chapter 102 · 1959 workmen's compensation (e) "municipality" includes county,...

1959

WORKMEN 'S COMPENSATION

(e) "Municipality" includes county, city,,town, village, school district, sewer district,drainage district and other public or quasi-pub-lic corporations

(f) "Time of injury", "occurrence of injury",or "date of injury" means the date of the acci-dent which caused the injury, or in the case ofdisease, the last day of work for the last em-ployer whose employment caused disability, ex-cept that in case of occupational deafness thedefinition in s . 102 555 controls .

(g) "Department" means thee departmentt ofindustry, labor and human relations . .

(h) "Commission" means the industry, laborand human relations commission .

(i) "Examiner" includes the administratorand deputy administrator of the workmen'scompensation division of the department

102.03 Conditi ons of liability . (1) Liabilityunder this chapter shall exist against an em-ployer only where the following conditions con-cur :

102 .01 Definitions. (1) The provisions ofthis chapter may be known , cited and referredto as the "Workmen's Compensation Act " andallowances, recoveries and liabilities under orpursuant to this act constitute and may beknown, designated and referred to as "Work-men's Compensation "

(2) In this chapter :(a) "Act" means "chapter"(b) "Compensation" means workmen's com-

pensation .(c) "Primary compensation and death bene-

fit" means compensation or indemnity for disa-bility or death benefit, other than increased,double or treble compensation or death benefit . .

(d) "Injury" means mental or physical harmto an employe caused by accident or disease, andalsO means damage to or destruction of ' axtificialmembers, dental appliances, teeth, hearing aidssand eyeglasses, but, in the case of ' hearing aids oreyeglasses, only if" such damage or destructionresulted from accident which also caused per-sonal inj ury entitling the employe to compensa-tion therefor either for disability or treatment .

WORKMEN'S COMPENSATION 102.03

CHAPTER 102

1 02 .01' Def i ni t io n s .-102 . 0 3 Cond itio n s of lia bilit y.10204 De fi niti on of employer .

1Elec ti o n by employer ., wi th drawal .

10 2 06 Join t li ability of emp loyer an d con t ractor; loan edemp l oyes

10207 Emp l oye defined10 2 08 Nonelec ti on by epil ept ics, b lin d perso n s,

cor pora tion off i cers,102 11 E arnings, meth od of comput a tion1 02 12 Not i ce o f injury.y exception , laches,102 13 Examinati o n by phy sici an, co mp ete n t witnesses,

exc lusi on of ev i de n ce, a utop sy .1 02 . 14 Jurisdiction of'dep artmen t ; advisory committee .1 02 .1 5 Rules o f procedure: t r ansc ript s102 .1 6 Subm iss ion of disputes.s c ont ribu ti ons by

empl oyes102 1'1 Proce d ure: no tice of hearing: w i tn esses .s

con te mpt ;; tes ti mony, medica l e xamination102 18 Findin g s, o rders a nd awards102 19 Alie n depend ents ; paymen ts t hrough con su lar

offi ce rs .102 195 Emp loyes con fined in i nst i tu tions : payme n t o f

be n e fits1 0 2 2 0- Judgment on award.102 2 1 Payment of a w ards b y municip aliti es,102 2 2 Pena lt y fo r de lay e d payments1 02 . 2 3 Judicial rev i ew :1 02 24 R emand i n g r ecor d10225 Appeal fr om j udgmen t on awar d10226 Fees a nd cost s .-102 2 7 Claims u na ssig n ab l e, and exempt102 2 8 P refere n ce of claims : w o rk men's compe n sa ti on

ins u r ance .1 02 .29 Third pa r t y l i ability .1 0 2 30 Other in s u ra n ce not affected ; l iab i lit y o f insure d

emp loye r.102 31 Workmen's compensation i n s urance; p o licy

reg ul at i ons.102 32 Continu ing liability; gu arantee settlement, gro s s

payment. .102 . 3 3 Blank s and record s1 02 .3 4 ' Nonelect io n, notice by employ e r10235 Pen al ti es. .102 . 3 7 Employ er s' records102 . 38 R eco rds of payments; r ep orts thereon..102 39 Gen eral orders; application of s t at ut es

. 102 40 Repo rts no t e vidence in act ions.102 . 42 Incidental compen sati on..10243 Week ly com p ensation schedul e .1 02,44 Maxim um li mitat ions,1 02 45 Benefi ts payab le to m i nors; how pa id

: 102 46 Dea th be ne fi t..10247 De ath bene fit, con t in ue d102 48 Death benef'it' continued.102 49 Additi onal deat h b en efit for ch ildren .n st a te' fu n d102 50 Bu ria l ex p e nses .10251 Dependen t s .1 02 .52 Permane nt pa rtia l disa b i li t y sc h edu le .102 53 M u ltip le inj u ry and age var iati ons .102 55 Applica ti on of schedul es.102555 Occ upat i onal d eafness; d e fin itio n s .10256 D isfigurement .1 0 2 . 565 Si licos is, nondisabling: medical examination :

co ndit ions of liab ility.10257 Viola ti ons of safety prov i sio ns, pe nal ty .1 02 . 5 8 Decr eased compensa t io n .102 59 P re -exis tin g disability, indemnity, s tat e fund ,

inves tm en t .1 02 60 Minor ill eg all y em p loye d , com pe nsati on .1 02 . 6 1 In demn i ty under re h abi li tat i o n law102 62 P r im ary and s eco nd ary li ab ilit y ; u ncha n gea ble .1 02b 3 Re fu nds by state1 02 .. 6 4 . A ttorney ge n e ra l sha ll : re p resent s t ate and

commi ssion .

Electronically scanned images of the published statutes.

(a) Where the employe sustains an injury .(b) Where, at the time of the injury, both the

employer and employe are subject to the p t ovi-sions of this chapter .

(c) I Where, at the time of the injury, theemploye is performing service growing out ofand incidental to his employment . Every em-ploye going to and from his employment in theordinary and usual way, while on the premisesof' his employer, or while in the immediate v icin-ity thereof ' if the injury results from an occur-rence on the premises, shall be deemed to beper forming service growing out of and incidentalto his employment ; and so shall any fireman ormunicipal utility employe responding to a callfor assistance outside the limits of his city orvillage , unless such response is in violation oflaw ., The premises of his employee ' shall bedeemed to include also the premises of ' an,y otherperson on whose premises service is being per-formed .

2 To enhance the morale and efficiency ofpublic employes in this state and attract quali-fied personnel to the public service, it is the pol-icy of the state that the benefits of this chaptershall extend and be granted to employes in theservice of the state or of any municipalit y thereinon the same basis, in the same manner, under thesame conditions, and with like right of ' recoveryas in the case of employes of persons, firms orprivate corporations . Accordingly, the sameconsiderations, standards, and rules of decisionshall apply in all cases in determining whetherany emplo ,ye under this chapter, at the time ofthe injury, was performing service growing outof and incidental to his employment . For thepurposes of thiss subsection no differentiationshall be made among any of the classes of em-ployers enumerated in s . 102 04 or of employesenumerated in s 102 . . 07; and no statutes, o t di-narices, or administrative regulations otherwiseapplicable to any employes enumerated in s . .102 07 shalll be controlling . .(d) Where the injury is not intentionally self=

inflicted .(e) Where the accident or disease causing in-

jury arises out of his employment .(f) Every employe whose employment re-

quires him to travel shall be deemed to be per-forming service growing out of and incidental tohis employment at alltimes while on a trip,except when engaged in a deviation for a privateor personal purpose . . Acts reasonably necessaryfor living or incidental thereto shall not be re-garded as such a deviation . Any accident or dis-ease arising out of a hazard of such service shallbe deemedd to arise out of his employment .

(g) For the purposes of ' this chapter, membersof the state legislature shalll be deemed covered

102 .04 Definition of employer . (1) Thefollowing shall constitute employers subject tothe provisions of this chapter, within the mean-ing of' s 102 .03 :

(a) The state, each county, city, town, village,school district, sewer district, drainage districtand otherr public or quasi-public corporationstherein .

(b) 1 Every person who usually employs 3 ormore employes, whether in one or more trades,businesses, professions or occupations, andwhether in one or more locations .

2 . Every person who usually employs less than3 employes, provided he has paid wages of $500or more in any calendar quarter for services per-formed in this state . Such employer shall becomesubject as of the first day of the-calendar yearnext succeeding suchh quarter.

3 . This paragraph shalll not apply to farmersor farm labor.

(c) Every person engaged in farming who onany 20 consecutive or nonconsecutive days dur-ing a calendar year employes 6 or more em-ployes, whether in one or more locations . . Theprovisions of this chapter shall apply to suchemployer 10 days after the twentieth such day . .

(d) Every person to whom par's (a), (b) and(c) are not applicable, who has any person inservice under, any contract of hire, express orimp l ied, oral or written, and who, at or prior tothee time of'the injury to the employe for whichcompensation may be claimed, shall, as providedin s ; 102 .05 ;• have elected to become subject tothe provisions of this chapter, and who shal l not,prior to such accident, have effected a with-drawal of such election .

102 .03 WORKMEN 'S COMPENSATION 1960

while traveling to and from the capital in theperformance of their function as legislators, andwhile traveling in the performance of their offi-cial duties as members of committees or otherbodies created by the legislature or the governor,either during the session or during the interim . .

(2) Where such conditions exist the right tothe recovery of compensationn pursuant to thischapter shall be the exclusive remedy against theemployer and the workmen's compensation in-surance carrier .

(3) In the case of disease intermittent periodsof temporary disability shall create separateclaims, andd permanent partial disability shallcreate a claim separate from a claim for anysubsequentt disability which latteri disability isthe result of an intervening cause .

(4) The right to compensation and the amountthereof ' shall in all cases ' be determined in ac-cordance with the provisions of law in effect asof the date of the injury


of at least $500 for employment in this state inany calendar quarter in a calendar year may filea withdrawal notice with the department,which withdrawal shall take effect 30 days afterthe date of such filing or at such later date as isspecified in the notice ..

(2) Any employer who shall enter into a con-tract for the insurance of compensation, oragainst liability therefor, shall be deemedthereby to have elected to accept the provisionsof this chapter, and such election shall includefarm laborers, domestic servants and employesnot in the course of'a trade, business, professionor occupation of the employer if such intent isshown by the terms of the . policy Such electionshall remain in `force until withdrawn in themanner provided in sub, (1)

(3) Any person engaged in farming who hasbecome subject to this chapter may withdraw byfiling with the department a notice of with-drawal, providing he has not employed 6 ormore employes as defined by s .. 102 07 (5) on 20or more days during the current or previouscalendar year Such withdrawal shall be effective30 days after the date of receipt by the depart-ment, or at such later date as is specified in thenotice. . Such person may again become subject tothis chapter as provided by s . 102 04 (1) (c) and(d)

102 .06 Joint liability of employer andcontractor; loaned employes. An employershall be liable fbx compensation to an employeof a contractor or subcontractor under him whois not subject to this chapter, or who hass notcomplied with the conditions of's . 102 28 (2) inany case where such employer would have beenliable for compensation if such employe hadbeen working directly fox him, including alsowork in the erection, alteration, repair or demo-lition of improvements or of fixtures uponpremises of such employer which are used or tobe used in the operations of such employer . . Thecontractor or subcontractor (if he is subject tothe workmen's compensation act) shall also beliable for such compensation;' but the employeshall not recover compensation f'or, the same in-jury from more thann one party In the samemanner, under the same conditions, and withlike right of recovery, as in the case of an em-ploye of a contractor or subcontractor, ; de-scribed above, an employer shall also be liablefor compensation to, an employe who has beenloaned by him to another' employer The em-ployer who becomes liable for and pays suchcompensation may recover the same from suchcontractor, subcontractor or other employer forwhom the employe was working at the time ofthe injury if' such contractor, subcontractor or

(2) Members of partnerships shall not becountedd as employes . Except as provided in s102 07 (5) (a), a person under contract of hire forthe performance of ' any service for any employersubject to this section (1961 .) shall not constitutean employer of ' any other person with respect tosuch service and such other person shall, withrespect to such service, be deemed to be an em-ploye only of such employer for whom the ser-vice is being performed .

(3) As used in this chapter "farming" meansthe operation of farm premises owned or rentedby the operator. . "Farm premises" means areasused for operations herein set forth, but does notinclude other areas, greenhouses or other similarstructures unless used principally for the pro-duction of food and farm plants . . "Farmer"means any person engaged in farming as defined .Operation of farm premises shall be deemed tobe the , planting and cultivating of the soilthereof; the raisingg and harvesting of agricul-tural, horticultural or arboricultutal cropsthereon; the raising, breeding, tending, trainingand management of livestock, bees, poultry, fur-bearing animals, wildlife or aquatic life, or theirproducts, thereon ; the processing, drying, pack-ing, packaging, freezing, grading, storing, deliv-eiing to storage, to market or to a carrier fortransportation to market, distributing directly toconsumers or marketing any of the above-namedcommodities, substantially all of which havebeen planted or produced thereon; the clearingof such premises and the salvaging of timber andmanagement and use of wood lots thereon, butnott including logging, lumbering or wood cut-ting operations unless conducted as an accessoryto other farming operations ; the managing, con-serving, improving and maintaining of suchpremises or the tools, equipment and improve-ments thereon and the exchange of labor, ser-vices or the exchange of use of equipment withother farmers in pursuing such activities . Theoperation for not to exceed 30 days during anycalendar year, by any person deriving his princi-pal income from farming, of farm machinery inperfo rming farming services for other farmersfor a consideration other than exchange of laborshall be deemed farming, Operation of suchpremises shall be deemed to include also anyother - activities commonly considered to befarming whether conducted on or off such piem-ises by the farm operator .

102.05 Election by employer, withdrawal .(1) An employer who has had no employe atany time within a continuous period of 2 yearsshall be deemed to have effected withdrawal,which shalll be effective on the last day of` suchperiod . An employer who has not usually em-ployed 3 employes and who has not paidd wages

1961 WORKMEN'S COMPENSATION 102 .06


subject to this chapter, or (in the absence of suchagencies) of each publisher's (or other interme-diate) selling agency which is subject to this

maga-zines

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depart-ment

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municipal-toitsity

such,(8)

himself out

regulations

to effectuate

con-ditions,

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(11)s

102.07 Employe defined . "Employe" asused chapter, or (in the absence of `all such agencies)in this chapter means :(1) of each publisher, whose newspapers or

he sells or distributes ., Such a person shallof the state, or of any municipalitytherein not be counted in determining whether an inter-whether elected or under any appoint-ment mediate agency or publisher is subject to this .

, or contract of hire, express or implied, andwhether chapter

.a resident or employed or injured Every member of any volunteer fire

within (7com- pany or fire under eh . 213municipality may require a bond from a contrac-tor

or any legally organized rescue squad shall beto protect it against compensation to em-ployes deemed an employe of such company,

or squad.. Every such member, whileserv- ing as an auxiliary policeman at emergency,

Any peace officer shall be considered an mploye of saidemploye shall also be deemed ancom- pany, department or squad If such company,

peace or in the pursuit and capture of thosecharged department or squad has not insured its liabilitywith crime employes, the

(3). for compensation

or county within which such company, de-from payingg teachers, policemen,firemen paxtment or squad was organized shall be liable

and other employes full sala r ies during compensationdisability,

for, nor interfere with any pension funds, who doesEvery independent contr actor

nor prevent payment to teachers, policemen orfiremen not maintain a separate business and who doestherefrom , to and render service to thenot hold

(4) Every person in the service ofanother un- public, provided he is not himself an employerder an ,y , contract of hi re, express or implied, allhelpers subject to this chapter or has not complied with

and assistants of employes, whether paidby

; the conditions of subsection (2) of sectionthe employer or employe, if employed with 102..28, shall for the purpose of this chapter be

the knowledge, actual or constructive, of the em-plover an employe of any employer under this chapter, including minors (who shall have the fox whom he is performing service in the course

same power of contracting- as adult employes),but of the trade, business, profession or occupationnot including (a) domestic servants, (b) any of such employer at the time of the injury .

person whose employment is not in the course of (9) Members of the national and state guards,a trade, business, profession or occupation of his when in state service performing official dutyemployer, unless as to any of ' said classes, suchemployer under direction of" appropriate authority, but

has elected to include them . . Item (b)shall only in case federal laws, rules ornot operate to exclude an employe whose p r ovide no benefits substantially equivalent to

employment is in the course . ofany trade, busi-ness those provided in this chapter ., profession or occupation of his employer, the policy of the

however,(10) Further

casual, unusual, desultory or isolated state that the benefits of ' this chapter shall extendany such trade, business, profession or occupa-tion (5) For the and be granted to employes in the service of the

mayy be state, or of any municipality therein on the same. purpose ofdetermining the num-ber basis, in the same manner, under the same

102 04 and with like right of recovery as in thec), but for no other pu r pose, the following defi-nitions

case : of employer of persons, firms or privateshall apply: corporations, any question whether any person

(a) Farmers or their employer working on an is an employe under this chapter shall be gov-exchange basis shall not be deemed employes of erned by and determined under the same stand-a farmer to whom their labor is furnished in ards, considerat ions; and rules of decision in allexchange

(b). . cases under subs . (1) to (9) . . Any statutes, oidi-

The parents, spouse, child, brother', sister,son nanees, or administrative regulations which may-in-law, daughter-in-law, father -in-law, , be otherwise applicable to the classes of

of proves enumerated in sub. (1) shall not be con-mother-in-law; brother-in-law, or sister-in-law' afarmer shall not be deemed his employes(6)

, trolling in deciding whether any person is anEvery person selling or distributing news- employe for the purposes of this . chapter,

'The commission shall by rule prescribepapers or magazines on the street or from housewho may, at thehouse .. Such a person shall be deemedan em-toprove classes of volunteer workers

of each independent new s agency which is election of the person for whom the service is

102,06 WORKMEN'S COMPENSATION

other employer was an employer as defined in s .10204

1962


daily earnings by the number of days and frac-tional days normally worked per week at thetime of the injury in the business operation of theemployer for the particular employment inwhich the employe was engaged at the time ofhis injury .

(b) In case of" seasonal employment, ave rageweekly earnings shall be arrived at by themethod prescribed in paragraph (a), except thatthe number of hours of the normal full-timeworking day and the number of days of' tfie nor-mal full-time working week shall be such hoursand such days in similar service in the same orsimilar nonseasonal employment . Seasonal em-ployment shall mean employment which can beconducted only during certain times of the year,and in no event shall employment be consideredseasonal if it extends during a period of morethan fourteen weeks within a calendar year ,

(c) In the case of persons performing servicewithout fixed earnings, or where normal full-time days or weeks are not maintained by theemployer in the employment in which the em-ploye worked when injured, or where, for otherreason, earnings cannot be determined under themethods prescribed by paragraph (a) or (b), theearnings of the injured person shall, for the pur-pose of calculating compensation payable underthis chapter, be taken to be the usual going earn-ings paid for similar services on a normal full-time basis in the same or similar employment inwhich earnings can be determined under themethodss set out in paragraph (a) or (b) .

(d) Except in situations where paragraph (b)applies, average weekly earnings shall in no casebe less than actual average earnings of the em-ploye for the calendar weeks during the yearbefore his injury within which the employe hasbeen employed in the business, in the kind ofemployment and for the employer f'or , whom heworked when injured. Calendar weeks withinwhich no work was performed shall not be con-sidered under this provision . This paragraphshall be applicable only if the employe hasworked within each week of at least six calendarweeks during the year before his injury in thebusiness, in the kind of employment and for theemployer for whom he worked when injured .

(e) Where any things of value are received inaddition to monetary earnings as a part of thewage contract, they shall be deemed a part ofearnings and computed at the value thereof ' tothe employe

(f) Average weekly earnings shall in no case beless than 30 times the normal hourly earnings atthe time of injury . .: However, this section shallnot apply to temporary disability benefits , if ' thepart-time employe restricts his or her availabil-ity, on the labor market, to part-time work and

102 . 11 Earnings , method of computation .(1) The average weekly earnings for temporarydisability shal l be taken at not less than $12 .50nor more than $112,86, resulting in a maximumweekly compensation rate of $79 ; for perma-nent total disability or death at not less than$20 nor more than $112 ..86, resulting in a maxi-mum weekly compensation rate of $79 for per-manent total disability and of $56 43 for deathbenefits ; and for permanent partial disability atnot less than $20, nor more than $69 .29, result-ing in a maximum weekly compensation rate of$48 50 Between said limits the average weeklyearnings shall be determined as follows :

(a) Dail y earnings shall mean the daily earn-ings of the employe at the time of the injury inthe employment in which he was then engaged ..In determining dai ly earnings under this para-graph, overtime shall not be considered, I f'at thetime of'the injury the employe is working on parttime for the day, his dai ly earnings shall be ar-rived at by d ividing the amount received, or tobe received by him for such part-time service forthe day, by the number of hours and fractionalhours of such part-time service, and multiplyingthe result by the number of hours of'the normalfull -time working day for thee employment in-volved . The words "part time for the day" shallapply to Saturday half' days and all other daysupon which the employe works less thann normalfull-time working hours The average weeklyearnings shall be arrived at by multiplying the

1 963

being performed, be deemed to be employes forthe purposes of this chapter, Election shall be byendorsement upon the workmen's compensationinsurance policy with written notice to the de-partment In the case of an employer exemptfrom insuring liability, election shall be by writ-ten notice to the department . . The commissionshall by rule prescribe the means and manner inwhich notice of'el ection by the employer is to beprovided to the volunteer workers . .

102.08 Nonelection by epileptics , blindpersons, corporation officers . Epileptics andpersons who are totally, blind may elect not tobe subject to this chapter for injuriess resultingbecause of such epilepsy or blindness and stillremain subject to its provisions for all other in-juries . Officers of corporations may alsoo electnot to be subject to this chapter . Such electionsshall be made by giving notice to the employerin writing on a form to be furnished by the de-partment, and filing a copy of such notice withthe department . An election may be revoked bygiving written notice to the employer of'revoca-tion, and such revocation shall be effective uponfiling a copy of such notice with the depart-ment.

WORKMEN 'S COMPENSATION 10211


pensation shall not be barred ifthe employerknew or should have known, within the 2-yearperiod, that the employe had sustained the in-jury on which claim is based . . I ssuance of noticeof 'a hearing on the department's own motionshall have the same effect for the purposes ofthis section as the filing of an application ..

102 . 13 Examination by physician , compe -tent witnesses , exclusion of evidence , au -topsy . (1) Whenever compensation is claimedby an employe, he shal l, upon the written re-quest of his employer, submit to reasonable ex-amination by a physician, provided and paid forby the employer, and shall submit to examine-tion by any physician selected by the commis-sion, or a commissioner or examiner Theemploye shall be entitled to have a physician,provided by himself; present at any such exami-nation So long as the'employe, after such writ-ten request of the employer, refuses to submit tosuch examination, or in any way obstructs thesame, his right to begin or maintain any pro-ceeding forr the collection of compensation shallbe suspended; and if he refuses to submit tosuch examination after direction by the com-mission, or a commissioner or exam iner, or inany way obstructs the .same, . his right to t heweekly indemnity which accrues and becomespayabl e during the peri od of such refusal or ob-struction, shalll be barred ;. Any physic ian who ispresent at any, such examination may be re-quired to testify as to the results thereof' . Anyphysician having attended an employe may berequired to testify before the department whenit so directs . Notwithstanding any other statu-tory provisions, any physician attending. aworkmen's compensation claimantt may furnishto the employe, employer, workmen's compen-sation i n surance carr i e r , or th e department in-formation and reports relative to acompensation claim The testimony of any phy-sici an or surgeon who is licensed to practicewhere he resides or practices outside the state,may be received . in evidence in compensat ionproceedings,

(2) The department may refuse to receive tes-timony as to conditions determined from an au-topsy if i t appears (a) that the par t y offering thetestimony had procured the autopsy and hadfailed to make reasonable effort to notify at leastone party in adverse interest or the departmentat least 12 hours before said autopsy of the timeand place i t would be performed, or (b) that theautopsy was performed by or at the d irection ofthe coroner for purposes not authorized by ch979 . The department may in its discretion with-ho l d findings until an autopsy is held in accord-ance with its directions,

102 .12 Noticee of injury, exception ,lathes. No claim for compensation shall bemaintained unless, within 30 days after the oc-currence of the injury or within 30 days afterthe employe knew or ought to have known thenature of his disability and its relation to hisemployment, actual notice was received by theemployer or by an officer, manager or desig-nated representative of an empl oyer, I f no rep-resentative has been designated by postersplaced in one or more conspicuous places, thennotice received by any superior shall be suffi-cient Absence of notice shall not bar recoveryif it is found that the employer was not misledthereby : Regard l ess of whet her notice was re-ceived, if no payment of compensation (otherthan medical treatment or burial expense) ismade, and no application is filed w i th the de-partment within 2 years from the date of theinjury or death, or from the date the employe orhis dependent knew or ought to have known thenature of' the disability and its re lation to theemployment, t he right to compensation thereforshall be barred, except that the right to com-

102.1 1 WORKMEN'S COMPENSATION

is not actively employed full-time elsewhere Insuch case the weekly temporary disability bene-fits shall not exceed the average weekly wages ofthe part-time employment .

(g) If an employe is under twenty-seven year'sof age, his average weekly earnings on whi ch tocompute the benefits accruing for permanentdisability or death shall be determined on thebasis of the earnings that such employe, if' notdisabled, probably would earn after attaining theage of twenty-seven years . Unless otherwise es-tablished , said earnings shall be taken as equiva-lent to the amount upon which maximumweekly indemnity is payable .(2) The average annuall earnings when re-

ferred to in this chapter shall consist of fiftytimes the employe's average weekly earnings.Subject to the maximum limitation, average an-nual earnings shall in no case be taken at lessthan the actual earnings of thee employe in theyear immediately preceding his injury in thekind of': employment in which he worked at thetime of inj ury .

(3) The weekly wage loss referred to in thischapter,, except under subsection (6) of section102 .. 60, shall be such percentage of the averageweeklyy earnings of the injured employe com-puted according to the provisions of this section ,as shall fairly represent the proportionate extentof thee impairment of his,earning capacity in theemployment in which he was working at thetime of the injury, and other suitable employ-ments, the same to be fixed as of ' the time of theinjury, but to be determined in view of the natureandd extent of the injury .

1964


102 . 17 Procedure ; notice of hearing ; wit -nesses, contempt ; testimony , medical ex -amination . (1) (a) Upon the filing with thedepartment by any party in interest of any ap-pl ication in writingg stating the general nature ofany claim as to which any dispute or contro-versy may have arisen, it shall mail a copy ofsuch application to all other parties in interestandd the insurance carrier shall be deemed aparty in interest . The department may bring inadditional parties by service of a copy of theapplication,; The department shall cause noticeof hearing on the application to be given to eachpartyy interested, by service of such notice onhim personally or by mailing a copy thereof' tohimm at his last known post-office address atleast 10 dayss before such heating In case aparty in interest is located without the state,and has no post-office address within this state,the copy of the application and copies of" allnotices shall be filed in the off i ce of the secre-tary of'state and shal l also be sent by registeredor certified mail to the last known post-officeaddress of such party . S uch filing and mai lingshall constitute sufficient service, wi th the sameeffect as if served upon a party located withinthis state . . the hearing may be adjourned in thediscretion of;the department, and hearings maybe held at such places as the department desig-nates, within or without t he state .. The depart-ment may also arrange to have hearing held bythe commission, officer or tribunal having au-thority to hear cases aris ing under the work-men's compensation law of any other state, of"the District of Columbia, or of any territory ofthe United States, the testimony and proceed-ings at any such hearing to be reported to thedepartment andto be part of t he record in thecase . . Any evidence so taken shall be subject torebuttall upon final hearing beforee the depart-ment .

(am) Either party shall have t he right to bepresent at any hearing, in person or by attorney,or any other agent, and to presentt such testi-mony as may be perti nentt to the controversybefore thee department . No person, firm or cor-poiation other than an attorney at law, dulylicensed to practi ce law in the state, shall appear

102.16 Submission of disputes , contribu -tions by employes. (1) Any controversy con-cetning compensation, including any in whichthe state may be a party, shall be submitted- tothe department in the manner and with the ef=feet provided in this chapter Every compro-mise of any claim for compensation may bereviewed and set aside, modified or confirmedby the department within one year from thedate such compromise is fi led with the depart-ment, or from the date an awardd has been en-teied, based thereon, or the department maytake such action upon application made w i thinsuch year Unless the word "compromise" ap-pears in a stipulation of settlement, the settle-ment shall not be deemed a compromise, andfurther : cla i m shall not be barred except as pro-vided in s 102 . 1 7 (4) irrespective of . whetheraward is made .. The emp loyer or insurer shallhave equal rights with the employe to have re-view of a compromise . Upon petition filed bythe employer or insurer with the departmentwithin one year from any award upon a stipula-tion of settlement the department shall havepower: to set aside saidd award or otherwise de-termine the rights of the, parties .

(2) The department shall have jurisdiction topass upon the reasonableness of medical andhospital bil l s in alll cases of dispute where com-pensation is paid, in the same manner and to t hesame effect as it passes upon compensation .

(3) No employer subject to the provis ions ofthis chapter shall solicit, receive or collect anymoney from his employes or make any deduc-tion from their wages, either directlyy or indi-rectly, For the purpose of' disc harging anyliability under the provisions thereof; nor shal lany such employer sell to an employe, or solicitor require him to purchase medical or hospitaltickets or contracts for medical, surgical, or hos-

1 9 65

102.14 Jurisdiction of department; advi-sory committee . (1) This chapter shall be ad-ministered by the department .

(2) The council on workmen's compensationshall advise the department in carrying out thepurposes of this chapter . Such council shall sub-mit its recommendations with respect to amend-ments to this chapter to eachh regular session ofthe legislature and shall report its views uponany pending bill relating to thi s chapter to theproper legislative committee .

102 . 15 Rules of procedure ; transcripts .(1) Subject to this chapter; the department mayadopt its own .n ru les of procedure and maychange the same from time to time .

(2) . The department may provide by rule theconditions under which transcripts of testimonyand proceedings shal l be furnished ..

WORKMEN'S COMPENSATION 10217

pital treatment required to be furnished by suchemployer.

(4) Any employer violating subsection (3)shall be subject to the penalties provided in sub-section (3) of section 102 28, and, in additionthereto, shall be liable t o an injured employe forthe reasonable value of the necessary servicesrendered to such employe pursuant to any ar-rangement made in violation of ' subsection (3) ofthis section without regard to said employe ' sactual disbursements for the same .


government, or of any other hospital or sanato-rium in this state which is satisfactory to thedepartment, established by certificate, affidavitor testimony of the supervising officer or otherperson having charge of such records, or of 'aphysician or surgeon, to be such record of thepatient in question, and made in the regularcourse of examination or treatment of such pa-tient, shall constitute prima facie evidence in anyworkmen's compensation proceeding as to thematter contained therein, insofar as it is other-wise competent and relevant ,

(b) The department may, with or without no-tice to either party, cause testimony to be taken,or an inspection of the premises where the injuryoccurred to be had, or the time books and pay-rolls of the employer to be examined by anycommissioner or examiner, and may direct anyemploye claiming compensation to be examinedby a regular physician; the testimony so taken,and the results of any such inspection or exami-nat ion , to be repo r ted to the department for itsconsideration upon final hearing . All ex partetestimony taken by the department shall be re-duced to w r iting and either party shall have op-portunity to rebut the same on final hearing

(bm) Section 887 12 shall not apply to pro-ceedings under this act, , except as to a witness :

I,. Who is beyond reach of' the subpoena af' acommissioner or examiner ; or

2 Who is about to go out of the state, notintending to return in time f'ox: thee hearing ; or

3 Who is so sick, infirm or aged as to makeit probable that he will not be able to attend thehearing, or

4 . Who is a member of the legislature , if anycommittee of' tbe same or the house of " which heis a member , is in session, provided he waives hisp r ivilege

(c) Whenever the testimony presented at anyhearing indicates a dispute, or is such as to cre-ate doubt, as to the extent or cause of disabilityor death, the department may direct that theinjured employe be examined or autopsy be per-formed, or an opinion of ' a physician be obtainedwithout examination or autopsy, by an impar-tial, competent physician designated by the de-paitment who is not under contract with orregula rly employed by a compensation insur-ance_cairier ; ox self=insured employer . The ex-pense of such examination shall be paid by theemployer The report of= such examination shallbe transmitted in writing to the department anda copy thereof shall be furnished by the depart-ment to each party who shall have an opporturr-ity to rebut the same on further hearing .

(2) If ' the department shall have reason to be-lieve that the payment of compensation has notbeen made, it may on its own motion give notice

on behalf' of any party in interest before the de-partment or any member or employe of the de-partment assigned to conduct any hearing,investigation or inquiry relative to a claim forcompensation or benefits under this chapter, un-less he shall be a citizen of the United States, offull age, of " good moral character and otherwisequalified, and shall have obtained from the de-partment a license authorizing him to appear inmatters or proceedings before the department .Such license shall be issued by the departmentunder rules to be adopted by it . In such rules thedepartment may prescribe such reasonable testsof character and fitness as it may deem neces-sary . There shall be maintained in the office ofthe department a registry or list of persons towhom licenses havee been issued as providedherein, which list shall be corrected as often aslicenses are issued or revoked . Any such licensemay be suspended or revoked by the departmentfor fraud or serious misconduct on the part ofany such agent Before suspending or revokingthe license of any such agent, the departmentshall give notice in writing to such agent of thecharges of fraud or misconduct preferred againsthim, and shall give such agent full opportunityto be heard in relation to the same . . Such licenseand certificate of authority shall, unless other-wise suspended or revoked, be in force from andafter the date of issuance unti l the 30th day ofJune following such date of issuance and may berenewed by the department from time: to time,,but each renewed license shall expire on the 30thday of June following the issuance thereof ' .

(as) Thecontents of verified medical and sur-gical'- reports, by physicians and surgeons li-censed in and practicing in Wisconsin, presentedby claimants for compensationn shall constituteprima facie evidence as to the matter containedtherein, subject to such rules and limitations asthe department prescribes. Verified reports ofphysicians and surgeons, wherever licensed andpracticing, to whom the claimant had been sentfor examination or treatment by the employer orinsurer, if such doctor consents to subject him-self ' to cross-examination shall also constituteprima facie evidence as to the matter containedtherein and verified reports by doctors of den-tistry shall be admissible as evidence of ' the diag-nosis and necessity for treatment but not ofdisability Physicians and surgeons licensed inand practicing in this state may certify instead ofverify such reports, and such certification shallbe equivalent to verification; and any physicianor surgeon who knowingly makes a false state-ment of fact or opinion in such certified reportmay be fined or imprisoned or both under s943 395 , The record of a hospital or sanatoriumin this state operated by any department,agency, or municipality of the federal or state

102 . 17 WORKMEN'S COMPENSATION 1966


compromise, stipulation, agreement, or defaultwithout hearing . .

(b) After final hearing the department shallmake and file its findings upon the ultimate factsinvolved in the controversy, and its o rder, whichshall state its determination as to the rights ofthe parties .. Pending the final determination ofany controversy before it, the department mayafter any hearing make interlocutory findings,orders and awards which may be enforced in thesame manner as final awards .. The departmentmay include in its final award, as a penalty fornoncompliance with any such interlocutory or-der or award, if ' it finds that noncompliance wasnott in good faith,, not exceeding 25% of eachamount which shall not have been paid as di-zected thereby . Where there is a finding that theemploye is in fact suffering from an occupationaldisease caused by the employment of the em-ployer against whom the application is filed, afinal award dismissing such application upon theground that the applicant has suffered no disa-bility from said disease shall not bar any claimhe may thereafter have for disability sustainedafter the date of the award .

(2) The department may authorize a commis-sioner or examiner to make findings and orders,and to review, set aside, modify or confirm com-promises of claims for compensation under rulesto be adopted by the department , Any party ininterest who is dissatisfied with the findings ororder of a commissioner or examiner may file awritten petition with the department for reviewby the commission of the findings or order .

(3) If' no petition is filed within 20 days fromthe date thatt a copyy of"' the findings or order ofthe commissioner or examiner was mailed to thelast known address of the parties in interest,such findings or order shall be considered thefindings or order of the commission, unless setaside, reversed or modified by such commis-sioner or examiner within such time.. If the find-ings or order are set aside by the commissioneror examiner the status shall be the same as priorto the findings or order set aside .. If the findingsor order are reversed . or modified by the com-missioner or, examiner the time forr filing petitionwith the department shall run from the date thatnotice of such reversal or modification is mailedto the last known address of the parties in inter-est The commission shall either affirm, reverse,set aside ,or modify suchh findings or order inwhole or in part, ; of direct the taking of addi-tional testimony .. . Such actionn shall be based ona review of the evidence submitted . . If the com-mission is satisfiedd that a party in interest hasbeenn prejudiced because of exceptional delay inthe receipt of a copy of any findings or order it

to the patties, in the manner provided for theservice of an application, of a time and placewhenn a hearing will be had for the purpose ofdetermining the facts .. Such notice shall containa statement of the matter to be considered ..Thereafter all other provisions governing pro-ceedings on application shall attachh in so far asthe same may be applicable .

(3) Any person who shall wilfully and unlaw-fully fail or neglect to appear or to testify or toproduce books, papers and records as required,shall be fined not less than twenty-five dollarsnor more than one hundred dollars, or impris-oned in the county jail not longer than thirtydays Each day such person shall so refuse orneglect shall constitute a separate offense. .

(4) The right of an employe, his legal repre-sentative or dependent to proceed under this sec-tion shalll not extend beyond 6 years from thedate of' the injury or death or from the date thatcompensation. (other thann medical treatment orburial expenses) was last paid, or would havebeen last payable if no advancement were made,whichever date is latest, except that in case ofinjury or death caused by exposure to ionizedradiation the right to proceed hereunder shall besubject to no time limitations Payment of wageby the employer during disability or absencefrom work to obtain treatment shall be deemedpayment of compensation for the purpose of thissectionn provided the employer knew of the em-ploye's condition and its alleged relation to theemployment "

(5) This section does not limit the time withinwhich the state may bring an action to recoverthe amounts specified in subsection (5) of section102 49 and section 102 . 59 .

(6) If an employe or dependent shall, at thetime of injury, or at the time his right accrues,be under 21 years of age, the limitations of timewithin which he may file application or proceedunder this chapter, if' they wouldd otherwisesooner expire, shall be extended to one year afterhe attains the age of 2l years : If , within any partof the last year of any' sucYc period of limitation,an employe, his personal representative, or sur-viving dependent be insane or on active duty inthe armed forces of the United States such pe-riod of limitation shall be extended to 2 yearsafter the date that the limitation would other-wise expire The provision hereof' with respect topersons on active duty in the armed forces of theUnited States shall apply only where no applica-ble -federal statute is in effect .

102.18 Findings, orders and awards. (1)(a) All parties shall be afforded opportunity forfull, fair, public hearing after reasonable notice,but disposition of application may be made by

1967 WORKMEN 'S COMPENSATION 10218


be approved by it, conditioned upon the properapplication of all moneys received by him .. Be-fore such bond is discharged, such consular of=ficer' or representative shall file with thecommission a verified account of the items ofhis receipts and disbursements of such compen-sation . Such consular officer or representativeshall make interim reports tothe commission asit may require,

102.195 Employes confined i n institu-tions ; payment of benefits. In case an em-ploye is adjudgedd insane or incompetent, orconvicted of a felony, and is confined in a pub-lic institution and has wholly dependent uponhim for support a person, whose dependency isdetermined as if the employe were deceased,compensation payable during the period of" hisconfinement may be paid to the employe andhis dependents, in such manner, for such timeand in such amount as the department by orderprov i des, .,

102.20 Judgment on award . Either partymay present a certified copy of the award to thecircuit court for any county, whereupon saiddcourt shall, without notice, render judgment inaccordance therewith; such judgment shall havethe same effect as though rendered in an actiontried and determined by said court, and shall,with like effect, be entered and docketed ..

102 .21 Payment of awards by municipal -i ties. Whenever an award is made by the de-partment under this chapter or s . 66,191 againstany municipality., the personn in whose favor it ismade shall file a certified copy thereof' with themunicipal clerk . Within 20 days thereafter, un-less an appeal is taken, such clerk shall draw anorder on the municipal treasurer for the pay-ment of the, award if' upon . appeal such awardis affirmed in whole or, in part ; the order forpayment shall be drawn within 10 days after; acertified copy of'such,judgment is filed :with theeproper . clerk If' more than one payment is pro-vided for in the award or judgment, orders shallbe drawn as the payments become due .. No stat-ute relating to the filing of claims against, andthe auditing, allowing and payment of claims bymunicipalities shall apply to the payment of anaward or, ,judgment under this section _

102 .22 . Penalty for delayed payments, (1)Where the employer of his insurer is guilty ofinexcusable delay in making payments, the pay-ments, as to, which such delay is.found : shall beincreased by 10%, Where such, delay is charge-able: to ,the employer and not to the insurers .102.62 shall be applicable and the relative liabil-

102 . 19 Alien dependents ; paymentsthrough consular officers. I n case a deceasedemp loye, for whose injury or death compensa-tion is payable, leaves surviving him alien de-pendentsresiding outside of the United "States,the duly accredited co nsular officer of the coun-try of which such dependents are citizens or hisdesignated representative resid i ng within thestate shall, except as otherwise determined bythe commissions be the 'sole representative ofs uch deceased emp loye and of suc h dependentsin all matterss pertaining to their claims' forcompensation The receipt by such officer oragent of compensation funds and the d i stribu-tion thereof shall be made on l y upon 'order ofthe commission ; and payment to such officer oragent pursuant toany such order shall be a ful ldischarge of'the benefits of compensation . Suchconsul ar officer or his representative shall fur-nish ;>if required by the commission, a bond to

1-02 ,;18 WORKMEN 'S COMPENSATION

mayy extend the time another 20 days for filingpetition with the department .

(4) The commission may remove or transferthe proceedings pending before a commissioneror examiner, It may also on its own motion, setaside, modify or change any order, findings oraward (whether- made by a commissioner, anexaminer or by the commission) at any timewithin 20 days from the date thereof i f it discov-ers any .y mistake therei n, or upon the grounds ofnewly discovered evidence . . Unless the liabilityunder ss . 102 49, 102 : 57, 102 .58, 102 . . 59, 102 60and :102 . 61 : is specifically mentioned, the order,findings or awardd shall be deemed not to affectsuch liability ,

(5) I f it shall appear to the department that amistake may have been made as to cause of in-jury, in the findings, order or award upon analleged injury based on accident, when in factthe employe was suffering from an occupationaldisease, the department may upon its own mo-tion, with or without hearing, within 3 yearsfrom the date of such findings, order or award,set aside such findings, order or award, or thedepartment may take such action upon applica-tion made within such 3 years , . Thereafter, andafter opportunity for hearing, the departmentmay, if in fact the employe is suffering fromdisease arisingg out of the employment, makenew findings and award, or it may reinstate thepreviouss findings, order or award . .

(6) In case of disease arising out of the em-ployment, the department mayy from time totime review its findings, orde r, or award,, andmake new findings, order or award, based on thefacts regarding disability or otherwise as theymay then appear This subsection shall not affecttthe application of the limitation, in s : 102 17(4) .

196 8


such action; and it shall not be necessary tohave a transcript approved . The action maythereupon be brought on for hearing before saidcourt upon such record by either party on 10days' notice to the other; subject, however, tothe provisions of law for a change of the placeof' trial or the calling in of ' another ,judge . Uponsuch hearing, the court mayy confirm or setaside such order or award; and an ,y judgmentwhich ' may theretofore have been renderedthereon; but the same shall be set aside onlyupon the following grounds :

(a) That the commission acted without or inexcess of its powers .

(b) That the order or award was procured byfraud ..

(c) That the findings of fact by the commis-sion do not support the order or award . .

(2) Upon the trial of any such action the courtshall disregard any irregularity or error of ' thedepartment , unless it be made to affirmativelyappear that the plaintiff ' was damaged thereby .

(3) The record in any case shall be transmittedto the department within 5 days after expirationof the timee for appeal from the order or judg-ment of the court, unless appeal shall be takenfrom such order or judgment

(4) Whenever an award is made against thestate the attorneyy generall may bring an actionfor review thereof' in the same manner and uponthe same grounds as are provided by sub .. (1) .

(5) The commencement of action for- reviewshall not relieve the employer from paying com-pensation as directed, when such action involvesonly the question of liability as between the em-plover and one or more insurance companies oras between several insurance companies .

102.24 Remanding record: (1) Upon thesetting aside of' any order or award the courtmay recommit the controversy and remand ther ecord in the case to the department, for furtherhearing or proceedings ; or it may enter theproper judgment upon the findings, as the na-ture of the case shall demand.: : An abstract ofthe judgment entered by the trial court uponthe review of' any order or award shall be madeby the clerk thereof upon ; the docket entry ofany judgment which may theretofore have beenrendered upon such order or award and tran-scripts ofsuch abstract may thereupon be ob-tai ned for like entry upon, the dockets of' thecourts of '.; other counties .

(2) After the commencement of an action toreview any award of the commission the partiesmay have the record remanded by the court forsuch time and under such condition as they mayprovide; for the purpose of having the commis-sion act upon the question of approving or disap-

ity of the parties shall be fixed and discharged astherein provided .

(2) If the sum ordered by the department tobe paid is not paid when due , such sum shalllbear interest at the rate of 6% per annum .. Thestate shall be liable for such interest on awardsissued ' against it under this chapter ' . The depart-ment'shall have ju r isdiction to issue award forpayment of ' such interest at any time within oneyear of the date of' its order or upon appealwithin one year after final court determination .

102.23 Judicial review. (. 1) The findingss offact made by the commission acting within itspowers shall, in the absence of ' f 'raud, be conclu-sive; and the order or award, either interlocu-tory or final, whether . , judgment .t has beenrendered thereon or not, shall be subject to re-view only in the manner and upon the groundsfollowing : Within 30 days from the date of • anorder or award originally made by the commis-sion or following the filing of petition forr reviewwith the department under s 102 .. 1- 8 any party 'aggrieved thereby may commence, in the circuitcourt for Dane county, an action against thedepartment for the review of such order oraward, in which action the adverse party shallalso be made defendant . . In such action a com-plaint, whichh need not be verified, but whichshall state the grounds upon which a review issoughi, shall be served with the summons : : Ser-vice upon the executive secretary of the depart-ment, or any commissioner, shall be deemedcompleted service on all parties, but theree shallbe left with the person so served as many copiesof the summons and complaint, as there are de-fendants, and the department shall mail onesuch copy to each other defendant If the circuitcourt, is satisfied that a party in interest hasbeen prejudiced because of exceptional delay inthe receipt of a copy of any findings or order itmay extend the time another 30 days in whichsuch actionn may be commenced . . The depart-ment shall serve its answer within 20 days afterthee service of the complaint, and, within thelike time, such adverse pasty shall, if he so de-sires, serve his answer to the complaint, whichanswerr may, by :way of counterclaim ox : crosscomplaint, ask for the review of the order oraward referred to in the complaint, with : thesame effect as if ' such party had commenced aseparate action for the review thereof'.` the` de-paitment shall make return to the court of ' alldocuments and papers on file in the matter, andof all testimony which has been taken therein,and. of• the commission's - order, ` findings andaward: '°Such return of the department 'whenfiled in the office of ' the clerk of the circuit courtshall ; with the papers mentioned in supremecourt Rule 251 , 25 " constitute 6 judgment roll in

196 9 WORKMEN'S COMPENSATION 102 .24


shall not exceed 10 per cent but not to exceed$100, of'the amount at which such claim shall becompromisedd or of the amount awarded, ad-judged or collected.. The limitation as to feesshall apply to the combined charges of attor-neys, solicitors, representatives and adjusterswho knowingly combine their efforts toward theenforcement or collection of any compensationc laim.

(2m) In any action for the recovery of costs ofhospitalization in a tuberculosis sanatorium,where such cost was incurred by a patient whosetuberculosis entitled him to workmen's compen-sation, no attorney fee for the recovery of suchcost shall be allowed to the attorney for suchpatient in such workmen's compensation action,unless, by express agreement with the governingboard of such institution he has been retained bysuch governing board to also act as its attorney ..

(3) Compensation in favor of any claimant,whichh exceeds $100, shall be made payable tosuch claimant in person ; however, in any awardthe 'department shall upon application of anyinterested party and subject to the provisions ofsub (2) fix the fee of his attorney or representa-tive and provide in the award for payment of"such fee direct to the person entitled thereto . . Atthe request of the claimant medical expense, wit-ness fees and other charges associated with theclaim may be ordered paid out of the amountawarded.. Payment according to the directions ofthe award shall protect the employer and hisinsurer from any claim of attorney's lien . .

(4) The charging or receiving of any fee inviolation of this section shall be unlawful, andthe attorney or other person guilty thereof shallforfeit double the amount retained by him, thesame to be collected by the state in an action indebt, upon complaint of'the department . Out ofthe sum recovered the courtshall direct pay-ment to the injured party of the amount of theovercharge .

102.27 Claims unassignable, and ex-empt. No claim for compensation shall be as-signable, but this provision shall not affect thesurvival thereof; nor shall any claim for com-pensati on, or compensation awarded, or paid,be taken for the debts> of the party entitledthereto :

. 102 .28 Preference of claims ; workmen 'scompensation insurance . (1) The wholeclaim for compensation : for the injury or deathof any employe or any award or judgmentthereon,: and any claim for unpaid compensa-tion insurance premiums shall be entitled to thesame preference in bankruptcy or insolvencyproceedings as is given by any law of this stateof by the federal bankruptcy act to claims for

102.25 Appeal from judgment on award .(1) The department, or any party aggrieved bya judgment entered upon the review of any or-der or award, may appeal therefrom within 30days from the date of service by either partyupon the other of notice of entry of judgment .However , it shall not be necessary for the de-partment or any party to the action to execute,serve or file the undertaking required by s .274 11 (3) in order to perfect such appeal ; butall such appeals shall be placed on the calendarof ' the supreme court and brought to a hearingin the same manner as state causes on such cal-endar. The state shall be deemed a party ag-grieved, within the meaning of" this subsection,whenever a judgment is entered upon such areview confirming any order or award againstit . At any time before the case is set down forhearing in the supreme court, the parties mayhave the record remanded by the court to thedepartment in the same manner and for thesame purposes as provided for remanding fromthe circuit court to the department under s .10224(2)

(2) It shall be the duty of ' the clerk of ' any courtrendering a decision affecting an award of thedepartment to promptly furnish the departmentwith a copy of such decision without charge

102.26 Fees and costs. (1) No fees shall becharged by the clerk of any court fox the per-formance of any service required by this chap-ter, except for the docketing of judgments andfor certified transcripts thereof . In proceedingsto review an order or award,, costs as betweenthe parties shall be in the discretion of thecourt, but no costs - shall be taxed against thedepartment

(2) Unless previously authorized by the com-mission, no fee shalll be charged or received forthe enforcement or collection of any claim forcompensation, nor shall any contract therefor beenforcible ; where such fee, inclusive of all taxa-ble attorney's fees paid or agreed to be paid forsuch enforcement or collection, exceeds 20 percent of the amount at which such claim shall becompromised or of the amount awarded, ad-judged or collected, exceptt that in cases, of ad-mitted liability where there is no dispute as toamountt of compensation due and in which nohearing or appeal is necessary, the fee charged

102 . .24 WORKMEN 'S COMPENSATION

proving any settlement or compromise that theparties may desire to have so approved . If ap-proved the action shall be at an end and judg-ment may be entered upon the approval as uponan award . . If not approved the record shall forth-with be returned to the circuit court and theaction shall proceed as if ' no remand had beenmade .

1970


labor, but this section shall not impair the lienof any judgment entered upon any award .

(2) An employer liable under this act to paycompensation shall insure payment of such com-pensation in some company authorized to insuresuch liability in this state unless such employershall be exempted from such insurance by thedepartment . An employer desiring to be exemptfrom insuring his liability for compensation shallmake application to the department showing hisfinancial ability to pay such compensation , andagreeing as a condition for the granting of theexemption to faithfully report all injuries undercompensation according to law and the require-ments of the department and to comply with thisact, and the rules of the department pertainingto the administration thereof, whereupon the de-paitment by written order may make such ex-emption : The department may from time to timerequire further statement of financial ability ofsuch employer to pay compensation and mayupon 10 days' notice in writing , for financialreasons or for failure of the employer to faith-fully discharge his obligations according to theagreements contained in his application for ex-emption, revoke its order granting such exemp-tion, in which case such employer shallimmediately insure his liability . . As a conditionfor the granting of ' an exemption the departmentmay require the employer to furnish such secu-rity as it may consider sufficient to insure pay-ment of all claims under compensation .. Wherethe security is in thee form of a bond or otherpersonal guaranty, the department may at anytime either; before or after the entry of an award,upon at least 10 days' notice and opportunity tobe heard require the sureties to pay the amountof the award, the same to be enforced in likemanner as the award itself' may be enforced . .Where an employer procures an exemption asherein provided and thereafter- enters into anyform of agreement for insurance coverage withan insurance company - of interinsurer not li-censed to operate in this state, his conduct shallautomatically operate as a revocation of suchexemption An order exempting an employerfrom insuring his liability for compensation shallbe null and void if the application contains afinancial statement which is false in any materialr espect .

(3) An employer who shall fail to comply withs. 102 . 28 (2) shall be fined not less than $10 normore than $100 or imprisoned not less than 30days nor more than, .6 months, or both . . Eachday's failure shall be a separate offense . . Uponcomplaint of ' the department, the fines specifiedin this section may be collected by the state in anaction in debt

(4) If it appears by the complaint or by theaffidavit of any person in behalf of ' the state thatthe employer's liability continues uninsuredthere shall forthwithh be served on the employeran order to show cause why he should not berestrained from employing any person in hisbusiness pending the proceedings or until heshall have satisfied the court in which the matteris pending that he has complied with the provi-sions of subsection (2) of' this section . Such orderto show cause shall be returnable before thecourt or the , judge thereof at a time to be fixedin the order not less than twenty-four hours normore than three days after its issuance .. In so faras the same may be applicable and not hereinotherwise provided, the provisions of chapter268 relative to injunctions shall govern theseproceedings If the employer denies under oaththat he is subject to this act, and furnishes bondwith such sureties as the court mayy require toprotect all his employes injured after the com-mencement of' the action for such compensationclaims as they may establish, then an injunctionshall not issue . . Every. ., judgment or forfeitureagainst an employer, under subsection (3) of thissection, shall perpetually enjoin him from em-ploying any person in his business at any timewhen he is not complying with subsection (2) ofthis section.

(5) If compensation is awarded under this act,against any employer who at the time of theaccident has not complied with the provisions ofsub . . (2) of this section, such employer shall notbe entitled as to such award or any ,judgmententered thereon, to any of the exemptions ofproperty from seizure and sale on execution al-lowed in ss 272 18 to 272 .21 If ' such employeris a corporation, the officers and directorsthereof shall be individually and jointly and sev-erally liable for any portion of any such judg-ment as is returned unsatisfied after executionagainst the corporation ..

(6) Every employe r shall upon request of' thedepartment report to it the. number of his em-ployes and ' the nature of their work and also thename of the insurance company with whom hehas insured his liability under the workmen'scompensation act and the number and date of"expiration of' such policy .. Failure to furnish suchreport within 10 days from the making of a .re-quest by registered mail shall constitute pre-sumptive evidence that the delinquent employeris violating sub (2)

102.29 Third party liability . (1) The mak-ing of a claim for compensation against an em-ployer or < compensation insurer for the injury ordeath of an employe shall not affect the right ofthe employer his personal representative, orother person entitled to bring action, to make



if' no action is pending, then by a cou r t of recordor the department .

(2) In the case of liability of the employer orinsurer to make payment into the state treasuryunder s 102 49 or 102 59, if' the injury or deathwas due to the actionable act, neglect or defaultof a third party, the employer or insurer shallhave a right of action against such third party torecover thee sum so paid into the state treasury,which right may be enforced either by ,joining inthe action mentioned in sub . (1), or by independ-ent action .. Contributory negligence of the em-ploye because of whose injury or death suchpaymentt was made shall bar recovery if suchnegligence was as great as the negligence of theperson against whom recovery is sought, and therecovery allowed the employer or insurer shallbe diminished in proportion to the amount ofnegligence attributable to such injured or de-ceased employe Any action brought under thissubsection may, upon order of the court, be con-solidated and tried together with any actionbrought under sub . . (1) ,

(3) Nothing in this act shall prevent an em-ploye from taking the compensation he may beentitled to under it and also maintaining a civilaction against any physician or surgeon for mal-practice The employer or compensation insurershall have no interest in or right to share in theproceeds of any civil action against any physi-cian or surgeon for malpractice .

(4) If the insurance carrierr of the employerand of the third party shall be the same, or if 'there is common control of ' the insurer of ' each,the insurance carrier, of the employer shallpromptly notify the parties in interest and thedepartment of that fact ; likewise, if the employerhas assumedd the liability of the third party heshall give similar notice; and, in default of suchnotice, any settlement with an injured employeor beneficiary shall be void . Nothing containedin this subsection shall prevent the employer orcompensation insurer from sharing in the pro-ceeds of any third party claim or action, as setforth in subsection (1) .

(5) If' the insurance carrier of the employerand of ' the third party are the same or if there iscommon control of the insurer of each, and theinsurer fails to commence a third party action,within the 3 years allowed by s . 893 205, the3-year statute of limitations in s 89 .3 . . 205 shallnot be pleaded as a bar in any action commencedby the injured employe herein against any suchthi r d party subsequent to 3 years from the dateof injury, but prior to 6 years from such date ofinjury, provided that any recovery in such actionshall be limited to the insured liability of thethird party.. In any such action commenced bythe injured employe subsequent to the 3-year

claim or maintain an action in tort against anyother party for such injury or death, hereinafterreferred to as a 3rd party; nor shall the makingof a claim by . any such person against a 3rd partyfor- damages by reason of an injury to which ss ,102 ,03 to 102 . 64 are applicable, or the adjust-ment of any such claim, affect the right of theinjured employe or his dependentss to recovercompensation.. The employer or compensationinsurer who shall have paid or is obligated to paya lawful claim under this chapter shall likewisehave the right to make claim or maintain anaction in tort against any other party for suchinjury or death . . However, each shall give to theother reasonable notice and opportunity to joinin the making of such claim or the instituting ofan action and to be represented by counsel . If aparty entitled to notice cannot be found, thedepartment shall become the agent of such partyfor the giving of a notice as required herein andthe notice, when given to the department , shallinclude an affidavit setting forth the facts, in-cluding the steps taken to locate such party .Each shall have an equal voice in the prosecu-tion of ' said claim, and any disputes arising shallbe passed upon by the court before whom thecase is pending , and if no action is pending, thenby a court of' record or the department . If noticeis given as herein provided, the liability of thetort-feasox shall be determined as to all partieshaving a right to make claim, and irrespective ofwhether or not all parties join in prosecutingsaid claim, the proceeds of such claim shall bedivided as follows : After deducting the reasona-ble cost of collection, one-third of the remaindershalll in any event be paid to the injured employeor his personal representative or other personentitled to bring action .. Out of the balance re-maining, the employer or insurance carrier shallbe reimbursed for all payments made by it, orwhich it may be obligated to make in the future,,under the workmen's compensation act, exceptthat it shall not be reimbursed for any paymentsof increased compensation made or to be madeunder s 102 . 22, 102. 57 or 102.. 60 . Any balanceremaining shall be paid to the employe or hispersonal representative or other person entitledto bring action . . If both the employe or his per-sonal representative or other person entitled tobring action ; and thee employer or compensationinsurer-,join i n the pressing of said claim and arerepresented by counsel, the attorneys' fees al-lowed as a part of the costs of collection shall be,unless otherwise agreed upon, divided betweensuch attorneys as directed by the court or by thedepartment . A settlement of any 3rd party claimshall be void unless said settlement and the dis-tribution of the proceeds thereof is approved bythe court before whom the action is pending and



102.31 Workmen's compensation insur-ance policy regulations . (1) (a) Every con-tract for the insurance: of the compensationherein provided for, or against liability therefor ,shall be deemed to be made subject to this act,and provisions thereof inconsistent with this actare void .. Such contract shall be construed togrant full coverage of all liability of' the assuredunder this act, notwithstanding any agreementof the< parties to the contrary unless the depart-ment has theretofore by written order specifi-cally consented to the issuance of a policy on apart of such liability, except that an intermedi-ate agency or publisher referred to in s 102 . 07(6) may, under its own policy, cover liability of'employes as defined in s . 102 . 07 (6) for an inter-mediate or independent news agency ., providedthe policy of insurance of such publisher or in-termediate agency is , indorsed to cover suchpersons . If the publisher- so covers it is not nec-essary; for the intermediate of independent newsagency to cover liability " for such persons.. Nopol icy shall be canceled by either party withinthe policy period nor terminated upon expira-tion date until a notice in writing is given to theother party, fixing thee date on which it is pro-posed to cancel it, or declaring that the partydoes not intend to renew the policy upon expi-ration date . Such cancellation or terminationshall not become effective until 30 days afterwritten notice has been given to the departmentunless prior thereto the employer , obtains otherinsurance coverage or an order exempting himfrom carrying insurance as provided in s .102 28 (2) Such notice to the department shallbe served personally or by registeredd or certifiedmail on the department at its office in MadisonIssuance of a - new policy shall automatically re-voke and te r minate any former policy or poli-cies issued by the same company ..

(b) If the insured is a partnership, such con-tract of insurance shall not be construed to grantcoverage of the individual liability of the mem-bexs of such partnership in the course of' a trade ,business, : profession or occupation conducted bythem as individuals, nor shall a contract of in-surance procured to cover individual liability beconstrued to grant coverage of a pa r tnership ofwhich theindividual is a member, nor to grantcoverage of the liability of ' the individual arisingas a member of any partnership

(2) Each employe shall constitute a separaterisk Five employers of more may join in theorganization of a mutual company under s .201 . 04 (16) and no such company organized byemployers shall be authorized to effect such in-surance unless it shall have in force : or put inforce simultaneously insurance on at least 1,500separate risks.

period, the insurance carrier of the employershall forfeit all right to participate in such actionas a' complainant and to recover any paymentsmade under the workmen's compensation act . .This subsection shall not apply if'the insurancecarrier has complied with sub'. . (4)

102.30 Other insurancee not affected ; lia-bility of insured employer . (1) This act shallnot affect the organizationn of any mutual orother insurance company, nor the r ight of theemployer to insure in mutual or other compa-nies, against such liability, or against the liabil-ity for thee compensation provided for by thisact, or to provide by mutual or other insurance,or by arrangement with his employes, or other-wise;-for the payment to such employes, theirfamilies, dependents or representatives, of sick,accident or death benefitss in, add i tion, to thecompensation provided herein . But liability forcompensation shall not be reduced or' affectedby any insurance, contribution or other benefitwhatsoever; due to or received by the personentitled to such compensation, and the personso entitled shall, irrespective of any insuranceor other contract, have the right to recover thesame directly from the employer ; and in addi-tion thereto, the right to enforce in his ownname, in the manner provided in this act, theliability of any insurance company which mayhave insured the liability for such compensa-tion, and the appearance, whether general orspecial, of'any such insurance carrier by agentor attorney shall be a waiver' of the service ofcopy of application'and of notice of'hear i ng re-quired by section 102..17; provided, however;that payment of such compensation by eitherthe employer or the insurance company, shall,to the extent thereof; be a bar to recoveryagainst the other of the amount so paid, andprovided, further, that as between the employerand t he insurance company, payment by eitherdirect ly to the employe, or to the person enti-tled to compensation, shall be subject to theconditions of the po licy..

(2) The failure of the assured to do or refrainfrom doing any act required by the policy shallnot be available to the insurance carrier as adefense against the claim of the injured emp l oyeor his dependents . .

(3) The department may order d i rect reim-buisement out of thee proceeds payable underthis chapter for payments made under a non in-dustrial insurance policy covering the same d i sa-bility and medical expense when the c laimantconsents, or when it is establ ished that such pay-ments under the nonindustrial insurance po licywere improper :

1 973 WORKMEN'S COMPENSATION 102.31


102.32 Continuin g liability ; guaranteesettlement , gross payment. In any case inwhich compensation payments have extendedor will extend over 6 months or more from thedate of the injury (or at any time in death bene-fit cases), any party in interest may, in the dis-cretion of the department, be discharged from,or compelled to guarantee, future compensationpayments as follows :

(1) By depositing the present value of the totalunpaid compensation upon a 3% interest dis-count basis with such bank : or trust company asmay be designated by the department ; or

(2) By purchasing an annuity within the limi-tations provided by law, in such insurance com-pany granting annuities and licensed in thisstate, as may be designated by the department ;OT '

(3) By payment in gross upon a 3% interestdiscountt basis to be approved by the depart-ment; and

(4) In cases where the time for making pay-ments or the amounts thereof' cannot be defi-nitely determined, by furnishing a bond, or othersecurity, satisfactory to the department for thepayment of such compensation as may be due orbecome due . . The acceptance of such bond, orother security, and the form and sufficiencythereof, shall be subject to the approval of thedepartment.. If the employer or insurer is unableor fails to immediately procure such bond, then,in lieu thereof, deposit shall be made with suchbank or trust company, as mayy be designated bythe department, of the maximum amount thatmay reasonably become payable in such cases, tobe determined by the department at amountsconsistent with the extent of'the injuries andd theprovisions of the law . Such bonds and depositsare to be reduced only to satisfy such claims andwithdrawn only after the claims which they areto guarantee are fully satisfied or liquidated un-der sub (1),' (2) or (3) ; and

(5) Any insured employer may, with in thediscretion of the department, compel the insurerto discharge, or to guarantee payment of'itslia-bilities in any such case under this section andthereby release himself from compensation lia-bility therein, but if for any reason a bond fnr-nished or deposit made under sub . (4) does notfully protect, the compensation insurer or unin-sured employer, as the case may be, shall still beliable to the beneficiary thereof.

(6) Any time after 6 months from the date ofthee injury, the department may order paymentin gross or in such manner as it may determineto the best interest of the injured employe or hisdependents. . When payment in gross is ordered,the department shall fix the gross amount to bepaid based on the present worth of partial pay-

(3) The department may examine from time totime the books and records of any insurancecompany insuring liability or compensation foran employer in this state.: Any such companythat shall refuse or fail to allow the departmentto examine its books and records shall have itslicense revoked .(5)Two or more companies, licensed to carry

onthe business of workmen's compensation in-surance in this state , may with the approval ofthe commissioner of insurance, form a corpora-tion for the purpose of insuring special risks un-der the workmen's compensation act .: Thearticles of incorporation shall contain a declara-tion that the various company members shallcontribute such amounts as may be necessary tomeet any deficit of such corporation, such decla-ration to be in lieu of all capital, surplus andother requirements for the organization of com-panies and the transaction of" the business ofworkmen's compensation insurance in this state .Such corporation shall be owned, operated andcontrolled by its company: members as may beprovided in the articles of incorporation .

(6) If ' any corporation licensed to transact thebusiness of workmen's compensation insuranceshalll fail promptly to pay claims for compensa-tion for which it shall become liable or if it shallfail to make reports to the department as pro-vided in s 102 38, the department may recom-mend to the commissioner of insurance that thelicense of such company be revoked, settingforth in detail the reasons for its recommenda-tion The commissioner shall thereupon furnisha copy of such report to the corporation andshall set a date for a hearing, at which both theco rporation and the department shall be af-forded an opportunity to present evidence . . Ifafter such hearing the commissioner is satisfiedthat the corporation has failed to live up to allof its obligations under this chapter,, he shallpromptly revoke its license; otherwise he shalldismiss the complaint .

(7) If' any corporation licensed to transact thebusiness of workmen's compensation insuranceshall encourage, persuade or attempt to influ-ence any employer, arbitrarily or unreasonablyto refuse employment to, or , to discharge em-ployes the commissioner of insurance may,upon complaint of the commission, under proce-dure set out ins 102 31 (6), revoke the licenseof such : corporation .

(8) If any employer who has by the depart-ment been granted exemption from the car ryingof compensation insurance shall arbitrarily orunreasonably refuse employment to or shall dis-charge employes because of a nondisabling phys-ical condition, the department shall revoke theexemption of such employer . .

102 .31 WORKMEN 'S COMPENSATION 1 974


ments, considering interest at,3% per annum .(7) No lump sum settlement shall be allowed

in any case of'permanent total disability upon anestimated life expectancy, except upon consentof all parties, after hearing and finding by thedepartment that the interests of'the injured em-ploye will be conserved thereby .

102 .33 Blanks and records. The depart-ment shall print and furnish free to any em-ployer or employe such blankk forms as it shalldeem requisite to facilitate efficient administra-tion of this act ; it shall keep suchh record booksor records as it shall deem required for theproper and efficient administration of this act .

102 .34 Nonelection , notice by employer .Knowledge' of the fact that an employer is sub-ject to this act shall conclusively be imputed toall employes Every employer who would besubject to this act but for the fact that he haselected not to accept its provisions thereof, shallpost and maintain printed notices ofsuch non-election on his premises, of'such design, in suchnumbers, and at such places as the department,shall, by order, determine to be necessary togive information to his employes .

102 .35 . Penalties. (1) Every employer andevery insurance company that fails to keep therecords or to make the reports required bychapter 102 or that., knowingly falsifies suchrecords or makes false reports shall forfeit tothe state not less than $10 nor more than $100for eachh of'f'ense ..

(2) Any employer, or duly authorized agentthereof; who, without reasonable cause, refusesto rehire an employe injured in the course ofemployment,, or who, because of a claim or at-tempt to claim compensation benefits from suchemployer, shall discriminate or threaten to dis-criminate against an employe as to his employ-ment, shall forfeit to the state not less than $50nor more than $500 for each offense . . No actionunder this subsection shall be commenced ex-cept upon request of'. the commission .

102:37 Employers' records. Every em-ployer of`3 or more persons and every employerwho is subject to the workmen's compensationact shall keep a record of all accidents causingdeath or disability of any employe while per-forming services growing out of and incidentalto the employment, which record shall give thename, address, age and wages of t he deceasedor injured employer the time and causes of theaccident, the nature and extent of the injury,and such other informationas the departmentmay require by general order, Reports basedupon this record shall be furnished to the de-

102.42 Incidental compensation . (1) Theemployer shall supply such medical, surgical"and hospital treatment , medicines , medical andsurgical supplies, crutches, artificial members,appliances, and training in the use ofartificialmembers and appliances, or, at the option ofthe employe, if ' the employer has not filed noticeas hereinafter provided, Ch r istian Science treat-ment in lieu of medical treatment, medicinesand medical supplies, as may be reasonably re-quired to cure and relieve from the effects of theinjury, and to attain efficient use of artificialmembers and appliances, and in case of his ne-glect or refusal seasonably to do so, or in emer-gency until it is practicable for the employe togive notice of injury, the employer shall be lia-ble for the reasonable expense incurred by or onbehalf ' of the employe in providing the same . .The employer shall also be liable for reasonableeexpense incurred by the employe for necessarytreatment to cure and relieve him from the ef-fects of occupational disease prior, to the timethat thee employe knew or should have knownthe nature of his disability and its relation toemployment, and as to such treatment the pro-visions of section 102 42 (2) and (3) shall notapply:.

(2) The employe shall have the right to makechoice of his attending physician from a panel ofphysicians to be named by the employer Where


partment at such times and in such manner as itmay require by general order, upon forms to beprocured from the department.

102 .38 . Records of payments ; reportsthereon. Every insurance company whichtransacts the business of compensation insur-ance, andd every employer who is subject to theworkmen's compensation act, but who has notinsured his liability, shall keep a record of allpayments made under ch 102 and of the timeand manner of making such payments, andshall furnish such reports based upon theserecords to the department as it may require bygeneral order, upon forms to be procured fromthe department..

102 .39 General orders ; application ofstatutes. The provisions of chapter 101, relat-ing to thee adoption, publication, modificationnand court review of general orders of the de-partment shall apply to all general ordersadopted pursuant to this chapter. .

102 .40 Reports not evidence in actions .Reports furnished to thee department pursuantto sections 102 .37 and 102 .38 shall not be ad-missible as evidence in any action or proceedingarising out of the death or accident reported,


the employer has knowledge of the injury andthe necessity for treatment, his failure to tenderthe same shall constitute such neglect or tef'usal .Failure of the employer to maintain a reasonablenumber of competent and impartial physicians,ready to undertake the treatment of the em-ploye, and to permit the employe to make choiceof his attendant from among them, shall consti-tute neglect and refusal to furnish such attend-ance and treatment . Nothing contained in thissection shall limit the right of the employe tomake a second choice of physician from thepanel of physicians named by the employer .. Thedepartment may upon summary hearing permitan injured employe to make selection of a physi-cian nott on the panel .

(3) MEDICAL PANEL In determining the rea-sonableness of the size of the medical panel, thedepartment shall take into account the numberof competent physicians immediately availableto the community in which the medical serviceis required, and where only one such physicianis available, the tender of attention by such phy-sician shall be construed as a compliance withthis section unlesss specialized or extraordinarytreatment is necessary . In such panel, partnersand clinics shall be deemed as one physician ..Every employer shall post the names andd ad-dresses of the physicians on his panel in suchmanner as to afford his employes reasonablenotice thereof.

(4) PREJUDICED PHYSICIAN Whenever inthe opinion of' the department a panel physicianhas not impartially estimated the degree of per-manent disability or the extent of temporarydisabi lity of anyy injured employe, the depart-ment may cause such employe to be examinedby a physician selected by it, and to obtain fromhim a report containing his estimate of suchdisabilities . If the report of such physicianshows that the estimate of the panel physicianhas not been impartial from the standpoint ofsuch employe, the department may in its discie-tion charge the cost of such. examination to theemployer, if he is aself '-insurer; or to the insur-ance company whichh is carryingg the risk

(5) CHRISTIAN SCIENCE Any employer mayelectt not to be subject to the provisions forChristian Science treatment provided for in thissection by filing wr itten notice of such electionwith the department..

(6) ARTIFICIAL , MEMBERS .. Artificial mem-bers furnished at the endd of the healing periodneed not be duplicated.

(7) TREATMENT REJECTED BY EMPLOYS.Unless the employe shall have elected ChristianScience treatmentt in lieu of medical, surgical ,hospital or sanatorium treatment, no compen-sation shall be payable for the death or disabil-

102 .43 Weekly compensation schedule.If' the injury causes disability, an indemnityshall be due as wages commencing the fourthcalendar day, exclusive of Sundays only, except-ing where such emp loyer work on Sunday, afterthe employe leaves work as the result of thei njury, and shall be payable weekly thereafter,during such disability . I f'the disability shall ex-ist after 10 calendar dayss from the date the em-ploye leaves work as a result of the injury andonly ifit so exist indemnity shall also be dueand payable for the first 3 calendar days, exclu-sive of Sundays only, excepting where such em-ployes work on Sunday.. Said weekly indemnityshall be as follows :

(1) If the injury causes total disability, seventyper cent of the average weekly earnings duringsuch total d isability . .

1 . 02 ..42 WORKMEN 'S COMPENSATION 1976

ity of an employe, if his death be caused, orinsofar as his disability may be aggravated,caused or continued (a) by an unreasonable re-fusal or neglect to submit to or follow any com-petent and reasonable medical or surgicaltreatment, (b) or, in the case of tuberculosis, byhis refusal or neglectt to submitt to or follow hos-pital or sanatorium treatment when found bythe department to be necessary The right tocompensation accruing during a period of re-fusal or neglect under (b) shall be barred, irre-spective of whether disability was aggravated,caused or continued thereby,

(8) MEDICAL EXPENSES OF STATE EMPLOYEIn the event of 'a claim by a state employe underthe conditions enumerated in s 102 ..03, involv-ing only payment of medical expense of not toexceed a gross of $50, the employing depart-ment may approve payment of such reasonablemedical expense for necessary medical treat-ment to whomsoever owing, subject to subse-quent review by the department . If theemploying department rejects the claim, theemploye may make claim to the department .Payment shall be charged to the appropriatefund, as provided by s 20 .865 (1) (d) .

(9) AWARD TO STATE EMPLOYS Wheneveran award is made by the department in behalfof a state employe, duplicate copies of theaward shall be filed with the employing consti-tutional office, department or independentagency .. Upon receipt of the copies of theawards, the constitutional officer or head of thedepartment or independent agency shallpromptly issue a voucher in payment of theaward from the proper state fund and apptopri-ation, and shall transmit the voucher and onecopy of the award to the department of admin-istration .


(2) I f the injury causes partial disability, dur-ing the partial disability, such proportion of theweekly indemnity rate for total disability as theactual wage loss of the injured employe bears tohis average weekly wage at the time of his injury .

(3) If ' the disability caused by the injury is attimes total and at times partial, the weekly in-demnity during eachh total or partial disabilityshall be in accordance with subsections (1) and(2), respectively ..

(4) If the disability, period involves a fractionalweek,, indemnity shalll be paid for each day ofsuch week, except Sundays only, at the rate ofone-sixth of the weekly indemnity . .

(5) Temporary disability, during which com-pensation shall be payable for loss of earnings,shall include such period as may be reasonablyrequired for training in the use of ' axtificial mem-bers and appliances, and shall include such pe-riod as the employe may be receiving instructionpursuant to the provisions of' section 102 . 61Temporary disabilityy on account of receiving in-struction of the latter nature, and not otherwiseresulting from the injury, shall not be in excessof 40 weeks .

102 .44 Maximum limitations. Section102 43 shall be subject to the following limita-tions :

(2) In case of 'permanent total disability aggre-gate indemnity shall be weekly indemnity for theperiod that he may live . Total impairment forindustrial usee of both eyes,, or the loss of botharms at or near the shoulder, or of both legs ator near the hip, or of one arm at the shoulderand one leg at thee hip, shall constitute perma-nent total disability , This enumeration shall notbe exclusive but in other cases the departmentshall find the facts . .

(3) For permanent partial disability not_ cov-ered by the provisions of sections 102 . 52 to102 56 the aggregate number of weeks of ' indem-nity shall bear such relation to the numberr ofweeks set out in paragraphs (a) and (b) as thenature of the injury bears to one causing perma-nent total disability and shalll be payable at therate of 70 per cent of ' the average weekly earn-ings of the employe to be computed as providedin section 102 . 11 . . Such weekly indemnity shallbe in addition to compensation for healing pe-riod and shall be for the period that he may live,not to exceed, however, these named limitations,to wit :

(a) Onee thousand weeks for all persons 50years of age or less . .

(b) For each successive yea r ly age group, be-ginning with 51 years, the maximum limitationshall be reduced by 2 1/2 per cent per year, withno reduction in excess of 50 per cent . .

102.47 Death benef i t , cont inued. If deathoccurs to an injured employe other than as aproximate result of the injury, before disabilityindemnity ceases, death benefit and burial ex-pense allowance shall be as follows :

(1) Where the injury proximately causes per-manent total disability, they shall be the same asif the injury had caused death, except that theburial expense allowance shall be included in theitems subjectt to the limitation stated in section102;46 The amount available shall be appliedtoward burial expense before any is applied to-ward death benefit .

(2) Where thee injury proximately causes per-manent partial disability, the unaccrued com-pensation `shall first be applied toward funeralexpenses,, not to exceed $500, any remainingsum to be paid to dependents, as provided in thissection and ss 102 .46 and 102 . .48, and thereshall be no liability for any other payments . Allcomputations under this subsection shall takeinto consideration the present value of' futurepayments . .

1 977 WORKMEN'S COMPENSATION 102 .47

(4) Where the permanent disability is coveredby the provisions of sections 102 . .52, 102 .53 and102 55, such sections shall govern ; provided,that in no case shall the percentage of permanenttotal disability be taken as more than 100 percent,

102 .45 Benefits- payable to minors; howpaid. Compensation and death benefit payabl eto an employe or dependent who was a minorwhen his right began to accrue, may, in the dis-cretion of the department, be ordered paid to abank, trust company, trustee, parent or guard-ian, for the use of such employe or dependent asmay be found best ca lculated to conserve hisinterests : Such employe or dependent shall beentit l ed to receive payments, in the aggregate,at a rate not less than that applicable to pay-ments of primary compensation for total disa-bility or death benefit as accruing from histwenty-first birthday .,

102 .46 Death benefit . Where death proxi-mately results from the injury and the deceasedleaves a person wholly dependent upon him forsupport,, the death benefit shall equal four timeshis average annual earnings, but when added tothe disabilityy indemnity paid and due at t hetime of death, shall not exceed seventy per centof weekly wage for the number of weeks set outin paragraphs (a) and (b) of subsection (3) ofsection 102 .44, based on the age of the deceasedat the time of''his injury .


over 16 years of age at the death of the employeunless such child be physicallyy or mentally in-capacitated from earning, in which case the de-partment shall make such allowance as theequities and the necessities of the case merit ,not more, however, than the amount payable onaccount of a child under one year of age

(2) A child lawfully adopted by the deceasedemploye and the surviving spouse, prior to thetime of the injury, and a child not his own bybirth or adoption but living with him as a mem-ber of his family at the time of the injury shallfor the purpose of this section be taken as a childby their marriage .

(3) Where the employe leaves a wife or hus-band wholly dependent and also a child or chil-dten by a former marriage or adoption, likewisewholly dependent, aggregate benefits shall bethe same in amount . as if the children were thechildren of such surviving spouse, and the entirebenefit shall be apportioned to the dependents insuch amounts as thee department shall determineto be , just, considering their ages and other factsbearing on dependency . The benefitt awarded tothe surviving spouse shall not exceed four timesthe average annual earnings of the deceased em-ploye

(4) Dependency of any child for the purposesof this section shall be determined according tothe provisions of subsection . (1) of section102 51, in like manner as would be done if ' therewas no surviving dependent parent .

(5) (a) In each case of injury resulting indeath, leaving one or more persons wholly de-pendent for support, the employer or insurer .shall pay into the state treasury the sum of$2,500 .

(b) In each case of injury resulting in deathleaving no person dependent for support, theemployer, or insurer shall pay into the statetreasury the sum of $11,000 .

pay

the sumsof partial ben-efit

0The

any

dren; (c)In each case of i njury resulting in death,102 :49 Additional death benefit for chit -state fund. ( 1 ) Where the beneficiary leaving one or more persons partial ly dependent

under s. 102 46 or s ' 102 47 (1) is the wife orhusband

for support; the employer or insurer shal lof the deceased employe and is whollydependent into the state treasury an amount which, when

paid or to be paid on accountfor support, an additional death ben-efit added todependency, shall equal the deathshal l be paid from the funds provided by

at efitpayable to a person wholly dependent, plussub (5) for each child by their marriage livingwho the amount payable into the state treasury underthe time of the death of the employe, and

is likewise wholly dependent upon him for this subsection where there is a person whollysupport,, Such additional benefit shall be com-puted such payment to the state treasury inputed from the date of the death of the employe no event to exceed $ 11,000as follows : For the child one year of age or un- payment into the state treasury shallder (d)(inc luding a posthumous child), a sumequal be made in all such cases regardless of whether

to 1 1/TS times the average annual earn-ings the dependents or personal representatives of theof the deceased emp loye For children in deceased employe commence action against a

each successive yearly age group the amountallowed third party under s 102 . .29 . . If such payment isshall be reduced by one-sixteenth partof not made with in 20 days after the department

such sum, with no allowance for any child makes request therefor, sum payable shall

102 „48 WORKMEN'S COMPENSATION

102.48 Death benefit, continued. If' thedeceased employe leaves no one wholly depend-ent upon him for support, partial dependencyand death benefits therefor shall be as follows :

(1) An unestranged surviving parent or par-ents to whose support the deceased has contrib-uted less than $500 in the 52 weeks nextpreceding the injury causing death shall receivea death benefit of $2,000. If the parents are notliving together, the depa rtment shall d ivide thissum in such proportion as it deems to be just,considering their ages and otherr facts bearing ondependency .

(2) In all other cases the death benefit shall besuch sum as the department shall determine torepresent fairly and justly the aid to supportwhich the dependent might reasonably have an-ticipated from the deceased employe but for theinjury; To establish anticipation of support anddependency, it shall not be essential that theedeceased employe made any contribution to sup-port.. The aggregate benefits in such case shallnot exceed twice the average annual earnings ofthe deceased ; or 4 times the contributions of thedeceased to the support of such dependents dur-ing the year immediately preceding his death,whichever amount is the greater In no eventshall the aggregate benefits in such case exceedthe amount which would accrue to a personsolely and wholly dependent , Where there ismore :than one partial dependent the weekly ben-efit shall be apportioned accordingg to their , rela-tive dependency . The term "support" as used inss 102,42 to 102 63 shall include contributionsto the capital fund of the dependents, for theirnecessary comfort

(3) Death benefit, other than burial expenses,except, otherwise provided, shall be paid inweeklyy instalments corresponding in amount to50% of' the weekly earnings of the employe, untilotherwise ordered by the department

197 8


husband upon a wife with whom he is living atthe time of her death ; a child under the age of18 years (or over said age, but physically ormentally incapacitated from earning), upon theparent with whom he is living at the time of'thedeath of such parent, there being no survivingdependent parent Where a dependent entitledto the presumption in this subsection survivesthe deceased employe, all other dependentsshall be excluded . : The charging of any portionof the support and maintenancee of a child uponone of'the parents, or any voluntary contribu-tion toward the support of a child by a parent,or an obligation to support a child by a parentshall constitute a living with any such parentwithin the meaning of this section .,

(2) WHO ARE NOT (a) No person shall beconsidered a dependent unless a memberr of thefamily or a spouse, or a divorced spouse whohas not remarried, or lineal descendant or an-cestor, or brother or sister of the deceased em-ploye

(b) Where forr eight years or more prior to thedate of'injury a deceased employe has been aresident of the United States, it shall be conclu-sively presumed that no person who has re-mained a nonresident alien during that period iseither totally or partially dependent upon himfor support .

(c) No person who is a nonresident alien shallbe found to be either totally or partially depend-ent on a deceased employe for support who can-not establish dependency by provingcontributions from the deceased employe , bywritten evidence or tokens of the transfer ofmoney, such as drafts, letters of credit, canceledchecks, or receipts for the payment to any bank,express company, United States post office, orotherr agency commercially engaged in the trans-fer of' funds from one country to another, fortransmission of'funds on behalf of said deceasedemploye to such nonresident alien claiming de-pendency This provision shall not be applicableunless the employe has been continuously in theUnited States for at least one year prior to hisinjury, and has been remuneratively employedtherein for at least 6 months .

(3) DIVISION AMONG DEPENDENTS If thereis more than one person wholly or partially de-pendent, the death benefit shall be divided be-tween such dependents in such proportion asthe department shall determine to be just, con-sidering their ages and other facts bearing onsuch dependency .

(4) DEPENDENCY AS OF DATE OF INJURY .Questions as to who constitute dependents andthe extent of their dependency shall be deter-mined ass of" .the date of the injury to the em-ploye, and their right to any death benefit shall

102.50 Burial expenses . In all cases wheredeath of an employe proximately res ults fromthe injury the employer or insurer shall pay thereasonable expense for burial, not exceeding$500

102.51 Dependents . (1) WHO ARE Thefol l owing shall be conclusively presumed to besolely and wholly dependent for support upon adeceased emp loyer A wife upon a husband withwhom she is living at the time of" his death ; a

1979

bear interest at the rate of 6 per cent per annum . .(e) If the balance in the fund provided by this

subsection on any June 30 equals or exceeds 11 /2 times the amount paid out of the fund dur-ing the fiscal year ending on said June 30, thenthe amount of the payment into the state treas-ury, where one or more persons is wholly de-pendent for support , shall be $2,000 instead of$2,500 for injuries occurring on or after the fol-lowing October 1 If ' the balance is 2 times theamount paid out, the amount of the paymentshall be $1,500 instead of $2,500 If" the balanceis 2 1 /2 times the amount paid out, the paymentshall be $1,000 . . If the balance is 3 times theamount paid out, the payment shall be $500. If 'the balance is 3 1/2 times the amount paid out,no payment shall be required . Any provision forpayment of less than $2,500 shall be valid for aperiod of one year commencing on said OctoberL The commission shall by findings and orderannually before October 1 determine the amountto be paid into the fund ; such findings and ordershall set forth the balance in the fund as of June30, and the amount paid outt during such fiscalyear

(6) The moneys paid into the state treasurypursuant to subsection (5) with all accrued inter-est is hereby appropriated to the department forthe discharge of all liability for additional deathbenefitss accruing under this section .

(7) The additional benefits for account of eachchild shall accrue at the rate of 13 per cent of thesurviving parent's weekly indemnity . . The de-partment may award such benefits to the surviv-ing parent of such child, to his guardian or tosuch other person, bank or trust company for hisuse as may be found best calculated to conservethe interest of' the child . . In the case of death ofa child while benefits are still payable theree shallbe paid the reasonable expense for burial notexceeding $300 .

(8) For the proper administration of the fundsavailable under subs . (5) and (6) the departmentshall, by order, set aside in the state treasurysuitable reserves to carry to maturity the liabilityfor additional death benefit . Such moneys shallbe invested by the investment board, in the secu-rities authorized in s . 206 . 34.

WORKMEN 'S COMPENSATION 102.51


(b) An index finger at the proximal joint, 50weeks ;

(c) An index ' finger at the second joint, 30weeks ;

(d) An index finger at the distal joint, 12weeks;

(e) A middle finger and the metacarpal bonethereof, 45 weeks ;

(f) A middle fingerr at the proximal joint, 35weeks ;

(g) A middle finger- at the second joint, 20weeks ;

(h) A middle finger at the distal joint, 8weeks,(i) A ring finger and the metacarpal bone

thereof, 26 weeks ;(j) A ring finger at the proximal joint , 20

weeks;(k) A, ring finger at the second joint , 15 weeks ;(1) A ring finger at the distal joint, 6 weeks ;(m) A little finger and the metacarpal bone

thereof, 28 weeks;:(n) A little finger at the proximal joint, 22

weeks;(o) A little finger at the second joint, 16 weeks;(p) A little finger at the distal joint, 6 weeks;(10) The loss of a leg at the hip j oint ; 500

weeks ;(11) Theloss of a leg at the knee , 425 weeks ;(12) The loss of a foot at the ankle, 250: weeks ;(13) The loss of the great toe with the metatar-

sal bone thereof, 83 ' 1/3 weeks ;(14) Losses of toes on each foot as follows :(a) Agxeat toe at the proximal joint, 25 weeks;(b) A great toe at the distal joint, 12 weeks;(c) The second toe with the metata r sal bone

thereof ; 25 weeks ;(d) The secondd toe at the proximal joint, 8

weeks;(e) The second toe at the second joint, 6

weeks;(f) The second toe at the distal joint , 4 weeks;(g) The third , fourth or little toe with the

metatarsal bone thereof, 20 weeks;(h) The third, fourth or little toe at the proxi-

mal joint, 6 weeks ;(i) The third, fourth or little toe at the second

or distal joint, 4 weeks;(15) The los s of an eye by enucleation or evisc-

eration, 275 weeks;(16) Total impairment of one. eye for indus-

trial use , . 2500 weeks ;('17) Total deafness from accident or sudden

trauma, 330 weeks;(18) Total deafness of one ear from accident

or sudden trauma, 55 weeks ,

102.52 Permanent partial disabilityschedule . I n cases included in the followingschedule of permanent partial disabilities in-demnity shall be paid for the healing period,and in addition "thereto, where the employe is50 years of'age or less, for the period specified,at the rate of 70 per cent of the average weeklyearnings of'the employe, to be computed as pro-vided in section ' 102 .11 :

(1) The loss of an arm at the shoulder, 500weeks ;

(2) The loss of an arm at the elbow, 450 weeks ;(3) The loss of a hand, 400 weeks;(4) The loss of a palm where the thumb re-

mains, 275 weeks ;(5) The loss of"a thumb andd the metacarpal

bone thereof, 125 weeks ; .(6) The loss of 'a thumb at the proximal joint,

100 weeks, .(7) The loss of a thumb at the distal joint, 40

weeks ;(8) The loss of all fingers on one hand at their

proximal joints, 225 weeks ;(9) Losses of fingers on each hand as follows :(a) An index finger and the metacarpal bone

thereof, 60 weeks;

102.51 WORKMEN'S COMPENSATION

become fixed as of such time, irrespective of'anysubsequent change in conditions; and the deathbenefit shall be directly recoverable by and paya-ble to the dependents entitled thereto or theirlegal guardians or trustees ; in case of'the deathof a dependent whose right to a death benefit hasthuss become fixed, so much of` the same as isthen unpaid shall be payable to his personal rep-resentatives in gross .(5) WHEN NOT INTERESTED No dependent

of an injured employe shall be deemed a partyin interest to any proceeding by him for theenforcement of his claim for compensation, noras respects the compromise thereof by such em-ploye Subject to the provisions of section102 16 (1), a compromise of'all liability enteredinto by an employe shall be binding upon hisdependents .

(6) DIVISION AMONG DEPENDENTS Benefitsaccruing to a minor dependent child may beawarded to the mother in the discretion of thedepartment .. Notwithstanding sub. (1) the de-partment may reassign the death benefit, in ac-cordance with their respective needs therefor asbetween a surviving spouse and children desig-nated ins 102 . .49 :

(7) CERTAIN DEFENSE BARRED. In proceed-ings for the collection of primary death benefitor burial expense it shall not be a defense thatthe applicant,' either individually or as a part-net, was an employer of the deceased .

1980


102 .555 Occupational deafness ; defini-tions. ( 1 ) "Occupational deafness" means per-manent partial or permanent total loss ofhearing of one or both ears due to prolongedexposure to noise in employment _ "Noise"means sound capable of'producing occupationaldeafness .. "Noisy employment" means employ-ment in the performance of which an employeis subjected to noise . .

(2) No benefits shall be payable for temporarytotal or temporary partial disability under thisact for loss of hearing due to prolonged exposureto noise.

(3) An employe who because of occupationaldeafness is transferred by his employer to other,noisy employment and thereby sustains actualwage loss shall be compensated at the rate pro-vided ins 102 43 (2), not exceeding $3,500 inthe aggregate from all employers "Time of in-jury," `occurrence of injury," "date of injury"in such case shall be the date of wage loss .

(4) Subject to the limitations herein containedand the provisions of 's 102 53 (2) there shall bepayable for total occupational deafness of oneear, 36 weeks of compensation; for total occupa-tional deafness of both ears, 2 1 6 weeks of com-pensation; and for partial occupational deafness,compensation shall bear such relation to thatnamed herein as disabilities bear to the maxi-mum disabilit ies herein provided . The reductionof the periods for which indemnity is paid madebecause of age under s 102. .5 .3 (2) shall not applyin cases of occupational deafness ; however, areduction of the period shall be made at the rateof one-half' per cent for each year that the age ofsuch employe exceeds 50 in recognition of theloss attributabl e to presbycusis In cases coveredby this subsection "time of injury," "occurrenceof injury," or "date of injury" shall be exclu-sively the date of occu rrence of any of the fol-lowing events to an employer

(a) Transfer because of occupational deafnessto nonnoisy employment by an employer whoseemployment has caused occupational deafness ;

(b) Retirement ;(c) Termination of the employer-employe re-

lationship ;(d) Layoff, provided the layoff is complete

and continuous for one year ;(e) No claim under this subsection shall be

filed,, however, until - 6 consecutive months ofremoval from noisy employment after the timeof injury except that under par . (d) such 6 con-secutive months' period may commence withinthe last 6 months of" layoff

(5) The l imitation provis ions in this act shal lcontrol claims arising under this section, Suchprovisions shall run from the first date uponwhich claim is filed, or from the date of subse-

102 .55 Application of schedules. (1)Wheneverr amputation of 'a member is made be-tween any 2 joints mentioned in the schedule insection 102 .52 the determined loss and resultantindemnity therefor shall bear such relation tothe loss and indemn ity applicable in case of am-putation at the joint next nearer the body assuch injury bears to one of amputation at thejoint nearer the body ;

(2) For the purposes of this schedule perma-nent and complete paralysis of any member s hallbe deemed equiva lent to the loss thereof'

(3) For all other injuries to the members of'thebodyy or its faculties: which are specified in thisschedule resulting in permanent disability,though the member be not actually severed orthe faculty totally lost, ., compensation shall bearsuch relation to that namedd in this schedule asdisabilities bear to the disabilities named in thisschedule . . I ndemnity in such cases shal l be deter-mined by allowing weekly indemnity during thehealing period resulting from the injury and thepercentage-of' permanent disability resultingthereafter as found by the department .

198 1

102.53 Multiple injury and age variations .(1) In case an injuryy causess more than one per-manent disabil ity specified in sections 102 .44(3), 102 52 and 102..55, the period for whichindemnity- shall be payable for each additionalequal or lesser disability shall be increased asfollows

(a) I n the case of impairment of both eyes, by200 per cent .

(b) I n the case of disabilities on the same handcovered by section 102 52 (9), by 100 per cent forthe first equal or lesser disability and by 150 percent for the second and third equal or lesserdisabilities .

(c) In the case of disabilities on the same footcoveredd by section 102 .52 (14), by 20 per cent..

(d) In all other cases, by 20 per cent .(e) The aggregate result as computed by ap-

plying paragraph (a), and the aggregate resultfor members on the same hand or foot as com-puted by applying paragraphs (b) and (c), shalleach be taken as a unit for applying paragraph(d) as between such units, and as between suchunits and each other disability .

(2) In cases where the injured employe isabove 50 years of age when injured the periodsfor which indemnity shall be payable, in addi-tion to the healing period, shall be reduced fromthose specified in section 102 .52 by 2 1/2 percent for each year that the age of such emp loyeexceeds 50, with no reduction in excess of S0 percent.. .

WORKMEN 'S COMPENSATION 102 . 555


quent death, provided that no claim shall accrueto any dependent unless an award has been is-sued or hearing tests have been conducted by acompetent medical specialist after the employehas been removed from the noisy environmentfor a period of 6 months .

(6) No payment shall be made to an employeunder this section unless he shallhave worked innoisy employment for a total period of at least90 days for thee employer from whom he claimscompensation .

(7) An employer shall become liable for theentire occupational deafness to which his em-ployment has contributed ; but if' previous deaf-ness is established by a hearing test or othercompetent evidence, whether or not the employewas exposed to noise within the 6 months pre-ceding such test, he sha l l not be liable for previ-ous loss so established nor shall he be liable forany loss for which compensation has previouslybeen .paid or awarded .

(8) Any amount paid to an employe under thissection by any employer shall be credited againstcompensation payablee by any employer to suchemploye for occupational deafness under subs .(3) and (4) No employe shall in the aggregatereceive greater compensation from any or allemployers for occupational deafness than thatprovided in this section for total occupationaldeafness .

102.56 Disfigurement . If an employe is sopermanently disfigured about the face,, head,neck, hand or arm as to occasion potential lossof wage, the department may allow such sumfor compensation on account thereof, as itdeems just, not exceeding his average annualearnings as defined in s . 102 .11 .

102 .565 Silicosis, nondisabling ; medicalexamination ; conditions of liability . (1)When an employe working subject to thiss chap-ter , is, because he has a nondisabling silicosis,discharged from the employment in which he isengaged, or when an employe ceases such em-ployment and it is in fact inadvisable for him onaccount of a nondisabling silicosis to continuein it, and suffers wage loss by reason of suchdischarge, or such cessation, thee departmentmay allow such compensationn on accountthereof as it deems just, not exceeding $7,000 :I n case of`such discharge prior to a finding bythe department that it is inadvisable for him tocontinue in such employment, the liability ofthe employer who so discharges his employe.,shall be primary, and the liability of the insurershall be secondary, under the same procedureand to the same effect as provided by s 102 .62

(2) Upon application of any employer or em-ploye the department may direct any employe ofsuch employer or such employe who, in thecourse of his employment, has been exposed tothe inhalation of silica, to submit to examinationby a physician or physicians to be appointed bythe department to determine whether such em-ploye has silicosis, and the degree thereof, Thecost of such medical examination shall be borneby the person making application the results ofsuch examination shall be submitted by the phy-sician to the department, which shall submitcopies of such reports to the employer and em=ploye, who shall have opportunity to rebut thesame provided request therefor is made to thedepartment within 10 days from the mailing ofsuch report to the parties . The department shallmake its findings as to whether or not it is inad-visable for the employe to continue in his em-ployment

(3) If an employe shall refuse to submit tosuch examination after direction by the commis-sion, or any member or examiner thereof; orshall in any way obstruct the same, his right tocompensation under this section shall be barred .

(4) No payment shalll be made to an employeunder this section unless he shall have workedfor the employer from whom he claims compen-sation in work exposing him to inhalation ofsilica forr a total period of at least 90 days .

(5) Payment of a benefit under this section toan employe shall estop such employe from anyfurther recovery whatsoever from any employerunder this section,

102 . 57 Violations of safety provisions ,penalty: Where injury is caused by the failureof the employer to comply with any statute orany lawful order of'the department, compensa-tion and death benefits as provided in this-chap-ter shall be increased 15% but not more than atotal increase of $7,500 Fai lure of an employerreasonably to enforce compliance by employeswith such statute or orderr of the departmentsha l l constitute failure by the employer to com-ply with such statute or order .

102 .58 Decreased compensation . Whereinjury i s caused by the fai l ure of the employe touse safety devices where provided in accordancewith any statute or lawful order of the depart-ment and adequately maintained, and their useis reasonably enforced by the employer, orwhere injury results from the employe's failureto obey any reasonable rule adopted by the em-ployer for the safety of thee employe and ofwhich the employe has notice, or where injuryresults from theintoxication of the employe, thecompensation andd death benefit provided



102 .60 Minor illegally employed , com-pensation . When the injury is sustained by aminor illegally employed, compensation anddeath benefits shall be as follows :

(1) Double the amount otherwise recoverable,if the injured employe is a m inor of permit age,and at the time of the injury is employed, re-quiied, suffered or' permitted to work w i thout a

102 .61 Indemnity under rehabilitationlaw. An employe who is entitled to receive andhas received compensation pursuant to thischapter, and who is entit l ed to and is receivinginstructions pursuant to the provisions of theact of congress known as the vocational rehabil-

1983

herein shall be reduced 15% but the tota l reduc-tion shall not exceed $7,500 .

102 .59 Pre-existing disability ,, indemnity,state fund , investment. (1) I f an employe hasat the time of injury permanent disability whichif it had resulted from such injury would haveentitled him to indemnity for 200 weeks less 21/2% thereof for each year of age above 50years with no reduction in excess of S0%> and,as a result of'such injury, incurs further perma-nent disability, which entit les him to indemnityfor 200 weeks less 2 1/2% thereof for each yearof age above 50 years w ith no reduction in ex-cess of 50%, he shall be paid from the fundsprovided in this section additional compensa-tion equivalent to the amount which would bepayable for said previous disability if it had re-sulted from such injury or the amount which ispayable for said further disability, whichever isthe lesser ; If said disabil ities result in perma-nent total disability the additional compensa-tion shall be in such amo unt as will completethe payments which' would have been due hadsaid permanent total d i sabi l ity resulted fromsuch injury Such additional compensation shallaccrue from the end of the period for whichcompensation for permanent disabi lity resultingfrom such injury is payab le by the employer,and `shall be subject to s. 102.32 (6) and (7) .

(2) I n the case of"the loss or of the total im-pairment of a hand, arm, foot, leg or eye, theemployer' shall be required to pay $1,500 into thestate treasury The payment shall be made in allsuch cases regardless of whether the employe,his dependent or personal representatives, com-mence action against a third party as provided

ins 102 29 (3) The moneys so paid into the state treasury,with al l accrued interest, is hereby appropriatedto the department for the discharge of all liabil-ity for special additional indemnity accruing un-der this section,

(4) For the proper administration of'the fundsavailable underr this section the commissionshall,, by order, set aside in the state treasurysuitable, reserves to carry to maturity the liabilityfor speial additional indemnity in each case,and for any contingent death benefit . Such mon-eys shall be invested by the investment board, inthe securities authorized in section 206 . .34..

WORKMEN'S COMPENSATION 102 .61

written permitt issued pursuant to chapter 103,except as provided in subsection (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, re-quired, suffered or permitted to work without apermit in any. place of employment or at anyemployment in or for which the commission act-ing under authority of' chapter 103 , has adopteda written resolution providing that permits shallnot be issued .

(3) Treble the amount otherwise recoverable ifthe injured employe is a minor of permit age , orover, and at the time of the injury is employed,required, suffered, or permitted to work at pro-hibited employment .

(4) Treble the amount otherwise recoverable,if the injured employe is a minor under permitage and illegally employed . .

(5) (a) A permit or cer tificate of age unlaw-fully issued by an officer specified in ch 103, orunlawfully altered after issuance, without fraudon the part of the employe r, shall be deemed apermit within the provisions of this section . .

(b) If the employer is misled in employing aminor illegally because of' f 'raudulent written evi-dence of age presented to him by the minor, theincreased compensation provided by this sectionshall not be paid to the employe, but shall bepaid into the fund establishedd by s . 102.. 49 ..

(6) If' the amount recoverable under this sec-tion for temporary disability shall be less thanthe actual loss of wage sustained by the minoremploye, then liability shall exist for such loss ofwage .

(7) The provisions of ' subsections (1) to (6) ofsection 102. .. 60 shall not apply to employes asdefined in subsection (6) of section 102 07 if theagency or publisher shall establish by affirmativeproof that at the time of the injury the employewas not employed with the actual or construc-tive knowledge of such agency or publisher

(8) This section shall nott apply to liabilityarising under s 102 06 unless the employersought to be charged knew or should haveknown that the minor was illegally employed bythe contractor or subcontractor .

(9) The inc reased compensation or increaseddeathh benefits recoverable under sub . . (1) shallnot exceed $5,000.. The increased compensationor increased death benefits recoverable undersubs .. (2), (3) or (4) shall not exceed $7,500 . .


102 ,: 61 WORKMEN'S COMPENSATION

itation act, and amendments thereto (PublicLaw 113-78th Congress) as administered by thestate in which he holds residence or in which heresided at the time of becoming physically hand-icapped, shall, in addition to his other indem-nity, be paid his actual and necessary expensesof travel- and, if' he receives such instructionselsewhere than at the place of his residence, hisactual and necessary costs of maintenance, dur-ing rehabilitation, subject to the following condi-tions and limitations :

(1) He must undertake the course of instruc-tion within 60 days from the date when he hassufficiently recovered from his injury to permitof his so doing, or as soon thereafter as the of-ficer or agency having charge of his instructionshall provide opportunity for his rehabilitation .

(2) He must continue in rehabilitation train-ing with such reasonable regularity as his healthand situation will permit,

(3) He may not have expenses of travel andcosts of maintenance on account of training fora period in excess of 40 weeks in all

(4) The department shall determine the rightsand liabilities of the parties under this section inlike manner and with like effect as it does otherissues under compensation,

102 .62 Primary and secondary liabil i ty ;unchangeab le. In case of liability for the in-creased compensation or increased death bene-fits provided for by section 102 57, or includedin section 102 ..60, the liability, of the employershall be primary and the liability of the insur-ance carrier shall be secondary In case pro-ceedings are had before the department for therecovery of such increased compensation or in-creased death benefits the department shall setforth in-its award the amount and order of lia-bility as herein provided . Execution shall not beissued against the insurance carrier to satisfyany judgment covering such increased compen-sation or increased deathbenefits until execu-tion has first been issued against the employerand has been returned unsatisfied as to,an,y partthereof Any provision in any insurance policyundertaking to guarantee primary liability or toavoid secondary liability for such increasedcompensation or increased death benefits shallbe void. In case the employer shall have been

1 9 84

adjudged bankrupt , or have made an assign-ment for the benefit of creditors, or if the em-ployer, other than an individual, have gone outof business or have been dis solved, or if' a corpo-ration, its charter have been forfeited or re-voked, the insurer shall be liable for thepayment of increased compensation and deathbenefits without judgment or execution againstthe employer, but without altering the primaryliability of the employer ,

102.63 Refunds by state . Whenever thedepartment shall certify to the state treasurerthat excess payment has been made under s .102,59 or under s 102 49 (5) either becausee ofmistake or : otherwise, the state treasurer shallwithin 5 days after receiptt of such certificatedraww an order against the fund in the statetreasury into which such excess was paid, reim-bursing such payor of such excess payment to-gether .with interest actua l ly earned thereon .

102.64 Attorney general shall representstate and commission . (1) A representative ofthe department of justice designated by the at-torney general shall represent the state in allcases involving, payment into or out of" :the statetreasury under s 20 865 (1) (d) or s 102 .49 or102.59 . Thee department of justice as directed bythe attorney general may compromise theamount of such payments but suchh compro-mises shall be subject to review by thee depart-ment . If the wife or husband of the deceasedemploye compromises her or his cl aim for pri-mary death benefit, the cla i m of the children ofsuch employe under s 102 .49 shall be compro-mised on the same prorata basis subject to ap-proval by the department' .

(2) In all proceedings upon claims for com-pensation against the state, the attorney generalmay appear on behalf' of the state

(3) In any action to review an order or awardof the commission, and upo n any appeal thereinto the supreme court, t he attorney-general shallappear on behalf' of the commission, 'whether,aany other party defendant shall be representedor not, except that in actions brought by thestate the governor shall appoint an attorney toappear on behalf of the commission,


chapter 102 · 1959 workmen's compensation (e) "municipality" includes county,...

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