Wis. Stat. § 102.11

Current through 4/8/2022
Section 102.11 - Earnings, method of computation
(1) The average weekly earnings for temporary disability, permanent total disability, or death benefits for injury in each calendar year on or after January 1, 1982, shall be not less than $30 nor more than the wage rate that results in a maximum compensation rate of 110 percent of the state's average weekly earnings as determined under s. 108.05 as of June 30 of the previous year. The average weekly earnings for permanent partial disability shall be not less than $30 and, for permanent partial disability for injuries occurring on or after January 1, 2017, and before the effective date of this subsection.... [LRB inserts date], not more than $543, resulting in a maximum compensation rate of $362; for permanent partial disability for injuries occurring on or after the effective date of this subsection.... [LRB inserts date], and before January 1, 2023, not more than $622.50, resulting in a maximum compensation rate of $415; and for permanent partial disability for injuries occurring on or after January 1, 2023, not more than $645, resulting in a maximum compensation rate of $430. Between such limits the average weekly earnings shall be determined as follows:
(a)
1. Daily earnings shall mean the daily earnings of the employee at the time of the injury in the employment in which the employee was then engaged. In determining daily earnings under this subdivision, any hours worked beyond the normal full-time working day as established by the employer, whether compensated at the employee's regular rate of pay or at an increased rate of pay, shall not be considered.
2.
a. In this subdivision, " part time for the day" means Saturday half days and any other day during which an employee works less than the normal full-time working hours established by the employer.
b. If at the time of the injury the employee is working part time for the day, the employee's daily earnings shall be arrived at by dividing the amount received, or to be received by the employee for such part-time service for the day, by the number of hours and fractional hours of the part-time service, and multiplying the result by the number of hours of the normal full-time working day established by the employer for the employment involved.
3. The average weekly earnings shall be arrived at by multiplying the employee's hourly earnings by the hours in the normal full-time workweek as established by the employer, or by multiplying the employee's daily earnings by the number of days and fractional days in the normal full-time workweek as established by the employer, at the time of the injury in the business operation of the employer for the particular employment in which the employee was engaged at the time of the employee's injury, whichever is greater.
4. It is presumed, unless rebutted by reasonably clear and complete documentation, that the normal full-time workweek established by the employer is 24 hours for a flight attendant, 56 hours for a fire fighter, and not less than 40 hours for any other employee. If the employer has established a multi-week schedule with regular hours alternating between weeks, the normal full-time workweek is the average number of hours worked per week under the multi-week schedule.
(ap)
1. Except as provided in subd. 2., in the case of an employee who works less than full time, average weekly earnings shall be calculated by whichever of the following is greater:
a. The actual average weekly earnings of the employee for the 52 calendar weeks before his or her injury, except that calendar weeks within which no work was performed shall not be considered.
b. The employee's hourly earnings on the date of injury multiplied by the average number of hours worked in that employment for the 52 calendar weeks before his or her injury, except that calendar weeks within which no work was performed shall not be considered.
2. An employee may, subject to subd. 3., demonstrate that he or she is eligible for temporary disability benefits based on full-time work rather than part-time work as provided in subd. 1. a. by providing evidence of qualifying taxable earnings with an employer other than the employer liable for the employee's injury or demonstrating that the employee has worked less than full time for less than 12 months before the date of the employee's injury. If the employee so demonstrates, the employee's average weekly wage shall be calculated using the normal full-time workweek established by the employer under par. (a).
3. An employer may rebut the employee's evidence of eligibility for temporary disability benefits based on full-time work under subd. 2. by providing evidence that the employee chose to work less than full time. Such evidence of a choice to restrict employment to less than full time may include a written statement signed by the employee or an employment application that indicates an hour or shift preference.
(b) In case of seasonal employment, average weekly earnings shall be arrived at by the method prescribed in par. (a), except that the number of hours of the normal full-time working day and the number of days of the normal full-time workweek shall be the hours and the days in similar service in the same or similar nonseasonal employment. Seasonal employment shall mean employment that can be conducted only during certain times of the year, and in no event shall employment be considered seasonal if it extends during a period of more than fourteen weeks within a calendar year.
(c) In the case of a person performing service without fixed earnings, or when normal full-time days or weeks are not maintained by the employer in the employment in which the employee worked when injured, or when, for other reason, earnings cannot be determined under the methods prescribed by par. (a) or (b), the earnings of the injured person shall, for the purpose of calculating compensation payable under this chapter, be taken to be the usual going earnings paid for similar services on a normal full-time basis in the same or similar employment in which earnings can be determined under the methods set out in par. (a) or (b).
(d) Except in situations where par. (b) applies, average weekly earnings shall in no case be less than actual average weekly earnings of the employee for the 52 calendar weeks before his or her injury within which the employee has been employed in the business, in the kind of employment and for the employer for whom the employee worked when injured. Calendar weeks within which no work was performed shall not be considered under this paragraph. This paragraph applies only if the employee has worked within a total of at least 6 calendar weeks during the 52 calendar weeks before his or her injury in the business, in the kind of employment and for the employer for whom the employee worked when injured. For purposes of this section, earnings for part-time services performed for a labor organization pursuant to a collective bargaining agreement between the employer and that labor organization shall be considered as part of the total earnings in the preceding 52 calendar weeks, whether payment is made by the labor organization or the employer.
(e) Where any things of value are received in addition to monetary earnings as a part of the wage contract, they shall be deemed a part of earnings and computed at the value thereof to the employee.
(f) The weekly temporary disability benefits for a part-time employee who restricts his or her availability in the labor market to part-time work and is not employed elsewhere, or who has worked less than full time for 12 months or longer before the employee's injury, may not exceed the average weekly wages of the part-time employment.
(g) If an employee is under 27 years of age, the employee's average weekly earnings on which to compute the benefits accruing for permanent disability or death shall be determined on the basis of the earnings that the employee, if not disabled, probably would earn after attaining the age of 27 years. Unless otherwise established, the projected earnings determined under this paragraph shall be taken as equivalent to the amount upon which maximum weekly indemnity is payable.
(2) The average annual earnings when referred to in this chapter shall consist of 50 times the employee's average weekly earnings. Subject to the maximum limitation, average annual earnings shall in no case be taken at less than the actual earnings of the employee in the year immediately preceding the employee's injury in the kind of employment in which the employee worked at the time of injury.
(3) The weekly wage loss referred to in this chapter shall be the percentage of the average weekly earnings of the injured employee computed under this section that fairly represents the proportionate extent of the impairment of the employee's earning capacity in the employment in which the employee was working at the time of the injury and other suitable employments. Weekly wage loss shall be fixed as of the time of the injury, but shall be determined in view of the nature and extent of the injury.

Wis. Stat. § 102.11

Amended by Acts 2021 ch, 232,s 18, eff. 4/10/2022.
Amended by Acts 2021 ch, 232,s 17, eff. 4/10/2022.
Amended by Acts 2021 ch, 232,s 16, eff. 4/10/2022.
Amended by Acts 2021 ch, 232,s 15, eff. 4/10/2022.
Amended by Acts 2021 ch, 232,s 14, eff. 4/10/2022.
Amended by Acts 2015 ch, 180,s 24, eff. 3/2/2016.
Amended by Acts 2015 ch, 55,s 2754d, eff. 1/1/2016.
Amended by Acts 2013 ch, 165,s 52, eff. 3/29/2014.
1971 c. 148; 1973 c. 150; 1975 c. 147; 1977 c. 195; 1979 c. 278; 1981 c. 92; 1983 a. 98; 1985 a. 83; 1987 a. 179; 1989 a. 64; 1991 a. 85; 1993 a. 81, 492; 1995 a. 117; 1997 a. 38, 253; 2001 a. 37, 107; 2005 a. 172; 2007 a. 185; 2009 a. 206; 2011 a. 123, 183, 257; s. 13.92(2) (i).

Sub. (1) (intro.) is shown as affected by 2011 Wis. Acts 183 and 257 and as merged by the legislative reference bureau under s. 13.92(2) (i). The "1" in brackets was inserted by 2011 Wis. Act 257, but rendered surplusage by the treatment by 2011 Wis. Act 183. Corrective legislation is pending.

Par. (c) is amended eff. 7-1-13 by 2011 Wis. Act 123 to read:

(c) In the case of a person performing service without fixed earnings, or when normal full-time days or weeks are not maintained by the employer in the employment in which the employee worked when injured, or when, for other reason, earnings cannot be determined under the methods prescribed by par. (a) or (b), the earnings of the injured person shall, for the purpose of calculating compensation payable under this chapter, be taken to be the usual going earnings paid for similar services on a normal full-time basis in the same or similar employment in which earnings can be determined under the methods set out in par. (a) or (b).

It was reasonable for the commission to determine that health insurance premiums were not "things of value (that) are received in addition to monetary earnings" under sub. (1) (e). Theuer v. LIRC, 2001 WI 26, 242 Wis. 2d 29, 624 N.W.2d 110, 00-1085.