Chapter 102

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.

102.03 Annotation Under Jenson, 161 Wis. 2d 253, the tort of intentional infliction of mental distress is barred by the exclusivity provision of the Worker’s Compensation Act. The Jenson court did not make or discuss the distinction between acts that occurred during employment and after termination. Farady-Sultze v. Aurora Medical Center of Oshkosh, Inc., 2010 WI App 99, 327 Wis. 2d 110, 787 N.W.2d 433, 09-2429.

102.03 Annotation Case law recognizes two exceptions to the general rule that a principal employer is not liable in tort for injuries sustained by an independent contractor’s employee while he or she is performing the contracted work: 1) liability for an affirmative act of negligence committed by the principal employer; and 2) liability on a principal employer for contracted work that qualifies as extrahazardous. Tatera v. FMC Corp., 2010 WI 90, 328 Wis. 2d 320, 786 N.W.2d 810, 08-0170.

102.03 Annotation Sub. (1) (d) exists to prevent fraud in the system, i.e., a deliberately inflicted injury for the purpose of recovering worker’s compensation benefits. It did not apply when the claimant suffered injuries while performing cake decorating when the claimant was asked to do so by her superiors, despite the fact that the employer was aware of medical restrictions prohibiting that activity. Pick ’n Save Roundy’s v. LIRC, 2010 WI App 130, 329 Wis. 2d 674, 791 N.W.2d 216, 09-2594.

102.03 Annotation The key to the application of the “well-being activity” exclusion under sub. (1) (c) 3. is whether the employee was being compensated for engaging in his or her employer’s business at the time of the injury. If the employer was compensating the employee when the injury occurred, it is the employer’s acknowledgement that the employee was engaged in the employer’s business and the exception does not apply. City of Kenosha v. LIRC, 2011 WI App 51, 332 Wis. 2d 448, 797 N.W.2d 885, 10-0883.

102.03 Annotation Post-termination defamation by an employer is not covered by this chapter and is not subject to the exclusive remedy provision. Anderson v. Hebert, 2011 WI App 56, 332 Wis. 2d 432, 798 N.W.2d 275, 10-1992.

102.03 Annotation Because an injured employee entered into a compromise agreement with his employer, the exclusive remedy provision under sub. (2) precluded the injured employee from bringing a subsequent negligence action against a fellow employee for the injuries that were the subject of the worker’s compensation claim. Martine v. Williams, 2011 WI App 68, 333 Wis. 2d 203, 799 N.W.2d 449, 10-1426.

102.03 Annotation The logical corollary to sub. (1) (c) 3. is that an employee is performing services growing out of and incidental to employment if the employee’s injury occurs while participating in a well-being program, event, or activity that is not voluntary or for which the employee is receiving compensation. An employee who was performing push-ups at his residence in preparation for a mandatory fitness test, for which extra pay could be awarded for excellence and discipline imposed for failure, was reasonably found to be acting in the course of his employment and entitled to benefits. City of Appleton Police Department v. LIRC, 2012 WI App 50, 340 Wis. 2d 720, 813 N.W.2d 237, 11-2008.

102.03 Annotation While s. 895.46 (1) (a) requires governments to pay judgments taken against their officers and employees for liability incurred though the performance of their official duties, the statute is not encompassed within the language of sub. (2). The coemployee exception of sub. (2) specifically eliminated a local government unit’s obligation to pay judgments under s. 895.46. Flores v. Goeman, 2013 WI App 110, 350 Wis. 2d 454, 839 N.W.2d 409, 12-2272.

102.03 Annotation Under s. 102.04 (2m), the employee’s “employer” was the temporary help agency that the defendant compensated for the employee’s services. The exclusive remedy provision under sub. (2) therefore prohibited the employee’s estate from bringing tort claims against the temporary help agency but did not prohibit the estate from pursuing tort claims against the defendant and its insurer. Ehr v. West Bend Mutual Insurance Co., 2018 WI App 14, 380 Wis. 2d 138, 908 N.W.2d 486, 17-0142.

102.03 Annotation Employers and worker’s compensation insurance carriers have a duty 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. In this case, the employee alleged that his employer’s worker’s compensation insurance carrier was negligent in failing to approve payment for a refill of his antidepressant medication, which was prescribed after a workplace injury, and that, as result of that negligence, the employee attempted suicide and suffered a gunshot injury. As alleged, the gunshot injury was a direct result of the original workplace accident and, consequently, must be brought as a worker’s compensation claim. Even though the employee’s gunshot wound was intentionally self-inflicted, that injury was covered under the Act if, without the workplace injury, there would have been no attempted suicide, because it is viewed as merely an act, not a cause, intervening between the injury and the attempted suicide, and that it was part of an unbroken chain of events from the injury to the attempted suicide. Graef v. Continental Indemnity Co., 2021 WI 45, 397 Wis. 2d 75, 959 N.W.2d 628, 18-1782.

102.03 Annotation The term “motor vehicle” in sub. (2) encompasses only those vehicles that are designed primarily for travel on a public roadway or those vehicles that are used on a public roadway at the time of an accident. Rood v. Selective Insurance Co. of South Carolina, 2022 WI App 50, 404 Wis. 2d 512, 980 N.W.2d 282, 21-0392.

102.03 Annotation An insurer can waive statutory immunity under sub. (2) when the express terms of the insurance policy demonstrate an intent to waive that immunity. Rood v. Selective Insurance Co. of South Carolina, 2022 WI App 50, 404 Wis. 2d 512, 980 N.W.2d 282, 21-0392.

102.03 Annotation The exclusive remedy provision does not bar a ship owner from asserting a right to indemnification against the employer of the injured worker even though he has been paid compensation. Bagrowski v. American Export Isbrandtsen Lines, Inc., 440 F.2d 502 (1971).

102.03 Annotation Emotional distress injury due to sexual harassment was exclusively compensable under this section. Zabkowicz v. West Bend Co., 789 F.2d 540 (1986).

102.03 Annotation When two employees left their place of employment to fight each other, neither was acting within the scope of employment. There was no cause of action against the employer under this chapter or tort or agency law. Johnson v. Hondo, Inc., 125 F.3d 408 (1997).

102.03 Annotation Sexual harassment was an accident under sub. (1) (e) and subject to the exclusivity provision of sub. (2). Lentz, 195 Wis. 2d 457 (Ct. App. 1995), is distinguished. Hibben v. Nardone, 137 F.3d 480 (1998). But see 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 third party was required to pay 95 percent of the damages even though only 25 percent negligent because an employer was shielded by sub. (2). Schuldies v. Service Machine Co., 448 F. Supp. 1196 (1978).

102.03 Annotation The plaintiff was a special employee of a third-party defendant and a third-party action was barred by the exclusivity provisions of this section. Simmons v. Atlas Vac Machine Co., 493 F. Supp. 1082 (1980).

102.03 Annotation Although the employer of an injured employee was found to be at fault, a manufacturer who was also found to be at fault was not entitled to contribution from the employer. Ladwig v. Ermanco, Inc., 504 F. Supp. 1229 (1981).

102.03 Annotation Unauthorized sexual touching did not constitute an assault intended to cause bodily harm under sub. (2). Hrabak v. Marquip, Inc., 798 F. Supp. 550 (1992).

102.03 Annotation The exclusivity provision of the Worker’s Compensation Act does not bar a claim for invasion of privacy under s. 895.50 [now s. 995.50]. Marino v. Arandell Corp., 1 F. Supp. 2d 947 (1998).

102.03 Annotation Refinery operations generally are not considered ultrahazardous. Therefore, any ultrahazardous activity determination must derive from either an unreasonable risk to the plaintiffs based upon the specific work that they are doing within a refinery or a high degree of risk in relation to the environment of the workplace that could not be minimized through precautions. Fagan v. Superior Refining Co., 471 F. Supp. 3d 888 (2020).

102.03 Annotation In this case, the exclusive remedy provision under sub. (2) did not bar a tort action against an employer for the COVID-19-related death of its employee’s spouse when the death stemmed from the employee’s infection at work. Worker’s compensation exclusivity barred the employee’s action against the employee’s former employer and any action by the “non-injured” spouse for damages deriving wholly from the employee-spouse’s work-related injury. But it did not extend to separate physical injuries suffered by the nonemployee-spouse, even when the employee-spouse’s injury was part of the causal chain leading to those injuries. Estate of Ruiz v. Conagra Foods Packaged Foods, LLC, 601 F. Supp. 3d 368 (2022).

102.03 Annotation Worker’s Compensation Act No Longer Protects Against Employment Discrimination Claims. Skinner. Wis. Law. Mar. 1998.

102.04 102.04 Definition of employer.

102.04(1) (1) The following shall constitute employers subject to the provisions of this chapter, within the meaning of s. 102.03:

102.04(1)(a) (a) The state and each local governmental unit in this state.

102.04(1)(b) (b)

102.04(1)(b)1. 1. Every person who at any time employs 3 or more employees for services performed in this state, whether in one or more trades, businesses, professions, or occupations, and whether in one or more locations. A person who employs 3 or more employees for services performed in this state becomes subject to this chapter on the day on which the person employs 3 or more such employees.

102.04(1)(b)2. 2. Every person who employs fewer than 3 employees, provided the person has paid wages of $500 or more in any calendar quarter for services performed in this state. Such a person shall become subject to this chapter on the 10th day of the month next succeeding such quarter.

102.04(1)(b)3. 3. This paragraph shall not apply to farmers or farm labor.

102.04(1)(c) (c) Every person engaged in farming who on any 20 consecutive or nonconsecutive days during a calendar year employs 6 or more employees, whether in one or more locations. The provisions of this chapter shall apply to such employer 10 days after the twentieth such day.

102.04(1)(d) (d) Every joint venture electing under s. 102.28 (2) (a) to be an employer.

102.04(1)(e) (e) Every person to whom pars. (a) to (d) are not applicable, who has any person in service under any contract of hire, express or implied, oral or written, and who, at or prior to the time of the injury to the employee for which compensation may be claimed, shall, as provided in s. 102.05, have elected to become subject to the provisions of this chapter, and who shall not, prior to such accident, have effected a withdrawal of such election.

102.04(2) (2) Except with respect to a partner or member electing under s. 102.075, members of partnerships or limited liability companies shall not be counted as employees. Except as provided in s. 102.07 (5) (a), a person under contract of hire for the performance of any service for any employer subject to this section is not the employer of any other person with respect to that service, and that other person shall, with respect to that service, be an employee only of the employer for whom the service is being performed.

102.04(2g) (2g) Liability under s. 102.03 with respect to a leased employee, as defined in s. 102.315 (1) (g), shall be determined as provided in s. 102.315 (2) or (2m) (c), whichever is applicable.

102.04(2m) (2m) Except as otherwise provided in an employee leasing agreement that meets the requirements of s. 102.315 (2m), a temporary help agency is the employer of an employee whom the temporary help agency has placed with or leased to another employer that compensates the temporary help agency for the employee’s services. Except as provided in s. 102.315 (2m) (c), a temporary help agency is liable under s. 102.03 for all compensation and other payments payable under this chapter to or with respect to that employee, including any payments required under s. 102.16 (3), 102.18 (1) (b) 3. or (bp), 102.22 (1), 102.35 (3), 102.57, or 102.60. Except as permitted under s. 102.29, a temporary help agency may not seek or receive reimbursement from another employer for any payments made as a result of that liability.

102.04(2r) (2r) For purposes of this chapter, a franchisor, as defined in 16 CFR 436.1 (k), is not considered to be an employer of a franchisee, as defined in 16 CFR 436.1 (i), or of an employee of a franchisee, unless any of the following applies:

102.04(2r)(a) (a) The franchisor has agreed in writing to assume that role.

102.04(2r)(b) (b) The franchisor has been found by the department or the division to have exercised a type or degree of control over the franchisee or the franchisee’s employees that is not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademarks and brand.

102.04(3) (3) As used in this chapter “farming” means the operation of farm premises owned or rented by the operator. “Farm premises” means areas used for operations herein set forth, but does not include other areas, greenhouses or other similar structures unless used principally for the production of food and farm plants. “Farmer” means any person engaged in farming as defined. Operation of farm premises shall be deemed to be the planting and cultivating of the soil thereof; the raising and harvesting of agricultural, horticultural or arboricultural crops thereon; the raising, breeding, tending, training and management of livestock, bees, poultry, fur-bearing animals, wildlife or aquatic life, or their products, thereon; the processing, drying, packing, packaging, freezing, grading, storing, delivering to storage, to market or to a carrier for transportation to market, distributing directly to consumers or marketing any of the above-named commodities, substantially all of which have been planted or produced thereon; the clearing of such premises and the salvaging of timber and management and use of wood lots thereon, but not including logging, lumbering or wood cutting operations unless conducted as an accessory to other farming operations; the managing, conserving, improving and maintaining of such premises or the tools, equipment and improvements thereon and the exchange of labor, services or the exchange of use of equipment with other farmers in pursuing such activities. The operation for not to exceed 30 days during any calendar year, by any person deriving the person’s principal income from farming, of farm machinery in performing farming services for other farmers for a consideration other than exchange of labor shall be deemed farming. Operation of such premises shall be deemed to include also any other activities commonly considered to be farming whether conducted on or off such premises by the farm operator.

102.04 History History: 1975 c. 199; 1983 a. 98; 1989 a. 64; 1993 a. 112; 1997 a. 38; 1999 a. 9; 2001 a. 37; 2005 a. 172; 2007 a. 20; 2009 a. 206; 2015 a. 180, 203; 2021 a. 29, 232.

102.04 Annotation When an employee simultaneously performs service for two employers under their joint control and the service for each is the same or closely related, both employers are liable for worker’s compensation. Insurance Co. of North America v. DILHR, 45 Wis. 2d 361, 173 N.W.2d 192 (1970).

102.04 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.

102.04 Annotation The county was found to be the employer, for worker’s compensation purposes, of a care giver for a service recipient under the long-term support community options waiver program under s. 46.27 (11). County of Barron v. LIRC, 2010 WI App 149, 330 Wis. 2d 203, 792 N.W.2d 584, 09-1845.

102.04 Annotation Under sub. (2m), the employee’s “employer” was the temporary help agency that the defendant compensated for the employee’s services. The exclusive remedy provision under s. 102.03 (2) therefore prohibited the employee’s estate from bringing tort claims against the temporary help agency but did not prohibit the estate from pursuing tort claims against the defendant and its insurer. Ehr v. West Bend Mutual Insurance Co., 2018 WI App 14, 380 Wis. 2d 138, 908 N.W.2d 486, 17-0142.

102.05 102.05 Election by employer, withdrawal.

102.05(1) (1) Withdrawal.

102.05(1)(a) (a) An employer, including a person engaged in farming who has become subject to this chapter, who has had no employee at any time within a continuous period of 2 years shall be deemed to have effected withdrawal, which shall be effective on the last day of that 2-year period.

102.05(1)(b) (b)

102.05(1)(b)1. 1. If an employer has not, in every calendar quarter in a calendar year, employed 3 employees and has not paid wages of at least $500 for employment in this state, the employer may file a withdrawal notice with the department, which shall take effect 30 days after the date of such filing or at such later date as is specified in the notice. Such employer may again become subject to this chapter as provided by s. 102.04 (1) (b) and (e). This subdivision shall not apply to farmers.

102.05(1)(b)2. 2. Any person engaged in farming who has become subject to this chapter may withdraw by filing with the department a notice of withdrawal, if the person has not employed 6 or more employees as defined by s. 102.07 (5) on 20 or more days during the current or previous calendar year. Such withdrawal shall be effective 30 days after the date of receipt by the department, or at such later date as is specified in the notice. Such person may again become subject to this chapter as provided by s. 102.04 (1) (c) and (e).

102.05(1)(c) (c) If an employer who is subject to this chapter only because the employer elected to become subject to this chapter under sub. (2) cancels or terminates his or her contract for the insurance of compensation under this chapter, that employer is deemed to have effected withdrawal, which shall be effective on the day after the contract is canceled or terminated.

102.05(2) (2) Election. Any employer who enters into a contract for the insurance of compensation, or against liability therefor, shall be deemed thereby to have elected to accept the provisions of this chapter, and such election shall include farm laborers, domestic servants and employees not in the course of a trade, business, profession or occupation of the employer if such intent is shown by the terms of the policy. Such election shall remain in force until withdrawn in the manner provided in sub. (1) (c).

102.05 History History: 1983 a. 98 s. 31; 1993 a. 81, 492; 1999 a. 14; 2021 a. 232.

102.05 Annotation An injured worker who never had individuals in his service as employees and did not otherwise fulfill the statutory definition of an employer was not an employer, because he had parachuted a worker’s compensation policy. Lloyd Frank Logging v. Healy, 2007 WI App 249, 306 Wis. 2d 385, 742 N.W.2d 337, 07-0692.

102.06 102.06 Joint liability of employer and contractor. An employer shall be liable for compensation to an employee of a contractor or subcontractor under the employer who is not subject to this chapter, or who has not complied with the conditions of s. 102.28 (2) in any case where such employer would have been liable for compensation if such employee had been working directly for the employer, including also work in the erection, alteration, repair or demolition of improvements or of fixtures upon premises of such employer which are used or to be used in the operations of such employer. The contractor or subcontractor, if subject to this chapter, shall also be liable for such compensation, but the employee shall not recover compensation for the same injury from more than one party. The employer who becomes liable for and pays such compensation may recover the same from such contractor, subcontractor or other employer for whom the employee was working at the time of the injury if such contractor, subcontractor or other employer was an employer as defined in s. 102.04. This section does not apply to injuries occurring on or after the first day of the first July beginning after the day that the secretary files the certificate under s. 102.80 (3) (a), except that if the secretary files the certificate under s. 102.80 (3) (ag) this section does apply to claims for compensation filed on or after the date specified in that certificate.

102.06 History History: 1975 c. 147 s. 54; 1975 c. 199; 1989 a. 64; 1995 a. 117.

102.06 Annotation A “contractor under the employer” is one who regularly furnishes to a principal employer materials or services that are integrally related to the finished product or service provided by that principal employer. Green Bay Packaging, Inc. v. DILHR, 72 Wis. 2d 26, 240 N.W.2d 422 (1976).

102.06 Annotation A franchisee was a “contractor under” a franchisor within the meaning of this section. Maryland Casualty Co. v. DILHR, 77 Wis. 2d 472, 253 N.W.2d 228 (1977).