Worker can't sue for pain and suffering due to settlement with employer.

• Date: 12 February 2003
• Author: Ziemer, David
• Published date: 12 February 2003
• Author: Ziemer, David

Byline: David Ziemer

An injured employee suing his employer for tort damages under the dual persona doctrine cannot sue for pain and suffering if he has accepted a settlement from the employer under the Worker's Compensation Act (WCA), the Wisconsin Court of Appeals held on Feb. 4. The court determined that prevailing on such a claim would constitute a double recovery for the same injuries.

Curtis J. Keltgen is a developmentally disabled adult with autism and mild mental retardation. In August 1994, he began working at L.E. Phillips Career Development Center, Inc. (CDC), a non-profit corporation that operates a sheltered workshop pursuant to a contract with Eau Claire County under sec. 51.437.

During his employment at CDC, Keltgen was repeatedly sexually assaulted by Giles Smith, another sheltered employee, in a work restroom. Smith had a history of sexually assaultive behavior of which CDC was aware.

Ultimately, Keltgen's mother discovered the abuse, and contacted CDC, which notified the police, resulting in Smith's arrest.

CDC had insurance for liability with St. Paul Fire & Marine Insurance Co., and worker's compensation insurance with Venture Insurance Company and Wausau Insurance Company.

St. Paul brought a declaratory judgment action, seeking a declaration that worker's compensation was Keltgen's only remedy against CDC for the assaults.

Keltgen counterclaimed against CDC and St. Paul in tort, against Smith for intentional assault, and against CDC, Venture, and Wausau under the WCA. Keltgen alleged that CDC was not entitled to protection of the exclusive remedy provisions of the WCA, under the dual persona doctrine, because CDC was not only Keltgen's employer, but also his developmentally disabled service provider.

He also later added a claim under sec. 51.61, the patients' rights law. The action was stayed by the trial court, pending a determination by the Department of Workforce Development (DWD) whether the assaults were compensable under worker's compensation.

However, the court heard a motion to dismiss on the sec. 51.61 claims, and dismissed all but Keltgen's claim under sec. 51.61(1)(f), concluding sheltered employment was an "educational service" and Keltgen had properly alleged that CDC violated this right by failing to stop the assaults. The court did not address the negligence claim against CDC and St. Paul.

In March 2000, a DWD administrative law judge entered an order asserting jurisdiction and finding the assaults were compensable under worker's compensation. In November of that year, the parties settled the worker's compensation claim for $10,000.

CDC then filed for summary judgment, arguing it did not have a dual persona in its relationship with Keltgen and that he could not maintain his action under sec. 51.61(1)(f) because any recovery would duplicate the damages he received in the worker's compensation settlement.

Reserve Judge Thomas H. Barland agreed with CDC that these damages would duplicate those already paid under the worker's compensation settlement. Barland also concluded the dual persona doctrine did not apply to CDC, and accordingly, granted CDC and its insurers summary judgment.

Keltgen appealed, but the court of appeals affirmed in a decision by Judge R. Thomas Cane.

Patients' Rights

The court first concluded that Keltgen was a "patient" under sec. 51.61. Section 51.61(1) defines "patient" to include persons receiving "services for ... developmental disabilities," and sec. 51.437(1) defines those "services" to include "sheltered employment."

The court further concluded that, similar to actions brought under the Wisconsin Fair Employment Act, actions pursuant to the provisions of sec. 51.61 are not prohibited by...