102.03 Annotation
The holding in Brown v. Ind. Comm, 9 W (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 applicant's work efforts, was not intended to preclude a doctor, when determining medical causation, from considering whether the employe was engaged in his usual work at the time of injury, although the doctor should not automatically conclude each time one is injured while performing a task which he previously performed on a usual or regular basis that such injury was caused by preexisting condition rather than by his employment. Pitsch v. ILHR Dept. 47 W (2d) 55, 176 NW (2d) 390.
102.03 Annotation
Where a herniated disc was diagnosed within a few days after the claimed injury, the evidence did not justify ILHR in finding that the employe did not meet his burden of proof. Erickson v. ILHR Dept. 49 W (2d) 114, 181 NW (2d) 495.
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 successive injuries; it can neither assess all the liability against one of several employers nor divide liability equally among each of several employers where there is no evidence to support a finding that the injury or injuries contributed to the disability in that manner. Semons Department Store v. ILHR Dept. 50 W (2d) 518, 184 NW (2d) 871.
102.03 Annotation
While susceptibility to further injury does not necessarily establish a permanent disability under the "as is" doctrine, an employe's predisposition to injury does not relieve a present employer from liability for workmen's compensation benefits if the employe becomes injured due to his employment, even though the injury may not have been such as to have caused disability in a normal individual. Semons Department Store v. ILHR Dept. 50 W (2d) 518, 184 NW (2d) 871.
102.03 Annotation
Where a salesman starts on a trip, even if he deviates to the extent of spending several hours in a tavern, and is killed on his ordinary route home, his estate is entitled to compensation. Lager v. ILHR Dept. 50 W (2d) 651, 185 NW (2d) 300.
102.03 Annotation
A wife cannot assert a separate and independent cause of action against her husband's employer for damages because of loss of consortium due to injuries sustained by the husband in an industrial accident covered by workmen's compensation. Rosencrans v. Wis. Telephone Co. 54 W (2d) 124, 194 NW (2d) 643.
102.03 Annotation
Finding of commission that deceased was performing service sustained even though he was killed while walking on a street in Milwaukee at 3 in the morning and tests showed he was intoxicated. Phillips v. ILHR Dept. 56 W (2d) 569, 202 NW (2d) 249.
102.03 Annotation
An employe cannot bring a 3rd party action against a member of the employing partnership. Candler v. Hardware Dealers Mut. Ins. Co. 57 W (2d) 85, 203 NW (2d) 659.
102.03 Annotation
The "exclusive remedy" provision in (2) does not prevent an action for personal injuries against a supervisory co-employe on the basis of negligence by common law standards. It makes no difference that the co-employe is being brought in by means of a 3rd-party complaint. Lampada v. State Sand & Gravel Co. 58 W (2d) 315, 206 NW (2d) 138.
102.03 Annotation
A salesman, employed on a part-salary and commission basis, whose duty and only employment was to travel each day from his home in the city, servicing and soliciting orders for the sale of pizzas within a prescribed territory commencing one mile outside the city, using a delivery truck furnished by his employer whose office was 193 miles away and to which he was not required to report, was performing services incidental to his employment when he sustained a back injury in a fall on the icy driveway in going from his home to his delivery truck, which he had intended to get into and start for his first call. Black River Dairy Products, Inc. v. ILHR Dept. 58 W (2d) 537, 207 NW (2d) 65.
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 employe met his death his working time in Wisconsin had been reduced to 10%. Simonton v. ILHR Dept. 62 W (2d) 112, 214 NW (2d) 302.
102.03 Annotation
Only if the "fortuitous event unexpected and unforeseen" can be said to be so out of the ordinary from the countless emotional strains and differences that employes encounter daily without serious mental injury will liability under the workmen's compensation act be found. School Dist. No. 1 v. ILHR Dept. 62 W (2d) 370, 215 NW (2d) 373.
102.03 Annotation
Under (1) (f), no purpose of the employer was in any way served by the extended westward highway testing related to either visiting a boyfriend or going on a hunting trip. Hunter v. ILHR Dept. 64 W (2d) 97, 218 NW (2d) 314.
102.03 Annotation
Under the 4-element test consistently applied by the supreme court in deciding whether a workman was a loaned or special employe, the 1st element, actual or implied consent to work for the special employer, is negated here by the existence of a work order providing that 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, plaintiff was a business invitee and not an employe at the time of the accident. Nelson v. L. & J. Press Corp. 65 W (2d) 770, 223 NW (2d) 607.
102.03 Annotation
Nontraumatically caused mental injury is compensable only if resulting from a situation of greater dimensions than the day-to-day mental stresses and tensions which all employes must experience. Swiss Colony, Inc. v. DILHR, 72 W (2d) 46, 240 NW (2d) 128.
102.03 Annotation
Provider of medical services to employe does not have cause of action against employer under worker's compensation act where employer denied liability and compromised employe's claim. La Crosse Lutheran Hospital v. Oldenburg, 73 W (2d) 71, 241 NW (2d) 875.
102.03 Annotation
Doctrines of required travel, dual purpose, personal comfort, and special mission discussed. Sauerwein v. DILHR, 82 W (2d) 294, 262 NW (2d) 126.
102.03 Annotation
Personal comfort doctrine did not apply where employe was injured neither on employer's premises nor during specific working hours. Denial of benefits for injury received while eating lunch off employer's premises was not denial of equal protection. Marmolejo v. ILHR Dept. 92 W (2d) 674, 285 NW (2d) 650 (1979).
102.03 Annotation
Presumption in favor of traveling employes does not modify requirements for employer liability. Goranson v. DILHR, 94 W (2d) 537, 289 NW (2d) 270 (1980).
102.03 Annotation
Sub. (2) does not unconstitutionally deprive third party tort-feasor of property by barring contribution action against negligent employer. Mulder v. Acme-Cleveland Corp. 95 W (2d) 173, 290 NW (2d) 276 (1980).
102.03 Annotation
Use of parking lot is prerequisite for coverage under (1) (c) 1. Jaeger Baking Co. v. Kretschmann, 96 W (2d) 590, 292 NW (2d) 622 (1980).
102.03 Annotation
See note to art. I, sec. 1, citing State ex rel. Briggs & Stratton v. Noll, 100 W (2d) 650, 302 NW (2d) 487 (1981).
102.03 Annotation
Sub. (2) is constitutional. Oliver v. Travelers Ins. Co. 103 W (2d) 644, 309 NW (2d) 383 (Ct. App. 1981).
102.03 Annotation
Employer who provided negligent medical care to employe injured on job was not subject to tort liability for malpractice. "Dual capacity" theory discussed. Jenkins v. Sabourin, 104 W (2d) 309, 311 NW (2d) 600 (1981).
102.03 Annotation
Repeated work-related back trauma was compensable as occupational disease. Shelby Mut. Ins. Co. v. DILHR, 109 W (2d) 655, 327 NW (2d) 178 (Ct. App. 1982).
102.03 Annotation
Injury due to horseplay was compensable. Positional risk doctrine discussed. Bruns Volkswagen, Inc. v. DILHR, 110 W (2d) 319, 328 NW (2d) 886 (Ct. App. 1982).
102.03 Annotation
Where employe who witnessed injury to another was active work-related participant in tragedy, resulting nontraumatic psychic injury was compensable. International Harvester v. LIRC, 116 W (2d) 298, 341 NW (2d) 721 (Ct. App. 1983).
102.03 Annotation
Horseplay" rule barred recovery where decedent jokingly placed head inside mold compression machine and accidentally started it. Nigbor v. DILHR, 115 W (2d) 606, 340 NW (2d) 918 (Ct. App. 1983); aff'd 120 W (2d) 375, 355 NW (2d) 532 (1984).
102.03 Annotation
Employe injured by machinery manufactured by corporation which merged with employer prior to accident could recover in tort against employer under "dual persona" doctrine. Schweiner v. Hartford Accident & Indemnity Co. 120 W (2d) 344, 354 NW (2d) 767 (Ct. App. 1984).
102.03 Annotation
"Positional risk" doctrine applied to facts of case so that murder of employe by co-employe off work premises was injury arising out of employment. Applied Plastics, Inc. v. LIRC, 121 W (2d) 271, 359 NW (2d) 168 (Ct. App. 1984).
102.03 Annotation
Act provides exclusive remedy for injuries sustained as result of company doctor's negligence. Franke v. Durkee, 141 W (2d) 172, 413 NW (2d) 667 (Ct. App. 1987).
102.03 Annotation
"Dual persona" standard adopted, replacing "dual capacity" doctrine. Third party may recover from employer only when employer has operated in distinct persona as to employe. Henning v. General Motors Assembly, 143 W (2d) 1, 419 NW (2d) 551 (1988).
102.03 Annotation
See note to 102.29, citing Couillard v. Van Ess, 152 W (2d) 62, 447 NW (2d) 391 (Ct. App. 1989).
102.03 Annotation
Under (2) "assault intended to cause bodily harm" requires threat of physical violence. Jenson v. Employers Mut. Cas. Co. 154 W (2d) 313, 453 NW (2d) 165 (Ct. App. 1990).
102.03 Annotation
Injured employe, and not injuring coemploye, need have been acting within scope of employment at time of injury. Jenson v. Employers Mut. Cas. Co. 161 W (2d) 253, 468 NW (2d) 1 (1991).
102.03 Annotation
Assault under (2) must be more than verbal; it must be physical. Jenson v. Employers Mut. Cas. Co. 161 W (2d) 253, 468 NW (2d) 1 (1991).
102.03 Annotation
Parent corporation can be liable to an employe of a subsidiary when the parent negligently undertakes to render services to the subsidiary which the parent should have recognized were necessary for the protection of the subsidiary's employees. Miller v. Bristol-Myers, 168 W (2d) 863, 485 NW (2d) 31 (1992).
102.03 Annotation
A compromise of a worker's compensation claim based on a claim 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 W (2d) 118, 503 NW (2d) 582 (Ct. App. 1993).
102.03 Annotation
The action of a car passenger and coemploye of the plaintiff who closed a car door on the plaintiff's hand was not "operation of a motor vehicle" under sub. (2). Hake v. Zimmerlee, 178 W (2d) 417, 504 NW (2d) 411 (Ct. App. 1993).
102.03 Annotation
Corporate president who purchased and leased machine to corporation as individual held a dual persona and was subject to tort liability. Rauch v. Officine Curioni, S.P.A. 179 W (2d) 539, 508 NW (2d) 12 (Ct. App. 1993).
102.03 Annotation
This section does not bar an employe 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 W (2d) 15, 513 NW (2d) 708 (1994).
102.03 Annotation
A contract ``made in this state" under sub. (5) (b) is determined by where the contact was made. A contract accepted by telephone is made where the acceptor speaks. Horton v. Haddow, 186 W(2d) 174,519 NW (2d) 736 (Ct. App. 1994).
102.03 Annotation
Settlement of an employe's worker's compensation claim for a work related injury precluded the assertion of the employe's claim that she was entitled to leave for the injury under the Family Medical Leave Act, s. 103.10. Finell v. DILHR, 186 W(2d) 187, 519 NW (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. Where travel is a substantial part of the employment and the employer provides a vehicle under its control and pays costs, coverage may be triggered. Doering v. LIRC, 187 W (2d) 471, 523 NW (2d) 142 (Ct. App. 1994).
102.03 Annotation
Whether physical contact of a sexual nature was an assault by a co-employe 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 Ins. Co. v. Berger, 192 W (2d) 743, 531 NW (2d) 636 (Ct. App. 1995).
102.03 Annotation
Claims for defamation by an employe against 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 not precluded. Wolf v. F & M Banks, 193 W (2d) 439, 534 NW (2d) 877 (Ct. App. 1995).
102.03 Annotation
Nothing in this chapter precludes an employer from agreeing with employes 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 W (2d) 626, 534 NW (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 W (2d) 181, 536 NW (2d) 123 (Ct. App. 1995).
102.03 Annotation
Where an employer through intentional sexual harassment injures an employe, the injury is not an accident under sub. (1) (e) and not subject to the exclusivity provision of sub. (2). Lentz v. Young, 195 W (2d) 457, 536 NW (2d) 451 (Ct. App. 1995).
102.03 Annotation
If an employe of one employer is injured while attempting to rescue an employe of another employer, the rescuing employe becomes an employe of the injured employe's employer for purposes of worker's compensation liability. That no employe of the injured employe's employer specifically requested the other employer's employe to assist is immaterial. Michels Pipeline Construction, Inc. v. LIRC, 197 W (2d) 928, 541 NW (2d) 241 (Ct. App. 1995).
102.03 Annotation
Even though a co-employe's sexual harrassment was intentional the resulting emotional injuries may lie within the purview of "accident" and be compensable if the injuries, although not unforeseeable, were unexpected. Byers v. LIRC, 200 W (2d) 728, 547 NW (2d) 788 (Ct. App. 1996).
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 man even though he has been paid compensation. Bagrowski v. American Export Isbrantsen Lines, Inc. 440 F (2d) 502.
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
Under either Minnesota or Wisconsin law, airline which paid compensation benefits to stewardess under laws of Minnesota was not liable to U.S. on theory of indemnity or contribution for any recovery by stewardess in her tort action against U.S. for same injury which occurred in Wisconsin. Herman v. U.S. 382 F Supp. 818.
102.03 Annotation
Third party was required to pay 95% of damages even though only 25% negligent because employer was shielded by (2). Schuldies v. Service Mach. Co. Inc. 448 F Supp. 1196 (1978).
102.03 Annotation
Plaintiff was special employe of third-party defendant and third-party action was barred by exclusivity provisions of this section. Simmons v. Atlas Vac Mach. Co. 493 F Supp. 1082 (1980).
102.03 Annotation
Although employer of injured employe was found to be at fault, manufacturer also found to be at fault was not entitled to contribution from 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).
102.04
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 and other public or quasi-public corporations therein.
102.04(1)(b)1.1. Every person who usually employs 3 or more employes, 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 employes, 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 employes, 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 employe 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.
102.04(2)
(2) Except with respect to a partner or member electing under
s. 102.075, members of partnerships or limited liability companies shall not be counted as employes. Except as provided in
s. 102.07 (5) (a), a person under contract of hire for the performance of any service for any employer subject to this section (1961) shall not constitute an employer of any other person with respect to such service and such other person shall, with respect to such service, be deemed to be an employe only of such employer for whom the service is being performed.
102.04(3)
(3) As used in this chapter "farming" means the operation of farm premises owned or rented by the operator. "Farm premises" means areas used for operations herein set forth, but does not include other areas, greenhouses or other similar structures unless used principally for the production of food and farm plants. "Farmer" means any person engaged in farming as defined. Operation of farm premises shall be deemed to be the planting and cultivating of the soil thereof; the raising and harvesting of agricultural, horticultural or arboricultural crops thereon; the raising, breeding, tending, training and management of livestock, bees, poultry, fur-bearing animals, wildlife or aquatic life, or their products, thereon; the processing, drying, packing, packaging, freezing, grading, storing, delivering to storage, to market or to a carrier for transportation to market, distributing directly to consumers or marketing any of the above-named commodities, substantially all of which have been planted or produced thereon; the clearing of such premises and the salvaging of timber and management and use of wood lots thereon, but not including logging, lumbering or wood cutting operations unless conducted as an accessory to other farming operations; the managing, conserving, improving and maintaining of such premises or the tools, equipment and improvements thereon and the exchange of labor, services or the exchange of use of equipment with other farmers in pursuing such activities. The operation for not to exceed 30 days during any calendar year, by any person deriving the person's principal income from farming, of farm machinery in performing farming services for other farmers for a consideration other than exchange of labor shall be deemed farming. Operation of such premises shall be deemed to include also any other activities commonly considered to be farming whether conducted on or off such premises by the farm operator.
102.04 Annotation
When an employe simultaneously performs service for 2 employers under their joint control and the service for each is the same or closely related, both employers are liable for workmen's compensation. Insurance Co. of N. A. v. ILHR Dept. 45 W (2d) 361, 173 NW (2d) 192.
102.05
102.05
Election by employer, withdrawal. 102.05(1)
(1) An employer who has had no employe at any time within a continuous period of 2 years shall be deemed to have effected withdrawal, which shall be effective on the last day of such period. An employer who has not usually employed 3 employes and who has not paid wages of at least $500 for employment in this state in any calendar quarter in a calendar year may file a withdrawal notice with the department, which withdrawal shall take effect 30 days after the date of such filing or at such later date as is specified in the notice. If an employer who is subject to this chapter only because the employer elected to become subject to this chapter under
sub. (2) cancels or terminates his or her contract for the insurance of compensation under this chapter, that employer is deemed to have effected withdrawal, which shall be effective on the day after the contract is canceled or terminated.
102.05(2)
(2) Any employer who shall enter into a contract for the insurance of compensation, or against liability therefor, shall be deemed thereby to have elected to accept the provisions of this chapter, and such election shall include farm laborers, domestic servants and employes not in the course of a trade, business, profession or occupation of the employer if such intent is shown by the terms of the policy. Such election shall remain in force until withdrawn in the manner provided in
sub. (1).
102.05(3)
(3) Any person engaged in farming who has become subject to this chapter may withdraw by filing with the department a notice of withdrawal, if the person has not employed 6 or more employes as defined by
s. 102.07 (5) on 20 or more days during the current or previous calendar year. Such withdrawal shall be effective 30 days after the date of receipt by the department, or at such later date as is specified in the notice. Such person may again become subject to this chapter as provided by
s. 102.04 (1) (c) and
(e).
102.05 History
History: 1983 a. 98 s.
31;
1993 a. 81,
492.
102.06
102.06
Joint liability of employer and contractor. An employer shall be liable for compensation to an employe of a contractor or subcontractor under the employer who is not subject to this chapter, or who has not complied with the conditions of
s. 102.28 (2) in any case where such employer would have been liable for compensation if such employe had been working directly for the employer, including also work in the erection, alteration, repair or demolition of improvements or of fixtures upon premises of such employer which are used or to be used in the operations of such employer. The contractor or subcontractor, if subject to this chapter, shall also be liable for such compensation, but the employe shall not recover compensation for the same injury from more than one party. The employer who becomes liable for and pays such compensation may recover the same from such contractor, subcontractor or other employer for whom the employe was working at the time of the injury if such contractor, subcontractor or other employer was an employer as defined in
s. 102.04. This section does not apply to injuries occurring on or after the first day of the first July beginning after the day that the secretary files the certificate under
s. 102.80 (3) (a), except that if the secretary files the certificate under
s. 102.80 (3) (ag) this section does apply to claims for compensation filed on or after the date specified in that certificate.
102.06 Annotation
"Contractor under" is one who regularly furnishes to a principal employer materials or services which are integrally related to the finished product or service provided by that principal employer. Green Bay Packaging, Inc. v. DILHR, 72 W (2d) 26, 240 NW (2d) 422.
102.06 Annotation
Franchisee held to be "contractor under" franchisor within meaning of this section. Maryland Cas. Co. v. DILHR, 77 W (2d) 472, 253 NW (2d) 228.
102.06 Annotation
Liability of principal employer for injuries to employes of his contractors or subcontractors. 1977 WLR 185.
102.07
102.07
Employe defined. "Employe" as used in this chapter means:
102.07(1)(a)(a) Every person, including all officials, in the service of the state, or of any municipality therein whether elected or under any appointment, or contract of hire, express or implied, and whether a resident or employed or injured within or without the state. The state and any municipality may require a bond from a contractor to protect the state or municipality against compensation to employes of such contractor or employes of a subcontractor under the contractor. This paragraph does not apply beginning on the first day of the first July beginning after the day that the secretary files the certificate under
s. 102.80 (3) (a), except that if the secretary files the certificate under
s. 102.80 (3) (ag) this paragraph does apply to claims for compensation filed on or after the date specified in that certificate.
102.07(1)(b)
(b) Every person, including all officials, in the service of the state, or of any municipality therein whether elected or under any appointment, or contract of hire, express or implied, and whether a resident or employed or injured within or without the state. This paragraph first applies on the first day of the first July beginning after the day that the secretary files the certificate under
s. 102.80 (3) (a), except that if the secretary files the certificate under
s. 102.80 (3) (ag) this paragraph does apply to claims for compensation filed on or after the date specified in that certificate.
102.07(2)
(2) Any peace officer shall be considered an employe while engaged in the enforcement of peace or in the pursuit and capture of those charged with crime.
102.07(3)
(3) Nothing herein contained shall prevent municipalities from paying teachers, police officers, fire fighters and other employes full salaries during disability, nor interfere with any pension funds, nor prevent payment to teachers, police officers or fire fighters therefrom.
