102.40 Reports not evidence in actions. Reports furnished to the department pursuant to ss. 102.37 and 102.38 shall not be admissible as evidence in any action or proceeding arising out of the death or accident reported. 102.42 Incidental compensation; medical treatment and expenses. (1) TREATMENT OF EMPLOYEE. Subject to the limitations under sub. (1p), the employer shall supply such medical, surgical, chiropractic, psychological, podiatric, dental, and hospital treatment, medicines, medical and surgical supplies, crutches, artificial members, appliances, and training in the use of artificial members and appliances, or, at the option of the employee, Christian Science treatment in lieu of medical treatment, medicines, and medical supplies, as may be reasonably required to cure and relieve from the effects of the injury, and to attain efficient use of artificial members and appliances, and in case of the employer’s neglect or refusal seasonably to do so, or in emergency until it is practicable for the employee to give notice of injury, the employer shall be liable for the reasonable expense incurred by or on behalf of the employee in providing such treatment, medicines, supplies, and training. When the employer has knowledge of the injury and the necessity for treatment, the employer’s failure to tender the necessary treatment, medicines, supplies, and training constitutes such neglect or refusal. The employer shall also be liable for reasonable expense incurred by the
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employee for necessary treatment to cure and relieve the employee from the effects of occupational disease prior to the time that the employee knew or should have known the nature of his or her disability and its relation to employment, and as to such treatment subs. (2) and (3) shall not apply. The obligation to furnish such treatment and appliances shall continue as required to prevent further deterioration in the condition of the employee or to maintain the existing status of such condition whether or not healing is completed. (1m) LIABILITY FOR UNNECESSARY TREATMENT. If an employee who has sustained a compensable injury undertakes in good faith invasive treatment that is generally medically acceptable, but that is unnecessary, the employer shall pay disability indemnity for all disability incurred as a result of that treatment. An employer is not liable for disability indemnity for any disability incurred as a result of any unnecessary treatment undertaken in good faith that is noninvasive or not medically acceptable. This subsection applies to all findings that an employee has sustained a compensable injury, whether the finding results from a hearing, the default of a party, or a compromise or stipulation confirmed by the department. (1p) LIABILITY FOR TREATMENT OF CERTAIN MENTAL INJURIES. The employer of an employee whose injury is a mental injury that is compensable under s. 102.17 (9) is liable for the employee’s treatment of the mental injury for no more than 32 weeks after the injury is first reported. (2) CHOICE OF PRACTITIONER. (a) When the employer has notice of an injury and its relationship to the employment, the employer shall offer to the injured employee his or her choice of any physician, chiropractor, psychologist, dentist, physician assistant, advanced practice registered nurse, or podiatrist licensed to practice and practicing in this state for treatment of the injury. By mutual agreement, the employee may have the choice of any qualified practitioner not licensed in this state. In case of emergency, the employer may arrange for treatment without tendering a choice. After the emergency has passed the employee shall be given his or her choice of attending practitioner at the earliest opportunity. The employee has the right to a 2nd choice of attending practitioner on notice to the employer or its insurance carrier. Any further choice shall be by mutual agreement. Partners and clinics are considered to be one practitioner. Treatment by a practitioner on referral from another practitioner is considered to be treatment by one practitioner. (b) The employer is liable for the expense of reasonable travel to obtain treatment at the same rate as is provided for state officers and employees under s. 20.916 (8). The employer is not liable for the expense of unreasonable travel to obtain treatment. (3) PRACTITIONER CHOICE UNRESTRICTED. If the employer fails to tender treatment as provided in sub. (1) or choice of an attending practitioner as provided in sub. (2), the employee’s right to choose the attending practitioner is not restricted and the employer is liable for the reasonable and necessary expense thereof. (4) CHRISTIAN SCIENCE. The liability of an employer for the cost of Christian Science treatment provided to an injured employee is limited to the usual and customary charge for that treatment. (5) ARTIFICIAL MEMBERS. Liability for repair and replacement of prosthetic devices is limited to the effects of normal wear and tear. Artificial members furnished at the end of the healing period for cosmetic purposes only need not be duplicated. (6) TREATMENT REJECTED BY EMPLOYEE. Unless the employee has elected Christian Science treatment in lieu of medical, surgical, dental, or hospital treatment, no compensation shall be payable for the death or disability of an employee, if the death is caused, or insofar as the disability may be aggravated, caused, or
WORKER’S COMPENSATION
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continued by an unreasonable refusal or neglect to submit to or follow any competent and reasonable medical, surgical, or dental treatment or, in the case of tuberculosis, by refusal or neglect to submit to or follow hospital or medical treatment when found by the department to be necessary. The right to compensation accruing during a period of refusal or neglect to submit to or follow hospital or medical treatment when found by the department to be necessary in the case of tuberculosis shall be barred, irrespective of whether disability was aggravated, caused, or continued by that refusal or neglect. (8) AWARD TO STATE EMPLOYEE. Whenever the department makes an award on behalf of a state employee, the department shall file duplicate copies of the award with the subunit of the department of administration responsible for risk management. Upon receipt of the copies of the award, the department of administration shall promptly issue a voucher in payment of the award from the proper appropriation under s. 20.865 (1) (fm), (kr) or (ur), and shall transmit one copy of the voucher and the award to the officer, department, or agency by whom the affected employee is employed. (9) REHABILITATION; PHYSICAL AND VOCATIONAL. (a) One of the primary purposes of this chapter is restoration of an injured employee to gainful employment. To this end, the department shall employ a specialist in physical, medical and vocational rehabilitation. (b) Such specialist shall study the problems of rehabilitation, both physical and vocational and shall refer suitable cases to the department for vocational evaluation and training. The specialist shall investigate and maintain a directory of such rehabilitation facilities, private and public, as are capable of rendering competent rehabilitation service to seriously injured employees. (c) The specialist shall review and evaluate reported injuries for potential cases in which seriously injured employees may be in need of physical and medical rehabilitation and may confer with the injured employee, employer, insurance carrier or attending practitioner regarding treatment and rehabilitation. (10) ACCESS TO EMPLOYEE. In the case of an inpatient hospitalization of an employee, a health care provider shall not restrict the employer’s or insurer’s case management personnel from access to records and participation in discharge planning when required to ensure that an injured worker with a disability has appropriate housing and transportation. This subsection does not allow an employer, an insurer, or case management personnel to direct care of the employee. History: 1971 c. 61; 1973 c. 150, 282; 1975 c. 147; 1977 c. 195 ss. 24 to 28, 45; 1977 c. 273; 1979 c. 278; 1981 c. 20; 1987 a. 179; 1989 a. 64; 1995 a. 27 ss. 3743m, 3744, 9130 (4); 1997 a. 3, 38; 1999 a. 9; 2001 a. 37; 2003 a. 144; 2005 a. 172; 2007 a. 185; 2015 a. 55; 2021 a. 29; 2023 a. 213; 2025 a. 33, 145; s. 35.17 correction in (10). The requirement that medical treatment be supplied during the healing period, defined as prior to the time the condition becomes stationary, is not determined by reference to the percentage of disability, but by a determination that the injury has stabilized. Custodial care, as distinguished from nursing services, is not compensable. Mednicoff v. DILHR, 54 Wis. 2d 7, 194 N.W.2d 670 (1972). In appropriate cases, the Department of Industry, Labor and Human Relations may postpone a determination of permanent disability for a reasonable period until after a claimant completes a competent and reasonable course of physical therapy or vocational rehabilitation as an essential part of the treatment required for full recovery and minimization of damages. Transamerica Insurance Co. v. DILHR, 54 Wis. 2d 272, 195 N.W.2d 656 (1972). An employee who wishes to consult a second doctor on the panel after the first says no further treatment is needed may do so without notice or consent. If the second doctor prescribes an operation that increases the amount of disability, the employer is liable. Spencer v. DILHR, 55 Wis. 2d 525, 200 N.W.2d 611 (1972). Sub. (7) [now sub. (6)] relieves an employer of liability when the employee refuses treatment provided by the employer, as required under sub. (1). An employee is not required to seek treatment from someone other than the employer. Klein Industrial Salvage v. DILHR, 80 Wis. 2d 457, 259 N.W.2d 124 (1977). Under sub. (9) (a) and ss. 102.43 (5) and 102.61, the Department of Industry, Labor and Human Relations may extend temporary disability, travel expense, and maintenance costs beyond 40 weeks if additional training is warranted. Beloit Corp. v. LIRC, 152 Wis. 2d 579, 449 N.W.2d 299 (Ct. App. 1989). Sub. (1) requires an employer to pay medical expenses even after a final order has been issued. Lisney v. LIRC, 171 Wis. 2d 499, 493 N.W.2d 14 (1992).
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WORKER’S COMPENSATION
Sub. (2) (a) does not require an employer to consent to out-of-state health care expenses that result from a referral by an in-state practitioner selected in accordance with the statute. UFE Inc. v. LIRC, 201 Wis. 2d 274, 548 N.W.2d 57 (1996), 942794. The continuing obligation to compensate an employee for work related medical expenses under this section does not allow agency review of compromise agreements after the one-year statute of limitations in s. 102.16 (1) has run if the employee incurs medical expenses after that time. Schenkoski v. LIRC, 203 Wis. 2d 109, 552 N.W.2d 120 (Ct. App. 1996), 96-0051. Under sub. (2), an employee can seek reimbursement for expenses related to two practitioners regardless of whether they are the first two practitioners whom the employee has seen. Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 583 N.W.2d 662 (Ct. App. 1998), 97-1119. Section 102.01 (2) (g) sets the date of injury of an occupational disease and s. 102.01 (1) provides that medical expenses incurred before an employee knows of the work-related injury are compensable. Read together, medical expenses in occupational disease cases are not compensable until the date of injury, but once the date is established all expenses associated with the disease, even if incurred before the date of injury, are compensable. United Wisconsin Insurance Co. v. LIRC, 229 Wis. 2d 416, 600 N.W.2d 186 (Ct. App. 1999), 97-3776. Spencer, 55 Wis. 2d 525 (1972), creates an exception to the general rule that compensation is permitted only if medical expenses are reasonably required and necessary. As long as a claimant engages in unnecessary and unreasonable treatment in good faith, the employer is responsible for payment. Honthaners Restaurants, Inc. v. LIRC, 2000 WI App 273, 240 Wis. 2d 234, 621 N.W.2d 660, 99-3002. An employee is not eligible for benefits under sub. (1m) if the disability-causing treatment was directed at treating something other than the employee’s compensable injury. Because the claimant’s surgery treated her preexisting condition, not her compensable injury, her claim was disallowed. Flug v. LIRC, 2017 WI 72, 376 Wis. 2d 571, 898 N.W.2d 91, 15-1989. Continuing Payments for Medical Expenses in Worker’s Compensation Proceedings. Carnell & Woog. Wis. Law. Nov. 1993.
102.423 Health service fee schedule. (1) DEFINITIONS. In this section: (a) “Eligible hospital” has the meaning given under s. 50.38 (1). (b) “Items or services” means hospital facility services that are “items and services,” as defined under 45 CFR 180.20. (2) APPLICABILITY. (a) Subject to par. (b), this section shall apply to a fee for an item or service only if all of the following apply: 1. The fee is for an item or service that was provided by an eligible hospital. 2. The fee is for an item or service for which the eligible hospital may receive hospital inpatient or hospital outpatient reimbursement from the Medical Assistance program under subch. IV of ch. 49. 3. The fee was paid within the applicable period under par. (c). (b) 1. a. If a notice from the department of health services under s. 50.38 (7m) (a) 1. is published by the legislative reference bureau in the Wisconsin Administrative Register indicating that either s. 50.38 (7m) (a) 1. a. or b. applies, then this section shall not apply from the day the notice is published until subd. 2. applies. b. Except as provided in subd. 1. a., if a notice from the department of health services under s. 50.38 (7m) (a) 1. is published by the legislative reference bureau in the Wisconsin Administrative Register indicating that either s. 50.38 (7m) (a) 1. c. or d. applies, then this section shall not apply beginning on the first day of the calendar year following the calendar year in which the notice is published until subd. 2. applies. 2. a. Notwithstanding subd. 1., if a notice from the department of health services under s. 50.38 (7m) (b) 1. is published by the legislative reference bureau in the Wisconsin Administrative Register indicating that either s. 50.38 (7m) (b) 1. a. or b. applies, then this section applies from the day the notice is published. b. Notwithstanding subd. 1. and except as provided in subd. 2. a., if a notice from the department of health services under s. 50.38 (7m) (b) 1. is published by the legislative reference bureau in the Wisconsin Administrative Register indicating that either s. 50.38 (7m) (b) 1. c. or d. applies, then this section applies beginning on the first day of the calendar year following the calendar year in which the notice is published.
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(c) 1. In order for this section to apply to a fee, an insurer or self-insured employer must remit payment for the fee to the eligible hospital within the period specified in subd. 2., which shall begin to run on the day after whichever of the following dates is latest: a. The date the eligible hospital electronically sends to the insurer or self-insured employer the medical records to substantiate the submitted hospital bill or, if such records are sent by mail, the 3rd day after the date the records are postmarked. b. The date the eligible hospital electronically sends the bill described in subd. 1. a. or, if the bill is sent by mail, the 3rd day after the date the bill is postmarked. 2. a. If the aggregate amount billed is equal to or greater than $65,000, the period within which an insurer or self-insured employer must remit payment shall be 90 calendar days after the date determined under subd. 1. b. If the aggregate amount billed is less than $65,000, the period within which an insurer or self-insured employer must remit payment shall be 60 calendar days after the date determined under subd. 1. 3. An insurer or self-insured employer may request that an eligible hospital send additional medical records to the insurer or self-insured employer that the insurer or self-insured employer reasonably believes are necessary to substantiate the claim. The eligible hospital shall provide the requested records to the extent practicable or within 10 days after the request is received, but a request under this subdivision by an insurer or self-insured employer shall not operate to extend the period specified under subd. 2. a. or b. 4. a. An insurer or self-insured employer may submit a request to the department for an extension to the period specified in subd. 2. if the insurer or self-insured employer has not yet determined whether an injury is compensable under this chapter. The department may, pursuant to rules promulgated under subd. 4. e., authorize such an extension if the department determines that the insurer or self-insured employer has not yet determined compensability despite its good faith effort to do so. A single extension granted by the department shall not exceed 30 calendar days. There is no limit to the number of extensions that an insurer or self-insured employer may request or that the department may grant under this subdivision, but an insurer or self-insured employer may not request another extension after a denial. b. If the department denies a request for extension under this subdivision, the insurer or self-insured employer shall, notwithstanding subds. 1. and 2., have 14 calendar days after the denial to remit payment for the fee to the eligible hospital. If the insurer or self-insured employer remits payment for the fee to the eligible hospital within that 14-day period, then this section applies to that fee. c. A request by an insurer or self-insured employer for an extension under this subdivision or a denial by the department of a request for extension under this subdivision shall not be used as evidence of bad faith by the insurer or self-insured employer. d. Any information provided by an insurer or self-insured employer pursuant to this subdivision shall not be used as evidence of bad faith by the insurer or self-insured employer. e. The department shall promulgate rules specifying requirements and procedures for requesting and granting extensions under this subdivision. The rules shall specify requirements or procedures to ensure that notice is provided to an eligible hospital when a request is made under this subdivision. (3) ESTABLISHMENT OF SCHEDULE. (a) By July 1, 2027, the department shall establish a schedule of the maximum fees that the eligible hospital may charge an insurer or self-insured employer for an item or service provided to an injured employee who claims benefits under this chapter. When the schedule under this
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subsection is established, the department shall send a notice to the legislative reference bureau for publication in the Wisconsin Administrative Register of the date that the schedule will be effective, which shall be no earlier than the date the notice is published. In determining the maximum fees, the department shall divide the state into 5 regions based on geographical and economic similarity, including similarity in the cost of items and services, and, for each region, shall do all of the following: 1. a. Determine, for each item or service included in the schedule, the amount that represents the 75th percentile of the commercial, in-network negotiated amounts, across all commercial health insurance plans, issuers, and administrators in that region. The department shall make the determinations under this subd. 1. a. in accordance with subd. 1. b. and c. b. In order to determine the amounts under this subdivision, the department shall utilize the machine-readable files of all health insurance plans, issuers, administrators, and hospitals made public pursuant to 26 CFR 54.9815-2715A3, 29 CFR 2590.715-2715A3, 45 CFR 147.212, and 45 CFR 180.40 (a) that contain in-network negotiated rates for each eligible hospital in that region. c. In determining the amounts under this subdivision, the department shall not use any amounts from Medicare advantage, services provided under a managed care system under the Medical Assistance program under subch. IV of ch. 49, databases certified by the department under s. 102.16 (2) (h), or any sources other than those specified in subd. 1. b. 2. Set the maximum fee for each item or service included in the schedule at 120 percent of the amount determined under subd. 1. for that region. (am) The department shall contract with a 3rd party to perform the duties specified under pars. (a) 1. and 2. (b) Every year, the department shall redetermine the schedule of maximum fees using the procedures specified in par. (a), subject to par. (am). (d) The department shall publish the current fee schedule established under this subsection on the department’s website. Notwithstanding s. 227.10 (1), the fee schedule need not be promulgated as a rule. (4) LIABILITY OF INSURER OR SELF-INSURED EMPLOYER. (a) The liability of an insurer or self-insured employer for an item or service included in a fee schedule established under sub. (3) is limited to the maximum fee allowed under the schedule for the item or service as of the date on which the item or service was provided, any fee agreed to by contract between the insurer or self-insured employer and eligible hospital for the item or service as of that date, or the eligible hospital’s actual fee for the item or service as of that date, whichever is least. (b) An eligible hospital that provides items or services to an injured employee under this chapter may not collect, or bring an action to collect, from the injured employee any charge that is in excess of the liability of the insurer or self-insured employer under this subsection. (c) A schedule of maximum fees established under sub. (3) first applies to an item or service provided to an injured employee on the effective date specified in the notice published under sub. (3) (a). (d) Payment of a claim pursuant to this section is not an admission of causality or responsibility with respect to any future payments or obligations. (5) RULES. The department shall, subject to sub. (3) (d), promulgate rules to implement this section. NOTE: This section is created by 2025 Wis. Act 15 eff. on the day after the notice from the department of health services under 2025 Wis. Act 15 s. 9119 (4) (b) 1. is published by the legislative reference bureau in the Wisconsin Ad-
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ministrative Register, except that, if the notice is not published before August 1, 2027, the treatment of this section is void. History: 2025 a. 15.
102.425 Prescription and nonprescription drug treatment. (1) DEFINITIONS. In this section: (a) “Dispense” has the meaning given in s. 450.01 (7). (b) “Drug” has the meaning given in s. 450.01 (10). (c) “Drug product equivalent” has the meaning given in s. 450.13 (1e). (cm) “Licensed pharmacy” means a pharmacy licensed under s. 450.06 or 450.065. (d) “Nonprescription drug product” has the meaning given in s. 450.01 (13m). (e) “Pharmacist” has the meaning given in s. 450.01 (15). (f) “Practitioner” has the meaning given in s. 450.01 (17). (g) “Prescription” has the meaning given in s. 450.01 (19). (h) “Prescription drug” has the meaning given in s. 450.01 (20). (i) “Prescription order” has the meaning given in s. 450.01 (21). (2) SUBSTITUTION OF DRUG PRODUCT EQUIVALENTS. (a) Except as provided in pars. (b) and (c), when a drug is prescribed to treat an injury for which an employer or insurer is liable under this chapter, the pharmacist or practitioner dispensing the drug shall substitute a drug product equivalent in place of the prescribed drug if all of the following apply: 1. In the professional judgment of the dispensing pharmacist or practitioner, the drug product equivalent is therapeutically equivalent to the prescribed drug. 2. The charge for the drug product equivalent is less than the charge for the prescribed drug. (b) A pharmacist or practitioner may not substitute a drug product equivalent under par. (a) in place of a prescribed drug if any of the following apply: 1. The prescribed drug is a single-source patented drug for which there is no drug product equivalent. 2. The prescriber determines that the prescribed drug is medically necessary and indicates that no substitution may be made for that prescribed drug by writing on the face of the prescription order or, in the case of a prescription order that is transmitted electronically, by designating in electronic format the phrase “No substitutions” or “Dispense as written” or words of similar meaning or the initials “N.S.” or “D.A.W.” (c) Unless par. (b) applies, if an injured employee requests that a specific brand name drug be used to treat the employee’s injury, the pharmacist or practitioner dispensing the prescription shall dispense the specific brand name drug as requested. If a specific brand name drug is dispensed under this paragraph, the employer or insurer and the employee shall share the cost of the prescription as follows: 1. The employer or insurer shall be liable in an amount equal to the average wholesale price, as determined under sub. (3) (a) 1., of the lowest-priced drug product equivalent that the pharmacist or practitioner has in stock on the day on which the brand name drug is dispensed, plus the dispensing fee under sub. (3) (a) 2. and any applicable taxes under sub. (3) (a) 3. that would be payable for that drug product equivalent. 2. The employee shall be liable in an amount equal to the difference between the amount for which the employer or insurer is liable under subd. 1. and an amount equal to the average wholesale price, as determined under sub. (3) (a) 1., of the brand name drug on the day on which the brand name drug is dispensed, plus any applicable taxes under sub. (3) (a) 3. that are payable for that brand name drug.
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WORKER’S COMPENSATION
(3) LIABILITY OF EMPLOYER OR INSURER. (a) The liability of an employer or insurer for the cost of a prescription drug dispensed under sub. (2) for outpatient use by an injured employee, including a prescription drug dispensed outside of a licensed pharmacy, is limited to the sum of all of the following: 1. The average wholesale price of the prescription drug as of the date on which the prescription drug is dispensed, as quoted in the Drug Topics Red Book, published by Medical Economics Company, Inc., or its successor, or, if that book is discontinued and becomes unavailable, as quoted in another nationally recognized pricing source determined by the department. 2. A dispensing fee of $3 per prescription order, which shall be payable for all prescription drugs dispensed under sub. (2) regardless of the location from which the prescription drug is dispensed, but which shall be payable only to a pharmacist who dispenses the prescription drug. 3. Any state or federal taxes that may be applicable to the prescription drug dispensed. (b) In addition to the liability under par. (a), an employer or insurer is also liable for reimbursement to an injured employee for all out-of-pocket expenses incurred by the injured employee in obtaining the prescription drug dispensed. (c) A billing statement submitted to an employer or insurer for a prescription drug dispensed under sub. (2) shall include the national drug code number of the prescription as listed in the national drug code directory maintained by the federal food and drug administration and shall state separately the price of the prescription drug and the dispensing fee. (4) LIABILITY OF EMPLOYEE. (a) Except as provided in par. (b), a pharmacist or practitioner who dispenses a prescription drug under sub. (2) to an injured employee may not collect, or bring an action to collect, from the injured employee any charge that is in excess of the liability of the injured employee under sub. (2) (c) 2. or the liability of the employer or insurer under sub. (3) (a). (b) If an employer or insurer denies or disputes liability for the cost of a drug prescribed to an injured employee under sub. (2), the pharmacist or practitioner who dispensed the drug may collect, or bring an action to collect, from the injured employee the cost of the prescription drug dispensed, subject to the limitations specified in sub. (3) (a). If an employer or insurer concedes liability for the cost of a drug prescribed to an injured employee under sub. (2), but disputes the reasonableness of the amount charged for the prescription drug, the employer or insurer shall provide notice under sub. (4m) (b) to the pharmacist or practitioner that the reasonableness of the amount charged is in dispute and the pharmacist or practitioner who dispensed the drug may not collect, or bring an action to collect, from the injured employee the cost of the prescription drug dispensed after receiving that notice. (4m) RESOLUTION OF PRESCRIPTION DRUG CHARGE DISPUTES. (a) The department has jurisdiction under this subsection and ss. 102.16 (1m) (c) and 102.17 to resolve a dispute between a pharmacist or practitioner and an employer or insurer over the reasonableness of the amount charged for a prescription drug dispensed under sub. (2) for outpatient use by an injured employee who claims benefits under this chapter. (b) An employer or insurer that disputes the reasonableness of the amount charged for a prescription drug dispensed under sub. (2) for outpatient use by an injured employee or the department under sub. (4) (b) or s. 102.16 (1m) (c) or 102.18 (1) (bg) 3. shall provide, within 30 days after receiving a completed bill for the prescription drug, reasonable written notice to the pharmacist or practitioner that the charge is being disputed. After receiving reasonable written notice under this paragraph or under sub. (4) (b)
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or s. 102.16 (1m) (c) or 102.18 (1) (bg) 3. that a prescription drug charge is being disputed, a pharmacist or practitioner may not collect the disputed charge from, or bring an action for collection of the disputed charge against, the employee who received the prescription drug. (c) A pharmacist or practitioner that receives notice under par. (b) that the reasonableness of the amount charged for a prescription drug dispensed under sub. (2) for outpatient use by an injured employee is in dispute shall file the dispute with the department within 6 months after receiving that notice. (d) The department shall deny payment of a prescription drug charge that the department determines under this subsection to be unreasonable. A pharmacist or practitioner and an employer or insurer that are parties to a dispute under this subsection over the reasonableness of a prescription drug charge are bound by the department’s determination under this subsection on the reasonableness of the disputed charge, unless that determination is set aside on judicial review as provided in par. (e). (e) Within 30 days after a determination under this subsection, the department may set aside, reverse, or modify the determination for any reason that the department considers sufficient. Within 60 days after a determination under this subsection, the department may set aside, reverse, or modify the determination on grounds of mistake. A pharmacist, practitioner, employer, or insurer that is aggrieved by a determination of the department under this subsection may seek judicial review of that determination in the same manner that compensation claims are reviewed under s. 102.23. (5) NONPRESCRIPTION DRUG PRODUCTS. The liability of an employer or insurer for the cost of a nonprescription drug product used to treat an injured employee is limited to the usual and customary charge to the general public for the nonprescription drug product. History: 2005 a. 172; 2007 a. 185; 2009 a. 206; 2015 a. 55, 180; 2017 a. 149; 2025 a. 33.
102.43 Weekly compensation schedule. If the injury causes disability, an indemnity shall be due as wages commencing the 4th calendar day from the commencement of the day the scheduled work shift began, exclusive of Sundays only, excepting where the employee works on Sunday, after the employee leaves work as the result of the injury, and shall be payable weekly thereafter, during such disability. If the disability exists after 7 calendar days from the date the employee leaves work as a result of the injury and only if it so exists, indemnity shall also be due and payable for the first 3 calendar days, exclusive of Sundays only, excepting where the employee works on Sunday. Said weekly indemnity shall be as follows: (1) If the injury causes total disability, two-thirds of the average weekly earnings during such disability. (2) If the injury causes partial disability, during the partial disability, such proportion of the weekly indemnity rate for total disability as the actual wage loss of the injured employee bears to the injured employee’s average weekly wage at the time of the injury. (3) If the disability caused by the injury is at times total and at times partial, the weekly indemnity during each total or partial disability shall be in accordance with subs. (1) and (2), respectively. (4) If the disability period involves a fractional week, indemnity shall be paid for each day of such week, except Sundays only, at the rate of one-sixth of the weekly indemnity. (5) (a) Temporary disability, during which compensation shall be payable for loss of earnings, shall include such period as may be reasonably required for training in the use of artificial members and appliances.
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(b) Except as provided in s. 102.61 (1g), temporary disability shall also include such period as the employee may be receiving instruction under s. 102.61 (1) or (1m). Temporary disability on account of receiving instruction under s. 102.61 (1) or (1m), and not otherwise resulting from the injury, shall not be in excess of 80 weeks. That 80-week limitation does not apply to temporary disability benefits under this section, the cost of tuition, fees, books, travel, or maintenance under s. 102.61 (1), or the cost of private rehabilitation counseling or rehabilitative training under s. 102.61 (1m) if the department determines that additional training is warranted. The necessity for additional training as authorized by the department for any employee shall be subject to periodic review and reevaluation. (c) Compensation for temporary disability on account of receiving instruction under s. 102.61 (1) or (1m) shall not be reduced under sub. (2) on account of any wages earned for the first 24 hours worked by an employee during a week in which the employee is receiving that instruction. If an employee performs more than 24 hours of work during a week in which the employee is receiving that instruction, all wages earned for hours worked in excess of 24 during that week shall be offset against the employee’s average weekly wage in calculating compensation for temporary disability under sub. (2). An employee who is receiving compensation for temporary disability on account of receiving instruction under s. 102.61 (1) or (1m) shall report any wages earned during the period in which the employee is receiving that instruction to the insurance carrier or self-insured employer paying that compensation. (6) (a) Except as provided in par. (b), no sick leave benefits provided in connection with other employment or wages received from other employment held by the employee when the injury occurred may be considered in computing actual wage loss from the employer in whose employ the employee sustained injury. (b) In the case of an employee whose average weekly earnings are calculated under s. 102.11 (1) (ap) 2., wages received from other employment held by the employee when the injury occurred shall be considered in computing actual wage loss from the employer in whose employ the employee sustained the injury as provided in this paragraph. If an employee’s average weekly earnings are calculated under s. 102.11 (1) (ap) 2., wages received from other employment held by the employee when the injury occurred shall be offset against those average weekly earnings and not against the employee’s actual earnings in the employment in which the employee was engaged at the time of the injury. (c) Wages received from the employer in whose employ the employee sustained injury or from other employment obtained after the injury occurred shall be considered in computing benefits for temporary disability. (7) (a) If an employee has a renewed period of temporary disability commencing more than 2 years after the date of injury and, except as provided in par. (b), the employee returned to work for at least 10 days preceding the renewed period of disability, payment of compensation for the new period of disability shall be made as provided in par. (c). (b) An employee need not return to work at least 10 days preceding a renewed period of temporary disability to obtain benefits under sub. (5) (b) for rehabilitative training commenced more than 2 years after the date of injury. Benefits for rehabilitative training shall be made as provided in par. (c). (c) 1. If the employee was entitled to maximum weekly benefits at the time of injury, payment for the renewed temporary disability or the rehabilitative training shall be at the maximum rate in effect at the commencement of the new period. 2. If the employee was entitled to less than the maximum rate, the employee shall receive the same proportion of the maximum which is in effect at the time of the commencement of the
WORKER’S COMPENSATION
102.43
renewed period or the rehabilitative training as the employee’s actual rate at the time of injury bore to the maximum rate in effect at that time. 3. For an employee who is receiving rehabilitative training, a holiday break, semester break or other, similar scheduled interruption in a course of instruction does not commence a new period of rehabilitative training under this paragraph. (8) During a compulsory vacation period scheduled in accordance with a collective bargaining agreement: (a) Regardless of whether the employee’s healing period has ended, no employee at work immediately before the compulsory vacation period may receive a temporary total disability benefit for injury sustained while engaged in employment for that employer. (b) An employee receiving temporary partial disability benefits immediately before the compulsory vacation period for injury sustained while engaged in employment for that employer shall continue to receive those benefits. (9) Temporary disability, during which compensation shall be payable for loss of earnings, shall include the period during which an employee could return to a restricted type of work during the healing period, unless any of the following apply: (a) Suitable employment that is within the physical and mental limitations of the employee is furnished to the employee by the employer or some other employer. For purposes of this paragraph, if the employer or some other employer makes a good faith offer of suitable employment that is within the physical and mental limitations of the employee and if the employee refuses without reasonable cause to accept that offer, the employee is considered to have returned to work as of the date of the offer at the earnings that the employee would have received but for the refusal. In case of a dispute as to the extent of an employee’s physical or mental limitations or as to what employment is suitable within those limitations, the employee may file an application under s. 102.17 and ss. 102.17 to 102.26 shall apply. (b) The employee’s employment with the employer has been suspended or terminated due to the employee’s alleged commission of a crime, the circumstances of which are substantially related to that employment, and the employee has been charged with the commission of that crime. If the employee is not found guilty of the crime, compensation for temporary disability shall be payable in full. (c) The employee’s employment with the employer has been suspended or terminated due to the employee’s violation of the employer’s policy concerning employee drug use during the period when the employee could return to a restricted type of work during the healing period. Compensation for temporary disability may be denied under this paragraph only if prior to the date of injury the employer’s policy concerning employee drug use was established in writing and regularly enforced by the employer. (d) The employee has been convicted of a crime, is incarcerated, and is not available to return to a restricted type of work during the healing period. (e) The employee’s employment with the employer has been suspended or terminated due to misconduct, as defined in s. 108.04 (5), or substantial fault, as defined in s. 108.04 (5g) (a), by the employee connected with the employee’s work. History: 1971 c. 148; 1973 c. 150; 1975 c. 147; 1977 c. 195; 1979 c. 278; 1983 a. 98; 1985 a. 83; 1987 a. 179; 1993 a. 370, 492; 1995 a. 225, 413; 2001 a. 37; 2005 a. 172; 2009 a. 206; 2011 a. 183; 2015 a. 55, 180; 2021 a. 232; 2025 a. 33. Committee Note, 1971: Employees who have two jobs who have been injured at one of them have in some cases been made totally disabled for work at either job. Sick leave benefits from the other employer has suspended eligibility for compensation or has reduced compensation even though the employee suffered a wage loss. This is considered to be inequitable. Sick leave benefits from the employer where injury occurred are to be considered, however, in determining eligibility for compensation from such employer. [Bill 371-A] Under sub. (5) and ss. 102.42 (9) (a) and 102.61, the Department of Industry, La-
May 22, 2026, are designated by NOTES. (Published 5-22-26)
102.43
WORKER’S COMPENSATION
bor and Human Relations may extend temporary disability, travel expense, and maintenance costs beyond 40 weeks if additional training is warranted. Beloit Corp. v. LIRC, 152 Wis. 2d 579, 449 N.W.2d 299 (Ct. App. 1989). The phrase “if the injury causes disability” is interpreted in light of the “as is” rule that an employee’s susceptibility to injury due to a pre-existing condition does not relieve the employer from liability. ITW Deltar v. LIRC, 226 Wis. 2d 11, 593 N.W.2d 908 (Ct. App. 1999), 98-2912. The “as is” rule applies to delays in treatment of a work-related injury caused by a pre-existing condition. It was reasonable to find that a woman was entitled to benefits for the period she was unable to undergo surgery to repair a work-related injury due to the threat that anesthesia would cause harm to her pre-existing pregnancy. ITW Deltar v. LIRC, 226 Wis. 2d 11, 593 N.W.2d 908 (Ct. App. 1999), 98-2912. The purpose of the worker’s compensation program is to compensate employees for loss of income due to their inability to work as a result of work-related injury. Thus, to be a compensable wage loss under this section, the wage loss must be attributable to a work-related injury. An employee who retires for reasons entirely unrelated to the employee’s injury cannot make such a showing because the employee’s wage loss was caused by the employee’s choice to voluntarily retire, not by the workrelated injury. Mueller v. LIRC, 2019 WI App 50, 388 Wis. 2d 602, 933 N.W.2d 645, 18-0707.
102.44 Maximum limitations. Section 102.43 shall be subject to the following limitations: (1) (ag) Notwithstanding any other provision of this chapter, every employee who is receiving compensation under this chapter for permanent total disability or continuous temporary total disability, including an employee receiving compensation for permanent and total disability under s. 102.59 (1), more than 24 months after the date of injury resulting from an injury that occurred prior to January 1, 2020, shall receive supplemental benefits that shall be payable by the employer or the employer’s insurance carrier, or in the case of benefits payable to an employee under s. 102.66, shall be paid by the department out of the fund created under s. 102.65. Those supplemental benefits shall be paid only for weeks of disability occurring after April 1, 2026, and shall continue during the period of such total disability subsequent to that date as follows: 1. If the employee is receiving the maximum weekly benefits that were in effect at the time of the injury, as determined under s. 102.11 (1), the supplemental benefit for a week of disability shall be an amount that, when added to the regular benefit, equals the maximum weekly benefits that were in effect during 2020. Annually thereafter, on each January 1, the supplemental benefit rate shall be increased to an amount that, when added to the regular benefit, equals the maximum weekly benefits that were in effect during the next succeeding year. 2. If the employee is receiving a weekly benefit that is less than the maximum benefit that was in effect on the date of the injury, as determined under s. 102.11 (1), the supplemental benefit for a week of disability shall be an amount sufficient to bring the total weekly benefits to the same proportion of the maximum weekly benefits that were in effect during 2020 as the employee’s weekly benefit bears to the maximum in effect on the date of injury. Annually thereafter, on each January 1, the supplemental benefit rate shall be increased to an amount sufficient to bring the total weekly benefits to the same proportion of the maximum weekly benefits that were in effect during the next succeeding year as the employee’s weekly benefit bears to the maximum in effect on the date of injury. (c) 1. An insurance carrier paying the supplemental benefits required under this subsection shall be entitled to reimbursement for each such case from the worker’s compensation operations fund, commencing one year after the date of the first payment of those benefits and annually thereafter while those payments continue. 1m. To receive reimbursement under this paragraph, an insurance carrier must file a claim for that reimbursement with the department by no later than 12 months after the end of the year in which the supplemental benefits were paid and the claim must be approved by the department. The insurance carrier shall file a claim under this subdivision using electronic, magnetic, or other reporting media that is required by the department.
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2. After the expiration of the deadline for filing a claim under subd. 1. [subd. 1m.], the department shall determine the total amount of all claims filed by that deadline and shall use that total to determine the amount to be collected under s. 102.75 (1g) from each licensed worker’s compensation insurance carrier, deposited in the worker’s compensation operations fund, and used to provide reimbursement to insurance carriers paying supplemental benefits under this subsection. Subject to subd. 3., the department shall pay a claim for reimbursement approved by the department by no later than 16 months after the end of the year in which the claim was received by the department. NOTE: The correct cross-reference is shown in brackets. The portion of subd. 1. relating to the deadline for filing a claim for reimbursement was renumbered to subd. 1m. by 2025 Wis. Act 145. Corrective legislation is pending.
3. The maximum amount that the department may pay under subd. 2. in a calendar year is $5,000,000. If the amount determined payable under subd. 2. in a calendar year is $5,000,000 or less, the department shall pay that amount. If the amount determined payable under subd. 2. in a calendar year exceeds $5,000,000, the department shall pay $5,000,000 in the year in which the determination is made and, subject to the maximum amount payable of $5,000,000 per calendar year, shall pay the excess in the next calendar year or in subsequent calendar years until that excess is paid in full. The department shall pay claims for reimbursement under subd. 2. in the chronological order in which those claims are received. 4. This paragraph does not apply to supplemental benefits paid for an injury that occurs on or after January 1, 2016. (2) In case of permanent total disability, aggregate indemnity shall be weekly indemnity for the period that the employee may live. Total impairment for industrial use of both eyes, the loss of both arms at or near the shoulder, the loss of both legs at or near the hip, or the loss of one arm at the shoulder and one leg at the hip constitutes permanent total disability. This enumeration is not exclusive, but in other cases the department shall find the facts. NOTE: Sub. (2) is affected by 2025 Wis. Act 15 eff. on the day after the notice from the department of health services under 2025 Wis. Act 15 s. 9119 (4) (b) 1. is published by the legislative reference bureau in the Wisconsin Administrative Register, except that, if the notice is not published before 8-1-27, the treatment of sub. (2) is void. As affected by 2025 Wis. Act 15, sub. (2) reads: (2) (a) 1. In case of permanent total disability, aggregate indemnity shall be weekly indemnity for the period that the employee may live, subject to increase under subd. 2. 2. For injuries occurring on or after January 1, 2026, weekly indemnity for permanent total disability shall, beginning with the 6th anniversary of the date of injury and then annually thereafter on that anniversary, be increased as follows: a. If the employee was receiving the maximum compensation rate, the employee’s weekly indemnity shall be increased to the maximum compensation rate then in effect for that year, as determined under s. 102.11 (1). b. If the employee was receiving less than the maximum compensation rate, the employee’s weekly indemnity shall be increased to an amount that bears the same proportion to the maximum compensation rate then in effect for that year, as determined under s. 102.11 (1), as the employee’s compensation rate bore to the maximum compensation rate that was in effect at the time of the injury. 3. a. If a notice from the department of health services under s. 50.38 (7m) (a) 1. is published by the legislative reference bureau in the Wisconsin Administrative Register indicating that either s. 50.38 (7m) (a) 1. a. or b. applies, then no further increases under subd. 2. shall be applied after the date that notice is published until subd. 4. applies. b. Except as provided in subd. 3. a., if a notice from the department of health services under s. 50.38 (7m) (a) 1. is published by the legislative reference bureau in the Wisconsin Administrative Register indicating that either s. 50.38 (7m) (a) 1. c. or d. applies, then no further increases under subd. 2. shall be applied beginning on the first day of the calendar year following the calendar year in which the notice is published until subd. 4. applies. 4. a. Notwithstanding subd. 3., if a notice from the department of health services under s. 50.38 (7m) (b) 1. is published by the legislative reference bureau in the Wisconsin Administrative Register indicating that either s. 50.38 (7m) (b) 1. a. or b. applies, then increases under subd. 2. shall be applied beginning on from the day the notice is published. b. Notwithstanding subd. 3. and except as provided in subd. 4. a., if a notice
May 22, 2026, are designated by NOTES. (Published 5-22-26)
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from the department of health services under s. 50.38 (7m) (b) 1. is published by the legislative reference bureau in the Wisconsin Administrative Register indicating that either s. 50.38 (7m) (b) 1. c. or d. applies, then increases under subd. 2. shall be applied beginning on the first day of the calendar year following the calendar year in which the notice is published. (b) 1. Total impairment for industrial use of both eyes, the loss of both arms at or near the shoulder, the loss of both legs at or near the hip, or the loss of one arm at the shoulder and one leg at the hip constitutes permanent total disability. 2. The enumeration under subd. 1. is not exclusive, but in other cases the department shall find the facts.
(3) For permanent partial disability not covered by ss. 102.52 to 102.56, the aggregate number of weeks of indemnity shall bear such relation to 1,000 weeks as the nature of the injury bears to one causing permanent total disability and shall be payable at the rate of two-thirds of the average weekly earnings of the employee, the earnings to be computed as provided in s. 102.11. The weekly indemnity shall be in addition to compensation for the healing period and shall be for the period that the employee may live, not to exceed 1,000 weeks. (4) Where the permanent disability is covered by ss. 102.52, 102.53, and 102.55, such sections shall govern; provided, that in no case shall the percentage of permanent total disability be taken as more than 100 percent. (4m) (a) The department shall promulgate rules establishing minimum permanent disability ratings for amputation levels, losses of motion, sensory losses, and surgical procedures resulting from injuries for which permanent partial disability is claimed under sub. (3) or (4). At least once every 8 years the department shall review and revise those minimum permanent disability ratings as necessary to reflect advances in the science of medicine. Before the department may revise those ratings, the department shall appoint a medical advisory committee under s. 227.13, composed of physicians practicing in one or more areas of specialization or treating disciplines within the medical profession, to review and recommend revision of those ratings, based on typical loss of function, to the department and the council on worker’s compensation. (b) In considering an individual for appointment to the medical advisory committee under par. (a), the department shall consider the individual’s training and experience, the number of years the individual has been practicing in the individual’s area of specialization or treating discipline, any certifications by a recognized medical specialty board or other agency held by the individual, any recommendations made by organizations that regulate or promote profession standards in the area of specialization or treating discipline in which the individual practices, and any other factors that the department determines are relevant to the individual’s knowledge and ability to serve as a member of the medical advisory committee. (4o) For purposes of calculating permanent partial disability under s. 102.52 (1) to (14) pursuant to the rules promulgated under sub. (4m) (a), when an employee undergoes the same surgical procedure a 2nd or subsequent time on the same limb for which permanent partial disability is due pursuant to those rules, the employee’s permanent disability rating with respect to those procedures shall be determined by health care providers as provided in s. 102.17 (1) (d) and not by aggregating the ratings from those procedures, but shall in no case be lower than the rating for the first procedure. (5) In cases where it is determined that periodic benefits granted by the federal social security act are paid to the employee because of disability, the benefits payable under this chapter shall be reduced as follows: (a) For each dollar that the total monthly benefits payable under this chapter, excluding attorney fees and costs, plus the monthly benefits payable under the social security act for disability exceed 80 percent of the employee’s average current earnings
WORKER’S COMPENSATION
102.44
as determined by the social security administration, the benefits payable under this chapter shall be reduced by the same amount so that the total benefits payable shall not exceed 80 percent of the employee’s average current earnings. However, no total benefit payable under this chapter and under the federal social security act may be reduced to an amount less than the benefit payable under this chapter. (b) No reduction under this section shall be made because of an increase granted by the social security administration as a cost of living adjustment. (c) Failure of the employee, except for excusable neglect, to report social security disability payments within 30 days after written request shall allow the employer or insurance carrier to reduce weekly compensation benefits payable under this chapter by 75 percent. Compensation benefits otherwise payable shall be reimbursed to the employee after reporting. (d) The employer or insurance carrier making such reduction shall report to the department the reduction and as requested by the department, furnish to the department satisfactory proof of the basis for the reduction. (e) The reduction prescribed by this section shall be allowed only as to payments made on or after July 1, 1980, and shall be computed on the basis of payments made for temporary total, temporary partial, permanent total and permanent partial disability. (f) No reduction shall take into account payments made under the social security act to dependents of an employee. (g) No reduction under this subsection shall be made on temporary disability benefits payable during a period in which an injured employee is receiving vocational rehabilitation services under s. 102.61 (1) or (1m). (6) (a) Where an injured employee claiming compensation for disability under sub. (2) or (3) has returned to work for the employer for whom he or she worked at the time of the injury, the permanent disability award shall be based upon the physical limitations resulting from the injury without regard to loss of earning capacity unless the actual wage loss in comparison with earnings at the time of injury equals or exceeds 15 percent. (b) If during the period set forth in s. 102.17 (4) the employment relationship is terminated by the employer at the time of the injury or by the employee because his or her physical or mental limitations prevent his or her continuing in such employment, or if during that period a wage loss of 15 percent or more occurs, the department may reopen any award and make a redetermination taking into account loss of earning capacity. (c) The determination of wage loss shall not take into account any period during which benefits are payable for temporary disability. (d) The determination of wage loss shall not take into account any period during which benefits are paid under ch. 108. (e) For the purpose of determining wage loss, payment of benefits for permanent partial disability shall not be considered payment of wages. (f) Wage loss shall be determined on wages, as defined in s. 102.11. Percentage of wage loss shall be calculated on the basis of actual average wages over a period of at least 13 weeks. (g) For purposes of this subsection, if the employer in good faith makes an offer of employment which is refused by the employee without reasonable cause, the employee is considered to have returned to work with the earnings the employee would have received had it not been for the refusal. (h) In all cases of permanent partial disability not covered by ss. 102.52 to 102.56, whether or not the employee has returned to work, the permanent partial disability shall not be less than that imposed by the physical limitations.
May 22, 2026, are designated by NOTES. (Published 5-22-26)
102.44
WORKER’S COMPENSATION
(7) In the case of an employee whose injury is a mental injury that is compensable under s. 102.17 (9), the period of disability may not exceed 32 weeks after the injury is first reported. History: 1971 c. 148; 1973 c. 150; 1975 c. 147 ss. 33, 54, 57; 1975 c. 199; 1977 c. 195; 1979 c. 278; 1981 c. 92; 1983 a. 98; 1991 a. 85; 1995 a. 117; 2001 a. 37; 2003 a. 144; 2005 a. 172; 2007 a. 185; 2009 a. 177, 206; 2011 a. 183, 257; 2015 a. 55, 180; 2021 a. 29; 2025 a. 15, 33, 128, 129, 145; s. 35.17 correction in (1) (ag) 1. Cross-reference: See also ss. DWD 80.32, 80.34, and 80.50, Wis. adm. code. Committee Note, 1971: Employees who are totally disabled receive compensation at the wage level and the compensation rate in effect as of the date of their injury. This is an average of approximately $45.90 per week for the employees who are injured previous to February 1, 1970. The intent is to provide for payment of supplemental benefits; for example, an employee who was injured in October 1951 and earning wages in excess of the maximum of $52.86 is receiving $37 a week for total disability. This employee will receive supplemental benefits of $42 a week to bring the total up to $79, which was the maximum February 1, 1970. An employee injured in October 1951 with a wage of $26.43 has been receiving $18.50 per week for total disability. This is 50 percent of the maximum in effect in October 1951. Such employee will receive supplemental benefits of $21 a week to bring the total up to $39.50, which is 50 percent of the maximum in effect February 1, 1970. It is not intended that any death benefit payment be affected by this section. [Bill 371-A] The Department of Industry, Labor and Human Relations must disregard total loss of earning capacity in the case of a relative scheduled injury. Mednicoff v. DILHR, 54 Wis. 2d 7, 194 N.W.2d 670 (1972). The “odd-lot” doctrine is a part of Wisconsin law. It provides that if a claimant makes a prima facie case that the claimant was injured in an industrial accident and, because of injury, age, education, and capacity, is unable to secure continuing gainful employment, the burden of showing that the claimant is employable shifts to the employer. Balczewski v. DILHR, 76 Wis. 2d 487, 251 N.W.2d 794 (1977). Sub. (6) (a) includes only wage loss suffered at the employment where the injury occurred and does not include wage loss from a second job. Ruff v. LIRC, 159 Wis. 2d 239, 464 N.W.2d 56 (Ct. App. 1990). The Labor and Industry Review Commission exceeded its authority when it ordered temporary total disability payments for an indefinite future period. Such payments are not authorized for the period after a medical condition has stabilized and before the employee undergoes surgery. GTC Auto Parts v. LIRC, 184 Wis. 2d 450, 516 N.W.2d 393 (1994). Sub. (4) requires apportionment between scheduled and unscheduled injuries when both contribute to permanent total disability. Loss of earning capacity may not be awarded for scheduled injuries. Langhus v. LIRC, 206 Wis. 2d 494, 557 N.W.2d 450 (Ct. App. 1996), 96-0622. In order for sub. (6) (b) to apply, the physical limitations must be from an unscheduled injury. Mireles v. LIRC, 226 Wis. 2d 53, 593 N.W.2d 859 (Ct. App. 1999), 98-1607. Sub. (2) governs the permanent total disability indemnity. “Other cases” of disability under sub. (2) may include a combination of scheduled and unscheduled injuries. Mireles v. LIRC, 2000 WI 96, 237 Wis. 2d 69, 613 N.W.2d 875, 98-1607. Sub. (6) (b) allows the Department of Workforce Development to reopen an award to account for loss of earning capacity from an unscheduled injury, even if a scheduled injury causes the termination of employment. Mireles v. LIRC, 2000 WI 96, 237 Wis. 2d 69, 613 N.W.2d 875, 98-1607. Sub. (2) allows the awarding of permanent total disability that results from a combination of scheduled and unscheduled injuries, provided that the applicant establishes that a clear, ascertainable portion of the disability is attributable to the unscheduled injury or injuries. Secura Insurance v. LIRC, 2000 WI App 237, 239 Wis. 2d 315, 620 N.W.2d 626, 00-0303. A claimant is not required to present evidence of a job search as part of a prima facie case of odd-lot unemployability, provided the claimant shows that because of the injury and other Balczewski, 76 Wis. 2d 487 (1977), factors such as age, education, capacity, and training, the claimant is unable to secure continuing, gainful employment. If the claimant is within the odd-lot category, it falls to the employer to rebut the prima facie case by demonstrating that the claimant is employable and that jobs exist for the claimant. Beecher v. LIRC, 2004 WI 88, 273 Wis. 2d 136, 682 N.W.2d 29, 02-1582. The burden that shifts from the claimant to the employer under Balczewski, 76 Wis. 2d 487 (1977), is a burden of persuasion, but only as to the sub-issue of whether a job exists that the claimant can do. The burden of persuasion on the other aspects of the claimant’s case for permanent total disability benefits remains, as always, with the claimant. Beecher v. LIRC, 2004 WI 88, 273 Wis. 2d 136, 682 N.W.2d 29, 02-1582. Sub. (6) (a) applies to persons “claiming compensation,” which does not include persons already receiving compensation. Schreiber Foods, Inc. v. LIRC, 2009 WI App 40, 316 Wis. 2d 516, 765 N.W.2d 850, 08-1977. Under Balczewski, 76 Wis. 2d 487 (1977), and Beecher, 2004 WI 88, once a claimant has established a prima facie odd-lot case, the employer must prove that the claimant is probably employable and that an actual, suitable job is regularly and continuously available. It is not sufficient to show that the claimant is physically capable of performing light work and that light work is available. Neither Balczewski nor Beecher require an employer to disclose any descriptive information of a claimant to a prospective employer to satisfy its rebuttal burden. The employer’s duty in ascertaining whether an actual job exists is to obtain information from the prospective employer about the job requirements, not provide information about the claimant. Cargill Feed Division/Cargill Malt v. LIRC, 2010 WI App 115, 329 Wis. 2d 206, 789 N.W.2d 326, 09-1877. The Labor and Industry Review Commission improperly expanded the evidentiary burden on employers seeking to rebut a claimant’s prima facie odd-lot case beyond that established in Beecher, 2004 WI 88, and Balczewski, 76 Wis. 2d 487 (1977), by establishing a preference for evidence that the employer referred the claimant to prospective employers with specific job openings actually available, although an employer may rely on evidence that it actually referred a claimant to a
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prospective employer to support its rebuttal case. Cargill Feed Division/Cargill Malt v. LIRC, 2010 WI App 115, 329 Wis. 2d 206, 789 N.W.2d 326, 09-1877. Payment of the supplemental benefit of sub. (1) is not precluded to former state employees by article IV, section 26. The second injury fund is not impressed with a constructive trust which prevents its use for payment of such supplemental benefits. 62 Atty. Gen. 69.