102.57 Violations of safety provisions, penalty. If injury is caused by the failure of the employer to comply with any statute, rule, or order of the department of safety and professional services, compensation and death benefits provided in this chapter shall be increased by 15 percent but the total increase may not exceed $15,000. Failure of an employer reasonably to enforce compliance by employees with any statute, rule, or order of the department of safety and professional services constitutes failure by the employer to comply with that statute, rule, or order.
History: 1981 c. 92; 1983 a. 98; 2001 a. 37; 2015 a. 55.
This section and s. 102.58 may be applicable in the same case if the negligence of both the employer and employee are causes of the employee's injury. Milwaukee Forge v. DILHR, 66 Wis. 2d 428, 225 N.W.2d 476 (1975).
Death benefits for dependent children are not increased by this section. Schwartz v. DILHR, 72 Wis. 2d 217, 240 N.W.2d 173 (1976).
The application of this section is not restricted to statutes “of the" department of workforce development. Statutes are not “of" departments of the state. The reasonable reading of this section is that “of the department" modifies “ order" and not “statute." The only word that modifies “statute" in the first sentence of the section is “any." This section allows an administrative law judge to increase worker's compensation benefits if it finds that the employer failed to comply with any statute. A violation of a federal OSHA standard was not a violation of “a statute, rule, or order of the department" but was evidence of a violation of a Wisconsin statute, the safe place statute, s. 101.11. Sohn Manufacturing Inc. v. LIRC, 2013 WI App 112, 350 Wis. 2d 469, 838 N.W.2d 131, 12-2566.
This section is not preempted by federal law. It is not an attempt to regulate in an area that the state has not been authorized to regulate and does not constitute enforcement of federal workplace safety regulations. Rather, this section is a worker's compensation law “with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment" exempted from preemption under 29 U.S.C. § 653 (b) (4). Sohn Manufacturing Inc. v. LIRC, 2013 WI App 112, 350 Wis. 2d 469, 838 N.W.2d 131, 12-2566.
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