Workers' comp is exclusive remedy for injury, rules Wisconsin Court of Appeals.

Byline: David Ziemer

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...