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Wisconsin Workers' Compensation Legal Library


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102.18 Findings, orders and awards.

(1) (a) All parties shall be afforded opportunity for full, fair, public hearing after reasonable notice, but disposition of application may be made by compromise, stipulation, agreement, or default without hearing.

(b) 1. Within 90 days after the final hearing and close of the record, the division shall make and file its findings upon the ultimate facts involved in the controversy, and its order, which shall state the division's determination as to the rights of the parties. Pending the final determination of any controversy before it, the division, after any hearing, may, in its discretion, make interlocutory findings, orders, and awards, which may be enforced in the same manner as final awards.

2. The division may include in any interlocutory or final award or order an order directing the employer or insurer to pay for any future treatment that may be necessary to cure and relieve the employee from the effects of the injury or to pay for a future course of instruction or other rehabilitation training services provided under a rehabilitation training program developed under s.

102.61 (1) or (1m) .
  1. If the division finds that the employer or insurer has not paid any amount that the employer or insurer was directed to pay in any interlocutory order or award and that the nonpayment was not in good faith, the division may include in its final award a penalty not exceeding 25 percent of each amount that was not paid as directed.

  2. When there is a finding that the employee is in fact suffering from an occupational disease caused by the employment of the employer against whom the application is filed, a final award dismissing the application upon the ground that the applicant has suffered no disability from the disease shall not bar any claim the employee may have for disability sustained after the date of the award.

(bg) 1. If the division finds under par. (b) that an insurer or self-insured employer is liable under this chapter for any health services provided to an injured employee by a health service provider, but that the reasonableness of the fee charged by the health service provider is in dispute, the division may include in its order under par. (b) a determination made by the department under s. 102.16 (2) as to the reasonableness of the fee or, if such a determination has not yet been made, the division may notify, or direct the insurer or self-insured employer to notify, the health service provider under s. 102.16 (2) (b) that the reasonableness of the fee is in dispute.

  1. If the division finds under par. (b) that an employer or insurance carrier is liable under this chapter for any treatment provided to an injured employee by a health service provider, but that the necessity of the treatment is in dispute, the division may include in its order under par. (b) a determination made by the department under s. 102.16 (2m) as to the necessity of the treatment or, if such a determination has not yet been made, the division may notify, or direct the employer or insurance carrier to notify, the health service provider under s. 102.16 (2m) (b) that the necessity of the treatment is in dispute.

  2. If the division finds under par. (b) that an insurer or self- insured employer is liable under this chapter for the cost of a prescription drug dispensed under s. 102.425 (2) for outpatient use by an injured employee, but that the reasonableness of the amount charged for that prescription drug is in dispute, the division may include in its order under par. (b) a determination made by the department under s. 102.425 (4m) as to the reasonableness of the prescription drug charge or, if such a determination has not yet been made, the division may notify, or direct the insurer or self- insured employer to notify, the pharmacist or practitioner dispensing the prescription drug under s. 102.425 (4m) (b) that the reasonableness of the prescription drug charge is in dispute.

(bp) If the division determines that the employer or insurance carrier suspended, terminated, or failed to make payments or failed to report an injury as a result of malice or bad faith, the division may include a penalty in an award to an employee for each event or occurrence of malice or bad faith. That penalty is the exclusive remedy against an employer or insurance carrier for malice or bad faith. If the penalty is imposed for an event or occurrence of malice or bad faith that causes a payment that is due an injured employee to be delayed in violation of s. 102.22 (1) or overdue in violation of s. 628.46 (1) , the division may not also order an increased payment under s. 102.22 (1) or the payment of interest under s. 628.46 (1) . The division may award an amount that the division considers just, not to exceed the lesser of 200 percent of total compensation due or $30,000 for each event or occurrence of malice or bad faith. The division may assess the penalty against the employer, the insurance carrier, or both. Neither the employer nor the insurance carrier is liable to reimburse the other for the penalty amount. The division may, by rule, define actions that demonstrate malice or bad faith.

(bw) If an insurer, a self-insured employer, or, if applicable, the uninsured employers fund pays compensation to an employee in excess of its liability and another insurer or self-insured employer is liable for all or part of the excess payment, the department or the division may order the insurer or self-insured employer that is liable for that excess payment to reimburse the insurer or self-insured employer that made the excess payment or, if applicable, the uninsured employers fund.

(c)
If 2 or more examiners have conducted a formal hearing on a claim and are unable to agree on the order or award to be issued, the decision shall be the decision of the majority. If the examiners are equally divided on the decision, the division may appoint an additional examiner who shall review the record and consult with the other examiners concerning their impressions of the credibility of the evidence. Findings of fact and an order or award may then be issued by a majority of the examiners.
(d)
Any award which falls within a range of 5 percent of the highest or lowest estimate of permanent partial disability made by a practitioner which is in evidence is presumed to be a reasonable award, provided it is not higher than the highest or lower than the lowest estimate in evidence.
(e)
Except as provided in s. 102.21 , if the department or the division orders a party to pay an award of compensation, the party shall pay the award no later than 21 days after the date on which the order is mailed to the last-known address of the party, unless the party files a petition for review under sub. (3) . This paragraph applies to all awards of compensation ordered by the department or the division, whether the award results from a hearing, the default of a party, or a compromise or stipulation confirmed by the department or the division.
(2)
(a) The department shall have and maintain on its staff such examiners as are necessary to hear and decide claims for compensation described in s. 102.16 (1) (b) and to assist in the effective administration of this chapter.
(b)
The division shall have and maintain on its staff such examiners as are necessary to decide claims for compensation described in s. 102.16 (1) (c) and to assist in the effective adjudication of claims under this chapter.
(c)
Examiners under pars. (a) and (b) shall be attorneys and may be designated as administrative law judges. Those examiners may make findings and orders and may approve, review, set aside, modify, or confirm stipulations of settlement or compromises of claims for compensation.
(3)
A party in interest may petition the commission for review of an examiner's decision awarding or denying compensation if the department, the division, or the commission receives the petition within 21 days after the department or the division mailed a copy of the examiner's findings and order to the last-known addresses of the parties in interest. The commission shall dismiss a petition that is not filed within those 21 days unless the petitioner shows that the petition was filed late for a reason that was beyond the petitioner's control. If no petition is filed within those 21 days, the findings or order shall be considered final unless set aside, reversed, or modified by the examiner within that time. If the findings or order are set aside by the examiner, the status shall be the same as prior to the setting aside of the findings or order. If the findings or order are reversed or modified by the examiner, the time for filing a petition commences on the date on which notice of the reversal or modification is mailed to the last-known addresses of the parties in interest. The commission shall either affirm, reverse, set aside, or modify the findings or order, in whole or in part, or direct the taking of additional evidence. The commission's action shall be based on a review of the evidence submitted.
(4)
(a) Unless the liability under s. 102.35 (3) , 102.43 (5) , 102.49 , 102.57 , 102.58 , 102.59 , 102.60 or 102.61 is specifically mentioned, the order, findings or award are deemed not to affect such liability.
(b)
Within 28 days after the date of a decision of the commission, the commission may, on its own motion, set aside the decision for further consideration.
(c)
On its own motion, for reasons it deems sufficient, the commission may set aside any final order or award of the commission or examiner within one year after the date of the order or award, upon grounds of mistake or newly discovered evidence, and, after further consideration, do any of the following:
    1. Affirm, reverse or modify, in whole or in part, the order or award.

    2. 2. Reinstate the previous order or award.
  1. Remand the case to the department or the division for further proceedings.

(d) While a petition for review by the commission is pending or after entry of an order or award by the commission but before commencement of an action for judicial review or expiration of the period in which to commence an action for judicial review, the commission shall remand any compromise presented to it to the " department or the division for consideration and approval or rejection under s. 102.16 (1) . Presentation of a compromise does not affect the period in which to commence an action for judicial review.

(5)
If it appears to the division that a mistake may have been made as to cause of injury in the findings, order, or award upon an alleged injury based on accident, when in fact the employee was suffering from an occupational disease, within 3 years after the date of the findings, order, or award the division may, upon its own motion, with or without hearing, set aside the findings, order or award, or the division may take that action upon application made within those 3 years. After an opportunity for hearing, the division may, if in fact the employee is suffering from disease arising out of the employment, make new findings, and a new order or award, or the division may reinstate the previous findings, order, or award.
(6)
In case of disease arising out of employment, the division may from time to time review its findings, order, or award, and make new findings, or a new order or award, based on the facts regarding disability or otherwise as those facts may appear at the time of the review. This subsection shall not affect the application of the limitation in s. 102.17 (4) .

History: 1971 c. 148 ; 1973 c. 150 ; 1975 c. 147 ; 1977 c. 29 , 195 ; 1979 c. 89 , 278 , 355 ; 1981 c. 92 ; 1983 a. 98 ; 1985 a. 83 ; 1987 a. 179 ; 1989 a. 64 ; 1997 a. 38 ; 1999

a. 14 ; 2001 a. 37 ; 2003 a. 144 ; 2005 a. 172 ; 2007 a. 185 ; 2015 a. 55 , 180 . Cross-reference: See also LIRC and s. DWD 80.05 , Wis. adm. code. Committee Note, 1971: The intent is to authorize the commission within its abso

lute discretion to reopen final orders on the basis of mistake or newly discovered evidence within a period of one year from the date of such order where this is found to be just. It is intended that the commission have authority to grant or deny compensation, including the right to increase or to decrease benefits previously awarded. [Bill 371-A]

Interlocutory orders issued by the department in worker's compensation cases are not res judicata. Worsch v. DILHR, 46 Wis. 2d 504 , 175 N.W.2d 201 (1970).

When the department reverses an examiner's findings and makes independent findings, the latter should be accompanied by a memorandum opinion indicating not only prior consultation with the examiner and review of the record, but a statement or statements of the reasons for reaching a different result or conclusion, particularly when the credibility of witnesses is involved. Transamerica Insurance Co. v. DILHR, 54 Wis. 2d 272 , 195 N.W.2d 656 (1972). See also Mervosh v. LIRC, 2010 WI App 36 , 324 Wis. 2d 134 , 781 N.W.2d 236 , 09-0271 .

The department could properly find no permanent disability in the case of a successful fusion of vertebrae and still retain jurisdiction to determine future disability when doctors testified that there might be future effects. Vernon County v. DILHR, 60 Wis. 2d 736 , 211 N.W.2d 441 (1973).

In a case involving conflicting testimony in which the department reverses an examiner's findings, fundamental fairness requires a separate statement by the department explaining why it reached its decision, as well as specifically setting forth in the record its consultation with the examiner with respect to impressions or conclusions in regard to the credibility of witnesses. Simonton v. DILHR, 62 Wis. 2d 112 , 214 N.W.2d 302 (1974).

Sub. (5) is inapplicable if at the original hearing the examiner considered the possibility of both accidental injury and injury caused by occupational disease and denied the applicant benefits. Murphy v. DILHR, 63 Wis. 2d 248 , 217 N.W.2d 370 (1974).

An award will be affirmed if it is supported by any credible evidence. When there are inconsistencies or conflicts in medical testimony, it is for the department and not the courts to reconcile inconsistencies. Theodore Fleisner, Inc. v. DILHR, 65 Wis. 2d 317 , 222 N.W.2d 600 (1974).

The authority granted under sub. (3) to modify the findings of a hearing examiner does not extend to the making of findings and an order on an alternative basis of liability neither tried by the parties nor ruled on by the examiner. When another basis of liability is applicable, the examiner's findings must be set aside and an order directing the taking of additional testimony entered, directing the examiner to make new findings as to the substituted basis. Joseph Schlitz Brewing Co. v. DILHR, 67 Wis. 2d 185 , 226 N.W.2d 492 (1975).

The dismissal of an application that was neither based upon a stipulation or compromise nor entered after a hearing was void. The original application was valid though made many years earlier. Kohler Co. v. DILHR, 81 Wis. 2d 11 , 259 N.W.2d 695 (1977).

The department is not required to make specific findings as to a defense to a worker's claim, but it is better practice to either make findings or state why none were made. Universal Foundry Co. v. DILHR, 82 Wis. 2d 479 , 263 N.W.2d 172 (1978).

Commission guidelines, formulated as internal standards of credibility in worker's compensation cases, are irrelevant to a court's review of the commission's findings.

E. F. Brewer Co. v. DILHR, 82 Wis. 2d 634 , 264 N.W.2d 222 (1978). A general finding by the department implies all facts necessary to support it. A finding not explicitly made may be inferred from other properly made findings and from findings that were not made if there is evidence that would support those findings. Valadzic v. Briggs & Stratton Corp. 92 Wis. 2d 583 , 286 N.W.2d 540 (1979). Sub. (1) (bp) is constitutional. Messner v. Briggs & Stratton Corp. 120 Wis. 2d 127 , 353 N.W.2d 363 (Ct. App. 1984). An employer was penalized for denying a claim that was not " fairly debatable"

under sub. (1) (bp). Kimberly-Clark Corp. v. LIRC, 138 Wis. 2d 58 , 405 N.W.2d 684 (Ct. App. 1987).

Sub. (4) (c) grants the review commission exclusive authority to set aside findings due to newly discovered evidence. The trial court does not possess that authority. Hopp v. LIRC, 146 Wis. 2d 172 , 430 N.W.2d 359 (Ct. App. 1988).

To show bad faith under sub. (1) (bp) a claimant must show that the employer acted without a reasonable basis for the delay and with knowledge or a reckless disregard of the lack of reasonable basis for the delay. North American Mechanical v. LIRC, 157 Wis. 2d 801 , 460 N.W.2d 835 (Ct. App. 1990).

After the commission makes a final order and the review period has passed, the commission's decision is final for all purposes. Kwaterski v. LIRC, 158 Wis. 2d 112 , 462 N.W.2d 534 (Ct. App. 1990).

Sub. (3) does not authorize LIRC to take administrative notice of any fact; review is limited to the record before the hearing examiner. Amsoil, Inc. v. LIRC, 173 Wis. 2d 154 , 496 N.W.2d 150 (Ct. App. 1992).

The commission may not reject a medical opinion absent something in the record to support the rejection; countervailing expert testimony is not required in all cases. Leist v. LIRC, 183 Wis. 2d 450 , 515 N.W.2d 268 (Ct. App. 1994).

Issuance of a default order under sub. (1) (a) is discretionary. Rules of civil procedure do not apply to administrative proceedings. Nothing in the law suggests a default order must be issued in the absence of excusable neglect. Verhaagh v. LIRC, 204 Wis. 2d 154 , 554 N.W.2d 678 (Ct. App. 1996), 96-0470 .

The commission may not rule on and consider issues on appeal that were not litigated and may not consider evidence not considered by the administrative law judge unless the parties are allowed to offer rebuttal evidence. Wright v. LIRC, 210 Wis. 2d 289 , 565 N.W.2d 221 (Ct. App. 1997), 96-1024 .

LIRC's authority under s. 102.17 (1) (a) to control its calendar and manage its internal affairs necessarily implies the power to deny an applicant's motion to withdraw an application for hearing. An appellant's failure to appear at a hearing after a motion to withdraw the application was denied was grounds for entry of a default judgment under sub. (1) (a). Baldwin v. LIRC, 228 Wis. 2d 601 , 599 N.W.2d 8 (Ct. App. 1999), 98-3090 .

LIRC's application of sub. (1) (bp) was entitled to great weight deference. Beverly Enterprises v. LIRC, 2002 WI App 23 , 250 Wis. 2d 246 , 640 N.W.2d 518 , 01-0970 .

Under s. 102.23 (1) (a), judicial review is available only from an order or award granting or denying compensation. Judicial review by common law certiorari was not available for a claim that LIRC failed to act within the statutory time limitations under sub. (4), which would be subject to judicial review of any subsequent order or award granting or denying compensation in that case. Vidal v. LIRC, 2002 WI 72 , 253 Wis. 2d 426 , 645 N.W.2d 870 , 00-3548 .

To demonstrate bad faith under sub. (1) (bp), a claimant must show the absence of a reasonable basis for denying benefits and the defendant's knowledge or reckless disregard of the lack of a reasonable basis for denying the claim. Brown v. LIRC, 2003 WI 142 , 267 Wis. 2d 31 , 671 N.W.2d 279 , 02-1429 .

Because sub. (1) (bp) specifically allows for the imposition of bad faith penalties on an employer for failure to pay benefits, and because s. 102.23 (5) specifically directs the employer to pay benefits pending an appeal when the only issue is who will pay benefits, an employer may be subject to bad faith penalties under sub. (bp), independent from its insurer, when it fails to pay benefits in accordance with s. 102.23 (5). Bosco v. LIRC, 2004 WI 77 , 272 Wis. 2d 586 , 681 N.W.2d 157 , 03-0662 .

Sub. (1) (d) does not prohibit determinations in excess of the highest medical assessment in evidence, but rather creates a presumption of reasonableness for awards that fall within the prescribed range. The statute does not state that an award outside of the prescribed range is unreasonable and does not prohibit DWD from setting minimum loss of use percentages by administrative rule. Daimler Chrysler v. LIRC, 2007 WI 15 , 299 Wis. 2d 1 , 727 N.W.2d 311 , 05-0544 .

Sub. (1) (bp) does not govern the conduct of the department or its agent and does not impose any penalty on the department or its agent for bad faith conduct in administering the uninsured employers fund. Sub. (1) (bp) constitutes the exclusive remedy for the bad faith conduct of an employer or an insurance carrier. Because sub. (1) (bp) does not apply to the department's agent, it does not provide an exclusive remedy for the agent's bad faith. Moreover, s. 102.81 (1) (a) exempts the department and its agent from paying an employee the statutory penalties and interest imposed on an employer or an insurance carrier for their misdeeds, but nothing in s. 102.81 (1) (a) exempts the department or its agent from liability for its bad faith conduct in processing claims. Aslakson v. Gallagher Bassett Services, Inc. 2007 WI 39 , 300 Wis. 2d 92 , 729 N.W.2d 712 , 04-2588 .

Because the parties explicitly stated the only claim against the employer was for accidental injury, the employer could not " know the charges or claims" against it included an occupational disease claim. It never had an opportunity to be heard on " the probative force of the evidence adduced by both sides" as applied to the occupational disease claim, or on the law applicable to the occupational disease claim, either during the hearing or in its brief to the commission. As such, the employer was denied both due process and a " fair hearing" under sub. (1) (a). Waste Management Incorporated v. LIRC, 2008 WI App 50 , 308 Wis. 2d 763 , 747 N.W.2d 782 , 07-2405 .

Once a permanent partial disability award is made, the worker's compensation statutes provide only limited provision for reopening. The statutes do not provide for the reopening of a final award two years after it is rendered in the event the employer rehires the employee. Schreiber Foods, Inc. v. LIRC, 2009 WI App 40 , 316 Wis. 2d 516 , 765 N.W.2d 850 , 08-1977 .

Case law appears to define an order " awarding or denying compensation" in sub.

(3) synonymously with an order reaching the merits of the applicant's claim. Although the administrative decisions in this case contemplated the possibility of future action by the claimant, the dismissal was not procedural or rooted in standing doctrines like ripeness but based on a finding that the claimant presented insufficient evidence to substantiate it and did reach the merits. LaBeree v. Wausau Insurance Companies, 2010 WI App 148 , 330 Wis. 2d 101 , 793 N.W.2d 77 , 09-1628 .

The automatic-stay provisions of the federal bankruptcy code froze an employer's obligation to pay claims, including worker's compensation, that were not due at the time of the employer's bankruptcy filing. Accordingly, obligations that became due after filing were not in default and no late-payment penalty could be assessed under sub. (1) (bp). Grede Foundries, Inc. v. Labor and Industry Review Commission, 2012 WI App 86 , 343 Wis. 2d 517 , 819 N.W.2d 850 , 11-2636 .



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