Chapter 102

102.03 102.03 Conditions of liability.

102.03(1) (1) Liability under this chapter shall exist against an employer only where the following conditions concur:

102.03(1)(a) (a) Where the employee sustains an injury.

102.03(1)(b) (b) Where, at the time of the injury, both the employer and employee are subject to the provisions of this chapter.

102.03(1)(c) (c)

102.03(1)(c)1. 1. Where, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment.

102.03(1)(c)2. 2. Any employee going to and from his or her employment in the ordinary and usual way, while on the premises of the employer, or while in the immediate vicinity of those premises if the injury results from an occurrence on the premises; any employee going between an employer’s designated parking lot and the employer’s work premises while on a direct route and in the ordinary and usual way; any volunteer fire fighter, emergency medical responder, emergency medical services practitioner, rescue squad member, or diving team member while responding to a call for assistance, from the time of the call for assistance to the time of his or her return from responding to that call, including traveling to and from any place to respond to and return from that call, but excluding any deviations for private or personal purposes; or any fire fighter or municipal utility employee responding to a call for assistance outside the limits of his or her city or village, unless that response is in violation of law, is performing service growing out of and incidental to employment.

102.03(1)(c)3. 3. An employee is not performing service growing out of and incidental to his or her employment while going to or from employment in a private or group or employer-sponsored car pool, van pool, commuter bus service, or other ride-sharing program in which the employee participates voluntarily and the sole purpose of which is the mass transportation of employees to and from employment. An employee is not performing service growing out of and incidental to employment while engaging in a program, event, or activity designed to improve the physical well-being of the employee, whether or not the program, event, or activity is located on the employer’s premises, if participation in the program, event, or activity is voluntary and the employee receives no compensation for participation.

102.03(1)(c)4. 4. The premises of the employer include the premises of any other person on whose premises the employee performs service.

102.03(1)(c)5. 5. To enhance the morale and efficiency of public employees in this state and attract qualified personnel to the public service, it is the policy of the state that the benefits of this chapter shall extend and be granted to employees in the service of the state or of any municipality therein on the same basis, in the same manner, under the same conditions, and with like right of recovery as in the case of employees of persons, firms or private corporations. Accordingly, the same considerations, standards, and rules of decision shall apply in all cases in determining whether any employee under this chapter, at the time of the injury, was performing service growing out of and incidental to the employee’s employment. For the purposes of this subsection no differentiation shall be made among any of the classes of employers enumerated in s. 102.04 or of employees enumerated in s. 102.07; and no statutes, ordinances, or administrative regulations otherwise applicable to any employees enumerated in s. 102.07 shall be controlling.

102.03(1)(d) (d) Where the injury is not intentionally self-inflicted.

102.03(1)(e) (e) Where the accident or disease causing injury arises out of the employee’s employment.

102.03(1)(f) (f) Every employee whose employment requires the employee to travel shall be deemed to be performing service growing out of and incidental to the employee’s employment at all times while on a trip, except when engaged in a deviation for a private or personal purpose. Acts reasonably necessary for living or incidental thereto shall not be regarded as such a deviation. Any accident or disease arising out of a hazard of such service shall be deemed to arise out of the employee’s employment.

102.03(1)(g) (g) Members of the state legislature are covered by this chapter when they are engaged in performing their duties as state legislators including:

102.03(1)(g)1. 1. While performing services growing out of and incidental to their function as legislators;

102.03(1)(g)2. 2. While performing their official duties as members of committees or other official bodies created by the legislature;

102.03(1)(g)3. 3. While traveling to and from the state capital to perform their duties as legislators; and

102.03(1)(g)4. 4. While traveling to and from any place to perform services growing out of and incidental to their function as legislators, regardless of where the trip originated, and including acts reasonably necessary for living but excluding any deviations for private or personal purposes except that acts reasonably necessary for living are not deviations.

102.03(2) (2) Where such conditions exist the right to the recovery of compensation under this chapter shall be the exclusive remedy against the employer, any other employee of the same employer and the worker’s compensation insurance carrier. This section does not limit the right of an employee to bring action against any coemployee for an assault intended to cause bodily harm, or against a coemployee for negligent operation of a motor vehicle not owned or leased by the employer, or against a coemployee of the same employer to the extent that there would be liability of a governmental unit to pay judgments against employees under a collective bargaining agreement or a local ordinance.

102.03(3) (3) Providing or failing to provide any safety inspection or safety advisory service incident to a contract for worker’s compensation insurance or to a contract for safety inspections or safety advisory services does not by itself subject an insurer, an employer, an insurance service organization, a union, a union member or any agent or employee of the insurer, employer, insurance service organization or union to liability for damages for an injury resulting from providing or failing to provide the inspection or services.

102.03(4) (4) The right to compensation and the amount of the compensation shall in all cases be determined in accordance with the provisions of law in effect as of the date of the injury except as to employees whose rate of compensation is changed as provided in s. 102.43 (5) (c) or (7) or 102.44 (1) or (5) and employees who are eligible to receive private rehabilitative counseling and rehabilitative training under s. 102.61 (1m) and except as provided in s. 102.555 (12) (b).

102.03(5) (5) If an employee, while working outside the territorial limits of this state, suffers an injury on account of which the employee, or in the event of the employee’s death, his or her dependents, would have been entitled to the benefits provided by this chapter had such injury occurred within this state, such employee, or in the event of the employee’s death resulting from such injury, the dependents of the employee, shall be entitled to the benefits provided by this chapter, if at the time of such injury any of the following applies:

102.03(5)(a) (a) His or her employment is principally localized in this state.

102.03(5)(b) (b) He or she is working under a contract of hire made in this state in employment not principally localized in any state.

102.03(5)(c) (c) He or she is working under a contract made in this state in employment principally localized in another state whose worker’s compensation law is not applicable to that person’s employer.

102.03(5)(d) (d) He or she is working under a contract of hire made in this state for employment outside the United States.

102.03(5)(e) (e) He or she is a Wisconsin law enforcement officer acting under an agreement authorized under s. 175.46.

102.03(6) (6) 

102.03(6)(a) (a) In this subsection, “first responder” means an employee of or volunteer for an employer that provides fire fighting, law enforcement, or medical treatment of COVID-19, and who has regular, direct contact with, or is regularly in close proximity to, patients or other members of the public requiring emergency services, within the scope of the individual’s work for the employer.

102.03(6)(b) (b) For the purposes of benefits under this chapter, where an injury to a first responder is found to be caused by COVID-19 during the public health emergency declared by the governor under s. 323.10 on March 12, 2020, by executive order 72, and ending 30 days after the termination of the order, and where the employee has been exposed to persons with confirmed cases of COVID-19 in the course of employment, the injury is presumed to be caused by the individual’s employment.

102.03(6)(c) (c) An injury claimed under par. (b) must be accompanied by a specific diagnosis by a physician or by a positive COVID-19 test.

102.03(6)(d) (d) An injury claimed under par. (b) may be rebutted by specific evidence that the injury was caused by exposure to COVID-19 outside of the first responder’s work for the employer.

102.03 History History: 1971 c. 148, 307, 324; 1975 c. 147 ss. 15, 54; 1977 c. 195, 272, 418; 1979 c. 278; 1981 c. 92; 1983 a. 98; 1985 a. 83; 1993 a. 49, 370, 490, 492; 2005 a. 172; 2007 a. 185; 2009 a. 206; 2011 a. 183; 2015 a. 180; 2017 a. 12; 2019 a. 185.

102.03 Annotation Committee Note, 1971: The Wisconsin Supreme Court in the case of Halama v. ILHR Department, 48 Wis. 2d 328 (1970), suggested that consideration be given to extending coverage to an employee who is injured while going to or from work on a direct route between two portions of the employer’s premises, i.e., parking lot and work premises. [Bill 371-A]

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, 9 Wis. 2d 555 (1960), 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 of Industry, Labor and Human Relations 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 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. City of 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 third-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 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 percent. 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 four-element test for deciding whether a worker was a loaned or special employee, the first 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 Discussing the doctrines of required travel, dual purpose, personal comfort, and special mission. 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 third-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 sub. (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 Sub. (2) is constitutional. Oliver v. Travelers Insurance Co., 103 Wis. 2d 644, 309 N.W.2d 383 (Ct. App. 1981).

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 When an employee is treated for a work-related injury and incurs an additional injury during the course of treatment, the second injury is deemed as one growing out of, and incidental to, employment in the sense that the employer, by virtue of the Worker’s Compensation Act, becomes liable for the augmented injury. In the absence of other factors, which may or may not be relevant, injury in the course of such treatment subjects the employer only to compensation liability under the Act and not to damages in tort. 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 The “horseplay” rule barred recovery when the decedent jokingly placed his head inside a mold compression machine and accidentally started it. Nigbor v. DILHR, 115 Wis. 2d 606, 340 N.W.2d 918 (Ct. App. 1983).

102.03 Annotation Affirmed. 120 Wis. 2d 375, 355 N.W.2d 532 (1984).

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 third-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 Division, 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 third-party tortfeasor 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 Co., 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 an 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 La Crosse v. WERC, 182 Wis. 2d 15, 513 N.W.2d 579 (1994).

102.03 Annotation A contract “made in this state” under sub. (5) (b) is determined by where the contract 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. Finnell 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 472, 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 is 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. But see Peterson v. Arlington Hospitality Staffing, Inc., 2004 WI App 199, 276 Wis. 2d 746, 689 N.W.2d 61, 03-2811.

102.03 Annotation An employee must prove unusual stress in order to receive benefits for a nervous disability that resulted from emotional stress. Milwaukee County v. LIRC, 205 Wis. 2d 255, 556 N.W.2d 340 (Ct. App. 1996), 95-0541.

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 588 (1997), 94-0171.

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. United Parcel Service, Inc. v. Lust, 208 Wis. 2d 306, 560 N.W.2d 301 (Ct. App. 1997), 96-0137.

102.03 Annotation The exclusive remedy provision in sub. (2) does not bar a complainant whose claim is covered by worker’s compensation from pursuing an employment discrimination claim under the Wisconsin Fair Employment Act, subch. II of ch. 111. Byers v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997), 95-2490.

102.03 Annotation An employee terminated for misrepresenting the employee’s medical condition while receiving disability benefits for a concededly work-related injury continues to be entitled to benefits. Brakebush Brothers, Inc. v. LIRC, 210 Wis. 2d 623, 563 N.W.2d 512 (1997), 95-2586.

102.03 Annotation A work-related injury that plays any role in a second injury is properly considered a substantial factor in the reinjury. 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 561, 573 N.W.2d 856 (Ct. App. 1997), 97-0865.

102.03 Annotation The Seaman, 204 Wis. 157 (1931), loaned employee test is a three-element test that is often miscast because the Seaman court indicated that there are four “vital questions” that must be answered. The three 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 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), 96-2511.