Workers’ comp is exclusive remedy for injury

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An auto mechanic injured at work cannot sue a co-employee under the exception to the Workers’ Compensation Act for negligent operation of a motor vehicle.

But the Feb. 10 opinion by the Wisconsin Court of Appeals denying tort remedies questions the proper standard for workplace injuries to mechanics set forth by the state Supreme Court in McNeil v. Hansen, 2007 WI 56, 300 Wis.2d 358, 731 N.W.2d 273.

Lee J. Kuehl, a service manager at an automotive repair shop, was injured during repairs to a van. A co-worker, Andrew DeMerritt, was allegedly negligent in parking the vehicle on a hoist. After the vehicle was raised, the back end tipped off the hoist and struck Kuehl.
Kuehl brought suit against DeMerritt’s insurer, but Brown County Circuit Court Judge Sue E. Bischel granted summary judgment for the insurer, holding the excusive remedy provisions of the act barred the claim.

In an opinion by Judge Michael W. Hoover, the Wisconsin Court of Appeals affirmed. The exclusive remedy provision, sec. 102.03(2), generally bars suits against co-workers, but contains an exception for “negligent operation [by a co-worker] of a motor vehicle not owned or leased by the employer.”

In McNeil, the Supreme Court explained the application of the exception to mechanics injured at work as follows:

“Injuries to workers caused by negligent co-employees while performing maintenance or repairs on a motor vehicle that could not then be driven on a public roadway are common occurrences for those workers in the vehicle maintenance and repair industry. They are directly related to their employment. Therefore, the costs of these injuries should be passed on to the industry and ultimately the consuming public; they should not be born by the worker.” McNeil, at par. 23.

Applying that principle to Kuehl’s case, the court concluded that DeMerritt’s placement of the vehicle on the hoist did not constitute negligent operation of a motor vehicle, and therefore, the tort action was barred by the statute.

Citing the “common sense” difference between repairing a vehicle and operating it, the court found that positioning a vehicle on a hoist to be clearly maintenance or repair, and not operation.

As a result, the court concluded, “it is unnecessary to address the second, ‘could not then be driven,’ condition discussed in McNeil.”

Nonetheless, the court discussed the condition, finding that it is likely to arise in future cases.

The court found that the vehicle could not be driven at the time of the injury, because it had been raised three feet off the ground on the hoist. Accordingly, the court held the exception for negligently operating a motor vehicle did not apply, and the exclusive remedy provision of the act barred Kuehl’s tort claim.

Case analysis

The rule set forth by the Supreme Court in McNeil is very problematic, something the Court of Appeals hints at, even if it does not explicitly disavow it.

Ideally, the Supreme Court’s reference to a motor vehicle “that could not then be driven on a public roadway” should have been omitted from the analysis.

The rest of the sentence would be just as true without it: “Injuries to workers caused by negligent co-employees while performing maintenance or repairs on a motor vehicle [] are common occurrences for those workers in the vehicle maintenance and repair industry.”

If an auto mechanic is injured at work, because of the negligence of another mechanic, it should make no difference whether or not the automobile is in a condition to be driven on a public road.

The purpose of the statute — placing the costs of those injuries on the industry, rather than the negligent worker — is furthered by limiting the plaintiff’s remedies to the act, even if the auto can safely be driven on a roadway.

In McNeil, the only reason the Supreme Court gave why the vehicle could not “then” be driven on a public roadway is that it was connected to a machine to flush the radiator. A worker reached in the window and turned on the ignition; it lurched forward and struck a co-worker.

There is no logical reason why the exclusive remedy provisions of the act should turn on something as arbitrary as whether or not the vehicle happened to be hooked up to a machine at the time of an incident like this.

While the Court of Appeals doesn’t explicitly say so, it does question how it should apply the language.

The court wrote, “[I]t is not immediately apparent how to apply the ‘could not then be driven on a public roadway’ condition.”

In a footnote, the court added, “It may be unnecessary to address the ‘could not then be driven’ condition regardless of our resolution of this case. The McNeil decision does not specifically state it is creating a new standard to apply in future cases, as opposed to merely emphasizing the facts present in that case.”

The court also noted that the two-justice concurrence in McNeil specifically states that the majority opinion does not create a new legal standard.

Ultimately, only the Supreme Court can state what exactly it meant with the “could not then be driven” condition. But for now, attorneys can cite these footnotes as authority for an argument that it imposes no separate condition at all, but merely “emphasiz[es] the facts present in [McNeil].”