Wisconsin Workers Comp Conundrum – Who Is or Is Not Employee?

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Recent Court Decision Causes Wisconsin Workers Comp Conundrum For Temporary Agencies

A recent  Wisconsin Workers Comp Appeals Court decision redefines the definition of an employer and employee.   My definition of exclusive remedy is – Employers cannot be sued in tort/civil court if a valid workers comp policy that covers an injured employee for an incident is in effect.  

picture of winning Wisconsin workers comp cheese
Wikimedia Public Use License

Exclusive remedy articles I have written over the years usually mentions a court affirming the doctrine can be found in this article search.

The case is:

IN RE THE ESTATE OF CARLOS ESTERLEY CERRATO RIVERA:
RAOUL R. EHR, SPECIAL ADMINISTRATOR, GUINIFER LIZETH
CERRATO NUNEZ AND YULY MELISSA CERRATO NUNEZ,
PLAINTIFFS-APPELLANTS,

V.

WEST BEND MUTUAL INSURANCE COMPANY AND ALPINE INSULATION,
D/B/A A&B DRYWALL ROCK SOLID,
DEFENDANTS-RESPONDENTS.   

You can find the full decision here.  

two judge of Wisconsin Workers Comp making dicision
public domain by Moshe Pridan

This case stirred a large amount of Workers Comp press buzz over the last week.   I usually do not mention “well worn” stories unless they may apply to your specific Workers Comp situation.   As I have often said – “Coming to a State Near You.

Wisconsin Workers Comp remains unto itself.  Many major differences exist between the Badger State and  other states.   The lack of a medical fee schedule remains one of the major differences in Wisconsin Workers Comp and most of the US

Another reason I am mentioning this case is this is not an isolated incident.   Many court systems have ruled that what was thought to be a non-employee as a direct employee.    Stats such as South Carolina were the subjects of articles on this situation. (See above article search link)

One area that I noticed was the reaction by the PEO community.  PEO’s are different than temp agencies.   However, NAPEO (PEO National Association) published an article yesterday which directly referenced this matter.   

The Court’s final conclusion is below (emphasis in bold):

CONCLUSION

¶31 In summary, we conclude the exclusive remedy provision does not bar a temporary employee from bringing tort claims against his or her temporary employer. We further conclude, based on the statute’s plain language, that WIS.STAT. § 102.29(6)(b)1. bars only those temporary employees who make claims for compensation under the Act from pursuing tort claims against their temporary employers. In this case, it is undisputed the Estate has not made any claim for compensation under the Act. As a result, § 102.29(6)(b)1. does not bar the Estate from pursuing tort claims against Alpine and West Bend. Similarly, even if Rivera was a loaned employee of Alpine, § 102.29(7) does not bar the Estate’s tort claims. The circuit court therefore erred by granting Alpine and West Bend summary judgment.

By the Court.—Judgment reversed and cause remanded.

This case will likely end up in the Wisconsin State Supreme Court on appeal.  You may want to download the PDF  – see first link above- and read it for your own reference.   The court decision is not a very long document.   

If any new developments occur, I will provide any updates on this Wisconsin Workers Comp case.

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James Moore

Raleigh, NC, United States

About The Author...

James founded a Workers’ Compensation consulting firm, J&L Risk Mgmt Consultants, Inc. in 1996. J&L’s mission is to reduce our clients’ Workers Compensation premiums by using time-tested techniques. J&L’s claims, premium, reserve and Experience Mod reviews have saved employers over $9.8 million in earned premiums over the last three years. J&L has saved numerous companies from bankruptcy proceedings as a result of insurance overpayments.

James has over 27 years of experience in insurance claims, audit, and underwriting, specializing in Workers’ Compensation. He has supervised, and managed the administration of Workers’ Compensation claims, and underwriting in over 45 states. His professional experience includes being the Director of Risk Management for the North Carolina School Boards Association. He created a very successful Workers’ Compensation Injury Rehabilitation Unit for school personnel.

James’s educational background, which centered on computer technology, culminated in earning a Masters of Business Administration (MBA); an Associate in Claims designation (AIC); and an Associate in Risk Management designation (ARM). He is a Chartered Financial Consultant (ChFC) and a licensed financial advisor. The NC Department of Insurance has certified him as an insurance instructor. He also possesses a Bachelors’ Degree in Actuarial Science.

LexisNexis has twice recognized his blog as one of the Top 25 Blogs on Workers’ Compensation. J&L has been listed in AM Best’s Preferred Providers Directory for Insurance Experts – Workers Compensation for over eight years. He recently won the prestigious Baucom Shine Lifetime Achievement Award for his volunteer contributions to the area of risk management and safety. James was recently named as an instructor for the prestigious Insurance Academy.

James is on the Board of Directors and Treasurer of the North Carolina Mid-State Safety Council. He has published two manuals on Workers’ Compensation and three different claims processing manuals. He has also written and has been quoted in numerous articles on reducing Workers’ Compensation costs for public and private employers. James publishes a weekly newsletter with 7,000 readers.

He currently possess press credentials and am invited to various national Workers Compensation conferences as a reporter.

James’s articles or interviews on Workers’ Compensation have appeared in the following publications or websites:

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