Dec. 7, 2016 – Jill, a guardian ad litem, meets with a client at the client’s home. She hitches a ride back to her office with a county social worker, Jake, who was meeting one of his clients who lives nearby. While going through an intersection, the car is hit by another vehicle. Jill and Jake are both hurt.

The other car and driver leave the scene, but police officers respond to the accident, take a report, and administer a Breathalyzer to Jake “just in case.” Jill’s and Jake’s injuries are serious; they have medical bills and can’t work for one month.

How would you advise Jill or Jake: can either or both get worker’s compensation benefits?

Look for your answers in the Worker’s Compensation Handbook, newly revised from State Bar of Wisconsin PINNACLE^®.

Not All People Who Work Are ‘Employees’

The eighth edition of the Worker’s Compensation Handbook, once again written by John Neal and Joe Danas, makes clear that merely being a person who works does not necessarily entitle someone to receive worker’s compensation.

Most workers are employees under Wis. Stat. chapter 102, the worker’s compensation law. But many are not. Perhaps the broadest category of individuals not considered to be employees are independent contractors. What matters is not the label; that is, a person is not an independent contractor only because she considers herself to be one, or because the entity that pays her calls her a contractor.

Instead, there is a statutory test: individuals who meet each of nine requirements are independent contractors, and will not be treated as employees under Wis. Stat. chapter 102.

You and Jill will need to look at her agreement with the county to determine if she is an employee or an independent contractor. Jake is almost certainly an employee under the law. See Wis. Stat. section 102.04 (the state and each local governmental unit within the state are employers).

Driving for Work Can Be Considered Employment

If Jake had slipped and fallen in his office while reaching to remove items from a high shelf, there would be no question that his injury was compensable. Such an injury occurred while he was “performing service growing out of or incidental to his  . . .  employment,” i.e., while he was “in the course of” employment and while on the employer’s premises.

But, in the example, Jake was injured while driving a vehicle on a public street, not on the employer’s premises. As Chapter 3 of the Worker’s Compensation Handbook explains, certain travel (although not regular commuting) is covered by the law. “An employee whose employment requires travel is deemed to be performing service in the course of employment at all times while on a trip, except when engaged in a deviation for a purely private and personal purpose.” Wis. Stat. § 102.03(1)(f).

So, if Jake is required to visit individuals at their homes, injuries incurred during travel to and from their homes are compensable.

Fault Might Matter

Worker’s compensation is generally considered to be a no-fault system. But there are exceptions.

Remember that Breathalyzer test? Jake’s result was not 0.0. It turns out that he had a beer at lunch the day of the accident. Jill and all other witnesses have stated that they believe the other driver was at fault and that Jake’s driving did not contribute to the accident. Jake’s employer might attempt to prove otherwise, however.

Why? Authors Neal and Danas explain that Wisconsin law was recently amended to provide that “no compensation or death benefits will be paid if the employee violates the employer’s policy concerning drug or alcohol use and is injured, and the policy violation is causal to the employee’s injury.”

So you will need to find out if the county has a policy forbidding the consumption of alcohol during the workday and, if it does, be prepared to argue that the consumption of the one beer did not contribute in any way to the accident.

Procedure Matters, Too

Few things are worse than a case that’s a winner on the facts but a loser because the lawyer misses deadlines or serves the wrong agency. The revised Worker’s Compensation Handbook incorporates the many procedural changes made to Wis. Stat. chapter 102 by the 2015 budget bill (Act 55) and 2015 Wisconsin Act 180, including the transfer of certain adjudicatory functions to the Wisconsin Department of Administration.

Whether you practice worker’s compensation law regularly or take only the occasional case, you’ll benefit from the authors’ expert guidance through the procedural and substantive maze of bringing and defending worker’s compensation claims.

How to Order

The Worker’s Compensation Handbook is available both in print and online via Books UnBound, the State Bar’s interactive online library. The print book costs $219 for members and $269 for nonmembers.

Subscribers to the Bar’s automatic supplementation service will receive future updates at a discount off the regular price. Annual subscriptions to Books UnBound start at $159 per title (single-user price, call for full-library and law-firm pricing).

For more information, or to place an order, visit the WisBar Marketplace or call the State Bar at (800) 728-7788 or (608) 257-3838.