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October 15, 2021
Wisconsin Supreme Court Affirms Workers’ Comp Exclusive Remedy Provision

By Aneet Kaur

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Workers’ compensation serves as the “exclusive remedy” for employees claiming benefits arising out of a work injury (if there’s no other nonemployee third party responsible for the injury). The Wisconsin Supreme Court recently explained an employee’s secondary injury, namely a self-inflicted gunshot wound, following a work injury where he was gored by a bull, was also subject to the Act’s exclusive remedy provision. Read on for the interesting facts of the case as well as some guidance on the Act’s exclusive remedy provision.

Exclusive Remedy Provision

The Wisconsin Worker’s Compensation Act (WWCA) is best described as a compromise between employers and employees. Employers (via their insurance carriers) agree to compensate employees for work injuries, even if the employee was at fault. In exchange, employees agree to accept more modest workers’ comp benefits and give up the right to pursue more lucrative tort (wrongful act) claims.

The compromise, often referred to as the “exclusive remedy,” provides that the right to recover compensation under the WWCA is the employee’s exclusive remedy against the employer, any other employee of the same employer, and the workers’ comp carrier. Stated otherwise, with minor exceptions, an employee who sustains a work-related injury cannot pursue the more monetarily lucrative tort claims against these entities. If there’s a nonemployee third party who was responsible for the injury, however, a tort may also be pursued.


In 2012, Francis Graef was gored by a bull while working for Equity Livestock. The incident resulted in physical injuries as well as depression. A physician prescribed antidepressants to treat his depression, and Equity’s insurance carrier, Continental Indemnity Company, was responsible for paying for them.

In 2015, Graef went to his pharmacy to pick up a refill of his depression medication. Continental denied the refill. He couldn’t afford to purchase the medication on his own and left the pharmacy without it. Less than two months later, he attempted suicide and sustained a gunshot injury as a result.

In 2017, Graef filed a lawsuit against Continental alleging it was negligent in failing to continue to pay for the antidepressants. The carrier requested summary judgment (dismissal without a trial), asserting the Act was his exclusive remedy.

The circuit court denied the request, holding Continental was “trying to have it both ways” by arguing that workers' comp was Graef’s exclusive remedy on one hand and by not conceding he had the right to recover under the Act on the other. The appeals court disagreed and reversed. The Wisconsin Supreme Court granted a petition for review.

Supreme Court’s Ruling

The supreme court affirmed the appeals court’s decision. It held the Act provides Graef's exclusive remedy for the injuries alleged in his complaint. It explained the Act covers not just injury sustained in the course of employment but also “a second or subsequent injury that stems from the first work-related injury.” Employers and their carriers have a duty to pay for subsequent injuries that “naturally flow” from a compensable workplace injury “including any injury caused or worsened by the treatment, or lack of treatment.”

Applying these rules to Graef’s suit, the court held his second injury, the self-inflicted gunshot wound, was a direct result of his original workplace accident and, therefore, must be filed as a workers’ comp claim. As to his argument that Continental was “trying to have it both ways,” the court held it was “entitled to argue to the circuit court that [he] is in the wrong forum and that, even if he were in the right forum, his claim would fail.”

Bottom Line

The supreme court’s decision is a victory for employers in two ways. First, as mentioned, an employee’s benefits are more limited under the Act. By holding that Graef’s claims arising out of a subsequent injury remained under the Act, the supreme court limited the benefits he could otherwise have claimed had he been permitted to pursue a lawsuit. Second, by disregarding Graef’s argument that the carrier couldn’t take two different positions, the court allowed the carrier to maintain a denial of the workers’ comp claim.

On both accounts, this is a victory for employers. Continental’s “inconsistent” positions may not bode well, however, if and when it has to argue before a workers’ comp administrative law judge that the subsequent injury isn’t covered by workers' comp.

Aneet Kaur is an associate with Axley Brynelson, LLP, in Madison, Wisconsin. Kaur represents and advises clients in a variety of areas including civil litigation, eminent domain, labor and employment, and medical malpractice defense. You can reach her at 608-283-6786 or

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