PORFIRIO VIVEROS, Applicant

STEELWIND INDUSTRIES, Employer

EPIC STAFF MANAGEMENT INC., Employer

TRAVELERS INDEMNITY COMPANY, Insurer

CONTINENTAL CASUALTY CO, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed.

Dated and mailed November 29, 2001
viveros . wsd : 101 : 1    ND § 2.2

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

In this case, the only issue is which of two entities Steelwind Industries (Steelwind) or Epic Staff Management (Epic) is the subject employer with respect to the injured worker's (Viveros's) injury. Because the traditional disability issues (occurrence of injury, causation, nature and extent of disability) are not at issue, the "applicant" in this case is one of the putative employers, Steelwind, not the injured worker.

In brief overview, Epic and Steelwind entered into an "Agreement for Services" (the Agreement). Under the Agreement, Epic provided "members" (all former employees of Steelwind) to Steelwind, and acted as the members employer for worker's compensation purposes. On January 12, 2000, Steelwind and Epic agreed to cancel the Agreement, retroactively to January 1, 2000. In the interim, on January 10, 2000, Mr. Viveros was injured.

The issue here, simply, is whether the Agreement to cancel retroactively the Agreement on January 12, 2000, made Steelwind the liable employer. ALJ Krueger held that it did not, and the commission agrees.

Wis. Stat. § 102.04(2m), enacted by 1997 Wis. Act 38, provides:

"102.04(2m) A temporary help agency is the employer of an employee whom the temporary help agency has placed with or leased to another employer that compensates the temporary help agency for the employee's services. A temporary help agency is liable under s. 102.03 for all compensation payable under this chapter to that employee, including any payments required under s. 102.16 (3), 102.18 (1) (b) or (bp), 102.22 (1), 102.35 (3), 102.57 or 102.60. Except as permitted under s. 102.29, a temporary help agency may not seek or receive reimbursement from another employer for any payments made as a result of that liability."

In addition, temporary help agency is defined as:

"102.01(2)(f) 'Temporary help agency' means an employer who places its employee with or leases its employees to another employer who controls the employee's work activities and compensates the first employer for the employee's services, regardless of the duration of the services."

In this case, Epic claims it is not a temporary help agency. However, Epic does come within the definition of "temporary help agency" in Wis. Stat. § 102.01(2)(f) because Epic leased or placed its employees with Steelwind. Epic witness Jacobs described the "members" as employees of Epic, which is the only rationale conclusion as the Agreement forbade Steelwind from paying or entering into Agreements with the members. Epic may not have placed the members with Steelwind in the first instance, but Epic had the right to reassign the members, and they were Epic employees, so the continued presence of the members at Steelwind may only be regarded as placement. Further, given the one-year term of the Agreement, and the way the fees are structured, it must be concluded that Epic leased the employees to Steelwind. Beyond that, both parties, Steelwind and Epic, clearly intended the workers to be Epic employees covered under Epic's workers compensation policy during the life of the Agreement.

In short, Epic was Mr. Viveros's employer for the purposes of the WC act under Wis. Stat. § 102.04(2m) as long as the Agreement remains in force. The only dispositive question, as the commission views this case, is what effect should give the retroactive termination of the Agreement.

Under Wis. Stat. § 102.03(1) an employer is liable where, at the time of the injury, the employer and employee are subject to Wis. Stat. ch. 102. The time of the injury in this case was January 10, 2000. On that date, the Agreement had not yet been cancelled and remained in effect. On that date, Epic was the subject employer vis-à-vis the Mr. Viveros.

The commission, like the ALJ, cannot conclude that Epic and Steelwind retroactively changed the Viveros-Epic employment relationship by canceling the Agreement. As of January 10, 2000, when Mr. Viveros was injured, Mr. Viveros was employed by Epic for the purposes of Wis. Stat. ch. 102.

That is not to say the January 12, 2000, Agreement may not have some effect as between Epic and Steelwind. Much of the testimony in this case involves Epic's attempt to show that the equities are on its side as it did not charge Steelwind for its full services in January 2000, and it not intend to cover Steelwind's employees for worker's compensation in that month. Indeed, Epic may be able to rely on the Agreement to obtain contribution from Steelwind in an action in equity or on the contract itself. For the purposes of the authority of the department and this commission under Wis. Stat. ch. 102, however, Epic was Mr. Viveros's employer at the time of injury, and Epic is the liable employer.

cc: 
Attorney James G. Nowakowski
Attorney John A. Griner IV

Appealed to Circuit Court.  Affirmed July 17, 2002. Appealed to the Court of Appeals.  Modified  and affirmed as modified, June 26, 2003, sub nom. Epic Staff Mgt. and Cont. Casualty v. LIRC, Viveros, Steelwind and  Travelers, 2003 WI App __ ,  __ N.W.2d __  (#02-2310, Filed Jun. 26, 2003) (publication recommended).

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