102.27(2)(b)
(b) If a governmental unit provides public assistance under
ch. 49 to pay medical costs or living expenses related to a claim under this chapter, the employer or insurance carrier owing compensation shall reimburse that governmental unit any compensation awarded or paid if the governmental unit has given the parties to the claim written notice stating that it provided the assistance and the cost of the assistance provided. Reimbursement shall equal the lesser of either the amount of assistance the governmental unit provided or two-thirds of the amount of the award or payment remaining after deduction of attorney fees and any other fees or costs chargeable under
ch. 102. The department shall comply with this paragraph when making payments under
s. 102.81.
102.28
102.28
Preference of claims; worker's compensation insurance. 102.28(1)(1)
Preference. The whole claim for compensation for the injury or death of any employe or any award or judgment thereon, and any claim for unpaid compensation insurance premiums are entitled to preference in bankruptcy or insolvency proceedings as is given creditors' actions except as denied or limited by any law of this state or by the federal bankruptcy act, but this section shall not impair the lien of any judgment entered upon any award.
102.28(2)
(2) Required insurance; exceptions. 102.28(2)(a)(a)
Duty to insure payment for compensation. Unless exempted by the department under
par. (b) or
sub. (3), every employer, as described in
s. 102.04 (1), shall insure payment for that compensation in an insurer authorized to do business in this state. A joint venture may elect to be an employer under this chapter and obtain insurance for payment of compensation. If a joint venture that is subject to this chapter only because the joint venture elected to be an employer under this chapter is dissolved and cancels or terminates its contract for the insurance of compensation under this chapter, that joint venture is deemed to have effected withdrawal, which shall be effective on the day after the contract is canceled or terminated.
102.28(2)(b)
(b)
Exemption from duty to insure. The department may grant a written order of exemption to an employer who shows its financial ability to pay the amount of compensation, agrees to report faithfully all compensable injuries and agrees to comply with this chapter and the rules of the department. The department may condition the granting of an exemption upon the employer's furnishing of satisfactory security to guarantee payment of all claims under compensation. The department may require that bonds or other personal guarantees be enforceable against sureties in the same manner as an award may be enforced. The department may from time to time require proof of financial ability of the employer to pay compensation. Any exemption shall be void if the application for it contains a financial statement which is false in any material respect. An employer who files an application containing a false financial statement remains subject to
par. (a). The department may promulgate rules establishing an amount to be charged to an initial applicant for exemption under this paragraph and an annual amount to be charged to employers that have been exempted under this paragraph.
102.28(2)(c)
(c)
Revocation of exemption. The department, after seeking the advice of the self-insurers council, may revoke an exemption granted to an employer under
par. (b), upon giving the employer 10 days' written notice, if the department finds that the employer's financial condition is inadequate to pay its employes' claims for compensation, that the employer has received an excessive number of claims for compensation or that the employer has failed to discharge faithfully its obligations according to the agreement contained in the application for exemption. The employer may, within 10 days after receipt of the notice of revocation, request in writing a review of the revocation by the secretary or the secretary's designee and the secretary or the secretary's designee shall review the revocation within 30 days after receipt of the request for review. If the employer is aggrieved by the determination of the secretary or the secretary's designee, the employer may, within 10 days after receipt of notice of that determination, request a hearing under
s. 102.17. If the secretary or the secretary's designee determines that the employer's exemption should be revoked, the employer shall obtain insurance coverage as required under
par. (a) immediately upon receipt of notice of that determination and, notwithstanding the pendency of proceedings under
ss. 102.17 to
102.25, shall keep that coverage in force until another exemption under
par. (b) is granted.
102.28(2)(d)
(d)
Effect of insuring with unauthorized insurer. An employer who procures an exemption under
par. (b) and thereafter enters into any agreement for excess insurance coverage with an insurer not authorized to do business in this state shall report that agreement to the department immediately. The placing of such coverage shall not by itself be grounds for revocation of the exemption.
102.28(3)
(3) Provision of alternative benefits. 102.28(3)(a)(a) An employer may file with the department an application for exemption from the duty to pay compensation under this chapter with respect to any employe who signs the waiver described in
subd. 1. and the affidavit described in
subd. 2. if an authorized representative of the religious sect to which the employe belongs signs the affidavit specified in
subd. 3. and the agreement described in
subd. 4. An application for exemption under this paragraph shall include all of the following:
102.28(3)(a)1.
1. A written waiver by the employe or, if the employe is a minor, by the employe and his or her parent or guardian of all compensation under this chapter other than the alternative benefits provided under
par. (c).
102.28(3)(a)2.
2. An affidavit by the employe or, if the employe is a minor, by the employe and his or her parent or guardian stating that the employe is a member of a recognized religious sect and that, as a result of the employe's adherence to the established tenets or teachings of the religious sect, the employe is conscientiously opposed to accepting the benefits of any public or private insurance that makes payments in the event of death, disability, old age or retirement, or that makes payments toward the cost of or provides medical care, including any benefits provided under the federal social security act,
42 USC 301 to
1397f.
102.28(3)(a)3.
3. An affidavit by an authorized representative of the religious sect to which the employe belongs stating that the religious sect has a long-standing history of providing its members who become dependent on the support of the religious sect as a result of work-related injuries, and the dependents of those members, with a standard of living and medical treatment that are reasonable when compared to the general standard of living and medical treatment for members of the religious sect.
102.28(3)(a)4.
4. An agreement signed by an authorized representative of the religious sect to which the employe belongs to provide the financial and medical assistance described in
subd. 3. to the employe and to the employe's dependents if the employe sustains an injury which, but for the waiver under
subd. 1., the employer would be liable for under
s. 102.03.
102.28(3)(b)
(b) The department shall approve an application under
par. (a) if the department determines that all of the following conditions are satisfied:
102.28(3)(b)1.
1. The employe has waived all compensation under this chapter other than the alternative benefits provided under
par. (c).
102.28(3)(b)2.
2. The employe is a member of a religious sect whose established tenets or teachings oppose accepting the benefits of insurance as described in
par. (a) 2. and that, as a result of adherence to those tenets or teachings, the employe conscientiously opposes accepting those benefits.
102.28(3)(b)3.
3. The religious sect to which the employe belongs has a long-established history of providing its members who become dependent on the religious sect as a result of work-related injuries, and the dependents of those members, with a standard of living and medical treatment that are reasonable when compared to the general standard of living and medical treatment for members of the religious sect. In determining whether the religious sect has a long-standing history of providing the financial and medical assistance described in this subdivision, the department shall presume that a 25-year history of providing that financial and medical assistance is long-standing for purposes of this subdivision.
102.28(3)(b)4.
4. The religious sect to which the employe belongs has agreed to provide the financial and medical assistance described in
subd. 3. to the employe and to the dependents of the employe if the employe sustains an injury that, but for the waiver under
par. (a) 1., the employer would be liable for under
s. 102.03.
102.28(3)(c)
(c) An employe who has signed a waiver under
par. (a) 1. and an affidavit under
par. (a) 2., who sustains an injury that, but for that waiver, the employer would be liable for under
s. 102.03, who at the time of the injury was a member of a religious sect whose authorized representative has filed an affidavit under
par. (a) 3. and an agreement under
par. (a) 4. and who as a result of the injury becomes dependent on the religious sect for financial and medical assistance, or the employe's dependent, may request a hearing under
s. 102.17 (1) to determine if the religious sect has provided the employe and his or her dependents with a standard of living and medical treatment that are reasonable when compared to the general standard of living and medical treatment for members of the religious sect. If, after hearing, the department determines that the religious sect has not provided that standard of living or medical treatment, or both, the department may order the religious sect to provide alternative benefits to that employe or his or her dependent, or both, in an amount that is reasonable under the circumstances, but not in excess of the benefits that the employe or dependent could have received under this chapter but for the waiver under
par. (a) 1.
102.28(3)(d)
(d) The department shall provide a form for the application for exemption of an employer under
par. (a) (intro.), the waiver and affidavit of an employe under
par. (a) 1. and
2., the affidavit of a religious sect under
par. (a) 3. and the agreement of a religious sect under
par. (a) 4. A properly completed form is prima facie evidence of satisfaction of the conditions under
par. (b) as to the matter contained in the form.
102.28(4)(a)(a) When the department discovers an uninsured employer, the department may order the employer to cease operations until the employer complies with
sub. (2).
102.28(4)(b)
(b) If the department believes that an employer may be an uninsured employer, the department shall notify the employer of the alleged violation of
sub. (2) and the possibility of closure under this subsection. The employer may request and shall receive a hearing under
s. 102.17 on the matter if the employer applies for a hearing within 10 days after the notice of the alleged violation is served.
102.28(4)(c)
(c) After a hearing under
par. (b), or without a hearing if one is not requested, the department may issue an order to an employer to cease operations on a finding that the employer is an uninsured employer.
102.28(4)(d)
(d) The department of justice may bring an action in any court of competent jurisdiction for an injunction or other remedy to enforce the department's order to cease operations under
par. (c).
102.28(5)
(5) Employer's liability. If compensation is awarded under this chapter, against any employer who at the time of the accident has not complied with
sub. (2), such employer shall not be entitled as to such award or any judgment entered thereon, to any of the exemptions of property from seizure and sale on execution allowed in
ss. 815.18 to
815.21. If such employer is a corporation, the officers and directors thereof shall be individually and jointly and severally liable for any portion of any such judgment as is returned unsatisfied after execution against the corporation.
102.28(6)
(6) Reports by employer. Every employer shall upon request of the department report to it the number of employes and the nature of their work and also the name of the insurance company with whom the employer has insured liability under this chapter and the number and date of expiration of such policy. Failure to furnish such report within 10 days from the making of a request by certified mail shall constitute presumptive evidence that the delinquent employer is violating
sub. (2).
102.28(7)
(7) Insolvent employers; assessments. 102.28(7)(a)(a) If an employer who is currently or was formerly exempted by written order of the department under
sub. (2) is unable to pay an award, judgment is rendered in accordance with
s. 102.20 against that employer and execution is levied and returned unsatisfied in whole or in part, payments for the employer's liability shall be made from the fund established under
sub. (8). If a currently or formerly exempted employer files for bankruptcy and not less than 60 days after that filing the department has reason to believe that compensation payments due are not being paid, the department in its discretion may make payment for the employer's liability from the fund established under
sub. (8). The state treasurer shall proceed to recover such payments from the employer or the employer's receiver or trustee in bankruptcy, and may commence an action or proceeding or file a claim therefor. The attorney general shall appear on behalf of the state treasurer in any such action or proceeding. All moneys recovered in any such action or proceeding shall be paid into the fund established under
sub. (8).
102.28(7)(b)
(b) Each employer exempted by written order of the department under
sub. (2) shall pay into the fund established by
sub. (8) a sum equal to that assessed against each of the other such exempt employers upon the issuance of an initial order. The order shall provide for a sum sufficient to secure estimated payments of the insolvent exempt employer due for the period up to the date of the order and for one year following the date of the order and to pay the estimated cost of insurance carrier or insurance service organization services under
par. (c). Payments ordered to be made to the fund shall be paid to the department within 30 days. If additional moneys are required, further assessments shall be made based on orders of the department with assessment prorated on the basis of the gross payroll for this state of the exempt employer, reported to the department for the previous calendar year for unemployment insurance purposes under
ch. 108. If the exempt employer is not covered under
ch. 108, then the department shall determine the comparable gross payroll for the exempt employer. If payment of any assessment made under this subsection is not made within 30 days of the order of the department, the attorney general may appear on behalf of the state to collect the assessment.
102.28(7)(c)
(c) The department may retain an insurance carrier or insurance service organization to process, investigate and pay valid claims. The charge for such service shall be paid from the fund as provided under
par. (b).
102.28(8)
(8) Self-insured employers liability fund. The moneys paid into the state treasury under
sub. (7), together with all accrued interest, shall constitute the "self-insured employers liability fund".
102.28 Annotation
The "insure payment" requirement of sub. (2) (a) requires an employer to provide coverage for every employe in all possible employment situations. Substantial compliance with sub. (2) (a) is not sufficient. This provision does not violate due process. State v. Koch, 195 W (2d) 801, 537 NW (2d) 39 (Ct. App. 1995).
102.29
102.29
Third party liability. 102.29(1)
(1) The making of a claim for compensation against an employer or compensation insurer for the injury or death of an employe shall not affect the right of the employe, the employe's personal representative, or other person entitled to bring action, to make claim or maintain an action in tort against any other party for such injury or death, hereinafter referred to as a 3rd party; nor shall the making of a claim by any such person against a 3rd party for damages by reason of an injury to which
ss. 102.03 to
102.64 are applicable, or the adjustment of any such claim, affect the right of the injured employe or the employe's dependents to recover compensation. The employer or compensation insurer who shall have paid or is obligated to pay a lawful claim under this chapter shall have the same right to make claim or maintain an action in tort against any other party for such injury or death. If the department pays or is obligated to pay a claim under
s. 102.81 (1), the department shall also have the right to maintain an action in tort against any other party for the employe's injury or death. However, each shall give to the other reasonable notice and opportunity to join in the making of such claim or the instituting of an action and to be represented by counsel. If a party entitled to notice cannot be found, the department shall become the agent of such party for the giving of a notice as required in this subsection and the notice, when given to the department, shall include an affidavit setting forth the facts, including the steps taken to locate such party. Each shall have an equal voice in the prosecution of said claim, and any disputes arising shall be passed upon by the court before whom the case is pending, and if no action is pending, then by a court of record or by the department. If notice is given as provided in this subsection, the liability of the tort-feasor shall be determined as to all parties having a right to make claim, and irrespective of whether or not all parties join in prosecuting such claim, the proceeds of such claim shall be divided as follows: After deducting the reasonable cost of collection, one-third of the remainder shall in any event be paid to the injured employe or the employe's personal representative or other person entitled to bring action. Out of the balance remaining, the employer, insurance carrier or, if applicable, uninsured employers fund shall be reimbursed for all payments made by it, or which it may be obligated to make in the future, under this chapter, except that it shall not be reimbursed for any payments of increased compensation made or to be made under
s. 102.18 (1) (bp),
102.22,
102.35 (3),
102.57 or
102.60. Any balance remaining shall be paid to the employe or the employe's personal representative or other person entitled to bring action. If both the employe or the employe's personal representative or other person entitled to bring action, and the employer, compensation insurer or department, join in the pressing of said claim and are represented by counsel, the attorneys' fees allowed as a part of the costs of collection shall be, unless otherwise agreed upon, divided between such attorneys as directed by the court or by the department. A settlement of any 3rd party claim shall be void unless said settlement and the distribution of the proceeds thereof is approved by the court before whom the action is pending and if no action is pending, then by a court of record or by the department.
102.29(2)
(2) In the case of liability of the employer or insurer to make payment into the state treasury under
s. 102.49 or
102.59, if the injury or death was due to the actionable act, neglect or default of a third party, the employer or insurer shall have a right of action against such third party to recover the sum so paid into the state treasury, which right may be enforced either by joining in the action mentioned in
sub. (1), or by independent action. Contributory negligence of the employe because of whose injury or death such payment was made shall bar recovery if such negligence was greater than the negligence of the person against whom recovery is sought, and the recovery allowed the employer or insurer shall be diminished in proportion to the amount of negligence attributable to such injured or deceased employe. Any action brought under this subsection may, upon order of the court, be consolidated and tried together with any action brought under
sub. (1).
102.29(3)
(3) Nothing in this chapter shall prevent an employe from taking the compensation he or she may be entitled to under it and also maintaining a civil action against any physician, chiropractor, psychologist, dentist or podiatrist for malpractice.
102.29(4)
(4) If the employer and the 3rd party are insured by the same insurer, or by the insurers who are under common control, the employer's insurer shall promptly notify the parties in interest and the department. If the employer has assumed the liability of the 3rd party, it shall give similar notice, in default of which any settlement with an injured employe or beneficiary is void. This subsection does not prevent the employer or compensation insurer from sharing in the proceeds of any 3rd party claim or action, as set forth in
sub. (1).
102.29(5)
(5) An insurer subject to
sub. (4) which fails to comply with the notice provision of that subsection and which fails to commence a 3rd party action, within the 3 years allowed by
s. 893.54, may not plead that
s. 893.54 is a bar in any action commenced by the injured employe under this section against any such 3rd party subsequent to 3 years from the date of injury, but prior to 6 years from such date of injury. Any recovery in such an action is limited to the insured liability of the 3rd party. In any such action commenced by the injured employe subsequent to the 3-year period, the insurer of the employer shall forfeit all right to participate in such action as a complainant and to recover any payments made under this chapter.
102.29(6)
(6) No employe of a temporary help agency who makes a claim for compensation may make a claim or maintain an action in tort against any employer who compensates the temporary help agency for the employe's services.
102.29(7)
(7) No employe who is loaned by his or her employer to another employer and who makes a claim for compensation under this chapter may make a claim or maintain an action in tort against the employer who accepted the loaned employe's services.
102.29(8)
(8) No student of a public school, as described in
s. 115.01 (1), or a private school, as defined in
s. 115.001 (3r), who is named under
s. 102.077 as an employe of the school district or private school for purposes of this chapter and who makes a claim for compensation under this chapter may make a claim or maintain an action in tort against the employer that provided the work training or work experience from which the claim arose. This subsection does not apply to injuries occurring after December 31, 1999.
102.29(8m)
(8m) No participant in a community service job under
s. 49.147 (4) or a transitional placement under
s. 49.147 (5) who, under
s. 49.147 (4) (c) or
(5) (c), is provided worker's compensation coverage by a Wisconsin works agency, as defined under
s. 49.001 (9), and who makes a claim for compensation under this chapter may make a claim or maintain an action in tort against the employer who provided the community service job or transitional placement from which the claim arose.
102.29(8r)
(8r) No participant in a food stamp employment and training program under
s. 49.124 (1m) who, under
s. 49.124 (1m) (d), is provided worker's compensation coverage by the department or by a Wisconsin works agency, as defined in
s. 49.001 (9), and who makes a claim for compensation under this chapter may make a claim or maintain an action in tort against the employer who provided the employment and training from which the claim arose.
102.29(9)
(9) No participant in a work experience component of a job opportunities and basic skills program who, under
s. 49.193 (6) (a), is considered to be an employe of the agency administering that program, or who, under
s. 49.193 (6) (a), is provided worker's compensation coverage by the person administering the work experience component, and who makes a claim for compensation under this chapter may make a claim or maintain an action in tort against the employer who provided the work experience from which the claim arose. This subsection does not apply to injuries occurring after February 28, 1998.
102.29 Note
NOTE: See cases annotated under 102.03 as to the right to bring a 3rd party action against a coemploye.
102.29 Annotation
When an employe sues a coemploye, who was also president of the employer, he cannot impose on the defendant the increased burden of care of the safe-place statute. Wasley v. Kosmatka, 50 W (2d) 738, 184 NW (2d) 821.
102.29 Annotation
In a 3rd party action under 102.29 liability under 101.11 cannot be imposed on officers or employes of the employer. Their liability must be based on common law negligence. Pitrowski v. Taylor, 55 W (2d) 615, 201 NW (2d) 52.
102.29 Annotation
See note to 102.03, citing Candler v. Hardware Dealers Mut. Ins. Co. 57 W (2d) 85, 203 NW (2d) 659.
102.29 Annotation
Liability of corporate officer and supervisory employe in a 3rd party action discussed. Kruse v. Schieve, 61 W (2d) 421, 213 NW (2d) 65.
102.29 Annotation
Sub. (1) provides attorneys' fees are to be allowed as "costs of collection," and unless otherwise agreed upon, are to be divided between the attorneys for both the employe and the compensation carrier pursuant to court direction. Diedrick v. Hartford Accident & Indemnity Co. 62 W (2d) 759, 216 NW (2d) 193.
102.29 Annotation
The words "action commenced by the injured employe" in (5) also encompass the bringing of wrongful death and survival actions. Ortman v. Jensen & Johnson, Inc. 66 W (2d) 508, 225 NW (2d) 635.
102.29 Annotation
The 6-year limitation of 3rd-party actions for wrongful death provided in 102.29 (5) does not deny 3rd-party defendants the equal protection granted to other wrongful death defendants by the 893.205 (2) 3-year limitation. Ortman v. Jenson & Johnson, Inc. 66 W (2d) 508, 225 NW (2d) 635. (1975).
102.29 Annotation
Extra-hazardous activity exception did not apply where employe of general contractor was injured while doing routine work, notwithstanding that employe was working in nuclear power plant. Snider v. Northern States Power Co. 81 W (2d) 224, 260 NW (2d) 260.
102.29 Annotation
"Business pursuit" exclusion in defendant coemploye's homeowner's policy does not offend public policy. Bertler v. Employers Insurance of Wausau, 86 W (2d) 13, 271 NW (2d) 603 (1978).
102.29 Annotation
See note to 102.03, citing Mulder v. Acme-Cleveland Corp. 95 W (2d) 173, 290 NW (2d) 176 (1980).
102.29 Annotation
Right to partake in proceeds was not dependent on participation in prosecution. Guyette v. West Bend Mut. Ins. Co. 102 W (2d) 496, 307 NW (2d) 311 (Ct. App. 1981).
102.29 Annotation
See note to 102.03, citing Jenkins v. Sabourin, 104 W (2d) 309, 311 NW (2d) 600 (1981).
102.29 Annotation
Indemnity agreements in worker's compensation cases discussed. Hortman v. Otis Erecting Co., Inc. 108 W (2d) 456, 322 NW (2d) 482 (Ct. App. 1982).
102.29 Annotation
Award for loss of consortium is not subject to distribution formula under (1). DeMeulenaere v. Transport Ins. Co. 116 W (2d) 322, 342 NW (2d) 56 (Ct. App. 1983).
102.29 Annotation
Trial court exceeded authority under (1) by applying alternative allocation formula without consent of all parties. Award for pain and suffering is subject to allocation under (1), but award to spouse for loss of consortium prior to employe's death is not. Kottka v. PPG Industries, Inc. 130 W (2d) 499, 388 NW (2d) 160 (1986).
102.29 Annotation
Distribution scheme under (1) renders common-law subrogation principles inapplicable. Martinez v. Ashland Oil, Inc., 132 W (2d) 11, 390 NW (2d) 72 (Ct. App. 1986).
102.29 Annotation
Allocation formula discussed. Brewer v. Auto-Owners Ins. Co., 142 W (2d) 864, 418 NW (2d) 841 (Ct. App. 1987).
102.29 Annotation
Principal employer may not be held vicariously liable to independent contractor's employe for torts of contractor while performing inherently dangerous work. Wagner v. Continental Cas. Co., 143 W (2d) 379, 421 NW (2d) 835 (1988).
102.29 Annotation
Legal distinction between corporation/employer and partnership that leased factory to corporation, both of which entities are composed of same individuals, eliminates partners' immunity under exclusivity doctrine for failing to exercise ordinary care in maintaining leased premises. Couillard v. Van Ess, 152 W (2d) 62, 447 NW (2d) 391 (Ct. App. 1989).
102.29 Annotation
In structured settlement situations, "remainder" under (1) from which employe must receive first one-third is the remainder of the front payment after deduction of collection costs. Skirowski v. Employers Mut. Cas. Co. 158 W (2d) 242, 462 NW (2d) 245 (Ct. App. 1990).
102.29 Annotation
Under (6) temporary employer need only control work activities of temporary employe; it need not have exclusive control over employe's work. Gansch v. Nekoosa Papers, Inc., 158 W (2d) 743, 463 NW (2d) 682 (1990).
102.29 Annotation
Employe's cause of action against third party does not relate back to initial work injury; the cause of action and the employer's rights of subrogation accrue at time of third party negligence. Sutton v. Kaarakka, 159 W (2d) 83, 464 NW (2d) 29 (Ct. App. 1990).
102.29 Annotation
See note to s. 102.03 citing Miller v. Bristol-Myers, 168 W (2d) 863, 485 NW (2d) 31 (1992).
102.29 Annotation
Rights under sub. (1) are not a type of subrogation, but provide a direct cause of action. Campion v. Montgomery Elevator Co. 172 W (2d) 405, 493 NW (2d) 244 (Ct. App. 1992).
102.29 Annotation
Insurer must be paid under sub. (1) in third-party settlement for injury that it concluded was noncompensable but which was consequential to the original injury. Nelson v. Rothering, 174 W (2d) 296, 496 NW (2d) 87 (1993).
102.29 Annotation
Worker's compensation insurer cannot bring third party action against insurer who paid claimant under uninsured motorist coverage; uninsured motorist coverage is contractual and section only allows tort actions. Berna-Mork v. Jones, 174 W (2d) 645, 498 NW (2d) 221 (1993).
102.29 Annotation
Sub. (1) does not require an interested party receiving notice of another's third-party claim to give a reciprocal notice to the party making the claim in order to share in the settlement proceeds. Elliot v. Employers Mut. Cas. Co. 176 W (2d) 410, 500 NW (2d) 397 (Ct. App. 1993).
102.29 Annotation
The "dual persona doctrine" which allows an employe to sue an employer in tort when the employer was acting in a persona distinct from its employer persona is available to a temporary employe subject to sub. (6). Melzer v. Cooper Industries, Inc. 177 W (2d) 609, 503 NW (2d) 291 (Ct. App. 1993).
102.29 Annotation
Third-party claims under sub. (1) include wrongful death actions and settlement proceeds are subject to allocation under sub. (1). Stolper v. Owens-Corning Fiberglas Corp. 178 W (2d) 747, 505 NW (2d) 157 (Ct. App. 1993).
102.29 Annotation
Insurer had no right to reimbursement from legal malpractice settlement proceeds arising from a failure to file an action arising from a work related injury as the employe's injury from the malpractice was the loss of a legal right not a physical injury. Smith v. Long, 178 W (2d) 797, 505 NW (2d) 429 (Ct. App. 1993).
102.29 Annotation
Damages for a child's loss of a parent's society and financial support are not subject to allocation under sub. (1). Cummings v. Klawitter, 179 W (2d) 408, 506 NW (2d) 750 (Ct. App. 1993).
102.29 Annotation
The traditional 4-prong Seaman test for determining whether a person was a "loaned employe" subject to the exclusive remedy provisions of this chapter applies to temporary employes not covered by sub. (6). Bauernfeind v. Zell, 190 W (2d) 701, 528 NW (2d) 1 (1995).
102.29 Annotation
Pecuniary damages recovered in a third-party wrongful death action are subject to distribution under this section. Johnson v. ABC Ins. Co. 193 W. (2d) 35, 532 NW (2d) 130 (1995).
102.29 Annotation
An insurer is entitled to reimbursement under sub. (1) from an employe's settlement with his or her employer where the employer's basis for liability is an indemnification agreement with a 3rd party tortfeasor. Houlihan v. ABC Insurance Co. 198 W (2d) 133, 542 NW (2d) 178 (Ct. App. 1995).
102.29 Annotation
Sub. (5) extends the statute of limitations only when s. 893.54 is the applicable statute; it does not extend the statute of another state when it is applicable under s.893.07. That sub. (5) only applies to cases subject to the Wisconsin statute is not unconstitutional. Bell v. Employers Casualty Co. 198 W (2d) 347, 541 NW (2d) 824 (Ct. App. 1995).
102.29 Annotation
The Seaman loaned employe test has 3 elements but is often miscast because the Seaman court indicated that there are four "vital questions" which must be answered. The 3 elements are consent by the employe, entry by the employe upon work for the special employer and power of the special employer to to control details of the work. When an employe of one employer assists the employes of another employer as a true volunteer, a loaned employe relationship does not result. Borneman v. Corwyn Transport, Ltd. 212 W (2d) 25, 567 NW (2d) 887 (Ct. App. 1997).
102.29 Annotation
In a 3rd party action filed by an insurer under sub. (1), the insurer has the right to maintain an action for payments it has or will make to the employe by claiming all the employes' damages including pain and suffering. Threshermens Mutual Insurance Co. v. Page, 217 W (2d) 451, 577 NW (2d) 335 (1998).
102.29 Annotation
The allocation of a settlement to various plaintiffs cannot be contested by an insurer who defaults at the hearing to approve the settlement. An insurer does not lose its right to share in the proceeds by defaulting, but it does forfeit its right to object to the application of settlement proceeds to specific claims. Herlache v. Blackhawk Collision Repair, Inc. 215 W (2d) 99, 572 NW (2d) 121 (Ct. App. 1997).
102.29 Annotation
Problems in 3rd party action procedure under the Wisconsin worker's compensation act. Piper. 60 MLR 91.
