Boyle's Wisconsin Safe-Place Law

Chapter One: Nature of Safe-Place Law

    (p) Worker's Compensation Act
The Worker's Compensation Act provides that the provisions of that Act shall be the "exclusive remedy" of the employee against the employer. [134] This precludes a civil action grounded on violation of safe-place statute by an employee against his employer who is under the Act, [135] and to a great extent removes an employee from the area of safe-place concern. But the exclusion is not complete. An employee whose injuries result from a violation by the employer of the safe-place law is entitled to recover 15 percent more compensation by virtue of a section of that Act which so provides. [136] Also, compensation is decreased 15% where the employee fails to use safety device or obey a safety order (or is intoxicated). [137] In a single case it is possible to have both a 15% increase in compensation and a 15% decrease. [138] However, neither an increase nor decrease becomes effective unless the failure was causal. [139]

Conversion Table Wis. 2d or Wis. to N.W. 2d or N.W.

134. Wis. Stat. Sec. 102.03(2); Knoll v. Shaler, 180 Wis. 66 (1923); Saxhaug v. Forsyth Leather Co., 252 Wis. 376, 382 (1948).

135. Mathews v. Big Foot Country Club, 7 Wis. 2d 244 (1959). But employee of independent contractor is not limited to Workmen's Compensation in proceeding against his employer's employer, Sandeen v. Willow River Power Co., 214 Wis. 166 (1934). Wasley v. Kosmatka, 50 Wis. 2d 738, 742 (1971): "Although the workmen's compensation statute contemplates that an employee can bring his third-party-negligence action against a co-employee, the precise question presented here is whether in suing a corporate officer in his capacity as a co-employee, the plaintiff can impose on defendant the increased standard of care that the safe-place law imposes on an 'employer' under secs. 101.01(3) and 101.06, Stats. We think not." (746) "Assuming that any person who fits the definition of 'employer' in sec. 101.01(3), Stats., may be personally liable, the potential consequences of such a decision should be considered. While the injured employee is recovering workmen's compensation from the employer, under this assumption he would also be recovering in tort indirectly against the same employer. This would work a clear circumvention of the exclusive remedy provision of the Workmen's Compensation Law. We think that an employee's proper remedy is intended to be increased compensation pursuant to sec. 102.57, Stats." (Further, note reference in this case to Hoeverman v. Feldman, 220 Wis. 557 as permitting independent recovery against employer.) See also: Pitrowski v. Taylor, 55 Wis. 2d 615 (1972); Anderson v. Green Bay Hockey, Inc., 56 Wis. 2d 763 (1973). But see Lupovici v. Hunzinger Const. Co., 79 Wis. 2d 491, 500 (1977) disclaiming disposition in Hoeverman and Anderson cases: ". . . to the extent the Anderson and Hoeverman cases may be interpreted to allow an action against a supervisory employee based on breach of the duty of proper supervision of the injured employee, a duty owed the employer (rather than based on breach of the duty of due care as a fellow employee), these two cases are disavowed."

136. Sec. 102.57 Stats.: "Where injury is caused by the failure of the employer to comply with any statute or any lawful order of the department, compensation and death benefits as provided in this chapter shall be increased 15 per cent." State ex, rel. Inspection Bureau v. Whitman, 196 Wis. 472, 504 (1928). See also Eau Claire Electric Co-op v. Ind. Comm., 10 Wis. 2d 209, 219 (1960): "The statutes nowhere provide that the employer is to be exempt from the increased compensation penalty provided by sec. 102.57, Stats., if the injury could have been avoided by compliance by the employee with all instructions and orders."; Milwaukee Forge v. ILHR Dept., 66 Wis. 2d 428, 434 (1975): "In a proper case, an award of increased compensation can be based upon a finding of a violation of the safe-place statute without a finding of a violation of any particular safety order."

137. Wis. Stat. Sec. 102.58.

138. Milwaukee Forge v. ILHR Dept., 66 Wis. 2d 428 (1975).

139. Note 138, supra.

Revised October 20, 2001