Falk: Why Mill Explosion Stayed in Workers' Compensation

Wednesday, October 21, 2026 | 0

One of the trade-offs of Wisconsin’s workers’ compensation system is that for injuries sustained at work, it is nearly always the exclusive remedy available to injured employees. There are some narrow exceptions, and employees can still make a third-party claim against an at-fault non-employee, but the rule generally means that employees are limited to the remedies afforded by the workers’ compensation act.

Matthew R. Falk

Dodge v. Didion Milling Inc. examines the efforts of employees to escape the limits of the workers’ compensation act and pursue a civil action against their employer. The employees made two different arguments that they hoped would permit their civil lawsuit to proceed. However, the court rejected each of these.

The case stems from a horrific explosion that occurred in 2017. Two days after a fire at Didion’s corn mill, another fire erupted, and the mill exploded, killing five workers and injuring at least a dozen more. The employees pointed to inadequate dust-control and fire-suppression measures but argued that the explosion was not an “accident” under the workers’ compensation act. They relied on Wisconsin case law that held that when “an employer injures an employee through his or her intentional conduct, the injury is not an ‘accident’ under the [compensation act], at least to the extent that such intentional conduct involves sexual harassment.”

However, later case law clarifies that this is a “narrow exception” to the general rule and that the rule applies only in the unique situation of a sole proprietor — the employer — who intentionally causes the injury.

Here, while there was evidence that the explosion was a ticking time bomb, that was not enough to escape the confines of the workers’ compensation act. The employees failed to show how the decision to return to work despite the ticking time bomb was an intentional act of Didion as opposed to the action of an agent or co-employee. Acts of agents and co-employees are not enough. In addition, Didion’s broader failure to take adequate safety measures did not rise to the level of engaging in direct acts.

The court also relied on a public policy argument, stating that defining “accident” in such a way that it amounted only to injuries that were unforeseeable would undercut the entire purpose of the workers’ compensation act, which provides injured workers with smaller recoveries in exchange for not having to prove fault.

The second argument also failed. One employee involved in the lawsuit was not on the clock at the time of the accident. Instead, he heard the explosion and got out of bed to go help his fellow employees and was injured while doing so. Even so, the court held that he was within the scope of his employment at the time of the accident and, as such, was limited to the remedies of the workers’ compensation act.

The right to recover under the workers’ compensation act, the court points out, is not limited to the time during which an employee is being paid to perform his or her duties. This employee was still performing a duty to his employer to rescue injured workers, even though he was not being paid. As such, the court held that he was within the scope of his employment and that the civil lawsuit must be dismissed.

The takeaway is that it is important to be aware of the proper forum for a suit. In Wisconsin, health insurers cannot participate in the workers’ compensation action, so a civil lawsuit provides a subrogated provider with more transparency, since it can participate. Likewise, while a subrogated party may file its own suit in civil court, such a course of action is not available in workers’ compensation. The law does not give parties the freedom to choose the more convenient forum or the one that will provide the most damages. If an injury was incurred within the scope of employment, workers’ compensation is the available remedy.

In short, Dodge reinforces how difficult it is to move a workplace injury claim out of Wisconsin’s workers’ compensation system. Even serious safety failures and a foreseeable risk of harm did not make the mill explosion something other than an accident, and the off-duty employee’s rescue efforts remained incidental to his employment. For injured employees and subrogated health insurers alike, identifying whether the injury is covered by workers’ compensation — and whether a viable claim exists against a separate third party — is therefore critical before pursuing a civil action.

Matthew Falk is a shareholder in Matthiesen, Wickert & Lehrer's Milwaukee office. This blog post is reprinted with permission.