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.
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.
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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