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Wisconsin

WISCONSIN

Where the employer and employé are subject to the compensation provisions of the act "liability for the compensation hereinafter provided for, in lieu of any other liability whatsoever, shall exist against an employer

§ 2394-3.

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In a note to the above section the Industrial Commission of Wisconsin states:

"Where the employer and employé are subject to the compensation act, the provisions of the act are exclusive and the employé cannot maintain a suit in court against his employer. He may make his application for compensation under the Act and must abide by its provisions."

If the injury is caused by the failure of the employer to comply with any statute of the State, or any lawful order of the Industrial Commission, the compensation provided shall be increased fifteen (15) per cent. § 2394-9 (5) (a).

If the injury is due to the act of a third person and the employé shall make a claim against his employer for compensation such claim shall operate as an assignment of any cause of action in tort which the employé or his personal representative may have against any other party for injury or death, and such employer may enforce, in his own name, the liability of such other party. The making of a claim by an employé against a third party for damages by reason of an accident covered by the statute, shall operate as a waiver of any claim for compensation against the employer. § 2394-25.

In a note to the above section the Industrial Commission of Wisconsin states:

"In case injury is caused by the act of a person other than the employer, under this amendment the employé must elect whether to claim compensation from the employer or the third party. It prevents the employé from making claims against both employer and the third party."

CHAPTER VI

INJURIES" WHICH ARE THE BASIS OF A CLAIM FOR COMPENSATION AND WHEN THEY" ARISE OUT OF" AND "IN THE COURSE OF" THE EMPLOYMENT.

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ARTICLE B.-WHAT IS AN "INJURY" OR AN "ACCIDENTAL

OF EMPLOYMENT. 4. INJURIES BY THIRD PERSONS 338 5. EMPLOYERS' LIABILITY

338

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CASES IN POINT; HOW

CITED.

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ARTICLE C.-WHEN DOES (" AN INJURY 'ARISE OUT OF" OR "IN THE COURSE OF" THE EMPLOYMENT?...

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ARTICLE A.-INTRODUCTION; SCOPE OF CHAPTER

1. Significance of terms employed.

Doubtless the questions which constitute the title of this

Obligation to workman's family

chapter are, and will continue to be, the principal sources of controversy under all workmen's compensation acts. While several distinct questions are involved they are so interdependent that it will be found convenient to discuss them in one chapter.

When the word "injury" alone is used in a statute its scope is very broad. Almost all diseases are construed to be "injuries". Whereas, if the term is qualified by the word "accident" an entirely different element is introduced.

Some of the statutes award compensation when an “injury" or an "accidental injury", as the case may be, "arises out of and in the course of" the employment; while others merely require that the injury shall occur "in the course of" the employment. This distinction also is an important one, as is demonstrated by the adjudications hereinafter discussed. Not all of the American statutes use this phraseology. In the Wisconsin Act it is provided that compensation shall be awarded "Where, at the time of the accident, the employé is performing service growing out of and incidental to his employment." The California Act provides for compensation "Where, at the time of the accident, the employé is performing service growing out of and incidental to his employment and is acting within the course of his employment as such." Nearly all of the acts, however, provide for compensation either when the injury "arises out of and in the course of employment" or merely when the injury occurs "in the course of the employment." The meaning of the exceptional phrases seems to be about the same as the conventional one arising out of and in the course of the employment", as the adjudications hereinafter cited indicate.

2. The obligation to a workman's family in cases of intentional injuries or serious misconduct.

If a workman should intentionally cut off a finger, or a hand, probably no one would urge that his employer should be compelled to pay him compensation for the injury. If

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