You cannot sue your employer for getting hurt on the job in Wisconsin. Workers compensation is the only recovery against the employer. However, you may have what’s called a third-party case against any other person (the third-party) who contributed to your injury, such as a landlord, maintenance company, general contractor, subcontractor, machine manufacturer or anyone else who is not your employer.
If an employee and employer are covered by workers comp, workers comp benefits are the employee’s exclusive remedy against the employer, the employer’s worker’s compensation insurance carrier, and the injured employee’s co-employees. Wis. Stat. § 102.03(2) . The exclusive-remedy provision also applies to an employer to whom an employee is loaned if the employee “makes a claim for compensation under this chapter” against that employer. Wis. Stat. § 102.29(7). A worker’s compensation insurer can waive its statutory immunity under the exclusive-remedy provision of the Worker’s Compensation Act but only if the insurer’s policy expressly states that the waiver is intended. The fact that the worker’s compensation and employer’s liability portions of an insurance policy provide coverage for bodily injury to an employee does not constitute an express waiver. If there is a dispute as to whether liability will lie under the Act, it has been held that the primary-jurisdiction rule requires that the circuit court mandate submission of the case to the workers compensation division.
The only exceptions to co-employee immunity are for intentional assault, indemnification of the co-employee by a governmental unit pursuant to a collective bargaining agreement or local ordinance, and operation of a motor vehicle not owned or leased by the employer. Wis. Stat. § 102.03(2) . It has also been held that co-employee immunity may be waived by a provision in the employer’s liability insurance policy.
All third-party settlements are subject to section 102.29 reimbursement, and must be approved by the court before which the action is pending. The third-party settlement is divided up pursuant to Form WKC-170, Third Party Proceeds Distribution Agreement. After deducting attorney fees and costs, one-third of the balance must go to the injured employee. Next, the worker’s compensation insurance carrier is reimbursed for all medical or indemnity benefits that it has paid or is required to pay. Any residue goes to the employee, subject to the insurance carrier’s right to a set-off against further liability. This remaining balance is referred to as a cushion.
At McCormick Law Office in Milwaukee, Wisconsin we regularly represent workers hurt on the job in their worker’s compensation claim and their third-party negligence claim. It is important that the attorney be able to coordinate the two cases so the injured worker’s net recovery is the highest settlement possible.
