May 26, 2021 – The Wisconsin Supreme Court has ruled that an employee who attempted suicide cannot file a tort action for negligence against his employer’s insurer because the state worker’s compensation law provides the exclusive remedy.
Francis Graef filed a lawsuit against his employer’s worker’s compensation insurance carrier, Continental Indemnity Company, alleging that Continental was negligent because it failed to approve payment for refills of his anti-depressant medication.
Graef began taking the medication after a workplace injury. This negligence, Graef argued, caused the injuries he sustained with a self-inflicted gunshot wound. Continental argued Graef’s lawsuit was barred by the Worker’s Compensation Act.
The circuit court ruled that Graef’s lawsuit was not barred, but an appeals court reversed. Recently, the Wisconsin Supreme Court ruled (6-1) affirmed the appeals court. In Graef v. Continental Indemnity Company, 2021 WI 45 (May 20, 2021), a majority ruled that the Worker’s Compensation Act barred Graef’s negligence claim.
In 2012, Graef was gored by a bull while working in a livestock yard at Equity Livestock. He sustained physical injuries and depression from the accident, and his physician prescribed anti-depressant medications.
In 2015, Graef tried to refill his medication, but Continental denied payment. Graef left the pharmacy without the medication because he could not afford to pay out-of-pocket. Less then two months later, Graef attempted suicide with a firearm.
In 2017, he filed the lawsuit, claiming Continental was negligent for failing to authorize payment for his anti-depression medications. He sought compensatory damages, past and future medical expenses, pain and suffering, and other damages.
The state supreme court: 1) ruled that Graef’s negligence claims were barred because he must proceed under the worker’s compensation law; 2) declined to create an exception for “the negligent denial of worker’s compensation claims”; and 3) Continental was not required to concede that Graef’s worker’s compensation claim would prevail.
The circuit court had declined to grant summary judgment to Continental and bar Graef’s negligence claim, in part because the company would not concede that Graef would prevail if he sought relief as a worker’s compensation claim.
The majority opinion, by Justice Rebecca Dallet, noted that “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.”
In Graef’s case, his depression diagnosis was allegedly tied to his initial workplace injury, and that satisfied the conditions of liability under the worker’s compensation statute, Wis. Stat. section 102.03(1).
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
“Graef's complaint establishes an unbroken causal chain from his workplace injury to his suicide attempt,” Justice Dallet wrote.
“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.”
Graef argued that there should be an exception when there’s a “negligent denial of worker’s compensation claims,” in his case, denial of anti-depression medications.
But the court noted that the worker’s compensation law provides the proper forum when a claimant alleges a denial of worker’s compensation benefits in bad faith.
When the legislature enacted Wis. Stat. section 102.18(1)(bp), the majority noted, “the legislature indicated that any denial-of-benefits claim, whether negligent or in bad faith, must be brought as a worker's compensation claim.”
Graef also argued that he must have a tort remedy because Continental would not concede that his worker’s compensation claim would prevail.
“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,” Justice Dallet wrote.
“The 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.”
Justice Rebecca Bradley was the lone dissenter, concluding the majority prematurely dismissed Graef’s tort claim “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 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 a ‘legal guarantee’ of recovery where the statutory conditions are met,” she wrote.
“Under the plain text of the statute, the exclusive remedy is not triggered by the mere possibility of recovery, as the majority suggests.”