Wisconsin: Employee’s Tort Action Against Comp Insurer Barred by Exclusive Remedy

The Supreme Court of Wisconsin, in a split decision, held that an injured employee’s civil action against his employer’s workers’ compensation insurer for damages arising out of its refusal to continue to pay for his antidepressant medication—he contended the insurer’s action led to injuries he sustained in a self-inflicted gunshot incident—was barred by the exclusive remedy provisions of the Wisconsin Workers’ Compensation Act. The majority of the court held that the employee’s gunshot injury flowed naturally from his original work-related injury. Accordingly, there could be no recovery in tort. According to the majority, the employee’s allegations presented an unbroken chain of events beginning with his November 1, 2012 injury, and culminating in his attempted suicide almost three years later. The majority also stressed that in spite of the fact that the employee’s self-inflicted injury was intentional, it could still be covered under the Act if, without the workplace injury, there would have been no attempted suicide. Moreover, the employee could not have it both ways. That is to say, he could not avail himself of the liability created by the Act and avoid its exclusive remedy provision.

Thomas A. Robinson, J.D., the co-Editor-in-Chief and Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law(LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Graef v. Continental Indem. Co., 2021 WI 45, 2021 Disc. LEXIS 66 (May 20, 2021)

See generally Larson’s Workers’ Compensation Law, § 114.02.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

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