Under the Wisconsin Worker’s Compensation Act, a worker who is injured in the scope of his or her employment may make a claim for worker’s compensation against the worker’s compensation insurance company for his or her employer. This is typically referred to as the exclusive remedy that an employee has against his or her employer for an injury.
But, what happens if this injury at work occurs as a result of a third party (i.e., a party outside of the employee-employer relationship)?
In Wisconsin, if a worker is injured in the scope of his or her employer and as a result of a third party, the worker may make two claims – a worker’s compensation claim and a personal injury claim. This right is outlined in Wisconsin Statutes Section 102.29. https://docs.legis.wisconsin.gov/statutes/statutes/102/29
There are many examples to illustrate such a scenario; most often they occur when the job involves deliveries. For example, let’s say that a delivery driver is involved in a motor vehicle collision through the fault of another driver. As a result of the collision, the driver suffers an injury to his knee. In this example, the delivery driver may make two claims – one claim against the worker’s compensation insurance company for his employer and another claim against the automobile insurance carrier for the at-fault driver.
However, let’s say that in our previous example the delivery driver caused the motor vehicle accident. Since the delivery driver has now become the at-fault party, the delivery driver likely may only make a claim against the worker’s compensation insurance company for his employer given that the Wisconsin Worker’s Compensation system is a no-fault system.
Another common example in Wisconsin of the interplay of personal injury claims and worker’s compensation claims is a slip and fall by an employee in an employer’s parking lot due to snow or ice. Let’s say a worker slips and falls in his employer’s parking lot due to icy conditions. And, let’s say that the removal of the ice was the responsibility of private company contracted by the worker’s employer. In this scenario, the worker potentially has a claim against the worker’s compensation insurance company for his employer, and also, he potentially has a claim against the company that was in charge of snow/ice removal.
One important thing to note about the interplay of personal injury claims and worker’s compensation claims in Wisconsin is that according to Wis. Stats. Sec. 102.29, the worker’s compensation carrier holds a reimbursement interest in the third-party claim. Thus, a third-party settlement, with few exceptions, is subject to a “Third Party Proceeds Distribution Agreement” approved by the Department of Workforce Development – Worker’s Compensation Division.
Given the complexity of the interplay of personal injury claims and worker’s compensation claims in Wisconsin, it is vital to contact an experienced attorney with knowledge of these issues if you have been injured.