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.
This section does not apply to liability arising under s. 102.06
unless the employer sought to be charged knew or should have known that the minor was illegally employed by the contractor or subcontractor.
Indemnity under rehabilitation law. 102.61(1)(1)
Subject to subs. (1g)
, an employee who is entitled to receive and has received compensation under this chapter, and who is entitled to and is receiving instruction under 29 USC 701
, as administered by the state in which the employee resides or in which the employee resided at the time of becoming physically disabled, shall, in addition to other indemnity, be paid the actual and necessary costs of tuition, fees, books, and travel required for the employee's rehabilitation training program and, if the employee receives that instruction elsewhere than at the place of residence, the actual and necessary costs of maintenance, during rehabilitation, subject to the conditions and limitations specified in sub. (1r)
. The costs of travel under this subsection shall be paid at the same rate as is provided for state officers and employees under s. 20.916 (8)
In this subsection, “suitable employment" means employment that is within an employee's permanent work restrictions, that the employee has the necessary physical capacity, knowledge, transferable skills, and ability to perform, and that pays not less than 90 percent of the employee's preinjury average weekly wage, except that employment that pays 90 percent or more of the employee's preinjury average weekly wage does not constitute suitable employment if any of the following apply:
The employee's education, training, or employment experience demonstrates that the employee is on a career or vocational path, the employee's average weekly wage on the date of injury does not reflect the average weekly wage that the employee reasonably could have been expected to earn 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.
The employee was performing part-time employment at the time of the injury, the employee's average weekly wage for compensation purposes is calculated under s. 102.11 (1) (ap) 2.
, and that average weekly wage exceeds the employee's gross average weekly wage for the part-time employment.
If an employer offers an employee suitable employment as provided in par. (c)
, the employer or the employer's insurance carrier is not liable for temporary disability benefits under s. 102.43 (5) (b)
or for the cost of tuition, fees, books, travel, and maintenance under sub. (1)
. Ineligibility for compensation under this paragraph does not preclude an employee from receiving vocational rehabilitation services under 29 USC 701
if the department determines that the employee is eligible to receive those services.
On receiving notice that he or she is eligible to receive vocational rehabilitation services under 29 USC 701
, an employee shall provide the employer with a written report from a physician, chiropractor, psychologist, or podiatrist stating the employee's permanent work restrictions. Within 60 days after receiving that report, the employer shall provide to the employee in writing an offer of suitable employment, a statement that the employer has no suitable employment for the employee, or a report from a physician, chiropractor, psychologist, or podiatrist showing that the permanent work restrictions provided by the employee's practitioner are in dispute and documentation showing that the difference in work restrictions would materially affect either the employer's ability to provide suitable employment or a vocational rehabilitation counselor's ability to recommend a rehabilitative training program. If the employer and employee cannot resolve the dispute within 30 days after the employee receives the employer's report and documentation, the employer or employee may request a hearing before the division to determine the employee's work restrictions. Within 30 days after the division determines the employee's work restrictions, the employer shall provide to the employee in writing an offer of suitable employment or a statement that the employer has no suitable employment for the employee.
If the department has determined under sub. (1)
that an employee is eligible for vocational rehabilitation services under 29 USC 701
, but that the department cannot provide those services for the employee, the employee may select a private rehabilitation counselor certified by the department to determine whether the employee can return to suitable employment without rehabilitative training and, if that counselor determines that rehabilitative training is necessary, to develop a rehabilitative training program to restore as nearly as possible the employee to his or her preinjury earning capacity and potential.
Notwithstanding s. 102.03 (4)
, an employee whose date of injury is before May 4, 1994, may receive private rehabilitative counseling and rehabilitative training under par. (a)
The employer or insurance carrier shall pay the reasonable cost of any services provided for an employee by a private rehabilitation counselor under par. (a)
and, subject to the conditions and limitations specified in sub. (1r) (a)
and by rule, if the private rehabilitation counselor determines that rehabilitative training is necessary, the reasonable cost of the rehabilitative training program recommended by that counselor, including the cost of tuition, fees, books, maintenance, and travel at the same rate as is provided for state officers and employees under s. 20.916 (8)
. Notwithstanding that the department or the division may authorize under s. 102.43 (5) (b)
a rehabilitative training program that lasts longer than 80 weeks, a rehabilitative training program that lasts 80 weeks or less is presumed to be reasonable.
If an employee receives services from a private rehabilitation counselor under par. (a)
and later receives similar services from the department under sub. (1)
without the prior approval of the employer or insurance carrier, the employer or insurance carrier is not liable for temporary disability benefits under s. 102.43 (5) (b)
or for tuition, fee, book, travel, and maintenance costs under sub. (1)
that exceed what the employer or insurance carrier would have been liable for under the rehabilitative training program developed by the private rehabilitation counselor.
Nothing in this subsection prevents an employer or insurance carrier from providing an employee with the services of a private rehabilitation counselor or with rehabilitative training under sub. (3)
before the department makes its determination under par. (a)
The department shall promulgate rules establishing procedures and requirements for the private rehabilitation counseling and rehabilitative training process under this subsection. Those rules shall include rules specifying the procedure and requirements for certification of private rehabilitation counselors.
An employee who receives a course of instruction or other rehabilitative training under sub. (1)
is subject to the following conditions and limitations:
The employee must undertake the course of instruction within 60 days from the date when the employee has sufficiently recovered from the injury to permit so doing, or as soon thereafter as the officer or agency having charge of the instruction shall provide opportunity for the rehabilitation.
The employee must continue in rehabilitation training with such reasonable regularity as health and situation will permit.
The employee may not have the costs of tuition, fees, books, travel, and maintenance paid under sub. (1)
or the costs of private rehabilitation counseling and rehabilitative training paid under sub. (1m)
on account of training for a period in excess of 80 weeks in all, except as provided in s. 102.43 (5) (b)
The division, the commission, and the courts shall determine the rights and liabilities of the parties under this section in like manner and with like effect as the division, the commission, and the courts determine other issues under this chapter. A determination under this subsection may include a determination based on the evidence regarding the cost or scope of the services provided by a private rehabilitation counselor under sub. (1m) (a)
or the cost or reasonableness of a rehabilitative training program developed under sub. (1m) (a)
Nothing in this section prevents an employer or insurance carrier from providing an employee with the services of a private rehabilitation counselor or with rehabilitative training if the employee voluntarily accepts those services or that training.
See also s. DWD 80.49
, Wis. adm. code.
Under this section and ss. 102.42 (9) (a) and 102.43 (5), the Department of Industry, Labor and Human Relations may extend temporary disability, travel expense, and maintenance costs beyond 40 weeks if additional training is warranted. Beloit Corp. v. LIRC, 152 Wis. 2d 579
, 449 N.W.2d 299
(Ct. App. 1989).
The provisions of this section encompass formalized courses of instruction only. Johnson v. LIRC, 177 Wis. 2d 736
, 503 N.W.2d 1
(Ct. App. 1993).
Nothing in sub. (1g) or this chapter provides that an injured employee can be denied vocational rehabilitation benefits when the employee is offered suitable employment after an injury and is subsequently fired for just cause. Oshkosh Corp. v. LIRC, 2011 WI App 42
, 332 Wis. 2d 261
, 796 N.W.2d 217
Primary and secondary liability; unchangeable.
In case of liability under s. 102.57
, the liability of the employer shall be primary and the liability of the insurance carrier shall be secondary. If proceedings are had before the division for the recovery of that liability, the division shall set forth in its award the amount and order of liability as provided in this section. Execution shall not be issued against the insurance carrier to satisfy any judgment covering that liability until execution has first been issued against the employer and has been returned unsatisfied as to any part of that liability. Any provision in any insurance policy undertaking to guarantee primary liability or to avoid secondary liability for a liability under s. 102.57
is void. If the employer has been adjudged bankrupt or has made an assignment for the benefit of creditors, if the employer, other than an individual, has gone out of business or has been dissolved, or if the employer is a corporation and its charter has been forfeited or revoked, the insurer shall be liable for the payment of that liability without judgment or execution against the employer, but without altering the primary liability of the employer.
History: 2005 a. 172
; 2015 a. 55
Refunds by state.
Whenever the department shall certify to the secretary of administration that excess payment has been made under s. 102.59
or under s. 102.49 (5)
either because of mistake or otherwise, the secretary of administration shall within 5 days after receipt of such certificate draw an order against the fund in the state treasury into which such excess was paid, reimbursing such payor of such excess payment, together with interest actually earned thereon if the excess payment has been on deposit for at least 6 months.
History: 1981 c. 92
; 2003 a. 33
Attorney general shall represent state and commission. 102.64(1)(1)
Upon request of the department of administration, a representative of the department of justice shall represent the state in cases involving payment into or out of the state treasury under s. 20.865 (1) (fm)
, or (ur)
. The department of justice, after giving notice to the department of administration, may compromise the amount of those payments but such compromises shall be subject to review by the department or the division. If the spouse or domestic partner under ch. 770
of the deceased employee compromises his or her claim for a primary death benefit, the claim of the children of the employee under s. 102.49
shall be compromised on the same proportional basis, subject to approval by the department or the division. If the persons entitled to compensation on the basis of total dependency under s. 102.51 (1)
compromise their claim, payments under s. 102.49 (5) (a)
shall be compromised on the same proportional basis.
Upon request of the department of administration, the attorney general shall appear on behalf of the state in proceedings upon claims for compensation against the state. Except as provided in s. 102.65 (3)
, the department of justice shall represent the interests of the state in proceedings under s. 102.44 (1)
, or 102.66
. The department of justice may compromise claims in those proceedings, but the compromises are subject to review by the department or the division. Costs incurred by the department of justice in prosecuting or defending any claim for payment into or out of the work injury supplemental benefit fund under s. 102.65
, including expert witness and witness fees but not including attorney fees or attorney travel expenses for services performed under this subsection, shall be paid from the work injury supplemental benefit fund.
In any action to review an order or award of the commission, and upon any appeal therein to the court of appeals, the attorney general shall appear on behalf of the commission, whether any other party defendant shall be represented or not, except that in actions brought by the state the governor shall appoint an attorney to appear on behalf of the commission.
Sub. (3) does not result in providing public counsel for a private party litigant, because nowhere does the statute make the attorney general the claimant's attorney, but expressly states that the attorney general shall appear on behalf of the Department of Industry, Labor and Human Relations. Hunter v. DILHR, 64 Wis. 2d 97
, 218 N.W.2d 314
Work injury supplemental benefit fund. 102.65(1)(1)
The moneys payable to the state treasury under ss. 102.35 (1)
, and 102.60
, together with all accrued interest on those moneys, and all interest payments received under s. 102.75 (2)
, shall constitute a separate nonlapsible fund designated as the work injury supplemental benefit fund. Moneys in the fund may be expended only as provided in s. 20.445 (1) (t)
and may not be used for any other purpose of the state.
For proper administration of the moneys available in the fund the department shall by order, set aside in the state treasury suitable reserves to carry to maturity the liability for benefits under ss. 102.44
. Such moneys shall be invested by the investment board in accordance with s. 25.14 (5)
The department of workforce development may retain the department of administration to process, investigate, and pay claims under ss. 102.44 (1)
, and 102.66
. If retained by the department of workforce development, the department of administration may compromise a claim processed by that department, but a compromise made by that department is subject to review by the department of workforce development or the division. The department of workforce development shall pay for the services retained under this subsection from the appropriation account under s. 20.445 (1) (t)
The secretary shall monitor the cash balance in, and incurred losses to, the work injury supplemental benefit fund using generally accepted actuarial principles. If the secretary determines that the expected ultimate losses to the work injury supplemental benefit fund on known claims exceed 85 percent of the cash balance in that fund, the secretary shall consult with the council on worker's compensation. If the secretary, after consulting with the council on worker's compensation, determines that there is a reasonable likelihood that the cash balance in the work injury supplemental benefit fund may become inadequate to fund all claims under ss. 102.49
, and 102.66
, the secretary shall file with the secretary of administration a certificate attesting that the cash balance in that fund is likely to become inadequate to fund all claims under ss. 102.49
, and 102.66
and specifying one of the following:
That payment of those claims will be made as provided in a schedule that the department shall promulgate by rule.
A date after which payment of those claims will be reduced.
A date after which no new claims under those provisions will be paid.
Payment of certain barred claims. 102.66(1)(1)
Subject to any certificate filed under s. 102.65 (4)
, if there is an otherwise meritorious claim for occupational disease, or for a traumatic injury described in s. 102.17 (4)
in which the date of injury or death or last payment of compensation, other than for treatment or burial expenses, is before April 1, 2006, and if the claim is barred solely by the statute of limitations under s. 102.17 (4)
, the department or the division may, in lieu of worker's compensation benefits, direct payment from the work injury supplemental benefit fund under s. 102.65
of such compensation and such medical expenses as would otherwise be due, based on the date of injury, to or on behalf of the injured employee. The benefits shall be supplemental, to the extent of compensation liability, to any disability or medical benefits payable from any group insurance policy whose premium is paid in whole or in part by any employer, or under any federal insurance or benefit program providing disability or medical benefits. Death benefits payable under any such group policy do not limit the benefits payable under this section.
In the case of occupational disease, or of a traumatic injury described in s. 102.17 (4)
in which the date of injury or death or last payment of compensation, other than for treatment for burial expenses, is before April 1, 2006, appropriate benefits may be awarded from the work injury supplemental benefit fund when the status or existence of the employer or its insurance carrier cannot be determined or when there is otherwise no adequate remedy, subject to the limitations contained in sub. (1)
See also s. DWD 80.06
, Wis. adm. code.
This section authorizes the award of benefits for otherwise meritorious claims barred by the statute of limitations in effect at the time the claim arose. State v. DILHR, 101 Wis. 2d 396
, 304 N.W.2d 758
When a disabled worker could have claimed permanent total disability benefits under this section, but failed to do so before dying of causes unrelated to a compensable injury, a surviving dependent may not claim the disability benefits. State v. LIRC, 136 Wis. 2d 281
, 401 N.W.2d 585
Administrative expenses. 102.75(1)(1)
The department shall assess upon and collect from each licensed worker's compensation insurance carrier and from each employer exempted under s. 102.28 (2) (b)
from the duty to carry insurance under s. 102.28 (2) (a)
the proportion of total costs and expenses incurred by the council on worker's compensation for travel and research and by the department, the division, and the commission in the administration of this chapter for the current fiscal year, plus any deficiencies in collections and anticipated costs from the previous fiscal year, that the total indemnity paid or payable under this chapter by each such carrier and exempt employer in worker's compensation cases initially closed during the preceding calendar year, other than for increased, double, or treble compensation, bore to the total indemnity paid in cases closed the previous calendar year under this chapter by all carriers and exempt employers, other than for increased, double, or treble compensation. The council on worker's compensation, the division, and the commission shall annually certify any costs and expenses for worker's compensation activities to the department at such time as the secretary requires.
Subject to par. (b)
, the department shall collect from each licensed worker's compensation carrier the proportion of reimbursement approved by the department under s. 102.44 (1) (c) 1.
for supplemental benefits paid in the year before the previous year that the total indemnity paid or payable under this chapter by the carrier in worker's compensation cases initially closed during the preceding calendar year, other than for increased, double, or treble compensation, bore to the total indemnity paid in cases closed the previous calendar year under this chapter by all carriers, other than for increased, double, or treble compensation.
The maximum amount that the department may collect under par. (a)
in a calendar year is $5,000,000. If the amount determined collectible under par. (a)
in a calendar year is $5,000,000 or less, the department shall collect that amount. If the amount determined collectible under par. (a)
in a calendar year exceeds $5,000,000, the department shall collect $5,000,000 in the year in which the determination is made and, subject to the maximum amount collectible of $5,000,000 per calendar year, shall collect the excess in the next calendar year or in subsequent calendar years until that excess is collected in full.
This subsection does not apply to claims for reimbursement under s. 102.44 (1) (c) 1.
for supplemental benefits paid for injuries that occur on or after January 1, 2016.
The moneys collected under subs. (1)
and under ss. 102.28 (2)
and 102.31 (7)
, together with all accrued interest, shall constitute a separate nonlapsible fund designated as the worker's compensation operations fund. Moneys in the fund may be expended only as provided in ss. 20.427 (1) (ra)
and 20.445 (1) (ra)
, and (rp)
and may not be used for any other purpose of the state.
The department shall require each licensed worker's compensation insurance carrier and employer exempted under s. 102.28 (2) (b)
from the duty to insure under s. 102.28 (2) (a)
to make the payments required under sub. (1)
for each fiscal year on such dates as the department prescribes. The department shall also require each licensed worker's compensation insurance carrier to make the payments required under sub. (1g)
for each fiscal year on those dates. Each such payment shall be a sum equal to a proportionate share of the annual costs and expenses assessed upon each carrier and employer as estimated by the department. Interest shall accrue on amounts not paid within 30 days after the date prescribed by the department under this subsection at the rate of 1 percent per month. All interest payments received under this subsection shall be deposited in the fund established under s. 102.65