102.03 Annotation An attack that occurs during employment arising from a personal relationship outside the employment arises out of the employment if employment conditions contribute to the attack. Emotional injury from harassing phone calls by an ex-spouse to the employee at her place of work, after her employer unwittingly gave out her phone number, was an injury in the course of employment. Weiss v. City of Milwaukee, 208 Wis. 2d 95, 559 N.W.2d 588 (1997), 94-0171.

102.03 Annotation The elements of proof placed on a claimant alleging physical injury as a result of emotional stress in the workplace requires that work activity precipitate, aggravate, or accelerate beyond normal progression a progressively deteriorating or degenerative condition. Unlike emotional injury from stress, showing “unusual stress” is not required. United Parcel Service, Inc. v. Lust, 208 Wis. 2d 306, 560 N.W.2d 301 (Ct. App. 1997), 96-0137.

102.03 Annotation The exclusive remedy provision in sub. (2) does not bar a complainant whose claim is covered by worker’s compensation from pursuing an employment discrimination claim under the Wisconsin Fair Employment Act, subch. II of ch. 111. Byers v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997), 95-2490.

102.03 Annotation An employee terminated for misrepresenting the employee’s medical condition while receiving disability benefits for a concededly work-related injury continues to be entitled to benefits. Brakebush Brothers, Inc. v. LIRC, 210 Wis. 2d 623, 563 N.W.2d 512 (1997), 95-2586.

102.03 Annotation A work-related injury that plays any role in a second injury is properly considered a substantial factor in the reinjury. To find a work-related injury not a factor in a second injury, it must be found that the claimant would have suffered the same injury, to the same extent, despite the first injury. New symptoms alone do not suggest an unrelated second injury. Lange v. LIRC, 215 Wis. 2d 561, 573 N.W.2d 856 (Ct. App. 1997), 97-0865.

102.03 Annotation The Seaman, 204 Wis. 157 (1931), loaned employee test is a three-element test that is often miscast because the Seaman court indicated that there are four “vital questions” that must be answered. The three elements are: 1) consent by the employee; 2) entry by the employee upon work for the special employer; and 3) power of the special employer to control details of the work. The distinction between employee consent to perform certain acts and consent to enter into a new employment relationship is important. Borneman v. Corwyn Transport, Ltd., 219 Wis. 2d 346, 580 N.W.2d 253 (1998), 96-2511.

102.03 Annotation Under sub. (1) (f), there is a presumption that a travelling employee performs services incidental to employment at all times on a trip. The burden of proving a personal deviation on the trip is on the party asserting the deviation. Recreational activities may be considered a usual and proper part of the trip but do not always fit the presumption. CBS, Inc. v. LIRC, 219 Wis. 2d 564, 579 N.W.2d 668 (1998), 96-3707.

102.03 Annotation A compensable injury must arise out of employment, which refers to the causal origin of the injury, and occur while the employee performs a service growing out of and incidental to employment, which refers to the time, place, and circumstances of the injury. Ide v. LIRC, 224 Wis. 2d 159, 589 N.W.2d 363 (1999), 97-1649.

102.03 Annotation Intentional harm to an employee is an “accident” subject to this chapter if caused by acts of a coemployee, but not if caused by acts of an employer. Intentionally self-inflicted injury is not subject to this chapter, but death by suicide is not necessarily “intentionally self-inflicted” and is subject to this chapter if the suicide results from a work-related injury without an independent intervening cause. Cohn v. Apogee, Inc., 225 Wis. 2d 815, 593 N.W.2d 921 (Ct. App. 1999), 97-3817.

102.03 Annotation Sub. (1) (f) does not establish a bright line rule that if a travelling employee stays over past the conclusion of the business part of a trip, there is a personal deviation. An employee is not required to seek immediate seclusion in a hotel and to remain away from human beings at the risk of being charged with deviating from employment. Wisconsin Electric Power Co. v. LIRC, 226 Wis. 2d 778, 595 N.W.2d 23 (1999), 97-2747.

102.03 Annotation Injuries did not arise out of employment when the injured party was injured while collecting a paycheck as a matter of personal convenience. Secor v. LIRC, 2000 WI App 11, 232 Wis. 2d 519, 606 N.W.2d 175, 99-0123.

102.03 Annotation An employee’s claim under s. 134.01 against fellow employees for injury to reputation and profession was preempted by this section. Mudrovich v. Soto, 2000 WI App 174, 238 Wis. 2d 162, 617 N.W.2d 242, 99-1410.

102.03 Annotation It was reasonable for the Labor and Industry Review Commission to hold that an employee had temporarily abandoned his job and was not performing services incidental to employment under sub. (1) (c) 1. when he left the workplace to seek medical attention for an immediate need that was not related to his employment, even though intending to return. Fry v. LIRC, 2000 WI App 239, 239 Wis. 2d 574, 620 N.W.2d 449, 00-0523.

102.03 Annotation Under sub. (2), recovery of compensation is the exclusive remedy against a worker’s compensation carrier and the carrier’s agents. Walstrom v. Gallagher Bassett Services, Inc., 2000 WI App 247, 239 Wis. 2d 473, 620 N.W.2d 223, 00-1334.

102.03 Annotation Whether a traveling employee’s multiple drinks at a tavern was a deviation was irrelevant when the employee was injured while engaged in a later act reasonably necessary to living. Under s. 102.58, intoxication does not defeat a worker’s compensation claim but only decreases the benefits. Heritage Mutual Insurance Co. v. Larsen, 2001 WI 30, 242 Wis. 2d 47, 624 N.W.2d 129, 98-3577.

102.03 Annotation Under the private errand doctrine, if a person in authority over the employee asks the employee to perform a service for the personal benefit of the employer or the employee’s superior and the employee is injured while performing the task, the injury grew out of and was incidental to employment unless the request is clearly unauthorized. Begel v. LIRC, 2001 WI App 134, 246 Wis. 2d 345, 631 N.W.2d 220, 00-1875.

102.03 Annotation Under the “dual persona” doctrine, the employer’s second role must be so unrelated to its role as an employer that it constitutes a separate legal person. St. Paul Fire & Marine Insurance Co. v. Keltgen, 2003 WI App 53, 260 Wis. 2d 523, 659 N.W.2d 906, 02-1249.

102.03 Annotation When one company was the injured employee’s employer on the date of the injury, but another company contracted to become the employer retroactive to a date prior to the injury, the former company and its insurer were responsible for providing benefits under this chapter. Epic Staff Management, Inc. v. LIRC, 2003 WI App 143, 266 Wis. 2d 369, 667 N.W.2d 765, 02-2310.

102.03 Annotation Under the last exception in sub. (2), an employee who receives worker’s compensation benefits may also file suit against a coemployee when a governmental unit is obligated to pay judgments against that employee pursuant to a collective bargaining agreement or a local ordinance. Keller v. Kraft, 2003 WI App 212, 267 Wis. 2d 444, 671 N.W.2d 361, 02-3377.

102.03 Annotation A claim of negligent hiring, training, and supervision against an employer for injuries caused by a sexual assault committed by a coemployee is precluded by the exclusivity provision in sub. (2). This chapter’s purpose, history, and application demonstrate that the court is not a proper authority to create a public policy exception to the exclusivity provision. Peterson v. Arlington Hospitality Staffing, Inc., 2004 WI App 199, 276 Wis. 2d 746, 689 N.W.2d 61, 03-2811.

102.03 Annotation The holding in Lentz, 195 Wis. 2d 457 (Ct. App. 1995), that sexual harassment is not an accident subject to the exclusivity provision of sub. (2), is inapplicable when a coemployee has committed the intentional tort. Lentz, therefore, must be limited to when the employer is a sole proprietor and has intentionally caused the employee’s injury. Peterson v. Arlington Hospitality Staffing, Inc., 2004 WI App 199, 276 Wis. 2d 746, 689 N.W.2d 61, 03-2811.

102.03 Annotation A Labor and Industry Review Commission’s (LIRC) determination that an employee who sustained a knee injury while playing softball during a paid break period deserved worker’s compensation benefits was reasonable. LIRC reasonably relied upon a treatise that holds that recreational activities are within the course of employment when they have gone on long enough to become an incident of employment. E.C. Styberg Engineering Co. v. LIRC, 2005 WI App 20, 278 Wis. 2d 540, 692 N.W.2d 322, 04-1039.

102.03 Annotation A state session law that was never adopted by the common council or any other local legislative body as an ordinance, but was numbered and reprinted in the Milwaukee City Charter, was not a local ordinance under sub. (2). Keller v. Kraft, 2005 WI App 102, 281 Wis. 2d 784, 698 N.W.2d 843, 04-1315.

102.03 Annotation When two employees who each work for separate temporary help agencies are both placed with the same client of the temporary help agencies, sub. (2) does not prevent the employee who is injured by the conduct of the other employee from suing the latter’s temporary help agency under a theory of respondeat superior. Warr v. QPS Companies, 2007 WI App 14, 298 Wis. 2d 440, 728 N.W.2d 39, 06-0208.

102.03 Annotation The exception to coemployee immunity due to negligent operation of a vehicle in sub. (2) must be narrowly construed. The distinction between operation and maintenance or repairs should apply in the context of the exception. When the action under consideration is undertaken to service or repair a vehicle, and the condition of the vehicle is such that it could not then be driven on a public roadway, the action does not constitute operation of a motor vehicle. McNeil v. Hansen, 2007 WI 56, 300 Wis. 2d 358, 731 N.W.2d 273, 05-0423.

102.03 Annotation An injured employee was entitled to temporary total disability (TTD) benefits after being terminated for violating plant safety rules while assigned to light duty work while within his healing period and without having regained the use of a hand. The employee suffered a wage loss while his injury limited his ability to work, meeting the statutory criteria for TTD. This chapter contains no exception to liability for an injured employee who is subsequently terminated, even for good cause. Emmpak Foods, Inc. v. LIRC, 2007 WI App 164, 303 Wis. 2d 771, 737 N.W.2d 60, 06-0729.

102.03 Annotation Wisconsin’s worker’s compensation jurisprudence clearly recognizes that an in-state injury in the course of employment will give rise to coverage under the act. When an out-of-state employer sends an out-of-state employee to Wisconsin and the employee is injured or killed in Wisconsin in the course of employment, Wisconsin’s act is applicable. Therefore, a coemployee has no liability for the employee’s death and the coemployee’s insurers were properly dismissed from the case. Estate of Torres v. Morales, 2008 WI App 113, 313 Wis. 2d 371, 756 N.W.2d 662, 07-1519.

102.03 Annotation The negligent operation of a motor vehicle exception to the exclusive remedy provision in sub. (2) did not apply to the incorrect placement of a vehicle on a hoist for repairs. The alleged negligence here was the way the vehicle was positioned on the hoist, which was independent of how the vehicle was operated. Under any definition of operation, the defendant’s manipulation of or control over the vehicle, its movement, or its instruments was not negligent in and of itself. Kuehl v. Sentry Select Insurance Co., 2009 WI App 38, 316 Wis. 2d 506, 765 N.W.2d 860, 08-1681.

102.03 Annotation When an employee was required to report to a job site not owned or controlled by the employer to render services to a customer and the making of the journey was not part of the service for which the employee was paid, there was nothing to distinguish the employee’s regular commute to work from that of any employees who leave their homes to travel to their place of employment where the workday begins. The employee was not a traveling employee under sub. (1) (f). The travel contemplated by sub. (1) (f) must be something more and something different than a daily commute to or from work at an established job site. McRae v. Porta Painting, Inc., 2009 WI App 89, 320 Wis. 2d 178, 769 N.W.2d 74, 08-1946.