Worker's Compensation Brief History
History - Before 1911
Before 1911, the only recourse to a worker who was injured in the course of his or her employment was to sue his or her employer in a civil or "tort" action, which was the same remedy available to a person injured under other circumstances. The tort remedy, however, had a major problem: it required the worker to prove that the injury occurred because the employer was negligent. In tort actions the employer had three almost unbeatable common law defenses: (1) that the worker was also negligent, (2) that the worker knew of the dangers involved and "assumed the risk," or (3) that the injury occurred because of the negligence of a "fellow employee." Under this system it was very difficult for workers to recover against their employers. If they won, however, there were no dollar limits on what a jury could award.
It is noted that after 1905 judges and juries in Wisconsin began returning verdicts more favorable to injured workers. This growing trend in tort litigation began to make employers nervous because they believed that as time went on more and more injured workers would get more and more favorable verdicts. Thus for this reason, among others, many employers became increasingly open to the idea of eliminating tort litigation by adopting some sort of worker's compensation program.
1911 - The Workmen's Compensation Act
In 1911, Wisconsin adopted a Workmen's Compensation Act. This remedy is essentially a "no-fault" system under which a worker no longer has to prove negligence on the part of the employer, and the employer's three common law defenses are eliminated.
The intent of the law was to require an employer to promptly and accurately compensate a worker for any injury suffered on the job, regardless of the existence of any fault or whose it might be. In return, the WC Act limited the amount of money that a worker could recover. Thus, workers are only entitled to:
- certain wage loss benefits,
- the cost of medical treatment,
- certain disability payments and
- payments for vocational rehabilitation retraining.
Under the pre-WC Act tort system, workers had been able to recover for pain and suffering, loss of enjoyment of life and other damages that a jury might award. This is no longer possible under the WC Act.
Since 1911 the WC Act has undergone numerous changes and refinements. However, the main values have not only remained intact but have also been strengthened. One of those values is universal coverage. Nearly all employers in Wisconsin are covered, including both public and private employers. The only employee exceptions to the WC Act insurance requirement are domestic servants, some farm employees, volunteers (including volunteers of non-profit organizations that receive money or other things of value totaling not more than $10.00 per week) and religious sect members that qualify and are certified for an exemption. In addition there are a few classes of workers who are covered by federal laws instead of the WC Act.
A Note on the Worker's Compensation Advisory Council
The Wisconsin Worker's Compensation Advisory Council was created by Chapter 327 Laws of 1967 (effective February 18, 1968) to advise the Department and Legislature on policy matters concerning the development and administration of the worker's compensation law. One of the important enduring values of the Council is maintaining the overall stability of the workers compensation system without regard to partisan changes in the legislative or executive branches of government.
One of the main functions of the Council is to recommend worker's compensation law changes to the Legislature through the "agreed bill" process. The process begins with the Council holding public hearings throughout the state where testimony is taken from all interested sources. Council members agree to support the Council's proposed changes in the Legislature and not to individually seek any changes to those proposals. Likewise, the Council members traditionally agree not to support any worker's compensation law changes which have not gone through the "agreed bill" process. By July of odd-numbered years the "agreed bill" is usually ready for submittal to Senate and Assembly Committees. By tradition the Council only recommends statutory changes which pass without dissent. Based on this process, the Legislature traditionally accepts the Council's recommendations and forwards the bill to the Governor for his approval where the bill is signed into law.
The statutes prescribe the Council's membership as follows:
- 5 employee representatives (voting members);
- 5 employer representatives (voting members);
- 3 insurer representatives (non-voting members);
- 1 department representative (voting member).
More Information on Creation of the Wisconsin's Worker's Compensation Program
If you would like more information on the creation of Wisconsin's Worker's Compensation program see Robert Asher's "The 1911 Wisconsin Workmen's Compensation Law: A Study in Conservative Labor Reform" in the Wisconsin Magazine of History.
Worker's Compensation Special Funds
The Work Injury Supplemental Benefit Fund (WISBF):
The Work Injury Supplemental Fund (102.65, Wis. Stats.) is a state fund that pays benefits to individuals or dependents under four different benefit programs:
- Supplemental benefits (Supplemental Benefit Fund);
- Additional death benefit for children (Childrens Fund);
- Preexisting disability, indemnity benefits (Second Injury Fund);
- Payment of certain barred claims (Barred Claims Fund).
The Work Injury Supplemental Benefit Fund is funded through statutory assessments against insurance carriers and employers for certain specified injuries (dismemberments) and death claims. The Worker's Compensation Division collects the assessments.
- Supplemental Benefits: Section 102.44, Wis. Stats., provides for additional
benefits for older claims whereby the injured worker has been on continuous
temporary total disability, or is permanently and totally disabled.
- Childrens Fund: Section 102.49, Wis. Stats., establishes a fund whereby
benefits are paid for the support of minor dependent children of employees who
died as a result of a work related injury. Payments begin after the primary
death benefit is paid, and they are payable in support of each child in the
amount of 10% of the primary death benefit. Payments continue until the child
reaches the age of 18. If the child is physically or mentally incapacitated,
however, the payments may be continued beyond the 18th birthday, but they may
not continue for more than a total of 15 years.
- Second Injury Fund: Section 102.59, Wis. Stats., establishes that payments are
due to employees who sustain a primary work-related injury which entitles the
employee to compensation for permanent partial disability (PPD) of at least 200
weeks when the employee has or would have been entitled to at least 200 weeks of
PPD for an injury which pre-existed the primary work-related injury. PPD due for
the primary claim must be fully accrued before payments are due from the Second
Injury Fund. The pre-existing disability does not to need to have resulted from
a work injury and can result from non-work related injuries including birth
- Barred Claims Fund: Section 102.66, Wis. Stats., establishes a fund out of which compensation is paid to individuals who sustain occupational injuries or disease which are meritorious but otherwise barred by the statute of limitations.
The Uninsured Employers Fund (UEF):
This fund (established by section 102.80, Wis. Stats.) pays worker's compensation benefits on valid worker's compensation claims filed by employees who are injured while working for illegally uninsured Wisconsin employers. When a compensable claim is filed, the UEF pays the injured employee worker's compensation benefits as if the uninsured employer had been insured.
The Uninsured Employers Fund is funded through penalties assessed against employers for illegally operating a business without worker's compensation insurance. The penalties are mandatory and non-negotiable. In addition, the department pursues reimbursement from each uninsured employer of benefit payments made by the UEF under section 102.81(1), Wis. Stats., to the employee of that uninsured employer or to the employee's dependents. The UEF uses aggressive collection action (including warrants, levies, garnishment and execution against property) to secure satisfaction of penalty assessments and reimbursement of claims paid by the fund.