Case Law Update


I.       Supreme Court

Aurora Consolidated Health Care v. LIRC, 2012 WI 49 (Supreme Court, May 11, 2012)

Facts:   The Applicant underwent surgery from when he slipped on ice while making a delivery in 2001.  He also underwent hip replacement surgery in 2006, which was unrelated to work and his previous surgery.  Also, in 2006 he applied for additional workers compensation benefits related to his 2001 injury.  The ALJ appointed his or her own doctor to perform a medical assessment.  The doctor expressed that 100% of the Applicant’s disability was related to the back injuries he sustained in 2001.  LIRC found the Applicant was permanently and totally disabled due to the work injury.  Aurora argues it was denied due process because it was not allowed to cross examine the tie-breaking physician. 

Issue:   Whether the carrier was entitled to cross examine the tie-breaking physician. 

Holding:          The ALJ provided the parties an opportunity to have their own experts review the report and submit rebuttal testimony.  Nothing in the statute allows cross-examination of an IME physician.  


II.      Court of Appeals

City of Appleton Police Department v. LIRC, 2012 WI App 50 (Ct. of Appeals, March 22, 2012)

Facts:   A police officer, Nofzinger, was required to pass a physical fitness test as part of his job.  In preparation for that test, he injured his shoulder while doing pushups at home.  He filed for worker’s compensation benefits, which were denied under Wis. Stat. §102.03(1)(c)(3), which states that a worker is not in the course and scope of employment if he is injured while participating in a physical well-being activities that are voluntary and uncompensated.  The LIRC decided that Nofzinger was in the course and scope of his employment because he was preparing for a mandatory physical test.  The police department and insurer appealed to the circuit court, which upheld the LIRC.  They appealed to the Court of Appeals.

Issue:               Whether the voluntary and uncompensated off-duty preparation for an on-duty mandatory physical test places an employee in the course and scope of employment. 

Holding:          Yes, the LIRC did not unreasonably determine that a worker is in the course and scope of employment if he is injured while preparing off-duty for a mandatory on-duty physical fitness test.  This holding was a fact-specific holding given this case's circumstances.


Dalka v. American Family Mut. Ins. Co., 2011 WI App 90 (Sup. Ct. review declined October 2011)

Facts:   The plaintiff was injured in an auto accident while in the course and scope of his employment, and he received workers’ compensation benefits.  He then sued the at-fault driver.  The insurer joined the litigation as a subrogated plaintiff pursuant to Wis. Stat. §102.29.  Prior to the trial, the defendant offered to settle the case.  When the plaintiff refused settlement, the workers’ compensation insurer moved the court to compel the plaintiff to accept the defendant’s offer, arguing that the circuit court had discretion to order the plaintiff to accept the settlement offer pursuant to a past holding in Bergren v. Staples, 263 Wis. 477, 57 N.W.2d 714 (1953).  The plaintiff argued that Bergren was the opposite set of facts, i.e., where the plaintiff wanted to settle but the insurer refused, and the insurer was forced to accept settlement.  Plaintiff was attempting to argue that it should not work both ways, only that an insurer can be compelled to accept settlement.  The circuit court agreed with the workers’ compensation insurer and compelled the plaintiff to accept the defendant’s settlement offer, which was about $8,500.  The circuit court held this settlement was reasonable in light of the case facts.  Plaintiff appealed to the Court of Appeals, and the Court of Appeals affirmed.

Issue:   Whether the circuit can compel a plaintiff to accept defendant’s settlement offer when the insurer wants to settle and plaintiff does not. 

Holding:  Yes, in a tort action where an injured worker and the insurer are plaintiffs, the workers compensation insurer may move the circuit court to compel the injured worker plaintiff to accept a defendant’s settlement offer.  The court reasoned that when a worker receives workers’ compensation benefits, he waives his right to a jury trial; therefore, upon motion by the insurer, the court can compel the plaintiff to accept the defendant’s settlement offer.

Note: Because the Supreme Court denied review of this Court of Appeals decision, the decision stands as final, published authority.


Martine v. Williams, 2011 WI App 68 (Ct. of Appeals, April 21, 2011)

Facts:   Martine was injured while engaged in horseplay with a co-worker, Williams.  He sought workers’ compensation benefits, which the employer and its insurer denied on the ground that he was not in the course and scope of his employment because he was engaged in horseplay and not work activities.  Martine then settled his workers’ compensation claim on a full and final basis.  He then filed a lawsuit against his co-worker, Williams, alleging that Williams assaulted him.  Williams moved for summary judgment, alleging that the exclusive remedy of Wis. Stat. §102.03(2) precluded Martine from filing a lawsuit against a co-worker.  Martine argued that the exclusive remedy provision did not apply because the question of whether or not he was in the course and scope of his employment at the time of the injury was not answered because the workers’ compensation claim was compromised.  The circuit court agreed with the co-worker, Williams, and Martine appealed to the Court of Appeals.

Issue:   Whether the exclusive remedy provision will apply to bar a civil lawsuit between co-workers after the injured worker settles his or her worker’s compensation claim. 

Holding:  Yes, the exclusive remedy provision will bar a civil lawsuit between co-workers when a worker is injured during horseplay and seeks worker’s compensation benefits, then compromises his claim and then attempts to file suit against a co-worker.


City of Kenosha v. LIRC, 2011 WI APP 51 (Ct. of Appeals, March 16, 2011)

Facts:   The Applicant was a firefighter that was injured playing basketball while on active duty.  The firefighters were encouraged to engage in physical activity while on duty.

LIRC found the claim was compensable.

Issue:   Whether basketball was a “wellness program” and therefore, rendering the injury not compensable. 

Holding:  The well-being activity exclusion was not applicable because the Applicant was being compensated by the City to stand ready at the fire station.  The City argued that the statute requires additional compensation for a wellness program to be considered “compensation” under the exception; the Court found such a narrow reading would produce absurd results.  


Oshkosh Corp v. LIRC, No. 10AP1219 (Ct. of Appeals, Feb. 23, 2011)

Facts:   The employee injured both of his knees as a result of two separate work injuries, necessitating in surgery and permanent restrictions.  The employer brought the employee back to work within his restrictions at 90% of his pre-injury wage.  The employee was later fired for sleeping on the job.

Issue:   Whether an employer is liable for vocational rehabilitation benefits if they offer the employee suitable employment under Wis. Stats. §102.61(1g) and then subsequently fire the employee for just cause. 

Holding:  An injured employee who has been brought back to work following the injury, but is later terminated is still entitled to disability benefits because the employee continues to be limited by the work-related injury.  It is the injury, not the termination, that is the cause of the employee’s economic loss.  The purpose of worker’s compensation disability benefits is to compensate employees who have lost the ability to work, temporarily or permanently, due to a work-related injury, regardless of whether they are good or bad employees.


Lynn v. Stoughton Trailers LLC, WC Claim No. 2009-015770 (Currently before the Court of Appeals)

Facts:   Applicant injured herself while walking from her car parked on the street into work.  She fractured her elbow when she fell on a public sidewalk.  However, because her head fell on the employer’s property, she argues that she was on the premises when injured, therefore making her claim compensable.

Issue:   Whether the Applicant was coming and going or within the course and scope of employment at the time of the fall. 

Holding:  An employee injured upon abutting property can fall into the scope of recovery where an employer exercises full control over property that is not owned by the employer.  Here, the control the employer took upon the property (i.e. snow removal) was required by city ordinances, which was not enough to constitute control.  Further, although the Applicant’s head landed on the employer’s property, the Applicant did not establish that the elbow was injured after her head struck the property.  Thus, it is not compensable.



Schultz v. Dept. of Health & Family Services, Claim No.: 2010-026442 (March 22, 2012)

Facts:   Schultz sustained a left humerus fracture and right knee meniscus tear after falling at work on October 6, 2010.  She fell while walking down the hallway at work while pulling a metal cart with a wire basket containing files.  The hallway floor was tiled over cement.  She could not describe how she fell, only that when she fell, her “right foot did not move like it was supposed to . . . my right foot became stuck and I tripped over something.”  However, she could not identify what she tripped over.  The employer testified that she said her shoe stuck and denied falling because of the cart she was moving.  Her fall was recorded on video surveillance, which showed the cart swaying side-to-side as she was pulling it, although the cart never touched Schultz or touched the wall.  The video showed her right foot splaying to the right, sticking or stopping, and then her falling.  The ALJ held that Schultz’s fall was idiopathic and unexplained.

Issue:   Whether Shultz sustained an injury arising out of her employment. 

Holding:  The ALJ’s decision was reversed.  The Commission found the fall was not idiopathic and was explained by the surveillance footage.  The Commission concluded that the swaying cart affected her balance and the video surveillance showed her right foot stopping on the floor.  The Commission was persuaded that her right foot was stopped due to a misstep because of the swaying cart; hence, the fall was explained by a cause related to employment and deemed compensable.


Bracey v. Milwaukee Transport Services, Inc., Claim No.: 2010-018481 (February 28, 2012)

Facts:   Bracey was a bus driver for the employer.  He was injured in an accident occurring on January 31, 2010, when he chased a passenger off the bus that spat on him.  The incident was recorded on videotape.  The passenger attempted to board the bus with an expired transfer ticket, and Bracey denied entry and asked the passenger to leave the bus.  A verbal discussion ensued, and the passenger called Bracey a “bald black bitch.”  Bracey took no response.  The passenger began to leave the bus and threw a fake punch.  Bracey laughed in response.  Standing at the doorway, the passenger then spit on Bracey.  The passenger then turned and ran away from the bus.  Bracey got out of his bus seat and chased the passenger.  About three to four yards out of the bus, Bracey slipped on ice and suffered an acute left Achilles tendon rupture and an acute right quadriceps tendon rupture in the fall, both surgically repaired.

The employer had a policy which indicated that “Operators are not to get out of their seat for any reasons other than to defend themselves from physical harm or serious injury.”  Bracey admitted he knew this rule.  The insurer argued that Bracey was not entitled to worker’s compensation benefits because he engaged in a deviation from employment which did not serve the employer’s business.

Issue:   Whether Bracey engaged in a deviation which bars recovery. 

Holding:  No, Bracey did not engage in a deviation which would bar recovery of worker’s compensation benefits.  While the Commission agreed that he did deviate from his employment in violation of an employer directive when he left the bus to chase the passenger, Bracey’s deviation was held to be impulsive (did not respond until being spit upon), momentary (was only gone for 30 seconds), and was insubstantial (occurred only 3 to 4 yards away from the bus).  Accordingly, Bracey sustained a compensable injury arising out of his employment while performing services growing out of and incidental to employment.

Dissent:  Commissioner McCallum noted that those deviations which are impulsive, momentary, and insubstantial will still afford workers’ compensation coverage.  However, she believed that Bracey’s actions fell far outside of being impulsive, momentary and insubstantial.  She stated: “Not only did Bracey abandon his responsibility to the employer and its property, in violation of the rules, by exiting the bus, he also abandoned his responsibility to the rider on the bus.  Bracey’s actions were not necessary to protect the employer’s interests or to protect his own safety.  The passenger was already running away . . . His intention was not to step away for a moment, but instead to pursue this individual until he caught him.”


Balaeva v. Aurora Health Care Metro Inc., et al, Claim No.: 2007-031880 (February 28, 2012)

Facts:   Balaeva fell at work, sustaining a serious injury and undergoing a craniotomy.  She could not remember how or why she fell.  She recalled beginning to return to the conference room, having used a bathroom on a higher level up three stairs from the conference room.  One inference was that she fell or tripped while coming down the stairs.  However, the conference room instructor testified that Balaeva complained of gastric distress and had twice left the conference before she fell.  A co-attendee also testified that the fall happened a few seconds after she left the conference room.  A videotape showed a considerable distance between the conference room and the bathroom.  The ALJ held this was an idiopathic, non-compensable injury.

Issue:   Whether a fall on the way to or from the bathroom was a non-compensable idiopathic or unexplained fall, or whether it is a compensable fall under the “positional risk” or “zone of danger analysis.” 

Holding:  This fall is truly idiopathic and unexplained.  The Commission held that the evidence on record was insufficient to support a finding that Balaeva fell or tripped on the stairs themselves and thus was in a “zone of danger” at the time of the fall.


Brawn v. County of Washington, Claim No.: 2010-009193 (January 30, 2012)

Facts:   Brawn was a deputy sheriff for Washington County since 1990.  He testified that he encountered life and death situations on a daily basis, including performing CPR on a child that died in a car accident, responding to suicide calls after the suicide was complete, and being on-scene when a man shot himself after a fight with a girlfriend.  For this particular claim, on May 8, 2008, Brawn and his partner were checking on a person, Marc Rosario, who was acting irrationally.  Rosario was transported to the hospital for psychiatric evaluation.  While performing a search of Rosario’s wallet, a third deputy handed Brawn a card from Rosario’s wallet to make sure it was not a concealed pocket knife.  Brawn determined it was not.  Another item was identified by Brawn as a hunting bandage.  Seeing no threats, the wallet was returned to Rosario.  Rosario was released from his hold and was to be transported to Winnebago Mental Health Center by Brawn and his partner.  While handcuffed in the back of the squad car, Rosario removed the hunting bandage, which was really a mini scalpel, and cut open an artery in his neck, killing himself.  Brawn attempted to render first aid, becoming covered in Rosario’s blood.  Rosario died at the scene.

Brawn claimed post-traumatic stress, anxiety and agoraphobia, directly caused by Rosario’s suicide.  Dr. Langmade performed a psychological IME, and agreed with the diagnosis; however, Dr. Langmade stated that Brawn did not sustain unusual stress for similarly-situated employees, in accordance with School District No. 1 standard.  The ALJ agreed with the treating psychologist that this particular set of facts surrounding this suicide was unusual stress for Brawn, and thus, was a compensable non-traumatic mental injury.

Issue:   Whether Brawn sustained a compensable injury while performing services growing out of and incidental to his employment. 

Holding:  LIRC is required to determine whether the duties of the job subject the claimant to greater stress than those who are similarly situated.  A retired chief from West Bend testified on behalf of Brawn that this situation was “unusual” stress for a deputy, because Rosario took his life while in Brawn’s own custody, and as a result of Brawn’s failure to identify the mini scalpel during the wallet search.  The Commission credited the testimony of Brawn, the retired chief deputy and the treating psychologist to determine that Brawn sustained a compensable injury arising out of and incidental to his employment.  The Commission reasoned it was an event “unexpected and unforeseen” and “so out of the ordinary from the countless emotional strains and differences” that a deputy sheriff encounters on a daily basis.


Gantt v. Marten Transport Ltd, WC Claim No. 2007-000778 (January 31, 2011)

Facts:  The Applicant injured her ankle in 2006 while working as a truck driver.  After treatment she went to work for a different employer.  In 2008, she resumed treatment after she started experiencing pain from walking at her new place of employment.  Expert testimony expressed that the Applicant’s diabetes and weight contributed to the re-injury, but that the current injuries were a direct cause of the prior injury.

Issue:  Whether the symptoms and disability in 2008 were caused by the 2006 work injury. 

Holding:  Re-injury is compensable if it is caused by the weakened condition of a worker or if the work related injury made the worker more vulnerable to re-injury.  While the Applicant’s work at her subsequent employer caused an aggravation of her condition, she would not have suffered the same injury to the same extent had she not previously suffered the injury in 2006.  Therefore, the employer at time of the 2006 injury must pay TTD.