102.565
102.565
Toxic or hazardous exposure; medical examination; conditions of liability. 102.565(1)
(1) When an employe working subject to this chapter, as a result of exposure in the course of his or her employment over a period of time to toxic or hazardous substances or conditions, develops any clinically observable abnormality or condition which, on competent medical opinion, predisposes or renders the employ in any manner differentially susceptible to disability to such an extent that it is inadvisable for the employe to continue employment involving such exposure and the employe is discharged from or ceases to continue the employment, and suffers wage loss by reason of such discharge, or such cessation, the department may allow such sum as it deems just as compensation therefor, not exceeding $13,000. In the event a nondisabling condition may also be caused by toxic or hazardous exposure not related to employment, and the employe has a history of such exposure, compensation as provided by this section shall not be allowed nor shall any other remedy for loss of earning capacity. In case of such discharge prior to a finding by the department that it is inadvisable for the employe to continue in such employment and if it is reasonably probable that continued exposure would result in disability, the liability of the employer who so discharges the employe is primary, and the liability of the employer's insurer is secondary, under the same procedure and to the same effect as provided by
s. 102.62.
102.565(2)
(2) Upon application of any employer or employe the department may direct any employe of the employer or an employe who, in the course of his or her employment, has been exposed to toxic or hazardous substances or conditions, to submit to examination by a physician or physicians to be appointed by the department to determine whether the employe has developed any abnormality or condition under
sub. (1), and the degree thereof. The cost of the medical examination shall be borne by the person making application. The results of the examination shall be submitted by the physician to the department, which shall submit copies of the reports to the employer and employe, who shall have opportunity to rebut the reports provided request therefor is made to the department within 10 days from the mailing of the report to the parties. The department shall make its findings as to whether or not it is inadvisable for the employe to continue in his or her employment.
102.565(3)
(3) If an employe refuses to submit to the examination after direction by the commission, or any member thereof or the department or an examiner thereof, or in any way obstructs the same, the employe's right to compensation under this section shall be barred.
102.565(4)
(4) No payment shall be made to an employe under this section unless he or she shall have worked for a reasonable period of time for the employer from whom he or she claims compensation for exposing him or her to toxic or hazardous conditions.
102.565(5)
(5) Payment of a benefit under this section to an employe shall estop such employe from any further recovery whatsoever from any employer under this section.
102.565 History
History: 1977 c. 29,
195;
1979 c. 278.
102.565 Annotation
Sub. (1) requires that employe's termination be connected to the employment which caused the susceptibility to disease. General Castings Corp. v. Winstead, 156 W (2d) 752, 457 NW (2d) 557 (Ct. App. 1990).
102.57
102.57
Violations of safety provisions, penalty. If injury is caused by the failure of the employer to comply with any statute or any lawful order of the department, compensation and death benefits provided in this chapter shall be increased 15% but the total increase may not exceed $15,000. Failure of an employer reasonably to enforce compliance by employes with that statute or order of the department constitutes failure by the employer to comply with that statute or order.
102.57 History
History: 1981 c. 92;
1983 a. 98.
102.57 Annotation
This section and 102.58 may be applicable in the same workmen's compensation case if the negligence of both are causes of the employe's injury. Milwaukee Forge v. ILHR Dept. 66 W (2d) 428, 225 NW (2d) 476.
102.58
102.58
Decreased compensation. If injury is caused by the failure of the employe to use safety devices which are provided in accordance with any statute or lawful order of the department and are adequately maintained, and the use of which is reasonably enforced by the employer, or if injury results from the employe's failure to obey any reasonable rule adopted and reasonably enforced by the employer for the safety of the employe and of which the employe has notice, or if injury results from the intoxication of the employe by alcohol beverages, as defined in
s. 125.02 (1), or use of a controlled substance, as defined in
s. 961.01 (4), or a controlled substance analog, as defined in
s. 961.01 (4m), the compensation and death benefit provided in this chapter shall be reduced 15% but the total reduction may not exceed $15,000.
102.58 Annotation
The burden of proof is on the employer to establish not only the fact of intoxication, but a causal connection between such condition and the injury or accident. Haller Beverage Corp. v. ILHR Dept. 49 W (2d) 233, 181 NW (2d) 418.
102.59
102.59
Preexisting disability, indemnity. 102.59(1)
(1) If an employe has at the time of injury permanent disability which if it had resulted from such injury would have entitled him or her to indemnity for 200 weeks and, as a result of such injury, incurs further permanent disability which entitles him or her to indemnity for 200 weeks, the employe shall be paid from the funds provided in this section additional compensation equivalent to the amount which would be payable for said previous disability if it had resulted from such injury or the amount which is payable for said further disability, whichever is the lesser. If said disabilities result in permanent total disability the additional compensation shall be in such amount as will complete the payments which would have been due had said permanent total disability resulted from such injury. This additional compensation accrues from, and may not be paid to any person before, the end of the period for which compensation for permanent disability resulting from such injury is payable by the employer, and shall be subject to
s. 102.32 (6) and
(7). No compromise agreement of liability for this additional compensation may provide for any lump sum payment.
102.59(1m)
(1m) A compromise order issued under
s. 102.16 (1) may not be admitted as evidence in any action or proceeding for benefits compensable under this section.
102.59(2)
(2) In the case of the loss or of the total impairment of a hand, arm, foot, leg or eye, the employer shall pay $7,000 into the state treasury. The payment shall be made in all such cases regardless of whether the employe, the employe's dependent or personal representative commences action against a 3rd party as provided in
s. 102.29.
102.59(3)
(3) All payments received under this section shall be deposited in the fund established by
s. 102.65.
102.59 Annotation
The fund was not liable for disability benefits where employer was liable for permanent total disability. Green Bay Soap Co. v. DILHR, 87 W (2d) 561, 275 NW (2d) 190 (Ct. App. 1979).
102.60
102.60
Minor illegally employed, compensation. When the injury is sustained by a minor illegally employed, compensation and death benefits shall be as follows:
102.60(1)
(1) Double the amount otherwise recoverable, if the injured employe is a minor of permit age, and at the time of the injury is employed, required, suffered or permitted to work without a written permit issued pursuant to
ch. 103, except as provided in
sub. (2).
102.60(2)
(2) Treble the amount otherwise recoverable, if the injured employe is a minor of permit age, and at the time of the injury is employed, required, suffered or permitted to work without a permit in any place of employment or at any employment in or for which the department acting under authority of
ch. 103, has adopted a written resolution providing that permits shall not be issued.
102.60(3)
(3) Treble the amount otherwise recoverable if the injured employe is a minor of permit age, and at the time of the injury is employed, required, suffered, or permitted to work at prohibited employment.
102.60(4)
(4) Treble the amount otherwise recoverable, if the injured employe is a minor under permit age and illegally employed.
102.60(5)(a)(a) A permit or certificate of age unlawfully issued by an officer specified in
ch. 103, or unlawfully altered after issuance, without fraud on the part of the employer, shall be deemed a permit within the provisions of this section.
102.60(5)(b)
(b) If the employer is misled in employing a minor illegally because of fraudulent written evidence of age presented by the minor, the increased compensation provided by this section shall not be paid to the employe, but shall be paid into the fund established by
s. 102.65.
102.60(6)
(6) If the amount recoverable under this section for temporary disability shall be less than the actual loss of wage sustained by the minor employe, then liability shall exist for such loss of wage.
102.60(7)
(7) Subsections (1) to
(6) shall not apply to employes as defined in
s. 102.07 (6) if the agency or publisher shall establish by affirmative proof that at the time of the injury the employe was not employed with the actual or constructive knowledge of such agency or publisher.
102.60(8)
(8) This section shall not apply to liability arising under
s. 102.06 unless the employer sought to be charged knew or should have known that the minor was illegally employed by the contractor or subcontractor.
102.60(9)
(9) The increased compensation or increased death benefits recoverable under
sub. (1) may not exceed $7,500. The increased compensation or increased death benefits recoverable under
subs. (2),
(3) or
(4) may not exceed $15,000.
102.61
102.61
Indemnity under rehabilitation law. 102.61(1)
(1) Subject to
sub. (1m), an employe who is entitled to receive and has received compensation under this chapter, and who is entitled to and is receiving instructions under
29 USC 701 to
797b, as administered by the state in which the employe resides or in which the employe resided at the time of becoming physically handicapped, shall, in addition to other indemnity, be paid the actual and necessary expenses of travel and, if the employe receives instructions elsewhere than at the place of residence, the actual and necessary costs of maintenance, during rehabilitation, subject to the conditions and limitations specified in
sub. (1r).
102.61(1m)(a)(a) If the department has determined under
sub. (1) that an employe is eligible for vocational rehabilitation services under
29 USC 701 to
797b, but that the department cannot provide those services for the employe, the employe may select a private rehabilitation counselor certified by the department to determine whether the employe can return to suitable employment without rehabilitative training and, if that counselor determines that rehabilitative training is necessary, to develop a rehabilitative training program to restore as nearly as possible the employe to his or her preinjury earning capacity and potential.
102.61(1m)(b)
(b) Notwithstanding
s. 102.03 (4), an employe whose date of injury is before May 4, 1994, may receive private rehabilitative counseling and rehabilitative training under
par. (a).
102.61(1m)(c)
(c) The employer or insurance carrier shall pay the reasonable cost of any services provided for an employe by a private rehabilitation counselor under
par. (a) and, subject to the conditions and limitations specified in
sub. (1r) (a) to
(c) and by rule, if the private rehabilitation counselor determines that rehabilitative training is necessary, the reasonable cost of the rehabilitative training program recommended by that counselor, including tuition, fees, books and maintenance and travel expenses. Notwithstanding that the department of industry, labor and job development may authorize under
s. 102.43 (5) a rehabilitative training program that lasts longer than 80 weeks, a rehabilitative training program that lasts 80 weeks or less is presumed to be reasonable.
102.61(1m)(d)
(d) If an employe receives services from a private rehabilitation counselor under
par. (a) and later receives similar services from the department of health and family services under
sub. (1) without the prior approval of the employer or insurance carrier, the employer or insurance carrier is not liable for temporary disability benefits under
s. 102.43 (5) or for travel and maintenance expenses under
sub. (1) that exceed what the employer or insurance carrier would have been liable for under the rehabilitative training program developed by the private rehabilitation counselor.
102.61(1m)(e)
(e) Nothing in this subsection prevents an employer or insurance carrier from providing an employe with the services of a private rehabilitation counselor or with rehabilitative training under
sub. (3) before the department of health and family services makes its determination under
par. (a).
102.61(1m)(f)
(f) The department of industry, labor and job development shall promulgate rules establishing procedures and requirements for the private rehabilitation counseling and rehabilitative training process under this subsection. Those rules shall include rules specifying the procedure and requirements for certification of private rehabilitation counselors.
102.61(1r)
(1r) An employe who receives a course of instruction or other rehabilitative training under
sub. (1) or
(1m) is subject to the following conditions and limitations:
102.61(1r)(a)
(a) The employe must undertake the course of instruction within 60 days from the date when the employe has sufficiently recovered from the injury to permit so doing, or as soon thereafter as the officer or agency having charge of the instruction shall provide opportunity for the rehabilitation.
102.61(1r)(b)
(b) The employe must continue in rehabilitation training with such reasonable regularity as health and situation will permit.
102.61(1r)(c)
(c) The employe may not have expenses of travel and costs of maintenance under
sub. (1) or costs of private rehabilitation counseling and rehabilitative training under
sub. (1m) on account of training for a period in excess of 80 weeks in all, except as provided in
s. 102.43 (5).
102.61(2)
(2) The department of industry, labor and job development, the commission and the courts shall determine the rights and liabilities of the parties under this section in like manner and with like effect as that department, the commission and the courts do other issues under compensation. A determination under this subsection may include a determination based on the evidence regarding the cost or scope of the services provided by a private rehabilitation counselor under
sub. (1m) (a) or the cost or reasonableness of a rehabilitative training program developed under
sub. (1m) (a).
102.61(3)
(3) Nothing in this section prevents an employer or insurance carrier from providing an employe with the services of a private rehabilitation counselor or with rehabilitative training if the employe voluntarily accepts those services or that training.
102.61 Annotation
Federal vocational rehabilitation law cited in (1) is now found in Rehabilitation Act of 1973, P.L. 93-112. See also note to Art. IV, sec. 1, citing Dane County Hospital & Home v. LIRC, 125 W (2d) 308, 371 NW (2d) 815 (Ct. App. 1985).
102.61 Annotation
Under 102.42 (9) (a), 102.43 (5) and this section, department may extend temporary disability, travel expense and maintenance costs beyond forty weeks if additional training is warranted. Beloit Corp. v. State, 152 W (2d) 579, 449 NW (2d) 299 (Ct. App. 1989).
102.61 Annotation
The provisions of this section encompass formalized courses of instruction only. Johnson v. LIRC, 177 W (2d) 736, 503 NW (2d) 1 (Ct. App. 1993).
102.62
102.62
Primary and secondary liability; unchangeable. In case of liability for the increased compensation or increased death benefits provided for by
s. 102.57, or included in
s. 102.60, the liability of the employer shall be primary and the liability of the insurance carrier shall be secondary. In case proceedings are had before the department for the recovery of such increased compensation or increased death benefits the department shall set forth in its award the amount and order of liability as herein provided. Execution shall not be issued against the insurance carrier to satisfy any judgment covering such increased compensation or increased death benefits until execution has first been issued against the employer and has been returned unsatisfied as to any part thereof. Any provision in any insurance policy undertaking to guarantee primary liability or to avoid secondary liability for such increased compensation or increased death benefits shall be void. In case the employer shall have been adjudged bankrupt, or have made an assignment for the benefit of creditors, or if the employer, other than an individual, have gone out of business or have been dissolved, or if a corporation, its charter have been forfeited or revoked, the insurer shall be liable for the payment of increased compensation and death benefits without judgment or execution against the employer, but without altering the primary liability of the employer.
102.63
102.63
Refunds by state. Whenever the department shall certify to the state treasurer that excess payment has been made under
s. 102.59 or under
s. 102.49 (5) either because of mistake or otherwise, the state treasurer shall within 5 days after receipt of such certificate draw an order against the fund in the state treasury into which such excess was paid, reimbursing such payor of such excess payment, together with interest actually earned thereon if the excess payment has been on deposit for at least 6 months.
102.63 History
History: 1981 c. 92.
102.64
102.64
Attorney general shall represent state and commission. 102.64(1)(1) Upon request of the department of administration, a representative of the department of justice shall represent the state in cases involving payment into or out of the state treasury under
s. 20.865 (1) (fm),
(kr) or
(ur) or
102.29. The department of justice, after giving notice to the department of administration, may compromise the amount of such payments but such compromises shall be subject to review by the department of industry, labor and job development. If the spouse of the deceased employe compromises his or her claim for a primary death benefit, the claim of the children of such employe under
s. 102.49 shall be compromised on the same proportional basis, subject to approval by the department. If the persons entitled to compensation on the basis of total dependency under
s. 102.51 (1) compromise their claim, payments under
s. 102.49 (5) (a) shall be compromised on the same proportional basis.
102.64(2)
(2) Upon request of the department of administration, the attorney general shall appear on behalf of the state in proceedings upon claims for compensation against the state. The department of justice shall represent the interests of the state in proceedings under
s. 102.49,
102.59 or
102.66. The department of justice may compromise claims in such proceedings, but the compromises are subject to review by the department of industry, labor and job development. Costs incurred by the department of justice in prosecuting or defending any claim for payment into or out of the work injury supplemental benefit fund under
s. 102.65, including expert witness and witness fees but not including attorney fees or attorney travel expenses for services performed under this subsection, shall be paid from the work injury supplemental benefit fund.
102.64(3)
(3) In any action to review an order or award of the commission, and upon any appeal therein to the court of appeals, the attorney general shall appear on behalf of the commission, whether any other party defendant shall be represented or not, except that in actions brought by the state the governor shall appoint an attorney to appear on behalf of the commission.
102.64 Annotation
Alleged invalidity of (3) cannot be grounded on claimant's contention that this results in providing public counsel for a private party litigant, because nowhere does the statute make the attorney general the claimant's attorney, but expressly states he shall appear on behalf of the department. Hunter v. ILHR Dept. 64 W (2d) 97, 218 NW (2d) 314.
102.65
102.65
Work injury supplemental benefit fund. 102.65(1)
(1) The moneys payable to the state treasury under
ss. 102.47,
102.49 and
102.59, together with all accrued interest, shall constitute a fund to be known as the "Work Injury Supplemental Benefit Fund".
102.65(2)
(2) For proper administration of the moneys available in the fund the department shall by order, set aside in the state treasury suitable reserves to carry to maturity the liability for benefits under
ss. 102.44,
102.49,
102.59 and
102.66. Such moneys shall be invested by the investment board in accordance with
s. 25.14 (5).
102.65(3)
(3) If the balance in the fund on any June 30 exceeds 3 times the amount paid out of such fund during the fiscal year ending on such date, the department shall, by order, direct an appropriate proportional reduction of the payments into such fund under
ss. 102.47,
102.49 and
102.59 so that the balance in the fund will remain at 3 times the payments made in the preceding fiscal year.
102.66
102.66
Payment of certain barred claims. 102.66(1)
(1) In the event that there is an otherwise meritorious claim for occupational disease barred solely by the statute of limitations under
s. 102.17 (4), the department may in lieu of worker's compensation benefits direct payment from the work injury supplemental benefit fund under
s. 102.65 such compensation and such medical expenses as would otherwise be due, based on the date of injury to or on behalf of the injured employe. The benefits shall be supplemental to the extent of compensation liability to any disability or medical benefits payable from any group insurance policy where the premium is paid in whole or in part by any employer, or under any federal insurance or benefit program providing disability or medical benefits. Death benefits payable under any such group policy do not limit the benefits payable under this section.
102.66(2)
(2) In the case of occupational disease, appropriate benefits may be awarded from the work injury supplemental benefit fund where the status or existence of the employer or its insurance carrier cannot be determined or where there is otherwise no adequate remedy, subject to the limitations contained in
sub. (1).
102.66 History
History: 1975 c. 147;
1979 c. 278.
102.66 Annotation
Commission was authorized by s. 102.66 (1), 1975 stats., to award benefits for claim barred by statute of limitations in effect at time claim arose. State v. DILHR, 101 W (2d) 396, 304 NW (2d) 758 (1981).
102.66 Annotation
Where disabled worker could have claimed permanent total disability benefits under this section but failed to do so before dying of causes unrelated to compensable injury, surviving dependent may not claim the disability benefits. State v. LIRC, 136 W (2d) 281, 401 NW (2d) 578 (1987).
102.75
102.75
Administrative expenses. 102.75(1)
(1) The department shall assess upon and collect from each licensed worker's compensation insurance carrier and from each employer exempted under
s. 102.28 (2) by special order or by rule, the proportion of total costs and expenses incurred by the council on worker's compensation for travel and research and by the department and the commission in the administration of this chapter for the current fiscal year plus any deficiencies in collections and anticipated costs from the previous fiscal year, that the total indemnity paid or payable under this chapter by each such carrier and exempt employer in worker's compensation cases initially closed during the preceding calendar year, other than for increased, double or treble compensation bore to the total indemnity paid in cases closed the previous calendar year under this chapter by all carriers and exempt employers other than for increased, double or treble compensation. The council on worker's compensation and the commission shall annually certify any costs and expenses for worker's compensation activities to the department at such time as the secretary requires.
102.75(2)
(2) The department shall require that payments for costs and expenses for each fiscal year shall be made on such dates as the department prescribes by each licensed worker's compensation insurance carrier and employer exempted under
s. 102.28 (2). Each such payment shall be a sum equal to a proportionate share of the annual costs and expenses assessed upon each carrier and employer as estimated by the department.
102.75(4)
(4) From the appropriation under
s. 20.445 (1) (ha), the department shall allocate the amounts that it collects in application fees from employers applying for exemption under
s. 102.28 (2) and the annual amount that it collects from employers that have been exempted under
s. 102.28 (2) to fund the activities of the department under
s. 102.28 (2) (b) and
(c).
102.80
102.80
Uninsured employers fund. 102.80(1)
(1) There is established a separate, nonlapsible trust fund designated as the uninsured employers fund consisting of all the following:
102.80(1)(e)
(e) All moneys received by the department for the uninsured employers fund from any other source.
102.80(3)(a)(a) If the cash balance in the uninsured employers fund equals or exceeds $4,000,000, the secretary shall consult the council on worker's compensation within 45 days after that cash balance equals or exceeds $4,000,000. The secretary may file with the secretary of administration, within 15 days after consulting the council on worker's compensation, a certificate attesting that the cash balance in the uninsured employers fund equals or exceeds $4,000,000.
102.80(3)(ag)
(ag) The secretary shall monitor the cash balance in, and incurred losses to, the uninsured employers fund using generally accepted actuarial principles. If the secretary determines that the expected ultimate losses to the uninsured employers fund on known claims and on incurred, but not reported, claims exceed 85% of the cash balance in the uninsured employers fund, the secretary shall consult with the council on worker's compensation. If the secretary, after consulting with the council on worker's compensation, determines that there is a reasonable likelihood that the cash balance in the uninsured employers fund may become inadequate to fund all claims under
s. 102.81 (1), the secretary shall file with the secretary of administration a certificate attesting that the cash balance in the uninsured employer's fund is likely to become inadequate to fund all claims under
s. 102.81 (1) and specifying a date after which no new claims under
s. 102.81 (1) will be paid.
102.80(3)(am)
(am) If the secretary files the certificate under
par. (a), the department may expend the moneys in the uninsured employers fund, beginning on the first day of the first July after the secretary files that certificate, to make payments under
s. 102.81 (1) to employes of uninsured employers and to obtain reinsurance under
s. 102.81 (2).
102.80(3)(b)
(b) If the secretary does not file the certificate under
par. (a), the department may not expend the moneys in the uninsured employers fund.
