102.01(2)(g)2.
2. In the case of disease, the date of disability or, if that date occurs after the cessation of all employment that contributed to the disability, the last day of work for the last employer whose employment caused disability.
102.01(2)(gm)
(gm) "Wisconsin compensation rating bureau" means the bureau provided for in
s. 626.06.
102.01 Annotation
In occupational disease claim, examiner may find date of injury to be other than last day of work. Royal-Globe Ins. Co. v. DILHR, 82 W (2d) 90, 260 NW (2d) 670.
102.01 Annotation
"Temporary help agency" under (2) (f) is not restricted to employers in business of placing employees with other employers. Gansch v. Nekoosa Papers, Inc., 158 W (2d) 743, 463 NW (2d) 682 (1990).
102.01 Annotation
Intentionally inflicted injury, unexpected and unforeseen by injured party, is accident under (2) (c). Jenson v. Employers Mut. Cas. Co., 161 W (2d) 253, 468 NW (2d) 1 (1991).
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)(b)
(b) Where, at the time of the injury, both the employer and employe are subject to the provisions of this chapter.
102.03(1)(c)1.1. Where, at the time of the injury, the employe is performing service growing out of and incidental to his or her employment.
102.03(1)(c)2.
2. Any employe 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 thereof if the injury results from an occurrence on the premises, any employe 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 or any fire fighter or municipal utility employe 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 employe 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 employe participates voluntarily and the sole purpose of which is the mass transportation of employes to and from employment. An employe is not performing service growing out of and incidental to employment while engaging in a program designed to improve the physical well-being of the employe, whether or not the program is located on the employer's premises, if participation in the program is voluntary and the employe 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 employe performs service.
102.03(1)(c)5.
5. To enhance the morale and efficiency of public employes 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 employes 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 employes of persons, firms or private corporations. Accordingly, the same considerations, standards, and rules of decision shall apply in all cases in determining whether any employe under this chapter, at the time of the injury, was performing service growing out of and incidental to the employe'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 employes enumerated in
s. 102.07; and no statutes, ordinances, or administrative regulations otherwise applicable to any employes 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 employe's employment.
102.03(1)(f)
(f) Every employe whose employment requires the employe to travel shall be deemed to be performing service growing out of and incidental to the employe'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 employe'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 employe of the same employer and the worker's compensation insurance carrier. This section does not limit the right of an employe to bring action against any coemploye for an assault intended to cause bodily harm, or against a coemploye for negligent operation of a motor vehicle not owned or leased by the employer, or against a coemploye of the same employer to the extent that there would be liability of a governmental unit to pay judgments against employes 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 employe 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 employes whose rate of compensation is changed as provided in
ss. 102.43 (7) and
102.44 (1) and
(5) and employes who are eligible to receive private rehabilitative counseling and rehabilitative training under
s. 102.61 (1m).
102.03(5)
(5) If an employe, while working outside the territorial limits of this state, suffers an injury on account of which the employe, or in the event of the employe'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 employe, or in the event of the employe's death resulting from such injury, the dependents of the employe, 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 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 employe 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
In a proceeding on a claim for death benefits of an office worker and receptionist caused by multiple stab wounds inflicted by an unknown assailant upon the employe at the close of her working day while she alone remained in the office portion of a factory building which had been vacated by all other factory and office employes, the ILHR Department correctly found 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 Mfg., Inc. v. ILHR Dept. 45 W (2d) 563, 173 NW (2d) 690.
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).
