Jenkins v. Sabourin

311 N.W.2d 600, 104 Wis. 2d 309, 1981 Wisc. LEXIS 3035

• Court: Wisconsin Supreme Court
• Decided: November 3, 1981
• Docket: 80-624
• Status: Published

Opinions

HEFFERNAN, J.

This is a review of a decision of the court of appeals¹ which affirmed the order of February 20, 1980, of the Circuit Court for Milwaukee County, GEORGE A. BURNS, JR., Circuit Judge, dismissing the cross-claim of the defendants, Carl Sabourin and Badger Mutual Insurance Company, because it failed to state a claim upon which relief could be granted.

The issue posed on this review is whether the exclusivity-of-remedy provision of the Workers Compensation Act (ch. 102, Stats.) precludes a common-law cause of action by an employee, who has sustained a compensable injury, against the employer for negligently providing medical attention for that injury by persons employed for that purpose at the employer’s plant.

We conclude that the exclusivity of the remedy of workers compensation bars a third-party tortfeasor’s action for contribution for negligence of the employer in the course of providing medical attention to an injured employee. The employer, Briggs & Stratton, was acting in pursuance of its statutory duty as an employer to provide medical attention to its injured employee, Jenkins. Whether or not it did so negligently is irrelevant under the Workers Compensation Act. We conclude that Briggs acted only in its capacity as an employer under the Act and that the pleading herein, even as liberally construed, fails to allege that Briggs functioned in any other capacity. Accordingly, we affirm the decision of the court of appeals upholding the circuit court’s dismissal of the claim.

The facts show that the plaintiff Jenkins was injured while at work on March 31, 1976, at Briggs as the result of a prank of a fellow employee, Carl Sabourin. Sa-bourin released a toy snake from a box, startling Jenkins and causing him to fall against a steel rack, injuring his ribs, shoulder, and spine.

Pursuant to sec. 102.29, Stats.,² Jenkins commenced a third-party action against Sabourin and his household insurer, Badger Mutual Insurance Company. He also joined Briggs as a nominal defendant because it paid compensation and would ordinarily be subrogated to any recovery against a third-party tortfeasor pursuant to sec. 102.29(1). Sabourin and Badger cross-claimed against the employer, Briggs, alleging there was a failure to exercise ordinary care in the course of providing medical attention to Jenkins and that, were Jenkins to recover from Sabourin and his insurer, they are entitled to recovery over against Briggs. The relevant language of the cross-claim is that:

“(10) If . . . Plaintiff sustained any injury . . .said damages were caused or contributed to by Briggs & Stratton in that Briggs & Stratton failed to exercise ordinary care in providing medical attention to the Plaintiff. . . .”

On the motion of Briggs, the trial court dismissed the cross-claim on the ground that it failed to state a claim for which relief could be granted. The argument of Briggs, which was adopted by the trial court, was that any injury or aggravation of injury as a result of the medical treatment of the work injury on March 31, 1976, was attributable to the original injury — that not only the original injury but any aggravation thereof was com-pensable by the employer under the Workers Compensation Act. The trial court concluded that, therefore, the employer was “immune from all liability for contribution to the Defendants for any injuries arising out of the Plaintiff’s employment, including the aggravation of any such injury as a result of allegedly negligent medical medical treatment.” That conclusion of the trial court was based upon the provision of the statute previously cited, sec. 102.03(2), Stats. 1975. It provides in part:

“. . . the recovery of compensation pursuant to this chapter shall be the exclusive remedy against the employer and the worker’s compensation insurance carrier.”

When there has been a motion to dismiss because of the failure to state a claim for which relief can be granted, this court, as must the trial court and the appellate court, can rely only upon the allegations of the claim itself. Nevertheless, the language of the pleading should be liberally construed in favor of a conclusion that a cause of action or a claim has been stated if such conclusion is reasonably possible.³

One reasonable interpretation of the language of the cross-claim would be that Briggs failed to exercise ordinary care because it provided no medical attention for Jenkins following his work injury. It is, however, implicit in these proceedings, and it is not disputed by the employer, that Briggs provided some nursing services for its employees within the walls of its plant. Liberally construing the complaint, we conclude that it is the intent of the defendant Sabourin and his insurance company to allege that the medical attention given T.J. Jenkins by the Briggs nursing staff did not comport with the required standard of ordinary care and that some injury was caused by the lack of ordinary care.

Beyond this liberal construction of the pleadings we cannot go. The affidavits which have been annexed to the briefs and appended to the record and the assertions of facts in respect to the nature of Briggs’ negligence are not a part of the record and cannot be considered. Onderdonk v. Lamb, 79 Wis. 2d 241, 249, 255 N.W.2d 507 (1977), and cases cited therein.

Accordingly, -we disregard them and confine our attention to what we deem to be a reasonable construction of the defendant’s pleadings — that Briggs supplied medical attention to the plaintiff and that it did so negligently. Surprisingly, perhaps, the pleading contains no allegation that the original work injuries were aggravated by the treatment received from Briggs.

Following the trial court’s dismissal of the cross-claim of Sabourin and Badger Mutual, the injured employee, Jenkins, settled his case with Sabourin and Badger. Jenkins’ action was then dismissed pursuant to that settlement, and Sabourin and Badger Mutual appealed the dismissal of their cross-claim against Briggs to the court of appeals. The court of appeals’ decision affirmed that order. Sabourin and Badger Mutual petitioned for review of that decision. Review was granted, and on review we affirm the decision of the court of appeals.

Jenkins' complaint alleges that he was an employee of Briggs. The answer of Sabourin and Badger alleges that Sabourin was the co-employee of Jenkins. Thus, it is not disputed that the initial relationship of Jenkins and Briggs was one of employee and employer, nor is there any dispute at this juncture that Jenkins was paid worker’s compensation by Briggs.

The crucial question is what was the relationship of Jenkins to Briggs at the time of the allegedly negligent medical attention.

Sabourin contends that no relationship protected by the Workers Compensation Act existed at the time of the medical attention, and, hence, the act of furnishing services was not in the course of employment and was unrelated to the provisions of the Act. Therefore, it is argued, the exclusivity provision is inapplicable because Briggs simply was not then an employer within the provisions of the statute.

The argument of Sabourin and Badger is the simplistic one that, at the time of the allegedly deficient medical attention, Jenkins was performing no service whatsoever for Briggs nor any service growing out of or incidental to his employment. In stating their argument, the defendants paraphrase the provisions of sec. 102.03(1) (c) 1, Stats. Thus, it is their argument that any injury occasioned by the negligent medical attention was under circumstances whereby the conditions for an employer’s liability under the Workers Compensation Act were not met, that the Act was inapplicable to this injury, and, hence, in respect to any injury during the course of treatment, the exclusivity of the workers compensation remedy was not triggered.

This assertion is, however, incorrect. It is boilerplate law that any medical injury as the consequence of treatment of a work-related injury relates back to the original compensable event and the consequences of medical treatment, whether the result of negligence or not, are the liability of the employer under the Act. Stiger v. Industrial Comm., 220 Wis. 653, 265 N.W. 678 (1936); Lakeside Bridge & Steel Co. v. Pugh, 206 Wis. 62, 238 N.W. 872 (1931). As we said in Stiger:

“If an employer must compensate an employee for an actual injury sustained as well as for the injuries caused by the malpractice of a surgeon who treats an injured employee (and such is the law), then it must logically follow that an employer must compensate an employee, or his dependents in case of his death, for injuries which properly may be found to have resulted from an operation skilfully performed upon an employee who has been injured while performing services growing out of and incidental to his employment.” At 657-58,

It is beyond doubt at this late date in the history of our workers compensation law that injury during the course of medical attention to a covered industrial injury is in itself compensable under the Act.

While there may be circumstances where the treatment injury is separate from the original work injury, it is clear that, nevertheless, the employer is liable for compensation payments for the subsequent injury sustained in the course of treating the compensable injury. It is equally clear that under such circumstances the Wisconsin law, as a matter of policy, when it imposes this liability upon the employer, clothes the employer with immunity from tort responsibility. He can be liable only for compensation payments, which may be augmented by reason of the aggravation resulting from the treatment. It is established Wisconsin law that, when an employee is treated for a work-related injury and incurs an additional injury during the course of treatment, the second injury is deemed as one growing out of, and incidental to, employment — in the sense that the employer, by virtue of the Act, becomes liable for the augmented injury.

In the absence of other factors, which may or may not be relevant, injury in the course of such treatment subjects the employer only to compensation liability and not to damages in tort.

There is, however, another factor — at least in the reasoning of Sabourin and Badger — that in this case dictates the conclusion that Briggs was not an employer entitled to immunity from tort. They contend that Briggs, when it gave medical attention to its injured employee Jenkins, stepped out of its role as an employer and assumed the role of a provider of medical services, an entity which is entitled to no immunity under the Workers Compensation Act.

Combined with the assertion discussed above — that Jenkins was not performing services for the company when he was receiving treatment — is the argument that factually Briggs “was providing medical services to the plaintiff completely separate and apart from any employment function.” Asserting this proposition, however, does not make it so. But petitioners argue that at any rate what Briggs was doing was no different than what would have been done in a private medical clinic not operated by Briggs and that such a clinic could have been sued and no immunity under the Workers Compensation Act could have been asserted. Because the function— providing medical services — is the same, it is urged that the result of suit must be the same. Yet if Briggs cannot be sued in tort for its medical function, we could not conclude that an independent clinic, therefore, could not be. Hence, it is at once apparent that whether the function is the same may not be the controlling factor. At the very least, it begs the question to conclude that, because a party denominates Briggs a medical provider rather than an employer, Briggs is not an employer clothed with immunity under the Act. It may be conceded from the record and the arguments of counsel that Briggs furnished medical services to Jenkins, but that conclusion does not ipso facto exclude Briggs from having furnished those services in its capacity as an employer under the Workers Compensation Act.

The cross-claim alleges that Briggs “provid [ed] medical attention to the Plaintiff.” There is no assertion that the employment relationship had terminated, nor is there anything in the pleading to indicate that the role of medical provider was inconsistent with Briggs’ role as the employer. All that can be gleaned from the pleading is that Briggs, who was an employer, has in addition provided medical attention. The most this can mean is that Briggs performed in more than one function — first, in the usual employer-employee relationship and, second, in giving medical attention to an employee after the happening of a covered work inj ury.

2A Larson, Workmen’s Compensation, sec. 72.80, p. 14-112, points out that what has been called the “dual capacity” doctrine may result in the liability of an employer to an employee for tort (i.e., the removal of the shield of the Workers Compensation Act as an exclusive remedy) only if the employer occupies “a second capacity . . . independent of those imposed on him as ,an employer.” (Emphasis supplied.) He emphasizes:

“One thing is clear. Dual capacity will not be found merely because the employer has a number of departments or divisions that perhaps are quite separate in their functions and operations.” Sec. 72.80, p. 14-115.

Thus, the fact upon which appellant relies — that the department of Briggs that allegedly was negligent had a different function than the department in which Jenkins sustained his injury — is not sufficient to trigger tort liability. The basic question is whether the function of the medical department was undertaken because of the employment relationship and the obligation to injured workers which could be discharged in this way or whether the purpose of the department was to furnish medical attention aside and apart from the employer’s responsibilities to an inj ured employee.

To ask the question is tantamount to answering it. There is no allegation that Jenkins would have been treated at all by Briggs were it not for the prior work-related injury status. What evolved as the result of the furnishing of treatment was but another facet of the employer relationship under the Workers Compensation Act. There is no intimation in the pleadings that anyone other than a work-injured employee could be treated at the Briggs nursing station. Under the Workers Compensation Act an employer is obligated to provide for medical treatment, but there is no obligation to treat anyone else; and insofar as the record reveals, Briggs did not hold itself out as a provider of health care services to the general public, or even to employees not in-j ured in the course of covered employment.

In conformity with the Larson analysis, difference of function is not in itself significant. What is significant is whether or not the function creates obligations that would exist absent those that inure by virtue of the employer’s status. As Larson states, in a situation where the dual capacity existed (stevedore employer and shipowner), the duty of an owner furnishing a seaworthy vessel would exist although the shipowner had no employees. Larson, sec. 72.80, p. 14-117. Here, the only obligation generated or duty served by the in-house medical treatment was the subsisting one to injured employees. There was no evidence of any obligation to, or the holding out of, medical services to anyone but employees. The obligation to a work-injured employee of the medical-service function, whether performed by the employer or by another, stemmed wholly from, and was a part of, the employer’s function and is mandated by the Workers Compensation Act.

This situation is unlike that in Duprey v. Shane, 39 Cal. 2d 781, 249 Pac. 2d 8 (1952), where the injured employee was at work in a chiropractic clinic which held itself out to serve the general public. When Shane adjusted Duprey’s neck, he, as a doctor of chiropractic, undertook an obligation which was a part of the clinic’s general obligation to the public. Here, however, there was no responsibility to any except those persons who were in an employment relationship. While the function of the Briggs nursing staff was treatment, it was treatment of employees, an obligation mandated by the Workers Compensation Act itself. Sec. 102.42(1), Stats. To use the term employed by Larson, there was no second persona. The only persona here involved was the employer, whose obligations arose only under the Act. Remedies under the common law are hence barred by sec. 102.03 (2) of the Act.

While Duprey v. Shane, supra, is relied upon by the petitioners, that case, as here been pointed out, involved a chiropractor who had obligations to the general public. Moreover, that case has not been followed even in California in circumstances similar to that of the instant case.

In Dixon v. Ford Motor Co., 53 Cal. App. 3d 499, 125 Cal. Rptr. 872 (1975), an employee was treated at the aid station within the plant. Undisputably, the treatment given failed to reach the standard of ordinary care. Therein, the court held that treatment of the injury, albeit negligent treatment, was an incident of the employment relationship. It distinguished Duprey, because the chiropractor in Duprey, who was on call to the public, responded in the same way he “ ‘would have assumed had he been called in on the case.’ ” At 507. The California court made it clear that Duprey had not been, and would not be, extended beyond its precise facts. Hence, the jurisdiction which first enunciated the doctrine in respect to medical care did not allow tort recovery in a case nearly identical to this one.

The only jurisdiction which has permitted tort recovery under similar facts is McCormick v. Caterpillar Tractor Co., 82 Ill. App. 3d 77, 402 N.E.2d 412 (1980). The Illinois court concluded, in an ipse dixit holding, that, “Thus a doctor-patient relationship is created between the employer and the employee and the employer takes on a different persona.” At 79-80.

We consider the dissent in that case to be the more persuasive. The dissenting judge reasoned, “Caterpillar was providing medical services but only as a consequence of its status as an employer.” At 83. That is the situation in the instant case — a crucial distinction which the majority in Caterpillar brushed aside, relying instead on what it characterized as the doctor-patient relationship. Because it failed to give any weight to the reason why Caterpillar provided the service of physicians on its staff —the discharge of its duty as an employer to a work-injured employee — we consider the majority opinion to be erroneous.

The Caterpillar majority in part based its conclusion on the apparent incongruity of permitting a tort recovery from a negligent private physician, but not from an in-house physician. It seems to us that this incongruity, if such it be, is part and parcel of the compromise that constitutes the Workers Compensation Act. When an employee is injured by the negligence of a fellow employee or of his employer, he can recover; but he can also recover these same scheduled benefits when he cannot prove negligence or when it is clear there was no negligence. This is equally true where there is additional injury by aggravation of a compensable injury. The worker may recover compensation payments for the aggravation, although the subsequent medical treatment by an outside physician is free of negligence; and even if the subsequent physician is negligent the employer is liable under the Act for the consequences of that medical malpractice.

If the dual-capacity doctrine were to be applied as petitioner seeks, it would be necessary to prove in all cases that the in-house treatment was negligent, for the contention is that the injury was not in the course of the employment covered by the Act, but in a separate capacity. This is contrary to Stiger, supra, and established Wisconsin law. The remedy proposed by petitioners is hardly a step forward in workers’ rights. They seek by their position in this case to place the burden of a common-law tort action upon workers who were injured by in-house treatment of a work-related injury.

It is, however, true as the petitioners contend that, under our statutes, sec. 102.29(3), Stats., an employee may take the compensation to which entitled and also may maintain a civil action for malpractice against any physician, chiropractor, or podiatrist for malpractice. The statute recites that the employer is not allowed any right to share in these proceeds, as he may in respect to other third-party tortfeasors.

If this represents the policy of the state, why then may the worker not recover against a health-provider nurse who furnishes medical attention in the employer’s establishment. Facially, it would appear, although we do not decide, that the worker could recover under this statute even from a physician who served full time on an employer’s staff.

Apart from this statute, it has always been true that an employee injured by the malpractice of an outside physician had a right of action (subject to some recoupment of the compensation payments by the employer).

If malpractice is malpractice is malpractice, why not malpractice against any health provider even though care is provided in the course of conduct as an employer. As this court pointed out in Mulder v. Acme-Cleveland Corp., 95 Wis. 2d 173, 290 N.W.2d 276 (1980), however, the Workers Compensation Act no doubt, in some cases, results in inequities, but its provisions are the result of decades of debate prior to its passage. It represents a delicate balancing of the interests represented in our industrial society. It perhaps is not “fair” that an employer must always pay regardless of fault, even where the fault is that of a third party, but this is a part of a compact arrived at by the legislative process.

Where conditions of liability exist, the employer must always pay and the worker always recovers. The worker, although not afforded full tort damages, is assured of prompt and sure payment and is relieved of the onus of evidentiary proof and the costs of common-law litigation. The employer on the other hand is relieved of the possibility of harassing tort claims and the uncertainties of tort judgments, but the employer must compensate in scheduled amounts regardless of fault.

New liabilities on employers or employees should not be imposed by courts without compelling and well understood reasons. While a tort remedy could be beneficient and just in a particular case, such precedent, unless carefully considered from the viewpoint of general state policy, could well gut the Workers Compensation Act, create injustice, and substantially impair the exclusivity-of-remedy provision, which has made the Workers Compensation Act tolerable to employers.

As we stated in Mulder, supra, at 180 ff., this comprehensive, well thought out legislative scheme should not be tinkered with by the courts. Only if we were convinced that the disparity of treatment alleged here was of constitutional proportions should there be any court-mandated change in the effect of the Workers Compensation Act. No constitutional infirmity is urged in these proceedings. To the extent that the present law may be disparate, unequal, or uneven in its application, it is a question for the legislature to address.

By the Court. — Decision affirmed.

1 Unpublished opinion, December 9, 1980.

2 At the time of the original injury, March 31, 1976, sec. 102.29, Stats., permitted a third-party action against a co-employee. Sec. 102.03(2) has, however, been amended by ch. 195, sec. 2, Laws of 1977. That amendment, with certain exceptions not applicable here, bars a common-law third-party action against a co-employee. See Gerger v. Campbell, 98 Wis. 2d 282, 284, 297 N.W.2d 183 (1980).

3 The claim in toto as asserted by Sabourin and Badger merely stated:

“10. If in fact the Plaintiff sustained any injury on March 31, 1976, with resultant damages as he alleges, said damages were caused or contributed to by Briggs & Stratton in that Briggs & Stratton failed to exercise ordinary care in providing medical attention to the Plaintiff. If these Defendants are held liable to the Plaintiff, they will be entitled to indemnification or contribution from Briggs & Stratton according'to law.”