment and if the employee has a history of that exposure, compensation as provided under this section or any other remedy for loss of earning capacity shall not be allowed. If the employee is discharged from employment prior to a finding by the department or the division that it is inadvisable for the employee to continue in that employment and if it is reasonably probable that continued exposure would result in disability, the liability of the employer who discharges the employee is primary, and the liability of the employer's insurer is secondary, under the same procedure and to the same effect as provided by s. 102.62
Upon application of any employer or employee the department or the division may direct any employee of the employer or an employee who, in the course of his or her employment, has been exposed to toxic or hazardous substances or conditions to submit to examination by one or more physicians appointed by the department or the division to determine whether the employee has developed any abnormality or condition under sub. (1)
, and the degree of that abnormality or condition. The cost of the medical examination shall be borne by the person making application. The physician conducting the examination shall submit the results of the examination to the department or the division, which shall submit copies of the reports to the employer and employee, who shall have an opportunity to rebut the reports if a request to submit a rebuttal is made to the department or the division within 10 days after the department or the division mails the report to the parties. The department or the division shall make its findings as to whether it is inadvisable for the employee to continue in his or her employment.
If after direction by the commission, or any member of the commission, the department, the division, or an examiner, an employee refuses to submit to an examination or in any way obstructs the examination, the employee's right to compensation under this section shall be barred.
No payment shall be made to an employee under this section unless he or she shall have worked for a reasonable period of time for the employer from whom he or she claims compensation for exposing him or her to toxic or hazardous conditions.
Payment of a benefit under this section to an employee shall stop such employee from any further recovery whatsoever from any employer under this section.
This section does not apply to an employee whose claim of injury is presumed to be caused by employment under s. 102.03 (6)
Sub. (1) requires that an employee's termination be connected to the employment that caused the susceptibility to disease. General Castings Corp. v. Winstead, 156 Wis. 2d 752
, 457 N.W.2d 557
(Ct. App. 1990).
Violations of safety provisions, penalty.
If injury is caused by the failure of the employer to comply with any statute, rule, or order of the department of safety and professional services, compensation and death benefits provided in this chapter shall be increased by 15 percent but the total increase may not exceed $15,000. Failure of an employer reasonably to enforce compliance by employees with any statute, rule, or order of the department of safety and professional services constitutes failure by the employer to comply with that statute, rule, or order.
This section and s. 102.58 may be applicable in the same case if the negligence of both the employer and employee are causes of the employee's injury. Milwaukee Forge v. DILHR, 66 Wis. 2d 428
, 225 N.W.2d 476
Death benefits for dependent children are not increased by this section. Schwartz v. DILHR, 72 Wis. 2d 217
, 240 N.W.2d 173
The application of this section is not restricted to statutes “of the" Department of Workforce Development. Statutes are not “of" departments of the state. The reasonable reading of this section is that “of the department" modifies “order" and not “statute." The only word that modifies “statute" in the first sentence of the section is “any." This section allows an administrative law judge to increase worker's compensation benefits if it finds that the employer failed to comply with any statute. A violation of a federal Occupational Safety and Health Administration standard was not a violation of “a statute, rule, or order of the department" but was evidence of a violation of a Wisconsin statute, the safe place statute, s. 101.11. Sohn Manufacturing Inc. v. LIRC, 2013 WI App 112
, 350 Wis. 2d 469
, 838 N.W.2d 131
This section is not preempted by federal law. It is not an attempt to regulate in an area that the state has not been authorized to regulate and does not constitute enforcement of federal workplace safety regulations. Rather, this section is a worker's compensation law “with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment" exempted from preemption under 29 USC 653 (b) (4). Sohn Manufacturing Inc. v. LIRC, 2013 WI App 112
, 350 Wis. 2d 469
, 838 N.W.2d 131
Decreased compensation. 102.58(1)(1)
If injury is caused by the failure of the employee to use safety devices that are provided in accordance with any statute, rule, or order of the department of safety and professional services and that are adequately maintained, and the use of which is reasonably enforced by the employer, or if injury results from the employee's failure to obey any reasonable rule adopted and reasonably enforced by the employer for the safety of the employee and of which the employee has notice, the compensation and death benefit provided in this chapter shall be reduced by 15 percent, but the total reduction may not exceed $15,000.
If an employee violates the employer's policy concerning employee drug or alcohol use and is injured, and if that violation is causal to the employee's injury, no compensation or death benefits shall be payable to the injured employee or a dependent of the injured employee and no payment under s. 102.49 (5) (b)
shall be payable. Nothing in this subsection shall reduce or eliminate an employer's liability for incidental compensation under s. 102.42 (1)
or drug treatment under s. 102.425
The burden of proof is on the employer to establish not only the fact of intoxication, but also a causal connection between the condition and the injury or accident. Haller Beverage Corp. v. DILHR, 49 Wis. 2d 233
, 181 N.W.2d 418
This section and s. 102.57 may be applicable in the same case if the negligence of both the employer and employee are causes of the employee's injury. Milwaukee Forge v. DILHR, 66 Wis. 2d 428
, 225 N.W.2d 476
Whether a traveling employee's multiple drinks at a tavern was a deviation was irrelevant when the employee was injured while engaged in a later act reasonably necessary to living. Under this section, intoxication does not defeat a worker's compensation claim but only decreases the benefits. Heritage Mutual Insurance Co. v. Larsen, 2001 WI 30
, 242 Wis. 2d 47
, 624 N.W.2d 129
Preexisting disability, indemnity. 102.59(1)(1)
Subject to any certificate filed under s. 102.65 (4)
, if at the time of injury an employee has permanent disability that if it had resulted from that injury would have entitled the employee to indemnity for 200 weeks and if as a result of that injury the employee incurs further permanent disability that entitles the employee to indemnity for 200 weeks, the employee shall be paid from the funds provided in this section additional compensation equivalent to the amount that would be payable for that previous disability if that previous disability had resulted from that injury or the amount that is payable for that further disability, whichever is less, except that an employee may not be paid that additional compensation if the employee has already received compensation under this subsection. If the previous and further disabilities result in permanent total disability, the additional compensation shall be in such amount as will complete the payments that would have been due had the permanent total disability resulted from that injury. This additional compensation accrues from, and may not be paid to any person before, the end of the period for which compensation for permanent disability resulting from the injury is payable by the employer, and shall be subject to s. 102.32 (6)
, and (7)
. No compromise agreement of liability for this additional compensation may provide for any lump sum payment.
A compromise order issued under s. 102.16 (1)
may not be admitted as evidence in any action or proceeding for benefits compensable under this section.
In the case of the loss or of the total impairment of a hand, arm, foot, leg, or eye, the employer shall pay $20,000 into the state treasury. The payment shall be made in all such cases regardless of whether the employee or the employee's dependent or personal representative commences action against a 3rd party as provided in s. 102.29
All payments received under this section shall be deposited in the fund established by s. 102.65
See also s. DWD 80.68
, Wis. adm. code.
The fund was not liable for disability benefits when an employer was liable for permanent total disability. Green Bay Soap Co. v. DILHR, 87 Wis. 2d 561
, 275 N.W.2d 190
(Ct. App. 1979).
Minor illegally employed. 102.60(1m)(1m)
When the injury is sustained by a minor who is illegally employed, the employer, in addition to paying compensation to the minor and death benefits to the dependents of the minor, shall pay the following amounts into the state treasury, for deposit in the fund established under s. 102.65
An amount equal to the amount recoverable by the injured employee, but not to exceed $7,500, if the injured employee is a minor of permit age and at the time of the injury is employed, required, suffered, or permitted to work without a written permit issued under ch. 103
, except as provided in pars. (b)
An amount equal to double the amount recoverable by the injured employee, but not to exceed $15,000, if the injured employee is a minor of permit age and at the time of the injury is employed, required, suffered, or permitted to work without a permit in any place of employment or at any employment in or for which the department acting under ch. 103
, has adopted a written resolution providing that permits shall not be issued.
An amount equal to double the amount recoverable by the injured employee, but not to exceed $15,000, if the injured employee is a minor of permit age or older and at the time of the injury is employed, required, suffered, or permitted to work at prohibited employment.
An amount equal to double the amount recoverable by the injured employee, but not to exceed $15,000, if the injured employee is a minor under permit age and is illegally employed.
A permit or certificate of age that is unlawfully issued by an officer specified in ch. 103
, or that is unlawfully altered after issuance, without fraud on the part of the employer, shall be considered a permit for purposes of this section.
If the employer is misled in employing a minor illegally because of fraudulent written evidence of age presented by the minor, the employer is not required to pay the amounts specified in sub. (1m)
This section does not apply to a person selling or distributing newspapers or magazines on the street or from house to house if the agency or publisher for whom the person sells or distributes newspapers or magazines establishes by affirmative proof that at the time of the injury the person was not employed with the actual or constructive knowledge of the agency or publisher.