102.03 Annotation
The department correctly found on a claim for death benefits for an employee murdered while she alone remained in an office that had been vacated by all other employees, that the accident arose out of the deceased's employment since the isolated work environment in which the deceased worked constituted a zone of special danger, and hence the positional risk doctrine was applicable. Allied Manufacturing, Inc. v. DILHR,
45 Wis. 2d 563,
173 N.W.2d 690 (1970).
102.03 Annotation
The holding in Brown v. Ind. Comm,
9 Wis. 2d 555, that causation legally sufficient to support compensation does not require a showing of strain or exertion greater than that normally required by the employee's work efforts, was not intended to preclude a doctor determining causation, from considering whether the employee was engaged in usual work at the time of injury. However, the doctor should not automatically conclude each time an employee is injured while performing a task previously performed on a regular basis that the injury was caused by a preexisting condition rather than employment. Pitsch v. DILHR,
47 Wis. 2d 55,
176 N.W.2d 390 (1970).
102.03 Annotation
When a herniated disc was diagnosed within a few days after the claimed injury, the evidence did not justify the department's finding that the employee did not meet the burden of proof. Erickson v. DILHR,
49 Wis. 2d 114,
181 N.W.2d 495 (1970).
102.03 Annotation
The department cannot divide liability for compensation among successive employers for the effects of successive injuries in the absence of evidence to sustain a finding that the disability arose from the successive injuries, nor can it assess all liability against one of several employers nor divide liability equally among each of several employers if there is no evidence to support a finding that the injury or injuries contributed to the disability in that manner. Semons Department Store v. DILHR,
50 Wis. 2d 518,
184 N.W.2d 871 (1971).
102.03 Annotation
While susceptibility to further injury does not necessarily establish a permanent disability under the "as is" doctrine, an employee's predisposition to injury does not relieve a present employer from liability if the employee becomes injured due to the employment even though the injury may not have caused disability in another person. Semons Department Store v. DILHR,
50 Wis. 2d 518,
184 N.W.2d 871 (1971).
102.03 Annotation
A salesperson on a trip who deviated to the extent of spending several hours in a tavern before being killed on his ordinary route home may have been in the course of employment, in which case his estate would be entitled to compensation. Lager v. DILHR,
50 Wis. 2d 651,
185 N.W.2d 300 (1971).
102.03 Annotation
A wife cannot assert a separate and independent cause of action against her husband's employer for loss of loss of consortium due to injuries sustained by the husband in an industrial accident covered by this chapter. Rosencrans v. Wisconsin Telephone Co.
54 Wis. 2d 124,
194 N.W.2d 643 (1972).
102.03 Annotation
A commission finding that the deceased was performing services when killed while walking on a Milwaukee street at 3 a.m. while intoxicated was sustained. Phillips v. DILHR,
56 Wis. 2d 569,
202 N.W.2d 249 (1972).
102.03 Annotation
Members of a partnership are employers of the employees of the partnership. An employee cannot bring a 3rd-party action against a member of the employing partnership. Candler v. Hardware Dealers Mutual Insurance Co.
57 Wis. 2d 85,
203 N.W.2d 659 (1973).
102.03 Annotation
The "exclusive remedy" provision in sub. (2) does not prevent an action for personal injuries against a supervisory coemployee on the basis of negligence by common law standards. It makes no difference that the coemployee is brought in by means of a 3rd-party complaint. Lampada v. State Sand & Gravel Co.
58 Wis. 2d 315,
206 N.W.2d 138 (1973).
102.03 Annotation
A salesperson, employed on a part-salary and part-commission basis, who travelled each day from his home, servicing and soliciting orders within a prescribed territory, using a delivery truck furnished by his employer whose office he was not required to report to, was performing services incidental to employment when he fell on his icy driveway going to his delivery truck to leave for his first call. Black River Dairy Products, Inc. v. DILHR,
58 Wis. 2d 537,
207 N.W.2d 65 (1973).
102.03 Annotation
Since the decedent's employment status for services rendered in this state was substantial and not transitory, and the relationship was not interrupted by cessation of work for the Wisconsin employer, the department erred when it predicated its denial of benefits on the employer's conflicting testimony that during the year in which the employee met his death his working time in Wisconsin had been reduced to 10%. Simonton v. DILHR,
62 Wis. 2d 112,
214 N.W.2d 302 (1974).
102.03 Annotation
Under sub. (1) (f), no purpose of the employer was served by an extended deviation to test road conditions in bad weather to determine if visiting a boyfriend or going on a hunting trip the next day would be feasible, nor was it a reasonably necessary for living or incidental thereto. Hunter v. DILHR,
64 Wis. 2d 97,
218 N.W.2d 314 (1974).
102.03 Annotation
Under the 4-element test for deciding whether a worker was a loaned or special employee, the 1st element, actual or implied consent to work for the special employer, was negated by the existence of a work order providing that the plaintiff would not be employed by the special employer for a period of 90 days, and by the absence of any other evidence indicating consent; hence, the plaintiff was a business invitee and not an employee at the time of the accident. Nelson v. L. & J. Press Corp.
65 Wis. 2d 770,
223 N.W.2d 607 (1974).
102.03 Annotation
Nontraumatically caused mental injury is compensable only if it results from a situation of greater dimensions than the day-to-day mental stresses and tensions that all employees must experience. Swiss Colony, Inc. v. DILHR,
72 Wis. 2d 46,
240 N.W.2d 128 (1976).
102.03 Annotation
A provider of medical services to an employee did not have a cause of action under the worker's compensation act against the employer when the employer denied liability and compromised an employee's claim. La Crosse Lutheran Hospital v. Oldenburg,
73 Wis. 2d 71,
241 N.W.2d 875 (1976).
102.03 Annotation
The doctrines of required travel, dual purpose, personal comfort, and special mission are discussed. Sauerwein v. DILHR,
82 Wis. 2d 294,
262 N.W.2d 126 (1978).
102.03 Annotation
The personal comfort doctrine did not apply to an employee while going to lunch off of the employer's premises and not during specific working hours; a denial of benefits for an injury received while eating lunch off the premises did not deny equal protection. Marmolejo v. DILHR,
92 Wis. 2d 674,
285 N.W.2d 650 (1979).
102.03 Annotation
The presumption in favor of traveling employees does not modify the requirements for employer liability. Goranson v. DILHR,
94 Wis. 2d 537,
289 N.W.2d 270 (1980).
102.03 Annotation
That sub. (2) denies 3rd-party tort-feasors the right to a contribution action against a negligent employer who was substantially more at fault does not render the statute unconstitutional. Mulder v. Acme-Cleveland Corp.
95 Wis. 2d 173,
290 N.W.2d 276 (1980).
102.03 Annotation
Use of the parking lot is a prerequisite for coverage under sub. (1) (c) 1. [now (1) (c) 2.]. Injury on a direct path between the lot and the work premises is insufficient. Jaeger Baking Co. v. Kretschmann,
96 Wis. 2d 590,
292 N.W.2d 622 (1980).
102.03 Annotation
The provision by an employer of alleged negligent medical care to an employee injured on the job by persons employed for that purpose did not subject the employer to tort liability for malpractice. Jenkins v. Sabourin,
104 Wis. 2d 309,
311 N.W.2d 600 (1981).
102.03 Annotation
Repeated work-related back trauma was compensable as an occupational disease. Shelby Mutual Insurance Co. v. DILHR,
109 Wis. 2d 655,
327 N.W.2d 178 (Ct. App. 1982).
102.03 Annotation
Injury due to horseplay was compensable. The "positional risk" doctrine applied. That doctrine provides that an accident arises out of employment when the connection between employment and the accident is such that the obligations of the employment place the employee in the particular place at the time the employee is injured by a force not personal to him or her. Bruns Volkswagen, Inc. v. DILHR,
110 Wis. 2d 319,
328 N.W.2d 886 (Ct. App. 1982).
102.03 Annotation
When an employee who witnessed an injury to another was an active work-related participant in the tragedy, resulting nontraumatic psychic injury was compensable. International Harvester v. LIRC,
116 Wis. 2d 298,
341 N.W.2d 721 (Ct. App. 1983).
102.03 Annotation
An employee injured by machinery manufactured by a corporation that had merged with the employer prior to the accident could recover in tort against the employer under the "dual persona" doctrine. Schweiner v. Hartford Accident & Indemnity Co.
120 Wis. 2d 344,
354 N.W.2d 767 (Ct. App. 1984).
102.03 Annotation
Under the "positional risk" doctrine, the murder of an employee by a coemployee off work premises was an injury arising out of employment. Applied Plastics, Inc. v. LIRC,
121 Wis. 2d 271,
359 N.W.2d 168 (Ct. App. 1984).
102.03 Annotation
Worker's compensation provides the exclusive remedy for injuries sustained as the result of a company doctor's negligence. Franke v. Durkee,
141 Wis. 2d 172,
413 N.W.2d 667 (Ct. App. 1987).
102.03 Annotation
The "dual persona" doctrine is adopted, replacing the "dual capacity" doctrine. A 3rd-party may recover from an employer only when the employer has operated in a distinct persona as to the employee. Henning v. General Motors Assembly,
143 Wis. 2d 1,
419 N.W.2d 551 (1988).
102.03 Annotation
The legal distinction between a corporation/employer and a partnership/landlord that leased the factory to the corporation, although both entities were composed of the same individuals, eliminated the partners' immunity as individuals under the exclusivity doctrine for negligence in maintaining the leased premises. Couillard v. Van Ess,
152 Wis. 2d 62,
447 N.W.2d 391 (Ct. App. 1989).
102.03 Annotation
The injured employee, and not an injuring coemployee, must have been acting within the scope of employment at the time of injury. Jenson v. Employers Mutual Casualty Co.
161 Wis. 2d 253,
468 N.W.2d 1 (1991).
102.03 Annotation
An assault under sub. (2) must be more than verbal; it must be physical. Jenson v. Employers Mutual Casualty Co.
161 Wis. 2d 253,
468 N.W.2d 1 (1991).
102.03 Annotation
A parent corporation can be liable as a 3rd-party tort-feasor to an employee of a subsidiary when the parent negligently undertakes to render services to the subsidiary that the parent should have recognized were necessary for the protection of the subsidiary's employees. Miller v. Bristol-Myers,
168 Wis. 2d 863,
485 N.W.2d 31 (1992).
102.03 Annotation
A compromise of a worker's compensation claim based on an allegation that an injury was job related precluded the claimant from pursuing a discrimination claim against the same employer on the theory that the injury was not job related. Marson v. LIRC,
178 Wis. 2d 118,
503 N.W.2d 582 (Ct. App. 1993).
102.03 Annotation
A coemployee of the plaintiff who closed a car door on the plaintiff's hand was not engaged in the "operation of a motor vehicle" under sub. (2). Hake v. Zimmerlee,
178 Wis. 2d 417,
504 N.W.2d 411 (Ct. App. 1993).
102.03 Annotation
A corporation's president who purchased and leased a machine to the corporation as as individual held a dual persona and was subject to tort liability. Rauch v. Officine Curioni, S.P.A.
179 Wis. 2d 539,
508 N.W.2d 12 (Ct. App. 1993).
102.03 Annotation
This section does not bar an employee from seeking arbitration under a collective bargaining agreement to determine whether termination following an injury violated the agreement. This section only excludes tort actions for injuries covered by the act. County of Lacrosse v. WERC,
182 Wis. 2d 15,
513 N.W.2d 708 (1994).
102.03 Annotation
A contract ``made in this state" under sub. (5) (b) is determined by where the contact was accepted. A contract accepted by telephone is made where the acceptor speaks. Horton v. Haddow,
186 Wis. 2d 174,
519 N.W.2d 736 (Ct. App. 1994).
102.03 Annotation
Settlement of an employee's worker's compensation claim for a work related injury precluded the assertion of the employee's claim that she was entitled to leave for the injury under the Family Medical Leave Act, s. 103.10. Finell v. DILHR,
186 Wis. 2d 187,
519 N.W.2d 731 (Ct. App. 1994).
102.03 Annotation
Employer payment of travel expenses does not alone render commuting a part of employment subject to coverage. When travel is a substantial part of employment and the employer provides a vehicle under its control and pays costs, coverage may be triggered. Doering v. LIRC,
187 Wis. 2d 471,
523 N.W.2d 142 (Ct. App. 1994).
102.03 Annotation
Whether physical contact of a sexual nature was an assault by a coemployee not subject to the exclusive remedy provision of sub. (2) is a question of fact. A reasonable juror could conclude that sexual conduct could be so offensive that a reasonable person would have understood that physical injury such as loss of sleep, weight loss, or ulcers was substantially certain to follow. West Bend Mutual Insurance Co. v. Berger,
192 Wis. 2d 743,
531 N.W.2d 636 (Ct. App. 1995).
102.03 Annotation
An employee's claims of defamation by an employer are preempted by this section. Claims for tortious interference with contract are not for injuries covered by the worker's compensation act and are not precluded. Wolf v. F & M Banks,
193 Wis. 2d 439,
534 N.W.2d 877 (Ct. App. 1995).
102.03 Annotation
Nothing in this chapter precludes an employer from agreeing with employees to continue salaries for injured workers in excess of worker's compensation benefits. Excess payments are not worker's compensation and may be conditioned on the parties' agreement. City of Milwaukee v. DILHR,
193 Wis. 2d 626,
534 N.W.2d 903 (Ct. App. 1995).
102.03 Annotation
A waiver of employer immunity from suit under this section may be made by an express agreement of indemnification. Schaub v. West Bend Mutual,
195 Wis. 2d 181,
536 N.W.2d 123 (Ct. App. 1995),
94-2174.
102.03 Annotation
If an employer injures an employee through intentional sexual harassment, the injury is not an accident under sub. (1) (e) and not subject to the exclusivity provision of sub. (2). Lentz v. Young,
195 Wis. 2d 457,
536 N.W.2d 451 (Ct. App. 1995),
94-3335.
102.03 Annotation
If an employee of one employer is injured while attempting to rescue an employee of another employer, the rescuing employee becomes an employee of the injured employee's employer for purposes of worker's compensation liability. That no employee of the injured employee's employer specifically requested the other employer's employee to assist is immaterial. Michels Pipeline Construction, Inc. v. LIRC,
197 Wis. 2d 928,
541 N.W.2d 241 (Ct. App. 1995).
102.03 Annotation
An employee must prove unusual stress in order to receive benefits for a nervous disability that resulted from emotional stress. Milwaukee v. LIRC,
205 Wis. 2d 253,
556 N.W.2d 340 (Ct. App. 1996).
102.03 Annotation
An attack that occurs during employment arising from a personal relationship outside the employment arises out of the employment if employment conditions contribute to the attack. Emotional injury from harassing phone calls by an ex-spouse to the employee at her place of work, after her employer unwittingly gave out her phone number, was an injury in the course of employment. Weiss v. City of Milwaukee,
208 Wis. 2d 95,
559 N.W.2d 558 (1997).
102.03 Annotation
The elements of proof placed on a claimant alleging physical injury as a result of emotional stress in the workplace requires that work activity precipitate, aggravate, or accelerate beyond normal progression a progressively deteriorating or degenerative condition. Unlike emotional injury from stress, showing "unusual stress" is not required. UPS v. Lust,
208 Wis. 2d 306,
560 N.W.2d 301 (Ct. App. 1997).
102.03 Annotation
The exclusive remedy provision in s. 102.03 (2) does not bar a complainant whose claim is covered by worker's compensation from pursuing an employment discrimination claim under the Fair Employment Act, subch. II of ch.111. Byers v. LIRC,
208 Wis. 2d 388,
561 N.W.2d 678 (1997).
102.03 Annotation
An employee terminated for misrepresenting his or her medical condition while receiving disability benefits for a concededly work-related injury continues to be entitled to benefits. Brakebush Brothers, Inc. v. LIRC,
210 N.W.2d 624,
563 N.W.2d 512 (1997).
102.03 Annotation
A work-related injury that plays any role in a second injury is properly considered a substantial factor in the re-injury. To find a work-related injury not a factor in a second injury, it must be found that the claimant would have suffered the same injury, to the same extent, despite the first injury. New symptoms alone do not suggest an unrelated second injury. Lange v. LIRC,
215 Wis. 2d 558,
573 N.W.2d 856 (Ct. App. 1997).
102.03 Annotation
The Seaman loaned employee test is a 3-element test that is often miscast because the Seaman court indicated that there are 4 "vital questions" that must be answered. The 3 elements are: 1) consent by the employee; 2) entry by the employee upon work for the special employer; and 3) power of the special employer to to control details of the work. The distinction between employee consent to perform certain acts and consent to enter into a new employment relationship is important. Borneman v. Corwyn Transport, Ltd.
219 Wis. 2d 346,
580 N.W.2d 253 (1998).
102.03 Annotation
Under sub. (1) (f), there is a presumption that a travelling employee performs services incidental to employment at all times on a trip. The burden of proving a personal deviation on the trip is on the party asserting the deviation. Recreational activities may be considered a usual and proper part of the trip but do not always fit the presumption. CBS, Inc. v. LIRC,
219 Wis. 2d 565,
579 N.W.2d 668 (1998).
102.03 Annotation
LIRC's determination of "scope of employment" is given great weight deference. Whether any agency's determination is given great weight depends on whether it has experience in interpreting a particular statutory scheme and not on whether it has ruled on the specific facts. Town of Russell Volunteer Fire Department v. LIRC,
223 Wis. 2d 723,
589 N.W.2d 445 (Ct. App. 1998).
102.03 Annotation
A compensable injury must arise out of employment, which refers to the casual origin of the injury, and occur while the employee performs a service growing out of and incidental to employment, which refers to the time, place, and circumstances of the injury. Die v. LIRC,
224 Wis. 2d 159,
589 N.W.2d 363 (1999).
102.03 Annotation
Intentional harm to an employee is an "accident " subject to this chapter if caused by acts of a coemployee, but not if caused by acts of an employer. Intentionally self-inflicted injury is not subject to this chapter, but death by suicide is not necessarily "intentionally self-inflicted" and is subject to this chapter if the suicide results from a work-related injury without an independent intervening cause. Cohn v. Apogee, Inc.
225 Wis. 2d 815,
593 N.W.2d 921 (Ct. App. 1999).
102.03 Annotation
Sub. (1) (f) does not establish a bright line rule that if a travelling employee stays over past the conclusion of a business part of a trip, there is a personal deviation. An employee is not required to seek immediate seclusion in a hotel and to remain away from human beings at the risk of being charged with deviating from employment. Wisconsin Electric Power Co. v. LIRC,
226 Wis. 2d 778,
595 N.W.2d 23 (1999).
102.03 Annotation
Injuries did not arise out of employment when the injured party was injured while collecting a paycheck as a matter of personal convenience. Secor v. LIRC, 2000 WI App 11,
232 Wis. 2d 519,
606 N.W.2d 175.
102.03 Annotation
An employee's claim under s. 134.01 against fellow employees for injury to reputation and profession was preempted by this section. Mudrovich v. Soto, 2000 WI App 174,
238 Wis. 2d 162,
617 N.W.2d 242.
102.03 Annotation
Under sub. (2), recovery of compensation is the exclusive remedy against a worker's compensation carrier and the carrier's agents. Walstrom v. Gallagher Bassett Services, Inc. 2000 WI App 247,
239 Wis. 2d 473,
620 N.W.2d 223.
102.03 Annotation
It was reasonable for LIRC to hold that an employee had temporarily abandoned his job and was not performing services incidental to employment under sub. (1) (c) 1. when he left the workplace to seek medical attention for an immediate need that was not related to his employment, even though intending to return. Fry v. LIRC, 2000 WI App 239,
239 Wis. 2d 574,
620 N.W.2d 449.
102.03 Annotation
Whether a traveling employee's multiple drinks at a tavern was a deviation was irrelevant when the employee was injured while engaged in a later act reasonably necessary to living. Under s. 102.58, intoxication does not defeat a worker's compensation claim but only decreases the benefits. Heritage Mutual Insurance Co. v. Larsen, 2001 WI 30,
242 Wis. 2d 47,
624 N.W.2d 129.
102.03 Annotation
Under the private errand doctrine, if a person in authority over the employee asks the employee to perform a service for the personal benefit of the employer or the employee's superior and the employee is injured while performing the task, the injury grew out of and was incidental to employment unless the request is clearly unauthorized. Begel v. LIRC, 2001 WI App 134,
246 Wis. 2d 345,
631 N.W.2d 220.
102.03 Annotation
Under the "dual persona" doctrine, the employer's second role must be so unrelated to its role as an employer that it constitutes a separate legal person. St. Paul Fire & Marine Insurance Co. v. Keltgen, 2003 WI App 53,
260 Wis. 2d 523,
659 N.W.2d 906,
02-1249.
102.03 Annotation
When one company was the injured employee's employer on the date of the injury, but another company contracted to become the employer retroactive to a date prior to the injury, the former and its insurer were the responsible for providing benefits under ch. 102. Epic Staff Management, Inc. v. LIRC, 2003 WI App 143,
266 Wis. 2d 369,
667 N.W.2d 765,
02-2310.
102.03 Annotation
Under the last exception in sub. (2), an employee who receives worker's compensation benefits may also file suit against a coemployee when a governmental unit is obligated to pay judgments against that employee pursuant to a collective bargaining agreement or a local ordinance. Keller v. Kraft, 2003 WI App 212,
267 Wis. 2d 444,
671 N.W.2d 361,
02-3377.
102.03 Annotation
The exclusive remedy provision does not bar a ship owner from asserting a right to indemnification against the employer of the injured worker even though he has been paid compensation. Bagrowski v. American Export Isbrantsen Lines, Inc.
440 F.2d 502 (1971).
102.03 Annotation
Emotional distress injury due to sexual harassment was exclusively compensable under this section. Zabkowicz v. West Bend Co., Div. Dart Industries,
789 F.2d 540 (1986).
102.03 Annotation
When 2 employees left their place of employment to fight each other, neither was acting within the scope of employment. There was no cause of action against the employer under ch. 102, tort law, or agency law. Johnson v. Hondo, Inc.
125 F.3d 408 (1997).
102.03 Annotation
Sexual harassment was an accident under sub. (1) (e) and subject to the exclusivity provision of sub. (2). Lentz,
195 Wis. 2d 457, is distinguished. Hibben v. Nardone,
137 F.3d 480 (1998).
102.03 Annotation
A 3rd-party was required to pay 95% of the damages even though only 25% negligent because an employer was shielded by sub. (2). Schuldies v. Service Machine Co.
448 F. Supp. 1196 (1978).
102.03 Annotation
The plaintiff was a special employee of a 3rd-party defendant and a 3rd-party action was barred by the exclusivity provisions of this section. Simmons v. Atlas Vac Mach. Co.
493 F. Supp. 1082 (1980).
102.03 Annotation
Although the employer of an injured employee was found to be at fault, a manufacturer who was also found to be at fault was not entitled to contribution from the employer. Ladwig v. Ermanco, Inc.
504 F. Supp. 1229 (1981).
102.03 Annotation
Unauthorized sexual touching did not constitute an assault intended to cause bodily harm under sub. (2). Hrabak v. Marquip, Inc.
798 F. Supp. 550 (1992).
102.03 Annotation
The exclusivity provision of the worker's compensation act does not bar a claim for invasion of privacy under s. 895.50. Marino v. Arandell Corp.
1 F. Supp. 2d 947 (1998).
102.03 Annotation
Worker's Compensation Act No Longer Protects Against Employment Discrimination Claims. Skinner. Wis. Law. March 1998.
102.04
102.04
Definition of employer. 102.04(1)
(1) The following shall constitute employers subject to the provisions of this chapter, within the meaning of
s. 102.03:
102.04(1)(a)
(a) The state, each county, city, town, village, school district, sewer district, drainage district, family care district and other public or quasi-public corporations therein.
102.04(1)(b)1.1. Every person who usually employs 3 or more employees, whether in one or more trades, businesses, professions or occupations, and whether in one or more locations.
102.04(1)(b)2.
2. Every person who usually employs less than 3 employees, provided the person has paid wages of $500 or more in any calendar quarter for services performed in this state. Such employer shall become subject on the 10th day of the month next succeeding such quarter.
102.04(1)(b)3.
3. This paragraph shall not apply to farmers or farm labor.
102.04(1)(c)
(c) Every person engaged in farming who on any 20 consecutive or nonconsecutive days during a calendar year employs 6 or more employees, whether in one or more locations. The provisions of this chapter shall apply to such employer 10 days after the twentieth such day.
102.04(1)(e)
(e) Every person to whom
pars. (a) to
(d) are not applicable, who has any person in service under any contract of hire, express or implied, oral or written, and who, at or prior to the time of the injury to the employee for which compensation may be claimed, shall, as provided in
s. 102.05, have elected to become subject to the provisions of this chapter, and who shall not, prior to such accident, have effected a withdrawal of such election.
