Employee’s Action Against Employer’s Comp Insurer For Self-Inflicted Gunshot Wound Barred by Exclusivity
In a divided decision, the Supreme Court of Wisconsin affirmed a finding by the state’s Court of Appeals that the exclusive remedy provisions of the Wisconsin Workers’ Compensation Act barred a civil action filed by an injured employee against his employer’s workers’ compensation insurer alleging that the employee’s self-inflicted gunshot wound was the result of the insurer’s negligence; it had stopped paying for the employee’s antidepressant medication which, according to the employee, led to his attempted suicide [Graef v. Continental Indem. Co., 2021 WI 45, 2021 Disc. LEXIS 66 (May 20, 2021)]. The majority of the Supreme Court held that, as alleged in his complaint, the gunshot wound naturally flowed from a covered workplace injury. As such, there could be no recovery in tort.
Background
In November 2012, Graef was working in the livestock yard of his employer when he was gored by a bull, causing both physical injuries and depression. A physician prescribed an antidepressant to treat Graef’s depression. Two and one half years later, in May 2015, Graef went to his pharmacy to refill the antidepressant prescription. The workers’ compensation insurer initially rejected the pharmacy’s request for payment, but then approved the request after the pharmacy called the insurer and requested payment a second time.
On June 23, 2015, Graef returned to the pharmacy for another refill of the medication. The insurer once again denied the pharmacy’s initial request for payment, and Graef left the pharmacy without the medication because he could not afford to purchase the medication on his own. Less than two months later, on August 9, 2015, Graef attempted suicide with a firearm and suffered a gunshot injury.
Two years later, Graef filed a tort action against the insurer, alleging that it had been negligent in failing to continue to authorize and pay for the June 2015 refill. The insurer moved for summary judgment, contending that Graef’s sole remedy was pursuant to the Wisconsin Workers’ Compensation Act. The trial court denied the insurer’s motion, refusing to apply the exclusive remedy provision because the insurer would not concede that Graef’s claim would prevail if he filed it as a workers’ compensation claim. The court of appeals reversed and remanded with instructions for the trial court to grant the insurer’s summary judgment motion. Graef petitioned the Supreme Court of Wisconsin for review, which it granted.
Wisconsin’s Act Covers Subsequent Injuries
The majority of the Supreme Court observed that the Wisconsin Act covers a second or subsequent injury that stems from the first work-related injury. The employer and/or insurer have a duty, therefore, 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.
Unbroken Chain of Events
The majority also noted that Graef’s complaint presented an unbroken chain of events, beginning 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 the insurer paid for on Graef’s behalf. When the insurer failed to approve payment for the duloxetine refill on June 23, 2015, Graef left the pharmacy without the medication because he was unable to pay for it himself. Without the duloxetine, Graef’s depression relapsed and he attempted suicide by gunshot on August 9, 2015. Graef suffered injuries as a result of the self-inflicted gunshot. Graef’s complaint, therefore, established an unbroken causal chain from his workplace injury to his suicide attempt.
The insurer contended that Graef’s allegations, if true, satisfied the conditions of liability under Wis. Stat. § 102.03(1), and therefore his claim must be filed as a worker’s compensation claim. The high court agreed. As alleged, Graef’s second injury was a direct result of the original workplace accident and, consequently, must be brought as a worker’s compensation claim [citing Jenkins v. Sabourin, 104 Wis. 2d 309, 311 N.W.2d 600 (1981)].
The majority of the Court said that it was important to note that even though Graef’s gunshot wound was intentionally self-inflicted, that injury would be 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]” [quoting Brenne v. LIRC, 38 Wis. 2d 84, 94, 156 N.W.2d 497 (1968)]. The majority added that the insurer’s counsel had conceded as much at oral argument.
The “Grand Bargain”
The majority stressed that if Graef’s depression was not caused by or related to the workplace injury, then the insurer had no duty to authorize and pay for the medication to treat it and no responsibility for the effects of the untreated depression. The insurer’s duty was undisputedly created by, and existed exclusively because of, the Act. Graef’s own complaint acknowledged that the insurer’s duty to pay stemmed from the Act when the complaint stateed that the insurer’s duty was established “by Wisconsin Statute 102,” i.e., the Act. The majority allowed that paradoxically, Graef wished to avail himself of the liability created by the Act while avoiding the smaller but more certain recoveries the Act provided. Permitting Graef to pursue this action in tort would enable him to take advantage of the “grand bargain” while foreclosing the insurer from doing the same.
Two Additional Arguments
According to the majority, Graef made two additional arguments that it deemed unpersuasive. First, he asserted that the Court should create an exception for the negligent denial of worker’s compensation claims which, under Graef’s theory, the Act would not cover. Second, Graef argued that the insurer was trying to have it both ways since the insurer would not concede that Graef’s worker’s compensation claim would succeed, an issue that also concerned the circuit court.
The majority said the circuit court was troubled by the insurer’s refusal to concede that Graef’s claim would succeed as a worker’s compensation case. This argument failed, however, said the majority, because the insurer was entitled to argue to the circuit court that Graef was in the wrong forum and that, even if he were in the right forum, his claim would fail. The majority said the circuit court improperly imposed a prerequisite to the exclusive-remedy provision by conditioning its application on the insurer’s concession that Graef would prevail under the Act. In short, the insurer was simply reserving its right to litigate in the proper forum and dispute the underlying factual allegations, which it was entitled to do.
Dissent
Justice Bradley dissented. She stressed that under the plain text of the statute, an exclusive remedy against the insurer under the Act occurred only when the employee possesses the “right” to recover——that is, when the employee had a “legal guarantee” of recovery where the statutory conditions were met. Under the plain text of the statute, the exclusive remedy was not triggered by the mere possibility of recovery, as the majority suggested. She added:
By prematurely dismissing Graef’s tort claim, the majority purports to preserve [the employer’s] “right to litigate in the proper forum—according to the majority, the DWD, under worker’s compensation law—as well as [the insurer’s] right to “dispute the underlying factual allegations.” Majority op., ¶25. However, if [the insurer] prevails before the DWD under worker’s compensation law, then Graef has no “right to the recovery of compensation” under Wis. Stat. § 102.03(2), without which the Act cannot, as a matter of simple logic, provide the “exclusive remedy.” If the Act does not provide the exclusive remedy, then as a matter of law there is no statutory bar to claims outside of the Act, including Graef’s tort claim.
Brief Comment
I haven’t taken the time to do an exhaustive examination of the Wisconsin Act and case law construing it, but giving all due respect to Justice Bradley’s argument, I can think of several instances in which a state’s Act provides no benefits under a set of specific facts, and yet the “injured” party would not be permitted to maintain a civil action against the employer or carrier. I’ll mention one [see Larson’s Workers’ Compensation Law, § 100.05[4]].
Many states do not provide workers’ compensation benefits for nondependent parents of a deceased employee. The parents generally may not sue the employer in tort for wrongful death, however, because their tort action is barred by exclusivity. In short, Justice Bradley’s “matter of simple logic” doesn’t always apply.
For example, in Saab v. Massachusetts CVS Pharm., LLC, 452 Mass. 564, 896 N.E.2d 615 (2008), the Supreme Judicial Court of Massachusetts affirmed the dismissal of a wrongful death suit filed against the employer by the parents of an employee who was killed in a work-related assault at the employer’s place of business. The son died without dependents. The Court held that the parents’ civil action was barred by exclusivity in spite of the fact that the parents could recover nothing under the Massachusetts Act.
Similarly, in Barzey v. City of Cuthbert, 295 Ga. 641, 763 S.E.2d 447 (2014), the Supreme Court of Georgia affirmed a trial court’s order granting summary judgment to an employer in a wrongful death action filed by the mother of a deceased employee, agreeing that the exclusive remedy provisions of the Georgia Workers’ Compensation Act barred the civil action. That the mother, who was not dependent upon her son, could not recover any workers’ compensation benefits did not dictate a different finding, indicated the court. Moreover, the Act’s limitation on the recovery of non-dependent heirs under O.C.G.A. § 34-9-265(b)(1) did not violate the mother’s constitutional rights to due process and equal protection.