*1 Plаintiff, T.J. Jenkins, Badger Company, Insurance Mutual Sabourin, Carl Defendants-Appellants-Pe- corporation, domestic titioners, Defendant-Respondent. Corporation, & Stratton
Supreme Court September 9, 1981. No. 80-624. 3, 1981. Decided November 600.) (Also reported in 311 N.W.2d *2 petitioners by For the there Her- were briefs Ellis R. bon, McLaughlin Robert M. Koch and Herbon & of Mil- waukee, argument by and oral R. Ellis Herbon. defendant-respondent
For the there was a brief Zarwell, Elwin Bunde, Armstrong J. Peter W. Thomas Quarles Brady Milwaukee, argument and & of and oral by Mr. Bunde.
HEFFERNAN, J. This a review of a decision appeals1 the court of which affirmed the order of Feb ruary 20, 1980, of the Circuit Court for Milwaukee County, BURNS, JR., Judge, GEORGE A. Circuit dis missing the defendants, cross-claim of the Carl Sabourin Badger Company, Mutual Insurance because it failed upon to state a granted. claim which relief could be posed The issue on this review is whether the exclu- sivity-of-remedy provision of the Workers 102, Stats.) (ch. precludes Act a common-law cause employee, action an who has compensable sustained a 1Unpublished opinion, December 1980. negligently providing
injury, against for employed injury by persons for that medical attention plant. purpose at the for that remedy exclusivity that conclude We third-party tortfeasor’s bars workers negligence employer in action contribution for providing to an medical attention the course acting Briggs Stratton, employee. & pro- statutory duty an pursuance of its injured employee, Jenkins. attention its vide medical negligently under so is irrelevant or not it did Whether Compensation Act. We conclude the Workers Act acted its under construed, liberally pleading herein, even as allege capa- other functioned fails to *3 city. Accordingly, of we affirm the decision of the court appeals upholding the circuit court’s dismissal claim. was plaintiff Jenkins that the
The facts show Briggs 1976, the result 31, while on March at at work employee, Sabourin. Sa- prank of fellow Carl of a a startling box, toy Jenkins from a bourin released a snake rack, injuring causing against his him fall a steel to ribs, shoulder, spine. Stats.,2 a 102.29, to sec. Jenkins commenced
Pursuant against third-party household action and his Sabourin Badgеr Company. insurer, Mutual He also Insurance paid joined as a nominal defendant because any subrogated ordinarily and would to 102.29, original injury, 31, 1976, At the time of the March sec. Stats., permitted third-party against co-employee. a a action Sec. 2, 102.03(2) has, however, Laws been amended ch. sec. amendment, exceptions applicable of 1977. That certain not with here, third-party against co-employee. a bars common-law action a Gerger Campbell, 282, 284, See 2d Wis. 297 N.W.2d
recovery against third-party pursuant a to tortfeasor 102.29(1). Badger sec. Sabourin and cross-claimed against Briggs, alleging a fail- there was ordinary ure to providing exercise care in course that, medical attention to Jenkins and to were Jenkins insurer, they recover from Sabourin and his are entitled recovery against Briggs. to language over The relevant of the cross-claim is that: “(10) any injury If . . . Plaintiff sustained . . .said damages by Briggs were caused & or contributed to Stratton in that & Stratton or- failed exercise dinary providing care medical attention to the Plain- .
tiff. . .”
On the of Briggs, motion the trial court dismissed the ground cross-claim on the it failed to state a claim granted. argument for which relief could be Briggs, adopted court, was the trial was that any injury aggravation injury result of medical injury 31, 1976, treatment of the work on March original injury attributable to the —that original any aggravation but thereof was com- pensable by Compensa- under the Workers tion Act. The trial court that, therefore, concluded liability was “immune from all contribution any injuries arising Defendants for out of the employment, Plaintiff’s including aggravation such allegedly as a negligent result of *4 medical treatment.” That conclusion of the trial court upon provision was based previously of the statute cited, 102.03(2), sec. provides Stats. 1975. It part: in recovery “. . compensation . the of pursuant to this chapter remedy shall be against the exclusive the em- ployer and the worker’s insurance car- rier.” of been a motion to because When there has dismiss can be the failure to state a claim for relief granted, court, ap- this the trial court and the must allegations court, rely upon pellate can of Nevertheless, language pleading of claim itself. liberally in favor of a conclusion should be construed if that a cause of action claim has been stated such reasonably possible.3 conclusion is language interpretation of of the reasonable One Briggs ordi- failed exercise would be that cross-claim nary provided attention no medical care because is, however, im- injury. following It his work Jenkins by disputed proceedings, it is not plicit in these nursing Briggs services for provided some Liberally plant. employees within the walls of its its in- construing complaint, it is the conclude that we com- and his insurance tent the defendant Sabourin given allege T.J. pany to the medical attention comport nursing with by Briggs did staff Jenkins ordinary in- required care and that some standard of ordinary by jury lack care. caused pleadings we Beyond liberal construction go. been annexed to which have The affidavits cannot appended to the assertions the record and briefs negligence Briggs’ respect are to the nature facts On be considered. part and cаnnot not a record merely Badger as asserted Sabourin and The claim toto stated: any injury March If in fact sustained “10. Plaintiff damages damages alleges, 31, 1976, were as he resultant said with & & or contributed Stratton caused ordinary providing medical care in to exercise failed Stratton held liable If Defendants are the Plaintiff. these attention to Plaintiff, they or con- to indemnification will be entitled to the according'to Briggs & Stratton law.” from tribution
314 241, 249, Lamb, derdonk v. 2d Wis. N.W.2d (1977), and cases cited therein. disregard
Accordingly, -we them and confine our atten- tion to what we deem to be reasonable construction of pleadings Briggs supplied the defendant’s medical —that plaintiff negligently. attention to the and that it did so Surprisingly, pleading allega- perhaps, contains no original injuries aggravated tion that the work were Briggs. the treatment received from Following the trial court’s dismissal of the cross-claim Badger Mutual, of employee, Sabourin and Jenkins, Badger. settled his case with Sabourin and pursuant Jenkins’ action was then dismissed to that set- tlement, Badger appealed Sabourin and Mutual against Briggs dismissal оf their cross-claim to the court appeals. of appeals’ The court of decision affirmed that Badger order. petitioned Sabourin and Mutual for re- view of that granted, decision. Review was and on re- view we affirm the appeals. decision of the court of alleges complaint
Jenkins' he was of Briggs. Badger alleges The answer of Sabourin and co-employee Thus, Sabourin was the of Jenkins. it is not disputed relationship the initial of Jenkins and one nor there is any dispute juncture at paid that Jenkins was work- compensation by Briggs. er’s question The crucial relationship what was the Jenkins allegedly negligent at the time medical attention.
Sabourin contends that no relationship protected by the Workers Act at existed the time of the attention, and, hence, furnishing act ser- vices was not in employment course and was un- related provisions to the Therefore, of the Act. it is argued, exclusivity provision inapplicable because *6 employer pro- simply within was not then an the visions the statute. argument Badger simplistic is the of Sabourin аnd that, allegedly medical
one at the time of the deficient attention, performing no was service whatsoever Jenkins any growing for of or incidental nor service out stating argument, employment. In their the de- to his (c) paraphrase provisions 102.03(1) fendants the sec. argument 1, Thus, any injury it oc- Stats. is their negligent casioned medical attention under whereby for an circumstances the conditions liability Act under Workers were and, met, inapplicable injury, Act was to hence, respect any injury during in the course of treatment, compensation exclusivity workers remedy triggered. was not boilerplate is, however, It is assertion
This
incorrect.
consequence
injury
of treat
law
original
injury
relates back to
ment of work-related
consequences
compensable
treat
of medical
event
not,
negligence
are
ment,
the lia
whether the result of
bility
employer
Stiger v. Industrial
the Act.
under
;
Comm.,
653,
(1936)
220
While there be circumstances where the treatment separate original injury, is from is work that, nevertheless, clear com- liable for pensation payments subsequent for the sustained treating compensable injury. course of It equally clear that under such circumstances the Wiscon- *7 law, sin as a policy, imposes matter of when it this lia- bility upon employer, employer clothes the with im- munity responsibility. from tort He can be liable compensation payments, may augmented by which be aggravation resulting reason of the from the treatment. It that, is law established Wisconsin when an injury treated for a work-related and incurs an addi- injury during tional treatment, the course of the second growing of, is deemed as one out and incidental to, employment sense that the vir- —in Act, tue of augmented injury. becomes liable for the In factors, the absence may of other may not relevant, be in the course of such treatment sub- jects employer only liability damages not to in tort. however, is,
There another factor —at in the least rea- soning Badger of Sabourin and in this case dic- —that Briggs tates the conclusion that was an en- immunity They Briggs, titled to from tort. contend that gave it when medical attention its Jenkins, stepped out its role as an and as- provider services, sumed the role of a of medical entity which is entitled immunity to no under the Work- Compensation ers Act.
Combined with the assertion above—that discussed performing company Jenkins was not services for receiving argument when he was treatment —is the factually Briggs providing “was medical services to the plaintiff completely separate apart any employ- from Asserting however, ment proposition, function.” petitioners argue does not make it so. But that at Briggs doing rate what was no than what different private have op- would been done medical clinic not by Briggs erated and that such a clinic could have been immunity sued and no under the Workers Act could have been asserted. Because the function— providing same, urged medical services —is it the result of suit must be the same. Yet if cannot be sued in function, tort for its medical we could not independent clinic, conclude that an therefore, could not Hence, apparent be. it is at once that whether func- may controlling tion is the same not be the At factor. very begs least, question that, to conclude be- party cause a provider denominates a medical employer, Briggs rather than an is not an immunity clothed with under the Act. It con- arguments ceded from the record and the of counsel that Briggs furnished Jenkins, medical services to but that *8 ipso conclusion does not ing exclude from hav- facto capacity furnished those in services its as an em- ployer Compensation under the Workers Act. alleges Briggs “provid that cross-claim medi- [ed]
cal attention no to Plaintiff.” There is assertion employment relationship terminated, had nor is there anything pleading in the to indicate that role of provider Briggs’ with was inconsistent role gleaned employer. pleading All that can be from the Briggs, pro- is that who was an has in addition vided medical attention. The most this can mean is that first, in
Briggs performed in more than one function — second, in relationship and, employer-employee the usual hap- giving employee to an after medical attention inj ury. pening of a covered work 72.80, p. Larson, Compensation, 2A Workmen’s sec. 14-112, points called the “dual out that what has been liability capacity” in of an em- result doctrine ployer (i.e., for tort the removal to Compensation Act an exclusive shield of the Workers remedy) occupies capacity if the “a second ,an independent imposed . . . on him as em- of those ployer.” (Emphasis supplied.) emphasizes: He thing will not be found “One clear. Duаl merely ments or divisions that their depart- because the has a number of separate perhaps quite are operations.” 72.80, p. 14-115. functions Sec. Thus, upon appellant the fact which relies —that department allegedly negligent had a department different function than which Jenkins trigger sustained his to tort not sufficient —is liability. question The basic is whether the function department the medical was undertaken because of employment obligation relationship and the discharged way workers could be in this purpose department whether the was to furnish apart medical attention aside and from the responsibilities inj employee. to an ured question answering
To ask the is tantamount it. allegation There is no that Jenkins would have been by Briggs treated at all prior were it not for the work- related status. What evolved as the result furnishing of treatment was but another facet of the employer relationship under the Workers Act. There no pleadings anyone intimation work-injured other than could be treated at *9 Briggs nursing station. Under the Com- Workers pensation obligated provide Act an is treatment, obligation but there is to treat no anyone else; reveals, Briggs and insofar as the record provider did not hold itself out as a of health care ser- general public, employees vices to the or even to not in- j in employment. ured the course of covered analysis, conformity
In with Larson difference significant. significant function is itself What obligations whether or not the function creates by would exist absent that inure virtue of the em- those ployer’s states, status. As Larson a situation where ship- (stevedore employer the dual existed seaworthy owner), duty furnishing an owner a although shipowner vessel would exist em- had no ployees. Larson, 72.80, Here, p. sec. 14-117. obligation generated duty by or medi- served the in-house subsisting injured employ- cal treatment was the one to obligation to, ees. There was no evidence of or the holding of, anyone employees. out medical services to but obligation work-injured employee to a of the medi- function, performed cal-service whether by another, of, wholly from, part stemmed and was a function and is mandated the Workers Compensation Act. Duprey Shane,
This
is unlike
situation
(1952),
Cal. 2d
While relied petitioners, case, pointed out, as here been involved chiropractor obligations general who public. had Moreover, that case has not been followed even in Cali- fornia in circumstances similar to that of the instant case. 499,
In Dixon v. Co., App. Ford Motor 53 Cal. 3d Rptr. (1975), Cal. an was treated at Undisputably, plant. aid station within the the treat- given ordinary ment failed to care. reach the standard of Therein, injury, the court held that treatment of the al- negligent treatment, employ- beit was an incident of the distinguished relationship. Duprey, ment It because the chiropractor Duprey, in public, who was on call to the “ responded way in the same he ‘would have assumed ” he in had been called on the case.’ At 507. The Cali- Duprey been, fornia court made it clear that had not be, beyond Hence, would precise extended its facts. jurisdiction which first enunciated the doctrine respect to medical care did recovery not allow tort in a nearly case identical to this one. only jurisdiction permitted
The
which has
tort recov-
ery
Caterpillar
under similar
facts is
McCormick
Co.,
App.
Tractor
82 Ill.
3d
We consider dissent case the more to be persuasive. dissenting judge reasoned, “Caterpillar providing consequence medical services but as a employer.” of its status as At 83. That is situa- tion in the instant case—a crucial which the distinction Caterpillar majority aside, relying brushed instead on what doctor-patient relationship. it characterized as the give weight why Because it failed to reason *11 Caterpillar provided physicians the service on its staff discharge duty —the of its as an to a work- injured employee majority opinion consider to —we be erroneous. Caterpillar part majority conclusion based its apparent incongruity permitting tort recov- a
ery negligent private physician, from a not from an but incongruity, physician. in-house It to us that seems this be, part if parcel compromise such it is of the constitutes Act. an Workers When injured negligence by is fellow em- of a ployee recover; or of his hе can he can also but recover these same he benefits when cannot scheduled prove negligence negli- or when it is clear no there was gence. equally This is true where there is additional injury by aggravation compensable injury. The of a may ag- compensation payments worker recover for the although by gravation, subsequent medical treatment physician negligence; an is if outside free and even physician negligent subsequent is is lia- consequences ble Act for under the of that medical malpractice. dual-capacity
If applied doctrine were to petitioner seeks, necessary prove it would be in all negligent, cases that the treatment was in-house for the contention that the not in of the course employment by Act, capa- covered separate but in a contrary city. Stiger, supra, This is and established by remedy proposed petitioners Wisconsin law. The by rights. They hardly step a forward in seek workers’ place position of a com- case to the burden their upon mon-law tort аction workers who were injury. of a work-related in-house treatment that, is, however, petitioners It as the contend true statutes, 102.29(3), Stats., sec. an under our may compensation to which and also take the entitled against any may malpractice maintain a civil for action physician, chiropractor, podiatrist malpractice. The statute recites is not allowed right may proceeds, respect to to share in these as he third-party other tortfeasors. why represents policy state,
If this then against health-provider the worker not recover nurse who furnishes medical attention in the estab- Facially, appear, although lishment. it would we do decide, that the worker could recover under this statute physician even from a who served full time on an em- ployer’s staff. statute, always
Apart
been true that
from this
it has
employee injured
malpractice
an
outside
*12
right
recoup-
(subject
physician
to some
had a
of action
by
compensation payments
employer).
ment of the
malpractice
malprаctice, why
malpractice
not
If
is
is
against any
though
malpractice
provider
health
even
care
provided
employer.
in the
of
As
is
course
conduct as an
pointed
in Mulder v.
this court
out
Acme-Cleveland
Corp.,
however,
(1980),
95 Wis. 2d
New liabilities on not should imposed by be compelling courts without under- and well remedy stood reasons. tort While a could be beneficient just particular case, in a precedent, such unless care- fully general viewpoint considered from the state policy, gut Act, could well the Workers injustice, substantially impair exclusivity- create of-remedy provision, which has made the Workers Com- pensation Act employers. tolerable Mulder, supra,
As we ff., compre stated at 180 hensive, thought legislative well out scheme should Only be with tinkered if courts. were con we disparity vinced alleged of treatment here was proportions constitutional should there be court- change mandated in the Compen effect of the Workers sation infirmity urged Act. No constitutional these proceedings. present To the extent that the law unequal, disparate, application, or uneven in its ais question legislature to address.
By the Court. —Decision affirmed. ABRAHAMSON,
SHIRLEY S. (dissenting). J. I dis- sent for two First, reasons: the cross-claim of Sabourin *13 Badger does not contain “a plain short and state- transaction, identifying claim, occur-
ment of the occurrences, transactions, rence or or series of event required sec. events out of which the claim arises” as Accordingly 802.02(1), I Stats. 1979-80. would vacate modify appeals the decision of court of and would grant the order the circuit court Sabourin Badger replead. Second, if I leave to even were to inter- pret majority does, I con- the cross-claim as the would upon clude that the cross-claim states a claim which re- granted, lief and I would therefore reverse appeals court of and remand the matter to the circuit court.
HH fully paragraph cross-claim is stated in 10 of Sabourin’s amended answer as follows: “10. any injury If in fact the Plaintiff sustained 31, 1976, damages March alleges, with resultant as he damages said by Briggs were caused or contributed to & Briggs Stratton in that & Stratton failed to exercise or- dinary providing care in medical attention to the Plain- Plaintiff, tiff. If these Defendants are held liable to the they will be entitled to indemnification or contribution according from & Stratton to law.” part
This cross-claim is of the answer which is a series Paragraph of denials. 10 read alone or read with the simply answer states that if Jenkins in- sustained juries they negli- were caused or contributed to gence providing & Stratton in medical care to Jenkins. 802.02(1),
Sec. 1979-80, requires Stats. that: pleading “A which sets relief, forth a claim for original claim, whether an counterclaim, cross-claim, or third-party claim, shall contain ... plain a short and claim, statement identifying transaction, oc- currence or event or series of transactions, occurrences, *14 showing events out which the claim arises and .” pleader . . is entitled to relief. identify The cross-claim in the at bar case does not transaction, transactions, occurrence or event or series occurrences or events out claim arises as of which the required by 802.02(1) provide sec. and a does not suf- pleader ficient basis on which to determine whether the is entitled to relief.
Briggs moved to dismiss the failure to cross-claim for upon may granted. state a claim which relief be Sec. 802.06(2) (f), ruling 1979-80. In on a Stats. such motion court, well as the сircuit court and the court of appeals, pleadings is bound and not add facts allegations to aid or defeat the contained therein. Onder Lamb, 241, donk 79 Wis. 2d N.W.2d majority, relying presented facts Badger’s therefrom, Sabourin’s and briefs and inferences pleading Badger. constructs a Sabourin majority following allega reads into cross-claim the injury; Briggs tions: Jenkins a suffered work-related nursing employed nursing a staff to furnish in its care plant; Briggs’ medical staff rendered medical care to Jenkins; Briggs’ negligently medical care was adminis aggravated inj ury; tered and the work-related and final ly, Briggs any person not does render medical services to is not who and who has not suffered injury. later, work-related As will demonstrated these majority’s decision; facts form basis of the change might majority’s in the facts alter decision. upon majority
Because the facts which the relies do appear not on the cross-claim, question face becomes whether it is reasonable to infer their existence and whether these are the facts that can be in- ferred. I think it is reasonable to infer facts alternative as, injuries such Jenkins’ do not stem from a work- injury solely related but from another or from gather (which care; Briggs’ I staff medical one includes at least in the record from the documents nurses) employees work at treats all doctor well as Briggs’ related; work whether or employees. If several the families of medical staff treats *15 they I think inferences are reasonable —and alternative upon if states a claim are —to determine the cross-claim may granted, all reasonable alternatives which relief be frequently stated must be considered. This court has (i.e. pleading a should be dismissed the merits legally insufficient) “only quite if clear Morgan party the recover. under no conditions” can 731, Pennsylvania Co., Insurance 2d General 87 Wis. 275 N.W.2d from the majority inferences I to draw
If the and were bar, pleading we be case at both would cross-claim the determining facts the whether facts and then our own either the plead a This should take state claim. court namely urged and all position by Briggs, that under non-physician cannot a faсtual circumstances employees malpractice, medical to its in tort be liable urged by me, namely the position cross-claim or the if it a a to determine states to enable court is insufficient above, of the would, vacate the decision claim. I as stated appeals modify the cir- and would the order of court of Badger grant replead leave to court to Sabourin cuit the cross-claim.
I I majority has not allowed Sabourin and the Because Badger replead, the ma- must determine whether I reading (see p. this jority’s cross-claim 325 of dissent) upon which relief forth a claim sets granted. it does. I reach this I conclude that conclusion injured- reasoning injury suffered follows: negli- on-the-job employee allegedly resulting from the gent provided nursing medical care staff em- ployed by Briggs Briggs plant at the does not out arise employment1 but arises from a second occupied by employer. Briggs, When directly employee furnishes services to the who injury, suffers work-related enters into a sec- An is liable worker’s under if five (1) employee (2) injury; conditions sustains an at concur: injury time both the are and the subject Act; (3) at the time of the performing growing services out of and to his em incidental ployment; (4) intentionally self-inflicted; is not (5) causing injury accident disease em arises out ployment. 102.03(1), 1977, provides Sec. Stats. as follows: liability. Liability chap- (1) “102.03 Conditions of under this against employer only following ter shall exist where conditions concur: “(a) employe injury. Where the sustains an *16 “(b) Where, injury, employer at the of time the both the and provisions employe subject chapter. the to this are the of “(c) injury, employe per- 1. Where at the time of the the forming growing employment. service out of incidental to and his Every employe going employment ordinary to and from his in the way, employer, premises and usual while on the of or while his vicinity injury in the an immediate thereof if the from results performing premises, occurrence on the to be deemed shall growing out employment; service incidental his so of and to shall any employe going employer’s designated parking between premises lot the on route and work while a direct ordinary way; any or and in the usual and so fireman and shall municipal utility employe responding to for out- assistance call city village, response of side the limits such his unless premises of law. of violation his shall be deemed any premises person premises to include of on also the other whose being performed. service is “(d) intentionally Where the is not self-inflicted. “(e) causing injury Where the accident or disease out arises employment.” of his legal ond relation with the health care —that
provider. provider, Briggs As health care to has duties employee independent employment relation subject liability and is tort to for breach of duties. these injury resulting malpractice Because the from not does employment, arise out does fall not compensation act, within worker’s and the exclu- sivity-of-remedy provision compensation of the worker’s employee’s act2 does not bar or Sabourin’s and Badger’s against Briggs. claim contrast, majority
In acted concludes legal only employer, not in a in its relation as distinct legal directly capacity provider, pro- as health second viding nursing plant care at the site. al- majority opposite conclusions I reach begin dual-capacity
though analyses of the doctrine our dis- namely Larson’s place, with Professor at the same treatise, capacity set forth in his cussion of dual theory Law. The dual Workmen’s time at one and the same asks whether capa- functioning employer but in a second not generates obligations independent city of those employer was func- If the employer. imposed him as if in tort capacity, it is liable tioning in a second capacity. flowing from second any duties breaches provides 1979-80, as follows: 102.03(2), Stats. Sec. recovery right to the “(2) exist such conditions Where remedy chapter be the exclusive shall compensation under employe any same other against section carrier. insurance This worker’s against employe bring action right of an limit does bodily harm, or coemploye cause intended an assault *17 operation mоtor vehicle negligent of a coemploye against a coemploye of against employer, a or leased not owned liability be there would extent to the the same employes against under pay judgments governmental a unit of agreement ordinance.” bargaining or a local a collective
329 explains Larson dual-capacity of essence doc- trine as follows: comparatively years appeared “In recent there has might dual-capacity
various contexts what
called the
be
normally
doctrine,
doctrine. Under
liability by
remedy prin-
shielded from tort
the exclusive
ciple
become liable in
if he
tort to his own
occupies,
capacity
in addition to his
a
sec-
capacity
obligations
ond
of
independent
that confers on him
imposed
employer.”3
those
on him as
primary
“The
issue in
of
this class
cases is: what
capacity
the test of true dual
?
thing
“One
Dual
is clear.
will not
found
merely
depart-
because the
of
has
number
perhaps
quite separate
ments or divisions that
are
оperations.
their functions and
. . .”4
dual-capacity
“The decisive
test is not concerned with
separate
how
or different
the second function of the em
ployer is from the first but with whether
the second
generates obligations
flowing
function
unrelated to those
first,
employer.
from the
of
.”5
. .
3
Compensation
Larson,
2A
Workmen’s
Law
at
72.80
14-
sec.
(1974).
112
4
Compensation
Larson,
2A
Workmen’s
Law sec.
at 14-
72.80
(1974).
115
5
Compensation
Larson,
Workmen’s
2A
Law
72.80 at 14-
sec.
(1974).
117
e.g.,
capacity, see
Hudson
Warwick v.
For
discussions
dual
Inc.,
Pulp
Paper Co.,
1974); Trotter
(Fla. App.
&
The
functioning
employer or in
is
if the
mine
for”
majority
“but
First,
uses a
capacity.
second
is
question
says
majority
basic
that
The
“[t]he
test.
department was
of
the function
the medical
whether
employment
relationship and
undertaken because
obligation
dis-
injured
which could be
to
workers
purpose
charged
of the de-
way
in this
or whether
and
medical
aside
partment
to furnish
attention
was
injured
responsibilities
an
apart
employer’s
to
from the
that
Supra,
majority’s
is
employee.”
p.
The
answer
318.
department
undertaken
was
function of the
majority
*19
too
The dual
does not
employment
the
relation be
the
terminated or
legal capacity
second
have no connection or relation
employment
capacity
whatever with the
The
status.
dual
theory
employer
the
asks whether the
was at one and
functioning
employer
same time
not
a
as
but also in
generates obligations
independent
second
which
imposed
Briggs
employer.
those
on
as
majority
approach
Thus the
a
uses
second
to deter
employer
functioning
employer
mine whether the
is
or
as
functioning
ap
is
capacity.
in a second
In this second
proach
majority
tries to delineate the function of an
employer
obligation
employer’s
employee
and the
to an
employment
which
from the
arise
relation. This delinea
easy
majority
tion is not an
task. The
concludes that
providing
Briggs
medical service is a function of
as em
ployer,
obligation
because
has an
provide
to
medi
wages
profits.
other
the sake of the
The
act
based
upon any
act or
upon
omission
but
relationship
employee
existence of the
which the
bears to
employment
of and in
because
course
which he has been
injured.”
The
majority
“but for” test
leads
to
focus
whether
obligations
public.
incurred
to the
or to the
Supra, p.
majority
319. It is on this basis that
seeks to dis-
tinguish Duprey
Shane,
781,
(1952)
39 Cal. 2d
P.2d 8
(the chiropractor case),
Yaka,
(1965)
and Reed v.
I emergency aid and duty first to render law I dis- employee, but directly to an assistance *20 fulfilling Briggs is majority’s that agree view with the a medical obligation employer maintains when its pro- extended and facility plant site and renders the at at longed treatment to an medical work.7 central beyond dispute medical are a
It that benefits Larson, compensation 2 act. of the worker’s concern ; Compensation (1981) Na- Law sec. 61.00 Workmen’s Laws, Compensation tional Comm’n Workmen’s State Compendium on Workmen’s ch. obligation employer’s in with this But the connection may central satisfied in the concern be Wisconsin making employer paying available and for medical care. employer need medical direct- not render treatment ly plant by employees to in own own its its obligations satisfy employer to under in order its compensation the worker’s act. not,
The Wisconsin act worker’s does supply supposed briefs, According are not to to the gave to record, Briggs’ treatment of nurses staff facts not couple day of months. twice a for Jenkins majority contrary intimates, what mandate to engage directly employer in a medical ser- nursing maintain a vice function or staff majority injured employees. The cites sec. to treat 102.42(1), 1979-80,8 support to statement Stats. legislature mandates medical service 102.42, 1979-80, provides part in as follows: Sec. Stats. op compensation. (1) “102.42 Incidental em- Treatment ploye. employer medical, surgical, supply such chiro- shall podiatric hospital treatment, medicines, practic, and medical and surgical crutches, members, appliances, supplies, and artificial training appliances, or, members and at the use artificial option employe, employer of the if the has not filed notice as provided (4), in lieu Christian treatment sub. Science treatment, supplies, as medicines and medical reasonably required to cure and relieve from the effects of injury, members and and to attain efficient use of artificial neglect appliances, employer’s sea- and in case of the or refusal sonably emergency practicable so, for the to or in it is do until employe give injury, liable shall be notice expense of the or on behalf for reasonable incurred employe providing treatment, medicines, supplies and such knowledge training. and Where the has necessity treatment, tender for failure to necessary treatment, supplies training medicines, constitutes and neglect for such or refusal. The also be liable shall expense employe necessary by the treat- reasonable incurred employe ment to cure and relieve the from the effects of occu- pational prior employe disease to the time or that the knew should disability have known nature of its his her and relation employment, (3) (2) as to such treatment subs. shall *21 apply. obligation appli- not The to furnish such treatment and required prevent ances shall continue as to deterioration further employe existing in the condition of or to maintain the status healing completed. of such condition or whether not practitioner, op “(2) employer (a) has Where Choice employment relationship notice an and its to the employer employe shall to the his or choice of offer her any chiropractor practice physician, podiatrist and licensed to injury. By practicing mutual in this state for treatment of the qualified agreement, employe have choice 1979-80, 102.42(1), specifies
or treatment. Sec. Stats. devices, training treatment, medicine, and employer supply compensation, must as incidental 462, Salvage DILHR, Klein Industrial 2dWis. (1977), party no N.W.2d but before us claims Briggs duty employ has a to a medical staff to injured employees. Briggs parties treat The concede that options Briggs has under the worker’s act. may, wishes, if it hire its own medical staff and thus personally provide employee. medical treatment to the Briggs may pay provided Or for the medical treatment by persons employed by Briggs. not The worker’s com- obligates pensation employer act to furnish medical making treatment in the sense of treatment available paying treatment; to the and for the obligate employer the act does not engage to direct- ly delivery in the of medical care. employer in its as must make medical available,
care but when voluntarily undertakes prolonged render and extended medical di treatment practitioner not licensed in this state. In emergency, case employer may arrange tendering for treatment without a choice. emergency passed After employe has given shall be his attending or her practitioner choice of oppor- at the earliest tunity. employe right attending has the to a 2nd choice of practitioner employer on notice to the or its insurance carrier. Any by agreement. further choice shall mutual Partners practitioner. clinics are deemed to prac- be one Treatment titioner on practitioner referral from another is deemed to be practitioner. treatment one “(b) expense is not liable for the of unreasonable travel obtain treatment. “(3) Practitioner choice unrestricted. If the fails provided to tender treatment (1) in sub. or choice of an at- practitioner tending provided (2), employe’s right, in sub. attending practitioner to choose the is restricted and the is liable necessary expense reasonable thereof.”
335
rectly
motivation,
injured employee
to its
its
—whatever
e.g.,
prоvide
to reduce costs or to
a benefit
em
to its
ployees Briggs has undertaken a function which is not
—
required by
employer-employee
relation or
compensation
integral
worker’s
act and
is not an
which
part
Briggs’
manufacturing
selling.
business of
and
quid pro quo
compensation
embodied
the worker’s
act
compensate
was that
would
em
ployee
injury;
for
would receive scheduled
injuries
amounts for
employment;
received in
liability
injuries
common-law tort
employ
for
received in
By moving
ment would
payment
be eliminated.
from
rendering
medical services to
Briggs
directly,
services
has moved outside the
“compromise”
confines of the
the worker’s
Borgnis
act.
Co.,
Falk
v.
147
327, 337, 354,
Wis.
(1911) ;
care are from different governing responsibilities rules of a manufactur- though er employees. Briggs or seller to its Even provide my public, medical treatment to the has view, by directly rendering treatment, medical become separate legal persona, рrovider.9 distinct a health care performing generates in a obligations of obligations due care in treatment, independent which are imposed of those employer. suggests determining key
Larson whether generates medical service function obli- gations generated by employment unrelated to those Larson, 2A Workmen’s Law 14- sec. 72.80 at 118; at sec. 72.90 14-153 *23 providing
relation lies in the difference between services paying providing in the sense of for them and services directly in performing the sense of them. Larson ex- plains payment-performance capacity the test dual in the medical treatment cases as follows: doctor-patient relation, legal “The with all the obli- gations of an But it does entails, spring up that it does not as the result essentially paying financial bill. doctor’s act — spring up undertaking per- as the result of directly.10 form the medical treatment “ aying physically performing for services and them [P] . . virtually . impossible have a crucial difference. It is physical writing very injury by cause a check. It is possible physical injury by administering to cause med- patient ical treatment to a . . . .”11 key
To question Larson the then em- is whether the ployer performed, that controlled, is the medical care injury distinguished making caused the from paying available or for it. If the controlled the medical care that injury, caused has in capacity.12 acted a second majority Since the reads the alleging Briggs cross-claim as controlled care, Briggs I conclude acted in a second capacity.
My Briggs conclusion that legal acted in a second capacity is not determinative, however, of question of whether should be liable a tort action. As points out, Larson there question remains the of which capacities of the two suggest should control.13 I 10 Larson, 2A Compensation Workmen’s Law see. 72.80 14- at (1974). 118 For further doctor-employer discussion of the relation Larson refers the reader to his discussion of the insurer as third party. See note 11 and text. was self insured. 11 Larson, 2A Compensation Workmen’s Law sec. 72.90 at 14- (1974). 153 Larson, 12 2A Compensation Workmen’s Law sec. at 72.80 14- 151-155, (1974). Larson, 2A Workmen’s Law sec. 14- 72.80 at controls, capacity court should to determine question focus is within on whether exposed employment is risks to which legis- industry.14 It these risks which the compen- be covered lature intended to worker’s sation act. capacity employer’s should control— remedy
and the should be exclusive—when out a risk hazard to which arises exposed performance job. in the his second should the com- control —and pensation remedy in- should not be exclusive —when *24 jury out to of a risk hazard which is one arises employee exposed performance which his the is the Focusing job. employment the risks from the em- ployee’s comports perspective theory with the legisla- compensation act worker’s and the intent of the compensation ture. The statute was not to intended entity happens an immunize to be an liability person from and all happens to a who to legislature employee. be an The intended the worker’s compensation remedy act to be exclusive as to in- juries resulting from the risks to which in- work in the dustry exposes employee. the
When took direct control over medical care writing instead of a care, check for medical sub- jecting employee ato risk that was outside the risks by contemplated worker’s act. subjected employee its simply risks that do not arise a result of being employed in the work Injury force. malpractice from flows not from the work 14 suggests Larson also if a court adheres to the well- statutory interpretation established rule that doubts should preserving resolved favor of abolishing rather than an rights non-employer individual’s valuable capacity should Larson, Compensation control. 2A Workmen’s 72.80, Law sec. 14-122-23,14-164 (1974). at
338
place
Briggs’ undertaking
separate
but from
a
dis-
relationship
employee.15
tinct
my view,
with an
In
majority has,
case, by immunizing Briggs
in this
a
from
suit,
scope
tort
extended the
compensa-
the worker’s
beyond
legislature.
by
tion act
intended
forth,
For the
I
reasons set
dissent.
majority
The
intimates that because under the worker’s com
pensation
employer compensates
injuries
act the
physician
caused
conduct of
who treats an
em
ployee,
injury
malpractice
injury
from the
is an industrial
compensable
under
act and the
is immune from tort
responsibility
physician. Supra, p.
for the act of the
316.
majority appears
saying
aggravation
to be
if the
injury
compensated
act,
aggravating
for under the
event
employment. Injury arising
must
definition
arise out
malpractice
injury compensable
from medical
is not an
under
original
compensation;
injury
worker’s
work-related
injury
compensation.
covered under worker’s
There is a distinction
between the
covered under the act
the elements of
damage compensable
for an
covered under the
See Cole
act.
Co.,
man v.
616, 621,
American
Ins.
Univ.
86 Wis. 2d
273 N.W.2d
(1979);
Larson,
2A
Workmen’s
Law sec. 65.10
damages resulting
pro
from acts of the health care
vider
compensable
are in the “chain of causation” and enhance the
original
injury.
Janesville,
award for the
work-related
Selleck v.
157, 163, 164,
100 Wis.
(1898);
Hayes,
which, history shows, legislature the has care- Durham, Plaintiff-Respondent-Cross-Appellant- Carol
Petitioner, Pekrul, Anna A. Pekrul and Boleslaus W. Ann’s d/b/a Hospital, Defendants-Appellants-Cross-Respon- Doll Respondents. and dents
Supreme Court Argued 6, 1981. No. 80-697. October 3, 1981. Decided November (Also reported 615.) in 311 N.W.2d 1917, fully protected compensation worker’s law. Prior to employee compensation to elect had whether seek worker’s party physi- (including from to sue the third cian) legislature 1917, provided emрloyee in tort. In that compensation pursue could collect worker’s could also a tort and against physician malpractice. claim for medical Laws 1917, 624, legisla- ch. 2394-24. It sec. was not until that provided employee compensa- ture could collect worker’s pursue against parties. 1931, tion and a tort claim third Laws of 132, legislature chs. provided 469. The has also the em- ployer party party share in a could third award unless third specified provider. 102.29(3), a health care Sec. Stats. 1979- apparent legislative history 80. Thus it from deliberately legislature adopted policy allowing employee specified malpractice regardless providers to sue health care for compensa- of the benefits the received the worker’s under allowing damages” tion act to recover “double malpractice, from i.e. worker’s tort dam- ages. 102.29(3), Sec. Stats. 1979-80. The notes employment relation. because for original occurred but would not have that would employment and Jenkins’ to Jenkins but have rendered medical trеatment not had he an a work-related the fact that Briggs’ majority injury. direct then concludes to part responsibilities is medical care employment merely one facet is majority’s helpful relationship. The “but is for” test excluding identifying any function of the absolutely employment has no connection with not, however, helpful relation. “but for” test identifying those which have some functions connection employment with the relation but which should neverthe- arising employment.6 less be viewed not from the general This for” tied “but test notion that worker’s compensation benefits are based on the or omission acts status, employ but i.e. on the existence of the relationship. Supreme ment As the United States Court said Cudahy Packing Parramore, (1923): Co. v. U.S. Compensation legislation upon “Workmen’s rests the idea status, is, upon conception . . . that workman is entitled to for an in the sustained service industry operation of an he whose contributes work as his capital the owner his contributes one for the sake of the —the sweeps majority recognizes, As the the “but for” test broadly. theory require