In a stunning recent decision, the Wisconsin Court of Appeals held that temporary employees who are injured/killed while performing services for their host employer have the right to choose between the receipt of workers’ compensation benefits under the Wisconsin Worker’s Compensation Act or the pursuit of a personal injury claim against the host employer. Under the Wisconsin Worker’s Compensation Act, temporary employees who are injured while performing services for their host employer and “make a claim” for worker’s compensation benefits are precluded from maintaining an action in tort against the employer that compensates the temporary agency for their services (i.e., the “host” employer). Thus, if the employee makes a claim for worker’s compensation benefits against the temporary agency, he/she may not pursue a personal injury claim against the employer for which it was performing services when injured. But what if the employee never “makes a claim for compensation” against the temporary employer, and chooses instead to sue the host employer?

In Estate of Carlos Rivera v. West Bend Mutual, 2017 AP 142 (Jan. 9, 2018), the Wisconsin Court of Appeals held that ability to choose a course of action implied by the “makes a claim” language in Wis. Stat. § 102.29(6)(b), means that the bar against pursuing a tort claim against the host employer only applies if the employee “makes a claim” for benefits – but not if he does not. Rivera was killed in a car accident while performing temporary services for his host employer, and, tragically, never had the need for the more immediate payment of traditional worker’s compensation benefits for lost wages, medical expenses, permanent disability, etc., without having to go to court and prove the employer was at fault. Instead, his estate was faced with the choice of seeking medical expenses and death benefits under the WC statute, or a potentially more lucrative claim for wrongful death through the court system, where it could recover damages for pain and suffering, and his minor children’s loss of society, companionship and support.

The court’s decision upsets the historic foundation of the worker’s compensation act and the purpose of the exclusive remedy provision. A Petition for Review has been filed with the Wisconsin Supreme Court, and I expect the court will either overturn the appeal court’s decision or the issue it has created will be addressed by the legislature.

If you have any questions feel free to contact Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.