Jenkins v. Sabourin
| Decision Date | 03 November 1981 |
| Docket Number | No. 80-624,80-624 |
| Citation | 104 Wis.2d 309,311 N.W.2d 600 |
| Parties | T. J. JENKINS, Plaintiff, v. Carl SABOURIN and Badger Mutual Insurance Company, a domestic corporation, Defendants-Appellants-Petitioners, Briggs & Stratton Corporation, Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
Ellis R. Herbon (argued), Robert M. Koch and Herbon & McLaughlin Milwaukee, on briefs, for petitioners.
Elwin J. Zarwell, Peter W. Bunde (argued), Thomas Armstrong and Quarles & Brady, Milwaukee, for defendant-respondent.
This is a review of a decision of the court of appeals 1 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. Sabourin released a toy snake from a box, startling Jenkins and causing him to fall against a steel rack, injurying 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 compensable 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 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 Carl 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 employer and employee, 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 (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 boiler-plate 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." 220 Wis. at 657-58, 265 N.W. 678.
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...
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