CHAPTER 102 WORKER ' S COMPENSATION . Electronically scanned by yaosaigeng


									                       Electronically scanned images of the published statutes.
 2151                                                                                  WORKER'S COMPENSATION 102 .03

                                                         CHAPTER 102

                                             WORKER ' S COMPENSATION .
   i02 01 Definitions                                                       10233    Blanks and records .
   102. . 0 .3 Conditions of liability                                      102. 35 Penalties „
   102 04 Definition of employer                                          . 102.. 37 Employeis'records .
   10205 Election by employer, withdrawal ,                               102 . 38  Records of payments; reports thereon . .
 . 102 . 06 Joint liability of employer and contractor; loaned            1-02. 39  General orders ; application of statutes .
                   employes .                                                         Reports not evidence in actions . .
 102 07 Employe defined . '                                               1
                                                                          10242 Incidental compensation .
   102 , 11 Earnings, method . of ' computation                           102 :43 Weekly compensation schedule .
 102 12 Notice of injury, exception, laches                               10244 Maximum limitations.
 102 .. 1 .3 Examination by physician, chiropractor or podia-             10245 Benefits payable to minors ; how paid,. .. ,
                  trist; competent witnesses ; exclusion of evidence ;    102 ,46 ' ` Death benefit,
                  autopsy..                                               ]02A7, Death benefit, continued ,
 102 14 Jurisdiction of' department ; advisory committee .                102 475 Death benef i t; firemen, law enforcement and correc-
 102 . 15 Rules of procedure; transcripts ;                                              tionaloff icers
 102. lb Submission of disputes; cont ributions by employes.              10248 Death benefit, continued ,
 102 . 17:, Procedure; notice of hearing; witnesses, contempt ;          102 49 Additional death benefit for children, state fund
                  testimony,, medical examination .                       10250 But ial expenses
 10218 '' Findings, orders and awards :.                                  102 . 51 Dependents„
 102 . 19 Alien dependents; payments thr ough consular offi-              10152 Permanent partial disability schedule
                  cers .                                                  102 . 53 Multiple injury and age variations ,
 102 195 . : Empioyes conf ined in institutions ; payment of bene-        102 1 55 Application of schedules,
                  frts                                                    102 555 Occupational deafness; defi nitions:
102 20 Judgment on award. `                                                           Disfigurement .
102 .21 Payment of awards by municipalities .                             1
                                                                         102 565 Silicosis; nondisabling; medical examination; condi-
102 . 22 Penalty for delayed payments                                                    tions ofliability ,
10223 Judicial review                                                    10257 Violations of safety provisions, penalty, .
102 .24 Remanding record                                                 102 . 58 Decreased compensation.
               Appeal from judgment on award . .                         10259 Preexisting disability, indemnity .
102`.26 Fees and costs
1                                                                        1 0260 Minor illegally employed, compensation .
102 2 7 Claims unassignable, and exempt                                  102.. 61 . Indemnity under rehabilitation law .
F02 :28 Preference of claims; worker's compensation insur•               10262 Primary and secondary liability ; unchangeable
                  ance.                                                  10263 Refunds by state .
102 , 29 ' Third party liability                                         102 . 64 Attorney general shall represent state and commis-
102 . 30 . Other insurance not affected; liability of insured                            sion
                  employer .                                             102 . 65 Work injury supplemental benefit fund ,
102 31 ' Worker's compensation insurance ; policy t egula-               102 66 Payment of certain barred claims .
                  tions                                                        75
                                                                         10275 Administrative expenses
102 32 Continuing liability ; guarantee settlement, gross

 102.01 . Definitions . ; (1) The provisions of                             (d) "Municipality" includes county, city,
 this chapter may be known, cited and referred to                        town, village, school district, sewer district,
 as the "Worker's Compensation Act" and                                  drainage district and other public or- quasi-public
 allowances, recoveries andd liabilities under or,                       corporations.
 pursuant to this act constitute and may be                                 (e) "Primary compensation and death bene-
 known, designated and referred to as "Worker's                          fit" means compensation or indemnity for
 Compensation"                                                           disability or death benefit, . other than increased,
    (2) In this chapter;                                                 double or treble compensation or death benefit . .
    (a) "Compensation" means worker's com-                                  (f) " Time of injury", "occurrence of injury",
pensation .                                                              or "date of"injur;y"means the date of the accident
    (b) "Examiner" includes the administrator                            which' caused the injur y, or in the case of disease,
and deputy administrator of the worker's                                 the last day of work for the last employer whose
compensation division of the department .                                employment caused disability, except that in
    (c), "Injury" means mental or physical harm                          case of occupational deafness the definition,in s ..
to an employe caused by accident or disease, and                         102,555 controls .
also means damage to or destruction of artificial                          Hi s tor y : 1975 c 147ss . 7 t613, 54 ;19'75 c 200
members, dental appliances, teeth, hearing aids
and eyeglasses, but, in the case of hearing aids or                      102. 03 Conditions of liability . (1) Liability
eyeglasses, only if such damage or destruction                           under this chapter shall `exist against an
resulted- from accident which also caused                                employer 'only where the following conditions
personal injury entitling the employe to compen-                         concur :
sation therefor either, for disability or treatment ..                      (a) Where the employe sustains an injury .
                      Electronically scanned images of the published statutes.
102 .03 WORKER'S C OMPENSATI ON                                                                          2152

     (b) Where, at the time of the injury, both the        (g) For the purposes of this chapter , members
 employer and employe are subject to the                of the state legislature shall be deemed covered
 provisions of this chapter .                           while traveling to and from the capital in the
     (c) 1 . Where, at the time of the injury, the                                                        d
                                                        performance of their function as legislato r s, and
 employe is performing service growing out of and       while traveling in the performance of their
 incidental to his employment . Every employe           official duties as members of committees or-
 going to and from his employment in the                other bodies created by the legislature or the
ordinary and usual way, while on the premises of        governor, either during the session or during the
 his employer, or while in the immediate vicinity       interi m.
thereof if the injury results from an occurrence           (2) Where such conditions exist the right to
on the premises, shall be deemed to be                  the recovery of compensation pursuant to this
performing service growing out of and incidental        chapter, shall be the exclusive remedy against the
to his employment ; so shall any employe going          employer and the worker 's compensation insur-
between an employer's designated parking lot            ancecarrier . .
and the employer's work premises while on a
direct route and in the ordinary and usual way;
                        e                                  (3) In the case of disease intermittent periods
and so shall any fireman or municipal utility           of temporary disability shall create separate
employe responding to a call for assistance             claims, and permanent partial disability shall
outside the limits of his city or village, unless       create a claim separate from a claim for any
such response is in violation of law . The premises     subsequent disability which latter disability is
of his employer shall be deemed to include also         the result of an intervening cause .
the premises of any other person on whose                  (4) The right to compensation and the
premises service is being performed.
                                                        amount thereof shall in all cases be determined in
    2 . To enhance the morale and efficiency of         accordance with the provisions of law in effect as
public employes in this state and attract               of the date of the injury, except that an employe,
qualified personnel to the public service, it is the    whose claim for benefits under this chapter was
policy of the state that the benefits of this chapter   denied on the grounds that wage payments to
shall extend and be granted to employes in the          him were not in lieu: of compensation, may apply
service of the state or of any municipality therein     for benefits within 30 days after June 10, 1972,
on the same basis, in the same manner, under the        as if the injury was sustained within 2 years of
same conditions, and with like right of recovery        such application,, when he was employed by a
as in the case of employes of persons, firms or ,       municipality which had knowledge of the
private corporations . Accordingly, the same            occurrence of such disabling injury to such
considerations, standards, and rules of decision        employe prior to 1945 and except as to employes
shall apply in all cases in determining whether         who are entitled to changes in the rate of
any employe under this chapter, at the time of          compensation provided in s . 102„44 (1) .
the injury, was performing service growing out of
and incidental to his employment . For the                 (5) If an employe, while working outside the
purposes of this subsection no differentiation          territorial limits of this state , suffers an injury on
shall be made among any of the classes of               account of which the employe , of in the event of
employers enumerated in s . 102 .04 or of               the employe's death, his or' her ' dependents,
employer enumerated in s. 102.07 ; and no               would have been entitled to the benefits provided
statutes, ordinances, or, administrative regula-        by this chapter had such injury occurred within
tions otherwise applicable to any employes              this state, such employe, or, in the event of the
enumerated in s,, 102 .07 shall be controlling .        employe's death resulting from such injury, the
    (d) Where the injury is not intentionally self-     dependents of the employer shall be entitled to
inflicted .                                             the benefits provided by this chapter, if at the
                                                        time of such injury any of the following appl ies :
    (e) Where the accident or, disease causing
injury arises out of his employment .                      (a) His or her employment is pr incipally
    (f) Every employe , whose employment re-            localized in this state .
quires him to t r avel shall be deemed to be               (b) He or she is working under a contract of'
performing service growing out of and incidental        hire - made in this state in employment not
to his employment at all times while on a trip ,        principally localized in any state ,.
except when engaged in a deviation for a private
or, personal purpose. Acts reasonably necessary            (c) He or she is working under a contract
for- living or, incidental thereto shall not be         made in this state in employment principally
regarded as such a deviation . Any accident or          localized _ in another state whose worker's                }
disease arising out of a hazard of such service                          w
                                                        compensation law is not applicable to that
shall be deemed to arise out of his employment .        person's employer


                          Electronically scanned images of the published statutes.
   2153                                                                                     WORKER'S: COMPENSATION 102 .04

      ( d ) He or she is working under a contract of                                employer whose office was 193 miles away and to which he was
   hire ma d e in this state for employment outsid e                                not required to report, was performing services incidental to his
                                           t                                        employment when he sustained a back injury in a fall on the icy
   the United States .                                                              driveway in going from his home to his delivery truck, which he
           History: 1971 c . .148,307,324; 1975c, '    147 ss 15,54 . .             had intended to get into and start for his first call . Black River
           Committee Note, 1971: The Wis consin Supreme Cou r t in                  Dairy Products, Inc .. v. ILHR Dept. . 58 W (2d) 537,207 NW
      the case of Halama v. ILHR Depa rtment , 48 Wis.. (2d) 328                    (2d) 65 .
      ( 1 970) , suggested that consideration be given , to extending                   Since the decedent's employment status fox, services
     coverage to an employe who is i njured wh i le going to or from                rendered in this state was substantial and not transitory, and
     work on a di rect route between two portions of the employe r's                the relationship was not interrupted by cessation of work for
     p remises, i e ., parking lot and work premises . [Bill 3 7 1- Aj              the Wisconsi n employer, the department erred when it
           In a proceeding on a ; claim for death benefits of an office            predicated its denial of benefits: on the employer's conflicting
     worker and receptionist caused by multiple st ab wounds                       testimony that during the year in which the employe met his
     i nflicted by an unknown as sailant upon the emplo ye at the                  death his working time in Wisconsin had been reduced to 10% .
     clos e of her wor king day while she alone remained in the office             Simontonv. ILHR Dept . 62 W (2d)112,214NW (2d) 302 ..
     po r tion of a factory building wh i ch h ad been va cated b y all                Only if the "fortuitous event unexpected and unforeseen"
    other' factory and office 'employes, the ILHR Depa rtment                      can be said to be so out of the ordinary from the countless
    correctly found that the accident aro s e out of the deceased ' s              emotional strains and differences that employes encounter
    employment , since the is olated wor k environment in which the                daily without serious mental injury will liability under the
    deceased worked constituted a zone of special dange r, and                     workmen's compensation act be found . School Dist. No I v .
    hence the posi tional ri sk doctrine was appl i cable. All i ed Mfg. .,        ILHR Dept. . 62W (2d) 370,215 N W (2d) 373.
    Inc .v ILHR Dept ..45 W (2d) 563,173 N.W ( 2d ) 690.                               Under. (1) (f ' ), no purpose of the employer was in any way
           The holding in Brown v Ind ' Comm , 9 W (2d) 555 , that                 served by the extended westward highway testing related to
    causation lega lly sufficient to support compensat i on does not               either visiting a boyfriend ongoing on a hunting trip . Hunter v .
    requi re a showing of strain or exertion greater than that                     ILHR Dept . 64 W (2d) 97,218 NW (2d) 314 .
   normally requi te dby, the applicant's work efforts , wa s no t                     Under' the 4-element test consistently applied by the
   intend ed to preclude a doctor , when determining medical                       supreme court in deciding whether a workman was a loaned or
   ca usation, fr o m considering whether the employe was engaged                  special • employe, the 1st element, actual or implied consent to
   in hi s u sual wor k at the ti me o f inju ry, al th ough the doctor            work for the special employer, is negated hereby the existence
   s hould not autom atica lly conclude each time one i s inju red                 of a work order providing that plantiff would not be employed
   while performing a tas k wh i ch he previously pe rformed on a                 by the special employer f 'or, a period of 90 days, and by the
   usual or reg ula r bas is that such inj ury wa s caus ed b y                   absence of any other evidence indicating consent ; hence,
   preexisting condi tion ra ther than by hi s emplo yment . Pitsch v..           plaintiff' was a business invitee and not an employe at the time
   TLHRDept 47 W (2d) 55,176 NW (2d) 390 . .                                      of the accident. Nelson v . L.. & J Press Corp.. 65 W (2d) 770,
         Wher e a her niated d isc was d iagnosed within a few da ys              223 NW (2d)b07 .
   after the claimed i njury, the evi dence did not justify ILHR in                    the exclusive remedy provision does not bar a ship owner
   find i ng that the employe did not meett his bur den of proof.                 from asserting a right to indemnification against the employer
   E ricics on v ILHR Dept 49 W ( 2d ) 114 , 181 NW (2d) 495 . .                  of the injured man even though he has been paid compensation .
         The : department cannot divide liabi lity for compens ation              Bagrowski v . American Export Isbrantsen Lines, Inc. . 440 F
   am ong success ive employers for the effects of s uccessive                    (2d) 502
   injur ies i n the abs ence of ev i dence to s ustain a finding that the            Under either Minnesota or Wisconsin law, airline which
   disabili ty arose from successive inj uri es ; it can neither assess           paid compensation benefits to stewardess under laws of
  all the l iabi lity aga inst one of sever a l employer s nor divide             Minnesota was not liable to U S _ on theory of indemnity or
  liability equall y among each of several employers where ther e                 contribution for any recovery by stewardess in- her tor t action
  is no eviden ce to support a finding that the injur y or injuries               against . U .S . for same injury which occurred in Wisconsin .
  co nt r ibu ted to the disab i l ity in that manner . Semo ns                   Hermany. US . 382 FSupp . 818 .
  Depat tment Store v. . ILHR Dept. . 50 W (2d) 518 , 184 NW
  (2d ) 87 i .
         While susceptibility to further inju ry does not necessaril y             102 .04 Definition of employer. (1) The
  establish a permanent disability unde r th e "as is" doctrine, an
  employe's predi s positio n to in j ury does not relieve a present               following shall constitute employers subject to
 employer` from liability for wo r kmen 's compensati on benefits                  the provisions of this chapter , within the
 if the employe becom es injured due to his employm ent, even                     meaning of s. 102 . . 03 :
 tho ugh the injur y may not have been s uch as to ha ve cau sed
 disa bility in a normal ind ividual. Semon s Department Sto re v..                    (a) The state , each county, city, town, village,
 ILHR Dept 50 W (2d) 518,184 NW ( 2d) 87 1                                        school - district, . sewer district, drainage district
        Wher e a s alesman s tart s on a ti i p , even if ' he deviates to the
 extent ofspending several hours in a tavern , and is k i lle d on h is           and other : public o r quasi-public corporations
 ordina ry -route home, his estate is entitled to c ompensation ..                therein .. .
 La ger v . ILHR Dept 50 W ( 2d ) 651, 1 85 NW (2d) 3 00. .
        A wife ca nnot ass er t a sep arate and independent ca u se of               „(b) 1 . Every per son - who usually employs 3 or
a ction against her hu sband 's empl oy er for damage s becau se of'              more employes, whether in one or more trades,
lo ss of' consort i um due to injuri es s ustained by the husband in
an indu s trial accident cove red by wor kmen 's compensation.                    businesses, professions or occupations, and
Rosencrans v. . Wis . . Telephone Co.. 54 W (2d) 124 , 1 94 NW                    whether in one or more locations .
 (2d)643 .                                                                            2 . . Every person who usually employs less than
        F inding of commiss ion that deceas ed was perfor ming
service sust a ined even though he was k illed while walk i ng on a               3 employes, provided the person has paid wages
street in M i lwaukee at 3 i n the morning and tests s howed he                  of $500 or more in any calendar quarter , for
was into xicated. . Phillips v ILHR Dept 56 W ( 2d) 569, 2 02
NW (za) 249 .                                                                    services performed in this state ., Such employer
        of the
   An employe cannot bring a 3rd p ar ty action agains t a                       shall become subject as of the first day of the
member          emplo ying partnership, . Candle r v. . H ar dwa r e
Dealers Mut . Ins,, Co.'. 57W (2d) 85,203 NW (2 d) 659. .                        calendar, year next succeeding such quarter ..
     The "exclusive remedy" provision i n ( 2 ) do es not prevent                   .3 . Thisparagraph shall not apply to farmers or
 an action, fox person al injuries again st a supervisory co-                    farm labor .
 employebn the basis of negligence by common law standards,
 It makes no difference th at the co- employe is being b rought i n                   (c) Every person engaged in farming who on
 by me ans of' a 3 rd-pa rty complaint. L ampada v State Sand &
Gravel Co . . 58 W ( 2d) 315,206 NW (2d ) 138 . .
                                                                                 any 20 consecutive or nonconsecutive days
     A s alesman, employed on a part- salary a nd comm ission                    during a calendar year employes 6 or more
basi s, whose duty and only employ ment was to tra vel each day                  employes , whether' in one or more locations . The
from his home in the c i ty, servicing and soliciting o rders for the
s ale of pizzas within a prescri bed terr itory co mmencing on e                 provisions of this chapter shall apply to such
mile outside the city, using a del i very truck furn i shed by his               employer 10 days after , the twentieth such day:.
                      Electronically scanned images of the published statutes.
 102 .04 W OR KE R 'S CO MPE NSATIO N                                                                           2154

    (d) Every person to whom pars.. (a) , (b) and       considered to be farming whether conducted on
 (c) are not applicable, who has any person in          or off such premises by the farm operator.
service under any contract of hire , express or            History: l9' 75c 199 ..
implied, oral or written, and who, at or prior to           When an employe simultaneously performs service for 2
the time of the injury to the employe for which         employers under their joint control and the service for each is
                                                        the same or closely related, both employees are liable for
compensation may be claimed, shall, as provided         workmen's compensation. Insurance Co of N . A v . ILHR
in s . 102 .05, have elected to become subject to the   Dept 45 W (2d) 361,173 NW (2d)192 ,.
provisions of this chapter, and who shall not ,
prior to such accident, - have effected a with-         102 . 05 Election by employer, withdrawal .
drawal of such election .                               (1) An employer who has hadd no employe at any
    (2) Members of partnerships shall nott be           time within a continuous period of '2 years shall
counted as employes . Except as provided in s .         be deemedd to have effected withdrawal, which
10207 (5) (a), a person under contract of hire          shall : be effective on the last day of such period .
for the performance of any service for any              An employerr who has not usually employed 3
employer subject to this section (1961) shall not       employes and who has not paid wages of at least
constitute an employer of any other person with         $500 for" employment in this state in any
respect to such, service and such other person          calendar quarter in a calendar year may file a
shall , with respect to such service, be deemed to      withdrawal notice with the department, which
be an employe only of such employer for whom            withdrawal shall take effect 30 days after the
the service is being performed ,                        date of such filing or at such later date as is
    (3) As used in this chapter "farming" means         specified in the notice .
 the operation of farm premises owned or rented            (2) Anyy employer who shall enter into a
 by the operator . . "Farm premises" means areas        contract for the insurance of compensation, or
 used for operations herein set forth, but does not     against liability therefor, shall be deemed
 include other areas, greenhouses or other similar      thereby to have elected to accept the provisions
structures unless used principally for the              of this chapter, and such election shall include
production of food and farm plants . "Farmer"           farm laborers, domestic servants and employes
means any person engaged in farming as defined . .      not in thee course of a trade, business, profession
Operation of farm premises shall be deemed to           or occupation of the employer if' such intent is
be the planting and cultivating of the soil thereof;    shown by the terms of"the policy ., Such election
the raising and ha rvesting of agricultural,            shall- remain in force until withdrawn in the
horticultural or arboricultural crops thereon ; the     manner provided in sub, . (i ) ..
raising, breeding, tending , training and manage-
ment of livestock, bees, poultry, fur-bearing               (3) Any person engaged in farming who has
animals, wildlife or aquatic life , or their            become subject to this chapter may withdraw by
products, thereon; the processing, drying, pack-        filing with the department a notice of with-
ing, packaging, freezing, grading, storing,             drawal, providing he has not employed 6 or more
delivering to storage , to market or to a carrier for   employes as defined by s . 102 07 (5) on 20 or
transportation to market, distributing directly to      more days during the current or, previous
consumer s or marketing any of the above-named          calendar, year' . . Such withdrawal shall be
commodities , substantially all of which have           effective 30 days after the date of receipt by the
been planted or , produced thereon; the clearing of     department, or at such later date as is specified in
such premises and the salvaging of timber ' and         the notice.. Such person may again become
management and use of wood lots thereon , but           subject to this chapter' as provided by s . 102,04
not including logging, lumbering or wood cutting        (1) (c) and (d) .
operations unless conducted as an accessory to
other farming operations; the managing, con-            102 .06 Joint liability of employer ancd
serving , improving and maintaining of such             contractor ; loaned employee. An employer
premises or the tools , equipment and improve-          shall be liable for, compensation to an employe of
ments thereon and the exchange of labor ,               a contractor or subcontractor under the errt-
services or the exchange of use of equipment with       ployer who is not subject to this chapter, or who
other farmers in pursuing such activities ., The        has not complied with the conditions of s . 102, 28
operation for, not to exceed 30 days during any         (2) in any case where such employer would have
calendar year, by any person deriving the               been liable for compensation if such employe had
person's principal income from farming , of farm        been working directlyy for the employer, includ-
machinery in performing farming services for            ing also work in the erection, alteration, repair or
other farmers for a consideration other, than           demolition of improvements or of fixtures upon
exchange of labor shall : be deemed farming .           premises of such employer, which are used or to
Operation of such premises shall be deemed to           be used in the operations of such employer . The
include also any:y other' activities, commonl y         contractor or subcontractor (if subject to this
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 2155                                                          WORKER 'S COMPENSATION 102 . 07

  chapter) shall also be liable for such compensa-      102 .. 04 (1) (c) , but for no other purpose, the
  tion , but the emplo y e shall not recover compen-    following definitions shall apply :
  sation for the same injury from more than one            (a) Farmers or thei r employes working on an
  party. In the same manner, under the same             exchange basis shall not be deemed employes of a
 conditions, and with like right of recovery , as in    farmer to whom their labor is furnished in
 the case of an employe of a contractor o r             exchange.
 subcontractor, described above, an employer
                                                              (b) The parents , spouse, child, brother, sister,
 shall also be liable for compensation to an              son-in-law , daughter-in-law , father-in-law,
 employe who has been loaned by the emplo yer, to         mother-in-law, brother-in-law, or sister - in-law
 another employer. The employer who becomes               of a farmer shall not be deemed his employes,
 liable for and pays such compensation may
 recover - the same from such contractor ,, subcon-           (c) A shareholder-employe of a family farm
 tractor or other employer for, whom the employe          corporation shall be deemed a "farmer" for
 was working at the time of the injury if such            purposes of this chapter and shall not be deemed
 contractor , subcontractor or other employer was         an employe of a farmer . A "family farm
 an employer as defined in s . 102 .04 ,.                 corporation" means a corporation engaged in
   History: 1975 c. . 147 s.. 54; 1975 c .. 199 .         farming all of whose shareholders are related as
                                                          lineal ancestors or lineal descendants, or as
  102 .07 Employe defined . "Employe" as                  spouses, brothers, sisters , uncles, aunts, cousins ,
  used in this chapter means :                           sons-in-law , . daughters-in-law, fathers-in-law ,
      (1) Every person, including all officials, in      mothers-in-law, brothers-in-law or sisters-in-
  the service of the state, or of any municipality       law of such lineal ancestors or lineal
  therein whether elected or, under any appoint-         descendants ..
  ment, or contract of hire, express or implied, and          (6) Every person selling or distributing
  whether a resident or employed or injured within       newspapers or magazines on the street or from
  or without the state.. The state and any               house to house. Such a person shall be deemed an
  municipality may require a bond from a                 employe of each independent news agency which
  contractor to protect it against compensation to       is subject to this chapter, or (in the absence of
  employess of such contractor or employes of a          such agencies) of' each publisher's (or other
  subcontractor under him,                               intermediate) selling agency which is subject to
     (2) Any peace officer shall be considered an        this . chapter, or (in the absence of all such
 employe while engaged in the enforcement of             agencies) of each publisher, whose newspapers
 peace or, in the pursuit and capture of those           or magazines he -sells or distributes . Such a
 charged with crime.                                     person shall not be counted in determining
     (3) Nothing herein contained shall prevent          whether an intermediate agency or publisher is
 municipalities from paying teachers, policemen,         subject to this chapter.,
 firemen and other employes full salaries during             (7) Every member of any volunteer< fire
 disability, nor interfere with any -pension funds,     company or fire department organized under ch,   r
 nor prevent payment to teachers , policemen or         21 : 3 or ariy legally organized i escue squad shall
 firemen therefrom .                                    be deemed an employe of such company,
     (4) Every person ` in the service of another       department or, squad.. Every such member,., while
 under any contract of hire, express or implied, all    serving .g as an auxiliary policeman at an
 helpers and assistants of employes, whether paid       emergency, ' shall also be deemed an employe of
 by the employer or employe, if employed with the       said company, department or squad . If' such
 knowledge , actual ' ' or constructive, of the         company, Aepartment or squad has not insured
 employer, including minors ( who• shall have the      its liability for compensation to its employes, the
same power, of contracting as adult employes),         municipality or county within which such
but not including (a), domestic servants, (b) any      'company, department, or squad was organized
person whose employment is not in the course of
                            t                           shall be liable for such compensation „
a trade, business, profession or occupation of his           (8 ) Every independent contractor who does
employer, unless as to any of said classes; such        not maintain a separate business and who does
employer has elected to include them.. Item (b)
                                  e                     not hold himself out to and render service to the
shall not operate to exclude an employe whose          public, provided ' he is not himself an employer
employment is in the course of any trade,               subject to this chapter or has not complied with
business , profession or occupation of his              the conditions of subsection (2) of section
employer, however casual, unusual, desultory or         102 .28, shall for the purpose of this chapter be an
isolated any such trade, business, profession ' or     employe of any employer under , this chapter for
occupation maybe..                                     whom he is performing service in the course of
    (5) For the purpose of determining the             the trade, business, profession or occupation of'
number of employes to be counted under s .             such employer at the time of the injury,
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102 .07 WO R KER'S COMPENSATIO N                                                                                       2156

   ( 9 ) Memberss of the national and state                         1976, is 100% of the average weekly earnings
guards, when in state service performing official                  determined as of June 30, 1976 . . The average
duty under direction of appropriate authority,                     weekly earnings fo r permanent partial disability
but only in case federal laws, rules or regulations                for injuries after Januar y 1, 1976, shall be taken
provide no benefits substantially equivalent to                    at not less than $30 nor more than .$85 .. 50,
those provided in this chapter .                                   resulting in a weekly maximum compensation
   (10) Further to effectuate the policy of the                    rate of $57. . Between such limits the average
state that the benefits of this chapter shall extend               weekly earnings shall be determined as follows :
and be granted to employes in the service of the                       (a) Daily earnings shall mean the daily
state, or of any municipality therein on the same                  earnings of the employe at the time of the injury
basis, in the same manner, under the same                          in the employment in which he was then
conditions, and with like right of recovery as in                  engaged . In determining - daily earnings under
the case of employes of persons, firms or private                  this paragraph, overtime shall not be considered .
corporations, any question whether, any person is                  If at the time of the injury the employe is working
an employe under this chapter shall be governed                    on part time for the day, his daily earnings shall
by and determined under the same standards,                        be arrived at by dividing the amount r eceived, or
considerations, and rules of decision in all cases                 to be received by him for such part-time service
under subs . (1) to (9) . Any statutes, ordinances,                for the day, by the number of hours and
or administrative regulations which may be                         fractional hours of such part-time service , and
otherwise applicable to thee classes of employes                   multiplying the result by the number of " hours of
enumerated in sub . (1) shall not be controlling in                the normal full-time working day for- the
deciding whether any person is an employe for                      employment involved .. The words "part time for
the purposes of this chapter.                                      the day " shall appl y to Saturday half' days and all
   ( 1 1 ) The commission shall by rule prescribe .                other days upon which the employe works less
classes of volunteer workers who may, at the                       than normal full-time working hours . The
election of the person for' whom the service is                    average weekly earnings shall be arrived at by
being performed, be deemed to be employes for                      multiplying the daily earnings by the number of'
the purposes of this chapter . Election shall be by                days and fractional days normally worked per
endorsement upon the worker's compensation                         week at the time of the inj ury in the business
insurance policy with written notice to the                                                                   e
                                                                   operation of the employer for the particular
department . In the case of an employer exempt                     employment in which the employe was engaged    s
from insuring liability,, election shall be by                     at the time of his injury ..
written notice to the department . The commis-                        (b) In case of seasonal employment, average
sion shall by rule prescribe the means and                         weekly earnings shall be art ived at by the method
manner in `which notice of election by the                         prescribed in paragraph (a) , except that the
employer is to be provided to the volunteer                        number of hour s of the normal full-time working
workers .                                                          day and the number' . of days of the normal full-
    History : 1975 c . .147 s . 54; 1975 c . 224.                  time working week shall be such hours and such
     Where the claimant, owner of 'a truck, working exclusively
for a trucking company under a lease agreement, fell and
                                                                   days in similar service in the same or similar
sustained injuries in the company's truck parking area while in    nonseasonal employment Seasonal employment
the process of repairing his truck, the d epartment properly       shall mean employment which can be conducted
found that the claimant, although an independent contractor,
was at the time of his injury a statutory employe of the           only during certain times of the ,year , and in no
company u nder sub, (8) . Employers Mut L.. Ins .. Co . v . ILHR   event shall employment be considered seasonal if
Dept . 52 W (2d) 515,190 NW (2d) 907
     There >was, no em ployment when a member of an                it extends during a period of more than fourteen
organization, borrowed a refrigerated truck from a packing         weeks within a calendar year .
company for use at a picnic and was injured when returningg it .      (c) In the case of persons performing service
KiessPacking Co., v . Kottwitz, 61 W ,(2d) 175,212 NW (2d)
97,                                      ..                        without fixed earnings, or' where normal full-
   Memberss of state boards, committees, commissions or            time days or weeks are not maintained by the
councils, who are compensated by per diem or by actual and
necessary expense are covered employes, 58 Atty. . Gen. 10 .                 r
                                                                   employer in the employment in which the
                                                                   employe wor ked when in j ured , or' where, for
102 . 11 Earnings, method of computation .                         other' reason, earnings., cannot be determined
;(1) The average weekly earnings for, temporary                    under the methods               prescribed by paragraph (a)
disability, permanent total disability or death                    or (b), the earnings :of ' the injured person shall,
benefits: fot-, injury on or after January 1, 1976,                for the purpose of calculating compensation
shall be taken at not less than $30 normore than                   payable under this chapter, be taken to be the
such wage° rate as will result in a maximum                        usual going earnings paid for similar services on
compensation rate of 100% of the state's                           a normal- full-time basis in the same or s i milar
average weekly earnings as determined under s ..                   employment in which earnings can be deter-
 108 .05 as of June 30, 1975 . The maximum                         mined , under the methods set out in paragraph
weekly compensation, rate after December 31,                       (a) or ( b) ,
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  2157                                                            WORKER 'S COMPENSATION 102. 13

      (d) Except in situations where paragraph (b)        but to be determined in view of the nature and
  applies , average weekly earnings shall in no case      extent of the injury
  be less than actual average earnings of the               History: 1971 c . 148 ;1973 c .. 150;19 ' 75 c . 147 .
  employe for the calendar weeks during the year
  before his injury within which the employe has          102 . 12 Not i ce of Injury, exception , laches .
  been employed in the business , in the kind of          No claim for, compensation shall be maintained
  employment and for the employer for whom he            unless, within 30 days after the occurrence of the
  worked when injured . . Calendar weeks within          injury or, within 30 days after the employe knew
  which no work was pe rformed shall not be              or ought to have known the nature of his
  considered under this provision . This paragraph       disability and its relation to his employment,
 shall be applicable only if the employe ' has           actual notice was r eceived by the employer or by
 worked within each week of at least six calendar,       an officer, manager or designated representative
 weeks during the year, before his injury in the         of an employer . If no representative has been
 business , in the kind of employment and for the        designated by posters placed in one or more
 employer for whom he worked when injured.               conspicuous places, then notice received by any
     (e) Where any things of'value are received in       superior shall be sufficient . . Absence of notice
 addition to monetary earnings as a part of the          shall not bar recovery if it is found that the
 wage contract, they shall be deemed a part of           employer was not misled thereby .. Regardless of
 ea rnings and computed at the value thereof to          whether notice was received, if no payment of
 the employer                                            compensation (other than medical treatment or
     (f) Average weekly earnings shall in no case        burial expense) is made, and no application is
 be less than 30 times the normal hourly earnings        filed with the department within 2 years from the
 at the time of injury . However, this section shall    date of the injury or death, or from the date the
 not appl y to temporary disability benefits, if the    employe or his dependent knew or ought to have
 part-time employe restricts his or her, avail-         known the nature of the disability and its relation
 ability, on the labor market , to part-time work       to the employment, the right to compensation
 and is not actively employed full-time elsewhe r e .   therefor shall be barred, except that the right to
 In such case the weekly temporary disability           compensation shall not be barred if the employer
 benefits shall not exceed the average weekly           knew or should have known, within the 2-year
 wages of the part-time employment ..                   period, that the employe had sustained the in ' jury
                                                        on which claim is based .. Issuance of notice of a
      (g) If an employe is under twenty - seven years   hearing on the department's own motion shall
  of age, . his average weekly earnings on which to
                                                        have the same effect for- the purposes of this
  compute the benefits accruing .g for permanent        section as the filing of an application .
  disability or death shall be determined on the
  basis of the earnings that such employe, if not
                                                         102 . 13 ` Examination by physician ,
  disabled, probably would earn after attaining the
  age of twenty-seven years . Unless otherwise           chiropractor or podiatrist; competent wit-
  established, said earnings shall be taken as           nesses; exclusion of• evl dence ,• autopsy. (1)
  equivalent to the amount upon which maximum            Whenever compensation is claimed by an
 weekly indemnity is payable.                            employe, the employe shall, upon the written
                                                         request of the employe's employer, submit to
      (2) The average annual earnings when               reasonable examination by a physician,
 referred to in this chapter shall consist of fifty      chiropractor or podiatrist, pi ovided and paid forr
 times the employe's average weekly earnings .           by the employer, and shall submit to examina-
 Subject to the maximum limitation, average              tion by any physician, chiropractor or- podiatrist
 annual earnings shall in no case be taken at less       selected by the commission or an examiner : The
 than the actual earnings of the employe in the
                               f                         employe 'shall be entitled to have a physician,
 year immediately preceding his injury in the kind      chiropractor or podiatrist, provided by himself or
 of employment in which he worked at the time of        herself, present at any such examination . So long
 injury .                                               as the employe, after' such writtenn request of the
     (3) The weekl y wage loss referred to in this      employer ; refuses to submit to such examination,
 chapter, except under subsection (6) of section        or in any way obstructs the same, the employe's
 102 .60, shall be such percentage of the average       right to begin or maintain any proceeding for the
weekly earnings of the injured employe com-             collection of compensation shall be suspended ;
puted according to the provisions of this section,      and if the employe refuses to submit to such
as shall fairly r epresent the proportionate extent     examination after direction by the commission
of the impairment of his earning capacity in the        or an examiner, or in any way obstructs such
employment in which he was working at the time          examination, the employe's right to the weekly
of the injury, and other suitable employments,          indemnity which accrues and becomes payable
the same to be fixed as of the time of the injury ,     during the period of such refusal or obstruction,
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1 02 .13 WORKER'S COMPENSATION                                                                        2158

 shall be barred ; Any physician, chiropractor or      be reviewed and set aside, modified or confirmed
 podiatrist who is present at any such examina-        by the department within one year from the date
tion may be required to testify as to the results      suchh compromise is filed with the department, or
thereof. Any physician, chiropractor or podia-         from the date an award has been entered, based
trist having attended an employe may be                thereon, or the department may take such action
required to testify before the department whenn it     upon application made within such year Unless
so directs . Notwithstanding any other statutory       the word "compromise" appears in a stipulation
provisions, any physician, chiropractor, or podia-     of'settlement, the settlement shall not be deemed
trist attending a worker's compensation claim-         a compromise, and further claim shall not be
ant may furnish to the employer ; employer,            barred except as provided in s . 10117 (4)
worker's compensationn insurance carrier, or the       irrespective of whether award is made. The
department information and reports relative to a       employer or insurer shall have equal rights with
compensation claim . The testimony of any              the employe to have review of a compromise ..
physician, chiropractor or podiatrist, who is          Upon petition filed by the employer or insurer
licensed to practicee where he or she resides or       with the department within one : year from any
practices outside the state, may be received in        award .d upon a stipulation of settlement the
evidence in compensation proceedings ..                department shall have power to set aside said
    (2 ) The department may refuse to receive          award or otherwise, determine thee rights of the
testimony as to conditions determined from an          parties .
autopsy if it appears a) that the party offering           (2) The department has jurisdiction to pass
the testimony had procured the autopsy and had         upon the reasonableness of health service bills in
flailed to make reasonable effort to notify at least   all cases of dispute where compensation is paid,
one party in adverse interest or the department at     in the same manner and to the same effect as it
least 12 hours before said autopsy of the time and     passes upon compensation. .
place it would be performed, or, b) thatt the              (3) No employer subject to this chapter may
autopsy was performed by or at the direction of        solicit; receive or collect any money from his or
the coroner or medical examiner for purposes not       her employes or make any deduction from their
authorized by ch. 979 . Thee department may            wages, either directly or indirectly, for the
withhold findings until an autopsy is held in          purpose of discharging any liability under this
accordance with its directions .                       chapter; nor may any such employer sell to an
  History: 1973c. . 272,2.82;19'75c .14'1 .
                             .                         employe, or solicit or require the employs to
                                                       purchase, medical, chiropractic, podiatric or
:102 . 14 Jurisdiction of department; ad-              hospital tickets or contracts for medical,
 visory committee. (1) This chapter shall be           surgical ; or hospital treatment which is required
 administered by the department ..                     to be furnished by such employer,
   ;(2) The council on worker's compensation               (4) Any employer violating sub . (3) shall be
shall advise the department in carrying out the        subject to the penalties provided in s .102 .28 (3),
purposes of this chapter . Such council shall          and, in addition thereto, shall be liable to an
submit 'its .s recommendations with respect to         injured employe for the reasonable value of the
amendments to this chapter to each regular             necessary services tendered to such employe
session of the, legislature and shall ,report its      pursuant to any arrangement made in violation
views upon any pending ., bill relating to this        of sub, : (3) without regard to said employe's
chapter to the proper legislative committee .          actual disbursements for the same .
  History 1975 c 141 s . . 54 .                          History : 1975 c .147, 200'..

102.15 Rules of procedure; transcripts .                102.17 Procedure ; notice of hearing ; wit-
(1) Subject to this chapter, ;the department may       nesses, contempt ;, testimony, medical ex-
adopt its own rules of procedure and may change        amination . (1) (a) Upon the filing with the
the same from time to time.                            department by any party in interest of any
   (2) The department may provide by rule the          application in writing stating the generall nature
conditions under which transcripts of testimony        of any claim as to which any dispute or
and proceedings shall be furnished .                   controversy may have arisen, it shall mail a copy
                                                       of such application to all other, parties in interest
902. 16 Submission of disputes , contribu-             and the insurance carrier shall be deemed a party
tions by employes . (1) Any controversy                in interest.. Thee department may bring in
concerning compensation, including any in              additional parties by service of a copy of the
which the state may be a party, shall be               application. The department shall cause notice
submitted- to the department in the manner and         of hearing on the application to be given to each
with the effect provided in this chapter . . Every     party: interested, by service of such notice on the
compromise of any claimm for compensation may          interested party personallyy or by mailing a copy
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   2159                                                             WORKER'S COMPENSATION 102 .17

     to the interested party ' s last known address at         revoked, be in force from and after the date of
    least 10 days before such hearing . : In case a party      issuance until the 30th day of June following
    in interest is located without the state , and has no      such date of issuance and may be renewed by the
    post-office address within this state, -the copy of        department from time to time, but each renewed
    the application and copies of all notices shall be         license shall expire on the 30th day of June
    filed in the office of the secretary of state and          following the issuance thereof
    shall also be sent by registered or certified mail to         (as) The contents of verified medical and
    the last known post-office address of such party . .       surgical reports, by physicians, podiatrists,
    Such filing and mailing shall constitute suf fi -          surgeons and chiropractors licensed in and
    cient service , with the same effect as if served         practicing in this state, presented by a party for
    upon a party located within this state .. The             compensation shall constitute prima facie
    hearing may be adjourned in the discretion of the         evidence as to the matter contained therein,
   department, and hearings may be held at such               subject to suchrules and limitations as the
   places as the department designates, within or             department prescribes . . Verified reports of
   without the state . The department may also                physicians, podiatrists, surgeons and chiroprac-
   arr ange to have hearing held by the commission,           tors, wherever licensed and practicing, who have
   officer or tribunal having authority to hear cases         examined or treated the claimant, if such
   arising under the worker's compensation law of             practitioner , consents to subject himself or
   any other state, of the District of Columbia, or of        herself to cross-examination shall also constitute
   any terri tory of the United States, the testimony         pri ma facie evidence as to the matter contained
   and proceedings at any such hearing to be                  therein and verified reports by doctors of
   reported to the department and to be part of the           dentistry shall be admissible as evidence of the
   record in the case, Any evidence so taken shall be         diagnosis and necessity for treatment but not of
  subject to rebuttal upon final hearing before the           disability . Physicians, podiatrists, surgeons,
  department.                                                 dentists and chiropractors licensed in and
       (am) Either, party shall have the right to be         practicing in this state may certify instead of
  present at any hearing , in person or by attorney,         verify such reports, and such certification shall
  or any other agent, : and to present such testimony        be equivalent to verification ; and any physician,
  as may be pertinent to the controversy before the          podiatrist, surgeon, dentist or chiropractor who
  department . No person, firm or corporation                knowingly makes a false statement of fact or
  other' than an attorney at law, duly licensed to           opinion in such certified report may be fined or
  practice law in the state, shall appear on behalf of       imprisoned, or both, under , s . 943 . .395 . . The
  any party in inte rest before the department or            record of a hospital o r sanatorium in this state
  any member or employe of the department                    operated by any department or agency of the
  assigned to conduct any hearing, investigation or          federal or state government or, by any municipal-
  inquiry relative to a claim for compensation or            ity, or' of any other hospital or sanatorium in this
  benefits under this chapter , unless he shall be a         state which is satisfactory to the department ,
  citizen of the United States, of full age, of good         established by certificate, affidavit or testimony
  moral character and otherwise qualified, and              of the supervising off icer or other' person having
  shall have obtained from the department a                 charge of such records , or of a physic ian,
 license authorizing him to appear in matters or,           podiatrist or surgeon, to be such record of the
 proceedings before the department . Such license           patient in question, and made in the regular
 shall be issued by the : department under, rules to        course of examination or, treatment of such
 be adopted by it ., In such rules the department           patient, shall constitute prima facie evidence in
 may prescr'ibe such reasonable tests of character          any worker's compensation proceeding as to the
 and fitness as it may deem necessary . There shall         matter contained ' therein, insofar as ' it is
 be maintai ned in the office of the department a
                                        e                   otherwise competent and relevant
 registry or list of persons to whom licenses have             ` (b) The department may, with or without
 been issued as provided herein which list shall be         notice to either party ; cause testimony to be
 corrected as often as licenses are issued or               taken, or an inspection of the premises where the
 revoked . Any such license may , be suspended or           injury occurred to be made, or the time books
 revoked by the department for fraud or serious             and payrolls of the employer to be exam ined by
 misconduct on the part of any such agent .. Before         any commissioner or examine r, and may direct
suspending or revoking the license of any such              any employe claiming compensation to be
agent, the depar finent shall give notice in writing        examined by a physician , chiropractor or
to such agent of the charges of fraud or
                                      s                     podiatrist ; the testimony so taken, and the results
misconduct prefer i ed against him, and shall give          of any such inspection or examination, to be
such agent full opportunity to be heard in                  reported to the department for' its consideration
relation to thesame. Such license and certificate           upon final hearing . All ex paste testimony taken
of authority shall, unless otherwise suspended or           by the department shall be reduced to writing
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1 02.17 WORKE R 'S COMPENSATION                                                                                           2160

   and either party shall have opportunity to rebut      shall so refuse or neglect shall constitute a
   such testimony on final hearing .                     separate offense.
      (bm) . Sections 804.05 and 804 .07 shall not           (4) The right of an employe, the employe 's
  apply to proceedings under thiss chapter, except       legal representative or dependent to proceed
  as to a witness :                                      under this section shall not extend beyond 6
      1 . . Who is beyond reach of the subpoena of a     years from the date of the injury or death or from
  commissioner or examiner' ; or                         the date that compensation , other than treat-
      2 . Who is about to go out of the state, not       ment or burial expenses , was last paid, of would
  intending to return in time for ' the hearing ; or-    have been last payable if ` no advancement were
      3 . Who is so sick, infirm or aged as to make it   made, whichever date is latest . In case of injury
  probable that the witness will not be able to          or death caused by lung disease or, by exposure to
  attend the heat ing ; or,
            d                                            a toxic substance or to ionized radiation the time
      4 . Who is a member of the legislature, if any     limit shall be 12 years but in the case of
  committee of the same or the house of which the        occupational disease there shall'be no statute of
  witness is a member; is in session , provided the      limitations, - except that benefits or treatment
  witness waives his or her privilege .                  expense becoming due after the 6-year period set
      (c) Whenever the testimony presented at any        forth in this subsection or 12 years from the date
                                                         of injury or death or last payment of compensa-
  hearing indicates a dispute, or is such as to create
  doubt as to the extent or; cause of disability or      tion in cases of' lungdsease or' exposure to a toxic
                                                         substance or ionized radiation , shall be paid from
  death, the department may direct that the
                                                         the work injury supplemental benefit fund under
  injured employe be examined or autopsy be
                                                         s 102 .65 and in the manner pi ovided in s .. 102 . . 66 ..
  performed, or , an opinion of a physician ,
  chiropractor or podiatrist be obtained without         Payment of wages by the employer during
                                                         disability or absence from work to obtain
  examination or- autopsy, by an impartial,
                                                         treatment shall be deemed payment of compen -
  competent physician, chiropractor of podiatrist
  designated by the department who is not under          sation for the purpose of this section if ' the
                                                         employer knew of the employe's condition and its
  contract with or regularly employed by a
                                                         alleged relation to the employment ,.
  compensation insurance carrier or self-insured
  employer ' . . The expense of such examination shall      (5) This section does not limit the time within
  be paid by the employer. The report of such            which the state may bring an action to recover
  examination shall be transmitted in writing to         the amounts specified in ss . 102 49 (5) and
  the department and a copy thereof shall be             102 .59 .
  furnished by the department to each party, who               (6) If an employe or dependent shall, at the
  shall have an opportunity to rebut such report on        time of injury, or at the time his might accrues, be
  further hearing,                                       - under, 18 years of ` age, the limitations of time
     (d) The contents of certified reports of              within which he may file application or proceed
' investigation, made by industrial safety special-        under this chapter, if they would otherwise
  ists who are employed by the department and              sooner expire, shall be extended to one year after
  available for cross-examination,, served upon the        he attains the age of 18 ,years . If, within any part
  parties 15 days prior to hearing , shall constitute      of the last year of any such period of limitation ,
  prima facie evidence as to matter contained              an employe, his personal - representative, or
  therein. '                                               surviving dependent be insane or on active duty
      (2j If the department shall have reason to           in the armed forces of the United States such
  believe that the payment of compensati on has            period of limitation shall be extended to 2 years
not been made, it may on its own motion give               after the date that the limitation would otherwise
  notice to the parties, in the manner provided for        expire. The provision hereof with respect to
the service of an application , of a time and place        persons on active duty in the armed forces of the .
  when a hearing will be had for the purpose of            United States shall apply only where no
determining the facts . Such notice shall contain          applicable federal statute is in effect .
  a statement of the matter to be considered .               History: 19 c . 148 ;1911 c. 213 s 5 ; 19 ' 73 c . 150, 282 ; Sup . .
Thereafter all other provisions governing pro-             Ct. Order, 67 W (2d) 774; 1975 c . 147 ss 20, 54 ; 1975c . 199,
ceedings on application shall attach insofar as            200 ,
the same may be applicable.                                 Committee Note, 1971: This change (as to sub . ( 1) (d)]. is
                                                         proposed to clarify the interpretation of the statute without
      (3) Any person , who shall wilfully and            changing it : (Bi1 ] 371-A]
unlawfully fail or. neglect to appear, or to testify
                                                             Plaintiff-employer was not deprived of any substantial due
or to produce books, papers and records as          s    process rights by the department's refusal to invoke its rule
required, shall be fined not less than $25 nor
                                      s                  requiring inspection of opposing parties' medical reports where
                                                         plaintiff had ample notice of the nature of the employe's claim
more than $100, or imprisoned in the county jail         Theodor e Fleisnei, Inc .c v ILHR Dept . 65 W (2d) 317, 222
not longer than 30 days. Each day such person            NW (2d) 6 00.
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  2161                                                                WORKER'S COM PEN S ATION 102.1 8

     102. 18 Findings, orders and awards. (1)                  evidencee submitted. If the commissionn is
     (a) All parties shall be afforded opportunity for         satisfied that a party in interestt has been
    full, fair, public hearing after reasonable notice,       prejudiced because of exceptional delay in the
    but disposition of application may be made by             receipt of a copy of any findings or order it may
    compromise, stipulation, agreement, or default            extend the time another' 20 days for filing
    without hearing .                                         petition with the department„
        (b) After final hearing the department shall              (4) (a) The commission may remove or
    make and file its findings upon the ultimate facts        transfer the proceedings pending before a
    involved in the controversy, and its order, which         commissioner or, examiner. Unless the liability
    shall state its determination as to the rights of the     under ss.102 .49, 102 .57, 102,58, 102.59, 102,60
   parties„ Pending the final determination of any            or 102 .61 is specifically mentioned, the order-,
   controversy before it, the department may in its           findings or award are deemed not to affect such
   discretion after any hearing make interlocutory            liability .
   findings, orders and awards which may be                      (b) On motion, the commission may set aside,
   enforced in the same manner as final awards .              modify or change any order, findings or award,
   The department may include in its final award,             whether made by an examiner or by the
   as a penalty for noncompliance with any such               commission, at any time within 20 days from the
   interlocutory order or award, if it finds that             date thereof if it discovers any mistake therein,
   noncompliance was not in good faith, not                  or upon the grounds of newly discovered
   exceeding 25 % of each amount which shall not             evidence : The commission may on its own
   have been paid as directed thereby . Where there          motion, for reasons it deems sufficient, set aside
   is a finding that the employe is in fact suffering        any final order or award within one year from the
   from an occupational disease caused by the                date thereof upon grounds of mistake or, newly
   employment of the employer against whom the               discovered evidence, and after ..extendingg an
   application is filed, a final award dismissing such       opportunity for hearing may make new findings
  application upon the ground that the applicant             and order, or it may reinstate the previous
  has suffered no disability from said disease shall         findings and order or award . .
  not bar, any claim he may thereafter have for                 (5) If it shall appear to the department that a
  disability sustained after the date of the award . . .     mistake may have been made as to cause of
       (2) The department shall have and maintain            injury in the findings,, order or award upon an
  on its staff such examiners as are necessary to            alleged injury based on accident, when in fact the
  hear and decide disputed claims and to assist in           employe was suffering from an occupational
  the effective administration of the worker's              disease, the department may upon its own
  compensation act . Such examiners may make                motion, with or without hearing, within 3 years
  findings and orders, and approve, review, set             from the date of such findings, order or award,
  aside, modify or confirm stipulations of settle-          set aside such findings, order or award, or the
  ment or compromises of claims for compensa-               department may take such action upon applica-
  tion, : Any party who is dissatisfied with the            tion made within such 3 years .. Thereafter, and
  findings and order of an examiner may file a              after, opportunity for hearing, the department
 written petition with the department for review            may, if in fact the employe is suffering from
 by the commission of the findings or order .               disease arising out of the employment, make new
      (3) If no petition is filed within 20 days from       findings and award, or it may reinstate the
 the date that a copy of the findings or order of the       previous findings, order or award ..
 examiner was mailed to the last-known address                 (6) In case of disease arising out of the
 of the parties in interest, such findings or order         employment, the department may from time to
 shall be considered the findings or order of the           time review' its findings, order or award, and
 commission, unless set aside, reversed or                  make new findings, order or award, based on the
 modified by such examiner within such time . . If          facts regarding disability or otherwise as they
 the findings or order are set aside by the                 may then appear'. This subsection shall not affect
 examiner the status shall be the same as prior to          the applicationof the limitation ins . 102 ., 17 (4),
 the findings or order set aside . If the findings or         History: 1971 c.148 ;197.3 c. 150;1975 c 141 . .
 order are reversed or modified by the examiner                Committee Note, 1971 : The intent is to authorize the
                                                            commission within its absolute discretion to reopen final orders
 the time for filing- petition with the department          on the basis of mistake or newly d iscovered evi dence within a
shall run from the date that notice of such                 period of one year, from the date of such order where this is
                                                            found to be just It is intended that the commission have
reversal or modification is mailed to the last-             authority to grant or deny compensation, inc luding the right to
known address of the parties in interest, The               increase or to decrease benefits previously awarded . [Bi11 .371-
                                                            A] .
commission shall either affirm, reverse, set aside              I nterlocutory orders of the ILHR department in work-
or modify such findings or order in whole or in             men's compensation cases are not res ju dicata . Worsch v. .
part, or direct the taking of additional evidence .         IL HR Dept 46 W (2d ) 504,175 NW (2d) 201;
                                                                Where in a workmen's compensation case the department
Such action shall be based on a review of the               reverses an examiner's findings an d makes independent
                                Electronically scanned images of the published statutes.
102.18 WORKER'S CO M PE N SATIO N                                                                                      2162

 findings, the latter should be accompanied by a memorandum               disbursements of such compensation . . Such
 opinion indicating not only prior consultation with the
 examiner and review of the record, but a ° statement - or                consular officer or representative shall make
 statements of . reasons for reaching a different result or               interim : reports to the commission as it may
 conclusion-this particularly where credibility of witnesses is
 involved„ Tansame : .ica Ins Co. . V ILHR Dept 54 W (2d)                 require.
 272,195 NW (2d) 6 56 ,r
     The department could properly find no permanent                      102. 195 Employee conf ined In Institu-
 disability in the case of ' a successful fusion of vertebrae and still
 retain jurisdiction to deter mine future disability where doctors        tions; payment of benefits. In case an
 testified that there might be future effects . Vernon County v           employe is adjudged insane or incompetent, : or
 ILHR Dept . 6QW (2d~ 736,211 NW (2d) 441 .                               convicted of a felony,, and is confined in a public
     Where the department in a workmen's compensation case
 involving conflicting testimony reverses an examiner's n                 institution and has wholly dependent upon him
 findings, fundamental fairness requires a separate statement             forr support a person, whose dependencyy is
 by if explaining the reasons it reached its decision, as well as
 specifically setting forth in the record its consultation with the       determined as if the employe were deceased,
 examiner with respect to impressions or conclusions in regard            compensation payable during the periodd of his
 to the credibility of witnesses. . Simonton v .. ILHR Dept .. 62W
 (2d) 112,214 NW (2d) .302„                                               confinement may be paid to the employe and his
     Where department increased examiner's awar d, resort to              dependents, in such manner, for such time and in
 AMA standards to interpret rule was prope r and its validity             such amount as the department by order
 properly could be predicated on the department's uniform
 administrative interpretation of its rule to mean that a contact         provides,.,
 lens does not afford a "useful" correction . Employers Mut.
 Liability Ins . Co .o v . ILHR Dept. 62 ` W (2d) 327, 214 NW
 (2d),587                                                                 102.20 Judgment on award. Either party
      (5), is inapplicable where at the original hearing the              may present ,a certified copy of the award to the
 examiner considered the possibility of both accidental injury            circuit court for any county, whereupon said
 and injury caused by occupational disease ; and denied the
 applicant benefits Murphy v, ILHR Dept, 6.3 , W (2d) 248 ,               court shall, without notice, render judgment in
 217NW (2d) 370                                                           accordance therewith; such judgment shall have
     It is not disputed that the shoveling, though unusual, was
 part 't of defendant's employment: activities, The doctor's              the same effect as though rendered in an action
 testimony is thus sufficient evidence to support a conclusion            tried and determined by said court, and shall,
 that the heart attack ' was caused by employment-related                 with like effect, be entered and docketed . .
 exertion' Theodore Fleisner, Inc, v ILHR Dept 65 W (2d)
 317,222 NW (2d) 600 .
     Authority granted under (3), to modify the findings of a             102 .21 - Payment of awards by municipal-
 hearing examiner in ' a workmen's compensation proceeding
 does not extend to the making of findings and order on an                itles . Whenever an< award is made by the
 alternative basis of liability neither tried . by the parties nor        department under this chapter or s .. 66191
 ruled on by the examiner, and where other basis of liability is
'applicable; it is required to set aside the examiner's findings
                                                                          against any municipality, the person in whose
and order and direct the taking of additional testimony, with             favorit, made shall files certified copy thereof
 the examiner to make new findings as to the substituted basis. d         with the municipal clerk : Within 20 days
 Jos. Schlitz Brewing Co v .. ILHR Dept . 67 W (2d) 185, 226
NW (2d) 492                                                               thereafter, unless an appeal is taken, suchh clerk
                                                                          shall draw an order on the municipal treasurer
 102 .19 ;Allen     dependents;        payments                           for the payment of the award . If upon appeal
through consular officers . In ca se a deceased                           such awardd is affirmed in whole or in part the
employe, for whose . : injury or death compensa-
                            y                                             order for payment shall be drawn within 10 days
tion is payable, leaves surviving him alien                               after; a certified copy of such ;,judgment is filed
dependents residing outside of the United States ,                        with the proper: clerk ; If more than one payment
the duly accredited consular-, officer of the                             is provided for in the award or judgment, orders
country of which such dependents are citizenso r                          shall be drawn as the payments become due ., No
his designated representative residing within the                         statute relating to the filing of claims against,
state shall, except as otherwise determined by                            and ; .the auditing, allowing and payment of
the commission, be the sole representative of                             claims by municipalities- shall apply to the
such deceased employe and of such dependents
              d                                                           payment of an award or ',judgmentt under this
in all matters pertaining to their claims for                             section. .
compensation . The receipt by such officer or
agent of compensation funds and the distribution                          9.02 .22 Penalty for delayed payments . (1)
thereof shall be made only - upon order of the                            Where the employer or his insurer is guilty of
commission ,- and payment to such officer or                              inexcusable delay in making payments, the
agent pursuant to any such order shall be a full                          payments as to which such delay.: is found shall be
discharge of the benefits or compensation .. Sucfi                        increased by 10% . -:Where such delay , is
consular officer ors his ` representative shall                           chargeable to the employer and not to the insurer
furnish, if equiredby the commission, a bond to                           s . 102 62 ;,shall' be applicablee and the relative
be approved by it, conditioned upon the proper                            liability , of the :parties ;shall , be fixed and
application ofall moneys received by him . Before                         discharged as therein provided . .
such bond is discharged, such consular officer or                             (2) ' If the sum ordered by the department to
representative shall file with the, commission a                          be paid is not paid when due, sum shall bear
verified account of the items . of is receipts and                        interest at the rate of 6% per annum . The state
                     Electronically scanned images of the published statutes.
 2163                                                                       WORKER'S COMPENSATION 102 .23

 shall be liable for such interest on awards issued                ,judgment roll in such action ; and it shall not be
 against it under this chapter .. The department                   necessary to have a transcript approved . . The
 shall have jurisdiction to issue award for                        action may thereupon be brought on for hearing
 payment of such interest at any time within one                   before said court upon such record by either
 year of the date of its order o r, upon appeal within             party on 10 days' notice to the other ; subject,
 one year, after final court determination . .                     however, to the provisions of law for a change of
     The department can assess the penalty for inexcusable         the place of trial or the calling in of another
 delay in making payments p rior to the entry of an order . The
 question of inexcusable delay is one of law and the courts are    Judge
 not bound by the department's finding as to it . Milwaukee           (d) Upon such hearing, the court may
 Countyv ILHR Dept . 48W(2d) .392,180NW(2d)513 .                   confirm or set aside such order or award ; and any
                                                                   judgment which may theretofore have been
 162.23 Judicial review. (1) The f indings of'                     rendered thereon ; but the same shall be set aside
fact made by the commission acting within its                      only upon the following grounds :
powers shall, in the absence of fraud, be
                                  e                                   1 . . That the commission acted without or in
conclusive . The order o r awa rd, either in -                     excess of its powers .
ter locutory or final , whether judgment has been                     2 : That the order or award was procured by
rendered thereon or not, shall be subject to                       fraud .
review only in the manner and upon the grounds                        3 . That the findings of fact by the commission
following .g and not . under s. 801 ..02 : . . Within 30          do not support the order or award .
days from the date of an order or award made by                       (2) ' Upon the trial of any such action the
the commission or following the filing of petition                court shall disregard any irregularity or error of
for review with the department under s . 102, 18                  the department unless it be made to affirmative-
any party aggrieved thereby may commence, in                      ly appear that the plaintiff was damaged
the circuit court for Dane county , an action          n          thereby,
against the department for the review of such  w                      ( 3) The record in any case shall be
order or award, in which action the adverse part y                transmitted to the department within 5 days
shall also be made defendant .                                    after expiration of the time for appeal from the
     (a)- In such action a complaint , which need                 order or judgment of the court, unless appeal
 not be verified, but which shall state the grounds               shall be taken from such order oar',judgment .
 upon which a review is sought, shall be served                       (4) Whenever an award is made against the
 with the summons . Service upon the executive                    state the attorney general may bring an action
 secretary of the department, or any commis-                      for review thereof in the same manner and upon
 sioner, shall be deemed completed service on all                 the same grounds as are provided by sub .. (1) . .
 parties, but there shall be left with the person so                  (5) The commencement of action for review
 served as many copies of the summons and                         shall not relieve the employer from paying
 complaint as there are defendants , and the                      compensation as directed, when such action
 department shall mail one such copy to each                      involves: only the question of liability as between
 other defendant . If the circuit court is satisfied              the employer and one or more insurance
 that. a party in interest has been prejudiced                    companies or as between several insurance
 because of exceptional delay in the receipt of a                 companies . .
 copy of any findings or order it may extend the                       Hist ory: 1973c . 150,1975c. 199 ; Sup.. Ctt order, eff 1-1-77 ..
 time another 30 days in which such action may                         Judicial Coun cil Committee 's N ote, 1976: The procedure for'
                                                                  i nitiating a p et ition for j udicia l review un der ch 1 0 2 is
 be commenced,                                                    governed by the provisions of s 10223 rather than the
    (b) The department shall serve its answer                     provisions for initiating a civil action under s . 801 ..02, [ R e
                                                                  Order effective Jan . 1,191'7]
 within 20 days after the service of the complaint,                   The fact that a party appealing from an order of IL HR as to
and, within the like time , such adverse party may                unemployment compensation labeled his petition "under
 serve an answer to the complaint, which answer                   321 ..15", is immaterial since the circuit court had subject
                                                                  matter jurisdiction . . An answer by the department that 227 .15
may ; by way of counterclaim or cross complaint,                  gave no jurisdiction amounted to an appearance an d the
ask for the review of the order or award referred                 department could not later claim that the court had no personal
                                                                  jurisdiction because appellant had not served a summons and
to in the complaint, with the same effect as if                   complaint . Leesv ILH R Dept 49 W (2d) 491,182 N W (2d)
such party had commenced a separate action for                    gas :
the review thereof.                                                   A finding of'fact, whether ultimate or evidentiary, is still in
                                                                  its essential nature a fact, whereas a conclusion of law accepts
    (c) The department shall make return to the                   the facts ultimate and evidentiary and by judicial reasoning
court of all documents and papers on file in the                  results from the application of rules or concepts of law to those
                                                                  factss whether the facts are undisputed or not . Kress Packing
matter, and of all testimony which has been                       Co v ; K ottwitz,61 W (2d) 175,212 NW (2d) 97„
taken therein, and of the commission's order ,                        Challenge to the constitutionality of (1) is not sustained,
                                                                  since it is manifest "from the statute that the legislature
findings and award. Such return of the                            intended to have the department be the real party in interest
department when filed in the office of the clerk of               and not a mere nominal party . . H unter v .. ILHR Dept.. 64 W
                                                                  (2d) 97,218 NW (2d) 314
the circuit court shall, with the papers mentioned                   Judicial' review of workmen's compensation cases . .
in supreme court Rule 251 .25 constitute a                        Haferman,197.3 WLR 5766
                           Electronically scanned images of the published statutes.
102 . 2 4 WORKER'S COMPENSATION                                                                                   2164

102 . 24 Remanding - record . (1) Upon the             the department to promptly furnish the depart-
setting aside of any order or award, the court         ment with a copy of such decision without
may recommit thee controversy and remand the           charge.
record in the case to the department for further         History :l9'11 c. 148 ; Sup, . Ct. Order, 6'7 W (2d) '7'74,
                                                         Committee Note, 1971 : Th is is a mere proced ural change. .
hearing or proceedings,, or it may enter the           [Bill 371-A]
proper judgment upon ,the findings of the                  269.36 applies to appeals to the supreme court ; when
commission, as the nature of the case shall            service of an entry ofjudgment by the circuit court is served by
                                                       mail, the time for appeal is extended to 35 days . The time runs
demand . An abstract of the judgment entered by        from the date of mailing . Chequamegon Telephone Coopera-
the trial court upon the review of any order, or       tivev ILHRDept 55W(2d)507,200NW(2d)441
                                                           An appeal to the supreme court by a party who has
award shall be made by the clerk thereof upon          unsuccessfully sought judicial review in the circuit court of an
the docket entry of any ;judgment which may            order or award in a workmen's compensation case, must be
theretofore have been rendered upon such order,        taken, under .(]) within 30 days from the date of service of the
                                                       notice of entry of'the circuit court judgment or within .35 days if
or award, and transcripts of such abstract may         service is effected by mail . B eloit Corpp v ILHR Dept .. 63 W
thereupon be obtained for like entry upon the          (.2d)2 .3,216NW(2d) 233 .
dockets of the courts of other counties .
                                                       102.26 Fees and costs. (1) No fees shall be
   (2) After the commencement of an action to          charged' by the clerk of any court for- the
review any award of the commission the parties         performance of' any service required by this
may have the record remanded by the court for.r        chapter, except for the docketing of ,judgments
such time and under suchh condition as they may        and for certified transcripts thereof In proceed-
provide, for the purpose of having the commis-         ings •to' review an order, or award, costs as
sion act upon the question of approving or             between the parties shall be in the discretion of
disapproving any settlement or compromise that         the court, but no costs shall be taxed against the
the parties may desire to have so approved . If        department .
approved the action shall be at an end and                (2) Unless previously authorized by the
judgment may be entered upon the approval as           commission, no fee shall be charged or received
upon an award . If not approved the record shall       for the enforcement or collection of"any claim for
forthwith be returned to the circuit court and the     compensation,, nor shall any contract therefor be
action shall. proceed as if no remand had been         enforceable: where such fee, inclusive of all
made..                                                 taxable attorney's fees paid or agreed-to be paid
                                                       for such enforcement or collection, exceeds 20
  History : 1975 c 14'Z.
                                                       per, cent of the amount at which such claim shall
                                                       be compromised or of the amount awarded,
102 .25 Appeal from judgment on award .                adjudged or collected, except that in cases of
(1) The department, or any par ty aggrieved by a       admitted liability where there is no dispute as to
judgment entered upon the review of any order or       amount of compensation due and in which no
award, may appeal therefrom within 30 days             hearing or, appeal is necessary, the fee charged
from the date of service by either party upon the      shall not exceed 10 per cent but not to exceed
other of notice of entry of judgment . However, it     $1.00, of the amount at which such claim shall be
shall not be necessary for the department or any       compromised or of the amount awarded,
party to the action to execute, serve or file the      adjudged or collected . The limitationn as to fees
undertaking required by s.. 817 .11 (3) or to          shall apply to the combined charges of attor ne,ys,
serve, or secure approval of, the transcript of        solicitors, representatives and adjusterss who
reporter's notes; but all such appeals shall be        knowingly combine their efforts . toward the
placed on the calendar of the supreme court and        enforcement or collection of any compensation
brought to a hearing in the same manner as state       claim.
causes on such calendar. The state shall be               (2m) In any action for- the recovery of"costs of
deemed a party aggrieved, within the meaning of        hospitalization :n in a tuberculosis sanatorium,
this subsection, whenever a judgment is entered        where such cost was incurred by a patient whose,
upon such a review, confirmingg any order or           tuberculosiss entitled the patient to worker's
award against it . At any time before the case is      compensation, no attorney fee for the recovery of
set down for hearing in the supreme court, the         such cost shall be allowed to the attorney for such
parties may have the record remanded by the            patient in such wor'ker's compensation action,
court to the department in the same manner and         unless, by express agreement with the governing
for the same purposes as provided for remanding        board of such institution the attorney has been
from the circuit court to the department under, s ..   retained by such governing board to also act as its
102 .24 (2) .                                          attorney . .
                                                          (3) Compensation in favor of any claimant,
   (2) It shall be the duty of the clerk of any        which exceeds $100, shall be made payable to
court rendering a decision affecting an award of       such claimant in person ; however, in any award
                          Electronically scanned images of the published statutes.
 2165                                                                      WORKER'SCOMPENSATIORI 102 .28

 the department may upon application of any                                                 h
                                                                     order may make 'such exemption .. The depart-
 interested party and, subject to the provisions of                  ment may from time to time require further
 sub . (2) fix the fee of his attorney or                            statement of financial ability of such employer to
 representativeand provide in the award for                          pay compensation and may upon 10 days' notice
 payment of such fee direct to the person entitledd                  in writing, for financial reasons or for failure of
 thereto . At the request of the claimant medical                    the employer to faithfully discharge obligations
 expense , witness fees-and other charges associat-                  according to the agreements contained in the
 ed with the claim may be ordered paid out of the                    application ` for exemption, revoke its order
 amount awarded . . Payment according to the                         granting such exemption, in which ' case such
 directions of the award shall protect the                           employer , shall immediately' insureliabilit ,y . As a
 employer and his insurer from any claim of                         condition for the granting of an exemption the
 attorney's lien .'                                                 department may requite the employer to furnish
    (4) The charging or receiving of any fee in                     such security as it, may consider sufficient to
 violation of this section shall be unlawful , arid the             insure payment of all claims under compensa-
 attorney or other person guilty thereof shall                      tion . Where the secu r ity is in the form of a bond
 forfeit double the amount retained by him, the                     or other personal guaranty, the department may
 same to be collected by the state in an action in                  at any time either before or after the entry of an
 debt, upon complaint of the department. Out of                     award, . upon at least .10 days' notice and
 the sum recovered the court shall direct payment                   opportunity to be heard require the sureties to
 to the injured party of the amount of the                          pay the amount of the award ; the same to be
 overcharge..                                                       enforced in like manner as the award itself may
                                                                    be enforced.; Where an employer procures an
   History : 1 9 '71 c 148 ;1975c . . 14 ' 7 s 54;19'75c 199
                                                                    exemption as herein provided and thereafter
    Committee Note, 1971 : This is to clarify present procedure .
 [Bill 371-A ]                                                      enters into any form of' agreementf"or insurance
                                                                    cover age with an insurance company or interin =
                                                                    surer not licensed to operate in this state, the
102. 27 Claims unassignablie, and exempt .
                                                                    employer's, conduct shall automatically operate
No claim for compensation shall be assignable ;
                                                                    as a revocation of such exemption An order
but this provision shall not affect the survival
                                                                    exempting an employer from insuring liability
thereof; nor shall any claim for compensation, or
                                                                    for: compensation shall be null and void if the
compensation awarded, or paid, be taken for the
                                                                    application contains a f inancial statement which
debts of the party entitled thereto.
                                                                    is false in any material respect
                                                                        (3) An employer who fails to comply with
 102 . 28 Preference of, claims ; . worker's                         sub . (2) shall be fined not less than $10 nor more
compensation Insurance.. (1) ,The whole                              than $100 or imprisoned not less than 30 days
claim for compensation for the injury or death of                    nor more than 6 months, or both . Each day's
any employe or any award or judgment thereon, :                     failure shall be a separate offense . . In a separate
and any claim for unpaid compensation insur-                        action upon complaint of the department, the
ance premiums are entitled to preference in                         fines specified in this section may be collected by
bankruptcy or insolvency proceedings as is given                    the state in an action in debt `
creditors' actions except as denied or limited by                       (4) If it appears by the complaint or by the    e
any law of this state or by the federal bankruptcy                  affidavit of any person in behalfofthc state that,
act, but this section shall, not impair the lien of                                            y
                                                                    the employer's liability continues uninsured
any judgment entered upon any award                                 there shall forthwith be served on the employer     r
    (2) An employer liable under this chapter to                    an order to show cause why the employer should
pay compensation shall insure payment of such                       not be restrained from employing any person -in
compensation in some company authorized to                          the employer's business pending the proceedings
insuree such liability in this state unless such                    or until the employer, shall have satisfied the
employer shall be exempted from such insurance                      court in which the matter is pending' that the
by the department. An employer desiring to be                       employer has complied with sub . (2), Such of der
exempt from insuring liability for compensation                     to show cause shall be returnable before the
shall' make application to the department                           court or the judge thereof at a time to be fixed - in
showing financial ability to pay such compensa-                     the order not less than 24 hours nor more than 3
tion, and agreeing as a condition for the granting                  days after its issuance : Insofar as the same may
of'the exemption to faithfully report all injuries                  beapplicable and not her ein otherwise provided,
under compensation according to law and the                         the provisions of ch . 813 relative to injunctions
requirements of the department and to comply                        shall govern these proceedings : If the employer
with this chapter ; and the rules of the                            denies <urider oath that the employer is subject to
department,, pertaining to the administration                       this chapter , and furn i shes "`bond with such
thereof;: whereupon the: department by written                      sureties as the court may require to protect all
                       Electronically scanned images of the published statutes.
 102 .28 WORKER'S ~COMPENSATION                                                                                                2166

the employer's employes injured after the                  moneys are required, further assessments shall
commencement of the action for ' such compensa-            be made based on orders of the department with
tion claims as they ma y establish, then an                assessment prorated on the basis of the gross
injunction shall not issue.. . Every judgment or           payroll for this state of the exempt employer,
forfeiture against an employer, under sub . (3),           reported to the department for the previous
shall per petually enjoin the employer from                calendar year for unemployment compensation
employing any person in the employer's businesss           purposes under ch 108 . . If'the exempt employer
at any time when the employer is not complying             is not covered under ch 108, then the
with sub . (2) .                                           department, shall determine the comparable
   (5) I f compensation : is awarded under this            gross payroll for thee exempt employer If'
chapter , against any employer who at the time of          payment of any assessment madee under this
the accident has not complied with sub . (2), such         subsection is not made within 30 days of the
employer shall not be entitled as to such award or         orderr of the depar,tment,, the attorney general
any judgment entered thereon, to any of the                may appear on behalf of the state to collect the
exemptions of property from seizure and sale on            assessment _
execution allowed in ss n 815 , 18 to 815 . 21 . If such      (c) The department may retain an insurance
employer is a corporation, ' the officers and              carrier or, insurance service organization to
directors thereof shall be individually and jointly        process, investigate and pay valid claims ., The
and severally liable for any portion o f any such          charge for such service shall be paid from the
judgment as is returned unsatisfied . after,               fund .
execution against the corporation ,                           (8) The moneys paid into the state treasury
   (6) Every employer shall upon request of the            under sub . . (7), together with all accrued
department report to it the number of employes             interest, shall constitute the "self'-insured em-
and the nature of their work and also the name of          ployers liability fund",
the insurance company with whom the employer                  His tor y : 1973 c . 150 ; Sup Ct order, 67 W (2d) 774; 1975c .
has insured liability under this chapter and the           147ss 23,54 ;1975c 199 .
                                                              Note: C ha p.. 147, laws of 19 75, sec.. 5 8 (2), sta tes that (7)
number and date of expiration of such polic y              "sha ll apply to employers w ho are exempt on or a ft er th e
Failure to furnish such repor t within 10 days             effecti ve date of th is act for i nju r ies occ urr ing on or after s u c h
from the making of a request by r egistered mail           date", Chapter 14 7 was effective Decemb er' 30 , 1 975. .
shall constitute presumptive evidence that the
delinquent employer is violating sub . (2),                 102 .29 Third party liability . (1) The making
   (7) (a) If an employer who is currently or              of a claim for compensation against an employer
was formerly exempted by written order of the              or compensation insurer for the injury or death of
department under sub . (2) is unable to make               an employe shall not affect the right of the
payment of an award and if judgment is rendered            employe, the employe's personal representative,
in accordance with s ., 102 .20 against such               or other person entitled to bring action, to make
employer and if execution is levied and returned           claim or maintainn an action in tort ,against any
unsatisfied in whole or in part, then payments for         other party for- such injury or death, hereinafter
such liabilities shall be made from the fund               referred to as a 3rd party ; nor shall the making of
established by sub., (8) . The state treasurer shall       a claim by any such person against a .3rd party
proceed to recover such payments from the                  for damages by reason of an injury to which ss .
employer, or the employe r' s receiver or trustee in       102 . .0 .3 to 102,64 are applicable, or the
bankruptcy, . .and may commence an action or               adjustment of any such claim, affect the right of
proceeding or file a cla im therefor . The attorney        the injured employe or the employe's dependents
general shall appea r on behalf of the state               to recover compensation The employer or
treasurer in any such action or proceeding All             compensation- insurer who shall have paid or is
moneys recovered in any such action or                     obligated to pay, a lawful claim under this
proceeding shall be paid into the fund estab-              chapter shall have the same right to make claim
lished by sub.,( 8                                         or maintain an action in tort against any other
    (b) Each employer exempted by written
                                    d                      party for such injury or death . . However, each
or der of' the department under sub . (2) shall pay        shall give to the other reasonable notice and
into the fund established by sub . (8) alum equal          opportunity to,join in the making of such claim or
to that assessed against each of' the other such           the instituting of an action and to be represented
exempt employers upon the issuance of ' an initial         by counsel . If a party entitled to notice cannot be
order The order shall provide for' a sum                   found, the department shall become the agent of
sufficient to secure est i mated payments of the           such-party f'or the giving of a notice as requir ed in
insolvent exempt employer for a period of one              this subsection and the notice, when given to the
year, following the date of the order. Payments            department; shall include an affidavit setting
ordered to be made to the fund shall be paid to            forth the facts, including the steps taken to locate
the department within 30 days . If additional              such party.. Each shall have an equal voice in the
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  2167                                                                  : WORKER ' S COMPENSATION 102 .29

     prosecution of said claim, and - any disputes                 (3) ' Nothing in this chapter shall, prevent an
     arising shall -be passed upon by the court before         employe from taking the compensation he or she
    whom the case is pending, and if no action is              may be entitled to under it and also maintaining
     pending, then by a court of record , or by the                          n
                                                               a civil"action against any physician, chiropractor -
    department. If notice is given as pr o vided ' in this     of podiatrist for malpractice; The ei nployeY or
    subsection, the liability of the tort-feaso r shall be     compensation insurer shall have no. interest in of
    determined as to all parties having a right to             right to share in the proceeds of any civil acti on
    make : claim and irrespective' of whether or not           against any physician, chiropractor of podiatrist
    all parties - join' in prosecuting such claim, the        ~fgi- malpractice,                       ~ ~ ":
    proceeds of such claim shall be divided as                     (4) If the insurance carr ier of the employer
    follows : After deducting the reasonable cost of           and `of the t hird party shall , be the same , or if'
    collection, one - third of the: remainder shall in         there is com mon c on trol of the in surer, of each,
   'any event be paid to the in j ured employe or the          the,' insur ance carrier of the employer shall
    employe ' s personal representative or ', other           pro mptly . ;notify the paities: n interest and the
    person : entitled to bring action . Out of the            department of that fact ; likewise, if the employer
    balance rema i ning, the employerr or, insurance          has yassumed the liabil i ty of the third, party -he
   carrie r, shall be reimbursed-for all payments             shall give similar notice ; and, in default of such
   made by it or which it may be obligated to make            notice, any settlement with an injured employe
   in the future; . under this chapter , except that it       or beneficiary shall be void . Nothing contained
   shall not be reimbursed for any payments of                in' this subsection shall prevent the employer oz '
   increased compensation. made or to be made                 compensation insurer from sharing in the
   under s s - 102 :22 ; 102 :57 o r 102,60: -Any balance     proceeds of, ny third party claim or action, as set
   remaining shall be paid to- the employe ' or the           forth insubsecfion ( I )
  employe 's. . personal -r representative or, ' other            (5) If tl `insura n ce car rier of the employer
  person entitled to bring action . If both - the             and of the third party are the same or if' theze is
  employe or the employe ' s personal _ rep resents =         common" control , of the insurer of each, and the
  tiveor other , person entitled to bring action, and         insurer fails to commence a third party action,
  the employer or compensation insur er; join in the          within the 3 years allowed by s. 893 .205,_ the 3-
  pressing of said claim and , are - represented by           year- statute of limitations ins 893 . . 205 shall not
  counsel, the : aitorney s' .fees allowed as a part of                    a
                                                              be plead ed ,' s a . bar in any action commenced by
  the-:costs of collection shall be; :unless' otherwise       the in ` employe „ herein against any , such
  agreed upon, . divided between ~sucl attorneys as           third party subsequent to 3 ; years from the date of
  directed by the court or , by the department „ A            injury, but prior to 6 years horn such date of
  settlement of' any 31d party claim shall be void           injury, provided that any recovery in such action
  unless said settlement and the distr ibution 'of the       shall be limited to the insured liability - of the
 proceeds thereof is approved by the cour t before           third party . In any such action commenced by
 whom the action is pending and if no action is
             e                                               the injured employe subsequent to the 3-year
 pending, then by a court of record or by the                period, the insurance cauiei of the employer
 department . .                                              shall forfeit all right to participate in such action
      (2) In the case of liability of the employer, or       as a `complainant and to recover any payments
 insur er to make payment intothe state treasury             made under this chapter , This subsection shall
 under, s . 102 .49 or 102. 59 , ifthe injury or death       not apply if the insurance carrier has complied
 was due-to the actionable act , neglect of default          with sub (4) :
 of a third party , the employer or insurer shall                History : l9 75 c. 141 ss 24,54'
                                                              ~''Revisocs Note : See'cases:anno'tated under I02 , 03- as to' ihe-
 hav e a t fight of action against such third party to       right to bring a 3rd party action against a ;coemploye
 recover' the sum so paid: into the state treasury ,              When an employs sues a coemploye,who was also president
 which right may be enforced either' by joining in            of the employer, he cannot impose on the. defendant the
                                                              increased burden of care of the safe-place statute, Wasley v .
 the action mentioned in sub . (1) ; or by                    Kosmatka,50 W (2d) 738; 184 NW (2d) 821
 independent action „ Contributory negligence of                  In a 3rd party action under 102 29 liability under T01 . 1 t
                                                             can not .be imposed on, officers or employes of the employer ;
 the employe because of whose injury of death                Their :liability must be based on common law negligence„
such payment was made shall bar recove r y if                                                   615,201 N W (2d) 52
                                                             Pitrowski v; Taylor, 55 W (2d) - 615,
such negligenceiwas greater than the negligence                  See note to 102,Q3, citing Candle[ v . Hardware Dealers
                                                             Mut. Ins .Co 57 W ,(2d)85,203NW, (2d)65, 9
of the person agains Y whom recovery is sought ,                 Liability of corporate officer and supervisory employe in a
and the recovery allowed the employer or - insur er,         3zd. patyactiondiscussed ` Krusev , Schieve;. 6' 1 W (2d) 42 :1';
                                                             213NW. (2d)65 ., ,
shall be diminished in,proportion to the Amount                `Sub : (1) provides attorneys' fees are to be allowed as "costs
of negligence attributable to such injured ' ot -            of collection," and unless otherwise agreed upon, are to be
                                                             divided between the attorneys for both the employe and: the
deceased employe . Any action brought under                  compensation carrier pursuant to court direction Diedt ick v .
this subsection may , upon order- of the court; be           Hartford Accident & IndemnityCo 62W(2d) 759, 216 NW
consolidated and tried together with any action              (2d) , 14.3
                                                                 The words "action commenced by the injured employe" in
brought under sub . :( 1) : ' .                              (5) also encompass the bringing of wrongful death and
                          Electronically scanned images of the published statutes.
102.29 WORKER'S CO MP EN SATION                                                                                2168

survival actions. Or tman v, J ensen & Johnson, Inc, 66 W (2d)   contract for the insurance of the compensation
508, 225 NW (2a) 6.35
                                                                 provided for by this chapter, or against liability
                                                                 therefor, shall be deemed to be made subject to
 102.30 Other Insurance . not affected ;                         this chapter, and provisions thereof inconsistent
 liability of insured employer . (1) This                        with this chapter are void .. Such contract shall be
 chapter, shall not affect the organization of any               construed to grant full coverage of all liability of
 mutual or- other insurance company, nor the                     the assur ed under this chapter,, notwithstanding
 right of the employer to insure in mutual of other -            any agreement of the parties to the contrary
 companies, against such liability, or against the               unless the department has theretofor e by written
 liability for the compensation provided for' by                 order specifically consented to the issuance of a
 this chapter, or to provide by mutual or other                  policy on a part of such liability, except that an
 insurance, or by arrangement with the employes,                 intermediate agency or publisher referred to in s .
or otherwise, for the payment to such employes,                                                 s     n
                                                                  102,07 (6) may, under its own policy, cover
their families, dependents or representatives, of                liability of employes as defined in s. 102 .07 (6)
sick, accident or death benefits in addition to the              for an intermediate or independent news agency,
compensation provided herein . But liability for                 provided the policy of insurance of the publisher
compensation shall not be reduced or affected by                 or intermediate agency is endorsed to cover' such
any insurance, contribution or other benefit                     persons .' If the publisher so covers it is not
whatsoever, due to or, received by the 'person                   necessary for the intermediate or independent
entitled to such compensation, and the person so                      s
                                                                 news agency to cover liability for such persons .
entitled shall, irrespective of anyy insurance or                No policy may be canceled by either party within
other contract, have the right to recover the same               the policy period nor terminated upon expiration
directly from the employer ; and in addition                     date until a notice in writing is given to the other
thereto, the right to enforce in the person's own                party, fixing the date on which it is proposed to
name, in the manner provided in this chapter, the                cancel it, or declaring that the party does not
liability of any insurance company which may                     intend to renew the policy upon expiration ;. Such
have insured the liability for such compensation,                cancellation or termination shall not become
and the appearance; whether general or, special,                 effective until 30 days after written notice has
of any such insurance carrier by agent or                        been given to the department either by personal
attorney shall be a waiver of the service of copy of             service of' such notice upon the department at its
application and of notice of hearing required by                 office in Madison or by sending the notice by
section 102 .17; provided, however, that payment                 certified mail. addressed to the department at its
of such compensation by either the employer or                   office in Madison.. However, such cancellation or
the insurance company, shall, to the extent                      termination shall become effective whether or
thereof, be a bar to recovery against the other of               not such notice has been given to the department
the amount so paid, and provided, further, that                  upon th P effective date of replacement insurance
as between the employer and the insurance                        coverage obtained by the employer or of" an order
company, payment by either directly to the                       exempting the employer , from carrying insur-
employe, or to the person entitled to compensa-                  ance as provided in s. 102 .28 (2) .
tion, shalll be subject to the conditions of the                     (b) If the insured is a partnership, such
policy.                                                          contract of insurance shall not be construed to
   (2) The failure of the assured to do or refrain               grant coverage of the individual liability of the
from doing any act required by the policy shall                  members of such partnership in the course of a
not be available to the insurance carrier as a                   trade, bus iness , profession or occupation con-
defense against the claim of the injured employe                 ducted by them as individuals, nor shall a
or his dependents„                                               contract of insurance procured to cover individ-
   (3) The department may order : direct                         ual liability be construed to , grant coverage of 'a
reimbursement out of`' the proceedss payable                     partner ship of which the individual is a member,
under this chapter', for payments made under a                   nor to giant coverage of the liability of the
nonindusti ial insurance policy covering the same                individual.l arising as a member : of any partner-
disability and medical, chiropt actic or podiatric               ship .
expense when the claimant consents, or when it is                    (2) The department may examine from time
established that, such payments under : :r the                   to time the books and records of any insurer
nonindustrial insurance policy were improper                     insuri ng .g liability or compensation for, an
and no attorney fee ,shall be due as to such                     employer in, this state Any such insurer that
reimbursement.                                                   refuses or fails to allow the department to
  History: 1973c .150;1975c„147ss25,54 ;1975c 199                examine its books and records is subject to
                                                                 enforcement proceedings under, s . 60. 1 .. 64..
102 .31 Worker' s compensation insur-                            , . (3) If any insurer authorized to transact
ance; policy regulations. (1) (a) Every                          worker's compensation insur ance in this state
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  2169                                                                                                    WORKE R 'S COMPE NSATION 102 .33

  fails promptly to pay claims for compensation for
      s                                                                                            company granting annuities and licensed in thiss
  which it is liable or fails to make reports to the                                               state, as maybe' designated by the department ;
  department required by s . 102 .38, the depart-                                                  or
 ment may recommend. to the commissioner' of                                                          (3) By payment in gross upon a .3% interest
  insurance, with detailed reasons, that enforce-                                                  discount basis to be approved by the depar tment ;
 ment proceedings under s . 601 .64 be invoked .                                                   and
 The commissioner shall thereupon furnish a
 copy of the recommendation to the insurer ? nd                                                       (4) In cases where the time for- making
 shall seta date for a hearing , at which both the                                                 payments or the amounts thereof cannot be
 insurer and the department shall be afforded an                                                   definitely determined, by furnishing a bond, or
 opportunity to present evidence . If after the                                                    other security, satisfactory to the department for
 hearing the commissioner is satisfied that the                                                    the payment of such compensation as may be due
 insurer has failed to live up to all of its obligations                                           or become due. The acceptance of'such bond, or
 under this chapter, the commissioner, 'shall                                                      other security, and the form and sufficiency
 institute enforcement proceedings under s .                                                       thereof, shall be subject to the approval of the
 601 . 64; otherwise the commissioner shall dis-                                                   department . . If the employer, oor, insurer is unable
 miss the complaint .                                                                              or fails to immediately procure such bond, then,
     (4) If any employer who has by the                                                            in lieu thereof, deposit shall be made with such
 department been granted exemption from the                                                        bank or trust company, as may be designated by
 carrying of compensation insurance shall arbi-                                                    the department, of the maximum amount that
 trarily or unreasonably refuse employment to or                                                   may reasonably become payable in such cases, to
                                                                                                   be determined by the department at amounts
 shall discharge employer because of a nondis-g abling physical condition, the department shall    consistent with the extent of the injuries and the
 revoke the exemption of such employer.                                                            provisions of the law . . Such bonds and deposits
                                                                                                  are to be reduced only to satisfy such claims and
       (5) The commission has standing to appear
                                                                                                  withdrawn only after the .claims which they are
as a complainant and present evidence in any
administrative hearing or court proceeding                                                        to guarantee are fully satisfied or liquidated
instituted for alleged violation of s . 628 .34 (7),                                              under sub . (1) ; (2) or ( .3 ) ;and
       (f) ` Where the department by one or more                                                      (5) Any insuredd employera may, withinn the
written orders specifically consents to the                                                       discretion of the department compel the insurer
issuance of one or more policies covering only the                                                to discharge, `or, to guarantee payment of its
liability incurred on a construction project, and                                                 liabilities in any such case under this section and
where the owner designates the insurance carrier                                                  thereby release himself from compensation
and pays' for each such policy, the owner shall                                                   liability therein, but iffor any reason a bond
reimburse the department for all of the costs                                                     furnished or deposit made under sub . . (4) does
incurred by the ; department in issuing such                                                      not fully protect, the compensation insurer or
written orders= and in ensuring minimum                                                           uninsured employer, as the case may be, shall
confusion and maximum safety on the consti uc=                                                    still be liable to the beneficiary thereof
tion project .                                                                                       (6) Any time after 6 months from the date of
    History: 1971 c 260, 30'7;1975 c 39;19'75 c 147ss„ 26, 54 ;                                   the injury, thedepartment may order, payment in
 1975 c . 199,37.1 .
     102 .31 (1) (b) does not apply to a, joint venture and                                       gross or in such manner as it may determine to
insurance written in the name of one adventurer is sufficient to                                  the best interest of the injured employe or hiss
cover his joint liability . Insurance Co ofN„ A v I LHR Dept ..                                   dependents,, When payment in gross is ordered,
45 W (2d) 361,173 NW (2d) 192 .
                                                                                                  the depaitment,shall fix the gross amount to be
                                                                                                  paid based . on the present; worth of partial
 102. 32 Continuing liability ; guarantee       e
                                                                                                  payments, considering interest at 3% per,
settlement , gross payment . In any case in
                                                                                                  annum .
which,compensation payments havee extended or
will extend over 6 months or more from the date                                                      (7) No lump sum settlement shall be allowed
of the injury (or : at any time in death benefitt                                                 in any case of permanent total disability uponn an
cases), any party in interest may, in the                                                         estimated life expectancy, except upon consent
discretion of the department, be dischargedd                                                      of all parties, after hearing and finding by the
from, or~.compelled to guarantee, future compen-                                                  department, that the interests of the injured :
sation payments as follows :                                                                      employe will be conserved thereby,
   ( 1) By depositing the present value of the
total unpaid . compensation upon a 3 % interest                                                   '102 .33 Blanks and records. The depart-
discountt basis with, such bank or trust :company.,                                               ment shall print and furnish free to any employer
as.may be designated by. the department ; or                                                      or, employe such blank forms as it shall deem
   (2) By purchasing art, annuity within the                                                      requisite to facilitate : efficient administration of
limitations provided by law ; in suchh insurance                                                  this chapter ; it shall keep such record books or
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102 .33 WO R KE R'S COMPE N SATION                                                                    2170

records as it shall deem r ' equir'ed for the proper   transacts the business of compensation insur-
and effi cient administr ation of this chapter .       ance, and every employer who is subject to the
  History :1975 c 147s . 5 4 .                         worker's compensation act, but who has not
                                                       insured the employer's liability, shall keep a
102 . 35 Penalties. (1) Every employer andd            record of all payments made under ch 102 and of
every insurance company that fails to keep the         the time and manner of making such payments,
records or to make the reports required by             and shall furnish such reports based upon these
chapter 102 or that knowingly falsifies such           records to the department as it may require by
records or makes false reports shall forfeit to the    general order, upon forms to be procured from
state not less than $10 nor more than $100 for'        the department .
                                                         History; 1975 c 147s . . 54 ;1975c ', 199
each offense.
    (2) Any employer ; or duly authorized agent        102 :39 General orders ; application of
thereof, who, without reasonable cause, refusess       statutes . The provisions of chapter 101, relating
to rehire an . .employe injured in the course of'      to the adoption, publication, modification and
employment, or, who, because of a claim or             court review of general orders of'the department
attempt to claim compensation benefits from            shall apply to all general orders adopted
such employer ; shall discriminate or threaten to      pursuant to this chapter..
discriminate against an employe as to his
employment, shall forfeit to the state not less                                          e
                                                       102 .40. Reports root.t evidence i n actions .
than $50 nor more than $500 for each offense ..
                                                       Reports furnished to the department pursuant to
No action under this subsection shalll be
                                                       sections 102 .37 and 1-02 .388 shall not be
commenced except upon request of the commis-
                                                       admissible as evidence in any action or
sion,                                                  proceedingg arising out of the death or accident
    (3) Any employer who withoutt reasonable           reported ..
cause refuses to r'ehir'e an employe who is injured
in-the course of employment, where suitablee           102.42 Incidental compensat i on. (1)
employment is available within the employe's           TREATME NT O F EMPLOYE, The employer shall
physical .l and mental limitations,, shall, upon       supply such medical, surgical, chiropractic,
order, of the department and in addition to other      podiatric and hospital treatment, medicines,
benefits, pay to the employe the wages lost            medical and surgical supplies,, crutches, ac-
during the period of such refusal, not exceedingg      tiPicial members, appliances, and training in the
one year's wages .. In determining the availability    use of artificial members and appliances, or, at
of suitable employment the continuance in              the option of'the employe, .if the employer has not
business of the employer, shall be considered and      filed notice .e as provided in sub ., (5), Christian
any written rules promulgated by the employerr         Science treatment in lieu of medical treatment,
with respect to seniority or the provisions of any     medicines and medical supplies, as may be
collective bargaining agreement withh respect to       reasonably required to cure and relieve from the
seniority shall govern                                 effects of the injury, and to attain efficient use of
  History:19'75c 147,                                  artificial members and appliances, and in case of
                                                       the employer's neglect or refusal seasonably to
102. 37 Employers' records . Every em-                 do so, or in emergency until it is practicable for
ployer, of 3 or more persons and every employer        the employe to give notice of injury, the employer
who is subject to this chapter shall keep a record'    shall be liable for- the reasonable expense
of all accidents causing death or, disability of any   incurred by or on behalf of the employe in
employe while per,forming services, growing out        providing such treatment, medicines, supplies
of 'and incidental to the employent, which             and training . Where the employer has knowl-
record shall give the name, address, age and           edge of the injury and the necessity f'or,
wages of the deceased or injured employe, the          treatment, the employer's failure to tender the
time and causes of the accident, the nature and        necessary treatment ; medicines,' supplies and
extent of the in and suchother information             training constitutes such neglect or refusal . The
as the department may requite by general order .       employer shall also be liable for reasonable
Reports based upon this record shall be                expense incurred by the employe for necessary
furnished to the department at such times and in'      treatment to cure and relieve the employe from
such manner' as it may require by general order',      the effects of" occupational disease prior to the
upon forms to be procured . from the department. .     time "that- the employe knew or should have
  History:1975e 147s . 54                              known the nature of" his'oc her disability and its
                                                       relation to employment, and as to such treatment`
102. 38 . . Records of payments ;: reports             subs . (2) and (3) shall not apply, The obligation
thereon : Every insurance companyy which               to furnish such treatment and appliances shall
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 2171                                                             WORKER ' S COMPENSATION 102 .42

   continue as required to p revent further- deterio-          (5) CHRISTIAN SCIENCE . Any employer may
   ration in the condition : of the employe or to                    t
                                                            elect not to be subject to the provisions for
   maintain the existing status of such condition           Christian Science treatment provided for- in this
  whether or not healing is completed .                     section by filing written notice of such election
       (2) PANELS OF PHYSICIANS, CHIROPRACTORS              with the department..
  OR PODIATRISTS, The employe , shall have the                  (6) A RTIFICAL MEMBERS .. Liability for repair-
  right : to choose his or her attending ph y sician ,      and replacement of prosthetic devices is limited
  chiropractor or podiatrist from any available
                                            y               to the effects of normal wear and fear . . Artificial
  panel of physicians, chiropractors or podiatrists         members furnished at the end of the healing
  to be named by the employer , Where the         e         period -for cosmetic purposes only need not be
  employer has knowledge of the injury and the
                                       e                    duplicated .
  necessity for treatment, the employer's failure to
                                                                (7) TREATMENT REJECTED BY EMPLOYE
  tender the same shall constitute such neglect or
                                                            Unless the employe shall have elected Christian
  refusal,. Failure of ,the employee to maintain a
                                                            Science treatment in lieu of `medical, surgical,
  reasonable numbe r of competent and impar tial
                                                            hospital or'sanator•ium treatment, no compensa-
  physicians, A iropi,a cfor s. or podiatrists, ready to
                                                            tion shall be payable for the death or disability of
  undertake the , tzeatment of the employe , and to
                                                            an employe, if his death be caused , or insofar as
  petmit•the employe to choose an attendant from
                                                           his disability : may be aggravated, caused or
  among them, constitutes neglect and efusai to
                                                           continued (a) by an unreasonable refusal or
  furnish such attendance and treatment ,. Nothing
                                                           neglect to submit to or follow any competent and
 contained in this section limits the right of the
                                                           reasonable med ical or surgical treatment , . (b)
 employe to make a 2nd choice of physician,
                                                           or, in the case of tuberculosis , by his refusal of
 chi r opractor , or podiatrist from the panel named
                                                           neglect to submit to or follow hospital or
 by the employer The department may upon
                                                           sanatorium treatment 't when found by the
 summary hearing permit an injured _ eznploye to
                                                           department to be necessary . . The right to
 make selection : of a physician, chiropractor or
                                                           compensation accruing during a period of refusal
 podiatrist not on the panel.
                                                           or neglect under (b) shall be barred , irrespective
      (3) TREATMENT PANEL . In determining , the
                                                           of whether disability was aggravated, caused or
 reasonableness of the size of the panel, the
                                                           cont inued thereby ,
 department shall take into account the number
 of competent physicians, chiropractors and                     (8) MEDICAL EXPENSES OF STATE EMPLOYE,
 podiatrists immediately available to the commu-            In the event of a claim by a state employe under
 nity in which; the se rvice is required, and where        the conditions enumerated in s . 102 .. 03, involving
 only one such ' physician, ., chiropractor or             only payment of medical, chiropractic or
 podiatrist is available, the tender' of attention by                                              d
                                                           podiatric expense of not to exceed a gross of
 such practitioner shall be construed as a                 $500 ; - plus compensation for not to exceed 3
 compliance with this section unless specialized           weeks of temporary disability, the employing
 or extraordinary treatment is necessary . In such         department may approve payment of such
 panel, partners and clinics shall be deemed as one        reasonable expense for necessar y treatment to   t
practitioner Every employee shall post the       t         whomsoever' owing and compensation for not to
names and addresses of the physicians, chiro-              exceed 3 weeks of temporary disability, subject
practors and podiatrists on his or her panel in            to . subsequent review by the department of
such manner as to afford the employer's                    industry, labor and human relations . If the,
employes reasonable notice thereof.                        employing department rejects the claim, the
     (4) . PREJUDICED PRACTITIONER . Whenever              employe may make claim to the department of
in the opinion of the department a panel member            industry, labor and human relations . Payment
has not impartially estimated the degree of                shall be charged to the appropriate fund, as
permanent disability or, the extent of temporary           provided by s., 20 .865 :(1) (d ) .
disability of any injured employer the depart=                 (9) AWARD TO STATE EMPLO YS : Whenever
rnent may cause such employe to be examined by             an award ismade by the department in behalf ' of
a: physician, chiropractor or podiatrist selected          a state employe, duplicate copies of the award
by it, and to_ obtain from him or her :a report        t   shall be filed with the employing constitutional =
containing an estimate of such disabilities . If the       office, department or' independent agency. Upon '
report shows . that the estimate : of the panel            receipt of the copies of the awards, the
practitioner' has not , been impartial from the            constitutional officer or .head of the department
standpoint of such employe, the department may                                            l
                                                           or' independent: agency shall promptly issue a
in its discretion charge the cost ' of such                voucher in payment of the award from the proper
examination to the employer, if the employer is a          state fund and appropriation, and shall transmit
self-insurer, or- to the insurance company which           the voucher : and one copy of the award to the
is carrying the risk .                                     department of administration .             -
                            Electronically scanned images of the published statutes.

 102.42 WORKE R 'S COM P E N SATION                                                                                             2172

   (10) ' REHABILITATIO N ; MEDI CAL AN D PHYSI-                    the actual wage loss of ' the injured employe bears
CAL, (a) One of thee primacy purposes of this                       to his average weekly , wage at the time of his
chapter is restoration of an injured employe to                     injury..
gainful employment,. To this end, the depart-                           (3) If ' the disability caused by the inj ury is at
ment may employ one or more specialists in                          times total and at times partial, the weekly
physical, medical and vocational rehabilitation .                   indemnity during each total or partial disability
   (b) Such specialist shall study the problems                     shall be in accordance, with subsections (i ) and
of rehabilitation, both physical and vocational                     (2), respectively
andd shall refer suitable cases to the department                      (4) If ' the disability period involves a
of health and social services for vocational                        fractional week, indemnity shall be paid for each
evaluation and training . The specialist shall                      day of` such` week, - except Sundays only, at the
investigate and maintain a directory of such                        rate of one-sixth of the weekly indemnity .
rehabilitation facilities, private and public ;, as                     (5) Temporary disability, during which
are capable of rendering competent rehabilita-                      compensation shall be payable for loss of
tion service to seriously injured employes                          earnings, shall include such peiiod as may be
 " (c) The specialist shall review and evaluate:                    reasonably r equir' ed for training in the use of
reported injuries for potential cases in which                      ar tificial ' members and appliances, and shall
seriously injured employes may be in need of                        include such period as the employe may be
physical and medical rehabilitation and may                         receiving instruction pursuant to s . 102. 61 . .
confer with the injured employe, employer,                          Temporary disability on account of r eceiving
insurance carrier or attending practitioner                         instruction of the latter nature, and not
regarding treatment and rehabilitation,                             otherwise resulting from the injury, shall not be
   History 1971 c . 61 ;1973 c 150,282 ; 1975c 147
                                                                    in excess of 40 weeks .. Such 40-week limitation
    The requirement that medical treatment be supplied
during the healing period (defined as, prior to the time the        does not apply to temporary disability or t r avel
condition becomes stationary) iss not determined by referencee      or maintenance expense under s . 102 61 if the
to the percentage of disability'but by a'determination that the
injury has stabilized . Custodial care, as distinguished from       department determines that additional training
nursing services, is not compensable. Mednicoff'v . IL.HR Dept .    is warranted The necessity for additional
54 W (2d) 7 ;194 N W (2d) 670
    In appropriate cases, the ILHR Department is warranted          training as authorized by the department for- any
in, at the least, postponing a determination of permanent           employe shall be subject to periodic review and
disability for a reasonable period of time until after a claimant   reevaluation
completes a competent and reasonable course of physical
therapy or vocational rehabilitation as an essential part of the    ` (6) Sick leave benefits in connection with
treatment required for~ full recovery and minimization of           other employment shall not be considered in
damages. Transamerica Ins . .. Co v . ILHR Dept 54 W (2d)
272,195NW ;(2d) 656                                                 comput ing actual wage loss from the employer in
   An employe who wishes to consult a 2nd doctor on the panel       whose employ injury was sustained . .
after the first says no further treatment is needed may do so
without notice or consent, and if the 2nd doctor prescribes an         History : 1971 c 148 ;1973c. :150 ;19'75c . 14'7 .
operation which increases disability, the employer is liable           Committee Note, 1971 : Employes who have two jobs who
Spencer v ILHRDept .55 W (2d)'S25,'200NW (2d) 611 ..                have been injured atone of them have in some cases been made
                                                                    totally disabled for work at either job . Sick leavebenefits from
                                                                    the other employer has suspended eligibility for compensation
102 .43 Weekly compensa4lon schedule . If'                          or has reduced compensation even though the employe
                                                                    suffered a wage, loss . This is considered to be inequitable . Sick
the injury causes disability, an indemnity shall                    leave benefits from the employer where injury occurred are to
be due as wages commencing the 4th calendar                         be considered, however,, in determining eligibility for
day from the commencement of the day the                            compensation from such employer [Bi11371-A]
scheduled work shift began, exclusive of
Sundays' only, excepting where the employe                          102.44 Maximum- limitations . Section
works on Sunday, after the employe leaves work                      102,43 shall : be subject to the following
as the result of the injury, and shall be payable                   limitations :
weekly thereafter, du ing'sueh disability ; If'the                      (1) Notwithstanding any other provision of `
disability exists after 7 calendar days from the                    this chapter, every employe who is receiving
date : the employe leaves work as a result of the                   worker's compensation under this chapter for a
injury and onlyif it so exists, indemnity shall also                                                     n
                                                                    total disability resulting from, an injury which
be due and payable for the first 3 calendar days,                   occur-
                                                                    .red prior to February 1, 1970, shall r eceive
exclusive of Sundays only,_ :excepting where thee                   supplemental benefits whi ch shall be payable in
employe works on Sunday Said weekly                                 thefirst ' instance by the : employer or the
indemnity shall be as follows :                                     employer's 'insurance carrier . : These supple-
   ( .1) If the injury causes total disability, two-                mental benefits shall be paid only for weeks of
thirds of the average weekly earnings: during                       disability occurring after January 1 1972, and
such disability                                                                                         d
                                                                    shall continue during the : period of such total
   (2) :,If they injury causes partial disability,•                 disability subsequent to that date . .
during the partial disability, such proportion of                      (a) If such employe is receiving the maximum
the weekly indemnity rate f"or, total disability as                 weekly benefits in effect at the time of `the injury,
                   Electronically scanned images of the published statutes.
 2173                                                                 WORKER ' S COMPENSATION 102 . 4 7

 the supplemental benefit shall be an amount             permanent total disability be taken as more than
 which, when added to the regular benefit                100 per cent .
 established .d for the case, shall equal the              Histor y: 19'71 c 148 ; 19'73 a 150; 19'75 c 147 ss 33, 54, 57 ;
                                                         1975c 199
 maximum weekly benefit in effect for a totally             Comm i t tee Note, 1 971 : Employes who we totally disabled
 disabled employe whose injury occurred on               receive compensation at the wage level and the compensation
 February 1, 1970 ,                                      rate in effect as of the date of their injury . This is an aver age of
                                                         approximately $45 .90 per week for the employes who are
    (b) If ' such employe is receiving a weekly          injured previous to February 1, 1970 . The intent is to provide
                                                         forr payment of supplemental benefits ; for example, an employe
 benefit which is less than the maximum benefit          who was injured in October 1951 and earning wages in excess
 which was in effect on the date of ' the injury, the    of the maximum of $52 86 is receiving $37 a week for total
                                                         disability. This employe will receive supplemental, benefits of
 supplemental ` benefit shall be an amount               $42 a week to bring the total' up to $79, which was the
 sufficient to bring the total weekly benefits to the    maximum February 1, 1970 . An employe injured in October
                                                         1951 with a wage of $26 . .43 has been receiving $18 ..50 per week
 same pr oportion of the maximum weekly benefit          for total disability; This is 50% of the maximum in effect in
 payable February 1, - 1970, as the employe's            October 1951 . Such employe will receive supplemental
 weekly benefit bears to the maximum in effect on        benefits of $21' a week to bring the total up to $39 .50, which is
                                                         50% of the maximum in effect February 1, 1970 . It is not
 the date of injury,                                     intended that any death benefit payment be affected by this
                                                         section . [Bi1137]-Al
   (c) The employer or insurance carrier paying                 The department mustt disregard total loss of earning
the supplemental benefits required under this           capacity in the case of 'a relative scheduled injury . Mednicoff v
                                                        ILHRDept , 54 W (2d) 7,194 NW (2d) 670 'See note to art IV, sec
subsection shall be entitled to reimbursement for                                                                       .: 26 as to (1), citing 62 Atty Gen 69 .
each such case from the fund established by s .
102 .65, commencing one year from the date of            1 02 . 45 Benefits payable to minors ; how
the first such payment and annually thereafter          paid . Compensation and death benefit payable
while such payments continue . . Claims for such        to an employe or dependent who was a minor
reimbursement shall be approved by the                  when his right began to accrue, may, in the
department . .'                                         discretion of'the department ; be ordered paid to a
    ( 2) In case of permanent total disability          bank, trust company, trustee, parent or guardi-
aggregate indemnity shall be weekly indemnity           an ; for, the use of such employe or dependent as
for the period that he may live, Total impairment       may be found best calculated to conserve his
for industr ial use of both eyes, or the loss of both   interests . Such employe or dependent shall be
arms at or near, the shoulder, or of both legs at or    entitled to receive payments, in the aggregate, at
near the hip, or of one arm at the shoulder- and        a rate not less than that applicable to payments
one leg at the hip, shall constitute permanent          of primary compensation for total disability or
total disability. This enumeration shall not be         death benefit asaceruing from his 18th birthday .
exclusive but in other cases the department shall          History: 1973 c . 150 ;
find the facts .
                                                         102 .46 Death benefit . Where death proxi-
   (3) For„ permanent partial disability not            mately results from the injury and the deceased
covered by ss. 102,52 to 102,56 the aggregate           leaves a person wholly dependent upon him for
number of weeks of indemnity shall bear, such           support, the death benefit shall equal four times
relation to the number, of weeks set out in pars . .    his auerage annual earnings, but when added to
(a) and (b) as the nature of the injury bears to        the disability indemnity paidd and due at the time
one causing permanent total disability and shall        of death, shall not exceed seventy per cent of
be ' payable at the rate of two-thirds of the           weekly wage for the number of weeks set out in
average weekly earnings of the employer the             paragraphs (a) and (b) of subsection (3) of
earnings to be computed as provided in s. 102 11 .      section 102 . .44, based on the age of the deceased
Such weekly indemnity shall be in addition to           at the time of his injur y .
compensation for the healing period and shall be
for the period ; that the employe may live, not to      102.47 Death benefit, continued . If death
exceed:                                                 occurs to an injured,employe otherr than as a
   (a) <One, thousand weeks for all, persons 52         proximate result of the injury, before disability
years of age or less ,                                  indemnityy ceases, death benefit and burial
                                                        expense allowance shall be as follows :
   (b) For each successive yearly age group,
                                                           ( 1) Where the injury proximately causes
beginning with 53 years, the' maximum limita-
                                                        permanent total disability, they shall be the same
tion shall be reduced by 2-1/2 % per year, with
                                                        as if the injury had caused death, except that the
no reduction in excess of 50%,
                                                        burial expense allowance shall be included in the
    (4) Where the permanent disability , is             items subjectt to the limitation stated in section
covered by the provisions of sections 102,52,           102 . .46 .. The amount available shall be applied
102,53 <-. and 102: 55, such sections shall govern ;    toward burial expense., before any is applied
provided, that in no case shall the percentage . of     toward death benefit . . ,
                               Electronically scanned images of the published statutes.
 102 .47 WORKER'S CO MP EN SATIO N                                                                                          2174

    (2) Where the injury proximately causes                 for in this section is in addition to., and not
 permanent partial disability, the unaccrued                exclusive of, any pension rights, death benefits or
 compensation shall first be applied toward                 other compensation otherwise payable by law
 funeral expenses, not to exceed $750, any                      (8) DEFINITIONS . As used in this section :
 remaining sum to be paid to dependents, as                     (a) "Law enforcement officer" means any
 provided in this section and ss, 102,46 and.               person employed by the state or any political
 102.48, and there shall be no liability for any            subdivision for the purpose of detecting and
 other payments . . All computations under this             preventing crime and enforcing laws or ordi-
 subsection shall take into consideration the               nances and who is authorized to make arrests for
 present value of future payments .                         violations of the laws or ordinances : the person is
    History: 1971 c,1 4 8. .                                employed to enforce, whether that enforcement
                                                            authority extends to all laws or ordinances of is
 102 .475 Death benefit; firemen , law en-                  limited to specific laws or ordinances ..
forcement and correctional officers. (1)                       (b) "Correctional officer" means any person
SPECIAL BENEFIT ., Where the deceased employe               employed by the state or any political subdivision
is a law enforcement officer, correctional officer          as a guard or officer whose principal duties are
or fireman who sustained an accidental injury so            supervision and discipline of inmates at a penal
that benefitsare payable under, s . 102.46 or               institution, prison, jail, house of correction or
 102.47 (L) the department shall cause to be                other place of penal detention ; including central
vouchered and paid from the appropriation                   state hospital :
under, s . 20.445•(5 )_ a, sum equal to 75 % of the           (c) "Fireman" means any person employed
primary death benefit as of the date of death, .but        by the state of any .political subdivision as a
not less than $25,000 to the persons wholly                member or officer of a fire department or, a
dependent upon the deceased . For purposes of              member of a volunteer department, including
this subsection, dependency shall be determined            the state fire marshal and deputies ..
in accordance with ss .102 .49and 10251 ..                    (d) "Political subdivision" includes counties,
   (2) ' PAYME NTS TO D E P EN DENTS.. (a) If there        municipalities and municipal corporations,
are more than 4 persons who are wholly                        (e) "State" means the state of Wisconsin and
dependent upon the deceased employe ann                    its departments,- divisions, boards ; bureaus,
additional .l benefit of $2,000 shall be paid for          commissions, authorities and colleges and
each dependent in excess of 4,                             universities,
    (b) If there is more than one person who is               History: 1975 c..274,421 .
 wholly dependent upon the deceased employer                   Note: Chapter 274, laws of 197 5, which created this section,
 the benefits under this section shall be apportion-       included section 7 a s follows:
                                                                "Application. Notwiths tanding the effective date of th is act,
 ed between such dependents on the same pro rata           benefits under section 102.475 of the statutes, as created b y this
 basis as the primary death benefit                        act, shall be payable for all fatal injuries to la w enforcem e nt
    (c) Notwithstanding sub.," (1), if there are
                                      . '                  officers, correctional officers and firemen occurring on and
 partial dependents of the deceased employe who            after January 1;` 1973. No person may receive any payment
                                                           unde r section 102 .475 of the statutes, as created by thi s act , wh o
 are entitled to benefits under s . 102.48, they shall     has also received pay ment under s ection 101 .81 ( 1973 s lats .)
 be entitled to such portion of the benefit                pr ior to May 27, 1976".
determined under sub . ( i) that their partial
dependency benefit bears to the primary benefit             102 .4 Death benefit, continued . If the
payable to one wholly . dependent upon the                  deceased employe leaves no one wholly depend-
deceased. No payment to a partial dependent                 ent upon him for support, partial dependency
shall be less than $1,000 .                                and death benefits therefor shall be as follows :
    (3) DisrurES„ In case of dispute, dependents               (1) An unestranged surviving parent or
may file applications as provided in s . 102 . .17,        parents to whose support the deceasedd has
and ss. 102 .17 to 102,27 'shall apply: In such case,      contributed less. than $500 in the 52 weeks next
if the claim for- a primary death- benefit is              preceding the injury causing death shall receive a
compromised, any claim under this section shall            death benefit of $2,000 .. If the parents are not
be compromised on the Same pro rata basis ;. The           living together, the department shall divide this
attorney general shall represent the interests of          sum in such proportion as it deems to be just,
the state in case of such dispute,                         consider irig their's ages and other facts bearing on
    (5) Mirrors„` B enefits due to minors under            dependency,
this section may be paid as provided in s . .102 : .45 :       (2) In all other' cases the death benefit shall
    (6) PxooF .'In administering this section the          be such sum as the department shall deter mine to
department may require reasonable proof of                 represent fairly' and justly the aid to support
birth, marriage, relationship or dependency,               which the dependent might reasonably have
  (7) NOT TO AFFECT OTH ER RIGHTS, BENEFITS                anticipated from the deceased employe but for
OR COMPENSATION. The compensation provided                 the injury, ; To establish anticipation of''support
                          Electronically scanned images of the published statutes.
 2175                                                           WORKER' S COMPENSATION 102 .49

 and dependency, it shall not be essential that the      likewise wholly, dependent, aggregate benefits
 deceased employe made an,yy contribution to             shall be the same in amount as if the children
 support The aggregate benefits in such case             were the children of such surviving spouse, and
 shall not exceed twice the average annual               the entire benefit shall be apportioned to the
 earnings of the deceased ; or: 4 times the             dependents in such amounts as the department
contributions of the deceased to the support of         shall determine to be j ust, considering their ages
such dependents during the year immediately             and other facts bearing on dependency .. The         e
preceding his death, whichever amount is the            benefit awarded to the surviving spouse shall not
greater . In no event shall the aggregate benefits      exceed four times the average annual earnings of
in such case exceed the amount which would              the deceased employe .
accrue to a person solely and wholly dependent .            (4) Dependency of any child for the pur poses
Where there is more than one partial dependent          of this section . shall be determined according to
the weekly benefit shall be apportioned accord-            e
                                                        the provisions of subsection ' (1) of section
ing to their' relative dependency . The term             102 .. 51 ; in like manner as would be done if' there
"support" as used in ss„ 102 .42 to 102,63 shall        was no surviving dependent parent .
include contributions to the capital fund of the            (5) (a) In each case of in, juiy resulting in
dependents, for their necessary comfort . .             death, leaving one or, more persons wholly           y
    (3) A death benefit, other than burial              dependent for, support, the employer or insurer-
expenses, except as otherwise provided, shall be        shall - pay into the state treasury the sum of
paidd in weekly instalments corresponding in            $2 ;500.
amount to two-thirds of the weekly earnings of             (b) In each case of injury resulting in death
the employe, until otherwise ordered by the             leaving no person dependent for support, the
department .                                            employer or insurer shall pay into the state
  Hi s tory:;1975c 147,                                 treasury 80% of the death benefit otherwise
                                                        payable .
 102 . 49 Addl4lonal death benefit for chil-               (c) In each case of injury resulting in death,
 dren , state fund . (1) Where the beneficiary          leaving one or more persons partially dependent
 under s . 102 .46 or, s . 102,47 (1) is the wife of    for support, the employer or insurer shall pay
 husband of the deceasedd employe and is wholly         into 'the state treasury an amount which, when
 dependent for support, an additional death             added to the sums paid or to be paid on account of
 benefit shall be paid from the funds provided by       partial dependency, shallequal the death benefit
 sub . (5) for each child by their marriage living at   payable to a person wholly dependent, plus the
 the time of the death of the employe, and who is       amount payable into the state tr easury under this
likewise wholly dependent upon him for support . .      subsection where there is a person wholly
 Such additional benefit shall be computed from         dependent, such payment to the state treasury in
 the date of the death of the employe as follows :      no event to exceed 80% of the amount payable
 For the child one year of age or under (including      for total dependency .
a `posthumous child), a sum equal to 1-1/15                                                          y
                                                           (d) The payment into the state tr ' easur'y shall
times the average annual earnings' of the               be made in all such cases :regardless of whether
deceased employe. For children in each succes-          the dependents or personal representatives of the
sive yearly age group the amount allowed shall          deceased : employe commence action against a
be reduced by one-sixteenth part of such sum,           third party under s . 102 . 29 . If such payment is
with no allowance for any child over 16 years of        not made within 20 days after the department
age at the death of the employe unless such child       makes request therefor, ' any sum payable shall
be physically or mentally incapacitated from            bear interest at the rate of 6 per cent per annum .
earning, in which- case the department shall               (6) The additional benefits for- account of
make such allowance as the equities and the             each child shall accrue. at the rate of 1 .3 % of the
necessities of the case merit, not more, however,       surviving parent's weekly indemn ity . The de-
than the amount payable on account of a child           partment may award such benefits to the
under one year of age                                   surviving parent of such child, to the child's
    (2) A child lawfully adopted by the deceased        guardian or to such other person, bank or trust
employe and the surviving spouse, prior to the          company for the child's use as may be found best
time of the injury, and a child not his own by          calculated to conserve the interest of' the child : In
birth or adoption but living with him as a              the case of death of 'a child while benefits are still
member of his family at the time of the injury          payable there shall be paid the reasonable
shall for the purpose of this section be taken as a     expense for- burial not exceeding $ .300 ,
child by their marriage .                                  (7) All payments received under this section
   (3) Where the employer leaves a wife or              shall be deposited in the fund established by s .
husband. wholly. dependent and also a child or          102 65 .
children by a former marriage or adoption,                                                               9
                                                          History: 19 ' 71 c 260s 92 (4) ;1975 ;c 147, 199
                             Electronically scanned images of the published statutes.

102.50' WO R KE R 'S CO MPENSATI ON                                                                     2176

102. 50 - Burial expenses . :In all cases where         dependent; ' the death benefit shall be divided
death of an employe proximately results from the        between such dependents in such proportion as
injury the employer or insurer' shall pay the           the department shall determine to be just,
reasonable expense for burial, not exceeding            considering their ages and other facts bear ing on
$750,                                                   such dependency .
  History : l9'7It, ,148 .                                 (4) DEPENDENCY AS OF DA TE OF INJURY .
                                                        Questions as to who constitute dependents and
 102 .51 ' Dependents . (1) WHO ARE . The               the extent " of their dependency shall . be
 following shall be conclusively presumed to be         determined as of the date of the injury to the
 solely and wholly dependent for support upon a         employe, and their, -right to any death benefit
 deceased . employe : A wife upon a husband with        shall become fixed as of such time, irrespective of
whom "she - is living at the time of his death ; a
                              e                         any subsequent change in conditions ; and the
 husband upon a wife with whom he is living at the     death benefit shall be directly recoverable by and
time of her death ; a child: under the age of 18       payable to the dependents entitled thereto or
years (or over said age, but physically or             their legal guardians or' trustees ; in case of thee
mentally incapacitated from earning), upon the         death of a dependent whose right to a death
parent with whom he is living at the time of the       benefit has thus become fixed, so much of the
death of such , parent, there being- no surviving      same as is then unpaid shall be payable to his
dependent parent , Where a dependent entitled to       personal representatives in gross .
the presumption in this subsection survives the            (5) WHEN NO INTERESTED No dependent of
deceased employe , all other dependents shall be       an injur ed employe shall be deemed a ' party in
excluded . The charging of any portion of the    e     interest to any proceeding by him for the
support and maintenance oE: a child upon one of"'      enforcement of his claim for- compensation, nor
the parents, or any voluntary contribution             as respects the compromise thereof by such
toward the support of a child by a parent , or an                                  e
                                                       employe , Subject ., to the provisions , of section
obligation to support a child, by a parent shall        102,16 (1), a compromise of all liability entered
constitute a . living with any such parent within      into by an employe shall be binding upon his
the meaning of this section . :                        dependents
    (2) WHO . ARE NOT . (a) No personshall be              (6) DIVISION AMONG DEPENDENTS . Benefits
considered a dependent unless a member of the          accruing to a minor dependent child may be
family or a spouse, or a divorced spouse who has       awarded to either parent in the discretion of the .e
not remarried, of :lineal descendant or ancestor ,     department Notwithstanding sub (1), the
or brother o r sister of the deceased employe          department may reassign the death benefit, inh
    (b) Where for eight years or more prior, to the                     h                  e
                                                       accordance with their respective needs therefor
date of s injury a deceased employe has been a         as between a surviving spouse and child r en
resident : of the United States, it shalll be          designated in sub . . (1) and s.102 . . 49 . .
conclusively presumed that . no person who has
                                                           (7) CERTAIN DEFENSE BARRED. In proceed-
remained a nonresident alien during that period        ings for the collection of primary death benefit or
is either totally or partially dependent upon him.:    burial expense it shall not be a defense that the
for. support.                                          applicant., either individually oras,a partner, was
    (c) No person who is a nonresident alien shall     an employer of' the deceased
be found - to be either : totall y or partially          History : 1975 c . 94,14'7 . . .
dependent on a deceased eznploye for support,
who . cannot establish dependency by proving           102. 52 Permanent partial disability
contributions from the deceased employe by             schedule . In cases included in the following
written evidence o r tokens of the transfer of         schedule of permanent partial disabilities in-
money, such as drafts, letters of credit, canceled     demnity shall be paid for' the healing period, and
checks , or recei pts for the payment to any bank ,,   in addition,: thereto, where the employe is 52
express company , United States post office, or,       years of'age or less, for the period specified, at thee
other, ; agency , commercially engaged in the          rate of" two-thirds of the average weekly earnings
transfer of funds fromone country to another ,         of'the employe, to be computed as provided in s . .
for transmission of funds on behalf of said
                                                       102,11 :
deceased employe to such nonresident alien
cla iming dependency , This provision shall not be        (1) The loss of an arm at the shoulder, 500
applicable unless the employe has been continu-        weeks ;
ously in the, United States for at least one year,        (2) The loss of an arm at the elbow, 450'
prior to his injury, and has been remuneratively       weeks ;
employed therein . foi• at least 6 months                 (3) The loss of'a hand, 400 weeks ;
  (3) DIVISION AMONG DEPENDENTS . . If there is           (4) The loss of a palm `where the thumb
more than one person wholly or partially               remains, 325 weeks ;
                    Electronically scanned images of the published statutes.
  2177                                                             WORKER ' S. COMPENSATION 102 .55

      (5) The loss of a thumb and the metacarpal               (h; ) The third, fourth - or little toe at the
  bone thereof, 160 weeks;                                 proximal joint, 6 weeks ;
     (6) The loss of a thumb at the proximaljoint,             (i) The third, fourth or little toe at the second
  120 weeks;                                               or distal joint, 4 weeks ;
     (7) The loss of a thumb at the distal joint, 50           (15) The loss of an eye by enucleation or
 weeks ;                                                   evisceration, 275 weeks;
     (8) The loss of all fingers on one, hand at their         (16) Total impairment of one eye for
 proximal joints, 225 weeks;                               industrial use, 250 weeks ;
     (9) Losses of fingers on each hand as follows :           ( 17) Total deafness from accident or sudden
     (a) An index finger and the metacarpal bone           trauma, 330 weeks ;
 thereof, 60 weeks;                                            (18) Total deafness of one ear from accident
    (b) An index finger at the proximal joint, 50          or sudden tr auma, 55 weeks
 weeks ;                                                     History: 1913 c . 150 ; 1975 c 14'7 . .
                                                              In a workmen compensation proceeding brought by an
    (c) An index finger at the second joint, 30           employe who suffered total deafness in one ear, a skull
 weeks ; .                                                fracture, loss of taste and smell, facial paralysis and periods of
    (d) An index finger at thee distal joint, 12          intermittent headaches and dizziness, the ILHR department
                                                          did not err in determining that the hearing loss was a scheduled
 weeks ;                                                  disability under (18 ), with a separate award for the additional
    (e) A middle finger and .d the metacarpal bone        physical effects of the deafness, rather than considering the
                                                          entire range of disabilities as a whole, since where a loss is
 thereof, 45 weeks;                                       recognized ' by and compensable under this section, the
    (f) A middle finger at the proximal joint, 35         schedule therein is exclusive . : Vande Zande v . ILHR Dept .. 70
                                                          W (2d) 1086,236 NW (2d) 255
 weeks ;
    (g) A middle finger at the second joint, 20
 weeks ;                                                    102.53 Multiple Injury and age variations .
                                                            ('1) In case an in,jury causes more than one
      (h) A middle finger at the distal, joint, 8
                                                           permanent disability specified in sections 102,44
  weeks ; ,
                                                           (3), 102 :52 and 102 ::55, the period for which
      (i) A ring finger and the metacarpal bone
                                                           indemnity shall be payable for each additional
  thereof, 26 weeks ;
                                                           equal or lesser disability shall be increased as
     (j) A ring finger, at the proximal joint, 20          follows:
                                                              (a) In the case of impairment of both eyes, by
     (k) A ring finger at the secondd joint, 15            200 per cent.
                                                              (b) In the case of disabilities on the same
     (1) A ring finger at the distal joint, 6 weeks ;      hand covered by section 102,52 (9), by 100 per
     (m) A little finger and the metacarpal bone           cent for the first equal or lesser disability and by
 thereof, 28 weeks ;
                                                           150 per cent for the second and third equal or
     (n) A little finger at the .e proximal joint, 22      lesser disabilities,
 weeks ;                                                      (c) In the case of disabilities on the same foot
     (o) A little finger at the second joint, 16           covered by section 102 .52 (14 ), by 20 per cent ..
                                                              (d) In all other cases, by 20 per cent .
     (p) A little finger at the distal joint, 6 weeks ;       (e) The aggregate result as computed by
     (10) The losss of a leg at the hip joint, 500
                                                          applying paragraph (a), and the aggregate
 weeks ;
                                                          result for members on the same hand or foot as
     (11) The loss of a leg at the knee, 425 weeks ;
                                                          computed by applying paragraphs (b) and . (c),
     (12) The loss of a foot at thee ankle, 250
                                                          shall each be taken as a unit for applying
 weeks ;
                                                          paragraph (d) as between such units, ; and as
     (13) The loss of the great toe withh the             between such units and each other disability
 metatarsal bone thereof, 83 1/3 weeks ;                      (2) In cases where the injured employe is
     (.14) Losses of toes on each foot as follows : .     above 52 years of age when injured the periods
    (a) A great toe at the proximal joint, 25             for which indemnity shall be payable, in addition
 weeks ;                                                  to the healing period, shall bee reduced from those
    (b) A great toe at the distal joint, 12 weeks ;       specified in s . 102 . :52 by 2-1/2% for each year
    (c) The second : toe with the metatarsal bone         that the age of such employe exceeds 52, with no
thereof, 25 weeks ;                                       reduction in excess of 50 %,.
    (d) The second toe at the proximal joint, 8             History : 1973 c ..150 .
    (e) The second toe at the second joint, 6             102 . 55 Application .n of schedules . (1)
weeks;                                                    Whenever amputation of a member is made
    (f) The second toe at the distal joint, 4 weeks ;     between any 2 joints mentioned in the schedule
    (g) The third, fourth . or little toe with the        in section 102 .52 the determined loss and
metatarsal bone thereof, 20 weeks ;                       resultant indemnity therefor shall bear such
                     Electronically scanned images of the published statutes.

 102.55 WI ORKER''S CO MPE N SATIO N                                                                                2178

relation to the loss and' indemrii'ty ' applicable in   In cases covered by this subsection "time of
case of amputation at the joint next nearer the         injury", "occurrence of injury", or "date of
body as such injury bears to one of amputation at       injury" shall, at the option of the employe, be the
the joint nearer the body .                             date of occurrence of any of the follow i ng events
    (2) For ` the purposes of this schedule             to ari employer
permanent and complete paralysis of any                    (a) Transfer to nonnoisy employment by an
member shall be deemed equivalent to the loss           employer whose employment has caused occupa-
thereof. .                            -                 tional deafness ;
    (3) For all other inju fies to the members of          (b )` Retirement ;
the body or its faculties which ire specified in           (c) Termination 'of ' the employer -.employe
this schedule resulting in permanent disability,        relationship ; or
though the member , be not actually severed or the         (d) layoff, provided the layoff is complete
faculty totally lost, compensation shall beat- such     and continuous for one year-
relation to that ., named : in this schedule ` as               ' No claim under sub
                                                            (5) (4) may be filed             ,
disabilities bear ' to the disabilities named in this   until 2 consecutive, months of removal from noisy
schedule . Indemnity in such cases shall be             employment after the time of injury except that
determined . by< . allowing weekly indemn i ty          under sub . . (4) (d) such 2 consecutive months'
dur i ng the heali ng , period resulting ' from 'the    period may commence within the last 2 months
injury and the percentage of permanent disab li-        of layoff,
ty resulting' thereafter as found by the, depart=          (6) The limitation provisions in this chapter
                                                        shall control claims arising under this section . .
                                                        Such provisions shall iuri'ft-6m the first date upon
102 : 555 Occupational " deafness ; defi 6 f-           which claim may be filed, or from the date of
tlons : (1)" "Occupational 'deafness" means             subsequent death, provided thaf• no ' claim shall
permanent partial or permanent total loss of            accrue to any dependent unless an award has
hearing of one or both ears due to prolonged            been issued or hearing tests have been conducted
exposuree to noise, in employment "Noise"               by a competent medical specialist after the
means sound capable of producing occupational           employe has been removed from ' the noisy
deafness . "Noisy employment" means employ-             environment for a period of 2 months .
ment in the "performance of which an employe is             (7) No payment shall be made to an employe
subjected to noise .                                    under this section unless the employe shall have
   (2) No' benefits `shall be payable for               worked in noisy employment for a total period of
temporary total or temporary partial disability         at least 90days for the employer from whom the
under this chapter for, loss of hearing due to          employe claims compensation,
prolonged exposure to noise                                 (8) ' An employer' is liable for the entire
    (3) An employe who because of occupational          occupational deafness to which his or her
deafness is transferred by his employer to other        employment has contributed ; but if ' previous
noisy employment and thereby sustains actual            deafness is established by a hearing test or other
wage loss `shall' be compensated ' at . the rate        competent evidence ; whether or not the employe
provided in s . 102,43 (2), not `exceeding $3,500       was exposed to noise within the - 2 months
in the aggregate from all employers . "Time of          preceding such test, the employer is not l iable f'or'
injury," "occurrence of injury," "date of injury"       previous loss so established nor is the employer
in such case shall.6e the date of wage loss .           liable for any loss f"or, which compensation bas
    (4) '`.Subject ' to the limitations- herein con-    previously been paid or awarded . .
rained ands 102 .53 (2) there shall be payable            . (9) 'Any amount paid to an employe under
for total occupational deafness : of one eat, 36        this section by any emplo yer shall be credited
weeks of compensation ; for total occupational                 t
                                                        against compensation payable by any employer
deafness of both ears, 216 weeks of compensa-           to such employe for occupational deafness under
tion ; and for `partial .' occupational deafness,       subs . (3) and (4) . No employe shall in the
compensation shall- beat- such relation to that         aggregate- receive g t!eater, compensation from
named "`herein ' as disabilities bear, to the           any or ; all, employers ' for occupational deafness
maximum disabilities herein provided, ; The             than that provided in this section ' for total
reduction of the, periods for which -indemnity is       occupational deafness.
paid made because of age under 5 . 102 .53''(2)           History:l9' 71 c .. 148 ;1973c 150;1975c 14'7,199,2.0,0 .
shall apply in cases for occupational deafness             Committee Note, 1971: Where an employer discontinues a
under, ppar, (a) ; such reduction shall not apply in    noisy operation - and ` tcansf 'ers the 'employes ` to nonnoisy
                                                        employment, they have been unable to make claim fox
claims for occupational deafness under pars, .          occupational deafness .untiLthe conditions of'sub , (b), (c) or
(b), (c) and (d)', and in lieu thereof a reduction                                                           n
                                                        (d) were met The'employe will nbvV fiave the option of filing a
                                                        claim at the time of transfer - at tlie . current rate of
shall be made at the rate of one-half per cent for      compensation with a-2-1/2% reduction for leach year of age
each year that the age of the employe exceeds 52 :      over 50 or waiting until he meets the conditions of sub ;, (b), (c)
                      Electronically scanned images of the published statutes.
 2179                                                                    WORKER ' S COMPENSATION 1 02. 59
 or (d) when he may file claim at the then-current rate of            (5) Payment of a benefit under this section to
 compensation with a 1/2 % reduction for each year of'age over
 50 [Bill 371-A]                                                  an employe shall estop such employe from any
                                                                  further ` recove t.y , whatsoever from any employer
 102 .56 Disfigurement . If an employe is so                      undet ,this section
 permanently disfigured as to occasion potential
 loss of wage, the department may allow such sum                  102 . 57 Violations of safety pro visions ,
 for compensation on account ther'eof', as it deems               penalty . Where injury is causedd by the failure of'
 just, not exceeding his average annual earnings                  the employer to comply with any statute or any
 as defined in s 102 1 1,                                         lawful order of the department, compensation
   History: 19716 : 148                                           and death benefits as provided in this chapter
                                                                  shall be increased 15 % butt not more than a total
  102 .565 St licos9s , nondisabling ; medical                    increase of $7,500 Failure of an employer
  examinatlon ; conditions of liability . (1)                     reasonably to enforce compliance by employes
  When an employe working subject to this                         with . such statute or order of the department
  chapter is, because he has a nondisabling                       shall constitute failure by the employer to
  silicosis, discharged from the employment in                    comply with such statute or or der .
  which he is engaged, or when an employe ceases                     This section and 102 58 may be applicable in the same
  such employment and it is in fact inadvisable for              workmen's compensation case if the negligence of both are
                                                                 causes of the employe's injury, Milwaukee Forge v ILHR
  him on account of a nondisabling silicosis to                  Dept 66 W (2d) 428,225 NW (2d) 476, ..
 continue in it, and suffers wage loss by reason of
 such discharge, or such cessation, the depart-                   '8 02 . 5    Decreased compensa t ion . Where
 ment .may allow such compensation on account                    injury is caused by the failure of'the employe to
 thereof as it deems,just, not exceeding $7,000 . In             use safety devices where provided in accordance ;
 case of such discharge prior to a finding by the                with any statute or lawful order of the
 department that it is inadvisable for him to                    department and adequately maintained, and
 continue in such employment, the liability of the               their use isreasonably enforced by the employer,
 employer who so discharges his employe shall be                 or- where injury : results from the employe's
 primary, and the liability of the insurer shall be              failure to obey any reasonable rule adopted and
 secondary, under the same procedure and to the                  reasonably enforced by the employer for the
 same effect as provided by s.102 ..62 .,                        safety of'the employe and of which the .employe
     (2) Upon application of any employer or                     has notice, or, where injury results from the
 employe the department may direct any employe                   intoxication of the employe, the compensation
 of such employer' or such employe who, in the                   and death benefit provided herein shall be
 course of his employment, has been exposed to                   reduced 15 % but the total reduction shall not
 the inhalation of silica, to submit to examination              exceed $7,500 :
 by a physician or physicians to be appointed by                     History: 197d c 148 .
 the department to determine whether such                           The burden of proof is on the employer to establish not only
                                                                 the fact of intoxication, but a causal connection between such
 employe has silicosis, and the degree thereof                   condition and the injury or accident . Haller Beverage Corpp v
 The cost of such medical examination shall be                   IL.HR Dept . 49 W (2d) 233,181 N W (2d) 418 .
borne by the'petson making application .. The
results of such examination shall be submitted by                 102 . 59 Preexisting d i sability, indemnity .
the physician to the department, which shall                      (1) If an employe has at the time of injury
submit copies of such reports to the employer and                permanent disability which if it had resulted
employer who shall have opportunity to rebut the                 from such injury would have entitled him to
same provided request therefor is made to the                    indemnity for 200 weeks less 2-1/2 % they eo#' for
department within 10 days' from the mailing of                   each year of age above 52 years with no reduction
such report to the parties . The department shall                in excess of 50%, and, as a result of such injury,
make' its `findings as to whether' or not it is                  incurs further, permanent- disability, which
inadvisable' for the employe to continue in his                  entitles him to indemnity for 200 weeks less 2-
employment:                                                      1/2 % thereoffor each year of age above 52 years
    (3) If an enploye'shall refuse to submit to                  with no reduction in excess of S0%, he shall be
such examination after direction by the commis-                  paid from the funds provided in this section
sion, or any member or examiner thereof, or shall                additional compensation equivalent to the
in any way obstruct the same, his right to                       amount which would be payable f'or, said
compensation under this section shall be barred .:               previous disabilityy ifit had resulted from such
   (4) No payment shall be made to an employe                    injury or the amount which is payable for said
under this section unless he shall have worked for               further, disability, whichever' is the lesser . If said
the employer from whom he claims compensa-                       disabilities result in permanent total disability
tion in work exposing him to inhalation of silica                the additional compensation shall be in such
for' a total period of at least 90 days .                        amount as will complete the payments which
                          Electronically scanned images of the published statutes.
 102 .59 WORKER'S COMP ENSATIO N                                                                                   2180

would have been due had said permanent total                          (6) If the amount recoverable under this
disability =iesulted from such injuiy . Such                       section for temporary disability shall be less than
additional compensation shall accrue from the                      the actual loss of wage sustained by the m inor
end of the period for which compensation for                      employe, then' liability shall exist foi'sueh loss of"
permanent disability resulting from such injury                   wage,
is payable by the employer, and shall be subject                      (7) The provisions of subsections (1) to (6)
to s.102 . .32 (6)-and (7),                                       of section 102,60 shall not apply to emplo yes as
    (2) In the case of the loss or of the total                   defined in subsection (6 ) of' section 102..07 .if' the
impairment of a hand, arm, foot, leg or eye, the                  agency or publisher shall establish by affirma-
employer shall be required to pay $2,500 into the                 tive proof ' that at the time of the injury the
state treasury . The payment shall be made in all                 employe was not emplo yed with the actual or
such cases regardless of whether the employe,                     constructive knowledge ., of such agency or
the employe's dependent or, personal representa-                  publisher . .
tives, commence action against a third party as                       (8) This section shall not apply to liability
provided ins. 102 .29 . -                                         arising under s . 102,06 unless the employer
    (3) All payments received under this section                  sought to be charged knew or should have known
shall be deposited in the fund established by s .                 that the minor' . was illegally employed by the
102,65 ,                                                          contractor or subcontr actor,
   History: 1971 c.. 148 ; 1971 c 260 s 92 (4) ; 1973 c . 150 ;       (9) The increased compensation or increased
 1975c . 147
                                                                  death benefits recoverable under sub .. . (1) shall
                                                                  not exceed $5,000 . The increased compensation
 102 .60 Minor Illegally employed , com-                          or increased death benefits recoverable under-
 pensation . When the injury is sustained by a                    subs, . (2), (3) ` or (4) shall not exceed $7 ,500.
 minor illegally employed, compensation and                          History : 1 9 75 c 147s. 5,7 ;1975c 199
 death benefits shall be as follows :
      (1) Double the amount,otheiwise recover -                    102.61 Indemnity under, rehabilitation
 able, ifthe injured employe is a minor of permit                  law . An employe wfio is entitled to receive and
 age, and at the time of the injury is employed,                   has received compensation pursuant to this
 required, suffered or, permitted to work without a                chapter, and who is entitled to and is receiving
 written permit issued pursuant to chapter' 103,                   instructions pursuant to the provisions of the act
 except as provided in subsection (2),                             of congress known as the vocational rehabilita-
     (2) Treble the amount otherwise recoverable,                  tion act, and amendments thereto (Public Law
 ifthe injured employe is a minorr of permit age,                  11 .3-78th Congress) as administered by the state
 and at the time of the injury is employed,                        in which he holds residence or in which he resided
 required, suffered or permitted to work without a                at the time of becoming physically handicapped,
permit in any place of employment or at any                       shall, in addition to his othe r indemnity, be paid   d
employment in or for which the commission                         his actual and necessary expenses of travel and, if
actingg under authority of chapter 103, has                       he receives such instructions elsewhere than at
adopted a written resolution providing 'that                      the place of his residence, his actual and
permits shall not be issued . .                                   necessary costs of ' maintenance,, during
    '(3) Treble the amount other wise recoverable                 rehabilitation, sub         to the following condi,
if the injured employe is a minor of permit age, or               tiions and limitations:
over,, and at the time of the injury is employed,                      (1) He . must undertake the cou r se of
required, suffered, or permitted to work at                       instruction with in 60, days fi om the date when he
prohibited employment .                                           has sufficiently recovered from his injury . to
     (4) Treble the amount otherwise recoverable,                 permit of ' his so doing; or as soon thei eafter as the
if the injured employe is a minor under permit                    officer, or agency having charge of his instruction
age and illegally employed .                                      shall provide opportunity for his rehabilitation.
     (5) (a) A' permit or certificate of age                           (2) He must continue in rehabilitation
unlawfully issued by an officer, specified in ch .                training with such reasonable regularity as his
103, or -unlawfully 'altered after issuance,                      health and situation will permit .
without fraud on the part of the employer ; shall                      (3) He or she may not have expenses oftravel
be deemed a permit within the provisionss of this                 and costs of mai ntenance on account of training
section .:                                                        for a period in excess of 40 weeks in all, except as
    (b) If the employer. is misled in employing a                 provided ins 102 .43 (5) . . .
minor illegally because of fraudulent written'                        (4) The department shall determine the
evidence 'of age presented by the minor, the                      tights, and liabilities of the parties under this
increased compensation provided by this section                   secti o n , in like manner and with like effect as it
shall not be paid to the employe, but shall be paid               does other issues under compensation ..
into the fund established by s'..' 102 .65 .                        History: l9 75 c 147
                                                                                '      7
                   Electronically scanned images of the published statutes.

 2181                                                           WORKER'S COMPENSATION 102. 66

  102 .62 Primary and secondary liability ;                (2) In all proceedings upon claims for
  unchangeab le. In case of `liability for the          compensation against the state, the attorney
 increased compensation of increased death              general may appear on behalf of the state.
 benefits provided for by section 102 .57, or              (3) In any action to review an order or award
 included in section 102 .60, the liability of the      of the commission, and upon any appeal therein
 employer shall be primary and the liability of the     to the supreme court, the attorney-general shall
 insurance carrier shall be secondary,, In case         appear on behalf of the commission, whether any
 proceedings are had before the department for,         other party defendant shall be represented or
 the recovery of such increased compensation or         not, except that in actions broughtt by the state
 increased death benefits the department shall set      the governor shall appoint an attorney to appear
 forth in its award the amount and order of             on behalf of the commission .
 liability as herein provided . Execution shall not        Hi stor y: 1,975c,147
                                                            Alleged invalidity of (3) cannot be grounded on claimant's
 be issued against the insurance carrier- to satisfy    contention that this results in providing public counsel for a
 any,judgment covering such increased compen-           private party litigant, because nowhere does the statute make
 sation or increased death benefits until execution     the attorney general the claimant's attorney, but expressly
                                                        states he shall appear on behalf of the department Hunter v ..
 has first been issued against the employer and         ILHR D ept 64 W (2d) 97,218 N W (2d) 314.
 has been returned unsatisfied, as to any part
thereof. Any provision in any insurance policy         102 .65 Work injury supplemental benefit
undertaking to guarantee primary liability or, to      fund . (1) The moneys payable to the state
avoid secondary liability for such increased           treasury under ss. 102 .49 and 102 ..59, together
compensation or increased death benefits shall         withh all accrued interest, shall constitute a fund
be void . . In : case the employer shalll have been    to be known as the "Work Injury Supplemental
adjudged bankrupt; or, have made an assignment         Benefit Fund" .
for the benefit of creditors ; or if'-the employer,       (2) For proper administration of the moneys
other than an individual, have gone out of             available in the fund the department shall by
business or have been dissolved, or if a               order, set aside in the state treasury suitable
corporation, its charter have been forfeited or        reserves to carry to maturity the liability for
revoked, the insurer shall be liable for the           benefits under ss . 102,44, 102 .49, 102 59 and
payment of increased compensation and death            102 ..66. Such moneys shall be invested by the
benefits without judgment or execution against         investment board in securities authorized in s ..
the employer, but without altering the primary         206 .34.
liability of the employer .                               (3 ) If the balance in the fund on any June 30
                                                       exceeds 3 times the amount paid out of such fund
102.63 Refunds by state . Whenever t he                during the fiscal year ending on such date, the
depar tment shall certify to the state treasurer       commission shall by order direct an appropriate
that excess payment has been made under s .            proportional reduction of the payments into such
102 . 59 or under, s . 102 .49 (5) either because of   fund under ss . 102,49 and 102,59 so that the
mistake or otherwise , the state treasurer shall       balance in the fund will remain at 3 times the
within 5 days after receipt of such certificate        payments made in the preceding fiscal year, .
draw an order against the fund in the state              History. l9'75c, 147..
treasury into which such excess was paid,
reimbursing such payor of such excess payment           102 .66 Payment of certain barred claims .
together with interest actually earned thereon .        (1) In the event that there is an otherwise
                                                        meritorious claim for occupational disease
102. 64 Attorney general shall represent                barred solely by the statute of limitations under
state and commission. (1) A representative             s .. 10217 (4), the department may in lieu of
of the department of,justice designated by the         worker's compensation benefits direct payment
attorney general shall represent the state in all      from the work injury supplemental benefit fund
cases involving payment into or out of the state       under s . 101,65 such compensation and such
treasury under s .20.865(1) (d),102 .49,102 .59        medical expenses as would otherwise be due,
or 102.66 . : The department of justice as directed    based on the date of injury to or on behalf of the
by the attorney general may compromise the             injured employe, Such benefits shall be supple-
amount of such payments but such compromises           mental to the extent of compensation liability to
shall be subject to review by the department of        any disability or, medical benefits payable from
industry, labor and human relations . If the           any group insurance policy where the premium is
spouse of the deceased employe compromises his         paid in whole or in part by any employer . Death
or her claim for primary death benefit, the claim      benefits payable under any such group policy do
of the children of suchh employe under, s . 102 49     not limit the benefits payable under this section . .
shall be compromised on the same pro rata basis            (2) In the case of occupational disease,
subject to approval by the department .                appropriate benefits may be awarded from the
                         Electronically scanned images of the published statutes.

102.66 WORKER'S COMPENSATION                                                                        2182

work injury supplemental benefit fund where the (2) The department shall require that
status or existence of the employer or its payment s for costs a nd expense s of the fi sca l yea r
insu rance car rier cannot be determined or where beginning July 1, 1975, and for each fiscal year
there is otherwise no adequate remedy, subject to  thereafter,, shall be made on such dates as the
the limitations contained in sub . . (1) ,         department prescribes, by each licensed worker's
  Iiistory:1975c 147 ,                                compensation insurance carrier and employer
                                                      exempted under s . 102 28 (2) . Each such
102.75 ` Administrative expenses . (1) The payment shall be a sum equal to a proportionate               e
department shall assess upon and collect from share of the annual costs and expenses assessed
each licensed worker's compensation insurance upon each carrier and employer as estimated by
carrier and from each employer exempted under the department, The balance of assessments on
s . 102.28 (2) by special order , or by rule, the hand at the end of-each fiscal year shall be
proportion of, total costs and expenses fo r          c r edited ' and applied toward the costs and      d
administering his chapter for the cu r rent f iscal expenses incurred under thi s section during the
year plus any deficiencies in collections and subsequent fiscal yea ,T . Carriers and employers
anticipated costs from the p r evious fiscal ;year,,  whose estimated annual as ses s ment for the fisc al
that the total indemnity paid or payable under year is less than $100 shall make a single
this chapter by each such carrier and exempt payment of the estimated annual assessment on
employer in worker's compensation cases initial- or before December .31 of' the fiscal year in lien of
ly closed during the ` preceding calendar year, " the proportion payments ,
other than for increased , double or treble
compensation bore to the total indemnity paid in    (3) The department shall not assess the
cases closed the previous calendar year under payments under this section for any year that the
this chapter by all carriers and exempt assessment is not . approved by the joint
employer s other than for increased , double or co mmittee on finance :
treble compensation .                                   History:197Sc 39 . 1975c 1a'7s 54.

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