Holdmann v. Smith Laboratories, Inc.

• Citation: 447 N.W.2d 69,151 Wis.2d 813
• Decision Date: 09 August 1989
• Docket Number: No. 88-2351,88-2351
• Parties: Dennis P. HOLDMANN, and Margaret Holdmann, Plaintiffs-Respondents, Heritage Mutual Insurance Company, Intervening-Plaintiff-Appellant, v. SMITH LABORATORIES, INC., Defendant-Respondent, Northbrook Companies, Defendant.
• Court: Court of Appeals of Wisconsin

Page 69

447 N.W.2d 69

151 Wis.2d 813

Dennis P. HOLDMANN, and Margaret Holdmann, Plaintiffs-Respondents, Heritage Mutual Insurance Company, Intervening-Plaintiff-Appellant, v. SMITH LABORATORIES, INC., Defendant-Respondent, Northbrook Companies, Defendant.

No. 88-2351.

Court of Appeals of Wisconsin.

Argued June 13, 1989.

Opinion Released Aug. 9, 1989.

Opinion Filed Aug. 9, 1989.

Andrew M. Bath, (argued), for intervening-plaintiff-appellant.

Aaron Belongia, Elm Grove (argued), for plaintiffs-respondents.

Fred A. Erchul, II, Milwaukee (argued), for defendant-respondent and defendant.

Donald J. Hanaway, Atty. Gen., on brief and Stephen M. Sobota, Asst. Atty. Gen. (argued), for amicus curiae.

Before BROWN, P.J., and SCOTT and NETTESHEIM, JJ.

BROWN, Presiding Judge.

This appeal concerns the interpretation of sec. 102.29(1), Stats., which allows employees, employers and compensation carriers to make a claim or maintain an action against a third party for an injury compensable under the worker's compensation statutes. Huck v. Chicago, St. P., M. & O. Ry., 14 Wis.2d 445, 448, 111 N.W.2d 434, 435 (1961). The statute contains a method by which recovery is divided among the interested parties. Heritage Mutual, worker's compensation carrier for NU Floor, Inc., appeals from a trial court order that denied it a percentage recovery from the Holdmanns' third party claim against Smith Labs on the grounds that there was no proof of injury in the record. We reverse, holding that the settlement reached between Holdmann and Smith Labs represents proceeds of a third party claim for damages resulting from an injury for which Heritage was liable. Heritage is therefore entitled to a share in the proceeds pursuant to sec. 102.29(1), Stats.

The undisputed facts are that, while employed by NU Floor, Inc., Holdmann suffered a work-related injury to his back. His treatment included injections of Chymodiactin into his lower back. The Chymodiactin did not relieve his pain and he thereafter underwent successful surgery. Heritage Mutual paid for both medical procedures.

Holdmann subsequently sued Smith Labs, manufacturer of Chymodiactin, alleging that it was negligent in selling and distributing a defective product that caused injury when used in the manner for which it was intended; that such defect caused injury, including pain and disability, to Holdmann; and that Holdmann suffered damages from that injury.

Smith Labs and Holdmann conditionally agreed to settle all issues upon the payment of $10,000 by Smith Labs to Holdmann. Heritage Mutual asserted an interest in the proceeds pursuant to sec. 102.29(1), Stats. Holdmann then successfully moved the trial court for an order determining that Heritage was not so entitled. The grounds for the motion, as argued to the trial court, were that there was no separate injury or aggravated work-related injury proved by Heritage and that without proof of such injury it could not recover. At oral argument to this panel, Holdmann went so far as to suggest that his suit against Smith Labs was a nuisance action. ¹

The issue presented is primarily one of statutory interpretation, a question of law that we review without deference to the trial court. State v. Gavigan, 122 Wis.2d 389, 391, 362 N.W.2d 162, 164 (Ct.App.1984). Where statutory language is clear and unambiguous, we do not resort to extrinsic aids or rules of construction for assistance. Marshall-Wisconsin Co. v. Juneau Square Corp., 139 Wis.2d 112, 133, 406 N.W.2d 764, 772 (1987).

It is well-established that additional or augmented injury during the course of medical attention to a covered industrial injury is compensable under the Worker's Compensation Act and that these consequences of treatment are the liability of the employer (and of course his insurer). Jenkins v. Sabourin, 104 Wis.2d 309, 316, 311 N.W.2d 600, 604 (1981). However, the treatment must be undertaken in good faith. Spencer v. DILHR, 55 Wis.2d 525, 531-32, 200 N.W.2d 611, 614-15 (1972). The trial court here...