Wisconsin Appellate Court Rules That Temporary Employees Injured On The Job Are Not Limited Only To A Workers’ Compensation Claim or Can Opt To Bring A Tort Claim Against Their Temporary Employer
In a recent decision, the Wisconsin Court of Appeals ruled that temporary employees who are injured while working may bring a tort lawsuit against their temporary employer. In doing so, the Appellate Court significantly broadened the scope of potential tort liability for employers by holding that claiming benefits under Wisconsin’s Workers’ Compensation Act is no longer the exclusive remedy for a temporary employee injured on the job. In Re the Estate of Carlos Esterley Cerrato Rivera, No. 2017AP142 (Jan. 9, 2018, https://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=206844).
The decision reversed a trial court ruling that the estate of a deceased temporary employee who died while working could not bring a wrongful death action seeking damages for pain and suffering endured by the deceased’s children against an employer and its insurance carrier, and was instead limited only to making a workers’ compensation claim for death benefits.
Relying on the plain language of the Wisconsin Workers’ Compensation Act (Wis. Stat. § 102.03(2), the Appellate Court held that temporary employees are not barred from bringing tort claims against temporary employers because the Act only bars claims where the temporary employee “makes a claim for compensation” under the Act.
According to the Appellate Court, 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. (Permanent employees, on the other hand, may only file a claim under the Act if injured while working although they may also pursue a tort claim against a third party.)