Worker’s Compensation – Temporary Agency

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WI Court of Appeals – District III

Case Name: Raoul R. Her, et al. v. West Bend Mutual Insurance Company and Alpine Insulation

Case No.: 2017AP142

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Worker’s Compensation  – Temporary Agency

This appeal requires us to address the following issue: can an employee of a temporary help agency who has been injured in the course of his or her employment and who has not made a worker’s compensation claim bring a tort claim against his or her temporary employer? Based on the plain language of the relevant statutes, we conclude the answer to this question is yes.

As explained below, the exclusive remedy provision of the Worker’s Compensation Act (“the Act”), WIS. STAT. § 102.03(2) (2015-16), does not bar a temporary employee from bringing tort claims against his or her temporary employer. WISCONSIN STAT. § 102.29(6)(b)1., which specifically addresses tort claims by temporary employees against their temporary employers, bars such claims only where the temporary employee “makes a claim for compensation” under the Act. It therefore follows that a temporary employee who has not made a claim for compensation under the Act is permitted to pursue a tort claim against his or her temporary employer. Moreover, even if the employee at issue in this case is construed as a loaned employee, rather than a temporary employee, we still conclude the Act does not bar his estate’s tort claims. We therefore reverse the circuit court’s decision granting summary judgment to Alpine Insulation, the temporary/borrowing employer in this case, and its insurer, West Bend Mutual Insurance Company.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.