Temporary Employee Has Option of Claiming Benefits or Suing in Tort
Based, at least in part, on the court’s so-called “literal” reading of a Wisconsin statute [Wis. Stat. § 102.29(6)(b)1.], the Court of Appeals of Wisconsin recently held that a worker employed by one firm and assigned to a borrowing employer may proceed in tort against that borrowing employer (referred to in some jurisdictions as the “special employer”) for injuries sustained in the course and scope of the employment, so long as the worker has not already sought workers’ compensation benefits from the borrowing employer [Ehr v. West Bend Mut. Ins. Co. (In re Estate of Rivera), 2018 Wisc. App. LEXIS 16 (Jan. 9, 2018)]. In its decision, the Court adopted a position in opposition to the vast majority of jurisdictions, which generally bar tort actions by a temporary (i.e., “lent”) employee against the borrowing or special employer [see Larson’s Workers’ Compensation Law §§ 67.01, 100.01, 111.04].