Francis G. Graef v. Continental Indemnity Company

2021 WI 45SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP1782
COMPLETE TITLE: Francis G. Graef,
Plaintiff-Respondent-Petitioner,
v.
Continental Indemnity Company,
Defendant-Appellant,
ABC Insurance Company,
Defendant.
------------------------------------------------
Francis G. Graef,
Plaintiff-Respondent-Petitioner,
v.
Applied Underwriters, Inc.,
Defendant-Appellant,
ABC Insurance Company,
Defendant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 391 Wis. 2d 494,942 N.W.2d 492(2020 – unpublished)
OPINION FILED: May 20, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 19, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Marinette
JUDGE: David G. Miron & James A. Morrison
JUSTICES:
KAROFSKY, J., delivered the majority opinion of the Court, in
which ZIEGLER, C.J., ANN WALSH BRADLEY, ROGGENSACK, DALLET, and
HAGEDORN, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a
dissenting opinion.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs
filed by George Burnett and Conway, Olejniczak & Jerry, S.C.,
Green Bay. There was an oral argument by George Burnett.
For the defendant-appellant, there was a brief filed by
Dustin T. Woehl and Kasdorf Lewis & Swietlik, SC, Milwaukee.
There was an oral argument by Dustin T. Woehl.
2
2021 WI 45NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP1782
(L.C. Nos. 2017CV73 & 2018CV127)
STATE OF WISCONSIN : IN SUPREME COURT
Francis G. Graef,
Plaintiff-Respondent-Petitioner,
v.
Continental Indemnity Company,
Defendant-Appellant,
ABC Insurance Company,
Defendant.
FILED
---------------------------------------------- MAY 20, 2021
Francis G. Graef, Sheila T. Reiff
Clerk of Supreme Court
Plaintiff-Respondent-Petitioner,
v.
Applied Underwriters, Inc.,
Defendant-Appellant,
ABC Insurance Company,
Defendant.
KAROFSKY, J., delivered the majority opinion of the Court, in
which ZIEGLER, C.J., ANN WALSH BRADLEY, ROGGENSACK, DALLET, and
HAGEDORN, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a
dissenting opinion.
No. 2018AP1782
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 JILL J. KAROFSKY, J. In this case, we must determine
whether the exclusive-remedy provision of the Wisconsin Worker's
Compensation Act (the "Act"), Wis. Stat. § 102.03(2) (2017-18),1
bars the tort action filed by the petitioner, Francis Graef.
¶2 In 2017, Graef filed a tort action in circuit court
against Continental Indemnity Company ("Continental"), his
employer's worker's compensation insurance carrier, alleging
that his self-inflicted gunshot wound was the result of
Continental's negligence. More specifically, Graef alleged that
Continental was negligent in failing to approve payment for a
refill of his antidepressant medication——prescribed after a
workplace injury——and as result of that negligence, Graef
attempted suicide. Continental moved for summary judgment,
arguing that Wis. Stat. § 102.03(2) barred Graef's tort action
because the Act provides the exclusive remedy for his injuries.
The circuit court concluded that the exclusive-remedy provision
of the Act did not bar Graef's action.2 The court of appeals
reversed, concluding that the Act provides Graef's exclusive
remedy and that to recover for his injuries, Graef must file a
All subsequent references to the Wisconsin Statutes are to
1
the 2017-18 version unless otherwise indicated.
The Honorable James A. Morrison of the Marinette County
2
Circuit Court presided.
2
No. 2018AP1782
worker's compensation claim with the Department of Workforce
Development (DWD).3
¶3 We affirm the decision of the court of appeals,
conclude that the Act provides Graef's exclusive remedy for the
injuries alleged in his complaint, and remand the cause to the
circuit court with directions to grant summary judgment to
Continental on Graef's negligence claim.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶4 On November 1, 2012, Graef was working in the
livestock yard at Equity Livestock when a bull gored him,
causing both physical injuries and depression. A doctor
prescribed the antidepressant duloxetine to treat Graef's
depression, and Equity Livestock's worker's compensation
insurance carrier, Continental, bore the responsibility of
authorizing and paying for the medication.
¶5 On May 12, 2015, Graef went to his pharmacy to refill
the duloxetine prescription. Continental initially rejected the
pharmacy's request for payment, but then approved the request
after the pharmacy called Continental and requested payment a
second time. On June 23, 2015, Graef returned to the pharmacy
for another refill of duloxetine. Continental once again denied
the pharmacy's initial request for payment, and Graef left the
pharmacy without his medication because he could not afford to
3 Graef v. Cont'l Indem. Co., No. 2018AP1782, unpublished
slip op. (Wis. Ct. App. Feb. 4, 2020).
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No. 2018AP1782
purchase the medication on his own.4 Less than two months later,
on August 9, 2015, Graef attempted suicide with a firearm and
suffered a gunshot injury.
¶6 Two years later, Graef filed a tort action in circuit
court, alleging that Continental was "negligent in failing to
continue to authorize and pay for" the June 2015 duloxetine
refill.5 Graef additionally claimed that Continental "by
Wisconsin Statute [ch.] 102 was responsible for paying and
authorizing worker's compensation medical, prescription and
indemnity payments to [Graef] for injuries sustained on November
1, 2012." According to Graef, the self-inflicted gunshot injury
"would not have occurred had [Continental] approved and paid for
the prescription." Graef sought to recover compensatory damages
associated with his suicide attempt, including "past and future
medical expenses, personal injuries, pain, suffering, [and]
disability."
¶7 Continental moved for summary judgment, asserting that
Graef brought his claim in the wrong forum because the Act
4 Continental asserts that there was no denial of medication
because it subsequently approved payment for the duloxetine but
Graef failed to return to the pharmacy to pick up the
medication. However, as Continental recognizes, we accept all
of the allegations in Graef's complaint as true for purposes of
our review. Cohn ex rel. Shindell v. Apogee, Inc.,
225 Wis. 2d 815, 817, 593 N.W.2d 921 (Ct. App. 1999).
5 It is undisputed that Graef never filed a worker's
compensation claim with DWD regarding Continental's alleged
failure to authorize his prescription refill. Pursuant to Wis.
Stat. § 102.17(4), the statute of limitations for filing such a
claim is 12 years from the date of injury, which for Graef's
injuries has yet to expire.
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No. 2018AP1782
provides his exclusive remedy. The circuit court denied
Continental's motion, refusing to apply the exclusive-remedy
provision because Continental would not concede that Graef's
claim would prevail if filed as a worker's compensation claim.6
The court of appeals reversed the circuit court and remanded
with directions to grant summary judgment to Continental.7 Graef
petitioned this court for review, which we granted.
II. STANDARD OF REVIEW
¶8 "We review a grant of summary judgment independently,
applying the same methodology as the circuit court." Pinter v.
Village of Stetsonville, 2019 WI 74, ¶26, 387 Wis. 2d 475,
929 N.W.2d 547. Summary judgment shall be granted where the
record demonstrates "that there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law." Wis. Stat. § 802.08(2). The
facts on appeal are undisputed. The question before us is
6 Prior to orally denying Continental's motion, the circuit
court granted Graef's pending motion to amend his complaint to
add allegations against Applied Underwriters, an entity that
Graef alleged had assisted Continental in processing Graef's
claims. Prior to the circuit court entering an order denying
Continental's motion, Applied Underwriters filed a motion to
dismiss the amended complaint, which the circuit court never
addressed. As the court of appeals noted, on remand, the
circuit court may also address Applied Underwriters' pending
motion to dismiss. See Graef, No. 2018AP1782, at ¶39.
7 We must briefly correct an error in the court of appeals'
decision. The court of appeals wrote: "Second, the alleged
wrongful conduct in Cohn, harassment, supported the recognized
common-law tort of wrongful death." Id., ¶34 (emphasis added).
However, wrongful death has been a statutory claim since 1857.
See § 1, ch. 71, Laws of 1857.
5
No. 2018AP1782
whether the Act's exclusive-remedy provision prohibits Graef
from filing this tort action in circuit court, which is a
question of law that we review independently. See Ehr v. West
Bend Mut. Ins. Co., 2018 WI App 14, ¶7, 380 Wis. 2d 138,
908 N.W.2d 486.
III. ANALYSIS
¶9 We first provide some background regarding Wisconsin's
worker's compensation laws and then outline the relevant
provisions. Next, we examine Graef's pleadings and determine
whether the facts in the complaint, as alleged, meet the
conditions of liability under Wis. Stat. § 102.03(1) and
consequently, whether the Act provides Graef's exclusive remedy.
Finally, we address Graef's remaining arguments that: (1) we
should create an exception for the negligent denial of worker's
compensation claims; and (2) Continental improperly failed to
concede that Graef's worker's compensation claim would succeed.
A. Wisconsin's Worker's Compensation Laws
¶10 In 1911, Wisconsin became the first state to enact a
broad, constitutionally valid worker's compensation system.
Byers v. LIRC, 208 Wis. 2d 388, 395, 561 N.W.2d 678 (1997);
17 Thomas M. Domer & Charles F. Domer, Wisconsin Practice
Series: Workers Compensation Law § 2:1 (2017-18). Worker's
compensation laws are considered "the grand bargain" "under
which workers, in exchange for compensation for work-related
injuries regardless of fault, . . . relinquish the right to sue
employers and . . . accept smaller but more certain recoveries
than might be available in a tort action." County of La Crosse
6
No. 2018AP1782
v. WERC, 182 Wis. 2d 15, 30, 513 N.W.2d 579 (1994). In exchange
for receiving immunity from tort liability, employers must
provide benefits regardless of fault. Guse v. A.O. Smith Corp.,
260 Wis. 403, 406-07, 51 N.W.2d 24 (1952). In other words, the
worker's compensation laws "are basically economic regulations
by which the legislature, as a matter of public policy, has
balanced competing societal interests." Mulder v. Acme-
Cleveland Corp., 95 Wis. 2d 173, 180, 290 N.W.2d 275 (1978); see
Jenkins v. Sabourin, 104 Wis. 2d 309, 322, 311 N.W.2d 600 (1981)
(describing the worker's compensation provisions as "the result
of decades of debate prior to [their] passage" and a
representation of the "delicate balancing of the interests
represented in our industrial society").
¶11 Today, worker's compensation benefits are primarily
governed by Wisconsin Stat. ch. 102, the Act, which is
administered by DWD. See Wis. Stat. § 102.14(1); Mireles v.
LIRC, 2000 WI 96, ¶6, 237 Wis. 2d 69, 613 N.W.2d 875. Wisconsin
Stat. § 102.03 sets forth the basic requirements for a
compensable injury under the Act. Section 102.03(1) provides a
list of conditions that impose liability under the Act against
an "employer, any other employee of the same employer and the
worker's compensation insurance carrier." § 102.03(2).
Generally, an employer and an employer's insurance carrier's
obligations to pay worker's compensation accrue under the Act
when all of the following conditions are present:
 the employee sustains an injury;
7
No. 2018AP1782
 at the time of the injury, both the employer and the
employee are subject to the Act;
 at the time of the injury, the employee is performing
service growing out of and incidental to his or her
employment;
 the injury is not intentionally self-inflicted; and
 the accident or disease causing injury arises out of
the employment.
Wis. Stat. § 102.03(1)(a)-(e).8
¶12 The Act also covers a second or subsequent injury that
stems from the first work-related injury, as case law has made
clear: "[W]hen 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 [or
insurance carrier], by virtue of the Act, becomes liable for the
augmented injury." Jenkins, 104 Wis. 2d at 316. In other
words, employers and worker's compensation insurance carriers
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.
8Wisconsin Stat. § 102.03(1)(f) and (g) contain additional
provisions that apply only to employees who travel in the course
of their employment and to members of the state legislature.
Neither of those provisions is applicable to Graef.
8
No. 2018AP1782
¶13 Pursuant to Wis. Stat. § 102.03(2), when the
conditions of liability in § 102.03(1) are satisfied, the Act
provides the exclusive remedy: "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."9 We have referred to this exclusive-remedy provision
as "an integral feature of the compromise between the interest
of the employer and the interest of the worker." Mulder,
95 Wis. 2d at 181. Recognizing the "grand bargain," we have
emphasized that courts must "exercise care to avoid upsetting
the balance of interests achieved by the [Act]." Weiss v. City
of Milwaukee, 208 Wis. 2d 95, 102, 559 N.W.2d 588 (1997). With
these provisions in mind, we turn to Graef's allegations against
Continental.
B. The Conditions of Liability in Wis. Stat. § 102.03(1) Are
Met and the Act Provides Graef's Exclusive Remedy.
¶14 To determine if the Act provides Graef's exclusive
remedy, barring his circuit court action, we must look to his
complaint and determine whether, as alleged, the conditions of
worker's compensation liability are satisfied under Wis. Stat.
§ 102.03(1).
9See Walstrom v. Gallagher Bassett Servs., Inc., 2000 WI
App 247, ¶¶12-13, 239 Wis. 2d 473, 620 N.W.2d 223 (rejecting the
argument that "different rules should be applied to worker's
compensation carriers than to employers" under the exclusive-
remedy provision).
9
No. 2018AP1782
¶15 Graef's complaint presents an unbroken chain of events
starting with his November 1, 2012 injury and ending with his
August 9, 2015 suicide attempt. According to the complaint,
Graef was injured in the course of his employment on November 1,
2012. As a result of the workplace injury, Graef suffered from
depression which his doctors treated with duloxetine, a
prescription antidepressant that Continental paid for on Graef's
behalf. Continental had a duty to pay for the prescription
under the Act, specifically Wis. Stat. § 102.42(1), because it
was Equity Livestock's worker's compensation insurance carrier.
When Continental failed to approve payment for the duloxetine
refill on June 23, 2015, Graef left the pharmacy without the
medication because he was unable to pay for it himself. Without
the duloxetine, Graef's depression relapsed and he attempted
suicide by gunshot on August 9, 2015. Graef suffered injuries
as a result of the self-inflicted gunshot. Graef's complaint
establishes an unbroken causal chain from his workplace injury
to his suicide attempt.
¶16 Continental asserts that Graef's allegations, if true,
satisfy the conditions of liability under Wis. Stat.
§ 102.03(1), and therefore his claim must be filed as a worker's
compensation claim. We agree.
¶17 As a reminder, the conditions of liability under Wis.
Stat. § 102.03(1)(a)-(e) are:
 "the employee sustains an injury";
 "at the time of the injury, both the employer and the
employee are subject to" the Act;
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No. 2018AP1782
 "at the time of the injury, the employee is performing
service growing out of and incidental to his or her
employment";10
 "the injury is not intentionally self-inflicted";
 "the accident or disease causing injury arises out of
the employee's employment."
¶18 When we look at the allegations in Graef's complaint,
we conclude that, if proven, they would satisfy the conditions
of worker's compensation liability under Wis. Stat. § 102.03(1).
As a result, his claim must be filed under the Act. We begin by
considering the initial injury outlined in the complaint——the
workplace injury on November 1, 2012. There is no dispute that
at the time of the initial injury, Graef and his employer were
subject to the provisions of the Act and that Graef was working
in the livestock yard incidental to his employment. Further,
there is no dispute that the goring injury was not self-
inflicted, and that the injury occurred at work. Since these
allegations, if proven, would satisfy § 102.03(1)(a)-(e), the
exclusive-remedy provision dictates that Graef's exclusive
remedy is under the Act.
¶19 Next we turn to Graef's second injury. Our case law
supports the conclusion that, as pled, Graef's second injury,
the self-inflicted gunshot wound, grew out of and was incidental
to his original workplace injury, the resulting depression, and
10 Wisconsin Stat. § 102.03(1)(c) has five subdivisions, but
subd. 1 is the one applicable here.
11
No. 2018AP1782
the relapse caused by the discontinuation of the prescribed
duloxetine. In other words, as alleged, the second injury is a
direct result of the original workplace accident and,
consequently, must be brought as a worker's compensation claim.
In Jenkins, we reasoned that "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 Act, becomes liable for the augmented
injury." Jenkins, 104 Wis. 2d at 316. Like the employee in
Jenkins, Graef suffered a second injury (the self-inflicted
gunshot wound) that grew out of his original workplace injury,
because Continental failed to authorize and pay for the
medication. It is important to note that even though Graef's
gunshot wound was intentionally self-inflicted, that injury is
covered under the Act if "without the [workplace] injury, there
would have been no suicide [or attempted suicide]," because it
is viewed as "merely an act, not a cause, intervening between
the injury and the death [or attempted suicide], and that it was
part of an unbroken chain of events from the injury to the death
[or attempted suicide]." Brenne v. LIRC, 38 Wis. 2d 84, 94,
156 N.W.2d 497 (1968). As Continental conceded at oral
argument, "[i]f [Graef] can show that he [tried to] kill[]
himself because of depression caused by the original workplace
injury, the mere fact that it was self-inflicted will not be a
bar to workplace compensation."
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No. 2018AP1782
¶20 At oral argument, Graef maintained that he could not
satisfy the conditions of liability under Wis. Stat. § 102.03(1)
because there was a break in the causal chain when Continental
failed to authorize and pay for his prescription refill on June
23, 2015. As a result, according to Graef, at the time he
suffered the self-inflicted gunshot wound, he was not performing
service growing out of and incidental to his employment. This
argument fails. If Graef's depression was not caused by or
related to the workplace injury, then Continental had no duty to
authorize and pay for the medication to treat it and no
responsibility for the effects of the untreated depression.
Continental's duty was undisputedly created by, and existed
exclusively because of, the Act. Graef's own complaint
acknowledges that Continental's duty to pay stems from the Act
when it states that Continental's duty was established "by
Wisconsin Statute 102," i.e., the Act. Paradoxically, Graef
wishes to avail himself of the liability created by the Act
while avoiding the "smaller but more certain recoveries" the Act
provides. County of La Crosse, 182 Wis. 2d at 30. Permitting
Graef to pursue this action in tort would enable him to take
advantage of the "grand bargain" while foreclosing Continental
from doing the same.
¶21 To summarize, because Graef's tort action consists of
allegations that, if proven, would satisfy the conditions for
worker's compensation liability, the exclusive-remedy provision
applies and the Act provides Graef's exclusive remedy. See
Jenson v. Emps. Mut. Cas. Co., 161 Wis. 2d 253, 263,
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No. 2018AP1782
468 N.W.2d 1 (1991) (reasoning that the plaintiff's "common law
action is barred by the exclusivity provisions if she in all
other respects is entitled to recovery under the Act").
C. Graef's Additional Arguments
¶22 Graef makes two additional arguments that we deem
unpersuasive. First, he asserts that this court should create
an exception for the negligent denial of worker's compensation
claims which, under Graef's theory, the Act would not cover. We
are unpersuaded by Graef's argument because creating such an
exception and removing the negligent denial of worker's
compensation benefits from the purview of the exclusive-remedy
provision of the Act would "upset[] the balance of interests
achieved by the [Act]," Weiss, 208 Wis. 2d at 102, and run
contrary to this court's decision in Coleman v. Am. Universal
Ins. Co., 86 Wis. 2d 615, 273 N.W.2d 220 (1979), superseded by
statute on other grounds, Aslakson v. Gallagher Bassett Servs.,
Inc., 2007 WI 39, ¶75, 300 Wis. 2d 92, 729 N.W.2d 712, and the
legislative action taken in response to that decision.
¶23 In Coleman, a plaintiff alleged that his worker's
compensation insurer and its adjusting company acted
"arbitrarily, willfully and in bad faith" and "with malice or
oppression" in arbitrarily cutting off payment of his worker's
compensation claim multiple times. Coleman, 86 Wis. 2d at 618.
We concluded that the allegation of bad faith was separate and
distinct from the original job-related injury and thus was not
addressed by the Act. Id. at 623. In doing so, we created a
limited exception allowing for bad-faith denial of benefits to
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No. 2018AP1782
be brought in tort. The legislature promptly responded by
enacting Wis. Stat. § 102.18(1)(bp), which specifically and
explicitly provided an exclusive remedy for bad faith claims
against employers and their insurers under the Act. With this
statute, the legislature indicated that any denial-of-benefits
claim, whether negligent or in bad faith, must be brought as a
worker's compensation claim. As the court of appeals aptly
noted in this case, "it would be incongruent to conclude that
our legislature intended for a claim that a worker's
compensation insurance carrier acted in bad faith to be pursued
exclusively under the Act while at the same time allowing a
claim alleging negligent conduct to proceed in civil court."
Graef v. Cont'l Indem. Co., No. 2018AP1782, unpublished slip
op., ¶24 (Wis. Ct. App. Feb. 4, 2020).
¶24 Second, Graef argues that Continental is "trying to
have it both ways" since Continental will not concede that
Graef's worker's compensation claim will succeed, an issue that
also concerned the circuit court. The circuit court was
troubled by Continental's refusal to concede that Graef's claim
would succeed as a worker's compensation case——"you're telling
me that you can take a totally different position in [front of
DWD]"——and insisted that Continental "can't have it both ways."
This argument fails because Continental is entitled to argue to
the circuit court that Graef is in the wrong forum and that,
even if he were in the right forum, his claim would fail. The
circuit court improperly imposed a prerequisite to the
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No. 2018AP1782
exclusive-remedy provision by conditioning its application on
Continental's concession that Graef would prevail under the Act.
¶25 At oral argument, Continental's counsel clarified its
position. When asked: "Is it your position that Graef has no
claim whatsoever against your client?" Continental's counsel
responded:
Our position is that he has a claim that he can
pursue. The way he pled it, it must be pursued in
worker's compensation. That doesn't mean we have to
concede that he will prevail. Nobody is guaranteed to
prevail on a claim if they can't prove the elements.
What we will say is: if he proves what he put in his
complaint, he will win in worker's
compensation . . . . But that's putting the cart
before the horse. He has to prove his claims.
When pressed about the language in its brief that "Graef
deserves to lose" his worker's compensation claim, Continental's
counsel withdrew that language and said, "I don't know if he
deserves to lose. We deserve to argue that he deserves to
lose." In other words, Continental was simply reserving its
right to litigate in the proper forum and dispute the underlying
factual allegations, which it is entitled to do.
IV. CONCLUSION
¶26 We affirm the decision of the court of appeals and
conclude that the Act provides Graef's exclusive remedy for the
injuries alleged in his complaint. Therefore, we remand the
case to the circuit court with directions to grant summary
judgment to Continental on Graef's negligence claim.
By the Court.—The decision of the court of appeals is
affirmed.
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No. 2018AP1782.rgb
¶27 REBECCA GRASSL BRADLEY, J. (dissenting). The
majority dismisses Francis G. Graef's tort claim prematurely
without affording him an opportunity to discover or develop
facts which may establish his right to assert a claim outside of
Wisconsin's worker's compensation law ("the Act"). Pursuant to
Wis. Stat. § 102.03(1), liability under the Act "shall exist"
"only where the following conditions concur:
(a) Where the employee sustains an injury.
(b) Where, at the time of the injury, both the employer
and employee are subject to the provisions of this
chapter.
(c)1. Where, at the time of the injury, the employee is
performing service growing out of and incidental to his or
her employment.
. . . .
(d) Where the injury is not intentionally self-inflicted.
(e) Where the accident or disease causing injury arises
out of the employee's employment."
Under § 102.03(2), "[w]here 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."
(Emphasis added.)
¶28 The plain text of the statute establishes an exclusive
remedy against the insurer under the Act only when the employee
possesses the "right" to recover——that is, when the employee has
1
No. 2018AP1782.rgb
a "legal guarantee" of recovery where the statutory conditions
are met. See Right, Black's Law Dictionary 1581 (11th ed. 2019)
("Something that is due to a person by just claim [or] legal
guarantee"). Under the plain text of the statute, the exclusive
remedy is not triggered by the mere possibility of recovery, as
the majority suggests. Majority op., ¶24 ("Continental is
entitled to argue to the circuit court that Graef is in the
wrong forum and that, even if he were in the right forum, his
claim would fail."). The statute, however, designates worker's
compensation law as the exclusive remedy only if there is a
"right to the recovery of compensation under" the Act. Wis.
Stat. § 102.03(2). The majority interprets § 102.03(2) to
establish worker's compensation law as the exclusive avenue for
any relief but that is not what the statute says. Keup v. DHFS,
2004 WI 16, ¶17, 269 Wis. 2d 59, 675 N.W.2d 755 ("When the
statutory language is clear and unambiguous, we may not look
beyond the plain words of the statute in question to ascertain
its meaning."); Bank Mut. v. S.J. Boyer Const., Inc., 2010 WI
74, ¶24, 326 Wis. 2d 521, 785 N.W.2d 462 ("[W]e apply the plain
words of the statute and ordinarily proceed no further.").
Although an employee has the right to recover under the Act
where the statutory conditions for worker's compensation exist,
in the absence of such a right to recover, the Act presents no
impediment to claims based on other theories of law. The
employee must, of course, prove his claim under any alternative
theory of liability against the employer or insurer.
2
No. 2018AP1782.rgb
¶29 The majority concludes that "[t]he circuit court
improperly imposed a prerequisite to the exclusive-remedy
provision by conditioning its application on Continental's
concession that Graef would prevail under the Act." Majority
op., ¶24. The majority errs. The plain language of the statute
supports the circuit court's interpretation. The prerequisite
on which the circuit court relied exists in the statutory text
itself. Only if the employee has "the right to the recovery of
compensation under" worker's compensation law does the "recovery
of compensation under" Chapter 102 constitute "the exclusive
remedy" against the worker's compensation insurance carrier.
Wis. Stat. § 102.03(2) (emphasis added).
¶30 The circuit court concluded that Continental was
trying to "have it both ways." Continental maintained in
Graef's tort case that worker's compensation law afforded the
exclusive remedy, but would not concede that Graef had the right
to recover under the Act; in fact, Continental contended that
Graef "deserves to lose" a worker's compensation claim. The
circuit court properly denied Continental's motion to dismiss1
1Although Continental brought a motion for summary
judgment, its motion was based on the complaint alone and
nothing beyond the pleadings. Summary judgment is appropriate
if the pleadings and evidence "show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Wis. Stat.
§ 802.08(2). In substance, Continental brought a motion to
dismiss for failure to state a claim upon which relief can be
granted. Wis. Stat. § 802.06(2)(a)6. As Continental stated in
its motion, "[t]he basis of this motion . . . is that the
Plaintiff's claims are barred by the Wisconsin Worker's
Compensation exclusive remedy provision as set forth in Wis.
Stat. § 102.03(2) and case law. Summary judgment is warranted
because, under the facts as alleged and pleaded by the
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because the insurer "can't have it both ways. It either is
worker's comp[ensation] or it's not" and Graef "has to have a
forum someplace." Because Continental refused to concede that
Graef would recover under worker's compensation law, the Act
could not constitute the exclusive remedy.
¶31 This does not necessarily mean that Graef (or any
other employee) would actually recover under tort or any other
theory of liability; however, it does mean that Chapter 102 does
not foreclose bringing a claim outside of worker's compensation
law. Unless Graef has the "right" to recover worker's
compensation benefits, the Act does not furnish his exclusive
remedy. This court has previously interpreted the text of the
Act accordingly. In Jenson v. Emps. Mut. Cas. Co., 161 Wis. 2d
253, 468 N.W.2d 1 (1991), this court concluded that "Jenson's
common law action is barred by the exclusivity provisions if she
in all other respects is entitled to recovery under the Act."
Id. at 263 (emphasis added). The same holds true for Graef. At
this stage of the litigation, it remains uncertain whether Graef
is entitled to any recovery under the Act. Accordingly, Graef's
tort claim should survive unless and until his right to recovery
under the Act is established.
¶32 The majority certainly suggests that Graef will be
able to recover under worker's compensation law. It concludes
that the suicide attempt was a "direct result of the original
Plaintiff, the case must be dismissed as a matter of law."
Before this court, Continental reiterated its position that
Graef's "complaint fails to state an actionable claim and must
be dismissed."
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workplace accident." Majority op., ¶19. Wisconsin courts have
repeatedly held that the Act covers any injuries resulting from
a suicide attempt so long as "without the [original workplace]
injury, there would have been no suicide." Cohn ex rel.
Shindell v. Apogee, Inc., 225 Wis. 2d 815, 820, 593 N.W.2d 921(Ct. App. 1999); see also Brenne v. DILHR, 38 Wis. 2d 84, 92-94,
156 N.W.2d 497 (1968) ("While the act of suicide may be an
independent intervening cause in some cases, it is certainly not
so in those cases where the incontrovertible evidence shows
that, without the injury, there would have been no suicide; that
the suicide was merely an act, not a cause, intervening between
the injury and the death, and that it was part of an unbroken
chain of events from the injury to the death.").
¶33 The majority further concludes that there was no break
in the causal chain of events between the 2012 work injury and
the 2015 suicide attempt. Majority op., ¶15. "It is boiler-
plate law that any medical injury as the consequence of
treatment of a work-related injury relates back to the original
compensable event and the consequences of medical treatment,
whether the result of negligence or not, are the liability of
the employer under the Act." Jenkins v. Sabourin, 104 Wis. 2d
309, 315, 311 N.W.2d 600 (1981) (citing Stiger v. Indus. Comm'n,
220 Wis. 653, 265 N.W. 678 (1936) and Lakeside Bridge & Steel
Co. v. Pugh, 206 Wis. 62, 238 N.W. 872 (1931)). "It is beyond
doubt at this late date in the history of our workers
compensation law that injury during the course of medical
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attention to a covered industrial injury is in itself
compensable under the Act." Id. at 316.
¶34 Continental, however, has consistently contended Graef
is not entitled to recover under worker's compensation law,
thereby precluding operation of the exclusive remedy provision
of the Act. Rather than seeking recovery under worker's
compensation law, Graef instead brought a civil tort claim,
asserting a break in the chain of events between his original
workplace injury and his suicide attempt, and contending that
the injuries he suffered as a result of the attempted suicide
stem from Continental's independent, intervening, and allegedly
negligent failure to approve payment of Graef's prescribed
medication to treat his depression. The majority improperly
denies Graef the opportunity to prove his claim in civil court.
¶35 A complaint should not be dismissed "[i]f the facts"
asserted therein "reveal an apparent right to recover under any
legal theory" in which case the facts "are sufficient as a cause
of action." Cattau v. Nat'l Ins. Serv. of Wisconsin, Inc., 2019
WI 46, ¶4, 386 Wis. 2d 515, 926 N.W.2d 756 (citing Strid v.
Converse, 111 Wis. 2d 418, 423, 331 N.W.2d 350 (1983)). "If
proof of the well-pleaded facts in a complaint would satisfy
each element of a cause of action, then the complaint has stated
a claim upon which relief may be granted." Id., ¶6. In his
complaint, Graef alleges that he was unable to take his
prescribed depression medication "for approximately three months
because insurance payment was denied and he could not afford the
medication without insurance" and that his "self-inflicted
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gunshot injury . . . would not have occurred had [Continental]
approved and paid for the prescription." Graef contends he
"suffered a new physical and emotional injury as a consequence
of" Continental's negligence. Among his claims for damages,
Graef seeks recovery of compensatory damages for his medical
expenses, personal injuries, pain, suffering, and disability.
¶36 Proof of the facts Graef alleges in his complaint
requires discovery, which Continental failed to provide in full
prior to the hearing on its motion to dismiss. After the
circuit court denied Continental's motion, it addressed the
parties' discovery dispute. At that time, Continental
reiterated its objection to producing its claim file, including
"all the decisions and all the internal correspondence going
back and forth about the claims, handling what was going on in
this case" but the circuit court ordered Continental to produce
the "whole file," subject to any claims of privilege. The
majority's decision, however, directs the circuit court to
dismiss Graef's claim, thereby precluding him from obtaining
full discovery and denying him the opportunity to prove the
facts asserted in his complaint.
¶37 By prematurely dismissing Graef's tort claim, the
majority purports to preserve Continental's "right to litigate
in the proper forum"——according to the majority, the DWD, under
worker's compensation law——as well as Continental's right to
"dispute the underlying factual allegations." Majority op.,
¶25. However, if Continental prevails before the DWD under
worker's compensation law, then Graef has no "right to the
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recovery of compensation" under Wis. Stat. § 102.03(2), without
which the Act cannot, as a matter of simple logic, provide the
"exclusive remedy." If the Act does not provide the exclusive
remedy, then as a matter of law there is no statutory bar to
claims outside of the Act, including Graef's tort claim.
¶38 As the text of Wis. Stat. § 102.03(2) plainly
provides, absent a right to recover compensation under Chapter
102, worker's compensation law does not provide the exclusive
remedy against the insurer. I would reverse the court of
appeals decision and remand the matter to the circuit court to
give Graef an opportunity to develop his case. Unless and until
Graef has the "right" to recover under worker's compensation
law, the law affords him the opportunity to prove his tort
claim. Because the majority prematurely closes the courthouse
doors to Francis G. Graef, I respectfully dissent.
* * *
¶39 Aside from the merits, it is important to draw
attention to footnote 7 of the majority opinion, in which the
majority mentions the court of appeals' mistake in referring to
wrongful death as a "common law tort" but fails to withdraw that
language from the court of appeals' opinion. This could confuse
the bench and bar, which may rely on or cite the court of
appeals opinion for this misstatement of the law. The majority
should have withdrawn the errant language from the court of
appeals opinion. This court not only has the authority but the
duty to do so, which it has exercised on many occasions. See,
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e.g., In re Samuel J.H., 2013 WI 68, ¶5, 349 Wis. 2d 202, 833
N.W.2d 109.2
¶40 This responsibility applies not only to published
court of appeals opinions but unpublished opinions as well.
Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997),
referred to published opinions because at the time of that
decision, unpublished opinions could not be cited "except to
support a claim of claim preclusion, issue preclusion, or the
law of the case." Wis. Stat. § (Rule) 809.23 (1997-98). That
rule changed in 2009 when this court modified Rule 809.23 to
allow citation to authored but unpublished court of appeals
opinions for "persuasive value." Wis. Stat. § (Rule)
809.23(3)(b); Supreme Court Order, No. 08-02, In the matter of
amendment of Wis. Stat. § (Rule) 809.23(3) regarding citation to
unpublished opinions (Jan. 6, 2009). This court must withdraw
erroneous language from court of appeals unpublished opinions
because the bar relies upon and cites to them.
2 State ex rel. Zignego v. WEC, 2021 WI 32, ¶12 n.7, ___
Wis. 2d ___, 957 N.W.2d 208; Xcel Energy Servs., Inc. v. LIRC,
2013 WI 64, ¶2, 349 Wis. 2d 234, 833 N.W.2d 665; State ex rel.
Town of Delavan v. Cir. Ct. for Walworth Cnty., 167 Wis. 2d 719,
727, 482 N.W.2d 899 (1992); Hatleberg v. Norwest Bank Wis., 2005
WI 109, ¶28, 283 Wis. 2d 234, 700 N.W.2d 15; Burbank Grease
Servs., LLC v. Sokolowski, 2006 WI 103, ¶33, 294 Wis. 2d 274,
717 N.W.2d 781; State v. Reed, 2018 WI 109, ¶106, 384
Wis. 2d 469, 920 N.W.2d 56 (Ziegler, J., concurring); State v.
Harris, 2010 WI 79, ¶34 n.12, 326 Wis. 2d 685, 786 N.W.2d 409.
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