On May 20, 2021, the Wisconsin Supreme Court limited the tort
claims an employee may bring based on alleged conduct that occurred
between injuries covered under the state’s workers’
compensation law. The opinion in Graef v. Continental Indemnity
Company may support employer arguments to limit
employment-related litigation claims brought by employees because
worker’s compensation provides an exclusive remedy to employees
injured in the course of employment.
Background
On November 1, 2012, Francis Graef was gored by a bull in a
livestock yard at his workplace. As a result of his physical
injury, Graef developed depression. His employer and his
employer’s worker’s compensation insurer, Continental
Indemnity Company, did not contest that the physical injury was
covered by Wisconsin’s Worker’s Compensation Act. On June
23, 2015, however, Continental rejected a pharmacy’s request
for payment when Graef sought a refill of his antidepressant
prescription. Graef was unable to pay for the antidepressant
himself. On August 9, 2015, he attempted suicide and sustained a
gunshot injury.
Graef subsequently filed a tort claim in circuit court that
alleged Continental had negligently refused to authorize payment
for the antidepressant medication refill. Graef claimed that
Continental’s legal duty was established by its responsibility
to pay for the prescription under the state worker’s
compensation act. In response to the employee’s tort action,
the insurance carrier moved for summary judgment at the outset of
the case.
The Court’s Analysis
The Wisconsin Supreme Court held that Wisconsin’s
Worker’s Compensation Act precluded Graef’s tort claim
against Continental because it provided his exclusive remedy. The
court explained that under the act,
have a duty to pay for a subsequent injury that naturally flows
from a covered workplace injury, including any injury caused or
worsened by the treatment, or lack of treatment, of the original
work-related injury.
The court then expounded that when these conditions are met, the
Worker’s Compensation Act provides the employee’s
“exclusive remedy,” as provided by the statute. In
analyzing Graef’s allegations, the court stated that he
“present[ed] an unbroken chain of events” beginning with
his November 1, 2012, injury and concluding with his suicide
attempt on August 9, 2015. According to the court, the gunshot
wounds he suffered as a result of that suicide attempt were “a
direct result of the original workplace accident” and subject
to coverage by the act.
The court rejected Graef’s argument that Continental had
broken the “causal chain” when it rejected payment of the
prescription refill on June 23, 2015, because, the court reasoned,
Continental’s duty to Graef arose out of the fact that his
depression was caused by his workplace injury. The court also
concluded that Continental did not have to concede Graef would
succeed in bringing his worker’s compensation claim in order
for the court to dismiss his tort claim. Rather, Continental was
entitled to litigate in the proper forum where Graef would have to
prove his allegations that Continental was obligated to pay for his
antidepressant and that its failure to do so had led to injuries
sustained during his suicide attempt, for which Continental
therefore would also be responsible.
Key Takeaways
The Graef case reminds Wisconsin employers to consider
raising, as a defense, that an employee’s tort claims are
foreclosed by the exclusive remedy of the Worker’s Compensation
Act and must be brought in the worker’s compensation forum when
the claims are based on conduct arguably flowing from an injury
compensable by the worker’s compensation system. This decision
may be particularly significant to employers facing tort claims
that an employee contracted COVID-19 at work. Employers may want to
consider whether such tort claims should have been brought under
the Worker’s Compensation Act. As implied by the Wisconsin
Supreme Court in Graef, an employer may find the greater
likelihood, but lesser expense, of recovery by an employee under
the act to be a more attractive forum.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
