Worker Who Blames Carrier for Suicide Attempt Can’t Sue in Tort

By Jim Sams | February 6, 2020

An injured worker may not pursue a tort claim against a workers’ compensation carrier that he accuses of negligence by denying payment for antidepressants, prompting him to attempt suicide, the Wisconsin Court of Appeals ruled.

The court’s District III on Tuesday reversed a circuit court decision, holding that workers’ compensation exclusive remedy bars lawsuits against carriers for improper claims-handling practices. Many state appellate courts have issued similar rulings, but some have allowed bad-faith actions against work comp carriers under narrow sets of circumstances.

A bull gored Francis G. Graef on Nov. 1, 2012 while he was working in a livestock yard owned by his employer, Equity Livestock. He developed depression while recovering from the injury and was prescribed Duloxetine to treat it.

In June 2015, Continental Indemnity Co. denied payment for a refill of Graef’s prescription for Duloxetine. Graef never challenged that denial. On Aug. 9, 2013, he tried to kill himself with a gunshot to his head.

Graef was hospitalized but eventually recovered from the gunshot wound.

In 2017, Graef filed a lawsuit against Continental in Marinette County Circuit Court. He charged that the carrier had been negligent in failing to authorize payment for his anti-depressant and that he would not have attempted suicide if it had approved the refill. He sought compensatory damages for personal injuries, pain and suffering and disability.

Later, Graef added Applied Underwriters as a defendant, asserting that it had assisted Continental in adjusting the claim.

Continental filed a motion for summary judgment, arguing that Graef’s tort action was barred by exclusive remedy. The Marinette County judge denied the motion. Continental and Applied Underwriters appealed.

The appellate court noted that in 1979 the Wisconsin Supreme Court ruled that an injured worker could file a tort claim against a carrier that acted in bad faith by denying a claim because the Workers’ Compensation Act did not provide any remedy. The state legislature responded by passing a law effective in 1981 that created penalties for mishandling work-injury claims and deemed workers’ compensation the exclusive remedy for any bad faith claims against insurers and employers.

Graef’s attorney argued that he is not subject to that statute because he is alleging negligence, not bad faith. The Court of Appeals rejected the argument.

“As Continental aptly notes, the short-lived, narrow exception created by Coleman that allowed a worker’s compensation claimant to sidestep the exclusive remedy provision by alleging bad faith would have been unnecessary if ‘a mere [negligent] denial of a worker’s compensation claim … could be pursued in tort,'” the opinion says. “More importantly, it would be incongruent to conclude that our legislature intended for a claim that a worker’s compensation insurance carrier acted in bad faith to be pursued exclusively under the Act while at the same time allowing a claim alleging negligent conduct to proceed in civil court.”

Other state courts have also ruled that bad faith claims against insurers are barred by exclusive remedy. Both the Texas Supreme Court and New Jersey Supreme Court, for example, effectively barred civil lawsuits for bad faith allegations in workers’ comp claims. The Iowa Supreme Court issued a similar ruling last May.

The Oklahoma Supreme Court, on the other hand, ruled in 2017 that an injured worker can file suit in tort if a workers’ compensation carrier did not comply with a Workers’ Compensation Commission order. The Florida Supreme Court also held in 2005 that an injured worker could sue a carrier in tort for “egregious conduct” when adjusting his work-injury claim.

While Graef lost his court case, an August 2018 report by TheCompass, a newspaper published by the Catholic Diocese of Green Bay, suggests that he has recovered from the severe depression that nearly ended his life.

Graef told the newspaper that he was in a coma for about two weeks after shooting himself. He woke up to find himself at the Froedtert Hospital in Milwaukee. He was later placed in the psychiatric ward at the University of Wisconsin Hospital, then treated at a rehabilitation center and eventually received outpatient mental health care from Catholic Charities, according TheCompass report.

“I lucked out twice,” Graef told the newspaper. “The bull didn’t kill me. The bullet didn’t kill me. I’m here. I should have been dead twice, but I survived them both,” he said. “(God) has something he wants me to do yet.”

About Jim Sams

Sams is editor of the Claims Journal. He can be reached at jsams@wellsmedia.com.

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