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Wisconsin Workers' Compensation Legal Library


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102.42 Incidental compensation.

(1) TREATMENT OF EMPLOYEE. 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 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) L IABILITY 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 or the division.

(2)
C HOICE 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 nurse prescriber, 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)
P RACTITIONER 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)
C HRISTIAN S CIENCE. 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)
A RTIFICIAL 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)
T REATMENT 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 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

Updated 15-16 Wis. Stats.

the department or the division 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 or the division 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) A WARD TO STATE EMPLOYEE. Whenever the department or the division makes an award on behalf of a state employee, the department or the division 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)
R EHABILITATION; 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.

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 . 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 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 ss. 102.42 (9) (a), 102.43 (5), and 102.61, the department may extend temporary disability, travel expense, and maintenance costs beyond 40 weeks if additional training is warranted. Beloit Corporation v. State, 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). 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), 94-2794 . The continuing obligation to compensate an employee for work related medical expenses under s. 102.42 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 2 practitioners regardless of whether they are the first 2 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 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 , ___ Wis. 2d ___, 898 N.W.2d 91 , 15-1989 .

Continuing Payments for Medical Expenses in Worker's Compensation Proceedings. Carnell & Woog. Wis. Law. Nov. 1993.



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