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  102 .01 WORKER ' S COMPENSAT ION                                                                                              2566




                                                      CHAPTER 102

                                              WORKER ' S COMPENSATION
                Definitions                                            102 32 Cont i nuing l iabil i ty; guarantee settlement, gross
  102. 03
  1             Condition s of liab i lity. .                                          payment .
 10204          Definition of employer                                 102 .33 Blanks and records
 102 . 05 . Election by employe r, withdrawal .                        102 35 Penalties .
 102. 06 ` . Joint liability, of employer and contractor ; loaned      102.37    ' Emp' loyers' records
                    employes .                                         10238       Reco rds of pay ments; reports thereon
 10207         Employe defined.                                        102 . 39 General o rders ; application of s tatutes.
 102 . . 0' 75 Electi on by sole proprietor or partner ,               10240       Reports not evidence in action s .
 10208    8    Administration for s tate employes.                     102 .42 Incidental compensation .
 102 11        Earnings, method of computation                         10243       Weekly compens at i on schedule
 102 12        Notice of injury, exception, laches                     102 44 Maximum limitations .
 102 13 Examination by physician , ch iropractor or podia-             10245       Benefits payable to minors ; how . paid
                    trist
                    ; competent witnesses; exclus i on of evi-        10246        Death benefit.
                   dence; autopsy                                     102 , 47 Death benefit, continued
 102. 14 Jurisdiction of department ; advisory committee .            102 , 475 Death benefit; law enforcement and correctional
 102 15        Rule s of procedure; transcripts                                        office rs, fire fighters , rescue squad members,
 102 16         Submission of disputes , contributions by                              national or s tate guard members and em er-
                   employes                                                            gency government perso nnel. .
 102 . 17      Procedure; notice of hearing; w i tnesses, contempt;   102 48 Death benefit, continued.
                   testimon y; medical examination .                  102 49 Additional death benefit for child ren , state fund .
 102 . . 175. Apportionment of liability . .                          10250 Burial expenses
 102: 18       Fi ndings, orders and awards                                   l
                                                                      10251 Dependents
 102 . 19      Alien dependents; payments through consular            10252 Permanent partial disability schedule
                   officers .                                         102 53 Multiple injury var i ations .
 102 .: 195    Employes confined i n institutions; payment of         102 . 55 Application of schedules .
                   benefits                                           102 555 Occupational deafness; definitions,
10220          Judgment o n award.                                    10256 D i sfigurement
10221          Payment of awards by municipalities .                  103 , 565 Toxic or hazardous expo s ure; med ical examina-
102 22         Penalty for delayed payment s                                           tion ; conditions of liabilit y.
102.. 2 .3     Judicial review                                        10257 Violati ons of safety prov i sions , penalt y .
10224          Remanding record                                       102 58 Decreased compensation .
10225          Appeal from judgment on award                          10259       Preexisting disability, indemnity .
10226          Fees and costs.                                        102 .60 Minor illegally employed, compensation
102 . 27       Claims and awards protected ; exceptions               10261       Indemnity under rehabilitation law .
102 28         Preference ` of claims ; worker's compensation         10262       Primary and s econdary liability; unchangeable
                   i n surance,_                                      10263       Refunds by state ,
102 , 29       Third party liability.                                 102 64       Attorney genera l sh all repre s ent s tate and
102 .30        Other insurance not affected; liability of insured                     commission
                   employer.                                          102 . 65 Work injury supplemental benefit fund . .
102. 31        Worker ' s compensation insurance; policy              10266      Payment of certain barred claims , .
                   regulations,.                                      102 75 ` Administ rative expenses.




102 .01 Definitions. (1) This chapter may be                          also caused personal injury entitling the em-
referred to as the "Worker's Compensation                             ploye to compensation therefor either for disa-
Act" and allowances, recoveries and liabilities                       bility of treatment .. "Injury" includes mental
under this chapter constitute "Worker's                               harm or emotional stress or strain without
Compensation" . .                                                     physical trauma, if it arises from exposure to
    (2) In this chapter:                                              conditions or circumstances beyond those com-
  (a) "Commission" means the labor andd in-                           mon to occupational or nonoccupational life .
dustry review commission ..                                              (d) "Municipality" includes county , city ,
  (am) "Compensation" means worker's                                  town , village, school district, sewer district,
compensation .                                                        drainage district and other public or quasi-
   (b) "Examiner" includes the deputy adminis-                        public corporations . .
trator of'the worker's compensation division of                          (e) "Primary compensation and death bene-
the department.                                                       fit" means compensation or indemnity for disa-
   (c) "Injury" means mental or physical harm                         bility or death benefit, other than increased,
to an employe caused by accident or disease,                          double or treble compensation or death benefit ..
and also means damage to oc destruction of                               (f) "Temporary help agency" means an em-
artificial members, dental appliances, teeth,                         ployer who places its employe with another
hearing aids and eyeglasses, but, in the case of                      employer who controls the employe's work
hearing aids or eyeglasses, only if such damage                       activities and compensates the first employer
of destruction resulted from accident which                           for the employe's services .




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 2567                                                                 WORKER'S COM PE N SATIO N 102 .03

   (g) "`Time of injury ", ". occurrence of injury",
        .                                                        rules of decision shall apply in all cases in
or " d ate of inju ry" mea n s the d at e of th e                determining whether; any employe under this
                                                                                            y
accident which caused the injury , or in the case                chapter , at the time of the injury , was perform-
of disease, the last day of work for the last                    ing service growing out of and incidental to his
employer whose employment caused disability ,                    employment . . For the purposes of ' this subsec-
except that in case of occupational deafness the                 tion no differentiation shall be made among any
defini tion in s 102 555 controls .                              of the classes of employers enumerated in s .
   History : 1975 c 147 ss 7 to 13, 54 ; 1975 c 200 ; 1979 c .   102 04 or of employes enumerated ins 102 07 ;
89, 278; 1981 c 92 ; 1983 a 98, 189 .                            and no statutes , ordinances , or administrative
   In occupational disease claim, examiner may find date of
injury to be other than last day of work . Royal-Globe Ins ..
                                            '                    regulations otherwise applicable to any em-
Cc v DIL,HR, 82 W (2d) 90; 260 NW (2d) 670 .                     ployes enumerated in s . 102 .. 0 ' 7 shall be
                                                                 controlling .
102.03 Conditions of liability . (1) Liability                      (d) Where the injury is not intentionally self-
under this chapter' shall exist against an , em-                 inflicted .
ployer' .    where the following conditions                         (e) Where the accident or disease causing
concur :                                                         injury arises out of his employment
   (a) Where the employe sustains an injury ,                                                 e
                                                                    (f) Every employe whose employment re-
   (b) Where, at the time of ' the injury , both the             quires him to travel shall be deemed to be
employer and employe are subject to the provi-                   performing service growing out of and inciden-
sions of this chapter . :                                                                                 e
                                                                 tal to his employment at all times while on a
                                                ,
    (c) 1 . Where,, at the time of the injury , the              trip, except when engaged in a deviation for a
 employe is performing service growi ng out of                   private or personal purpose . Acts reasonably
                                                                                                    s
 and incidental t o his or her employment . Every                necessary for living or incidental thereto shall
 employe going to and from his or her employ-                    not be regarded as such a deviation . . . Any
 ment in the ordinary and usual way , while on                   accident or disease arising out of a hazard of
 the premises of the employee ;' or while in the                 such service shall be deemed to arise out of his
 immediate vicinity thereof ' if'the injury results              employment .
 from an occurrence on the premises, shall be                       (g) Members of the state legislature are cov-
 deemed to be performing service growing out of                  ered by this chapter , when they are engaged in
 and incidental to the employment ; so shall any                 performing their duties as. state legislators
 employe going between an employer's desig-                      including:
 nated packing lot and the. .e employer' s work                          .
                                                                     1 While performing services growing out of
 premises while on a direct route and in the                     and incidental to there function as legislators ;
 ordinary and usual way; and so shall any fire                      2 . While performing their official duties as
 fighter or municipal utility employe responding                 members of' committees or , other official bodies
 to a call for assistance outside the limits of his or           created by the legislature ;
her city or village, unless that response is in                    3 : While traveling to and from the state
violation of' law . An employe is not performing                 capital to perform their duties as legislators ;
service growing out of and incidental to his or                  and•
her employment while going to or from employ-                       4 While traveling to and from any place to
ment in a private or group or employer-                          perform services growing out of and incidental
sponsored car pool , van pool , commuter bus                     to their function as legislators, regardless of
service or other- ride-sharing program in which                  where tihe, trip originated, and including acts
the employe participates voluntarily and the
                                          y                      reasonably necessary for living but excluding
sole purpose of which is the mass transporta-                    any deviations for private or- personal purposes
tion of ' employes to and from employment . The                  except that acts reasonably necessary fox living
premises of the employer shall be deemed to                      are not deviations ..'
include also the premises of any other person on                    (2) Where such conditions exist the right to
whose premises service is being performed ,                      the recovery of compensation under this chap-
                                                                              y
    2. To enhance the morale and effic i ency of                 ter shall be the exclusive remedy against the
public employes in this state and attract quali-                 employer, any other emplo y e of the same em-
f ied pe rsonnel to the public service, it is the                ployer and the worker's compensation insur-
policy of the state that the benefits of this                    ance carrier . This section does not limit the
chapter shall extend and be granted to employes                  right of' an employe to bring action against any
in the service of the state or of any municipality               coemploye for an assault- intended to cause
therein on the same basis; in the same manner ,                  bodily harm, or against a coemploye for negli-
under the same conditions , and with like right                  gent operation of ' a motor vehicle not owned or
of recovery as in the case of employes of per-                   leased by the employee, or against a coemploye
sons , fi rms or private corporations . Accord-                  of the same employer to the extent that there
ingly, the same considerations, standards, and                   would be liability of 'a governmental unit to pay




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102 .03 WORKER'S COMPENSATI ON                                                                                                         2568

                                                                           The department cann o t d ivid e li abili ty f or co mpen sa tio n
j udgments against employes under a collective                        among successive employer s f r the effect s of successi ve inju-
                                                                                                          o
bargaining agreement or a local ordinance .                           ries in the absence of e viden ce to sus ta in a finding t hat th e
                                                                      disability ar o se fro  m s uccessive injuri es ; it can neith er assess
      (4) The right to compensation and the                           all the l iability , agains t o ne of seve ral empl oy er s nor divide
 amount of ' the compensation shall in all cases be                   l iab i lity equally among each of seve ra l employ e rs where there
                                                                      is no evidence to support a finding that the inj ury or inj u ries
determined in acco r dance with the provisions of                     contributed to the disability in that manner . S em o ns Depart -
 law in effect as of the date of ' the injury except as               ment Store v ILHR Dept 50 W (2d ) 51 8, 1 8 4 NW (2d) 871
 to employes whose rate of compensation is                                 While su scept ibility to fu rther i njury does no t necess ari y  l
                                                                      es tabli sh a permanent disability under the "a s i s" d octrine ,
 changed as provided in ss , 102 43 ('7) and 102,44                   an employe ' s predisposition to inj ury d oes n o          t relie v e a
 ( 1 ) and ( 5) :                                                     present employe r from liability for workme n 's compensat i on
                                                                      benefits if the employe becomes i n j u red due. to his empl oy-
      (5) Ifan employe, while work ing outside the                    ment, even though the inj ur y may n ot have be en such as to
 territorial limits of this state, suffers an injury                  have cau sed dis abil i ty i n a n o rmal individu al Semo ns D e-
                                                                      8 ~ ;tment Store v . ILHR Dept 50 W (2d ) 51 8, 1 84 NW ( 2d)
 on account of which the employe, or in the
 event of ' the employe's death, his or her depen-                                                                  n
                                                                          Where a salesman star ts o n a t rip, e ven if he dev iates t o
 dents, would have been entitled to the benefits                      the extent of spending several hours in a t ave rn, and is killed
                                                                                                           s
                                                                      on his ordina ry route home , his e tate is entitled to compen-
 provided by th is chapter had such injury Oc-                        sation. Lager v ILHR Dept .. 50 W (2d ) 6 51 , 8 5 1 NW (2d)
 curred within this state, such employ; or in the                     300 .
 event of the employe ' s death resulting f r om                          A wife cannot as sert a separ ate and ind epende nt c ause of
                                                                      action against her hu sband 's empl oyer for d amage s becau se
 such injury ; the dependents of the employe,                         of loss of conso rtium due to inj urie s s ustained b y the hus-
 shall be entitled to the benefits provided by this                                                                                c
                                                                      band in an i ndustrial accident covered b y w o rkm e n 's o m-
                                                                      pen s ation Ros encran s v . W is.. Telephone C o 54 W (2d ) 124,
 chapter , if ' at the time of ' such injury any of the               1 94 N W (2d) 643. .
 following applies:                                                       Finding of commiss ion that de c eased was performing ser-
                                                                      vice sustained even though he was killed while walkin g on a
   (a) His ox her employment is principally                           street in Milwaukee at 3 in the morning and tes ts showed he
localized in this state.                                              was intoxicated , Phill i p s v ILHR Dept 5 6 W ( 2d ) 5 69 , 202
   (b) He or she is working under a contract of                       NW (2d) 249
                                                                         An employe cannot bring a 3rd party act io n aga inst a
hire made in this state in employment not                             member of the employing .g partnership. C andler v . H ardware
principally localized in any state .                                  Dealers Mu E. Ins Co 57 W (2d) 8 5, 203 NW (2d) 6 59 ,
   (c) He or she is working under a contract                              The "exclusive remedy " p rovision in (2 ) d oe s n o t prev ent
                                                                      an action for per son al injuries 'against a s upervisory c o -
made in this state in employment principally                          emplo ye on the basis of negligence by common law stan-
                                                                                     e
localized in another state whose worker's com-                        dards. It makes no difference that the co-empl oye is be in g
                                                                      bro ught in by means of a 3rd-par ty c omplaint .. Lampada v .
pensation law is not applicable to that person's                      State Sand & Gravel Co 5 8 W ( 2d ) 31 5 , 206 NW (2d) 1 8..    3
employer                                                                  A salesman, empl oyed on a part-salary a nd commission
   (d) He or she is working under ' a contract of                     basis, whose duty and only emp loyme nt was to t ravel e ach
                                                                      day from his home in the city , servicing and solici tin g orders
hire made in this state for ' employment outside                      for the sale of pizzas within a presc ribed territory commenc-
the United States .                                                   ing bne mile outside the city, using a delivery truck furn ish ed
    History: 1971 c .. 148, 307, 324 ; 197 5 c 147 ss 15, 54 ; 1977   by h i s employer whose office was 193 miles aw ay and to
c . 195, 272, 418 ; 1979 c 278 ; 1981 c 92; 1983 a 98 „               which he wa s not required t o r eport, was perform i ng services
                                                                      incidental to his emplo yment when he s ustaine d a back inju ry
    Committee Note, 1971: the Wisconsin Supreme Court in
                              T                                       in a fall on the icy drivewa y in go in g from his ho m e t o his
the case of Halama v . ILHR Department, 48 Wis (2d) 328               delivery truck, which he had intended t o get into and start fo r
(1970), suggested that consideration be given to extending            his fi rst call. Black Rive r Dai ry Products, Inc v ILHR D ept
                                                                                                                       c
coverage to an employe who is injured while going to or from          58 W (2d) 5 37, 207 NW (2d) 65 .
work on a" direct route between two portions of the em-
      k                                                                     Since the decedent' s employment st atus for services ren-
ployer's `premses; i e, parking lot and work premises , [Bill         dered in this state was sub s tantial and n o t transit o ry, and the
371-A]                                                                  elationship was not interrupted by ce ssation of work for the
                                                                      r
                                                       .
    In a proceeding on a claim for death benefits of ' an office
                                                                      Wiscon sin employer, the depa rtment er red when it predi-
worker and receptionist caused by multiple stab wounds in-                                                                                 i
                                                                      cated, its denial of benefi ts on the employer 'ss co nflicting te s t -
Meted by an unknown assailant upon the employe at the                 mony that during the year in whi ch the employe met hi s
close of her working day while she alone remained in the of-          death his working time in Wisconsin had been reduced to
fice portion of a factory building which had been vacated by
                                                                      10% . Simonton v. ILHR Dept 6 2 W ( 2d) 112 ;2 14 NW ( 2d )
all other factory and office employes, the ILHR Department
                                                                      302
correctly; found that the accident arose out of the deceased's
employment, since the isolated work environment in which                    Only if the "fortuitous event unexpe c ted and unfor eseen "
the deceased worked constituted a zone of special danger,             can be sa i d to be so out of the ordinary from the cou n tl ess
and hence the positionaL tisk doctrine was applicable . Allied        emotional strains and differences that e mployes enc o unter
Mfg ., Inc v . ILHR Dept 45 W (2d) 563, 173 NW (2d) 690 . .                                                                    i
                                                                      daily without s er ious mental injury will l i ab i lt y unde r the
                                                                      workmen's compen s ati on act be found, Sc hoo l Di s t. N o I v
    The holding in Brown v Ind : Comm, 9 W (2d) 555, that
causation legally sufficient to support compensation does not         ILHR Dep t. 6 2 W (2d) 370,215 N W (2d) 373 .
require a showing of strain or exertion greater than that no t -            Under (1) ( f), no ,pmpose of the empl o yer w as i n a ny way
mally required by the applicant's wo rk efforts, was not in-          se ved by the extended westward h ighway testing related to
                                                                          ,
tended to preclude a doctor ; when determining medical cau-           either visiting a boyfriend or goi ng on a hunting trip Hunte r
sation,from considering whether the employe was engaged in            v ILHR . Dept 64 W (2d) 97, 21 8 NW (2d) 314 .
his usual work at the, time of injury, although the doctor                  Under the 4-element test consistentl y applied b y the
should not automatically conclude each time one is injured            supreme court in deciding whethe r a w o rkman was a loa ned
while performing a task which he previously performed on a            or special empl o ye, the lst element, actual or implied c o nsent
usual or regular basis that such injury was caused by preexist,
       l                                                              to work for the special employer , is negated here b y the exis-
ing condition rather than by his employment . Pitsch v .              tence of a work order providing that plaintiff would no t be
ILHR Dept 47 W (2d) 55, 176 NW (2d) 390                               e mployed by the s peci al empl oyer for a period o f 90 days,
     Where a herniated disc was diagnosed within a few days           and by the absence of any other evidence indicatin g co nsen t;
af'tei the claimed injury, the evidence d id not justify ILHR in      hence , pl aint iff was a business invi tee and n o t an employe at
finding that the employe did not meet his burden of proof ' .    .    the time of the accident Nelson v L. & J Pr e ss C orp . 6 5 W
Erickson v ILHR Dept. . 49 W (2d) 114, 181 NW (2d) 495                (2d)!770, 223 NW .(2d) 607. . . . - _




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 2569                                                                                 WOR KE R 'S COMPENSATION 102.04

       N o ntrauma tically cau se d ment al inj ury is co mpensa ble             and other public or quasi-public corporations
 o n ly i f res ulti n g from a situa tio n of grea t e r d im en s ions th an
 the d a y-t o -d ay mental stresses a nd te nsio n s whi ch all em-             therein .
 pl oyes must experience . Sw iss C o l ony, In cc v DILHR, 7 2 W                   (b)1 Every person who usually employs 3 or
 (2d) 46, 240 NW (2d) 12 8 .
       Provi de r of medical services t o empl oye d oe s n o t have             more employes , whether in one or more trades ,
 c aus e o f actio n ag ain st e ployer un de r wo rk e r 'sco mpensa -
                                 m                                               businesses, professions or occupations, and
 ti o n act where empl oyer deni ed liability a nd c ompro mis ed
 employe's claim L a Cro ss e Luthera n Hos pit al v Olden -
                                                                                 whether in one or more locations .
 burg 73 W (2d ) 71, 241 NW ( 2d ) 875                                              2 . Every person who usually employs less
       Doctrines of required trave l, dual pu r p ose, p er son al co m -        than 3 employer , provided the person has paid
 fort , and s pecia l m issi o n di scusse d , Sa ue rwein v . DILHR , 82
 W ( 2d) 294, 26 2 NW (2d) 12 6 .                                                wages of '$500 or more in any calendar quarter
      Personal comfort doctrine d i d n o t apply whe r e e mploy e              for services performed in this state .. Such em-
 was inj ur ed nei ther o n em ployer's pre mises nor duri n g s pe-             ployer shall become subject as of the first day of
                                                            i
 cific wo r k ing hours . D e ni al o f ben efit s for nju ry received
 whil e e ating lunc h off employer's premises was not denia l of                the calendar year next succeeding such quarter .
 equ a l p rot ectio n . M az m o lejo v ILHR Dept. 92 W ( 2d ) 674,                3, This paragraph shall not apply to farmers
 2 85 NW ( 2d ) 6 50 ( 1979 )'.
      Pres umpt ion i n favor of traveling empl oy er d o es not                 or farm labor.
 m o dify requirements for empl oyer liabil ity.. Gora nson v                       (c) Every person engaged in farming who on
 DILHR, 9 4 W (2d) 537,289 NW (2d) 2 0 ( 1 98 0)    7
      Sub (2 ) does not uncon s ti tuti onally d epr ive th ird par ry           any 20 consecutive or nonconsecutive days dur-
 tort-feasor of p rope rty by barring contribution acti o n                      ing a calendar ` year employs 6 or more em-
 again s t n egl igent e mploy er . Minder v , Acme-Clevel a nd
 C o r p. 95 W ( 2d ) 173, 2 90 NW (2d) 27 6 ( 19 8 0)
                                                                                 ployes , whether in one or more locations : The
     Use of p ark i ng lo bs pr erequi site for cove ra ge under ( 1 )                                           l
                                                                                 provisions of this chapter shall apply to such
 (c) I Jaeger Baking Co . v . K i etschm ann , 9 6 W ( 2d ) 590, 292             employer' 10 days after the twentieth such day .
 NW (2d) 622 (1980)
     See n ote to art . , sec. l ; citing Sta te ex ee l . Bri ggs & Strat-
                           I                                                        (d) Every joint venture electing under s .
 to n v N o ll , 100 W (2d) 650, 3 02 NW ( 2d) 4 87 ( 198 1 ).                   102 .28 (2) (a) to be an employer .
    Sub. (2) is cons titutional: . Oliver v Travelers In s Co 10 3                    (e) Every person to whom pare (a) to (d) are
 W ;(2d) 644, 309 NW (2 d) 383 (Ct . App .1 98 1 ).
    Em pl oy er wh o provi ded negl igent medical ca re to em-                   not applicable, who has any person in service
 ploye injur ed o n j o b was n o t subject to to rt liability for mal-          under any contract of hire, express or implied ,
 prac t ice . " Dual capacity" the o ry dis cu ssed . Jenkin s v,
 Sabourin, 104 W (2d)309,311 N W (2d) 600 (1981)                                 oral or written, and who, at or prior to the time
   Repeated work - re la ted back tr a um a wa s c ompen sa b le as              of ' the injury to the employe for which compen-
occup ati ona l disease. Shelby Mut . In s C o . v.. DILHR, 109
W ( 2d ) 655 , 32 7 NW ( 2d) 17 8 ( Ct . App . . 19 82 ) .                       sation may be claimed , shall , as provided in s .
   Inj ury due to h o rsepl ay was compens able , Positio n al ris k              102 .. 05 , have elected to become subject to the
doctrine discussed.. Brun s Volk s w agen , In c. v DILHR , 110                  provisions of this chapter, and who shall not,
W (2 d ) 31 9, 3 28 NW (2d) 886 (Ct, App 19 8 2)
    " Horseplay" rule barred reco very whe re decedent jok-                      prior to such accident, have effected a with-
ingly placed head i nsid e mold comp re ssio n machin e and acci-                drawal of such election . .
dentally s t arted it Nig b or v : DILHR , 115 W (2d ) 606, 340
NW (2d) 91 8 (C t , App ] 9 83) .                                                     (2) Except with respect to a partner electing
       Where emp loye wh o witnessed inju ry to another wa s ac-                 under s , 1,02 075, members of partnerships shall
tive wo rk-related pa rtici pant in tra gedy, re ult i ng non-
                                                          s                      not be , counted as employes . Except as pro-
traumatic p sy chi c injury w as comp en sa ble . Interna tion a l
Harves ter v . LIRC , 116 W (2d) 298, 341 NW (2d) 721 (Ct                        vided in s 102 07 (5) (a) , a person under con-
App . 19 83 )                                                                    tract of hire for the performance of any service
       The exclusi ve remed y pro visi o n doe s n ot bar a s hip owne r
fro m a sserting a r ig ht to indemnific ation against the em-                   for any employer subject to this section (1961)   .
ploye r of th e injured man even t h oug h he has been paid com-                 shall not constitute an employer of any other
pensat i on. Bagro wski v Ameri can Export ds brant sen Lines ,
                                                                                 person with respect to such service and such
Inc . 440 . F ( 2d ) 502.
       Under e i ther M inneso ta or Wi s consin law , airline which             other person shall , with respect to such service ,
pa id compensa t io n b e nefits t o s tewa rdess unde r laws of M in-           be deemed to be an employe only of such
neso ta wa s not liable to U . S , on th eo ry o f indemnity or con-
t ribution for any reco ve ry by stewa rdess in he r tort action                 employer for- whom the service is being
a gai nst U , S for same injury whi ch occ urr ed in Wis co n s in.
               S                                                                 performed .
Herman v . U S 382 . F Supp , 8 1 8 .
     ' Third p arty was required to pa y 95% of d ama ges even                       (3) As used in this chapter "farming" means
thou gh o nl y 25 % negligent because employer wa s s hielded                    the operation of' faxm premises owned or rented
by (2) Schuld ies v , Service M ach Co . Inc . 44 8 F' Supp . 1 196
(1978),                                                                          by the operator' . . " Fa u n premises " means areas
     Pl aint iff' w as s p ec ial empl o ye of third-party defendant             used for ope r ations herein set forth , but does
and th ird-pa rt y action was barred by exc lusi vity provi s ions               not include other areas , greenhouses or other
of this sect i on Simmo n s v . Atlas Vac Mach . C o 493 F ' Supp .
1082 (1980) .                                                                    similar structures unless used p r incipally for the
     Althou g h e mploye r of i nju red employe was fo und to be at              production of food and farm plants , "Farmer"
fa ult , manufacturer al so found to be a t fault was not entitled
to c ontributi on fr om employer Ladwig v Ermanco Inc . 504                      means any person engaged in farming as de-
F Supp 12 29 ( 198 1 ).                                                          fined, Operation of fa rm premises shall be
                                                                                 deemed to be the planting and cultivating of the
102 .04 . . Definition of employer . (1) The fol-                                soil thereof; the raising and harvesting of agri-
lowing shall constitute employers subject to the                                 cultural, horticultural or arboricultural crops
provisions of this chapter, within the meaning                                   thereon ; the raising, breeding, tending, training
of s' 102 ..03 :                                                                 and management of livestock, bees , poultry,
   (a) The state, each, county, city, town, village,                             fur-bearing animals , wildlife or aquatic life , or
school district, sewer district, drainage district                               their products, thereon ; the processing, drying,




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 102 .04 WORKER'S COMPENSATIO N                                                                                             2570

 packing, packaging, freezing, grading , storing ,                 drawal, providing he has not employed 6 or
 delivering to storage, to market or to a carrier                  more employes as defined by s . 102 07 (5) on 20
 for transportation to market , distributing di-                                          g
                                                                   or more days during the current or previous
 rectly to consumers or marketing any of the                       calendar year . Such withdrawal shall be effec-
above-named commodities, substantially all of                      tive 30 : days after the date of receipt by the
which have been planted or produced thereon ;                      department, or at such later date as is specified
the clearing of such premises and the salvaging                    in the notice . . Such person may again become
of timber and management and use of wood lots                      subject to this chapter as provided by s. 102 04
thereon, but not including logging, lumbering                      (1) (c) and (e) .
or wood cutting operations unless conducted as                        History : . 1983 a. 98 s 31
an accessory to other farming operations ; the .
managing , conserving, improving and main-                         902 .06. Joint liability of employer and con-d
taining of such premises or the tools,, equipment                  tractor ; loaned employes. An employer shall
and improvements thereon and the exchange of                       be liable for compensation to an employe of a
lab or , servi ces or th e excha n ge of u se of equip-            contracto r or subcontracto r under the em-
ment with other farmers in pursuing such activi-                   ployer who is not subject to this chapter , or who
                                 t
ties . The operation for not to exceed 30 days                     has not complied with the conditions of s .
during any calendar year , by any pe r son deriv-                  102 28 (2) in any case where such employer
ing the person's principal income from farming,                    would have been liable for compensation if ' such
of farm machinery in performing farming ser-                       employe had been working directly for the
vices for other farmers for a consideration other                  employer , including also work in the erection ,
than exchange of labor shall be deemed farm-                       alteration , repair or demolition of improve-
ing ,   Operation of such premises shall be                        ments or of fixtures upon premises of such
deemed to include also any..y other activities                    employer which are used or to be used in the
commonly considered to be farming whether   g                      operations of such employer . The contractor or
conducted on or off such premises by the farm                     subcontractor (if subject to this chapter) shall
operator.                                                         also be liable for such compensation, but the
   History : 1975 c . 199 ; 19.83 a 98.                           employe shall not recover compensation for the
   When an employe simultaneously perfor ms service for 2         same injury from more than one party , In the
employers under their joint control and the service for each is
the same or closely related, both employers are liable for        same manner, under the same conditions , and
workmen's compensation.. Insurance Cc of N A v . ILHR             with like right of recovery , as in the case of an
Dept.. 45 W (2d) 361, 173 NW (2d) 192 .
                                                                  employe of a contractor or subcontractor, de-
                                                                  scribed above, an employer shall also be liable
 102 . 05 Election by employer, withdrawal . (1)                  for compensation to an employe who has been
 An employer who has had no employe at any                        loaned by the employer to another employer .
 time within a continuous period of'2 years shall                 The employer who becomes liable for and pays
 be deemed to have effected withdrawal, which                     such compensation may recover the same from
 shall be effective on the last day of`such period .              such contractor, subcontractor or other em-
An employer who has not usually employed 3                        ployer for whom the employe was working at
employes and who has not paid wages of'at least                   the time of th e inju ry if s uch contr act or, s ub -
$500 for employment in this state in any calen-                   contractor or other employer was an employer
dar quarter in a calendar year may file a with-                   as defined ins,: 102 ., 04„
drawal notice with the department, which with-                         History: 1975 c 147 s 54; 1975 c 199
drawal shall take effect 30 days after the date of                    "Contractor under" is one who regularly furnishes to a
                                                                  principal employer materials or serviceswhich are integrally
such filing or at such later date as is specified in              related to the finished product or service provided by that
the notice                                                        p r incipal employer . Green Bay Packaging, Inc v . DILHR,
                                                                  72 W (2d) 26, 240 NW (2d) 422 .
    (2) Any employer who shall enter into a                             Franchisee held to be "contractor unde r " franchisor
contract for the insurance of compensation, or                    within meaning of this section . Maryland Cas Cc v .
against liability therefor, shall be deemed                       DILHR, 77 W (2d) 472,253 NW (2d) 228 . .
                                                                        Employe who was loaned from company which provided
thereby to have elected to accept the provisions                  temporary help to other companies became special employe
of this chapter ; and such election shall include                 of borrowing company . Meka v . Falk Corp 102 W, (2d) 148,
                                                                  306 NW (2d) 65 (1981).
farm laborers, domestic servants and employes                         Liability of principal employer for injuries to employer of
not in the course of"a trade, business, profession                his contractors or subcontractors . 1977 WLR 185
or occupation of the employer if such intent is
shown by the terms of'the policy . . Such election                102 . 07 Employe defined . "Employe" as used
shall remainn in force until withdrawn in the                     in this chapterr means :
mannerr provided in sub . (1) .                                      (1) Every person, including all officials, in the
   (3) Any person engaged in farming who has                      service of the state, or of any municipality
become subject to this chapter may withdraw                       therein whether elected or under any appoint-
by filing with the department a notice of with-                   ment, or contract of hire, express or implied,




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 2571                                                           WORKER' S COMPENSATION 102 .07

 and whether a 'resident or employed or injured             si sters-in-law of such lineal ancestors or lineal
 within or without the state . The state and any            descendants . .
 municipality may require a bond from a con-                    (6) Every person selling or distributing news-
 tractor to protect it against compensation to              papers or magazines on the street of fiom house
 employes of such contractor or employes of 'a              to house . Such a person shall be deemed an
 subcontractor under him ..                                 employe of each independent news agency
     (tm) Any pe r son participating in a commu-            which is subject to this chapter , or (in the
                      e
 ni ty work experience pr'ogr'am under s 46 .: 22 (4)       absence of such agencies) of each publisher ' s (or
 (n) or 49 51 (2) (a) 15 .                                  other intermediate) selling agency which is sub-
     (2) Any peace officer shall be considered an           ject to 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 tho s e             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 com-
 disability , nor interfere with any pension funds ,        pany or fire department organized under ch ,
 nor prevent payment to teachers, policemen or              213 or any legally organized rescue squad shall
 firemen therefrom                                          be deemed an employe of such company , de-
      (4) Every person in the service of another           partment or squad . Every such member , while
 under any contract o f hire, express of implied,           serving as an auxiliary policeman at an emer-
 all helpers and assistants of employes , whether          gency, shall also be deemed an employe of said
 paid by the employer or employe, if employed
              e                                            company, department or squad .. If such com-
 with the knowledge, actual or constructive , of           pany, department or squad has not insured its
 the employer, including minors (who shall ha ve           liability for compensation to its employes, the
 the same power of contracting a s adult em-
           e                                               municipality or county within which such com-
 ployes) , but not including (a) domestic servants ,       pany, department or squad was organizedshall
 (b) any person whose employment is not in the             be liable for such compensation :
 course of a trade , business , profession or occu-            (8) Every independent contractor who does
                s
 pation of his employer , unless as to any of said    d    not maintain a separate business and who does
 classes , such employer has elected to include            not hold himself out to and render service to the
 them Item (b) shall not operate to exclude an             public , provided he is not himself an employer
 employe whose employment is in the course of              subject to this chapter or has not complied with
 any trade, business , profession or occupation of         the conditions - of s . 102 .28 (2), shall for the
 his.s employer , however casual , unusual , desul-        purpose of this chapter be an employe of any
 tory or isolated any such trade, business,_ pro-          employer under this chapte r for whom he is
 fes sion or occupation may be .                           performing service i n the course of the trade ,
     (5) For the purpose of determini ng the               business , profession or occupation of such em-
 number, of employes to be counted ; under s .             ployer at the time of the injury .
 102,04,(1) (c) , but for no other purpose , the              (9) Members of the national and state
following definitions shall apply :                        guards, when on state active duty under direc-
     (a) Farmers o rr their' errsployes working on an
                                    ,                      tion of appropriate authority, but only in case
exchange basis shall not be deemed employes of             federal: laws, rules or regulations provide no  e
a farmer to whom their labor is furnished in               benefits substantially equivalent to those pro-
exchange . .                                               vided in this chapter :
     (b) The parents, spouse, child , brother , sister ,      (10) Further to effectuate the policy of the
son-in-law,       daughter-in-law ; . father-in-law,       state that the benefits of this chapter shall
mother-in-law, brother-in-law , or sister-in-law           extend and be granted to employes in the service
of ' a farmer shall not be deemed his employes             of the state, or of any municipality therein on
     (c) A shareholder-employe of 'a family farm           the same basis,     the same manner , under the
corporation shall ' be deemed a "farmer" for               same conditions, and with like right of recovery
purposes of this chapter and shall not be                  as in the case of employes of persons , firms or
deemed an employe of' a farmer A "family                   private corporations, any question whether any
farm ` corporation " means a corporation en-               person is an employe under this chapter shall be
gaged` in farming all of " whose shareholders are     e    governed by and determined under the same
related as lineal ancestors or lineal descendants ,        standards, considerations , and rules of decision
or as spouses ;, brothers, sisters, uncles, aunts ,        in all cases under subs. (1) to (9) . Any statutes,,
cousins, sons-in- law, daughters-in-law, fathers-          ordinances, or- administrative regulations which
in-law, mothers-in-law, brothers-in-law or                 may be otherwise applicable to the classes of




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 102.07 WORKER'S COMPENSATION                                                                                      25 ' 72

 employes enumerated in . sub . : (1) shall not be                   stantially full-time basis may elect to be an
 controlling in deciding whether any person is an                    employe under this chapter by procuring insur-
 employe for the. purposes of this chapter,
              r                                                      ance against injury sustained in the pursuit of
    (11) The department may by rule prescribe                        that vocation, profession or business . . This
 classes of volunteer workers who may, at the                        coverage may be obtained by endorsement on
 election of the person - for whom the service is
         n                                                           an existing policy of worker's compensation
 being performed, be deemed to be employes for-                      insurance or by issuance of'a separate policy to
 the . purposes, of' thi s ch apter . Election sha ll be             the sole proprietor or partner on the same basis
 by endorsement upon the worker ' s compensa-                        as any other policy of 'worker's compensation
 tion insurance policy with written notice to the                    insurance,
 department . In the case of an employer exempt                         (2) For .the purpose of any insurance policy
 from insuring liability, election shall be by writ-                 other than. a worker's compensation insurance
 ten notice to the department . The department                       policy, no sole proprietor or partner may be
 shall by rule prescribe the means and manner in                     considered eligible for worker's compensation
 which notice of " election by the employer is to be                 benefits unless he or she elected to be an em-
 provided to the volunteer workers                                   ploye under, this section ..
  (12) A student in a vocational , technical and                        (3) Any sole proprietor or partner who
adult education district while ; as a part of a                      elected to be an employe under this section may
training program, he or she is engaged in per-                       withdraw that election upon 30 days' prior
forming services fbr which a school organized                        written notice to the insurance carrier and the
under ch . 38 collects a Fee or is engaged in                        Wisconsin compensation rating bureau,
producing a product sold by such a school is an                        History : 1983 a . 98.
employe of" that school
   (13) A child performing uncompensated                              102.08 Administration for state ' employes .
community service work as a result of an infor-                      The department of administration has responsi-
mal disposition under s . 48 245 , a consent de-                      bility for the timely delivery of benefits payable
cree under s 48 32 or an order under s . 48, 34 (9)                   under this chapter to employer of'the state and
is an employe of the county in which the court                        their dependents and other functions of the
ordering the community service work is located .                     state as an employer under this chapter . The
No compensation may be paid to ' that employe                        department of'administration may delegate this
for temporary disability during the healing pe-                      authority to employing. departments and agen-
riod, This sub section does not a pply a ft e r                      cies and require such reports as it deems neces-
December 31, 1985,                                                   sary to accomplish this purpose. The depart-
   (14), An adult performing uncompensated                           ment ' of administration or its delegated
community , service work under s 971 38 is an                        authorities shall file with the department of
employe of' the county in which the court 'order-                    industry, labor and human relations the reports
ing the c ommunity service work is loca ted . . No                   that are required of all employers The depart-
compensation may be paid to that employe for                         ment of industry, labor and human relations
temporary disability during the healing period .                     shall monitor the delivery of benefits to state
This subsection does not apply after December                        employer and their dependents and shall con-
31, 1985'                                                            sult with and advise the department of adminis-
   (15) A sole proprietor or partner' electing                       tration in the manner and at the times necessary
under s . 1 '02 : 075 is an employe .                                to ensure prompt and proper delivery .
     History: 1975 c. 147 s: 54 ;'l 975 a 224 ; 197 7 c 29; 1979 c     His tory : ' 1981 c 20 .
                     .
278; 1981 c, 325 ; 1983 a, 27, 98 .
     Where the claimant, owner of a truck, working exclusively
for a trucking company under a lease agreement, fell and sus-        102 . 11 Earnings , method of computation. (1)
tained,inju t ies in the company's truck parking area while in       The average weekly earnings for temporary
the process of r epairing his fruck, the department properly
found that the claimant; although an independent contrac-            disability, permanent totall disability or death
torwas 'at the time of his injury a statutory employe of the
;                                                                    benefits for- injury in each calendar year on or
company under sub . (8) Employers , Mut. L Ins Co v..                after January 1, 1982, shall be taken at not less
ILHR Dept ,' SYW (2d) 515, 190 NW (2d) 907 .
     There: was no .employment when a member of an organi-           than $30 nor more than the wage rate which
zation borrowed a refrigerated truck from a packing com-             results in a maximum compensation rate of
pany for use at a picnic and was injured when returning it .
Kess Packing Co v Kottwitz, 61 W (2d) 175, 212 NW (2d)               100% of the state's average weekly earnings as
97 .                                                                 determined under s 108,05 as of'June 30 of the
   Members of state boards, committees, commissions or
councils, who are compensated by per diem or by actual and           previous ,year The average weekly earnings for
necessary expense are covered employes , 58 Atty.. Gen . 10 ,        permanent partial disability for injuries on or
                                                                     after January 1,_ 1982, shall be taken at not, less
102 .075 Election by sole proprietor or part-                        than $30 nor moree than $135, resulting in a
ner . (1) Any sole proprietor or partner engaged                     weekly maximum compensation rate of $90
in a vocation , profession or business on a sub-                     The average weekly earnings for permanent




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2573                                                     WORKER ' S COMPENSATION 102 .11

partial disability for injuries occurring on or      employment in which earnings can be deter-
after January 1 , 1984, shall be taken at not less   mined under the methods set out in par (a) or
than $30 not more than $150, resulting in a          (b)
maximum compensation rate of' $100 .. The               (d) Except in situations where par .. (b) ap-
average weekly earnings f 'or permanent partial      plies , average weekly earnings shall in no case
disability for injuries occurring on or after        be less than actual average earnings of the
January 1 , 1985 , shall be taken at not less than   employe for the calendar weeks during the year
 $30 nor more than $162 , resulting in a maxi-       before his or her injury within which the em-
mum compensation rate of $108 . Between such         ploye has been employed in the business, in the
limits the average weekly earnings shall be          kind of employment and for the employer f 'or '
determined as follows :                              whom the employe worked when injured Cal-
   (a) Daily earnings shall mean the daily earn-     endar weeks within which no work was per-
ings of the employe at the time of ' the injury in   formed shall not be considered under this paca-
the employment in which he was then engaged .        graph . This paragraph applies only if the
 In determining daily earnings under ' this para-    employe has worked within each week of at
graph, overtime shall not be considered . Hat        least 6 calendar weeks during the year before his
the time of the injury the employe is working on     or her injury in the business , in the kind of
part time for the day, his daily earnings shall be   employment and for the employer for whom the
arrived at by dividing the amount received , or      employe worked when injured .. For purposes of
to be received by him for such part-time service     this section, earnings for part-time services per-
for the day, by the number of hours and frac-        formed for a labor organization pursuant to a
tional . hours of such part-time service , and       collective bargaining agreement between the
multiplying the result by the number of ' hours of   employer and that labor organization shall be
the normal full-time working day for the em-
                                     y               considered as part of the total earnings in the
ployment involved . The words "part time for         preceding 52 weeks , whether payment is made
the day" shall apply to Saturday half days and       by the labor organization or the employer,
                                                                  r
all other days upon which the employe works              (e) Where any things of' value are received in
less than normal full-time working hours . The       addition to monetary earnings as a partt of the
average weekly earnings shall be arrived at by       wage contract, they shall be deemed a part of'
multiplying the daily earnings by the number of      earnings and computed at the value thereof to
days and fractional days normally worked per         the employ e .
week at the time of the injury in the business           (f) Average weekly earnings shall in no case
operation of the employer for the particular.        be less than 30 times the normal hourly earnings
employment in which : the employe was engaged        at the time of ' injuiy . However, this section shall
at the time .of' his injury .                        not apply to temporary disability benefits, if the
   (b) In case of seasonal employment, average       part-time employe restricts his ocher availabil-
weekly earnings shall be arrived at by the           ity , on the labor market, to part-time work and
method prescribed in par , (a), except that the      is not actively employed full-time elsewhe r e . In
number of 'hours of the normal full-time work-       such case the weekly temporary disability bene-
ing day and the number of days of the normal         fits shall not exceed the average weekly wages of
full-time working week shall be such hours and       the part-time employment ,
such days in similar service in the same or               (g) If an employe is under twenty - seven years
similar nonseasonal employment , Seasonal em-        of ' age , his average weekly earnings on which to
ployment shall mean employment which can be          compute the benefits accruing for permanent
                                                                 e
conducted only during certain times of the year,     disability or death shall be determined on 'the
and in no event shall employment be considered       basis of the earnings that such employe , if' not
seasonal if it extends during a period of more       disabled, probably would earn after attaining
than fourteen weeks within a calendar year           the age of twenty-seven years . Unless otherwise
   (c) In the case of persons performing service     established , said earnings shall be taken as
without fixed ; earnings, <or, where normal full-    equivalent to the amount upon which maxi-
time days or weeks are not maintained by the         mum weekly indemnity is payable
employer in the employment in which the em-              (2) The average annual earnings when re-
ploye worked when injured, or where, for other       ferred to in this chapter shall consist of fifty
reason, earnings , cannot be determined under        times the employe's : average weekly` earnings .
the methods prescribed by par. (a) or (b), the       Subject to the maximum limitation , average
earnings of' the injured person shall , for the      annual earnings shall in no case be taken at less
purpose of calculating compensation payable          than the actual earnings of the employe in the
under this chapter, be taken to be the usual         year, immediately preceding his injury in the
going earnings paid for similar services on a        kind of employment in which he worked at the
normal full-time basis in the same or similar        time of injur y .




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102 .11 WORKER 'S COMPENSATION                                                                                        2574

   (3) The weekl y wage loss referred to in this                        graph is a patient of the examining physician,
chapter , except under s 102 60 (6) , shall be such                     chiropractor orpodiatrist for any purpose other
percentage of the average weekly earnings of                            than for the purpose of bringing an action
the injured employe computed according to the                           under ch 655, unless the employe specifically
provisions of this section, as shall fairl y repre-                     requests treatment fr om that physician, chiro-
sent the proportionate extent of the impairment                         practor or podiatrist .
of his earning capacity in the employment in                               (b) An employer who requests that an em-
which he was working at the time of the injury,                         ploye submit to reasonable examination under
and other suitable employments , the same to be                         par . (a) shall tender to the employe , before the
fixed as of the time of the injury, but to be                           examination , all necessary expenses including
determined in view of the nature and extent of                          transportation expenses . . The employe is enti-
the injury .                                                            tled to have a physician, chiropractor or podia-
   History: ~ 1971 c 148 ; 1973 c 1 50; 19 75 c 147 ; 1977c .           trist provided by himself or herself present at
195 ; . 1979 c 278; 1981 c 92 ; 1983 a . 98 .                           the examination . . The employer ' s written re-
   See note to Art . I, sea` I, citing State ex rel . Briggs & Strat-
ton v Nofl, 100 W (2d) 650, 302 NW(2d) 487 (1981) .                     quest for examination shall notify the employe
                                                                        of all of the following:
102 .12 Notice of injury , exception , laches.                                                         e   d
                                                                           i ; The proposed date, time and place of the
No claim for compensation may be maintained                             examination and the identity of the examining
unless, within 30 days after the occurrence of                          physician, chiropractor or podiatrist .
the injury or within 30 days after the employe                            2 . The procedure for changing the proposed
knew or ought to have known the nature of his                           date , time and place of the examination.
or her disability and its relation to the employ-                          3 . The employe ' s right to have his or her
ment, actual notice was received by the em-                             physician, chiropractor or podiatrist present at
ployer or by an officer, manager or designated                          the examination .
representative of'an employer If no cepresenta-                           (c) So long as the employe, after a written
tive has been designated by posters placed in                           request of ` the employer which complies with
one or more conspicuous places, then notice                             par : (b) , refuses to submit to or in any way
received by any superior is sufficient Absence                          obstructs -the. examination, the employe' s right
of'notice does not bar recovery if it is found that                     to begin or maintain any proceeding for the
the employer was not misled thereby . Regard-                           collection of compensation is suspended, except
less of whether notice was received, if no pay-                         as provided in sub.. (4) . If the employe refuses to
ment of compensation, other than medical                                submit . to the examination after direction by the
treatment or burial expense ; is made, and no                           department or an examiner, or in any way
application is filed with the department within 2                       obstructs - the examination, the employe' s right
years from the date of the injury or death, or                          to the weekly indemnity which accrues and
from the date the employe or his or her depen-                                                           e
                                                                        becomes payable during the period of that
dent knew or ought to have known the nature of                          refusal or obstruction , is barred ; except as pro-
thee disability and its relation to the employ-                         vided in sub . . (4) .
ment, the right to compensation therefor is                                (d) Subject to par . (e) :
barred, except that the right to compensation is                           I Any physician , chiropractor or podiatrist
not barred if the employer knew or should have                          who is present at any examination under par :
known, within the 2-year period, that the em-                           (a) may be required to testify as to the results
ploye'had sustained the injury on which the                             thereof .
claim is based . . Issuance of notice of a hearing                         2 . Any physician , chiropractor or podiatrist
on the department's own motion has the same                             who attended a worker's compensation claim-
effect for the purposes 'of< this section as the                        ant for any condition or complaint reasonably
filing of an application .. This section does not                       related to the condition for which the claimant
affect any claim barred under s . 102 17 (4) .                          claims compensation may be required to testify
  Histor y; ` 1983 a 98                                                 before the department when it so directs .
                                                                           3 ' Notwithstanding any statutory provisions
102 . 13 Examination by physician , chiroprac-                          except par ; . (e), any physician, chiropractor or
tor or podiatrist ; competent witnesses; exclu -                        podiatrist attending a worker's compensation
sion of evidence ; autopsy . (1) (a) Except as                          claimant for any condition or complaint rea-
                                                                                  t
provided in sub (4), whenever compensation is                           sonably related to the condition for which the
claimed by an employe, the employe shall, upon                          claimant claims compensation may furnish to
the written request of the employe's employer,                          the employe, employer, worker's compensation
submit to reasonable examination by a physi-                            insurer, or the department information and
cian, chiropractor or, podiatrist, provided and                         reports relative to a compensation claim .
paid for by the employer ., No employe who                                 4 . The testimony of any physician, chiroprac-
submits to an examination under this para-                              tor or podiatrist , who is licensed to practice




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 2575                                                          WORKER'S COMPENSATION 102 . 16

 where he or she resides or practices i n any, state :   testimony had procured the autopsy and had
 may be received in evidence in compensation             failed to make reasonable effort to notify at
 proceedings . .                                         least one party in adverse interest or the depart-
    (e) No person may testify on the issue of the        ment at least 12 hours before the autopsy of the
 reasonableness of the fees of a licensed health         time and place it would be performed, or that
 race professional unless the person is licensed to      thee autopsy was performed by or at the dixec-
 practice the same health care profession as the         tion of the coroner or medical examiner or at
 professional whose fees are the subject of the
                          s         e                    the direction of the district attorney for pur-
 testimony .;                                            poses not authorized by ch . 979, The depart-
    (2) An employe who reports an injury alleged         ment may withhold findings until an autopsy is
                                                         held in accordance with its directions .
 to be work-related or files an application for            H istory: 1973 c . 272, .282 ; 1975 c . 147 ; 1977c . 29 ; 1979 c
 hearing waives any physician-patient or                 102 s 236 (3);'1979 c, 278; 1981 c. 92; 1983 a 98, 279 .
 chiropractor-patient privilege with respect to
 any condition or complaint reasonably related           102 . 14 ' Jurisdiction of department; advisory
 to the condition for which the employe claims           committee . ( 1 ) This chapter shall be adminis-
 compensation . Notwithstanding ss . 51 30 and           tered by the department,
 146,82 and any other law, any physician, chiro-            ( 2) The council on worker's compensation
 practor, podiatr ist, hospital or health care pro-      shall advise the department in carrying out the
vider shall , within a reasonable time after writ-       purposes of this chapter; Such council shall
 ten request by the employe, employer, worker's          submit its recommendations with respect to
compensation insurer or department or, its rep-          amendments to this chapter to each regular
resentative, provide that person with any infor-         session of the legislature and shall report its
mation or written material reasonably related            views upon anyy pending bill relating to this
to any injury for which the employe claims               chapter to the proper legislative committee . . At
compensation .                                           the request of the chairpersons of the senate and
    (3) If' 2 or more physicians , chiropractors or      assembly committees on labor, the department
podiatrists disagree as to the extent of an in-          shall schedule a meeting of the council with the
jured employe ' s temporary disability , the end of      members of the senate and assembly commit-
an employe's healing period or an erriploye's            tees on labor to review and discuss matters of
ability to return to wor k at suitable available         legislative concern arising under this chapter .
employment, the department may appoint an-                 Hi story: 1975 c 147 s . 54 ; 1979 c 278
other physician , chiropractor or podiatrist to
examine the employe and render an opinion as             102 . 15 Rules of procedure; transcripts. (1) .
soon as possible . .      The department shall           Subject to this chapter, the department may
promptly notify the parties of ' this appointment..      adopt its own rules of procedure and may
Payment for temporary disability shall continue          change the same from time to time .
until the ` department receives the opinion . The           (2) The department may provide by rule the
employer or its insur ance carrier or both shall         conditions under- which transcripts of testimony
pay for the examination and opinion . . The              and proceedings shall be furnished .
employer or insurance carrier or both shall                 ( 3) All testimony at any hearing held under
receive appropriate credit for any overpayment           this chapter shall be taken down by a steno-
to the employe determined by the department              graphic reporter or recorded by a recording
after receipt of the opinion . .                         machine . .
    (4) The rights of employes to begin or main-           History: 1977 c 418 .
tain proceedings for the collection of ' compensa-
tion and to receive weekly indemnities which      h      102. 16 Submission of disputes, contribu-
accrue and become payable shall not be sus-              tions by employer . (1) Any controversy con-
pended or barred under sub. (1) when an em-              cerning compensation, including any in whichh
ploye refuses to submit to a physical examina-           the state mayy be a party, shall be submitted to
t ion, upon the request of ' the employer or at the      the department in the manner and withh the
direction of the department or an examiner ,
         n                                               effect provided in this chapter, Every compro-
which would require the employe to travel a              mise of anyy claim for compensation may be
distance of 100 miles or more from his or her            reviewed and set aside, modified or confirmed
place of residence, unless the department or             by the department within one year from the
examiner determines that circumstances war-              date the compromisee is filed with the depart-
rant the examination .                                   ment, or from the date an award has been
   (5) The department may refuse to receive              entered, based thereon, or the department may
testimony as to conditions determined f r om an          take that action upon application made within
autopsy if' it appears thatthe party offering the        one year, . Unless the word "compromise" ap-




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 102 .16 WORKER'S CO M PENSATION                                                                                    25 ' 76

 pears in a stipulation of settlement, the settle-                   hearing on the application to be given to each
 ment shall not be deemed a compromise, and                          party interested , by service of such notice on the
 further claim is not barred except as provided in                   interested party personally or by mailing a copy
 s . 102 17 (4) regardless of whether an award is                    to the interested party ' s last-known address at
 made .. The employer, insurer or dependent                          least 10 days before such hearing . In case a
 under s . 102 .51 (5) shall have equal rights with                  party in interest is located without the state , and
 the employe to have review of a compromise or                       has no post-office address within this state, the
 any other stipulation of'settlement Upon peti-                      copy of the application and cop ies of all notices
 tion filed with the department, the department                      shall be filed in the office of the secretary of
 may set aside the award or otherwise determine                      state, and shall also be sent by registered or
 the rights of the parties .                                         certified mail to the last-known post-office ad-
    (2) The department has jurisdiction to pass                      dress of such - party . . Such filing and mailing
 upon the reasonableness of health service bills                     shall constitute sufficient service, with the same
 in all cases of dispute where compensation is                       effect as if served upon a party located within
 paid ; in the same manner and to the same effect                    this-state . . The hearing may be adjourned in the
 as it passes upon compensation ..                                   discretion of ' the department, and hearings may
    (3) No employer subject to this chapter may                      be held at such places as the department
 solicit, receive or collect any money from an                       designates, within or without the state .. The
 employe or any other person or make any                             department may also arrange to have hearing
 deduction from their wages, either directly or                      held by the commission , officer or tribunal
indirectly, for the purpose of discharging any                       having authority to hear cases arising under the
 liability under this chapter ; nor may any such                     worker's compensation law of any other state ,
employer sell to an employe or other person, or                      of the District of Columbia , or of any territory
solicit or require the employe or other person to                    of the United States , the testimony and pro-
purchase, medical, chiropractic podiatric or                         ceedings at any such hearing to be reported to
hospital tickets or contracts for medical ; surgi-                   the department and to be part of the record in
cal,' hospital or other health care treatment                        the case .: . Any evidence so taken shall be subject
which is required to be furnished by that                            to rebuttal upon final hearing before the
employer,                                                           department.
    (4) ,The department has ,jurisdiction to pass                       (b) In any dispute or controversy pending
on any question arising out of sub . (3) and has                    before the department, the department may
jurisdiction to order the employer to reimburse                     direct the parties to appear before an examiner
an employe or other person for any sum de-                          for a conference to consider the clarification of
dueted from wages or paid by him or her in                          issues , the joining of additional parties , the     e
violation of that subsection . In addition, any                     necessity or desirability of amendments to the
employer violating sub . (3) shall be subject to                    pleadings, the obtaining of admissions of fact or
the penalties provided in s . 102 .28 (3), and shall                of documents, records , reports and bills which
be liable to an injured'employe for the reason-                                                          and
                                                                    may avoid unnecessary proo fd . such other
                                                                         y
able value of the necessary services rendered to                    matters as may aid in disposition of the dispute
that employe pursuant to any arrangement                            or controversy. After this conference the de-
made in violation of sub . (3) without regard to                    partment may issue an order requiring disclo-
that empioye's actual disbursements for the                         sure or exchange of any information or written
same .                                                              material which it considers material to the
                                                                    timely and orderly disposition of the dispute or
   (5) No agreement by an employe to waive the
                                                                    controversy . If' a party fails to disclose or
right to compensation is valid .
  Histor y: .   1 975 c 147, 200; 19'77 c. 195 ; 1981 c 92, 314 ;   exchange within the time stated in the order , the
1983 a 98                                                           department may issue an order dismissing the
                                                                    claim without prejudice or excluding evidence
102'. 17 . Procedure ; notice of hearing ; wit -                    or testimony relating to the information or
nesses, contempt; testimony , medical exami -                       written material . The department shall provide
nation. (1) (a) Upon the filing with the depart-                    each party with a copy of any order .
ment by any party in interest of any application                        (c) Either party shall have the right to be
in writing stating the general nature of any                        present at any hearing , in person or by attorney,
claim as to which any dispute or controversy                        or any other agent, and to present such testi-
may have arisen, it shall mail a copy of such                                             e
                                                                    mony as may be pertinent to the controversy
application to all other parties n' interest and                    before the department . No person , firm or
the insurance carrier shall be deemed a party in                    corporation other than an attorney at law , duly
interest : The department may bring in addi-                        licensed to practice law in the state, may appear
tionalpaties by service of a copy of the applica-                   on behalf of any party in interest before the
tion The department shall cause notice of                           department or any member or employe of the




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 2577                                                           W O R KER 'S CO M PEN SATION 102.17

    department assigned to conduct any hearing ,                pality, or of any other hospital or sanatorium in
    investigation or inquiry relative to a claim for            this state which is satisfactory to the depart-
    compensation or benefits under this chapter ,               ment, established by certificate, affidavit or
    unless the person is 18 years of age or older ,             testimony of the supervising officer' or other
    does not have an arrest or conviction record,               person having charge of such records, or of a
    subject to ss 111 .. 321 , 111 322 and 111 . . .3:35 , is   physician, podiatrist or surgeon, to be such
    otherwise qualified and has obtained from the               record of the patient in question, and made in
    department a license with authorization to ap-              the regular course of'examination or treatment
    pear in matters or proceedings before the de-               of such patient, shall constitute prima facie
                                              d
    partznent . The license shall :be issued by the             evidence in any worker's compensation pro-
    department under rules to be adopted by the                 ceeding as to the matter; contained therein,
    department. There shall be maintained in the                insofar as it is otherwise competent and rele-
    office of' the department a current list of persons         vant. The department may, by rule, establish
    to whom licenses have been issued . . Any license           the qualifications of, and the form used for
    may be suspended or revoked by the depart-                  verified reports submitted by, experts who pro-
    ment for fraud or serious misconduct on the                 vide information concerning loss of earning
    part of' an agent. Before suspending or r evoking           capacity under s .,102 :44 (2) and (3).
    the license of the agent, the department shall                 (e) The department may, with or without
    give notice in writing to theagent of' the charges          notice to either party, cause testimony to be
    of fraud or misconduct , and shall give the agent           taken, or an inspection of the premises where
    full opportunity to be heard in relation to the             the injury occurred to be made, or the time
                                        e
    same .. The license and certificate of authority            books and payrolls of the employer to be ex-
  shall, unless otherwise suspended or revoked ;                amined by any examiner, and may direct any
  be in force from the date of issuance until the              employe claiming compensation to be examined
  . June .30 following the date of issuance and may            by a physician, chiropractor or podiatrist . The
                d
  be renewed by the department from time to                    testimony so taken, and the results of any such
  time , but each renewed license shall expire on              inspection or examination, shall be reported to
  the . tune 30 following the issuance thereof'..              the department for its consideration upon final
       (d) The contents' of verified medical and               hearing All ex paste testimony taken by the
  surgical reports by physicians; podiatrists; sur-            department shall be reduced to writing and
 geons and chiropractors licensed in and practic-              either `party shall have opportunity to rebut
 ing in this state and of verified reports by                  such testimony on final hearing
 experts concerning loss of earning capacity                      (f) Sections 804 05 and 804 07 shall not apply
 under s . 102 . 44 (2) and (3), presented by a party          to proceedings under this chapter, except as to a
 for compensation shall constitute prima facie                 witness:         -
 evidence as to the matter : contained therein,                   1 . Who is beyond reach of the subpoena of
 subject ' to such rules and limitations as the                the department ; or
 department prescribes .. Verified reports of' phy-               2 Who is about to go out of the state, not
 sicians , podiatrists, surgeons and chiropractors,            intending to return in time for the hearing; or
 wherever licensed and practicing , who have                      3 Who is so sick, infirm or aged as to make it
 examined or treated the claimant and of ex-                   probable that the witness will not be able to
 perts, if such practitioner or expert consents to             attend the hearing; or
 subject himself or herself to cross-examination                  4, Who is a member of the legislature, if any
 shall also constitute prima facie evidence as to              committee of the same orthe house of'which the
 the matter contained therein .n and verified re-              witness is a member, is in session, provided the
                                 y
 ports by doctors of ' dentistry shall be admissible          witness waives his or her privilege
 as evidence of the diagnosisand necessity for
                e                                                 (g) Whenever the testimony presented at any
 treatment but not of disability. Physicians,                 hearing indicates a dispute, or is such as to
 podiatrists, surgeons, dentists and chiroprac-               create doubt as to the extent or cause of disabil-
 tors licensed in and practicing in this state and            ity or death, the department may direct that the
experts may certify instead of verify such re-                injured employe be examined or autopsy be
ports, and such certification shall be equivalent             performed, or an opinion of a physician, chiro-
to verification; and any physician, podiatrist,               practor or podiatrist be obtained without exam-
surgeon, dentist , chiropractor or expert who                 ination or autopsy, by an impartial, competent
knowingly makes a false statement of fact or                  physician, chiropractor or podiatrist designated
opinion in such certified report may be fined or              by the department whoo is not under contract
imprisoned , or both, under s 943 395 The                     with or regularly employed by a compensation
record of a hospital or sanatorium in this state              insurance carrier of self-insured employer, The
operated by any department or agency of the                   expense of such examination shall be paid by
federal or state government or by any munici-                 the employer`. The report of such examination




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  102.17 WORKER' S. COMPENSATION                                                                                   2578

 shall .be transmitted in writing to the depart- of'the employe's condition and its alleged rela-
 ment and a cop y thereof' shall be furnished by       tion to the employment .
 the department to each party, who shall have an          (5) This section does not limit the time within
 opportunity to rebut such report on further           whichh the state may bring an actionn to recover
 hearing .                                             the amounts specified in ss . 102 49 (5) and
    (h) The contents of ' certified reports of inves-  102 . :59 . :
 tigation , made by industrial safety specialists         (6) Hart employe or dependent shall, at the
 who are employed by the department and avail-         time of'injuxy, or at the time his right accrues, be
 able for cross-examination , served upon the          under 18 years of age, the limitations of time
parties 15 days prior to hearing, shall constitute     within which he may file application or proceed
prima facie evidence as to matter contained            under this chapter, if they would otherwise
therein .                                              sooner expire ; shall be extended to one year
    (2) If ' the department shall have reason to       after he attains the age of 18 years ., If, within
believe that the payment of compensation has           any part of the last year of any such period of
not been made , it may on its own motion give          limitation, an employe, his personal representa-
notice to the parties , in the manner provided for    tive, or surviving dependent be insane or on
the service of an application, of` a time and place   active duty in the armed forces of the United
when a hearing will be had for the purpose of         States such period of limitation shall be ex-
determining the facts : Such notice shall contain     tended to 2 years after the date that the limita-
a statement of the matter to ' be considered .        tion would otherwise expire : The provision
Thereafter all other provisions governing pro-        hereof with respect to persons on active duty in
ceedings on application shall attach insofar as       the armed forces of theUnited States shall
the same maybe applicable                             apply only where no applicable federal statute is
                                                      in effect .
   (2m) Any party , including the department;            History : 1971 c ; 148 ; 1971 c. 213 s 5 ; 1973 c. 150, 282 ;
may require any person to produce books,              Sup : Ct . Order, 67 W (2d) 774 ; 1975 c 147 ss. 20, 54 ; 1975 c .
papers and records at the hearing by personal         199, 200 ; 1977 c . 29, 195, 273 ; 1979 c 278 ; 1981 c 92, 314 ;
                                                      1981 c :317 s 2202 ; 1981 c .380 ; 1981 c 391 s 211
service of 'a subpoena upon the person along             Committ ee Note, 1971 : This change [as to sub. (1) (h)] is
with a tender of witness fees as provided in ss .     proposed to clarify the interpretation of the statute without
814 67 and 885 06 . The subpoena shall be on a
                          e                           changing-it. [B ill 371-A]
                                                         Plaintiff-empl oyer was n ot deprived of any substantial due
form provided by the department and shall give        process rights by the department's refusal to invoke its rule
the name and address of the party requesting          requiring inspection of opposing parties' medical reports
                                                      where plaintiff had ample notice of the nature of the em-
the subpoena                                          ploye's claim Theodore Fleisner, Inc.c v ILH R Dept . 65 W
                                                             (2d) 317, 222 NW (2d) 600 .
   (3) Any person who shall wilfully and unlaw-                 See note to 102 18, citing Kohler Co v DILHR, 81 W
fully fail or neglect to appear or to testify or to          (2d),11, 259 NW (2d) 695,
produce books, papers and recordsas required,                   Under facts of case, refusal to grant employer's request
                                                             for adjournment was denial of due process B ituminous Cas
shall be fined not less than $25 not more than               Co. v DILH R; 97W (2d)'730, 295 NW (2d) 183 (Ct . App .
$100, or imprisoned in the county j ail not longer           1980)
                                                                See note to 102.66, citing State v DILH R , 101 W (2d)
than, 30 days , Each day such , person shall so              396, 304 NW (2d) 75&(1981) ..
refue or neglect shall constitute a separate
offense ..                                                  102 . 175 Apportionment of liability . If' it is
    (4) The right of an employe, the employe's              established at the heating that 2 or more acci-
 legal representative or dependent to proceed               dental injuries, for each of which a party to the
       r
 under this section' shall not extend beyond 12             proceedings is liable under this chapter, have
 years from the date of the in          or death or         each contributed to a physical or mental condi-
 from the date that compensation, other than                tion for which benefits would be otherwise due,
 treatment or burial expenses, .was > last paid, or         liability for such benefits shall be apportioned
 would have been last payable if no advance-                according to the proof of the relative contribu-
ment were made , whichever date is latest. In the           tiomto disability resulting from the injury .
case of occupational disease there shalll be no               Hi story: 1979 c 278 . . ,
statute . of limitations, except that benefits or
treatment :expense becoming due after 12 years              102 . 18 Findings , orders and awards . (1) (a)
from the date of injury or dea:th' or last - payment .      All parties shall be afforded opportunity for
of compensation shall be paid : from the work               full, fair, public hearing after reasonable notice,
injury supplemental benefit fund under s .                  but disposition of application may be made by
 102 .65 and in the manner provided in s . 102 66           compromise, stipulation, agreement, or default
Payment of wages by the employer during disa-               without hearing .
bility or absence from work to obtain treatment               °(b) After final hearing the department shalll
shall be deemed payment of compensation for .               makee and file its findings upon the ultimatee
the purpose of this section if the 'employer knew           facts involved in the controversy, and its order,




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 2579                                                           WORKER ' S COMPENSAT ION 102 .18

    which shall state its determination as to the          the effective administration of this chapter .
    rights of the parties. Pending the final determi-      These examiners shall be attorneys . These
    nation of any controversy before it, the. depatt-      examiners may make findings and orders, and
    ment may in its discretion after any hearing           approve, review, set aside, modify or confirm
    make interlocutory findings, orders and awards         stipulations of settlement or compromises of
    which may be enforced in the same manner as            claims for compensation .. Any party who is
    final awards . The department may include in its                  d
                                                           dissatisfied with the findings and order of an
    final award ; as a penalty for noncompliance           examiner may file a written petition with the
   with any such interlocutory order or award , if it      department for review by the commission of thee
    finds that noncompliance was not in good faith ,       findings or order .
   not exceeding 25% of each amount which shall               (3) If no petition is filed within 21 days from
   not have been paid as directed thereby . Where         the date that a copy of ' the findings or order of
   there is a findi ng that the employe is in fact        the examiner is mailed to the last-known ad-
   suffering from an occupational disease caused          dress of the parties in interest , such findings or
   by the employment of the employer against              order shall be considered final , unless set aside,
   whom the application is filed , a final award          reversed or modified by such examiner within
                                  n
   dismissing such application upon the ground            such time.. If the findings or order are set aside
   that the applicant has suffered no disability          by the examiner the status shall be the same as
   from said disease shall not bar any claim he may       p rior to the findings oc ~ order set aside . If the
   thereafter have for disability sustained after the     findings or order are reversed or modified by
   date of the award .                                    the examiner, the time for filing petition with the
       (bp) The department may include a penalty
                                                          department shall run from the date that notice
   in ,its final award to a n employe if it determ ines   of such reversal or modification is mailed to the
   that the employer's or insurance carrier's sus-        last-known address of the parties in interest .
   pension af; . teYminatio n of'or failure to make
                                                          The commission shall either affirm , reverse, set
   payments of failure to report injury resulted
                                                          aside or modify such findings or order in whole
   from malice or bad faith, This penalty is the
                                                          or in pact; or, direct the taking of additional
   exclusive remedy against an employer or insur-
                                                          evidence. Such action shall be based on a
   ance carrier for malice or bad faith . The depart-
                                                                                   e
                                                          review of the evidence submitted ' I f the com-
   ment may award an amount which it considers
                                                          mission is satisfied that a party in interest has
 , just , not to exceed the lesser of 200% of total
                                                          been prejudiced because of ' exceptional delay in
 compensation due or $15,000, The department
                                                          the receipt of a, copy of any findings or order it
 may assess the penalty against the employer, the
                                                          may extend the time another ' 21 days for filing
 insurance carrier or both . Neither the employer
                                                          petition with the department .
                                                                        h
 nor the insurance carrier is liable to reimburse
 the other for the penalty- . amount .. . The depart-         (4) (a) Unless the liability under s . 102 35 (3) ,
 mentmay , by rule; define actions which demon-
                               e                                        ,
                                                           102 .43 (5) . 102 . . 49, 102 .. 57 ; 102. . 58, 102 . 59 ,
 strate malice or bad faith , .                            102 60 or 102 . 61 is specifically mentioned , the
       (c) If ' 2 or more examiners have conducted a      order, findings or, award are deemed not to
 formal hearing on a claim and are unable to
                      g                                   affect such liability .
 agree on the order or awacd . to _ be issued , the          (b) On motion, the commission may set
 decision shall be the decision of the majority . ; If'   aside, modify or change any order, findings or
                                                                 ,
 the examiners are equally divided on the deci-           award, whether made by an examiner or by the
 sion ; the department may appoint an additional          commission, at any time within 21 days from
examiner wh o, shall review the record and con-           the date thereof'' if it discovers any mistake
sult with the other examiners concerning their            therein , . ox upon the grounds of newly discov-
personal impressions of the credibility of the            ered evidence . Unless an order granting or
                                       d
evidence . Findings of fact and an order or               denying .a motion based upon the grounds of          s
award may then be issued by a majority of the             newly discovered evidence is made by the com-
examiners .                                               mission - within such 21-day period, the motion
      (d) Any award which falls within a range of         is deemed denied . The commission may on its
5% of the highest or lowest estimate of perma-            own motion, for reasons it deems sufficient, set
nent partial disability made by a practitioner            aside any final order or award of the commis-
which i s in evidence is presumed to be a reason-         sion or examiner within one year fr om the date
       e
able award, provided it is not higher than the            thereof'' upon . grounds of mistake or newly dis-
highest or lower than the lowest estimate in              covered evidence, and after extending an oppor-
evidence .                                                tunity for hearing may make new findings and
     (2) The department shall have and maintain           order, or it may reinstate the previous findings
on its staff' such examiners as are necessary to          and order or award or remand the case to the
hear and decide disputed claims and to assist in          department for further proceedings .s




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  102 .18 WORKER 'S COMPENSATION                                                                                                       2580
                                                                               Theodore Fleisner, Inc.c v . ILHR Dept 65 W (2d) 317, 222
    (5) Hit shall appear to the department that a                             NW (2d) 600
 mistake may have been made as to cause of                                         Authority granted under (3), to modify the findings of a
 injury in the findings, order or award upon, an                              hearing examiner in a workmen's compensation proceeding
 alleged injury based on accident, when in fact                               does not extend to the making of, findings and order on an
                                                                              alternative basis of liability neither tried by the parties nor
 the employe was suffer ing from an occupational                              ruled on by the examiner, and where other basis of liability is
 disease, the department may upon its own mo-                                 applicable, it is required to set aside the examiner's findings
                                                                              and order and direct the taking of additional testimony, with
 tion, with or w i thout hearing within 3 years                               the examiner to make new findings as Lathe substituted basis .
 from the date of such findings, order or award,                              Jos .. Schlitz Brewing Cc v ILHR Dept . 67 W (2d) 185, 226
                                                                              NW (2d) 492 .
 set aside such findings, order or award, or the                                   Where dismissal of application was neither' based upon
department may take such action uponn applica-                                stipulation or compromise nor after a hearing, dismissal is
tion made within such 3 years,, Thereafter, and                               void and limitation under 102 .17 does not bar claim brought
                                                                              12 years later Kohler Co v DI LHR, 81 W (2d) 11, 259 NW
after opportunity for hearing, the department                                 (2d) 695
may, if in fact thee employe is suffering from                                    While department is not required to make specific find-
                                                                              ings as to defense to worker's claim, it is better practice to
disease arising out of the empl oyment, make                                  either make such findings or state why none were made . Uni-
new fi ndings and award, or it mayy re i nstate the                           versal Foundry Co v. D I LHR ; 82 W'(2d) 479,263 NW (2d)
                                                                              172
previous findings, order or award . .
                                                                                 Commission guidelines, formulated as internal standards
   (6) In case of disease arising out of the                                  of credibility in worker's compensation cases, are irrelevant
employment, the department may from time to                                   to court's review of findings of commission . E . F Brewer:
                                                                              Co v DILHR, 82 W (2d) 634, 264 NW (2d) 222 . .
time review its findings, order or award, and                                    General finding by DILHR implies all facts necessary to
makee new findings, order or award, based on                                  support it Valadzic v, Briggs & Stratton Corp .. 92 W (2d)
the facts regarding disability or otherwise as                                583, 286 NW (2d) 540 (1979)
they may then appear . This subsection shall not
affect the applicationn of the limitation in s .                               102 .19 : Alien dependents; payments through
102 17 (4) .                                                                  c onsular officers. In case a deceased employe,
                                            ;
   History : 19 7 1 c . . 14 8; 1 97 3 a 1 50 1975 c 1 47 ; ] 97 '7 a 29 ,     for whose injury or death compensation is pay-
 195 ; 1979b 89, 278, 355 ; 198 1 c 92 ; 1 98 3 a 98,
                                                                              able, leaves surviving alien dependents residing
                                                 o
   Committee Note, 1971 : The intent is t authorize the c om -
mission within its ab solute. dis creti on to reopen fi n al orders           outside of'the United States, the duly accredited
on . the bas is o f mi s take or ne wly dis covered e v i d e nce within a    consular officer of the country of which such
perio d o f .one yea r from the date o f s uch o rder where this is
foundto be just It is intended th a t the commission have au-       e         dependentss are citizens or such officer's : desig-
tho rity t o grant or d eny c o mpensation, i ncluding the r i ght to         nated representative residing within the state
increase or to dec rease benefit s prev iously a warded . [Bill
371-Al                                                                        shall, except as otherwise determined by the
    Interl ocut ory o rd ers of the ILHR department in work-                  department, be the sole representative of the
men 's co mpensation c ases are not re s j udica ta Worsch v                  deceased employe and dependents in all matters
ILHR Dept , 46 W ( 2d ) 504, 175 NW (2d) 201 ;,,
     Where in a workmen's compensat i on case th e depa r tment               pertaining to their claims for compensation .
rever ses a n ex amine r's findin gs and makes independent find-              The receipt by such officer or agent of compen-
ings, the latte r should be accompanied by a memorandum
op i nio n indicating no t only prior consultation wi th the exam-            sation funds and the distribution thereof shall
i ne r and rev iew o f the record, but a statement o r statement s            be made only upon order of the department,
o f reasons for rea ch i n g a d i fferent res ult or co nclusio n-this
particul arly where cred ib i t y i o f wi tnes ses i s invo l ved. T ran-
                                 l                                            and payment to such officer, or agent pursuant
s am e rica In§, C o v IL.HR Dept 54 W ( 2d)27 2, 195 NW (2d)                 to any such order shall be a full discharge of the
656 .                                                                         benefits or compensation . Such consular of-
                                            l
       The depa r tment c o uld prope r y fi nd n o pe rma nent disa-
 bility in th e case o f a suc cessful fu sion of ver tebr ae and still       ficer or such officer's representative shall fur-
 re t ain juri sdi ctio n to de te rmi ne future disability where doc-
                                          future                              nish; if'required by the department, a bond to be
           s
 to rs te ti fi ed that there mi ght be              effects. Vernon
 County v . ILHR Dept . 60 W ( 2d) 736, 211 NW ( 2d) 441 '                    approved by it, conditioned upon the proper
      Wher e the departm ent in a workmen' s' compensa tion case              application of all moneys received by such
                                                 s
 involvin g conflicting testim o ny reverses an examiner's find-
 ings, fund a m ental fair n ess require s a s eparate statement by it        person. Before such bond is discharged ;, such
explaining the reasons it eached its decision, as well a s spe-
                                   r                                          consular officer or representative shall file with
cifically set oing forth in the record it s con sultation with the            the department a verified account of the items
ex am i ner with res pect to impre ssi on s or conclusi ons i n regard
t o the credi bi lity o f wi tnesses: Si m o n ton v ILHR Dept.. 62           of his or her receipts and disbursements of'such
w (2a) 112, 214 NW (2d) 302                                                   compensation : Such consular officer or repre-
      Where depa r tment incre ased examiner's award , resort to
AMA st andard s to i nterpre t rule wa s pro p e r and its validity           sentative shall make interim reports to the de-
properly co uld be. p red icat e d on the dep artment's uniform               partment as it may require
                                           s
adm in istrative int e rpre ta tion o f i t rule to mea n that a c on -         History: 1971 c 29
tact lens does not afford a "useful" co rrection , Employee s
                    i
M u t , Liabi l ty Ins C o v. ILHR Dept ; 62 W (2d) 327, 214
NW ( 2d) 5 87 :                                                               102: 195 ' Employes confined in institutions;
      Sub , (5) is i nappli cable where at the or i ginal heari ng the
examiner considered t he po ssibility of both acc ide ntal injury             payment of benefits . In case an employe'is
and injury caused . by occupati onall disease, and d enied ;the               adjudged insane or incompetent, of convicted
applicant benefit s Murphy v. ILHR Dept , 63 W (2d) 248 ,
217 NW (2d) 3 70                                                              of 'a felony, and is confined in a public institu-
     It i s not di s puted that the shoveling, though unusual, was            tion and has wholly dependent upon him for
pa r t of defendant's em p l oyment activ it i e s. The d oc tor 's tes ti-   support a person, whose dependency is deter-
mon y is thus s ufficie nt evidence t o supp o rt a conclusi on that
the heart attack wa s cau sed by employment-rel ated exer t on .:      i      mined as if the employe were deceased, compen-




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 2581                                                        WORKER 'S COMPENSATION 102 .23

 sation payable during the period of ' his confine-     due from the date the examiner' s order becomes
 rrient may be paid to the employe and his              final or from the date of a decision by the labor
 dependents, in such manner, for such time and          and industry review commission , whichever is
 in such amount as the department by order              later .
 provides . .                                             History: 19 '77 . c. 195; 1979 c . 110 s 60 (1 .3); 1979 c 278 ;
                                                       1981 c , 92; 1983 a, 98
                                                          The department can assess the penalty for inexcusable de-
 102 .20 Judgment on award . Either party may          lay in making payments prior to the entry of an order The
 present a certified copy of the award to the          question of inexcusable delay is one of law and the courts are
 circuit court for any county, whereupon said          not bound by the department's fi nding as to it Milwaukee
                                                       County v . ILHR Dept. . 48 W , (2d) 392, 180 NW (2d) 513
 courtt shall, without notice, render ;judgment in         Penalty under. (1) doe's not bar action for bad faith failure
 accordance therewith ; such judgment shall have       to pay claim. Coleman v. American Universal Ins . Cc 86 W
 the same effect as though rendered in an action       (2d) 615, 273 NW (2d) 220 (1979).

 tried and determined by said court, and shall,
                                                         102.23 Judicial review . (1) The findings of
 with like effect, be entered and docketed .. .
                                                         f act ma d e by the c ommi ssion acting with in it s
                                                             t
                                                         powers shall , in , the absence of fraud, be conclu-
102. 21 Payment of awards by municipalities.
                                                         sive The order or award granting or denyingr
Whenever an award is made by the department
                                                       , compensation , either interlocutory or final ,
under this chapter or s 66 . .191, 1981 stets ;,
                                                         whether judgment has been rendered thereon or-
against any municipality, the person in whose
                                                         no t„is subject to review only in the manner and
favor it is made shall file a certified copy thereof
                                                         upon the grounds fOllowing and not under ch .
with the municipal clerk Within 20 days there-
                                                         227 or s. 80102 : Within 30 days from the date
after, unless an appeal is taken, such clerk shall
                                                         of an order or award made by the commission
draw an order on the municipal treasurer for
                                                         either originally or following the filing of a
the payment of the award If upon appeal such
                                                                             w
                                                         petition for review with the department under s .
awardis affirmed in whole or in part the order
                                                         102,18 any party aggrieved thereby may by
for payment shall be drawn within 10 days after
                                                         service as provided in par , (a) commence, in
a`ceitified copy of such ;judgment is filed with
                                                         circuit court, an action against the commission
the proper clerk, Ifmore than one payment is
                                                         for the review of the order or award; in which
provided for inthe award or,judgment, orders
                                                         action the adverse party shall also be made a
shall be drawn as the paymentss become due..
                                                         defendant . If" the circuit court is satisfied that a
No statute relating to the filing of claims
                                                         party i n interest has been prejudiced because of
against, and the auditing, allowing and pay-
                                                        an exceptional delay in the receipt of a copy of
ment of claims by municipalities shall applyy to
                                                        any finding or o rder,, i t may extend the time in
the payment of"an award or judgment under
                                                        which an action may be commenced by an
this section . .
  Hi story : 1983 a 191 s . 6 .                         Additional 30 days . The proceedings shall be in
                                                        the circuit court o f the county where the peti-
 102 . 22 ` Penalty for delayed payments. (1)           tioner resides, except that if the petitioner is a
 Where the employer o"r his or her insurer is           state agency, the proceedings shall be in the
 guilty of inexcusable delay in making payments,        circuit court of ' the county where the respondent
 the payments as to which the delay is found            resides The proceedings may be brought in any
 shall be increased by 10% Where the delay is           circuit court if all parties stipulate and that
 chargeable to the employer and not to the              court agrees . The judicial review provisions of
                                                        ch 227 do not apply to the review proceedings
 insurer s . 102 .62 shall apply and the relative
liability oft he parties shall be fixed and dis-        under this subsection.
 charged as therein provided . . The department           (a) In such an action a complaint shall be
 may also order the employer or insurance car-         served with the summons . . The complaint need
 iier to reimburse the employe for any finance         not be verified, but shall state the grounds upon
charges, collection charges or interest which the      which a review is sought .. Service upon a
employe paid as a result of the inexcusable            commissioner or agent authorized by the com-
delay by the employer or insurance carrier.            mission to accept service shall be deemed com-
   (2) If the sum ordered by the department to         plete service on all parties, but there shall be left
be paid is not paid' when due, that sum shall          with the person so served as many copies of' the
bear interest at the rate of 10% per year . The        summons and complaint as there are defend-
state is liable for such interest on awards issued     ants, and the commission shall mailone copy to
against it under this chapter .. The department        each other defendant. . If ' the summons and
has jurisdiction to issue award for payment of         complaint are not filed within 6 months from
such interest at any time within one year of'the       date of service, that service is void ,
date of its order, or upon appeal after final             (b) The ` commission shall serve its answer
court` determination` Such interest becomes            within 20 days after the service of the com-




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  102.23 .:WORKER'S. : COMPENSATION                                                                                           2582

                                 e
   plaint , and, within the like time, the adverse          may, however, set aside the commission's order
   party may serve an answer to the complaint,              or award and remand the case to the commis-
   which answer may, by way of counterclaim or              sion if' the commission's order or award de-
   cross complaint , ask for the review of the order        pends on any mater i a l and controverted finding
   or award referred to in the complaint , with theh        of fact that is not supported by credible and
   same effect as if the party had commenced a              substantia l evidence ..
  separate action for the review thereof .                     His tory: 1973 c 1 50; 19'75 c. 199; S u p.. Ct . Order, 73 W
                                                                             1
                                                            (2d) xxxi ; 977 c . 29; 1 977 c : 187 ss 59, 13 5 ; 19'77 c. 95, 272,  1
     (c) The commission shall make return to the            447 ; Sup . Ck , Order;' 8 3 W ( 2d) rill ; 1979 c, 278 ; 198 1 c . 3 90 s
  court of all documents and papers on file in the          252 ; 19833 a 98, 1 22, 538 .
                                                               Judicial Council Committee's Note, 1976 : The p rocedure
  matter , and of all testimony which has been              for initiating a petition for judicial review under ch 102 i s
  taken , and of the commission 's order , findings         governed by the provisions of s. 102 23 rather than the provi-
  and award . Such return of the commission                 sions for initiating a civil action under s 80102 [Re Order
                                                                               9
                                                            effective Jan . i, f '77]
  when filed in the office of' the clerk of' the circuit      The fact tha t a party app e aling from an order of ILHR as
 court shall , with the papers mentioned in s .            to unemployment compen sation labeled his petit ion "unde r
                                                           22 7. 15 ", is i mmaterial since the circuit court had subject mat-
 809 . 15 constitute a j udgment roll in the action ;      ter jur i sdiction . An ans wer by the department that 227 .15
 and it shall not be necessary to have a transcript        gave no jurisdiction amounted to an appearance and the de-
 approved ,      The action may thereupon be               pa i tment could not later 'claim that the court had n o perso nal
                                                           jurisdiction because appellant had not served a summ o ns and
 brought on for hearing before the court upon              complaint Lees v , ILHR Dept : 49 W (2d) 491 , 182 NW (2d)
 the record by either party on 10 days' notice to          zas
                                                               A f i nding of fact, whether ult i mate or evidenti ary, is s ti ll
 the other ; subject, however, to the provisions of        in i st ess ential nature a fact , wherea s a conclusi on of la w ac-
 l aw for a chan ge o f th e pl   ace of tri al o r the    cepts the facts ultimate and evidentiary and by j ud icial rea-l
                                                           soning results from the applicat ion of rules o r concepts of law
 calling in of another judge .                             to those facts whether the facts are undisputed or not. Kres s
     (d) Upon such hearing, the court may con-             Packing Co v Kottwitz, 61 W ( 2d ) 175, 212 NW (2d ) 97 .
                                                                Challenge to the constitutionality o f ( 1) is not s ustained ,
 firm or set aside such order or award ; and any           since i b is manifest fro m the s tatute that the legi slature i n-
 judgment which may theretofore have been                  tended to have the department be the real p arty in interes t
 rendered thereon ; but the same shall be set aside        and not a mere nominal party Hunter v ILHR Dept . 64 W
                                                           (2d) 97;.'2 1 8 NW (2d) 314.
 only upon the following grounds :                             See note to 807 „07 , citing Cruz v DILHR, 8 1 W (2d) 442 ,
    1 That the commission acted without or in              260 NW (2d) 692 .
                                                               Employer whose unemployment c ompen sati on account i s
excess of its powers .                                     not affected by commission 's determination has no standing
    2 . That the order or, award was procured by
               e                                           to s eek j udicial review . Cornwell Pers onnel Asso ciate s v
                                                           ILHR Dept 92 W (2d) 53,284 NW (2d) 706 (Ct App 1979) .
fraud .                                                        Two methods of analyzin g agency' s mi xed conclusion s o f
    3 . That the findings of fact by the commis-           law and finding of fact discussed Un i ted Way of Greater
                                                           Milwa ukee v DILHR, IOS W (2d) 44 7, 313 NW (2d) 858 (Ct
sion do not support the order or award .:                  App ' 1987) .
    (2) Upon the trial of any such action the
                                            n                  Judicial, review of workmen's' compen sation cases ..
                                                           H afe rman, 97 3 WLR 576
court shall disregard any irregularity or error of
  e              n
the commission or the, department unless it is
                                                      102 . 24 Remanding record . (1) Upon the set-
made to affirmatively appear- that the plaintiff'
                                                      ting aside of anyy order or award, the court may
was damaged t here by
                                                      recommit the controversy and remand the
      (3) The record in any case shall be transmit-   record in the case to the commission for further
  ted to the department within 5 days after expira-   hearing of proceedings, or it may enter the
  tion of the time for appeal from the order or
                                         e           proper-judgment upon the findings of the com-
 ,judgment of the court , unless appeal shall be
                                                     mission as the naturee of the case shall demand .
  taken from such order or judgment..
                                                     An abstract of the judgment entered by the trial
     (4) Whenever an award is made against the court upon the review of any order' or award
  state the attorney general may bring an action     shall be made by the clerk : of the court upon the
  for review thereof in the same manner and upon     docket entry of any judgment which may have
           e
  the same grounds as are prodded by sub .. (1) .    been rendered upon thee order or award, and
     (5) The commencement of action for review transcripts of the abstract may be obtained for -
  shall not r elieve the employer - from paying like entry upon the dockets of the courts of
compensation as directed , when such action other counties.
involves . only the question of' liability as be-
                                           y            (2). After thee commencement of an action to
tween the employer and one or , more insurance review any award .of the commission the parties
companies or as between several insurance            may have the record remanded by the court for
companies .                                         .,such time and under such condition as they may
     (6) If the commission's order or award de- provide, for the purpose of having the depart-
pends on any fact found by the commission , the ment . act upon thee question of approvingg or
court shall not substitute itsjudgment .f6t that disapproving any settlement or compromise
of' the commission as to the weight or credibility that the parties may desire to have so approved ..
of the evidence on an y finding of' fact The court If approved the action shall be at an endd and




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2583                                                                    WORKER'S COMPENSATION 102 .26

judgment may be entered upon the approval as                       11 (2) Unless previously authorized by the de-
upon an award . If not approved the record                         partment, no fee may be charged or received for
shall forthwith be returned to the circuit court                   the enforcement or collection of any claim for
and the action shall proceed as if no remand had                   compensation, nor may any contract therefor
been made.                                                         be enforceable where such fee, inclusive of all
   History: 1975 c 147; 1977 cl 29 ; 1979 c 278                    taxable attorney' s fees paid or agreed to be paid
                                                                   for such enforcement or collection , exceeds
 102.25 Appeal from judgment on award . (1)                        20% of the amount at which such claim is
 Any patty aggrieved by a judgmentt entered                        compromised or of the amount awarded , a d-
 upon the review of any order or award may                         j udged or collected, except that in cases of
`appeal therefrom within the time period speci-                    admitted liability where there is no dispute as to
 fied in s : 808 04 (1) . A trial court shall hot                  amount of compensation ' due and in which no
 require the commission or any party to-the                        hearing or appeal is necessary , the fee charged
action to execute, serve or file an undertaking                    shall not exceed 10% but not to exceed $100 , of
under s : 808 ;07 or to serve, or: secure approval                 the amount at which such claim is compromised
of, a transcript of the notes of the stenographic                  or of the amount awarded , adjudged or col-
reporter or, the tape of'the recording machine .                   lected . The limitation as to fees shall apply to
The state is a party aggrieved under this`subsec-                  the combined cha rges of attorneys , solicitors ,
tion if' a judgment is entered upon the review                     representatives and adjusters who knowingly
confirming any order or award againstt it . At                     combine their efforts toward the enforcement
any time before the case is set down for hearing                   or collection of any compensation claim . .
in the court of appeals or the supreme court, the                      (2m) In any action for the recovery of costs of
parties may have the record remanded by the                         hospitalization in a tuberculosis sanatorium ,
court to the department in the same manner and                      where such cost was incurred by a patient whose
for the same purposes as provided for remand-                       tuberculosis entitled the patient to worker ' s
ing from the circuit court to the department                        compensation, no attorney fee for the recovery
under s . 102 .24 (2) .                                             of such cost shall be allowed to the attorney for
   (2) It shall be the duty of the clerk of any                     such patient in such worker's compensation
court rendering a decision affecting an award of                                                 s
                                                                    action, unless , by express agreement with the
the commission to promptly furnish the com-                         governing board of such institution the attor-
mission with a copy of such decision without                        ney has been retained by such governing board
charge .                                                            to also act as its attorney . .
                                                                                     s
    Histo ry: 1971 c 148 ; Sup . Ct Order, 67 W (2d)'774; 1977         (3) , Compensation in favor of any claimant,
c 29, 187, 195, 418 ;. 1979 c 278; 1983 a 219,'
    Judicial C ouncil Note, 1983 : Sub . (1) is amended to re-      which exceeds $100, shall be made. payable to
place the appeal deadline of 30 days after service of notice of     such claimant in person ; however, in any award
entry of,judgment or award by the standard time specified in
                                                                   .the department may upon application of any
                                                                                                  n
s . 808,04 (1), slats , for greater uniformity The subsection is
further amended to eliminate the superfluous provisions for         interested party and subject to the provisions of
calendaring and hearing the appeal [ Bill 151-5]                    sub (2) fix the fee of hi s attorney or representa-
    Committee No t e, 1971 : This is a mere procedural change .     tive and provide in the award for payment of
[Bill 371-A]
   269 .36 applies to appeals to the supreme court ; when set-      such fee direct to the per-son entitled thereto .. At
vice of an entry of judgment by the circuit court is served by      the request o£ ' the claimant medical expense,
mail, the time for appeal is extended to` 35 days . The time
runs from the date of mailing. Chequamegon Telephone Co-            witness fees and other charges associated with
                                                                                 s
operative v . IL,H R Dept 55 W (2d) 507, 200 NW (2d) 441            the - claim may be ,ordered paid out of the
    An appeal to thee supreme court by,a party who has unsuc-       amount awarded Payment according to the
cessfully soughtjudicial review in the circuit court of an order
or: award in a workmen's compensation case, must be taken,          directions of the award shall protect the em-
under (1), within 30 days from the date of service of the no-       ployec and his insurer from any claim of attor-
tice of entry of the circuit court judgment or within 35 days if
                                                                    ney'slien
service is effected by mail . Belort Cocp, v IL,HR Dept .. 63W
(2d) 23, 216 NW (2d) 233 .                                             (4) . The charging or receiving of any fee in
    See note to 80$ .03, citing Beams v DILHR, 102 W (2d)           violation of this section shall be unlawful , and
70, 306 NW (2d) 22 (1987),
                                                                                                        y
                                                                    the attorney or other person guilty thereof shall
                                                                    forfeit double the amount retained by him , the
                                                                                       e
102 . 26 Fees and costs . (1) No fees may be
                                                                    same to be collected by the state in an action in
charged by the clerk of any court for the per-
                                                                    debt ; upon complaint of the department , Out
formance of any service required by this chap-
                                                                    of the sum recovered the court shall direct
                                                                                                    e
ter, except for the docketing of' ;judgments and
                                                                    payment to the injured party of the amount of
for certified transcripts thereof In proceedings
                                                                    the overcharge .
to review an order or award, costs as between
                                                                      History : 1971 c 148; 19 75 c 14'7,s 54; 1975 c 199 ; 1977
the parties shall be in the discretion of'the court,               c 29 ; 1979 c . 278
but no costs' may be taxed against the                                Committee Note, 1971 : This is to clarify present proce-
commission :                                                       dure [Bill371-A]




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   1 02 .27 WORKER ' S COMPEN SAT ION                                                                        2584

  102 .27 Claims and awards protected ; excep -                    .
                                                             proof ' of financial ability of the employer to pay
  tions, . (1 ) Except as provided in sub . (2), no          compensation . . . Any exemption shall be void if
  claim for compensation shall be assignable, but            the application for it contains a financial state-
  thiss provision shall not affect the survival              ment which is false in any material respect ,
  thereof; nor shall any claim for compensation,                 (c) Revocation of'exemption Upon giving 10
  or compensation awarded, or paid, be taken for             days' notice in writing, the department may,
  thee debts of the party entitled thereto .                 after hearing, revoke the exemption for finan-
     (2 ) (a) A benefit under thiss chapter is assign-       cial reasons or fox the failure : of ' the employer to
  able under s : 767 265 (1) .                                                        s
                                                             discharge faithfully its obligations according to
    (b) If a governmental unit provides public                  e
                                                            the agreement contained in the application for
 assistance under eh 49 to pay medical costs or             exemption.. Upon _ revocation, the employer e
 livingg expenses related to a claim under this             shall insure its liability immediately as provided
 chapter, that governmental unit shall be reim-             in par . . (a) .
 bursed from any compensation awarded or paid                    (d) Effect of insuring with unauthorized m-
 if' it notifies the parties to the claim in writing        surer . An employer who procures an exemption
 that it provided the assistance . . Reimbursement          under ,par (b) and thereafter enters into any
 shall ; equall the lesser of either the amount of          agreement for excess insurance coverage with
 assistance the governmental unit; provided or              an insurer not authorized to do business in this
 two-thirds of the amount of the award or pay-             state shall report that agreement to the depaxt-
 ment remaining after deduction of attorney fees            ment immediately . The placing of such cover-
 and any other fees or costs chargeable under ch            age shall. not by itself be grounds for revocation
 102 . .                                                   of the exemption.
   Hi story:" 1981 c' 20, ' 391 ; 1983 a 27, 192 .               (3) PENALTY FOR .NONCOMPLIANCE .. An em-
                                                           ployer who fails to comply with sub . . (2) shall be
  102 . 28 Preference of claims; worker's com-             fined not less than $10 nor more than $100 or
  pen s ation insu r ance . (1) PREFERENCE The             imprisoned not less than 30 days nor more than
  whole claim for compensation for the injury or           6 months, or both Each day ' s failure shall be a
  death of any employe or any award or judgment            separate offense . . In a separate action upon  n
  thereon, and any claim for unpaid compensa-              complaint of' the department, the fines specified
  tion insurance premiums are entitled to prefer-          in this section may be,_ collected by the state in an
  ence in bankruptcy or insolvency proceedings             action in debt .
  as is given creditors' actions except as denied or            (4) ENFORCEMENT . If ' it appears by the com-
  limited by any law of'this state or by the federal       plaint or by the affidavit of any person in behalf
  bankruptcy act, but this section shall not impair        of ` the state that the employer's liability contin-
 the lien' of any judgment entered upon any                ues uninsured there shall forthwith be served on
 award . :                                                 the employer an order to show cause why the
     (2) ' REQU IRED INS URANCE ; EXCEPTION S . (a)        employer should not be restrained from em-
 Dutyto insure payment for compensation : Un-             ploying any person in the employer's business
 less exempted by the department, every em-               pending the proceedings or until the employer
 ployer which is liable to pay compensation               shall have satisfied the court in which the matter
 under this chapter shall insure payment for that         is pending that the employer has complied with
 compensation in an insurer authorized to do              sub . (2) . Such order` to show cause shall be
 business in this state, A,joint venture may elect        returnable before the court or, t he ,judge thereof
 to be an employer under this chapter and obtain          at a time to be fixed in the order not less than 24
 insurance for payment of compensation                    hours nor more than 3 days after its issuance ..
    (b) Exemption from duty to insure The                 Insofar as the same may be applicable and not
department . may grant a written order of ex-             herein otherwise provided, the provisions of' ch
emption to an employer who shows itss financial           813 relative to injunctions shall govern these
ability to pay the amount of compensation,                proceedings. If the employer denies under oath
agrees to report faithfully all compensable inju-         that the employer is subject to this chapter, and
ries and agrees to comply with this chapter and           furnishes bond with such sureties as the court
'thee rules of the department, . The department          may , require to protect all the .. employer's em-
may condition the granting of an exemption               ployes injured after the commencement of the
upon the employer's furnishing of satisfactory           action , fox such .' compensation .n claims as they
security to guaranteee paymenta of all claims                                          n
                                                         may . establish, then an injunction shall not
under compensation The department may                    issue Every ;judgment or forfeiture against an
require that bonds or other personal guarantees          employer, under sub., . (3), shall perpetually en-
be enforceable against sureties in the same              join the employer from employing any person iny
manner as an award may be enforced . The                 the employer's business at any time when the
department tray from time to time require                employer is not complying with sub .. (2) .




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2585                                                          WORKER'S CO M PE N SATIO N 102 .29

   (5) EMPLOYER'S cinatL. i1 Y If' compensation is       calendar year for unemployment compensation
awarded under this chapter , against any em-             purposes under ch . 108 , If the exempt employer
ployer who at the time of the accident has not           isnot covered under ch . 108 , then the depart-
complied with sub.. (2), such employer shall not         ment shall determine the comparable gross pay-
be entitled as to such award or any judgment             roll for the exempt employer. If' payment of any
entered thereon , to any of the exemptions of            assessment made under this subsection is not
property from seizure and sale on execution              made within 30 days of the order of the depart-
allowed in ss 815 18 to 815,21 If such em-               ment, the attorney general may appear on be-
ployer is a corporation, the officers and direc-         half ' of' the state to collect the assessment . .
                                      d
tors thereof shall be individually and jointly and          (c) The department may retain an insurance
severally liable for any portion of any such             carrier or insurance service organization to pro-
judgment as is returned unsatisfied after execu-         cess , investigate and pay valid claims . 'The
tion against the corporation ,                           charge for such service shall be paid from the
   (6) REPORTS BY EMPr..o YEx . Every employer           fund .-
shall upon request of ' the department report to it         (8 ) SELF-INSURED EMPLOYERS LIABILITY FUND . .
the number of employes and the nature of their           The moneys paid into the state treasur y under
work and also the name of the insurance com-             sub . (7) , together with all accrued interest , shall
                                    r
pany with whom the employer has insured                  constitute the "self-insured employers liability
liability under this chapter and the number' and         fund" .
date of expiration of such policy , . Failure to           History: 1973 c , 150 ; Sup. Ct Order, 67 W (2d) 774;
furnish such report within 10 days from the              1975 c 147 ss:' 23, 54 ; 1975 c 199; 1977 c 195 ; 1981 c . 92 ;
                                                         1983 a 98
       g
making of a request by certified mail shall
constitute presumptive ,evidence that the delin-
                                                         102 .29 Third party liability . (1) The making of
quent employer is violating sub .. (2) .
                                                         a; claim for compensation against an employer
   (7 ) INSOLVENT EMPLOYERS ; ASSESSMENTS . (a) If       or compensation insurer for the injury or death
an employer who is currently or was formerly             of an employe shall not affect the right of the
exempted by written order of the department              employe, the employe's personal representative,
                                    e
under sub.. (2) is unable to make payment of an          or other person entitled to bring action , to make
award and if , judgment is rendered in accord-           claim or maintain an action in tort against any
                                                                                         n
ance with s .. 102 . 20 against such employer and if '   other party for such injury or death, hereinafter
execution is levied and returned unsatisfied in          referred to as a 3rd party; nor shall the making
whole or in part, then payments for such liabili-        of a claim by any such person against a 3rd
ties shall be made from the fund established by          party for damages by reason of an injury to
sub . (8) . The state treasurer shall proceed to         which ss . 102 : 03 to 102 .64 are applicable , or the
recover such payments from the employer, or              adjustment of ' any such claim, affect the right of
the employer's receiver or trustee in bank-              the injured employe or the employe's depen-
cuptcy, and may commence an action or pro-               dents to recover compensation .. The employer
ceeding or file a claim therefor . The attorney          or compensation insurer who shall have paid or
general shall appear on behalf ' of the state            is obligated to pay a lawfull claim under this
treasurer in any such action or proceeding All           chapter shall have the same right to make claim
moneys recovered in any such action or pro-              or maintain an action in tort against any other
ceeding shall be paid into the fund established          party for such injury or death . . However , each
by sub . (8) .                                           shall give to the other reasonable notice and
   (b) Each employer exempted by written order           opportunity ,to join in the making of such claim
of the department under sub . . (2) shall pay into       or the instituting of an action and to be repre-
the fund established by sub _ (8) , a - sum equal to     sented by counsel :, If ; a party entitled to notice
that assessed against each of' the other such            cannot be found ; the department shall become
exempt employers upon the issuance of an                 the agent of such pasty for the giving of a notice
initial order , The order shall provide for a sum
      l               e                      r           as required in this subsection and the notice ,
sufficient to secure estimated payments of the           when given to the department , shall include an
insolvent exempt employer for a ' period of one
                     t                                   affidavit setting forth the facts, including the
year following the date of ' the order. Payments         steps taken to locate such party . . Each shall
ordered to be made to the fund shall be paid to          have an equal voice in the prosecution of said
the department within 30 days , If additional            claim, and any disputes arising shall be passed
moneys are required, further assessments shall           upon by the court before whom the case is
be made based on orders of ' the department with         pending, and if no action is pending, then by a
assessment prorated on the basis of the gross            court of record or by the department .. If notice
payroll for this state of the exempt employer ,          is given a s provided in this subsection , the
reported to the department for- the previous             liability of the tort-feaspr: shall : be determined as




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   102. 2 9 WORKER 'S COMPENSAT I ON                                                                                     2586

    to all parties having a right to make claim , and         interest in or right to share in the proceeds of
    irrespective of' whether or not all parties ;join in      any civil action against any physician , chiro-
    prosecuting such claim , the proceeds of such
                                     e                        practor or podiatrist for malpractice
    claim shall be divided as follows ; After deduct-           (4) If the employer and the 3rd party are
    ing the reasonable cost of collection , one-third        insured by the same insurer , or by the insurers
    of the remainder shall in any event be paid to           who are under common control , the employer's
    the injured employe or the employe's personal            insurer shall promptly notify the parties in
    representative or other person entitled to bring         interest and the department. If the employer
    action . . Out of the balance remaining , the            has assumed the liability of the 3rd party , it
    employer or insurance carrier shall be reim-             shall give similar notice , in default of ' which any
    bursed for all payments made by it , or which it         settlement with an injured employe or benefici-
   may be obligated to make in the future , under            ary is void . This subsection does not prevent
   this chapter , except that it shall not be reirn-         the employer or compensation insurer from
   bursed for any payments of increased compen-              sharing in the proceeds o f any 3rd party claim
   sat ion made or to be made under s 102 . . 22,            or action, as set forth in sub , (1) .
    102 .57 or, 102.. 60 .. Any balance remaining shall
                                                                 (5) An insurer subject to sub , (4) which fails
   be paid to the employe or the employe ' s per-
                                                              to comply with the notice provision of that
   sonalrepresentative or other person entitled to            subsection and which fails to commence a 3rd
   bring action . . If both the employe or the em-
                                                             party action, within the 3 years allowed by s .
   ploye's personal representative or other person
                                                            ' 893 .. 54; may not plead that s . 893 54 is a bar in
   entitled to bring action , and the employer or
                                                             any action commenced by the injured employe
   compensation insurer, join in the pressing of
                                                             under this section against any such .3rd party
   said claim and are represented by counsel , the
                                                             subsequent to 3 years from the date of injury ,
   attorneys' fees allowed as a part of the costs of
                                                             but prior to 6 years from such date of injury ,
                                                                                                     e
  collection shall be , unless otherwise agreed
                                                             Any recovery in such an action is limited to the
  upon , divided between such attorneys as di-
                                                             insured liability of the .3rd party . In any such
  rected by the court or by the department .. A              action commenced by the injured employe sub-
  settlement of any 3rd party claim shall be void            sequent to the 3-year period, the insurer of the
  unless said settlement and the distribution of
                                                            employer shall forfeit all right to participate in
  the proceeds thereof ' is approved by the court           such action as a complainant and to recover any
  before whom the action is pending and if ' no             payments made under this chapter ,
  action is pending, then by a court of record or
                                                               (6) No employe of 'a temporary help agency
  by the department .
                                                            who makes a claim for compensation may make
      (2) In the case of liability of " the employer or
                                                            a claim or maintain an action in tort against any
  insurer to make payment into the state treasury
                                                                     r
                                                            employer who compensates the temporary help
  under s .' 102 49 or 102 59, if' the injury or death
                                                            agency for the employe's services ..
  was due to the actionable act, neglect or default
                                                                History : , 1975 c 147 ss 24, 54; 1977 c 195; 1979 c . 323 s .
  of a third party, the employer - or insurer shall          33; 1981 c , 92.
 have a right of' action against such third party to            Revisor's Note: See cases annotated under 102 03 as to the
 recover the sum so- paid into the state treasury,           right to bring a 3rd patty action against a coemploye
                                                                When an employe sues a coemploye, who was also presi-
 which right may be enforced either by joining in            dent of the employer, he cannot impose on the defendant the
 the action mentioned in sub , (1) , or by indepen-          increased burden of' care of the safe-place statute Wasley v .
                                                             Kosmatka, 50 W : (2d) 738, 184 NW (2d) 821
 dent action . Contributory negligence of the
                                                                 In a 3rd party action under 102 29 liability under 101 11
 employe because of whose injury or death such               cannot be imposed on officers or employes of the employer,
payment was made shall bar recovery if such                  Their liability must be based on common law negligence .. Pi-
                                                             ttowski v. 'Taylor, 55 W (2d) 615, 201 NW (2d) 52 .
 negligence was greater than the negligence of                   See note to 102 .03, citing Candler v . Hardware Dealers
 the person against whom recovery is sought,                 Mut Ins .. Co 57 W (2d) 85, 203 NW (2d) 659
 and the recovery allowed the employer or in-                    Liability of corporate officer and supervisory employe in
                                                             a 3rd party action discussed . Kruse v Schieve, 61 W (2d)
 suier, shall be diminished in proportion to the           - 421, 2 1 3 NW (2d) 65 .
 amount of negligence attributable to such in-                   Sub (1) provides attorneys' fees are to be allowed as
 jured or- deceased employe, Any action brought              "costs of collect i on," and unless otherwise agreed upon, are
                                                             to be divided between the attorneys for both the employe and
 under this subsection may, upon order of the                the compensation carrier pursuant to court direction .        .
court, be consolidated and tried together with               Diedrick v .: Hartford Accident & Indemnity Co 62 W (2d)
                                                             759, 216 NW (2d) 1 93
 any action brought under sub .: (1) .                           The words "action commenced by the injured employe"
     (3) Nothing in this chapter shall prevent an           in (5) also encompass the bringing of wrongful death and sur-
employe from taking the compensation he or                  vival actions. Ortman v ., Jensen & Johnson, Inc 66 W (2d)
                                                            508, 225 NW (2d) 635
she may be entitled to under it and also main-                 Extra-hazardous activity exception did not apply where
taining a civil action against any physician,              employebf general contractor was injured while doing rou-
                                                           tine work, notwithstanding that employe was working in nu-
chiropractor or podiatrist for malpractice The             clearpower plant. Snider v . Northern States Power Co . 81 W
employer or compensation insurer shall have no             (2d) 224, 260 NW (2d) 260 ..




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 2587                                                                     WORKER' S COMPENSATION 102 . 31

     " Business pursuit" exclusion in defendant co-employe's
 homeowner's policy does not offend public policy . -Bertler v .     defense against the claim of the injured empio ,ye
 Employers Insurance of Wausau, 86 W (2d) 13,271 NW (2d)             or his dependents.
 603 (1978)
                                                                        (3) The department may order direct, reim-
     See note to 102 03, citing Mulder v Acme-Cleveland
 Corp . 95 W (2d) 173, 290 NW (2d) 1 76 (1980).                      bursement out of the proceeds payable under
     Right to partake in proceeds was not dependent on par-          this chapter for payments made under a nonin-
 ticipation in prosecution . Guyette v West Bend Mut Ins .
 Co 102 W(2d) 496, 307 NW (2d) 311 (Lt . App . 1981) .               dustrial insurance policy covering the same
    See note to 102. 0 3, citing Jenkins v . Sabourin, 104 W (2d)
                       .                                             disability and medical , chiropractic or podiatric
 309, 311 NW (2d) 600 (1981) ,                                       expense when the claimant consents, or when it
     Indemnity agreements in worker's compensation cases
 discussed . Hortman v . Otis Erecting Cc ,Inc. 108 W (2d)           is established that such payments under the
 456, 322 NW (2d) 482 (Ct, App 1982) .                               nonindustrial insurance policy were improper
     Award for loss of consortium is not subject to distribution
 formula under (1) DeMeulenaere v Transport Ins . Co . 116           and no attorney fee shall be due as to such
 W (2d) 322, 342 NW (2d) 56 (Ct App 1983) . .                        reimbursement . .
    Problems in 3rd party action procedure under the Wis-              History: 1973 c 150 ; 1975 c 14 7 ss 25, 54 ; 1975 c 199
 consin worker's compensation act Piper . 60 MLR 91
    Impleading a negligent employer is a third-party action
 when the employer has provided workman's compensation                102.31 Worker's compensation insurance ;
 benefits.. 1976 WL. R 1201 . .
    Product liability in the wo r kplace : the eYfBct of workers'     policy regulations . . (1) (a) Every , contract for
 compensation on the rights and liabilities - of 3rd parties
                       e                                              the insurance of ' the compensation provided for
 Weisgall 1977 WLR 1035                                                      s
                                                                      by this chapter , or against liability therefor ,
                                                                          l
                                                                     shall be made subject to this chapter , and provi-
  102.30 Other insurance not affected ; liability                    sions inconsistent with this chapter are void .
  of insured employer . (1) This chapter shall not                    The contract shall be construed to grant full
  affect the organization of any mutual or other                                                                     r
                                                                     coverage of all liability of the assur ed under this
 insurance company, nor the right of the em-                         chapter except for liability under s . 102,35 (3)
 ployer to insure in mutual or other companies,                      which is the sole liability of the employer ,
 against such liability , or against the liability for               notwithstanding , any agreement of ' the parties to
 the compensation provided for by this chapter ,                     the contrary unless the department has thereto-
 or to provide by mutual or other insurance , or                     fore by written order specifically consented to
 by arrangement with the employes , or other-                        the issuance of a policy on a part of such
 wise , for the payment to such employes , their                     liability, except that an intermediate agency or
 families , dependents or representatives, of sick ,                 publisher referred to ins .. 102 . 07 (6) may, under
 accident or death benefits in addition to the                       its own policy, cover liability of employes as
 compensation provided herein . But liability for                    defined in s . 102 07 ,(6) for, an intermediate or
 compensation shall not be reduced or affected                       independent news agency, provided the policy
 by any insurance, contribution or other benefit                                  e
                                                                     of insurance of the publisher or intermediate
 whatsoever; due to or received by the person                        agency is endorsed to cover such persons : If the
 entitled to such compensation ,' and the person                    publisher so covers it is not . necessary for the
 so entitled shall, i r respective of any insurance or              intermediate or, independent news agency to
 other contract , have the right to recover the                     cover liability for such persons .. No policy may
 same directly from the employer ; and in addi-                     be canceled by either party within the polic y
 tion thereto , the right to enforce in the person ' s              period nor terminated upon the expiration date
 own name, in the manner provided in this                           until a notice in writing is given, to, the other
chapter, the liability of ' any insurance company                   party, fixing the date on which it is proposed to
which may have insured the liability for such                       cancel it, or declaring , that the party does not
compensation, and the appearance, whether                           intend to renew the policy upon expiration .
general or special, of any such insurance carrier                   Such cancellation or termination is not effective
by agent or attorney shall be a waiver of the                       until 30 days after written notice has been given
                                        d
service of copy of application and of notice of                     to the depa r tment either by personal service of
hearing required by s . 102 : 17 ; provided , how-                  the notice upon the department at its office in
ever, that payment of such compensation by       n                  Madison or by sending the notice by certified
either the employer or the insurance company,                       mail addressed to the department at its office in
shall , to the extent thereof, be a bar to recovery                 Madison .. . The department may provide by rule
against the other of the amount so paid , and                       that the notice of ' cancellation or termination be
provided, further, that as between the employer                     given by certified mail to the Wisconsin com-
and the insurance company, payment by either                        pensation rating bureau , as defined in s : 626 02
di r ectly to the employe, or to .the person entitled               (1) rather than to the department .- Whenever
to compensation, shall be, subject to the condi-                    the Wisconsin compensation rating bureau re-
tions of the policy:                                                ceives such a notice of cancellation or termina-
    (2) The failure of the assured to do or refrain                 tion it shall immediately notify the department
fr om doing any act required by the policy shall                    of the notice of cancellation or termination
not be available to the insurance carrier as a                      However, the cancellation or termination is




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 102 .31 - WORKER'S COMPENSATION                                                                                       2588

  effective whether or not the notice has been             where the owner designates the insurance car-
  given to the department upon the ef'f'ective date        rier and pays for each such policy , the owner
  of ' replacement insurance coverage obtained by          shall reimburse the department for all of the
  the employer or, of an order exempting the               costs incurred by the department in issuing such
  employer from carrying insurance under s .               written orders and in ens u r ing mi nimum c onfu-
   102,28(2)                                               sion and maximum safet y on the constr uction
      (b) If' the insured is a partnership, such con-      project ..
  tract of' insurance shall not be construed to               (7) The Wisconsin compensation rating bu-
  grant coverage of' the individual liability of the       reau shall provide the department with any
  members of such partnership in the course of 'a          information it requests r elating to worker's
  trade, business, profession or occupation con-           compensation insurance coverage, including
  ducted by them as individuals, nor shall a               but not limited to the names of employers
  contract of' insurance procured to cover individ-        insured and any insured employer's address,
  ual liability be construed to grant coverage of a        business status, type and date of coverage ,
  par tnership of which the individual is a mem-           manual premium code , and policy information
  ber ; nor to grant coverage of ' the liability of the    including numbers, cancellations , terminations ,
  individual arising as a member of any                    endorsements and reinstatement dates . .
 partnership .                                                History: 1971 c 260, 307; 1975 c. 39 ; 1975 c . 147 ss . 26,
                                                           54 ; 1975 c . 199, 371 ; 1977 c 29, 195 ; 1979 c 278; 1981 c . 92;
      (2) The depar tment may examine from time            1983 a. 189 s , 329 (25).
 to time the books and records of any insurer                 102 .31 (1) (b) does not apply to a joint venture and insur-
                                                           ance written in the name of oneadventurer is sufficient to
 i nsuring liability or compensation for an em-            cover his joint liability. Insurance Cc of N . A v . ILHR
 ployer in this state Any such insurer that                Dept . 45 W (2d) 361, 173 NW (2d) 192
 refuses or fails to allow the department to
 examine its books and records is subject to                102 . 32 Continuing liability ; guarantee settle -
 enforcement proceedings under s 601 . . 64 .               ment, gross payment . In any case in which
      (3) If any insurer authorized to transact            compensation payments have extended or will
 worker's compensation insurance in this state             extend over 6 months or more from the date of
 fails promptly to pay claims for compensation             the injury (or at any time in death benefit cases),
for, which it is liable . oi fails to make reports to      any party in interest may, in the discretion of
the department required by s 102 . . 38 , the de-          the department, be discharged from, or com-
partment may recommend to the commissioner                 pelled to guarantee, future compensation pay-
of insurance , with detailed reasons, that en-             ments as follows :
foicement proceedings under s 60164 be in-                     (1 ) By depositing the present value of the
voked . The commissioner shall thereupon fur-              total unpaid compensation upon a 7% interest
nish a copy of the recommendation to the                   discount basis with a credit union, savings and
insurer and shall set a date for a hearing , at            loan association, bank or trust company desig-
which both the insurer and the department shall            nated by the department ; or
be afforded an opportunity to present evidence . .            ( 2) By purchasing an annuity within the
If ' af'ter the hearing the commissioner is satisfied      limitations provided by law, in such insurance
that the insurer has failed to live up to all of its       company granting annuities and licensed in this
obligations under this chapter, the commis-                state, as may be designated by the department ;
sioner shall institute enforcement proceedings            or
under s. 60164 ; otherwise the commissioner
                                                              (3) By making payment in gross upon a7%
       l
shall dismiss the complaint.                              interest, discount basis to be approved by the
   (4) If any employer who has by the depart-             department; and
ment been granted exemption from the carrying                 (4) In cases where the time for making pay-
of compensation insurance shall arbitrarily or
                                                          ments or the amounts thereofcannot be defi-
unreasonably refuse employment to or shall                nitely determined, by furnishing a bond, or
discharge employes because of a nondisabling              other security, satisfactory to the department
physical condition, the department shall revoke
                                                          for the payment of compensation as may be due
the exemption of such employer.
                                                          or become due . The acceptance of'the bond, or
   (5) The department has standing to appear as           other security, and the form and sufficiency
a complainant and present evidence in any                 thereof', shall be subject to the approval of the
administrative hearing or court proceeding in-            department . If'the employer or insurer is un-
stituted for alleged violation of' s , 628,34 (7) .       able or fails to immediately procure the bond,
   (6) Where the department by one or , more              then, in lieu ther'eof', deposit shall be made with
written orders specifically consents to the issu-         a credit union, savings and loan association,
ance of one or more policies covering only the            bank or trust company designated by the de-
liability incurred on a construction project, and         partment, of the maximum amount that may




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25 8 9                                                                  WORKER ' S COMPENSATI ON 102 .38

reasonably become payable in these cases, to be                   discriminate against an employe as to the em-
determined by the department at amounts con-                      ploye's employment , shall forfeit to the state
sistent with the extent of' the injuries and the                  not less than $50 nor more than $500 for each
law . . The bonds and deposits aree to be reduced                 of 'f 'ense .. No action under this subsection may
only to satisfy claims and withdrawn only after                   be commenced except upon request of the
the claims which they are to guarantee are fully                  department .
satisfied or liquidated under sub .. (1), (2) or (3) ;     (3) Any employer who without reasonable       t
and                                                    cause refuses to rehire an employe who is in-
    (5) Any insured employer may, within the           jured in the course of employment , where suit-
                                                                      e
discretion of the department, compel the in-           able employment is available within the em-          n
surer to discharge, or to guarantee payment of ploye's physical and mental limitations, upon
its liabilities in any suchh case under this section   order of the department and in addition to
and thereby release himself from compensation          other benefits, has exclusive liability to pay to
liability - :therein, but if for any reason a bond     the employe the wages lost' during the period of
furnishedd or deposit made under sub . (4) does        such refusal, not exceeding one year's wages .. In
not fully protect, the compensation insurer or         determining the availability of suitable employ-
uninsured employer, as the case may be, shall          ment the continuance in business of the em-
still be liable to the beneficiary thereof .           ployer shall be considered and any written rules
    (6) If compensation is due for permanent promulgated by the employer with respect to
disability following an injury or if'death benefits    seniority or the provisions of any collective
ace payable, payments shall be made to the ` bargaining agreement with respect to seniority
employe or dependent on a monthly basis . . The shall govern
department may direct an advance on a pay-
                                                          History : 1975 c. 14 7 ; 1977 a 29, 195
ment of unaccrued compensation or death ben-              Claim for tortious refusal to rehire was barred by exclusive
efits if it determines that the advance payment is     remedy under (3). Cornejo_v . Polycon Indust r ies, Inc. . 109 W
in the best interest of the injured employe or his     (2d) 649, 327 NW (2d) 183 (Ct App 1982) .
                                                           Employer cannot satisfy (3) by rehiring with intent to fire
or her dependents . . .. In directing the advance, the at later date, Dielectric Corp .p v l LIAC, , 1 l l W (2d) 270, 330
department shall give the employer or the em-          NW (2d) 606 (Ct App . . 1983) . .
ployer's insurer an interest credit against its            Employer has burden to prove rehi r ing was in good faith.
liability . The credit shall be computed at 7% .       West Allis School Dist v DILHR, 116 W (2d) 410,342 NW
                                                                  (2d) 415 ' (1984).
   (7) No lump sum settlement shall be allowed
in any case of permanent total disability upon                    102: 37 Employers' records . Every employer
an estimated life expectancy, except upon con-                    of 3 or more persons and every employer who is
sent of all parties, after hearing and finding by                 subject to this chapter shall keep a record of all
the department that the interests of'the injured                  accidents causing death or disability of any
employe will be conserved thereby                                 employe while performing services growing out
  His tory : 1977 c 195 ; _ 1979 c . 778;1983 a 98, 368, 538 ..
                                                                  of and incidental to the employment, which
                                                                  record shall give the name, address, age and
102.33 Blanks and records. The department
                                                                  wages of the deceased or injured employe, the
shall print and furnish free to any employer or
                                                                  time and causes of the accident, the nature and
employe such . blank forms as it shall deem
                                                                  extent of'the injury, and such other information
requisite to facilitate efficient administration of
                                                                  as the department may require by general order .
this chapter ; it shall keep such record books or
                                                                  Reports based upon this record shall be fur-
records as it shall deem required for the proper
                                                                  nished to the department at such times and in
and efficientt administration of 'this chapter .
  History : 1975 c . 147 s 54                                     such manner as it may require by general order,
                                                                  upon forms to be procured from the
 10235, Penalties. (1) Every employer and                         department.
every insurance company that fails to keep the                       H istor y: 1975 c 147 s .'S4

 records or to make the reports required by this
chapter or that knowingly falsifies such records                  102 . 38 - Records of payments ; reports
or makes false reports shall forfeit to the state                 thereon . Every insurance company which
-nott lessthan $10 nor more than $100 for each                    transacts the business of compensation insur-
offense . .                                                       ance, and every employer who is subject to this
   (2) Any employer, or duly authorized agent                     chapter, but who has not insured the employer's
thereof, who, without reasonable cause, refuses                   liability, shall keep a record of all payments
to rehire an employe injured in the course of                     made under this chapter and of the time and
employment, or who, because of a claim or                         manner of making the payments, and shall
attempt: to claim compensation benefits from                      furnish such reports based upon these records
such employer, discriminates or threatens to                      to the department as it may require by general




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  102.38 WORKER 'S COMPEN SATION                                                                           2590

  order, upon forms to be procured from the                 any physician, chiropractor or podiatristt li-
  department .                                              censed to practice and practicing in this state for
    History : 1975c 147 s . 54 ; 975 c 199 ; 1979 c 89 .
                                   1                        treatment of' the injury . . By mutual agreement ,
                                                            the employe may have the choice of any quali-
  102.39 General orders ; application of stat-
                                         n                  fied pr actitioner not licensed in this state . In
  utes. The provisions of ch . 101, relating to the         case of eme r gency, the employer may arrange
  adoption, publication, modification and court             for treatment without tendering a choice . After
  review of general orders of the department shall          the emergency has passed the employe shall be
  apply to all general orders adopted pursuant to                    s
                                                            given 'his or her choice of attending practitioner
  this chapter .                                            at the earliest opportunity , The employe has
                                                            the right to a 2nd choice of attending practi-
 102.40 Reports not evidence in actions. Re-                tioner on notice to the employer or its insur ance
 ports furnished to the department pursuant to              carrier Any further choice shall be by mutual
 ss 102 37 and 102 ..38: shall not be admissible as         agreement : Partners and clinics are deemed to
 evidence in any action or proceeding arising out           be one practitioner Treatment by a practi-
 of the death or accident reported                          tioner on referral from another practitioner is
                                                            deemed to be treatment by one practitioner .
    .
 . 102 . 42 Incidental compensation. (1) TREAT-                (b) The employer is not liable for the expense
   MENT OF EMPCOYE . The employer shall supply              of un reasonable travel to obtain treatment ..
   such medical, surgical, chiropractic, podiatric             (3) PRACTITIONER CHOICE UNRESTRICTED If
   and hospital treatment, medicines, medical and           the employer fails to tender ' treatment as pro-
   surgical supplies, crutches, artificial members,         vided in sub . (1) or choice of an attending
   appliances, and training in the use of artificial        practitioner as provided in sub : (2) , the em-
   members and appliances, or, at the option of            ploye's right to choose the attending practi-
   the employe, if the employer has not filed notice       tioner is not restricted and the employer is liable
   as provided in sub . (4), Christian Science treat-      for the reasonable and necessary expense
   ment in lieu of medical treatment, medicines            thereof.
   and medical supplies, as may be reasonably
                                                              (4) CHRISTIAN SCIENCE . Any employer may
  required to cure and relieve from the effects of
   the injury, and to attain efficient use of artificial   elect not to be subject to the provisions for
  members and appliances, and in case of the               Christian Science treatment provided for in this
                                                           section by filing written notice of such election
  employer's neglect or refusal seasonably to do
                                                           with the department
  so, or in emergencyy until it is practicable for the
  employe to give notice of injury, the employer              (5) ARTIFICIAL MEMBERS, Liability for repair
  shall .l be liable for the reasonable expensee in-       and replacement of prosthetic devices is limited
 curred by or on behalf of the employe in provid-          to the effects of normal wear and tear . Artificial
 ing such treatment, medicines, supplies and               members furnished at the end of the he aling
 training . Where the employer hass knowledge of           period for cosmetic purposes only need not be
 the injury and the necessity for treatment, the           duplicated .
 employer's failure to tender the necessary treat-             (6) TREATMENT REJECTED BY EMPLOYE Unless
 ment, medicines,. suppliess and training consti-           the employe shall have elected Christian Science
 tutes such neglect or refusal . Thee employer             treatment in lieu of medical, surgical, hospital
 shall also be liable for reasonable expense in-                           m
                                                            or sanatorium treatment , no compensation
 curred by the employe for necessary treatment              shall be payable for the death or disability of an
 to cure and relieve theiemploye from the effects           employe, if the death be caused , or insofar as
 of occupational disease prior to the time that             the disability may be aggravated , caused or
 the employe knew or should have known the                 continued .. (a) by an unreasonable refusal or
                                                                                                  e
 nature of his. or her disability and its relation to      neglect to subm i t to or follow any competent
 employment, and as to such treatment subs . (2)           and reasonable medical or surgical treatment ,
 and, (3) shall not, apply . . The obligationn to          (b) or, in the case of' tuberculosis , by refusal or
furnish such treatment and appliances shall                neglect to submit to or follow hospital or sana-
continue as required to prevent further deterio-           torium treatment when found by the depart-
ration in the condition of the employe or to               ment to be necessary .. Th e right to compensa-
maintain the existing status of such condition             tion accruing during a period of refusal or
whether or not healing is completed                        neglect under (b) shall be barred, irrespective of
     (2) CHOICE OF PRACTITIONER (a) Where the              whether disability was aggravated , caused or  d
employer has notice of an injury and its rela-             continued thereby .
tionship to the employment the employer shall                ( 8) AWARD TO STATE EMPLOYE, Whenever an
offer to the injured employe his or her choice of          award is made by the department in behalf of 'a




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 2591                                                                            WORKER'S COMPEN SATI O N 1 0 2 .43

 state employe, the department of industry, la-                             result of the injury, and shall be payable weekly
 bor and hum an rela tions sha ll file dupli cate                           thereafter, during such disability : If' the disabil-
 co pies of the a wa rd with the dep artm en t of                           ity exists after 7 calendar days from the date the
administration .. Upon receipt of the copies of                             employe leaves work as a result of the injury
 the aw ard , th e d e p artm e nt of a dminist ra tion                     and only if it so exists, indemnity shall also be
 shall promptly issue a voucher in payment of                               due and payable for the first 3 calendar days,
 the award from the proper appropriation under                              exclusive of Sundays only , excepting where the
 s . 20 865 (1) (dm) , and shall transmit one copy                          employe works on Sunday . : Said weekly indem-
 of the voucher and the award to the officer,                               nity shall be as follows :
department or agency by whom the affected                                      (1) If the injury causes total disability, two-
employe is employed .                                                       thirds of' the average `weekly earnings during
    (9) REHABILITATION ; PHYSICAL. AND VOCA-                                such disability .
 TIONAL,. (a) One of the primary purposes of ' this                             (2) If' the injury causes partial disability,
chapter, is restoration of an injured employe to                            during the partial disability, such proportion of
gainful employment. To this end , the depart-                               the weekly indemnity rate for total disability as
ment shall employ a specialist in physical, medi-                           the actual wage loss of the injured employe
cal and vocational rehabilitation . .                                       bears to his average weekly wage at the time of
    (b)Such specialist shall study the problems of                          his, injury . .
rehabilitation, both physical and vocational                                    (3) If the disability caused by the injury is at
and shall refer suitable cases to the department                            times total and at times partial, the weekly
                                                                                            l
of health and social services for vocational                                indemnity during each total or partial disability
evaluation and training The specialist shall                                shall be in accordance with subs . . . (1) and (2) ,
investigate and maintain a directory of such                                respectively .
rehabilitation facilities, private and public, as                              (4) If' the, disabi lity period involves a fi ac-
are capable ofrendering competent rehabilita-                               tional week, indemnity shall be paid for each
tion service to seriously injured employes .                                day of such week, except Sundays only , at the
    (c) The specialist - shall review and evaluate                          rate of one-sixth of the weekly indemnity . .
                                                                               e                      e      y
reported injuries for potential cases in which                                 (5) Temporary disability, during which com-
seriously injured employes may be in need of                                pensation shall be payable for loss of earnings,
physical and medical rehabilitation and may                                                e
                                                                            shall .l include such period as may be reasonably
confer with the injured employe , employer , in-                            required for training in the use of artificial
surance carries or attending practitioner re-                               members and appliances, and shall include such
garding treatment and rehabilitation .                                                     e
                                                                            period as the employe may be receiving instruc-
    History: . . 1971 c . 61 ; 1973 c, 150, 282; 1975 c . 147 ; 197 7 c .
 195 ss . 24 to 28, 45 ; 1977 c. 273 ; 1979 c 278 ; 1981 c. 20 .            tion pursuant to s . . 102 .. 61 . Temporary disability
    The requirement that medical treatment be supplied dur-                 on account of receiving instruction of the latter
ing the healing period (defined as prior to the time the condi-             nature, and not otherwise .e resulting fr om the
tion becomes stationary) is not determined by reference to
the percentage of disability but by a determination that the                injury, shall not be in excess of 40 weeks . . Such
injury has stabilized . Custodial care, as distinguished from               40-week limitation does not apply to temporary
nursing services, is not compensable Mednicoff v ILHR
Dept 54 W (2d)7, 194 NW (2d) 670                                            disability or ' travel or maintenance expense
     Imappcopriate cases, the ILHR Department is warranted                  under s . 102 . 61 if the department deter-mines
in, at the least, postponing a determination of permanent dis-              that additional training is warranted . The ne-
ability for a reasonable period of time until after a cla imant
completes a competent and reasonable course of physical                     cessity for additional training as authorized by
therapy or vocational rehabilitation as an essential part of                the department for any employe shall be subject
the treatment required for full recovery and minimization of
damages Transamerica Ins . Co v ILHR Dept 54 W (2d)                         to periodic review and reevaluation
272, 195 NW (2d) 656 .                                                         (6) Sick leave benefits in connection with
     An employe who wishes to consult a 2nd doctor on the
panel after the first says no further treatment is needed may               other employment shall not be considered in
do so without notice or consent, ' and if the 2nd doctor                    computing actual wage loss from the employer
prescribes' an operation which increases disability, the em-                in whose employ injury was sustained..
ployer is liable. Spencer v . ILHR Dept 55 W (2d) 525, 200
NW (2d) 611 s                                                                  (7) (a) If ' an employe has a renewed period of
    Unreasonable refusal of medical treatment not offered by                temporary total disability commencing more
employer is not a bar to compensation under (6) . Klein In-
dustrial Salvage v . DILHR, 80 W (2d) 457, 259 NW (2d) 124 . .              than 2 years after the date of ' injury and, except
                                                                            as provided in par . (b), the employe returned to
102 .43 Weekly compensation schedule . If'                                  work fox at least 10 days immediately preceding
the injury causes disability , an indemnity shall
  e                                                                         the renewed peri od of disability, payment of
be due as wages commencing the 4th calendar                                 compensation for the new period of disability
day from the commencement of the day the                                    shall be made as follows :
scheduled work shift began , exclusive of' Sun-                                1 If the employe was entitled to maximum
days only , excepting where the employe works                               weekly benefits at the time of injury , payment
on Sunday , after the employe leaves work as the                            for the renewed temporary total disability shall




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  102 .43 WORKER'S COMPENSATION                                                                                                   2592

 be at the maximum rate in effect at the com-                                (c) The employer or insurance carrier paying
 mencement of the new period . .                                          the supplemental benefits required under this
     2 . I f the employe was entitled to less than the                    subsection shall be entitled to reimbursement
  maximum rate,, the employe sha ll receive the                           for each such case fiom the fund established by
  same proportion of the maximum which is in                              s 102 ,: 65,, commencing one year from the date
  effect at the time of the commencement of the                           of the first such payment and annually there-
  renewed period as the emp loye's actua l rate at                        after while such payments continue .. Claims for
  time of injury bore to the maximum rate in                              such reimbursement shall be approved by the
  effect at that time .                                                   department .
     (b) An employe need not return to work at                               (2) In case of permanent total disability ag-
 least 10 days preceding a renewed period of                              gregate indemnity shall be weekly indemnity for
 temporary total disability to obtain benefits                            the period that the emp l oye may live . Total
 under sub .. (5) forr rehabilitative : training com-                     impairment for industrial use of both eyes , or
 menced more than 2 years after the date of                               the loss of both arms at or, near the shoulder , or
 i njury .                                                                of both legs at or near the hip , or of one arm at
    History :     1971 c . 148; 1973 c 1 50 ; 19 7 5 c 14 7; 1977 c
 1 95 ; 19 79 c. 278 ; 1983 a 98                                          the shoulder and one leg at the hip , constitutes
     Committee Note, 1971 : Employe s who ha ve two jobs who              permanent total disability This enumeration is
 have be e n i nju red a t o ne of them have in som e ca s e s been
 made totally disa bled for wo rk at either job. Sick l eave' bene-
                                                                          not exclusive, but in other cases the department
 fit s fr om the other empl o yer has suspend ed eli gibility fo r
                                  r                                       shall find the facts
 compensati o n or has reduced compensati on even though the
 employe suffe red a wa ge los s, Th is is consider e d to be i nequi-      (3) For permanent partial disability not cov-
 ta ble Sick leave benefits from the emplo ye r where inj ury oc-        ered by ss , 102 . 52 to . 102 . . 56, the aggregate
 cur red are to be con sidered , h o we ver , in determining eligibil-           r
                                                                         number of weeks of" indemnity shall bear such
 ity f or c ompen satio n from such employe r. [Bill 37]-A]
                                                                         relation to 1,000 weeks as the nature of the
                                                                         injury, bears to one causing permanent total
 102. 4 4 Maximum limitations . Section 102 43
                                                                         disability and shall be payable at the rate of
 shall be subject to the following limitations :
                                                                         two-thirds of the average weekly earnings of the
    (1) Notwithstanding any other provision of                           employe, the earnings to be computed as pro-
 this chapter, every employe who is receiving                            vided in s . 102     The weekly indemnity shall
 compensation under this chapter for permanent                           be in addition to compensation for the healing
 total disability or continuous temporary total                          period and shall be for the period that the
 disability more than 24 months after the date of                        employe may live, not to exceed 1 , 000 weeks . .
 injury resulting from an injury which occurred
prior to January 1, 1 976, shall receive supp le-                           (4) Where the permanent disability is covered
mental benefits which shall be payable in the                            by ss. 102 . . 52 , 102 . 53 ' and 102 . .. 55 ; such sections
first instance by the employer or the employer's                         shall govern; provided , that in no case shall the
insurance carrier, or in the case of benefits                            percentage of permanent total disability be
payable to an employe under s 102 66, shall be                           taken as more than 100 per cent .
paid by the department out of the fund created                              (5) In cases where it is determined that peri-
under s 102 ..65 . These supplemental benefits                           odic benefits granted by the federal social secur-
shall be paid only for weeks of disability occur-                        ity act are paid to the employe because of
ring after January 1, 1978, andd shall continue                          disability, the benefits payable under this chap-
during the period of'such total disability subse-                        ter shall be reduced as follows :
quent to that date . .                                                      (a) For each dollar that the total monthly
   (a) If such employe is receiving the maximum                          benefits payable under this chapter , excluding
weekly benefits in effect at the time of the                             attorney fees and costs, plus the monthly bene-
                                                                                                          e
injury,, the supplemental benefit shall be an                            fits payable under the social security act for
amount which, when added to the regular bene-                            disability exceed 80% of ' the employe's average
fit established for the case, shall equal the                            current earnings as determined by the social
maximumm weekly benefit in effect forr a totally                         security administration, the benefits payable
disabled employe whose injury occurred on                                under this chapter shall be reduced by the same
January 1, 1972 ;                                                        amount so that the total benefits payable shall
   (b) If such employe is receiving a weekly                             not exceed 80% of' the employe 's average cur-
benefit which is less than the maximum benefit                           rent earnings . However, no total benefit pay-
which was in effect on the date of the injury, the                                  r
                                                                         able under this chapter and under the federal
supplemental benefit shalll be an amount suffi-                          social security act may be reduced to an amount
cient,ta bring the total weekly benefits to the                          less than the benefit payable under this chapter .
same proportion of'the maximum weekly bene-                                 (b) No reduction under this section shall be
fit payable on January 1, 1972, as the employe's                         made because of an increase granted by the
weekly benefit bears to the maximum in effect                            social security administration as a cost of living
on the date of injury .                                                  adjustment .




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 2593                                                          WORKER' S COMPENSATION 102. 47

    (c) Failure of the employe , except for excusa-       employe would have received had it not been
 ble neglect ; to report social security disability       for the refusal
 payments within 30 days after written request               (h) In all cases of permanent partial disability
 shall allow the employer or insurance carrier to         not covered by ss 102 52 to 102 ..56, whether or
 reduce weekly compensation benefits payable              not the employe has returned to work, the
 under this chapter by 75% . Compensation                 permanent partiall disability shall not be less
 benefits otherwise payable shall be reimbursed           than that imposed by the physical limitations,.
 to the employe af'ter ,reporting .
      e                                                        History: 1971 c. 148; 1973 c.. 150; 1975 c 147 ss 33, 54,
                                                          57; 1975 c 199 ; 1977 c 195 ; 1979 c 278 ; 1981 c 92; 1983 a .
    (d) The employe r or insurance carrier mak-           98 .
 ing such reduction shall report to the depart-              Co mmittee Not e, 197 1 : Employes who are totally dis-
 ment the reduction and as requested by the              abled receive compensation at the wage level and the com-
                                                         pensation rate in effect as of the date of their injury . This is
 department , furnish to the department satisfac-        an average of approximately $45 .90 per week for the em-
 tory proof ' of the basis for the reduction .           pl oyes who are injured previou s to February 1, 1970 The
                                                         intent is to provide for payment of supplementall benefits ; for
    (e) The reduction prescribed by this section         example, .an employe who was injured in October 1951 and
 shall be allowed only as to payments made on or         earning wages in excess of the maximum of $52 .86 is receiv-
                                                         ing $3'7 a week for total disability :' This employe will receive
 after July 1 ; 1980, and shall be computed on the       supplemental benefits of $42 a week to bring the total up to
 basis of payments . made for temporary total ,          $79, which was the maximum February 1, 1970 . An employe
 temporary partial, permanent total and perma-           injured in October 1951 with a wage ofi $26 .43 has been re-
                                                         ceiving $18 50 per week for total disability, This is 50% of
 nent part ial disability .:                             the maximum in effect in October 1951 . Such employe will
                                        o
    (f) No reduction shall take into account             receive supplemental benefits of $21 a week to bring the total
                                                         up to $39 .50, which is 50% of the maximum in effect Febru-
 payments made under- the social security act to         ary 1, 1970 It is not intended that any death benefit payment
 dependents of an employe                                be affected by this section . [Bill 371-Al
    (6) (a) Where an injured employe claiming               T he department must disregard total loss of earning ca-
                                                         pacity in the case of a relative scheduled injury Mednicoff v .
 compensation for disability under sub :. . (2) or (3)   ILHR Dept . 54 W (2d) 7, 194 NW (2d) 670
 has returned to work for the employer far
   s                                                          "Odd-lot" doctrine discussed . Balczewski v . DILHR ; 76
                                                         W (2d) 487, 251 NW (2d) 794 . . .
 whom he or she worked at the time of ' the injury ,          See note to Art . IV, sec . 26 as to (1), citing 62 Atty . . Gen
 the permanent disability award shall be based           69 .
 upon the physical limitations resulting f r om the
injury without regard to loss of earning capacity        102.45 Benefits payable to minors; how
unless the actual wage loss in comparison with           paid . Compensation and death- benefit payable
earnings at the time of injury equals or exceeds         to an employe or dependent who was a minor
 15% .                                                   when his right began to accrue, may, in the
   (b) If; ; during the period set forth in s 102 17     discretion of the department, be ordered paid to
(4) the employment relationship is terminated            a bank, trust company, trustee, parent or
                   r
by the employer at the time of " the injury, or by       guardian, for the use of"such employe or depen-
the employe because his or her physical or               dent as may be found best calculated to con-
mental limitations prevent his or her continuing         serve his interests. Such employe or dependent
in such employment, or if during such period a           shall be entitled to receive payments, in the
wage loss of 15% or more occurs the depart-              aggregate, at a rate not less than that applicable
ment 'may reopen any award and make a rede-              to .payments of'primaxy compensation for total
termination taking into account loss of earning          disability or death benefit as accruing from his
capacity . .                                             18th birthday .
   (c) The determination of wage loss shall not             History : 1973 c . 150
take into account any period during which
benefits are payable for temporary disability .          102 . 46 Death benef it. Where death :proxi-
   (d) The determination of wage loss shall not          mately results from the injury and the deceased
take into account any period during which                leaves a person wholly dependent upon him- or
benefits are paid under ch . 108 :                       her for support, the death benefit shall equal 4
   (e) For the purpose of ' deCeinining wage loss ,      times his or her average annual earnings, but
payment of benefits for pe rmanent partial disa-         when added to the disability indemnity paid and
bility shall not be considered payment of wages .        due at the time of death, shall not exceed two-
   (f) Wage loss shall be determined on wages,           thirds of`weekly wage for, the number of weeks
as defined in s: 102 .11 : Percentage of wage loss       set out in s : 102 .44 (3)
shall be calculated on the basis of actual average         Histo ry : 1979 c 278; 1981 c. 92
wages over a period of ' at least 13 weeks :
   (g) For purposes of' this subsection ,' if the        102 .47 Death benefit, continued. I f'death oc-
employer in good faith makes an offer of em-             curs to an injured employe other than as a
ployment which is refused by the employe with-           proximatee resultt of the injury, before disability
out reasonable cause, the employe is considered          indemnity ceases, death benefit and burial ex-
to have returned to work with the earnings the           pense allowance shall be as follows :




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  102. 47 WORKER 'S COMPENSATION                                                                         2594

    ( 1) Where the injury proximately causes per-           (b) If there is more than one person who is
 manent total disability, they shall be the same as      wholly dependent upon the deceased employe ,
 if'the injury had caused death, except that the                                s
                                                         the benefits under this section shall be appor-
 burial expense allowance shall be included in           tioned between such dependents on the same
 the items subject to the limitation stated in s .       proportional basis as the primary death benefit .
 102 .:46 . The amount available shall be applied             (c) Notwithstanding sub . (1), if there are
 toward burial expense before any is applied              partial dependents of the deceased employe
 toward death benefit . If there are no surviving         who are entitled to benefits under s . 102 48, they
 dependents the amount payable to dependents              shall be entitled to such portion of ' the benefit
 shall be paid, as provided in s . 102 49 (5) (b), to     determined under sub . (1) that their partial
 the fund created underr s 102 .65 .                     dependency benefit bears to the primary benefit
   .(2) Where the injury proximately causes per-         payable to one wholly dependent upon the
                                                         deceased No payment to a partial dependent
 manent partial disability, the unacccued com-
                                                         shall be less than $1 ;000 .
 pensation shall first be appliedd toward funeral
 expenses,, not, to exceed $1 .,000, any remaining            (3) DISPUTES . In case of dispute, dependents
 sum to be paid to dependents, as provided in            may file applications as provided in s 102 . . 1 ' 7,
 this section and ss . .102.46 and 102 .48, and there    and ss , 102 : 17 to 102 . 27 shall apply. . In such
 shall be no liability for any other payments All        case , if the claim for a primary death benefit is
 computations underr this subsection shall take          compromised, any claim under this section shall
 into consideration the present value of future          be compromised on the same proportional ba-
 payments . If'theze are . no surviving dependents       sis . The attorney general shall represent the
 the amount payable to dependents shall be paid,         interests of the state in case of such dispute
 as provided in s. ' 102 49 (5) (b) ; to the fund           (5) MINORS . Benefits due to minors under this
 created under s . 1-02 65 .                                                                        .
                                                         section may be paid as provided in s 102 . 45 .
   History :. 1971 c 148 ; 1977 c 195 ; 1983 a 98 .         (6) PROOF, In administering this section the
                                                          department may require reasonable proof of
 102 . 475 Death benefit ; law enforcement and            birth, marriage, relationship or dependency ..
 correctional officers , fire fighters , rescue               (7 ) NOT TO AFFECT OTHER RIGHTS, BENEFITS OR
 squad members , national or state guard                  COMPENSATION The compensation provided for
 members and emergency government per-                    in this section is in addition to, and not exclu-
 sonnel. ( 1) SPECIAL BENEFIT . (a) If'the deceased      s ive of, any pension rights , death benefits or
 employe is a law enforcement officer, correc-           other compensation otherwise payable by law . .
 tional officer, fire fighter, rescue squad member            (8) DEFINITIONS. As used in this section :
 or national orstate guard member on state                    (a) " Correctional officer" means any person
active duty as described in s 102,07 (9) or if a         employed by the state or any political subdivi-
deceased person is an employe or volunteer               sionas a guard or officer whose principal duties
performing emergency government activities               are supervision and discipline of inmates at a
under' ch . 166 during a state of emergency or a         penal institution, prison , jail , house of correc-
circumstance described in s : 166 04, who sus-           tion , or other place of penal detention; including
tained an accidental injury so that benefits are         central state hospital
payable under s 102 46 or 102 . .4'7 (1), the de-
                                                             (b) "Fire fighter" means- any person em-
partment shall voucher and pay from the ap-
                                                         ployed by the state or any political subdivision
propriation under s . 20.445 (1) (aa) a sum equal        as a member or officer of a fire department or a
to 75% of the primary death benefit as of the            member of a volunteer department, including
date of death, but not less than $50,000 to the          the state fire marshal and deputies or a member
persons wholly dependent upon the deceased . .           of a ; legally organized rescue squad .
For pur'poses' of this subsection, dependency
                                                             (c) " Law enforcement officer " means any
shall be determined under Ss, 102 .49 and 102 ..51 ..
                                                        person employed by the stale or, any political
   (b) Thee department shall reduce the amount          subdivision for , the purpose of detecting : and
                                                                               e
of the special death benefit required to be paid        preventing crime and enforcing laws or ordi-
under par . . (a) by the amount . received upon         nances and who is authorized to make arrests
submittal of a claim under 42 USC 3796 to               for violations of the laws or ordinances the
3'796c.                                                 person is employed to enforce, whether that
   ( 2) PAYMENTS TO DEPENDENTS, (a) Ifthere are         enforcement authority extends to all laws or
more than 4 persons who are wholly dependent                                            o
                                                        ordinances or is limited to specific laws or
upon the deceased employe an additional bene-           ordinances.. . . .
fit of $2,000 shall be paid for each dependent in            (d) "Political' subdivision" includes counties ,
excess of 4 .                                           municipalities and municipal corporations




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 259 5                                                                      WORKER'S CO M PENSA TION 102 .49

    (e) "State" means the state of Wisconsin and                        likewise wholly dependent upon the employe
 its departments, divisions, boards, bureaus,                           for support . Such payment shall commence at
 commissions, authorities and colleges and                              the time that primary death benefit payments
 universities .                                                         are completed, or if' advancement of ' compensa-
   Histo r y: 1975 c . 274, 421 ; 1977 c . 29 ss 1029m to 1029s,        tion has been paid at the time when payments
 1650 ; 1977 c 48, 203, 418 ; 19'79 c . 110 s 60 (11) ; 1979 c 221 ;
 1981 c 325 ; 1983 a 98, 189 .                                          would normally have been completed . Pay-
                                                                        ments shall continue at the rate of 10% of the
 102 . 48 Death benefit , continued . If the de-                        surviving parent's weekly indemnity until the
                                                                                                                y
 ceased employe leavess no one wholly dependent                         child's 18th birthday. If ' the child is physically
 upon him for support, partial dependency and                           or mentally incapacitated, such payments may
 death benefits therefor shall be as follows:                           be continued beyond the 18th birthday but the
                                                                        payments may not continue for- more than a
    ( 1) An unestranged surviving parent or par-
                                                                        total of 15 years .
 ents to whose support the deceased has contrib-
 uted less than $500 in the 52 weeks next preced-                          (2) A child lawfully adopted by the deceased
 ing the injury causing death shall receive a death                     employe and the surviving spouse , prior to the
 benefitt of $5,000 .. If the parents are not living                    time of the injury, and a child not his own by
 together, the department shall divide this sum in                      birth or adoption but living with him as a
 such proportion as it deems to be just, consider-                      member of his family at the time of the injury
 ing their ages and other facts bearing on                              shall for- the purpose of' this section be taken as a
 dependency,                                                            child by xheir, marriage,
    ( 2) In all other cases the death benefit shall be                     (3) Where the employe leaves a wife or hus-
 such sum as the department shall determine to                          band wholly dependent and also a child or
 represent fairly and justly the aid to support                        children by a former marriage or adoption,
 which the dependent might reasonably have                             likewise wholly dependent, aggregate benefits
 anticipated from the deceased employe but for                         shall be the same in amount as if the children
 the injury.. To establish anticipation of'support                     were the children of ' such surviving spouse, and
 and dependency, it shall not be essential that the                    the entire benefit shall be apportioned to the
 deceased employe made any contribution to                             dependents in such amounts as the department
 support . The aggregate benefits in such case                         shall determine to be ,just , considering their ages
 shall not exceed twice the average annual eat n-                      and other facts bearing on dependency .. The
  ngs of the deceased ; or 4 times the contribu-                               t
                                                                       benefit awarded to the surviving spouse shall  e
 tions 'of'the deceased to the support of such                         not. exceed four times the average annual earn-
 dependents during the year immediately pre-                           ings of' the deceased employe .
ceding his death, whichever amount is the                                 (4) Dependency of any child for the purposes
 greater. In no event shall the aggregate benefits                     of this section shall be determined according to
 in such case exceed the amount whichh would                           s 102 51 (1), in like manner as would be done if
accrue to a person solely and wholly dependent . .
                                                                       there was no surviving dependent parent . .
Where there is more than one partial dependent
the weekly .benefit shall be apportioned accord-                         (5) (a) In each case of' injury resulting in
ing to their relative dependency ; The term                            death, leaving one or more persons wholly
"support" as used in ss . 102 .42 to 102 63 shall                      dependent for support, the employer or insurer
include contributions to the capital fund of'the                       shall pay into the state treasury the sum of
,dependents, for their necessary comfort                               $2,500 ..
   (3 ) A death benefit, other than burial ex-                            (b) In each case of injury resulting in death
penses, except as otherwise provided ., shall be                       leaving no person dependent for support, the
paid in weekly instalments corresponding in                            employer : or insurer shall pay into the state
amount to two-thirds of'the weekly earnings of                         treasury 80% of the death benefit other wise
the employe, until otherwise ordered by the                            payable in 5 equal annual instalments with the
department,                                                            first instalment due as of the date of death .
  History: 1975
            .c. 147; 1979 a 218.                                          (c) In each case of injury resulting in death,
                                                                       leaving one or more persons partially depen-
.10249 Additional death benefit for children ,                         dentfor' support, the employer or insurer shall
 state fund . (1) Where the beneficiary under s .                      pay into the state treasury an amount which,
                                                                          y
 102,.46 or 102 47 (1) is the wife or husband of the                   when added to the. sums paid or to be paid on
 deceased employe and is wholly dependent for                          account of partial dependency, shall equal the
support, an additional death benefit shall be                          death benefit payable to a, person wholly , depen-
paid from the funds provided by sub, . (5) for                         dent, plus the amount payable into the state
each child by their marriage who is living at the                                                            e
                                                                       treasury under this subsection where there is a
time of the death of the employe, and who is                           person wholly dependent, such payment to the




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  102 . 49 WORKER ' S COMPENSATION                                                                             2596

  state treasury in no event to exceed 80% of'the                   ( 2 ) WHO ARE NOT . (a) No person shall be
  amount payable for total dependency .                          considered a dependent unless a member of'the
     (d) The payment into the state treasury shall               family or a spouse, or a divoiced spouse who
  be made in all such cases regardless of whether                has not remarried, or lineal descendant or an-
 the dependents or personal representatives of                  cestor, or brother or sister of the deceased
 the deceased employe commence action against                   employe .
 a 3rd patty under s . 102 .29 . If the payment is                 (b) Where for eight years or more prior to the
 not made within 20 days after the department                   date of injury a'deceased employe has been a
 makess request therefor, any sum payable shall                 resident of'the United States, it shall be conclu-
 bear interest at the rate of 7% per year                       sively presumed that no person who has re-
    (e) The adjustments in compensation pro-                    mained a nonresident alien during that period is
 vided in ss 102 57, 102 58 and 102,60 do not                   either totally or partially dependent upon him
 apply to payments made under this section ..                   for support .
    (6) The department may award the addi-                         (c) No person who is a nonresident alien shall
 tional benefits payable under this section to the
                                                                be found to be either totally or partially depen-
 surviving parent of the child, to the child's
                                                                dent on a deceased employe for support who
 guardian or to such other person, bank or trust
                                                                cannot establish dependency by proving contri-
 company for the child's use as may be found
                                                                butions from the deceased employe by written
 best calculated to conserve the interest of the
                                                                evidence or tokens of the transfer of money,
 child. In the case of death of a child while
                                                                such as drafts, letters of credit, microfilm or
 benefits are still payable there shall be paid the
                                                                other copies of paid share drafts, canceled
 reasonable expense for burial, not exceeding
                                                                checks, or receipts for the payment to any bank,
 $300 ..
                                                                express company, United States post office, or
    (7) All payments received under this section
                                                                other agency commercially engaged in the
 shall be deposited in the fund established by s
                                                                transfer of funds from one country to another,
 10265 , ; ._
   History: 1971 c. 260 s 92 (4) ; 1975 c 147, 199; 1977 c .    for transmission of funds on behalf' of said
 195; 1979 c : 110 s . 60 (13) ; 1979 c 278, 355 ..             deceased employe to such nonresident alien
   Death benefits for dependent children are not increased by
 1025'7 Schwartz v DILHR, 72 W (2d) 217, 240 NW (2d)            claiming dependency . This provision shall not
 173                                                            be applicable unless the employe has been con-
                                                                tinuously in the United States for at least one
 102.50 ' Burial expenses . In all cases where                  year prior to his or her injury, and has been
 death of an employe proximately results from                   remuneratively employed therein for at least 6
 the injury the employer or insurer shall pay the               months.
 reasonable expense for burial, not exceeding                      (3) DIVISION AMONG DEPEN DENTS . I f there is
 $1,000 :                                                       more than one ;personn wholly or partially de-
                                     .
   History : 1971 c, 148 ; 1977 c, 195 .                        pendent, the death benefit shall be divided
                                                                between such dependents in such proportion as
 102 . 51 Dependents. (1) WHO ARE (a) The                       the department shall determine to be just, con-
 following persons are entitled to death benefits               sidering their ages and other facts bearing on
 as if they are solely and wholly dependent for                 such dependency
 support upon a deceased employer A wife upon
                                                                                                          .
                                                                  ( 4) D EPENDENCY AS OF THE DATE OF DEAT H .
 a husband with whom she is living at the time of
                                                                Questions as to who is a dependent and the
 his death ; a husband upon a wife with whom he
 is living at the time of her death ; a child under
                                    ;                           extent of his or her dependency shall be deter-
 the age of 18 years (or over that age, but                     mined as of the date of'thedeath of'the employe,
                                                                and the dependent's right to any death benefit
 physically or mentally incapacitated from earn-
 irig), upon the parent with whom he or she is                  becomes fixed 'at that time, regardless of any
 livingg at the time of the death of such parent,               subsequent change in conditions .. The death
 there being no surviving dependent parent                      benefit shall be directly recoverable by and
    (b) Where a dependent who is entitled to                    payable to the dependents entitled thereto or,
 death benefits under this subsection survives the              their legal guardians or trustees . In case of the
 deceased employe, all other dependents shall be                death of 'a dependent whose right to a death
 excluded ;' The charging of any portion of the                 benefit has thus become fixed, so much of the
 support and maintenance of'a child upon one of                 benefit as is then unpaid is payable to the
 the parents, or any voluntary contribution                     dependent's personal representatives in gross,
 toward the support of a child by a parent, or an               unless the department determines that the un-
 obligation to support a child by a parent consti-              paid benefit shall be reassigned, under sub : . (6),
 tutes living with any such parent within the                   and paid to any other dependent who is physi-
''meaning of this subsection                                    cally or mentally incapacitated or -a minor . A




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 2597                                                                         WORKER'S CO M PE N SATIO N 102 .52

 posthumous child ' is for the purpose of this                           (c) An index finger at the second joint, 30
 subsection a dependent as of the date of death . .                    weeks;
    (5) WHEN NOT INTERESTED No dependent of                              (d) An index finger at the distal joint, 12
an injured employe shall be deemed a party in                          weeks;
interest to an y pr oceeding by the employe for                           (e) A middle finger and the metacarpal bone
the enf 'orcement' of the employe ' s claim for                        thereof', 45 weeks ;
compensation, nor with respect to the compro-                             (f) A middle finger at the proximal ,joint, 35
mise thereof .by such employe . A compromise                           weeks ;
of all liability entered into by an employe is                            (g) A middle finger at the second. ,joint, 20
binding upon his dependents, except that any                           weeks ;
dependent of a deceased employe may submit                                (h) A middle finger at the distal joint, 8
the compromise for review under s . 102 16 (1) .                       weeks ;
    (6) DIVISION AMONG DEPENDENTS., Benefits                              (i) A ring finger and the metacarpal bone
accruing to a minor dependent child may be                             thereof, 26 weeks ;
awarded to either parent in the discretion of the                         (j) A ring finger at the proximal joint, 20
department. Notwithstanding sub (1), the de-                           weeks;
partment may reassign the death benefit , in                             (k) A ring finger at the second joint, 15
accordance with their respective needs therefor
                       r                                               weeks ;
as between a surviving spouse and children                                (1) A ring finger at the distal joint, 6 weeks ;
designated in sub .. (1) and s . 102 . . 49 ,                             (m) A little finger and the metacarpal bone
   ( 7) C ERTAIN DEFENSE BARRED In proceedings                         thereof', 28 weeks ;
forthe collection of primary death benefit or                            (n) A little finger' at the proximal joint, 22
burial expense it shall not be a defense that the                      weeks ;
applicant, either individually or, as a partner,
           ,                                                              (o) A little finger at the second joint, 16
was an employer of` the . deceased..
                  r                                                    weeks ;
   History : 1975 c 94, 147 ; 1977 c 195;1981. c 92; 1983 a               (p) A little finger at the distal joint, 6 weeks ;
98, " 368 .
   Posthumously born illegitimate child does not qualify as a
                                                                          (10) The loss of a leg at the hip joint, 500
dependent under (4) . Claimants not falling within one of              weeks ;
classifications under (2) (a) will not qualify f 'or .benefi ts, re-      (11) The loss of 'a leg at the knee, 425 weeks ;
gardless of dependency in fact . Larson v : DILHR, 76 W (2d)
595, 252 N W (2d) 33                                                      (12) The loss of a foot at the ankle, 250
                                                                       weeks ;
102 .52 Permanent partial disability sched-                               (13) The loss of the great toe with the
ule . In cases included in the following schedule                      metatarsal bone thereof 83 .1/:3 weeks ;
of' permanent partial disabilities indemnity shall                        (14) L osses of toes on each foot as follows :
be paid for the healing period , and in addition,                         (a) A great toe at the proximall joint, 25
for the period specified , at the rate of two-thirds                   weeks ;
of the average weekly earnings of the employe,                           (b) A great toe at the distal joint, 12 weeks ;
to be computed as provided in s . 10211 :                                 (c) The second toe with the metatarsal bone
  (1) The loss of an arm at the shoulder , 500                         thereof', 25 weeks;
weeks ;                                                                  (d) The-second toe at the proximal ,joint, 8
   (2) The loss of an arm at the elbow, 450                            weeks ;
weeks;                                                                    (e)' The second toe at the second joint, 6
   (3); The loss of a hand, 400 weeks ;                                weeks ; . . .
  (4) The loss of a palm where the thumb                                  (f) The second toe at the distal joint, 4 weeks ;
remains , 325 weeks;                                                      (g) The third, four'th' or little toe with the
                                                                       metatarsal bone thereof', 20 weeks ;
  (5) The loss of ',a thumb and the metacarpal
                                                                          (h) The third, fourth of little toe at the
bone thereof, 160 weeks ;
                                                                       proximal,joint, 6 weeks;
  (6) The loss of a thumb at the proximal joint,                          (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 indus-
proximal ', joints,225 weeks ;                                         trial use, 250 weeks;
   (9) Losses o f' 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 j oint, 50                      or sudden trauma, 55 weeks . .
weeks ; : . . .                                                          His tory :   1 973 c 1 50 ; 1 975 e   147; 1 979 c 278




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 102 .52 WO RKE R 'S CO M PE N SATIO N                                                                                  2598
    In a workmen's compens ation proceeding b r ought b y an             partial or permanent total loss of ' hearing of one
 employe who suffered total deafness in one ear, a skull ft ac-
 ture , loss of taste and smell , facial paralysi s and periods of       or both ears due to prolonged exposure to noise
 intermittent headaches and di zz i ness, the ILHR department            in employment .. "Noise " means sound capable
 did not err in determining that the hear ing loss was a sched-
 uled dis ability under (18) , w i th a separate a ward for the addi-    of producing occupational deafness , "Noisy
 tional physical effects of the deafness, rather than cons i der-        employment" means employment in the pec-
 ing the entire range of di s abilitie s as a whole , since where a
 loss is recognized by a nd compensable unde r th is s ection , the      fozmance of which an employe is subjected to
 schedule therein is exclusive Vande Zande v ILHR Dept ..                noise .
 70 W (2d) 1 086, 2 3 6 NW (2d) 255 .
                                                                             (2) No benefits shall be payable for tempo-
                                                                         rary total or temporary partial disability under
102 . 53 Multiple injury variations . In case an
                                                                         this chapter for loss of hearing due to prolonged
injury causess more than one permanent disabil-
                                                                         exposure to noise .
ity specified in ss . 102 .44 (.3), 102 :52 and 102 .55,
the period for which indemnity shall be payable                              (3) An employe who because of occupational
for each additional equal or lesser disability                           deafness is transferred by his or her employer to
shall be increased as follows :                                          other noisy employment and thereby sustains
   (1) In the case of impairment of both eyes, by                        actual wage loss shall be compensated at the
                                                                         rate provided in s 102 43 (2) , not exceeding
200% .
   (2) In the case of disabilities on the same                           $7,000 in the aggregate from all employers . .
hand covered by s . 102 52 (9), by 100% for the                          "Time of injury " , "occurrence of injury" , and
first equal or lesser disability and by 150% for                         " date of injury" in such case mean the date of
the 2nd and 3rd equal or lesser disabilities                             wage loss .
   (3) In the case of disabilities on the same foot                          (4) Subject to the limitations provided in this
covered by s 102 52 (14), by 20%                                         section, there shall be payable for total occupa-
   (4) In alll other cases, by 20%                                       tional deafness of ' one ear, 36 weeks of compen-
   (5) The aggregate result as computed by                               sation ; for total occupational deafness of both
applying sub . . . (1), and thee aggregate result for                    ears , 216 weeks of compensation ; and for par-
members on the same hand or foot as computed                             tial occupational deafness, compensation shall
by applying subs .. (2) and (3), shall each be taken                     bear such relation to that named in this section
as a unit for applying sub . . (4) as between such                       as disabilities bear to the maximum disabilities
units, and as between such units and each other                          provided in this section .. In cases covered by
disability .                                                             this subsection , "time of injury", "occurrence
   H ist ory: 1973 c 150 ; 1979 c . 278                                  of injury", or "date of injury " shall , at the
                                                                         option of' the employer be the date of occurrence
102 . 55 Application of schedules. (1) When-                             of any of the following events to an employer
ever amputation of 'a member is made between                                (a) Transfer to nonnoisy employment by an
any 2 joints mentioned in the schedule in s .                           employer whose employment has caused occu-
102.52 the determined loss and resultant indem-                         pational deafness ;
nity therefor shall bear such relation to the loss                          (b) The last day actually worked before retir-
and indemnity applicable in case of amputation                          ing, regardless of vacation pay or time , sick
at the joint next nearer the body as such injury                        leave or, any other benefit to which the employe
bears to one of amputation at the joint nearer                          is entitled ;
the body .
                                                                            (c) Termination of the employer-employe
   (2) For the purposes of this schedule perma-                         relationship ; or
nent and complete paralysis of any member
                                                                            (d) Layoff ', provided the layoff is complete
shall be deemed equivalent to the loss thereof' . .
                                                                        and continuous for 6 months ..
   (3) For all other injuries to the members of
the body or its faculties which are specified in                            (5) No claim under sub , (4) may be filed until
this schedule resulting in permanent disability,                        7 consecutive days of removal f r om noisy em-
thoughh the member be not actually severedd or                          ployment after- the time of injury except that
the faculty totally lost, compensation shall bear                       under sub . . (4) (d) the 7 consecutive days ' period
such relation to that named in this schedule as                         may , commence within the last 2 months of
disabilities bear to the disabilities named in this                     layoff'..
schedule, Indemnity in such cases shall be                                  (6) The limitation provisions in this chapter
determined by allowing weekly indemnity dur-                            shall cont r ol claims arising under this section .
ing the healing period resulting from the injury                        Such provisions shall run from the first date
and the percentage of permanent disability re-                          upon which claim may be filed, or from the date
sulting thereafter- as found by the department                          of subsequent death, provided that no claim
                                                                        shall accrue to any dependent unless an award
102. 555 Occupational deafness; definitions.                            has been issued or hearing tests have been
(1) "Occupational deafness" means permanent                             conducted by a competent medical specialist




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  259 9                                                                       WORKER'S CO MP ENSATION 102 .565

 after the employe has been removed from the                               When an employe working subject to this chap-
 noisy environment for a period of 2 months ..                             ter, as a result of exposure in the course of his or
    (7) No payment shall be made to an employe                             her employment over a period of time to toxic
 under this section unless the employe'shall have                          or hazardous substances or conditions, devel-
 worked in noisy employment for a total period                             ops any clinically observable abnormality or
 of at least 90 days for the employer f'r'om whom                          condition which, on competent medical opin-
 the employe claims compensation .                                         ion, predisposes or renders the employ in any
    (8) An employer is liable for the entire occu-                         manner differentially susceptible to disability to
 pational deafness to which his or her employ-                             such an extent that it is inadvisable f 'or the
                                                                                                                         r
 ment has contributed ; but if previous deafness is                        employe to continue employment involving
 established by a hearing test or other competent                          such exposure and the employe is discharged
 evidence, whether or riot the employe was ex-                             from or ceases to continue the employment , and
 posed to noise within the 2 months preceding                              suffers wage loss by reason of such discharge, or
 such test, the employer is not liable for previous                        such cessation, the department may allow such
 loss so established nor is the employer liable for -                      sum as it deems just as compensation therefor,
 any loss for which compensation has previously                            not exceeding $13 ; 000 . In the event a nondis-
 been paidd or awarded                                                    abling condition may also be caused by toxic or
    (9) Any amount paid to an employe under                               hazardous exposure not related to employment,
 this section by any employer shall be credited                           and the employe has a history of such exposure ,
 against compensation payable by any employer                             compensation as ;provided by this section shall
 to such employe for occupational deafness :                              not be allowed nor shall any other remedy for
 under subs .. (3) and (4), No employe shall in the                       loss of earning capacity . . In case of such dis-
 aggregate receive greater compensation from                              charge prior to a finding by the department that
 any or all employers for occupational deafness                           it is inadvisable for the employe to continue in
 than that provided in this section for total                             such employment and if ' it is reasonably proba-
 occupational deafness,                                                   ble that continued exposure would result in
    Histor y: 1971 c . 1 4 8; 1973 c . 1 50 ; 1975 c . 1 47, 199, 200 ;   disability, the liability of the employer who so
 1977 c 195 ;. 1979 c . 278; 1981 c 92;..1983 a . 98                      discharges the employe is primary , and the
    Committee Note, 1971: Where an employer discontinues a                liability of ' the employer's insurer is secondary,
noisy operation and transfers the employes to nonnoisy em-
ployment, they have been unable to make claim for occupa-                 under the same procedure and to the same effect
tional deafness until the conditions of sub . (b), (c) or (d) were        as provided by s . 1'02 . . 62 .
met .. The employe wil l now have th e option of filing a claim
at the time of„transfer at the, current rate of .compensation                 (2) Upon application of any employer or
wit h a 2-1/2%, reduction for each year of age over 50 or wait-
ing until he meets the conditions of sub . (b), (c) or (d) when            employe the department may direct any em-
h e may file, claim at t he then-current rate of compensation              ploye of the employer or an employe who, in the
with a 1/2% reduction for each year of age over 50 . [B ill 371-
A]                                                                         course of his or her employment , has been      n
                                                                           exposed to toxic or hazardous substances or
 102.56 Disfigurement. If an employe is so                                 conditions, to submit to exam ination by a phy-
                                                                           sician or physicians to be appointed by the
 permanently disfigured as to occasion potential
                                                                           department to determ ine whether the employe
wage loss, the department may allow such sum
                                                                           has developed any abnormality or condition
as it deems just as compensation therefor, not
exceeding the employc's average annual earn-                               under sub (1), and the degree thereof. The cost
ings as defined' in s I02 .'ll . In determining the                        of the medical examination shall be borne by
potential for wage loss and the sum awarded,                               the person making application . . The results of
the department shall take into account the age ;                           the examination shall be submitted by the phy-
education ;: training and previous experience                              sician to the department , which shall submit
and earnings of the employe, the employe's                                 copies of the reports to the employer and em-
present occupation and earnings and likelihood                             ploye, who shall have opportunity to rebut the
of future suitable occupational change . . Consid-                         reports provided request therefor is made to the
eration for disfigurement allowance is confined                           department within 10 days from the mailing of
to those areas of the body that are exposed in                            the report to the parties. The department shall
the normal course of employment The depart-                               make its findings as to whether or not it is
merit shall also take into account the appear-                            inadvisable for the employe to continue in his or
ance of'the disfigurement, its location, and the                          her employment .
likelihood of its exposure in occupations for                                ( 3) If ' an employe refuses to submit to the
which the-employe is suited,                                              examination after direction by the commission,
  History : " 1971 c 1 48 ; 1977'c, 1 95,'                                or any member thereof or the department or an
                                                                          examiner thereof, or in any way obstructs the
102 . 565 Toxic or hazardous exposure; medi-                              same, the employe's right to compensation
cal examination ; conditions of liability. (1)                            under this section shall be barred .




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 102 .565 WORKER'S COM PEN SATION                                                                                           2600

    (4) No payment shall be made to an employe                     bility, whichever is the lesser If ' said disabilities
 under this section unless he or she shall have                    result in permanent total disability thee addi-
 worked for a reasonable period of time for the                    tional compensation shall be in such amount as
 employer from whom he or she claims compen-                       will complete the payments which would have
 sation for exposing him or her to toxic or                        been due had said permanent total disability
 hazardous conditions ..                                           resulted from such injury Such additional
    (5) Payment of a benefit under this section to                 compensation shall accrue from the end of the
 an employe shall estop such employe from any                      period for which compensation for permanent
 further recovery whatsoever from any employer                     disability resulting from such injury is payable
 under this section .                                              by the employer, and shall be subject to s ..
   H istory: 1977 c 29, 195 ; 1979 c . 278 .                       102 32 (6) and (7 ) .
                                                                     (2) In the case of the loss or of' the total
102 .57 Violations of safety provisions , pen-                    impairment of a hand , arm, foot , leg or eye, the
alty. If injury is caused by the failure of the                   employer shall pay $4,000 into the state trea-
employer to comply with any statute or any                        suxy . The payment shall be made in all such
lawful order of" the department, compensation                     cases regardless of whether the employe , the
and death benefits provided in this chapter shall                 emp .oye ' s dependent or personal representative
be increased 15% but the total increase may not                   commences action against a 3rd party as pro-
exceed $15,000 Failure of'an employer reason-                     vided in s . 102 . 29 .
ably to enforce compliance by employes with                          (3) All payments received under this section
that statute or order of" :the department consti-                 shall be deposited in the fund established by s
tutes failure, by the employer to complyy with                    102 . .65 .
                                                                     History: 1971 c . 1 48 ; 1971 c . 260 s 92 (4) ; 1973 c 1 50;
that statute or order .                                           1975 c: 147 ; 1977 e . 195 ; 1981 c 92 .
   History:, 1981 c 92 ; 1983 a 98.                                  The fund was not liable for disability benefits where em-
   T his section and 102 .58 may be applicablee in the same       ployer was liable for permanent total disability . Green Bay
workmen's compensation case if the negligence of both are         Soap Co. v ' DIL. HR, 87 W (2d)' S61 ; 275 NW (2d) 190 (Ct
causes of the employe's injury Milwaukee Forge v ILHR             App 1979)
Dept 66 W (2d) 428, 225 NW (2d) 476

                                                                   102. 60 Minor illegally employed , compensa -
102 .58 Decreased compensation . If injury is
                                                                   tion . When the injury is sustained by a minor
caused by the failure of the employe to use                        illegally employed, compensation and death
safety devices which are provided in accordance
                                                                   benefits shall be as follows :
with any statute or lawful order of the depart-
                                                                      (1) Double the amount otherwise recover-
ment and are adequately maintained, and the
                                                                   able, if the injured employe is a minor of permit
use of which is reasonably enforced by the
                                                                  age, and at the time of the injury is employed,
employer ; or if injury results from the employe's
                                                                  required, suffered or permitted to work without
failure to obey any reasonable rule adopted and
                                                                  a written permit issued pursuant to ch 103,
reasonably enforced by the employer for the
                                                                  except as provided in sub, (2) .
safety of`the employe and of which the employe
has notice, or if injury results from the intoxica-                   (2) Treble the amount otherwise recoverable,
tion of the employe, the compensation and                         if the injured employe is a minor of permit age,
death benefit provided in this chapter shall be                   and at the time of the injury is employed,
reduced 15% but thee total reduction may not                      required, suffered or permitted to work without
                                                                  a permit in any place of employment or at any
exceed $15,000.:
  Hi story: 1971 c 148 ; .1981 c 92; 1983 a . 98                  employment in or for which the department
   The burden of proof is on the employer to establish not        acting under authority of'ch . 103, has adopted a
only the fact of intoxication, but a causal connection betweenn   written resolution providingg thatt permitss shall
such condition and the injury or accident. . Haller Beverage
Cotpp v ILHR Dept . 49 W (2d) 233,181 NW (2d) 418 . .             not be issued .
                                                                     (3) Treble the amount otherwise recoverable
102. 59 Preexisting disability, indemnity. (1)                    if the injured employe is a minor of permit age,
Man employe has at the time of injury peima-                      and at the time of the injuryy is employed,
nent disability which if'ithad resulted from such                 required, suffered, or permitted to work at
injury would have entitled him to indemnity for                   prohibited employment .
200 weeks and, as a result of such injury, incurs                    (4) Treble the amount otherwise recoverable,
further permanent disability which entitles him                   if the injured employe is a minor under permit
to indemnity for 200 weeks, he shall be paid                      age and illegally employed
from .m the funds provided in this section addi-                     (5) (a) A permit or certificate of age unlaw-
tional compensation equivalent to thee amount                     fully issued by an officer specified inch . 103, or
which would be payable for' said previous disa-                   unlawfully altered after issuance, without fraud
bility if'it had resulted from such injury or thee                on the part of the employer, shall be deemed a
amount which is payable- for said further disa-                   permit within the provisions of this section.




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 260 1                                                                 WORKER'S COMPENSATION ' oa . sa

    (b) If the employer is misled in emp l oying a                 for a period in excess of 40 weeks in all, except
 minor illegally because of fraudulent written                     as provided ins, 102 . .4.3 (5) .
 evidence of age presented by the minor, the                          ( 4) The department shall determine the rights
 increased compensation provided by this sec-                      and liabilities of'the parties under this section in
 tion shall not be paid to the employe, but shall                  like manner and with like effect as it does other
 be paid into the fund established by s . 102 . .65 .:             issues under compensation .
    (6) If the amount recoverable under this                         History : 1975c. 147 .

 section for temporary disability shall be less
 than the actual loss of wage sustained by the                     102 . 62 Primary and secondary liability ; un-
 minor employe, then liability shall exist for such                changeable. In, case of liability for the in-
 loss of wage .:                                                   creased compensation or increased death bene-
                                                                   fits provided for by s 102 ..5'7, or included in s ..
    (7) Subsections (1) to (6) shall not apply to
                                                                    102..60, the liability of the employer shall be
 employes as defined in s 102,07 (6) if the agency
                                                                   primary and the liability of the insurance carrier
 of publisher shall establish by affirmative proof'
                                                                   shall be secondary In case proceedings are had
 that at the time of the injury the employe was
                                                                   before the department for the recovery of such
 not employed with the actual or constructive
                                                                   increased compensation or increased death ben-
 knowledge of such agencyy or publisher, .
                                                                   efits the department shall set forth in its award
   (8 ) This section shall not apply to l iability                 the amount and order of liability as herein
arising under s 102 06 unless the employer                         provided, Execution shall not be issued against
sought. to be charged knew or should have                          the insurance carrier to satisfy any judgment
known that the minor was illega lly employed by                    covering such increased compensation or in-
the contractor or subcontractor .                                  creased death benefits until execution has first
   (9) The increased compensation orr increased                    been issued against the employer and has been
death benefits recoverable under sub . ( 1 ) may                   returned unsatisfied as to any part thereof Any
not exceed $'7 ;500 .. The increased compensation                  provision in any insurance policy undertaking
or increased death benefits recoverable under                      to guarantee primary liability or to avoid sec-
subs . (2), (3) or (4) may not exceed $15,000                      ondary liability for such increased compensa-
   His tory : 1975 c. 1 47 s 57; 1975 c 199; 1977 c 29, 195 . .   tion or increased death benefits shall be void . . In
                                                                  case' the employer `shall have been adjudged
 102 . 61 . . Indemnity under rehabilitation law ..               bankrupt, or have made an assignment for the
 An employe who is entitledd to receive and has                   benefit of` creditors, or if the employer, other
 received compensation pursuant to this chap-                     than an individual, have gone out of business or
 tec, and who is entitled to and is receiving                     have been dissolved, or if a corporation, its
 instructions pursuantt to the provisions of the                  charter have been forfeited or revoked, the
 act of congress known as the vocational rehabil-                 insurer shall be liable for the payment of in-
 itation act, and amendments thereto (Public                      creased compensation and death benefits with-
 Law 11 .3,78th Congress) as administered by the                  out judgment or execution against the em-
 state in which he holds residence or in which he                 ployer, but without altering the primary
 resided at the time of becoming physically                       liability of the employer .
handicapped, shall, in addition, to his other
indemnity, be paid his actual and necessary                       102. 63 Refun d s by state . Whenever the de-
expenses of travel and, if he receives such in-,                  partment shall certify to the state treasurer that
structions elsewhere than at the place of his                     excess payment has been made under s . 102 .59
residence, his actual and necessary costs of                      or under s . 102 49 (5) either because of mistake
maintenance, during rehabilitation, subject to                    or otherwise, the state treasurer shall within 5
the following conditions and limitations :                        days after receipt of such certificate draw an
                                                                  order against the hind in the state treasury into
   ( 1 ) He must undertake the course of instruc-
                                                                  which such excess was paid, reimbursing such
tion within 60 days from the date when he has
                                                                  payor of such excess payment, together with
sufficiently recovered from his injury to permit
                                                                  interest actually earned thereon if the excess
of his so doing, or as soon thereafter as the
                                                                  payment has been on deposit for at least 6
officer or agency having charge of his instruc-
                                                                  months ..
tion shall provide opportunity for his                              Histo ry : 1981 c 92
rehabilitation .:
   (2) He must continue in rehabilitation train-                  102.64 Attorney general shall represent
ing wth such reasonable regularity as his health                  state and commission . (1) Upon request of the
and situation will permit                                         department of administration, a representative
   (3) He or she may not have expenses of'travel                  of"the department of justice shall represent the
and costs of maintenance on account of training                   state in cases involving payment into or out of




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  102.64 WORKER'S COMPENSATI ON                                                                                                       2602

  the state treasury under s 20 865 (1) (dm) or                               order, set aside in the state treasury suitable
  102 . . 29 .. The department of ,justice, after giving                      reserves to carry to maturity the liability for
  notice to the department of administration ,                                benefits under ss . . 102 .44, 102 . 49, 102,59 and
  may compromise the amount of such payments                                  102 . . 66 . . Such moneys shall be invested by the
  but such compromises shall be subject to review                             investment board in securities authorized in s .
  by the department of industry, labor and                                    620 . . 22 . . :
  human relations . If the spouse of` the deceased                               (3) If the balance in the fund on any June 30
  employe compromises his or her claim for a                                  exceeds 3 times the amount paid out of such
 primary death benefit, the claim of' the children                            fund during the fiscal year ending on such date ,
 of such employe under s . 102 49 shall be com-                               the department shall by order direct an appro-
 promised on the same proportional basis, sub-                                priate proportional reduction of the payments
 ject to approval by the department . If the                                  into such fund under ss 102 ..47, 102 49 and
 persons entitled to compensation on the basis of                             102,59 so that 'the balance in the fund will
 total dependency under s 102 . 51 (1) compro-                                remain at 3 times the payments made in the
 mise their claim, payments under s 102 49 (5)                                preceding fiscal year ..
 (a) shall be compromised on, the same propor-                                   History: ' 1975 c 147 ; 1977 c 29 ; 1981 c 20 s 2202 (28)
 tional basis . .                                                             (a); 1983 a 98 s 31
     (2) Upon request of the department of ad-
 ministration, the attorney gener al shall appear                             102 . 66 Payment of certain barred claims . (1)
 on ` behalf of the state in proceedings upon                                 In the event that there is an otherwise meritori-
 claims for compensation against the state . The                              ousclaim for occupational disease barred solely
 department of j ustice shall represent the inter-                            by thee statute of limitations under s 102 17 (4),
 ests of' the state in proceedings under s . 102 49,                          the department may in lieu of'worker's compen-
 102 59 or 102 . 66 . The department of" ,justice                             sation benefits direct payment from the work
 may compromise claims in such proceedings ,                                 injury supplemental benefit fund under s .
 but the compromises are subject to review by                                 102,65 such compensation and such medical
 the department of industry , labor and human                                expenses as would otherwise be due, based on
 relations . :- Costs incurred by the department of                          the date of injury to or on behalf of the injured
j ustice in prosecuting or defending any claim for                           employe . The benefits shall be supplemental to
payment into or out of ' the work injury supple-                             the extent of compensation liability to any
mental benefit fund under s 102 . . 65 , including    g                      disability or medical benefits payable from any
expert witness and witness fees but not includ-
                                         t                                   group insurance policy where the premium is
ing attorney fees or attorney travel expenses f 'or                          paid in whole or in part by any employer, or
services performed under this . subsection , shall                           under any federal insurance or benefit program
be paid from the work injury supplemental                                    providing disability or medical benefits . . Death
benefit fund .                                                               benefits payable under' any such group policy
    (3) In any action to review an order or award                            do not limit the benefits payable under this
of' the commission, and upon any appeal therein                              section
to the court of appeals, the attorney general                                   (2) In the case' of occupational disease, ap-
shall appear on behalf ' of the commission,                                  propiiate benefits may be awarded from the
whether any other party defendant shall be                                   work injury supplemental benefit fund where
represented or not, except that in actions                                   the status or existence of the employer or its
brought by the state the governor shall appoint                              insurance carrier cannot be determined or
an attorney to appear on behalf' of the                                      where there is otherwise no adequate remedy,
commission                                                                   subject to the limitations contained in sub, (1) .
   History : 19 ' 75 c . 147; 1977 c. 187 s . 134 ; 19'7 '7 c 195 ; . 1979     Hi s tory : 1975 c 147 ; 1979 c. 278
c 110 s . 50 (11) ; 1 98 1 c. 20; 1983 a 98                                     Commission was authorized by 102 66 (1), 1975 slats , to
   Alleged invalidity of (3) cannot be grounded on claimant's                award benefits for claim barred by statute of limitations in
contention that this results in providing public counsel for a               effect at time claim arose . State v. DIL H R, 101 W (2d) 396,
private party litigant, because nowhere does the statute make                304 NW (2d) 758 (1981),
the attorney general, the claimant's attorney, but expressly
states he shall appear on behalf of the department . Hunter v
ILHR Dept . 64 W (2d) 97, 218 NW (2d) 314 .                                  102 .75 Administrative expenses. (1) The de-
                                                                             partment shall assess upon and collect from
102.65 Work injury supplemental benefit                                      each licensed worker's compensation insurance
fund. (1) The moneys payable to the state trea-                              carrier and from each employer exempted
                   .
sury under ss 102 . 47, 102.49 and 102 .. 59, to-                            under s. 102 .28 (2) by special order or by rule,
gether with all accrued interest, shall constitute                           the proportion of total costs and expenses in-
a fund to be known as the "Work Injury Sup-                                  curred by the council on worker's compensa-
plemental Benefit Fund" ..                                                   tion for travel and research and by the depart-
   (2) For proper administration of the moneys                               ment and the commission in the administration
available in the fund the department shall by                                of this chapter for the current fiscal year plus




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2603                        WORKER'S COMPENSATION• 102 .75

 any deficiencies in collections and anticipated (2) The department shall require that pay-
costs from the previous fiscal year , that the total ments for costs and expenses for each fiscal year
indemnity paid or payable under this chapter by shall be made on such dates as the department
each such ca r rier and exempt employer in prescribes by each licensed worker's compensa-
worker' s compensation cases initially closed tion insurance carrier and employer exempted
during the preceding calendar year , other than under ' s 102,28 (2) . Each such payment shall be
for increased , double or treble compensation a sum equal to a proportionate share of the
bore to the total indemnity paid in cases closed annual costs and expenses assessed upon each
the previous calendar year under this chapter by carrier and employer as estimated by the
all carriers and exempt employers other than for department .
increased, double or treble compensation . The (3) The department may not assess the pay-
council on worker's compensation and the com- ments under this section for any year , that the
                                                                       s     n
mission shall annually certify any costs and assessment, is not approved by the joint commit-
expenses for worker's compensation activities tee on finance .e
to the department at such time as the secretary History : 1975 c 39 ; 1975 c . 147 s 54 ; 1977 c 195, 418 ;
requires .                                           198 1 c 20 , 92 .




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