Francis G. Graef v. Continental Indemnity CompanyFrancis G. Graef v. Continental Indemnity Company
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.
NOTICE: This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
FILED MAY 20, 2021
Sheila T. Reiff Clerk of Supreme Court
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.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 JILL J.
¶2 In 2017, Graef filed a tort action in circuit court against Continental Indemnity
¶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 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
¶7 Continental moved for summary judgment, asserting that Graef brought his claim in the wrong forum because the Act 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.”
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
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
¶11 Today, worker‘s compensation benefits are primarily governed by Wisconsin Stat. ch. 102, the Act, which is administered by DWD. See
- the employee sustains an injury;
- 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.
¶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.
¶13 Pursuant to
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
¶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
¶16 Continental asserts that Graef‘s allegations, if true, satisfy the conditions of liability under
¶17 As a reminder, the conditions of liability under
- “the employee sustains an injury“;
- “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“;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
¶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 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.”
¶20 At oral argument, Graef maintained that he could not satisfy the conditions of liability under
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 be brought in tort. The legislature promptly responded by enacting
¶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 exclusive-remedy provision by conditioning its application on Continental‘s concession that Graef would prevail under the Act.
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.
¶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
- Where the employee sustains an injury.
- Where, at the time of the injury, both the employer and employee are subject to the provisions of this chapter.
- 1. Where, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment. . . . .
- Where the injury is not intentionally self-inflicted.
- Where the accident or disease causing injury arises out of the employee‘s employment.”
Under
¶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 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
¶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.
¶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
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.
¶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 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 boilerplate 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 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.”
¶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 recovery of compensation” under
¶38 As the text of
* * *
¶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, 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